Russell v. Board of County Commissioners

SUMMERS, V.C.J., WATT, J., concur in result.

¶ WILSON, J., part; concurs in part. dissents in

1997 OK 80 RUSSELL, Gary Watson, Gary Earl Smith, Word, Henson, Mack Steven Ru Garcia, Turner, Greg ben Kenneth Theo bald, Wayne Magee Bryan Burton,

Plaintiffs-Appellants, BOARD OF COUNTY COMMISSION

ERS, COUNTY, CARTER State

Oklahoma, Defendant-Appellee.

No. 86358. Supreme Court of Oklahoma.

June Rehearing Denied Feb.

I OF LITIGATION

THE ANATOMY County 2 Ten sheriffs Carter com- [deputies, deputy plaintiffs] sheriffs breach-of-employment-contract ac- menced a County Board of Commis- against tion [Board, county commissioners] sioners pay alleged them due recover overtime arrangement employment under an at-will county. deputies pressed with the relief, the commis- summary arguing that (a) personnel pol- uniform sioners established (b) county published the employees, icies the policies in a handbook which embodied county to practice paying overtime Board’s (c) the manual to distributed employees, and county employees. They are entitled sought, deputies argue, the overtime benefits (a) states that law the handbook because (and county) personnel other enforcement (b) paid compensation, to be overtime are officers, law enforcement deputy sheriffs are manual, (e) the under terms other employees overtime and holi- receive sheriff deputies policy, the day pay. The written employ- part of at-will urge, their became contract, county breach- which the has ment provide to the overtime its refusal ed' payment. compensation pressed for ¶3 victory by sought The Board also adjudication process, arguing that a contract. did not constitute handbook the in manual could language Even if some obligations, the Board create exist as to wheth urges, material fact issues a, (a) to the level of handbook rises er (b) provisions apply overtime contract Ardmore, Worthén, Appel- E. Ronald Noting deputy deputy sheriffs. to these . lants. pay not found was claim overtime sheriffs’ Act [FLSA on the Fair Labor Standards ed Estill, Hardwick, Hall, Ramsey, Rodney C. Act],1 depu that the the Board theorized Nelson, City, Gable, & Oklahoma Golden likely strategy most ascribable was ties’ Appellee. (Nichols Hurley)2 jurisprudence federal deputy sheriffs that because which teaches OPALA, Justice. exemp personal the FLSA’s fall within staff tion, the Act’s excluded from" stand ¶ is on certiorari dispositive issue provisions. pay overtime entering sum- was error there whether ¶4 interpretation Rejecting the Board’s county. answer for the We mary judgment Nichols, disputing notion although not in the affirmative. Cir.1990). (10th seq. 2. 921 F.2d §§ 201 et 1. 29 U.S.C. contract, solely county employees. their claim was based time from on other is (a) out point sheriffs the circumstances somewhat unclear whether the COCA substantially of this from case different remanded cause consideration both They those Nichols. note that here claim FLSA and federal-law claim based policy adopted by statutorily (b) was on equal protection equal intended board, personnel deputies authorized protection deputies in issue to assist the as- are further removed from direct the sheriff’s serting directly claima based on the manual. Nichols, (c) than supervision those in The our Board seeks review certiorari. deputies, size of the staff that consists depu 6 The COCA treated the jailers technicians not determined theory conclusory ties’ contractual awith discretion, solely by the sheriffs but must be rejection,4 giving prominence to the FLSA- approved board. More- excise and-equal-protection aspect of the claim. over, they urge, Nichols rests a federal- nondispositive Because the COCA viewed statutes, interpretation court of Oklahoma urged the errors under the contractual theo which this court is bound to follow. ry, all of them went unaddressed. We must gave summary judg- trial court Hough hence them treat as undecided Board, appeal- ment and the Hough v. Leonard5 sense. teaches that the Appeals ed. The Court of Civil [COCA] party victorious in the COCA entitled to Although agreeing reversed. that the which, sponte all our sua review of issues policy Board’s overtime not does create or though properly preserved and briefed on overtime, right constitute a contractual to the appeal, by appellate were not addressed opinion nondispos- COCA treats that issue as court.6 deputies’ right itive to recover. The (a) COCA notes that the Board not does II equally county employees treat “all who overtime, by work as defined federal fair STANDARD OF REVIEW particular employ- labor standards their for ¶ ment,” summary process The focus for allowance of overtime bene- (b) fits,3 might plaintiff is not on facts a able opines may be to that the Board discrimi- (i.e., prove legal sufficiency at trial only for nate a reasonable if adduced) allowing employ- evidence that be basis exists for some could but rather compensation evidentiary to on whether the as a ees receive overtime materials (c) others, denying undisputed the same benefit to whole show facts on some or support remands the cause for the trial deci- all material issues and but court’s will single sion on whether there is a for rational basis inference in favor of a mov- successful treating deputies differently quest Summary adjudica- these for over- for ant’s relief.7 opinion (emphasis petition The keep 3. COCA’s in the text and no certiorari to the fruits of supplied). victory. deputy achieved The sheriffs stand in posture. they that Because want the COCA re- relegated nondispositive catego- to a COCA prius summary judg- versal of an nisi adverse theory. ry deputies'- contractual The COCA court, by ment to remain undisturbed this "... notes that the trial court ruled that the enor, deputies any free are to advocate before us policy did not create or constitute a [overtime] which, rectified, prove would that COCArever- right agree to overtime. While we sal correct in its result. Bivins v. State ex rel. conclusion, dispositive it with this is not 456, 465; Hosp., Okl. Mem. 1996 OK 917 P.2d deputies' right recovery.” to Semrod, 1960 OK 351 P.2d Woolfolk 745. Today's opinion gives no 438, 445-46; Washing 5. 1993 OK 867 P.2d greater relief than that which at the received Corrs., Dept. ex rel. ton State hands of the COCA. 359, 361; Corp. 915 P.2d Greer, Resolution Trust OK 911 P.2d 7. Hulsey v. Mid-America Ins. Preferred OK Hough, supra n. An order that at 445-46. an- There is grants summary disposes ques why solely other relief reason the undecided issues are re- quest by depu- appel tions viewable absent a of law. is reviewable de novo. An certiorari beyond plenary, independent ties. One who seeks no corrective relief late court claims for itself already by opinion authority afforded COCA needs and nondeferential re-examine a tri- rath- arguments parties but special pretrial procedural tendered process tion —a accept- brought for review.9 er record conducted with the aid track to be a search probative substitutes8 —is able ¶ today, decide as ex- 11 We cannot may ap- undisputed material facts infra, either as a matter plained Part IV combat, judicial in the plied, sans forensic record, that the of law on FLSA n decision-makingprocess. It is method for applicable deputy sheriffs’ claim isolating non-triable fact is- identifying and holiday uncompensated overtime and work. sues, defeating oppo- not a device by jury. Only right to trial that evi- nent’s entirely

dentiary material which eliminates IV or all fact issues afford from trial some prius nisi legitimate support for resort THE FAIR ACT LABOR STANDARDS summary process. ¶ sheriffs neither Ill urged appeal nor that the pleaded below provisions applicable FLSA’s overtime CASE, THE RE- 8 IN A PUBLIC-LAW If the in compensation their claim. COCA CAN GRANT COR- COURT VIEWING sponte inject (by sua its tended to issue that- A RELIEF ON SUA SPONTE RECTIVE standards), reference to the fair -labor NOT BELOW THEORY RAISED holding plain error. This is so because a argues that the 9 The Board FLSA-based claim is not sans record on a judgment should not be reversed support, appeal its infusion on would but FLSA —that claim—one for violation of the deputies’ contractual claim transform pressed in the trial court and is was merely than into a different demand rather unsupported the record. for, supply theory recovery. a .new More over, opinion pause resolving public-law did not to 10 When a the'COCA’s of reviewing generally consider the timeliness a FLSA claim. controversy, the court is any today in V upon appli Because we hold Part that grant free corrective relief to infra cannot on other legal theory judgment of the case. stand dispositive cable possibility postre- a grounds there is a of Appellate public- to and settle freedom raise pleadings,10 we must not amendment to sponte sua circumscribed mand law issues Dixon, 176, 55; 71, legal rulings. P.2d 187 n. v. 1993 OK 853 al Kluver v. court's Weatherford 1081, 19, 1294, Auth., 85, McNeely, of, 734 Hospital 859 1987 OK P.2d 1993 OK P.2d Matter Fund, 1296; summary adjudication pro Reynolds Special Indem. 1986 OK v. 1084. Oklahoma's 64, 1265, 1270; Independent v. to followed federal 725 Burdick cess is similar P.2d College Regina County, judicial system. v. Rus 1985 OK See Salve Sch. Dist. No. 52 Oklahoma of 225, 231, 1217, 1221, sell, 49, 48, 10; City 111 S.Ct. 113 v. 499 U.S. 702 54 n. McCracken P.2d of (1991). Lawton, 63, 18, 11; 190 21 L.Ed.2d 648 P.2d n. 1982 OK Goodwin, 106, Application 597 P.2d 1979 OK of " 762, 764; Special Indemnity Reynolds, Fund v. ‘Acceptable probative are those substitutes’ 841, (1948). 199 842 Okl. 188 P.2d 570, ‘evidentiary as materials’ in which be used (cid:127) adjudication.” Gray summary process of 118, 776, Holman, P.2d 781 n. 16 following 1995 OK 909 parties a reversal 10.On remand Inc., (quoting Seitsinger v. Dockum Pontiac from relegated posture. prejudgment to their Nel 1077, 29, 1080-81); Davis v. 142, 1995 OK 894 P.2d Pollay, OK 916 P.2d son v. 1996 1369 924, Leitner, 146, , Gas, 108, 1989 OK 782 P.2d 926-27. 1376-1377; Nat. 1994 OK Fent Okl. 134; 126, Auto. & P.2d Thomas v. National 898 Co., 52, 424, 428; P.2d Cas. Ins. 1994 OK 875 controversy public-law free to a this court is In 114, Dyke Hosp., 1993 OK 861 P.2d v. St. Francis theory parties change presented below 32, 295, 36; Elam, 1992 OK 829 304 n. Parker by the trial court. Jackson v. Okla and followed Swart, 9, 677, 682; Seymour v. 1985 OK OK 112, P.2d Hosp., P.2d Memorial 1995 909 homa 509, . plaintiffs should 768; P.2d 512-513 If the 765, 695 North Side State Bank Board of 34, replead over a FLSA-based claim for County, to include County 894 Com'rs Tulsa of 8; 1046, not compensation, the trial court should time Inc. v. 1050 n. Schulte Oil P.2d within) (or Com’n, 103, excepted treat it as from included OK 882 P.2d Oklahoma Tax 65, 1994 8; Com’n, express opinion We no Act as a matter law. Oklahoma Tax 69 n. Strelecki v. of 66; Simpson a claim. n. to the timeliness such OK 920 of guidance' give the FLSA’s stands conferred on both state and federal discuss applies any, employees courts.14 The FLSA to of upon this lawsuit. impact, if governments.15 employee An state and local requires 13 The FLSA em brings unpaid who action for overtime ployers pay employees to their for overtime compensation under the has the bur- FLSA regu at rate of one and one-half times the proving performed den that work was in of pay lar rate each in of for hour excess of the n compensa- hours excess which no of for given,16 normal work week.11 The Act’s enforcement showing tion was A must be made provisions12 private right (a) of create action of the amount and of extent overtime any for violation of maximum hours and just work as a matter of and reasonable provisions.13 juris Concurrent knowledge employer’s inference FLSA-generated uncompensated diction over A controversies time.17 FLSA claim Inc., 207(a)(1) Mfrs., pertinent Berry F.Supp. § 11.The terms 29 U.S.C. Glenn (N.D.Okl.1964); Center, provide: Kreus v. Stiles Service (1996). 250 Neb. 550 N.W.2d engaged Employees in interstate com- merce; applicability employees additional to pursuant subsequent provisions amendatory to Robbins, 452, -, 15. Auer v. 519 U.S. 117 S.Ct. (1) Except' provided as otherwise in this sec- 905, 909, 137 L.Ed.2d 79 v. San Garcia tion, employer employ any no shall his em- Auth., Metropolitan Antonio Transit 469 U.S. any ployees engaged who in workweek is in 546-547, 1005, 1015-1016, 105 S.Ct. L.Ed.2d production goods commerce .in (1985). Before 1974 the FLSA was not commerce, employed enterprise or is in an applicable government employ state and local engaged production commerce 203(d) (1940). § ees. U.S.C. In Con commerce, goods longer workweek gress coverage virtually extended FLSA all forty employee than unless such hours receives 93-259, public-sector employees. § Pub.L. compensation employment his excess (29 203(d) 1974)). (Supp. Stat. 58-62 U.S.C. IV specified hours above rate less than Supreme U.S. In Court held that the regular one and one-half times the rate at expansion politi FLSA cover state and employed. (Emphasis supplied.) which he employees engaged cal subdivision in traditional 22, 23, Klevenhagen, See also Moreau v. 508 U.S. government functions was violative of the Tenth 1905, 1906, 113 S.Ct. 123 L.Ed.2d 584 League Usery, Amendment. National Cities v. Dothan, City White v. 643 So.2d U.S. 426 (1976). 96 S.Ct. 49 L.Ed.2d 245 Spinden (Ala.Civ.App.1994); Roofing v. G.S. Garcia, years supra, nine Some later Cir.1996), Co., Inc., (8th Products F.3d League, holding overruled National that this ex - U.S. -, denied 117 S.Ct. cert. power ercise was consistent with the Tenth (1997). 137 L.Ed.2d 334 Following Amendment of the U.S. Constitution. (as 207(e) "regular § The term rate” defined in decision, Department that the U.S. of Labor an FLSA) includes, alia, inter "all remunera- gov nounced that it hold would state and local to, of, employment paid or tion for on behalf FLSA, employers ernment to the standards of the (1) (2) employee,” except paid gifts, sums as 15, 99-159, April S.Rep. p. effective 1985. No. 7 vacations, illness, payments holidays, reason- (1985), 754, Cong. & U.S.Code Admin.News 758. expenses, pay- able travel "and other similar Garcia, 546-547, supra, 469 at U.S. S.Ct. at 105 employee ments to an which are made as 1015-1016. (3) compensation employment,” for ... hours of paid performed sums as a result of services Co., Pottery 16. Anderson v. Mt. Clemens 328 U.S. payment both the fact of and amount are “at 680, 687, 1187, 1192, 66 S.Ct. 90 L.Ed. 1515 employer the sole or discretion or at near (an (1946) employee bears the initial "burden of period pursuant any the end and not to proving performed he that work for which he contract, prior agreement, promise causing properly compensated”); was not American employee expect payments regular- to such Donovan, 1406, Waste Removal Co. v. 748 F.2d (4) ly,” irrevocable contributions made (10th Cir.1984); 1410 Arias v. U.S. ServiceIndus- employer plans to retirement or insurance and tries, Inc., 509, (D.C.Cir.1996). F.3d 511 80 (5) “premium” compensation paid extra for over- time work. Anderson, 16, 686-87, supra note 328 U.S. at § 29 U.S.C. 216. 1192; Lion, 66 S.Ct. at Davis v. Food 792 F.2d 1274, Cir.1986). (4th employer 1276 Where an § 13. 29 U.S.C. 207. The FLSA also creates a keep proper has failed to and accurate records in right of action violations the minimum FLSA, employee violation of the an maintains his wage equal provisions. and 29 U.S.C. proves proof burden of "if he he has fact § 206. performed improperly work for which he was 216(b); § Freudenberg Harvey, compensated produces 14. 29 U.S.C. and v. if he sufficient evi- 1087, (E.D.Pa.1973); 364 F.Supp. 1090 Goettel v. dence show amount and extent

499 narrowly against the emptions construed years it are two after within must be commenced exemption employer.23 A claim to a is accrued, of a FLSA out unless the action arises has employ- affirmative defense on which it must be which case violation —in “willful” showing that em- the burden of years after accru- er bears within three commenced unmistakably “plainly fit and within ployees al.18 exemption’s] spirit.”24 terms and [the provides FLSA ¶15 not, does as the protec Nichols25 exemptions from its overtime several County urges, hold that sheriffs are organizations enforcement tions: law personal staff and members of the sheriff’s persons,19 five employ fewer than which law, them, exempts as a matter who hence subdivisions employees governmental in protection. The from FLSA’s overtime laws and covered civil service are not employee’s exempt status under quiry into an publicly elected personal on the staff of “intensely fact bound and (c) FLSA remains persons employed who are officer20 former executive, specific.”26 In Nichols several case administrative bona fide counties deputy sheriffs two Oklahoma the Act es capacity.21 Because professional (LeFlore McIntosh) pressed a FLSA coverage,22 ex- presumption tablishes a Service, Inc., 890 523, F.Supp. 526 just infer United Parcel and reasonable work as a matter of 16, U.S., (S.D.W.Va.1995). Anderson, supra at note 328 ence.” 687, point, the burden at 1192. At 66 S.Ct. produce employer production shifts Coal, Iron, v. Co. Muscoda 23. Tennessee R.R. per precise amount of work evidence of the 590, 597, 698, 123, U.S. 64 S.Ct. Local No. negate the reasonableness or evidence to formed Nichols, 703, (1944); supra note 2 88 L.Ed. 949 employee’s to be drawn from the of the inference 1103; Oceanographic v. Woods Hole Marshall evidence. Id. 709, (D.C.Mass. Institution, F.Supp. Dillion, 1978); 1337- v. 483 F.2d Brennan Act, 255(a). § The Portal-to-Portal 18. 29 U.S.C. (10th Cir.1973). exemptions FLSA are to 255(a), provides § statute a two-tiered 29 U.S.C. narrowly in order to further Con construed ordinary actions. For of limitations for FLSA goal employ gress’ providing broad federal violations, years; is two the statute of limitations Lublin, McGaughy protection. Mitchell ment violations, pe- three-year limitations for willful 207, 211, Assoc., S.Ct. & 358 U.S. Co., applies. McLaughlin v. Richland Shoe riod (1959). L.Ed.2d 1677, 1681, 128, 132, 108 S.Ct. 486 U.S. (1988). L.Ed.2d 115 Glass, supra at 196- Corning note U.S. 2229; v Idaho Sheet Metal Works 94 S.Ct. at 213(b)(20). § U.S.C. . 737, 747, Wirtz, 86 S.Ct. 383 U.S. (ii)(II). 203(e)(2)(C)(i) (1966); Kanowsky, Arnold v. Ben L.Ed.2d 694 20. 29 U.S.C. 388, 392, Inc., question personal exception of federal 80 S.Ct. staff 361 U.S. Kentucky Fi it defines Mitchell law. State law relevant L.Ed.2d 393 See, 290, 295, Inc., Co., position plaintiffs (employee’s) and duties. 79 S.Ct. 359 U.S. nance 756 , Nichols, 1103; Walling e.g., 2 at Owens General 3 L.Ed.2d 815 (10th Cir.1981); 547-548, Rush, Cal- S.Ct. 654 F.2d U.S. Industries 271, (5th (1947); County, 883, 884, Phillips, 273 639 F.2d deron Martin 1088 A.H. v. 91 L.Ed. 490, 493, 807, Cir.1981). 65 S.Ct. Walling, 324 U.S. Inc. v. (1945); 808, v. Wouters Martin 89 1095 L.Ed. 213(a)(1). City Carpenter § v. & 929, (11th Cir.1993), 21. 29 U.S.C. Fla., 924, County, 9 F.3d (10th Denver, Colo., 353, County 82 F.3d 355 65, 812, denied, S.Ct. 130 513 U.S. 115 of cert. Wichita, Kan., Cir.1996); City F.3d v. 54 Aaron Pirnie, (1994); of Martin v. Malcolm L.Ed.2d 21 denied, Cir.1995), 652, (10th 516 U.S. cert. 657 Cir.1991), Inc., 611, (2d cert. de 949 F.2d 614 419, (1995). 965, S.Ct. 133 L.Ed.2d 336 116 nied, 121 113 S.Ct. L.Ed.2d 506 U.S. Video, Inc., 725 United 222 Donovan Brennan, Corning 417 U.S. Works v. 22. Glass (10th Cir.1984); McLaughlin v. F.2d 581 2223, 2229, 196-197, 41 L.Ed.2d 1 94 S.Ct. Inc., Co., F.Supp. 1133 681 McGee Bros. Cartridge v. United States Powell (W.D.N.C.1988). 755, 766, 497, 516, 94 L.Ed. S.Ct. U.S. (“breadth (1950) coverage” [the is "vital to of Nichols, supra 2. note Son, mission”); v. W.R. Hartin & Act’s] Schultz Cir.1970); (4th Inc., Thomas F.2d Inc., City Group, 94 F.3d Va., 26. Bohn v. Park Fairfax, F.Supp. 358 Va., County of KDFW-TV, (10th Cir.1996); (E.D.Va.1991); Dalheim County Fairfax, Thomas v. of (5th Cir.1990). (E.D.Va.1992); F.2d F.Supp. Smith pay.27 claim for protections overtime federal court overtime The as a of matter federal measuring factors for (b) considered six whether claims, pressed, their FLSA if .law deputies these would fall within the Act’s timely. would be “personal exemption.28 Summary staff’ y (a) judgment for the on Board rested (counties) showing employers’ that the sher- ¶ 17 THE deputies type relationship iff had of BREACH-OF-EMPLOY- subject personal exception and MENT-CONTRACT CLAIM UNDER staff deputies’ to demonstrate the STATE LAW failure existence a material issue. of fact A. in 16 Because this case no FLSA-based below, pressed claim had been there was no Arguments The Parties’ justify before the record COCA sua deputies argue that the commis- sponte injection appeal. on If deputies sioners, board,29 sitting personnel as a FLSA, had they desired to invoke the would manual,30 adopted personnel policy which comply have had to with the terms of that provides employees including byAct filing allege a claim that would viola- — compen- “law (or enforcement officers”—shall be years tions of the FLSA within two three sated for overtime hours31 holi- and receive implicated) a willful violation is of the day cannot, pay.32 argue The deputies accrual of of work their causes action. We record, on scant decide whether these law within the enforcement officers deputies exempted meaning county’s from the personnel stand FLSA’s of the policy. In Nichols, supra § note 31. The direct us to 5.3 of the hand- pertinent part: book. Its terms state Nichols, court in at ‘‘5-3 OVERTIMEANDFLSA GUIDELINES relied six nonexhausiive factors identified in * * * County employees Overtime: who are (5th Teneyuca County, v. Bexar 767 F.2d exempt, personnel law enforcement 1985), determining plaintiff Cir. for whether a is a emergency personnel, medical be entitled shall personal member of an elected official’s staff: payment to overtime at the of rate 1.5 times "(1) plenary- whether the official has elected regular their rate of all hours worked (2) removal, powers appointment ain work week in excess of 40 hours. The person position whether the in the at issue is employee up can accumulate hours of personally accountable to offi- the elected compensatory pay- time off in lieu of overtime cial, (3) person position whether the in the at ment. After the accrual of 240 hours of com- represents eyes issue the elected in the official time, pensatory employee such must thereafter (4) public, of the whether the elected official paid payment Compensa- cash overtime. exercises a considerable amount control tory granted employee time must be to an off (5) position, position over Iev.el a rate 1.5 hours each hour overtime command, organization's chain, within the * * .* worked. (6) intimacy working the actual personnel, In the case lawof enforcement relationship between the elected official and paid overtime will be for hours worked in person filling position.” day period. excess of 171 hours in the 28 paid Such overtime will be at the rate of 1.5 29. The terms of 1-1 of the handbook state in ’ (cid:127) employee's regular pay, times the rate of pertinent part: compensatory awarded form of time off * * * regulations "1-1 The rules and con- 1.5 hours each hour overtime worked. herein have been tained established Carter employee aWhen law accumulates enforcement County approved County Per- Carter compensatory off, 480 hours time then such County, sonnel Board of Carter Oklahoma.” employee paid must be thereafter (Emphasis supplied.) * * *" (Emphasis supplied.) cash. deputies rely 30. The on 19 O.S. 1991 holiday provisions, pay 32. For the handbook's- 339(A)(8). § provide: Its terms deputies § the direct us to 6.1 of the handbook. county The "A. commissioners shall have pertinent Its terms state: * * * power: develop personnel policies 8. To "6-1 GENERAL STATEMENT minimum * ** county approval majority the the a with of FOLLOWING BENEFITS ARE THE ” * * * officers; FOR, county of all PROVIDED elected FULL-TIME EMPLOYEES 1993, 1994, 1995, The to OF THE andT996 amendments COUNTY: ” * * * § (1) change quoted 339 did Holidays the text. Paid by intended their March notion, they county the officials us to support of direct this officers, pay county adoption personnel policy to of the statutory governing scheme off) (or compensatory time the to the as an sheriff which enforce- classifies keeping acting capacity the of charged employees with the sheriffs ment officer jail deputy and his designates personnel, the sheriff not to sheriffs. peace,33 but only “peace officers” for deputies as the ¶ it never intend- 21 The Board contends (c) that each government,34 provides county create, handbook, by an text of the to the ed deputy” have one “first county officer shall the at- employment contract that modified depu- (d) all others as “second and classifies employment status or authorized over- will ties.” intent, deputy Its the pay time sheriffs.36 ¶ deputies policies, the These written clearly expressed in argues, a dis- Board prior practice the of urge, which codified of placed the front the handbook. claimer county employees, wages to paying overtime pertinent language states: The employ part the at-will a of have become BE ARE NOT THESE POLICIES TO depu According arrangement. to the ment AN CONSIDERED EMPLOYMENT ties, county’s accepted offer they when the ANY EMPLOYEE CONTRACT WITH handbook) (in compensation for over the of contract, the Board The handbook'is not worked, county contractual the became time law, cannot, of up, and as matter sums according promised ly bound to any obligations. create they county em wage regime. Because are officers, ployees as well as law enforcement B. the deputies argue, they entitled to are county’s personnel promised in the benefits As The Basis The Handbook Moreover, they the coun submit that policy. Implied An Contract Of of promissory the doctrine ty is bound ¶ depu- question pressed deny now the overtime estoppel and cannot alleged claim regarding their contract ties wages performed the work.35 have after analysis principles for an calls conceding Although that the efficacy person- legal employee govern the officers sheriffs are law enforcement (or manuals). nel handbooks sense, they are law the Board denies general jurisprudence meaning Oklahoma within the enforcement officers employee an handbook recognizes provisions. We manual’s overtime implied of an contract be evidentiary the basis com- form to materials —the directed employer employees37 and these tween show that affidavits —which missioners’ county they may person persons § of their O.S.Supp. 1993 180.61 are: 33. The terms of . necessary act, deem fixing purposes "For salaries under grouped the follow- county officers shall deputies proposition, Restate- cite 35. For this ing classifications: Contracts, (Second) (1970). § For ment charged or those officers Enforcement § portions see text at Part pertinent the V(C) peace relating public enforcing to the laws with county county sheriff, safety: trea- and surer, infra. clerk, clerk, county the court assessor, board county the members of the § and the hand- directs us to 1-2 of 36. The Board commissioners, book, and part: provides in which (Em- county officers.’’. 2. Other elective (cid:127) POLICYPURPOSE "1-2 added.) phasis policies herein are to be fol- contained 19 O.S. 1991 516 are: County The terms of in administration Officials lowed sheriff, personnel program. duty County's It in- under-sheriffs shall be the provide working keep counties, preserve peace policies and tended that these and sup County employees and respective quiet guide and Officials their prac- employment affrays, press riots and unlawful a basis for all serve as uniform assemblies ”* * * insurrections, puipose County which Service. tices in process in civil and criminal the service of Inc., Enogex, 1994 OK 878 P.2d cases, securing any 37. Gilmore apprehending or and in Cameron, 360, 368; 742 1987 OK peace, they Hinson v. felony person for or breach of the 549, 554-55; Independent v. School Miller such P.2d every call to their aid constable and 502 four requirements traditional contract exist: This is so because in order create an (1) (2) competent parties, (3) consent, a legal implied promises contract the must defi- be (4) object and consideration.38 Two limita- nite.43 scope implied tions on the of contracts via an employer may 24 While employee handbook stand identified ex- (or disclaim) deny (1) any intent make the tant caselaw: the manual alters the provisions of personnel part of manual the relationship at-will respect with to accrued (2) employment relationship, must promises40 the disclaimer and the in the em- benefits39 i.e., employer’s rep clear.44 An

ployee terms, manual must in be be definite conduct — vague practices in the form of assurances.41 resentations and is incon Although —which the an implied may negate existence of sistent with its disclaimer generally contract the fact, presents an alleged prom- efficacy issue the disclaimer’s effect.45 The a dis nothing vague ises are more than generally claimer question assurances a mixed lawof the issue can be decided as a matter of law.42 and offact.46 19, clear). 1217, County, Dist. No. Avey, supra 1980 OK 609 In at the COCA 56. Garfield 756, 758-59; Langdon P.2d Saga see also v. summary judgment employer affirmed the 65, 524, Corp., CIV discharged APP 569 employee’s P.2d 527- the breach-of-contract 528; 1476, claim, Corp., holding Williams Maremont 875 F.2d there were no assurances of (10th Cir.1989). handbook, (b) security 1480 job employee in the employer, written disclaimers in both em 2; Gilmore, supra 38. 15 O.S. 1991 note 37 at ployee policy procedural and handbook 368. manual, any denied intention to form a contract (c) employment the disclaimers were 527-28, Langdon, supra 39. In note at 37 policies "bold clear” and were "unam employer’s personnel COCAholds that an manu- biguous.” Liquid Corp., See also Swanson v. Air (vaca- providing employee al for certain benefits 512, 826 (1992); Thomp 118 Wash.2d P.2d 664 pay) tion and severance created a contractual 219, Regis Paper son St. 102 Wash.2d 685 employee’s basis terminated claim to those 1081, (1984); Payne Sunny P.2d 1087-1088 policy incorpo- accrued benefits. The statement 34, Community Hosp., Wash.App. side personnel rated into the defining manual was a contract 1379, (1995); Blum, George 1382-1384 P.2d L. employment relationship during Annot., Employer's Disclaimer Effectiveness of period policy Langdon was in effect. is con- Representations Employee in Personnel Manual or Miller, 37, supra with sistent note where this Altering Employment Handbook At-Will Relation court holds that a local board education’s (1994). ship, 17.A.L.R.5th 1 policy incorporated by implication statement was Hinson, employment into a teacher's contract. Johnson, 1296, supra In 45. note 44 at the COCA ' supra note 37 at 555. summary judgment reversed employer, holding employee handbook—when (Second) promise 40. A in Restatement defined conjunction pattern practice viewed in awith 2,§ as: Contracts indicating employer’s adoption and consis- " * ** a manifestation intention to act or policies (pre- tent use of the handbook's made n termination) procedures may lead reasonable acting specified way, so refrain from — justify promisee understanding as to that a differing minds to conclusions about the exis- commitment has been made.” implied rights tence of contractual to invoke the Swanson, procedures. supra written note 44 at 37, Hinson, 554-555; Gilmore, supra 41. note at 674-77; 539, Corp., v. Intel 153 Ariz. Loffa 368; Eateries, Inc., supra Hayes note 37 at 1146, Hotels, P.2d Pond v. Devon 783-784; see OK 905 P.2d also Ltd., App.3d 55 Ohio 563 N.E.2d 741- Williams, supra note at37 1481. (1988) (fact questions preclude judgment where a employee disclaimer in an 783; Hayes, supra Dupree note at v. United ambiguous handbook is and inconsistent with Service, Inc., (10th Parcel 956 F.2d manual). representations other in the Mi- See Cir.1992). Chagares, chael A. the Disclaimer Utilization of as an Employment Means to 783; Effective Define Hayes, supra generally note at see Relationship, 17 Hofstra 392-93 Industries, Inc., L.Rev. Krause v. Dresser 910 F.2d accord, Institute, Practising Law Ad- (10th Cir.1990). 678-679 Law, Strategies Employment vanced (1987). See, Center, e.g., Avey v. Hillcrest Medical 1215, 1217, OK CIV APP and John Nasca, Johnson, 1297; Swanson, supra son v. 1990 OK CIV APP P.2d note 44 at (the acknowledged COCA that a In 676-77. Zaccardi v. Zale (10th Corp., rights Cir.1988), handbook’s disclaimer of must 856 F.2d record, cannot; pay points classifications de manual’s overtime We efficacy ambiguity the of the handbook out an handbook that must cide the contractual states a of law. While the manual extrinsic evidence. is not as matter be clarified provide working purpose summary adjudication pro- “to a that the function of per rather, county that the guide” by affidavit; officials and cess to afford a trial it “employ policies represent do not summarily deciding sonnel is to afford a method of contract,” conflicting inferences ment terminating issues or case when some other made in the drawn from statements presented question nothing there is but The manual’s “overtime” same handbook. law.49 county employees “who

provisions state that personnel exempt, enforcement are not law C. personnel, shall be emergency medical payment.”47 Under the Binding entitled to overtime As De- Effect The Handbook’s section, employer “general statement” the Policy Theory Under The clared employ “paid holidays” “full-time offers Promissory Estoppel county.”48 deputies’ The eviden- ees of the ¶27 deputies argue The that personnel tiary indicate that other materials county is liable overtime under have in the sheriff’s office received theory promissory estoppel. Promis person pay in accordance with these written sory grounded in the Re estoppel, which Because are law policies. nel enforce (Second) 90, of Contracts has statement county employees, the personnel and ment incorporated been into Oklahoma common urge, they same should receive the law.50 Section 90 of the Restatement states footing the same with and stand on benefits part: deputies’ evidentiary The materials others. “(1) promise promisor A which the should question raise a material fact whether reasonably expect to action or for- induce of the Board’s written disclaim effectiveness promisee part on the of the or a bearance negated by employer con er is inconsistent person third and which does induce such duct. binding injustice action or forbearance is is found to be inef- 26 If disclaimer only by of the can be avoided enforcement fective, there remains a material fact issue granted for promise. remedy The breach deputy are included in whether sheriffs * * *” justice requires. may be limited as personnel category of law enforcement necessary promis- to establish eligible pay or fall within elements for overtime (1) sory unambigu- estoppel clear and exempt is excluded are: classification (2) foreseeability promi- promise, manual ous from these benefits. The fails it, (3) rely upon promisee identify employees that fall with- sor that the would upon promise to explana- categories. The Board’s reasonable reliance in these (4) hardship or un- summary promisee’s (by to its detriment tion affidavits attached ' only by promise’s fairness can be avoided judgment response) sheriffs not intended to be included within enforcement.51 were Rice, 161, court, holding 50. Petroleum Co. v. 109 Okl. the contractual disclaimer insuffi- Roxana 502, Gregston, v. cient for claim, relief on breach-of-contract 235 P. Bickerstaff 382, 64, opined that a disclaimer "must be read 1979 OK CIV APP P.2d parties’ 'norms of conduct and reference to the ” Zaccardi, upon expectations founded them.’ See, Islip, e.g., Rogers v. A.D.2d Town of Meister, supra v. (quoting from Hillis 1476-77 158, 727, (1996); Weiper 646 N.Y.S.2d (1971)). P.2d 82 N.M. Associates, App.3d & 104 Ohio W.A. Hill Realty Payne N.E.2d handbook, supra note 31 47. Section 5-3 of the Livingston, Housing, Inc. v. First Sec. Bank of added). (emphasis (1993); D’Ul 256 Mont. isse-Cupo 95-96 Directors, 202 Conn. v. Board handbook, note 32. 48. Section 6-1 (1987) (quoting § 520 A.2d Contracts); (Second) Group, Wimberly, R.G. P.2d 1997 OK Restatement Bowers Co., (2d 312, 316; Stuckey Young Explor. Hardart 751 F.2d Inc. Horn & Cir.1984). P.2d 504

¶ written, According deputies, they argue, 28 to the was not intended to separate they promises distinguish two groups relied on between of law enforce- them to relief manual which entitle under the ment officers. 5-3, § promissory estoppel theory of — ¶ promise would

which constitutes' reach, 32 We do not for either compensation given overtime as law en discussion, or equal protection settlement officers,52 6-1, forcement which When, here, impact. legal clause’s as relief promises county employees full-time will clearly upon is affordable alternative compensation holidays receive worked.53 grounds, consideration of constitutional chal V(B), supra, As discussed in Part the manual lenges inappropriate light is self- our ambiguous. specifies is It neither what cate “prudential bar” restraint. Con erected gories employees designated of sheriff’s questions stitutional should not be reached in personnel” “law enforcement nor identifies necessity.54 advance of strict exempted those who are the overtime from pay requirements. SUMMARY ¶ county 29 We hold that whether the ¶ 33 deputy Because the sheriffs had not promissory liable under the doctrine of es- pressed claim, below FLSA-based that is- toppel i.e., deputies’ on the notion of the — entirely unsup- sue stood before the COCA personnel detrimental reliance on the manu- ported by the record and could not hence be (or provision holiday pay al’s for overtime or injected appeal sponte. off) on sua compensatory time a material —tenders record, possible declare, on this that these dispute. yet fact in It is to be determined. deputy sheriffs are excluded from the Act’s An evidentiary examination of the materials protection as a matter of law. opposition submitted in county’s quest summary adjudication oppo- reveals that ¶ 34 application Whether —either on anof may site inferences be drawn from the facts implied-contract promissory-estoppel or presented. theory personnel policy cre- handbook —the binding obligation county ates on the Vi holiday for overtime and .sheriffs presents hours worked question for an ¶ 30 THE PRUDENTIAL BAR OF RE- evaluative determination of the trier. The STRAINT COMMANDS THAT THE CON- disputed record reveals material facts well as STITUTIONAL ISSUE BEFORE US NOT undisputed as facts from which con- material BE IN RESOLVED ADVANCE OF flicting inferences be drawn. STRICT NECESSITY ¶ deputies press express for the opinion first time 35 We no on the appeal county’s disparate appli- on that the liability Board’s for FLSA- contract-based adopted personnel policies cation of its gov- theories. The cause must be remanded for a erning holiday pay overtime and prius one nisi resolution all untried issues ten group of law (deputy enforcement officers dered to be tendered. The sheriffs) (ie., jailers, but not to others judgment dis- cannot stand. patchers) within that classification is judgment’s arbi- When reversal a cause is trary remanded, capricious. county’s policy it as returns to the trial court it handbook, 288, 347, supra Valley 52. Section 5-3 of the Authority, note Tennessee 297 U.S. 466, 483, (1936) (Brandeis, 56 S.Ct 80 L.Ed. 688 handbook, J., Jackson, concurring). supra Section 6-1 also 9 note 32. See 771; Wright Newspaper Sun Grove 1994 990; 642-643, Snyder, In re 472 OK 873 P.2d In re U.S. Initiative Peti 105 S.Ct. 2874, 2880, (1985); Question tion No. 347 State No. 86 L.Ed.2d Brockett v. OK Arcades, Inc., C.J., Spokane 501-502, concurring); (Opala, 472 U.S. 2794, 2801, Westinghouse Corp., S.Ct. L.Ed.2d Smith Elec. Chadha, 936-37, 3; Diehl, I.N.S. v. 462 U.S. P.2d S.Ct. n. Schwartz 2764, 2776, State, 283; L.Ed.2d Ashwander OK P.2d Dablemont v. decided, us. In the absence properly issue before save had never been deputies to certiorari obtain law” of the case.55 effort “settled on the issue review from this court granted upon the certiorari On claims, affirm the trial we should Appeals’ of Civil the Court petition, Board’s of the summary judgment court’s favor vacated, trial court’s opinion county. remanded reversed and the cause judgment to- proceedings consistent for further with I that Justice am authorized to state day’s pronouncement. joins expressed me in views here- WATT in. Y.C.J., SUMMERS, ¶ KAUGER, C.J., LAVENDER, HODGES, HARGRAVE

and JJ., WILSON, concur. and ALMA JJ., WATT, dissent. SIMMS 1997 OK Justice, SIMMS, dissenting: DAVIS, Larry Ferguson, Robert Frank W. affirm the trial 1 I dissent. I would Webb, Worthen, Pope, Dan Charles Tim summary judgment ruling in favor court’s Greenwood, Gray, Key, Joan Charles deputies’ county on its defense Coleman, Wayne Cozort, Carolyn Leon ruling affirmed This was contractual claims. Campbell, Wayne Sullivan, ard Grover Appeals by Civil and certiorari the Court of Reese, O’Neal, Pettigrew, Mike Jim sought it. Con- challenge has not been Smaligo, Phillips, Mike Richard John view, is not majority’s trary to the Miller, Thornbrugh, Doug John Sulli Leonard, Hough v. like situation Adkins, Perry, van, Fred Odilia Scott alleged error where Dank, Craig Ev Golmoradi and Sharon by Ap- the Court of left unaddressed was ans, M.D., Appellants, preserved although properly peals it was Here, alleged error appeal. briefed on As is ignored or left unanswered. FIEKER, was President of Oklahoma Dan H. , ante, excerpt, fn. majority’s shown Health, H. Dec Gordon Board State opinion, of Civil Appeals’ the Court from kert, President Oklahoma Vice challenge ruling trial court’s on Health, Beth Anita Board of Gor State theory urged by the was Smith, Jr., don, Diacon, R. Brent Glen the Court considered and determined Carmichael, Merrick, John B. Frank W. admitted- the treatment was Appeals. While Scott, Jay Gregory, Members A. Walter Appeals none- ly cursory, the Court of Civil Health, Board of of the Oklahoma State presented. It ruled the issue theless decided Nida, Jerry of the Okla Commissioner county’s the trial favor and affirmed in the Board of Health and homa State But issue. court’s resolution of Department of Health of State gratuitously Appeals consid- then Court Oklahoma, Appellees. application of the issue —the ered another No. 88420. Act to the claim Labor Standards Fair urged or Supreme not been Court Oklahoma. plaintiffs had —which found it was deter- parties briefed Dec. trial required reversal of the minative Decision Opinion Supplementing judgment. court’s 27,1998. Rehearing Jan. Grant Appeals’ de- Court of unsolicited Labor Standards of the Fair termination is, major- as the application to this case Act’s however, is, finds,

ity plain error. Parker, 304; 428; supra Dyke, supra 10 at note P.2d Dept. Safety, OK Public 682; Seymour, supra 10 at 512- note 10 at note 1376-1377; Fent, Nelson, supra note 10 at Thomas, 134; supra note 10 at 10 at

Case Details

Case Name: Russell v. Board of County Commissioners

Court Name: Supreme Court of Oklahoma

Date Published: Jun 24, 1997

Citation: 952 P.2d 492

Docket Number: 86358

Court Abbreviation: Okla.