CLEVELAND BOARD OF EDUCATION v. LOUDERMILL

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ORAL ARGUMENT OF JAMES G. WYMAN, ESQ., ON BEHALF OF THE PETITIONERS IN NOS. 83-1362 and 83-1363 AND THE RESPONDENTS IN NO. 83-6392

Chief Justice Warren E. Burger: We will hear arguments first this morning in Cleveland Board of Education against Loudermill.

Mr. Wyman, you may proceed whenever you are ready.

James G. Wyman: Mr. Chief Justice, and may it please the Court, the issue presented by the cases at bar today is whether or not the due process clause of the Fourteenth Amendment required the Cleveland Board of Education and the Parma Board of Education to grant respondents a hearing before they were terminated from their employment.

It is the petitioners' position that the precedents of this Court do not require a pretermination hearing, and further, that the Ohio Revised Code, Section 124.34, comports with the due process clause and adequately protected the respondents' rights.

Mr. Loudermill was a security guard for the Cleveland Board of Education.

In order to get that job, he filled out an application form.

On that form, he was asked if he had ever been found guilty of any felony.

He answered he had not.

He further attested at the end of that application that the answers he gave were not only truthful but accurate.

A routine check of his record was done by the Cleveland Board of Education.

He was found to have had a previous felony conviction, that of grand larceny, and he was terminated.

Unidentified Justice: How long after his appointment was that discovery made?

James G. Wyman: After his appointment it was approximately eleven months, Your Honor.

What had happened in that case is, we had originally hired on a number of security people during the institution of our desegregation case.

We thereafter reorganized our organization and as a part of the reorganization we went through routine checks for a newly created safety and security department.

Unidentified Justice: I gather his service was satisfactory during the eleven months before discovery?

James G. Wyman: There were no known reasons or any incidents that had happened with Mr. Loudermill.

That is correct.

But the Cleveland Board of Education, upon finding out of his criminal past, did in fact release him.

Mr. Donnelly was a mechanic for the Parma Board of Education.

He was required as a part of that job to have an annual eye examination.

He took and failed that eye examination.

He was given the opportunity to retake that exam.

He declined to do so, and he, too, was fired.

The most recent decisions--

Unidentified Justice: How long had he been working before his discharge?

James G. Wyman: --I am not sure of the actual length of employment.

He had been working for not a considerable length of time, but more than two or three years he had been employed.

Unidentified Justice: And his service, too, had been satisfactory?

James G. Wyman: As far as I know, yes, that is true.

The most recent decisions of this Court have consistently held that in analyzing the requirements of due process vis-a-vis the termination of an employee who has a protected property interest, the Court will take a case-by-case approach based upon the facts of each case, and further, that the timing and the nature of the required due process hearing depend upon an appropriate accommodation of competing interests.

Those interests include the private interest of the employee.

They include the timing or the length of deprivation, the risk of error that is involved, and the governmental entity's interest.

It is petitioners' argument that in weighing and in balancing these particular factors, the Court should determine that the governmental interest outweighs that of the individual employees in this case.

The private interest of the individual in this case would be his right to continued employment and the possible interruption of his income.

The length of loss in these cases turns out to be exactly ten months.

Throughout the administrative procedure, it took ten months for a resolution of the status as to whether or not they had been rightfully or wrongfully terminated--

Unidentified Justice: So there was as posttermination hearing?

James G. Wyman: --Oh, absolutely, Your Honor.

Unidentified Justice: And that went on for ten months in the case of Loudermill?

James G. Wyman: That's correct.

And at the end of that ten-month period, the administrative agency determined that he had... Mr. Loudermill had in fact been dishonest, and there was no appeal taken from that decision, so as it stands, and as of the time of the filing of the complaint in this case, Mr. Loudermill had been adjudicated to have been dishonest.

Unidentified Justice: Well, now, Mr. Donnelly was reinstated, I take it.

James G. Wyman: That's correct.

Mr. Donnelly was... his decision was modified by the Parma Civil Service Commission to a suspension for the time of period... length of time that he was off, and he was reinstated, however, to his employment, so he did get his job back.

Unidentified Justice: Mr. Wyman, may I inquire, what are the possible remedies for a wrongfully discharged employee in your jurisdiction?

Do they have a right of reinstatement if the discharge was erroneous?

James G. Wyman: Absolutely.

Under Ohio Revised Code 124.34 they have the right to a full, prompt de novo hearing where they are entitled to--

Unidentified Justice: Not the procedural remedies, the substantive remedies available are reinstatement... how about damages?

James G. Wyman: --They are entitled to reinstatement, and if the discharge was found to be wrong, reinstatement and back pay.

The Civil Service Commissions, however, also have the right to affirm whatever decision the governmental entity made, or it can modify.

The modification may take the form of denying back wages, or it may take the form of modifying the length of time of any suspension that might be involved.

Unidentified Justice: With regard to the procedural remedies available to such an employee, you rely on this Court's decisions in Arnett and in Matthews, and in those cases the Court upheld postdeprivation hearings for employees where there was an opportunity to respond before the discharge.

Was there an opportunity to respond given here?

And is that part of the scheme in place in your jurisdiction?

James G. Wyman: There is no statutorily provided scheme for response.

In both cases there was a time period within which a response could have been granted.

Unidentified Justice: Would you state that again?

James G. Wyman: There is no statutorily outlined scheme for requiring or allowing some pretermination process.

Unidentified Justice: Then you said but?

James G. Wyman: But the facts in the instant case reflect that there was a time period during which both Mr. Donnelly or Mr. Loudermill may have responded should they have desired to do so.

Unidentified Justice: You mean you told them you were about to fire them, and then there was some time?

James G. Wyman: There was a letter sent out in the Loudermill case to the employee, and his discharge was not confirmed by the board of education until November 13th, ten days later.

Unidentified Justice: But nothing in that letter told him that he could explain or respond or whatever?

James G. Wyman: That's correct, and it's the position of the petitioners that there would have been no purpose to any additional pretermination hearing or process.

The factual basis upon which the boards of education made their determination was objective criteria.

In Mr. Loudermill's case, we had two documents in front of us.

We had a court record which reflected his felony conviction, and we had his application, which reflected his attestation to not only the honesty but the accuracy of the information.

Unidentified Justice: What do you do, Mr. Wyman, with what we said in Davis and Scherer last time, that decisions of this Court by 1978 had required some kind of hearing prior to discharge of an employee who had a constitutionally protected property interest in his employment?

James G. Wyman: It is the petitioners' position that--

Unidentified Justice: But he didn't get any kind of hearing.

James G. Wyman: --He got no kind of hearing, and for the sake of the argument before this Court, because of the status of the pleadings, the way this case has developed up, that has to be taken as true.

It is our position that there must be... a fair reading of the cases indicates there must be a hearing provided before an employee is finally deprived of his rights.

And in this case Mr. Donnelly was never finally deprived of his right to employment, because in fact he was reinstated, and in Mr. Loudermill's case he was finally deprived at the end of the posthearing process.

Unidentified Justice: Mr. Wyman, do you think that our cases indicate there has to be an opportunity to respond?

James G. Wyman: There are cases that do in fact indicate that there should be an opportunity to respond.

It is our position that in this case, or under the facts of this case, the response would have served no purpose, and I would turn to basically the Dixon versus Love type of analogy where the only thing that they could have said was, I didn't mean to do it, or I didn't know that it was a felony.

There was no additional--

Unidentified Justice: He also said he didn't do it at all, and he wasn't there.

James G. Wyman: --He could say that.

Unidentified Justice: And he wasn't in court.

Didn't he?

It is true that he could say that, but we had before--

--Couldn't that have been true?

James G. Wyman: We believe that the reliability of the objective evidence was such that we had a right--

Unidentified Justice: I thought you said all you had was the conviction.

James G. Wyman: --We had a court record of the conviction and his application.

Unidentified Justice: How do you know it is the same man?

James G. Wyman: Because we have an employee number.

We have a number of internal processes that would identify who we had.

Unidentified Justice: Like what?

James G. Wyman: We have an employee number.

We have a social security number which identifies the employee, which also would be on his... it would be on his application form, obviously, and we would have identified the person that was involved with the name and also checked it out to make sure that it was in fact the person we were talking about.

We would not act arbitrarily.

When we terminate someone, we do not just terminate them at a whim.

We make sure there is a reason.

Unidentified Justice: Did you ever ask him if he was the same person?

James G. Wyman: I cannot honestly answer that, Your Honor.

Unidentified Justice: Doesn't he admit that he is the same person, and that it was a misdemeanor and not a felony?

James G. Wyman: Under the facts of this case, certainly.

It is in fact admitted that Mr. Loudermill was the person who was convicted of the grand theft felony previously, but again, the important thing, I think, for this Court to realize is that we are talking about the boards' use, both Parma and Cleveland boards' use of objective criteria.

We are not using subjective criteria, where the possibility is that we might have made some sort of error, even though again I admit that certainly even with objective criteria there may be an error somewhere in that process.

Unidentified Justice: In Donnelly's case, the ultimate disposition was changed from discharge to suspension.

James G. Wyman: That's correct.

Unidentified Justice: What was the basis on which the Civil Service Commission made that change?

James G. Wyman: I don't know what the basis of the Civil Service Commission's decision was, because the Parma Civil Service Commission is not a party in any of the cases before the Court.

I do understand, though, that it may have been a compromise type of position where they gave him back his job but also failed to grant him the back pay as a half a loaf type of situation.

Unidentified Justice: And he accepted that.

James G. Wyman: Apparently he accepted that, although he has... he went through a process, a court process to try to win back his back pay.

Unidentified Justice: Is Donnelly a party to this litigation?

James G. Wyman: Donnelly is, yes, but the post-termination delay issue which is involved in Loudermill is not involved in, I don't believe, the Parma case.

Unidentified Justice: Well, in Donnelly's case it may be that if you had given him an opportunity to respond, he never would have been suspended, or laid off.

James G. Wyman: It is the Parma Board of Education's position that they did give him that opportunity.

They gave him a chance to retake the eye examination, and said, here, take it again.

Before we do anything take the exam again.

Maybe there was an erroneous medical determination.

Maybe there is something else that can happen.

Unidentified Justice: There was a communication back and forth in Donnelly's case?

James G. Wyman: There was at least a communication to him and an apparent refusal to take that second eye examination.

What Mr. Donnelly's thinking was as to why--

Unidentified Justice: Well, I know, but couldn't at that stage the same reason have been... couldn't the same reason have emerged to keep him on that later reemployed him?

James G. Wyman: --I can't answer that, because I don't know what went on in the minds of those in the Civil Service, other than the fact that--

Unidentified Justice: Is it your position... suppose that it was perfectly plain that there was quite a large risk of error in this case.

James G. Wyman: --Okay.

Unidentified Justice: Is it the board's position that nevertheless a pretermination hearing need not be given?

Is it your position that a post-termination hearing always is enough?

James G. Wyman: You are placing me in your position.

My thought would be that the greater the risk of error, obviously, the more useful the pretermination process.

Unidentified Justice: Well, however, you don't suggest that we redo the Arnett case?

James G. Wyman: It would be our position from the board of educations--

Unidentified Justice: You would like us to.

James G. Wyman: --that we would like you to, yes.

We realize, obviously, that there are some constraints to that, and with the definition of due process.

Another important point is that the cases of this Court that have come down that dealt with pretermination hearings dealt also with situations where there was a permanency of the effect of the discharge or the effect of the taking of a property right.

We do not have that type of permanency in this case.

When we are talking about the deprivation here, we are talking about, assuming we are wrong, which we do not concede, obviously, we are talking about the fact that it is a temporary loss of employment, a temporary loss of wages which, if we are found to have been wrong, he may be reinstated, and he may be entitled to his back pay.

He can be made whole entirely.

The other cases of this Court which dealt with and, of course, which there is a valid and obvious concern, is when you have a deprivation such as the taking of someone's benefits that might in fact leave them poverty stricken and they would be unable to survive.

We are not talking about that type of situation.

Unidentified Justice: What about this eye examination?

Is it your position that when this man was offered a chance to have a second eye examination, that that met any requirements of due process?

James G. Wyman: We... the Parma Board of Education would certainly argue that, yes.

And those facts, I believe, are in the record, in the pleadings in the complaint.

Unidentified Justice: Mr. Wyman--

James G. Wyman: Yes, sir?

Unidentified Justice: --When was the offer for a second eye examination made?

Was it before or after the notice of discharge?

James G. Wyman: It was before, Your Honor.

Their offer was made before he was discharged to take a second eye examination.

He refused to do so, and he was thereafter discharged.

Unidentified Justice: It was at your client's expense?

James G. Wyman: I believe so.

I believe it is.

It is a benefit that the Parma Board of Education... it is not only a benefit, but it is a safety factor that is involved with the boards of education, and they provide those examinations for their employees.

Unidentified Justice: Including the reexamination.

James G. Wyman: Yes.

Unidentified Justice: You assumed the reexamination?

James G. Wyman: Yes.

Yes.

Unidentified Justice: May I just ask, on the notice of the second... the right to take a second exam, he alleges, as I remember, that there was another employee who had failed the exam and was still working there.

Is it clear that he knew that flunking the eye exam would cause his discharge?

James G. Wyman: It is clear that he knew that flunking the eye exam would cause his discharge.

The other gentleman, it was part of a labor negotiation, and had a grandfather status, and has not in fact doing mechanical type chores as Mr. Donnelly was performing.

Mr. Donnelly's position directly related... it is our position that his position directly related to the safety of the children involved.

We are talking about both Mr. Loudermill and Mr. Donnelly dealing in very sensitive areas.

We have Mr. Loudermill being a security guard, and charged in the Cleveland Board of Education with millions of dollars worth of real estate, and also millions of dollars worth of assets, computers, educational materials, and to find that we have a person who is an ex-felon as our security guard is very distressful to us.

We need, and I believe this Court should find, the right to immediately discharge an employee who, pursuant to some objective criteria, in this case again a court order, is found to have... to pose a risk, a potential threat to the system.

We have to be able to immediately act on that.

It affects not only the efficiency of our operation and the discipline of our employees, as the Sixth Circuit said, but with boards of education it affects the safety--

Unidentified Justice: Mr. Wyman, why wouldn't the boards' interest be adequately served by immediate suspension and an opportunity to make a response in 24 hours, or something like that?

What harm would that be?

James G. Wyman: --An immediate suspension itself would kick in the same thing.

It becomes a semantic game.

Whether you call it a suspension pending termination or whether you call it termination, under the Ohio Revised Code the same due process rights are afforded, and I believe under the dictates of this Court the same due process rights would be required.

The question would be whether or not there should be a pretermination before the suspension.

Unidentified Justice: But you would agree that there would be no prejudice to the board if there were an immediate suspension followed by an option to respond before the suspension ripened into a discharge.

James G. Wyman: I would think that that would be a possible resolution, although it may in fact still be burdensome upon the employer, the boards of education.

Unidentified Justice: I suppose it doesn't make a lot of difference to Mr. Loudermill whether he is suspended without pay and then granted a hearing and ultimately discharged after the hearing or whether he is discharged and given a hearing after that.

If he doesn't get back pay during the time of suspension, it is six of one and half a dozen of the other.

James G. Wyman: That's correct.

That's our position.

I mean, technically we could have suspended him without pay, given him the hearings that are required under Ohio Revised Code 124.34, and called them pretermination hearings.

And by playing that type of game we could have avoided a pretermination hearing issue.

Unidentified Justice: What remedy did the Court of Appeals think Loudermill was going to get?

James G. Wyman: Did the Court of Appeals... we are unsure.

I am unsure.

Unidentified Justice: It certainly didn't--

James G. Wyman: The court was unaware of what it could do.

I mean, we were... when we went back to District Court--

Unidentified Justice: --Under the decision, all he was deprived of is a procedural due process.

James G. Wyman: --That's correct, and that was the only issue left, and the question would have been--

Unidentified Justice: So under our cases, what remedy would there be?

A peppercorn, or a penny, or something?

James G. Wyman: --Probably.

The time length in this case would have been a short time period, and again, substantively his employment has been properly terminated, the collateral estoppel argument in regards to a substantive issue of employment.

Unidentified Justice: Aren't there two aspects to his answer?

First, the objective, uncontested objective fact that he was guilty of a felony, and the second one is that he, as he claims, misrepresented this because of a misunderstanding.

Now, is the state concerned with the existence of a felony conviction, or concerned that he got confused about it?

Which is the basis of the firing?

James G. Wyman: We are concerned that he got confused about it.

I think that that adds a little bit of fuel to the fire.

While the felony itself might raise some concerns, to find that he had misrepresented that, the felony was relatively old, but the misrepresentation was relatively new.

And if we are dealing with someone who we can't trust in regards to an application, how can we trust him again, not only with the assets, but the security guards deal with the safety of the children.

They deal with part of the educational processes.

They are part of the providers.

That is the difference in these cases, that we are dealing with boards of education.

The interests of not only the governmental entity but those to whom it serves merge.

We are serving pupils.

Education is our business.

And we have to get on with the business of that.

We don't... the Civil Service Commissions are totally independent bodies, and once the process kicks into the Civil Service Commission, the board of education has very little to do with it.

Under the Ohio Revised Code, promptly afterwards, within ten days he has the right to file an appeal, and it kicks out and is handled by Civil Service.

It is not handled by boards of education.

Their employees, their time is not spent in that process.

Unidentified Justice: May I ask you about the promptness of the postdeprivation hearing?

The law says that it will be granted within 30 days, does it not?

James G. Wyman: That's correct.

Unidentified Justice: But Ohio courts have said that is not mandatory.

James G. Wyman: That's correct, they've said that--

Unidentified Justice: And in this instance it took nine months for a decision.

James G. Wyman: --For a decision.

Now, we are talking two different issues, Your Honor.

For the initial hearing, it took two and a half months, and it is interesting to note also--

Unidentified Justice: And the Ohio court simply says that the statutory requirement of 30 days is not binding.

James G. Wyman: --That's correct.

The courts, the Ohio courts have held that it is not binding because of the tremendous volume--

Unidentified Justice: What would assure a prompt postdeprivation hearing under Ohio's scheme then?

James G. Wyman: --The assurance is--

Unidentified Justice: Even if you are right.

James G. Wyman: --Well, our position is that there was in fact a prompt post-termination hearing in this case.

There is no question he had a hearing within the two and a half months.

Although that might be lengthy to some, in the scheme of the volume, tremendous volume of cases that are heard by that commission, which is well over... in the thousands, that is not particularly a lengthy time.

It is also interesting to note that during that two and a half months you had Thanksgiving, you had Christmas, and you had New Years'.

Unidentified Justice: Why are there so many cases in Ohio?

Are you firing everybody out there?

James G. Wyman: We have a lot of public employees, Your Honor.

Unidentified Justice: May I just ask one other question?

If he had had a pretermination opportunity to respond, would the response perhaps have been considered by the school board instead of the Civil Service?

James G. Wyman: Yes.

Unidentified Justice: Would it possibly have been a different decisionmaker?

James G. Wyman: We would submit that it would not have.

Part of my argument was the fact that the only thing he could say was, I didn't... I was ignorant of the law.

His ignorance of the law did not go to the merits of the decision.

Basically it would be a Dixon versus Love type of situation.

He would be begging for clemency as opposed to challenging the factual basis for the determination.

Unidentified Justice: Isn't that perhaps a relevant point, that maybe there would have been room for clemency immediately before the board, but it wouldn't be a legally sufficient basis for objecting before the Civil Service Commission?

Isn't there a possibility of a different disposition, depending on the timing?

James G. Wyman: From the board of educations' point of view, no.

Thank you.

Chief Justice Warren E. Burger: Mr. Fertel.

ORAL ARGUMENT OF ROBERT M. FERTEL, ESQ., ON BEHALF OF THE RESPONDENTS IN NOS. 83-1362 and 83-1363 AND THE PETITIONER IN NO. 83-6392

Robert M. Fertel: Thank you.

Mr. Chief Justice, and may it please the Court, I think this Court's recent decision in Davis versus Scherer makes clear that the issues in this case are not whether some pretermination procedures are to be required before termination of a discharged employee, but what procedures are to be required.

And I think in Note 10 of the case the Court says that we have to consider the factors in Matthews versus Eldridqe, and the first factor in Matthews versus Eldridge is the private interest involved, and this Court in Logan versus Zimmerman held that there is a substantial interest in the continued government employment.

We are also dealing with 16 million governmental employees, federal, state, and local, and when you are dealing with the dependents of such employees, you are possibly dealing with one-fifth to one-fourth of the population of the United States, so the right to continue governmental employment is clearly a substantial interest.

The second factor is the risk of wrongful deprivation, and whether the use of additional procedures would lessen such risk.

First of all, under Ohio law, there is no procedure whatsoever to guarantee pretermination procedures.

It is like a knockout punch.

You get a letter that says you are going to be terminated, and you have to get up off your feet and file an appeal within ten days.

A lot of times you are without counsel.

And you just get this letter and they say, you are hereby being terminated.

In the Loudermill case, he received the letter dated November 3rd saying that he was going to be terminated.

Then the board of education on November 13th rubber stamped it, confirmed it.

But all the letter said was, you are here being terminated.

In the Donnelly case--

Unidentified Justice: What is the time allowed for answer, say, under the Federal Rules of Civil Procedure to answer a complaint?

Robert M. Fertel: --Twenty days.

Unidentified Justice: Twenty days.

Do you think there is a constitutional difference between 20 days and 10 days?

Robert M. Fertel: Yes, sir, especially in the fact situation where there is no pretermination procedure.

All of a sudden you just get a letter.

There are no warnings without any pretermination standard to be considered.

One day you get a letter.

Unidentified Justice: Well, it seems to me your argument defeats itself, because if there are no pretermination procedures, then any amount of notice or no notice at all is really satisfactory, because there is nothing to be done.

Robert M. Fertel: Well, that is our position, that you need some... there has to be pretermination procedures.

Unidentified Justice: Then the amount of days that go by between the notice and the action isn't really relevant, is it?

You are saying that presumably he could have gotten this letter and six months could have gone by before the board acted, and yet if the board hadn't specified that there were pretermination procedures, your argument would be the same, wouldn't it?

Robert M. Fertel: No, Your Honor.

It is just the effect of it, to show how the system lacks due process, the fact that--

Unidentified Justice: Let's boil your argument down a little.

Supposing that he received exactly this letter that he did receive, but instead of the school board acting in ten days it acted in six months.

Wouldn't your argument be pretty much the same, that they didn't specify any pretermination procedures?

Robert M. Fertel: --Right.

We would say that without the pretermination, he is denied due process, whether it is ten days or whatever.

Unidentified Justice: So what difference does the amount of time between the notice and the action of the school board make to your argument?

Robert M. Fertel: It isn't.

There is no... the point being that I am just saying the inadequacy of the state procedure is that there is no pretermination procedures whatsoever, and all of a sudden you get a letter for termination, and then you have to react in ten days by filing an appeal.

There is no guarantee in Ohio of either a pretermination procedure or any prompt termination procedure.

Unidentified Justice: When did this explanation that he was confused between a felony conviction and a misdemeanor conviction first appear?

Robert M. Fertel: It first appeared at the time of the hearing, before the referred at the Civil Service Commission, where he testified that he thought he was convicted of a misdemeanor, and when he saw the application, it said were you ever--

Unidentified Justice: What was the conduct?

Is that shown by the record?

What was the conduct for which he was convicted?

Robert M. Fertel: --It was a grand theft conviction approximately eleven years prior to the filling out of the application, and there are administrative code sections in Ohio saying that more than two years is insufficient.

You can't... somebody can't be terminated for a felony conviction prior... for two years prior to the date of the termination.

Unidentified Justice: You contend this termination was in violation of that section of Ohio law?

Robert M. Fertel: It was a violation, plus the fact that his defense was that he thought he was convicted of a misdemeanor and not a felony.

Unidentified Justice: What if the school board's approach was, we are not so worried about the felony, we are worried you lied about the felony?

Robert M. Fertel: Well, that is the whole issue of the case.

It is whether or not he was dishonest.

He was not terminated for the felony conviction.

He was terminated for being dishonest, and there is a factual question whether or not he was dishonest at the hearing.

Unidentified Justice: Well, so then the school board's action doesn't violate Ohio law.

The two-year section that you mention, if they are terminating for dishonesty rather than for a conviction of a felony.

Robert M. Fertel: Right, but then you have to have an opportunity to explain the reason it is a factual conviction.

Just because they have the order of conviction, there is still a fact issue in this case whether or not he believed that he was convicted of a felony or whether he thought he was convicted of a misdemeanor.

Unidentified Justice: What if the school board had followed the action which Mr. Wyman, your opponent, was quizzed about, if they had simply, when this information came to their attention, they had suspended him without pay, and he had then gotten a hearing in the same manner that he did, and the hearing board, the Civil Service Commission says, well, we are converting your suspension into a discharge?

He had an opportunity to testify and all that before the Civil Service Commission.

Would that have comported with due process?

Robert M. Fertel: No.

First of all, he didn't have an opportunity for two and a half months, and then the referee didn't file his report for another two and a half months, and then by the time the Civil Service Commission made its "hearing", even though there were no... it was just arguments of counsel in July for nine months until the... by the time he got his letter of termination until his actual resolution, and that is one of the issues we raise.

That is a delay issue, that there wasn't a prompt hearing, that you are entitled to a prompt hearing.

Unidentified Justice: Well, supposing then that there had been a suspension without pay followed by a hearing which would meet your definition of a prompt hearing, and the Civil Service Commission then said, we convert the suspension into a discharge.

Would that have comported with due process?

Robert M. Fertel: Well, I think first of all you have to have a hearing in front of the... I think it is an opportunity to respond to the school board.

I think not only is there a question of whether or not the facts, I think there is a question of the appropriate sanctions, and I think it could have made the opportunity--

Unidentified Justice: Well, but you are saying in effect that Ohio can't channel all of these Civil Service questions to the Civil Service Commission.

You are saying that initially it has to be a hearing before the employer who is taking action rather than the Civil Service Commission.

Robert M. Fertel: --I think it has to be a decision... prior to termination, he has to have a hearing in front of an impartial decision-maker, and then appeal, because I think you have different standards when you go to an appeal, because first of all the decision is already made.

There is a different standard.

You have to show abuse of discretion before maybe the Civil Service Commission will change.

But if, let us say, the employer, especially with the fact that it is eleven years between the time of the conviction and the time he filed his application, and there is nothing in the record to show that he was--

Unidentified Justice: So if Ohio wants to channel these personnel matters to the Civil Service Commission, then the Civil Service Commission would have to make the initial suspension decision.

Robert M. Fertel: --No, I say the school board would have to make the initial suspension.

Unidentified Justice: Supposing Ohio says, we want all these personnel matters to be considered by a uniform body in the jurisdiction, to wit, the Civil Service Commission.

Nobody car be suspended or discharged except by the Civil Service Commission.

Now, then would you say it is all right if the Civil Service Commission made both the decision to suspend and the decision to discharge?

Robert M. Fertel: Well, it was the impartial decision-maker, because it should be made... the initial termination decision should be made by an impartial decision-maker.

Unidentified Justice: Do you contend the Civil Service Commission in your case was not an impartial decision-maker?

Robert M. Fertel: The Civil Service is an impartial decision-maker, but you are dealing within the appeal, right, instead of the initial decision.

I think that would have the employer then... had he had the opportunity to respond to the employer, he could have said, well, there could have been maybe only suspension or maybe no action at all, saying it was eleven years prior.

He says I did think I was convicted of a misdemeanor.

My service record is clean.

I have been employed for eleven months and nothing has happened.

You know, Mr. Wyman kept saying there was a big risk, a big risk.

In eleven months, there was no... there was nothing, no incidents.

Unidentified Justice: Loudermill... excuse me.

Loudermill's claim is that he thought he was convicted of a misdemeanor.

Does the record show whether he actually served time?

Robert M. Fertel: I believe he was sentenced to six months in the workhouse and fined.

Unidentified Justice: Did he actually serve for six months?

Robert M. Fertel: I believe they were suspended.

I don't think he actually served them.

Unidentified Justice: Suspended for all of it?

Robert M. Fertel: Right.

Also, I would like to say that you have to have a prompt, full hearing prior to termination.

I think first of all you have the awesome power of the government going against the individual, who is a lot of times not represented by counsel.

I think the procedure now in Ohio where you file an appeal and have a hearing and go through the courts, you've got the awesome power of the government, who has all their attorneys, against the individual.

You have an employer who is all of a sudden... who has geared his lifestyle to a certain income, who all of a sudden has lost wages.

We are not just dealing with monetary damage.

We are dealing with emotional damages.

Unidentified Justice: Mr. Fertel, in both Arnett and in Mathews, this Court found no due process violation, despite the evidence that at least some of the hearings weren't completed for more than a year after the deprivation occurred.

How do you distinguish those cases then in making you argument about a prompt hearing?

Robert M. Fertel: In Mathews versus Eldridge it was a... the question was liability.

First of all, the issue in Mathews versus Eldridge was not whether a hearing was required, but whether a prior evidentiary hearing was required.

There was no issue of pretermination procedures.

Number Two, in Mathews versus Eldridge, the question was... basically the Court said it was a straightforward medical determination.

It was just whether or not the person... all those... it was by a medical doctor's medical reports, so basically it was a straightforward medical determination.

In this it was dealing with a fact standing, whether or not there were certain facts.

Also, in Donnelly's case, it wasn't just a medical determination.

There was a question of whether or not a prior employee, who also could not pass the eye test, was still employed, and that was a defense which was raised in front of the Civil Service Commission, that another employee who also could not pass the test, that plus the reasonableness, because he was a bus mechanic, he was not a bus driver, and the reasonableness of why a bus mechanic would have to pass the eye test was also raised, so those were the two issues.

Also, in Arnett versus Kennedy, they talked about... I think the hearings was three months, the... proceedings was three months, but I think in the fact in this case it was nine months before the termination and the actual notice, and I think you have... first of all, you have a question... you have the great emotional damage to the employee.

He is without wages.

Loss of self-esteem.

In these cases, you go with the awesome power of the government.

You have a hearing in front of the Civil Service Commission.

You take ten or eleven months to go through the administrative procedures, and you have to file it through the courts.

It could be another two or three years with the courts.

And then you also have problems with future employees.

A future employer, you have to train somebody, you have to train another employee.

Unidentified Justice: May I ask, Mr. Fertel, what remedy do you think your clients are entitled to at the end of the road, and what do you think the issues would be at trial?

I have in mind the Mount Healthy problem, that say they proved they would have fired him anyway, even if--

Robert M. Fertel: Well, first of all, you can't tell whether they would fire somebody, you know.

It is after the fact.

Had they come up to Mr. Loudermill and stated, well, you were convicted eleven months, and he said, well, I didn't know, plus, the only... the only adjudicated--

Unidentified Justice: --What if he had a trial and the federal judge or the jury decided, well, we don't believe his story, just as apparently the Civil Service Commission did?

Robert M. Fertel: --First of all, he was convicted of dishonesty, so he would have to have an opportunity to... you know, it is just... you know, it is after the fact.

First of all, it was eleven... the conviction was eleven years previous.

There was nothing on his record.

Unidentified Justice: I understand, but supposing at this trial that you seek to have now the determination is that, well, we analyze the facts exactly like the Civil Service Board did, that he was in fact dishonest.

Then what... would you be entitled to any remedy then?

Robert M. Fertel: I think you would be entitled to damages for denial of due process.

First of all, there was a full hearing in front of a referee.

The referee determined that Mr. Loudermill was credible, and recommended that he be reinstated without back pay.

The Civil Service Commission never held a hearing.

It just made a determination without holding a hearing, so the only really adjudicated facts you have in this case was that Mr. Loudermill was credible, and that he was... that he honestly believed that he was convicted of a misdemeanor.

So, on the record of this case, the only determination made after a full factual hearing was by the referee, who stated that he believed that Mr. Loudermill was sincere in knowing that he was convicted of a misdemeanor instead of a felony.

Unidentified Justice: Did you make the point that bad eyesight is not important for a mechanic, but only for a driver?

Robert M. Fertel: Yes, Your Honor, I raised that issue in front of the Civil Service Commission.

Unidentified Justice: Do you think that would be true of airplane mechanics as well as automobile mechanics?

Robert M. Fertel: The rationale they gave was that sometimes there is bad weather and they need substitute drivers, and therefore they should have... that sometimes they supposedly would have bus mechanics drive buses, and so I made the Point Number One, I thought if you are going to terminate everybody who can't pass an eye test, if you terminate somebody, you have to terminate everybody.

You can't single out between one employee and another.

So, the fact that one employee who... another employee who also can't pass an eye exam was not terminated, I thought that was a defense, plus the fact that I think they could hire substitute bus drivers instead of having the bus mechanics.

I thought it was very unreasonable to also require the bus mechanic to also be a bus driver.

He was hired to be a bus mechanic and not to be a bus driver, so I argued basically the fact that, Number One, another employee who could not pass an eye exam was not terminated, and Number Two, that it was unreasonable to have bus mechanics be substitute bus drivers.

Unidentified Justice: I suppose there are degrees of eye defects, too.

Two people could have different defects, one of which would not warrant termination, and the other one such a defect that it would.

Robert M. Fertel: Well, obviously--

Unidentified Justice: Is that not so?

Robert M. Fertel: --The only defect was that he couldn't pass the state requirements for a bus driver.

That is why he was terminated.

And because when they needed substitute bus drivers they could not use him as a substitute bus driver.

His work as a bus mechanic has never been questioned.

I would also like... as far as the delay issue, we are dealing here with nine months.

During the nine months he said there was no right to unemployment, there was no right to welfare unless he sells his assets, like his house and his car, which, you know, if you are dealing with somebody who has geared his lifestyle to a certain level and all of a sudden gets a notice saying he is being terminated, you have a long, drawn out proceeding where the person not only loses wages, might not be able to get welfare, has to sell his house, has to probably sell his car, will probably lose his marriage and his children, basically the decisions of this Court say that a person should be given a full and fair hearing prior to final deprivation.

In this case Mr. Wyman says, well, it is temporary deprivation, ten or eleven months, if he is proven lawful, you get your back wages, but during those ten or eleven months, the person probably loses his house, he probably loses his car, his family, he loses his self-esteem, plus the right of the government, which is the third factor in Mathews versus Eldridge.

They have to decide when... they have to train somebody else.

What happens if the government says the termination is proved lawful?

Then they have already somebody hired who may reach tenured status and this employee, so it is not just an issue of back pay.

The final deprivation when a person loses his house, loses his car, loses all his assets, and probably loses his family, is already taken prior to the administrative procedure being over, and this Court has said that the purposes of the due process is before final deprivation, so back pay, a person has to give up his house, has to give up his car, probably loses his family, loses his self-esteem, plus he is in limbo.

He doesn't know whether or not he should try to get other employment, and also the reasons for his termination, like in Donnelly's, or, excuse me, Loudermill, he was terminated for dishonesty.

Every time he filed another application, what is your last employment, Cleveland Board of Education, was terminated for dishonesty.

So how do you expect somebody to get another job?

And so here you are dealing with a lengthy period where actually the effects, the deprivation is final.

He loses his house, he loses his family.

There is definitely final deprivation before you get... prior to resolution.

So it is not just a temporary termination and back wages.

I think there is very emotional... I think it is not just monetary damages, but the emotional--

Unidentified Justice: Mr. Fertel, you have said several times that a person in Loudermill's situation loses his wife and children.

Is that what in fact happened to Mr. Loudermill?

Robert M. Fertel: --He was already divorced, but he lost his house.

He had to stay in his sister's house.

He was, obviously, his daughter... he couldn't support his daughter, so he lost--

Unidentified Justice: So you are referring to this particular case?

Robert M. Fertel: --I am talking to all employees.

Unidentified Justice: Are there statistics that show that if a person becomes unemployed he is very likely to lose his wife and his children?

Robert M. Fertel: I don't know if there are statistics.

I think that is... I think in the briefs we stated about the emotional damage, and I think that a lot of people, when there is loss of income, all of a sudden a person in fact who may be a fairly well paid employer all of a sudden gets a letter saying, you are being terminated.

Unidentified Justice: That's the time his wife divorces him?

Robert M. Fertel: Well, not then, but when it drags on and drags on and drags on.

Unidentified Justice: Counsel, may I ask this question?

Do you think our cases require a full evidentiary hearing before a discharge?

Robert M. Fertel: Well, Arnett versus Kennedy did not, but this case is different, because in that case there is a question about proper service, and in Arnett versus Kennedy he made libelous statements, and there was a question whether or not there was a danger to employees or to morale, the other employees.

In this case, there is nothing in the record shooing that there was any lack of service, good service by either Mr. Donnelly or Mr. Loudermill.

There was no danger to the work force by having--

Unidentified Justice: Do you think our cases require an evidentiary hearing before discharge?

And if so, which case?

Robert M. Fertel: --Well, I think the Court in Davis versus Scherer said there has to be... you have to consider the three factors in Mathews versus Eldridge.

Unidentified Justice: An evidentiary hearing?

Robert M. Fertel: Well, I think--

Unidentified Justice: A full evidentiary hearing, right to call witnesses?

Robert M. Fertel: --Well, I think that's what I said.

I think when we consider the factors in Mathews versus Eldridge, under the facts of this case a full evidentiary hearing is required.

Unidentified Justice: Is required?

Robert M. Fertel: Right, that is the position that--

Unidentified Justice: We didn't say that in Arnett.

Robert M. Fertel: --No, but I think you need clarity in this case.

I think here you are dealing with 16 million employees.

Like in Miranda warnings, when an alleged criminal is arrested, you said you have to give him warning, so I think that is clarity.

I think we need clarity so that every Civil Service employee, federal, state, or local, and every government knows exactly what procedures have to be employed.

And I think by considering the factors, I think... first of all I think the government's interest also would be furthered in having a full evidentiary hearing, first of all because there is no two-tier procedure where they have to have one hearing at an administrative level, and another hearing where you go to two hearings, plus the fact that if there is a decision to be made, that the employer... at least there could be finality.

The employer could make a determination, this employer is going to be discharged.

Then we could hire somebody else.

There is no position where they have to hire somebody else and go through, pay for training while this, while the appeals process, and then when the appeals process is done and determines that he has to be rehired and you have two people for the same position, plus the fact that he said there may be excessive back pay.

The longer the procedure takes, the longer back pay.

So, especially if you get a court judgment, then you have interest.

Unidentified Justice: Mr. Fertel, I suppose our inquiry for the purposes of due process, the procedural due process requirements is to determine what is fundamentally fair in this area, right?

Robert M. Fertel: Right, Your Honor.

Unidentified Justice: Is that the thrust of the inquiry?

Robert M. Fertel: That is my position.

Unidentified Justice: All right, and if that is so, should we consider as part of the fairness inquiry the fact that the state had established certain post-termination procedures of which the employee was aware when he accepted the position of employment with the state?

Does that have any impact at all in our fairness inquiry?

Robert M. Fertel: That was the basis of the plurality decision in Arnett versus Kennedy, that the state procedures are bound with the procedural... or the property interest is bound up with certain procedures, and the employer is bound by those procedures.

You have to take the bitter with the sweet, and I think the majority of this Court--

Unidentified Justice: Well, even if you don't accept that fully, that all he can ever get is what the state provides, even if you don't accept that, do you think that it has any role at all in the process of determining what is basically fair?

Robert M. Fertel: --I think you have a right to a prompt post-termination hearing, if there is a promptness.

I think you have to... if this Court doesn't... if there is not a full evidentiary hearing, there has to be at least some pretermination procedures with the full evidentiary hearing promptly.

It is our position that a full evidentiary hearing is required but if the Court takes the position that a full evidentiary hearing is not required, there at least has to be a pretermination procedure to respond--

Unidentified Justice: Opportunity to respond.

Robert M. Fertel: --Right, and then a prompt--

Unidentified Justice: Do you think that has to be a statutory opportunity, expressed in statute, or can it be given in fact?

Robert M. Fertel: --I think it has to be given in the statute.

Otherwise there is no guarantee.

Unidentified Justice: Counsel, has... what I think Justice O'Connor is referring to is the so-called bitter with the sweet theory that Professor, now Judge Easterbrook and others have espoused.

Has this Court ever adopted that?

Robert M. Fertel: No, Your Honor.

I think in Vitek versus Jones, Santowski versus Kramer, and Lobin versus Zimmerman, the Court has specifically rejected that principle.

Unidentified Justice: Arnett, too?

Robert M. Fertel: And Arnett, too.

Unidentified Justice: The majority of the Court.

Robert M. Fertel: Right, the courts say that... those cases held that the majority Court has never accepted the bitter with the sweet.

Unidentified Justice: Does Ohio have a statute comparable to the federal statute that makes it a crime to give a false answer in an application for employment?

Robert M. Fertel: I don't believe there is a specific statute.

Of course, the whole point being there is a question of whether or not it was actually a felony or a false answer.

Also, I think there is a big point here about the promptness.

I think that the Court of Appeals stated that Mr. Loudermill had a hearing two and a half months.

However, the decision was not made until nine months.

And I think you can't just say give a hearing and then allow an unreasonable time for resolution.

This Court has stated you are not only entitled to a prompt hearing, but you are also entitled to a prompt disposition, and I think just the fact that a person was given a hearing in two and a half months when the whole procedure took ten months, I think, is very unreasonable.

Also, the Court of Appeals mentioned the procedure used of mandamus.

I think that is a very extraordinary remedy.

It is discretionary whether or not the Court would grant it.

You don't know how many months it would be, especially when you are dealing with somebody who doesn't have counsel.

You are dealing with the government on one hand, the awesome power of the government against the individual, who a lot of time isn't represented by counsel.

Also, this Court in Mennonite Board of Missions versus Adams stated that the fact that an individual can protect his rights still doesn't relieve the government of its responsibility to guarantee due process rights.

Also, the Sixth Circuit held that there was no liberty interest violated because the grounds for Mr. Loudermill's and Donnelly's terminations weren't published, and it is our position with the Court that it was communicated to the employers, that when Mr. Loudermill filed employment applications prior to... this is his past employer, Cleveland Board of Education, they said, well, he was terminated for dishonesty, and was unable to get any future employment.

So there was communication.

This Court in Paul versus Davis stated that the constitutional violation is defamation in... deprivation of a governmental interest.

Here he was terminated.

He had a right to continued employment.

Therefore he had a governmental interest, and he was terminated in there, so that the procedures, constitutional requirements would be provided by the publication.

It doesn't have to be "publicized", but there was publication because other employees, employers, or potential employers were notified.

I would like to say that in Gaus versus Lopez, where there was suspension of high school students, they said that there would be a liberty interest, because future employment opportunities would be involved, and in their case it wasn't "published", but yet this Court found a violation of a liberty interest.

I would like to point out to this Court in Parrott versus Taylor you said that there are only two instances where no pretermination procedures would be provided.

One is where there is implausibility of pretermination procedures, which is certainly not the case.

And Number Two, where there is necessity for quick action, and I think if there is an emergency situation, which we deny, because there was no prior violations or disciplinary procedures, that a suspension could be made with the opportunity to respond to the charges.

So therefore the two requirements in Parrott versus Taylor to dispose of any pretermination procedures will not be applicable herein.

The main thing that we need... basically is that we need clarity, that there has to be some... that public employers have to know what exactly the procedures are before they can terminate somebody.

As you know, the police know that they have to have probable cause.

They have to know that they give the Miranda warnings.

And so we need clarity.

I would also like to say that you can't really have due process on a case by case basis.

Mr. Wyman says, well, the greater the risk, the more the need for pretermination procedures.

You leave it up to the employer to determine whether or not there are risks involved.

There is no statutory right to grant pretermination procedures.

Well, this case there is a big risk so we have hearings.

This case we won't.

I think you need a statutory right that says you are going to give them notice, you are going to give them an opportunity to present witnesses, and have a decision by an impartial decision-maker, and also that you need a prompt procedure, it has to be held within 30 days, so not only the government can make its determination of whether or not they are going to have to hire somebody, but also the employer can get on with the rest of his life.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Wyman?

ORAL ARGUMENT OF JAMES G. WYMAN, ESQ., ON BEHALF OF THE PETITIONERS IN NOS. 83-1362 AND 83-1363 AND RESPONDENTS IN NO. 83-6392

James G. Wyman: Yes, I do, Your Honor, a number of statements, possibly factual clarifications.

First of all, the liberty interest is not at issue here.

There are no facts in the complaint or the pleadings before this Court which would reflect that there was any communication of any of the allegations or the charges made by the board of education in regards to dishonesty.

In further way of clarification, Mr. Donnelly's initial hearing was well within the 30-day time limitation.

I think it is important for this Court to know that.

Very briefly, Mr. Fertel has chastised me possibly, and with all due respect to him, concerning the what-ifs and the fact that Mr. Loudermill would have in fact been fired even if we had had some sort of pretermination, but he has then gone on with a number of his own what-ifs, what if he loses his house, his wife, his children.

I don't think that is valid for the Court to consider.

I don't think those facts are before it.

We have one issue before this Court, and that is due process, and what is fundamentally fair to the employees involved.

It must be kept in mind, and I would urge this Court to keep in mind the fact that the due process rights impact not only upon the governmental entity in this case but also upon those whom we serve, which are the pupils.

We are in the business of education, as I said before, and there are treatises out that consider us to be a nation at risk.

It is important for us to get on with the business of education, not with establishing elaborate routines and procedures for our employees.

That is taken care of under Ohio Revised Code 124.34.

It provides for due process hearings.

They are de novo hearings.

They are hearings that are by an objective board.

We feel they are appropriate underneath the Ohio Revised Code and the due process standards of the Fourteenth Amendment.

We respectfully request this Court to affirm the District Court's decisions of the dismissal, to reverse the Sixth Circuit in regards to the pretermination issue, to find that Ohio Revised Code Section 124.34 is in fact constitutional and adequately protects the rights of those that are affected.

The process that the respondents were due was given.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.