TENNESSEE DEPARTMENT OF CORRECTION v. David PRESSLEY
Supreme Court of Tennessee, AT NASHVILLE.
September 14, 2017
528 S.W.3d 506
February 8, 2017 Session
Accordingly, we hold that the pro se wrongful death complaint filed by Mr. Hartley was not a nullity, i.e., was not void ab initio, and that the trial court did not err in permitting amendment of the initial complaint or in permitting the amended complaint to relate back to the date of the initial complaint.20 Accordingly, this lawsuit was not time-barred, and the trial court correctly denied Trinity‘s motion for summary judgment.
Trinity raised a number of other issues in the Court of Appeals that were pretermitted by that court‘s decision on the statute of limitations issue. Because we have reversed the Court of Appeals’ conclusion on the statute of limitations issue, we remand the case to the Court of Appeals to address the issues that were properly raised but not decided by that court.
CONCLUSION
Under the plain language of Tennessee‘s wrongful death statutes, the decedent‘s right of action “pass[es] to” the surviving spouse upon the decedent‘s death, and the surviving spouse is not acting as a legal representative of the decedent in filing the wrongful death action.
Accordingly, the decision of the Court of Appeals is reversed, the trial court‘s denial of the motion for summary judgment is affirmed, and the case is remanded to the Court of Appeals to address the other issues that were raised on appeal but not addressed by that court. Costs on appeal are to be taxed to Trinity Hospital, LLC, for which execution may issue, if necessary.
Frank J. Scanlon and Samuel P. Helmbrecht, Nashville, Tennessee, for the appellee, David Pressley.
Jeffrey S. Bivins, C.J., delivered the opinion of the court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.
We granted this appeal to determine whether a “preferred service” state employee has a protected property interest in his or her employment and whether due process or specific statutory language requires the State to bear the ultimate burden of proof in a post-termination administrative appeal under section 8-30-318 of the Tennessee Excellence, Accountability, and Management Act of 2012,
Factual and Procedural Background
The Respondent, David Pressley (“Mr. Pressley“), was employed by the Petitioner, Tennessee Department of Corrеction (“TDOC” or “the State“), beginning in November of 2011 as a correctional officer at the Morgan County Correctional Complex (“MCCX” or “the prison“). On January 8, 2014, Mr. Pressley received a letter from the prison warden (the “Warden“) notifying him that he had been dismissed from his employment. The letter alleged that on the night of January 6, 2014, and the morning of January 7, 2014, video surveillance cameras showed that Mr. Pressley allowed inmates to pilfer large amounts of food from the prison kitchen, prepare some of the food, and leave the kitchen area with large quantities of food while he was supervising the cleaning of the prison kitchen. The letter also alleged that Mr. Pressley wrongfully accessed a secure food storage area secured by a tamper seal. The letter charged that this alleged conduct violated “MCCX Service/Dining Room-Security Post Orders” (“Post Orders“) and Department of Human Resources Rules pertaining to “incompetency” and “negligence” in the performance of duties and conduct unbecoming an employee in state service. The letter stated that Mr. Pressley‘s employment wоuld be terminated effective January 17, 2014, and that, as a preferred service employee, Mr. Pressley had the right to file a written complaint challenging his dismissal.
Pursuant to the Tennessee Excellence, Accountability, and Management Act of 2012 (the “TEAM Act” or the “Act“), discussed in detail below, Mr. Pressley initiated a Step I review challenging his dismissal by filing a complaint with the
Following his failure to obtain relief at his Step II review, Mr. Pressley initiated a Step III review by filing an appeal with the Board of Appeals (“the Board“). In the appeal, he argued that there was no cause fоr his termination and that his termination represented too severe a punishment for his alleged conduct. In an order dated March 21, 2014, the chief administrative law judge preliminarily assigned the burden of proof to TDOC pursuant to Tennessee Rules & Regulations 1360-04-01-.02(3) & (7) (2004) of the Uniform Rules of Procedure for Hearing Contested Cases before Administrative Agencies. The order indicated that if either party wished to contest the determination regarding the burden of proof, it could do so by filing a written brief and memorandum. TDOC filed a written brief and memorandum, arguing that the ultimate burden of proof should be placed on Mr. Pressley because he was the moving party. Mr. Pressley responded in opposition, and the chief administrative law judge ruled at a pre-hearing conference that the issue of burden of proof would be decided by the administrative law judge (“ALJ“) who was ultimately assigned to hear the case.
Mr. Pressley‘s appeal proceeded to a contested hearing on June 23 and August 8, 2014, before the Board. During the hearing, the ALJ presiding over the case upheld the prior ALJ‘s order assigning the burden of proof to TDOC. After the conclusion of the hearing, the Bоard issued a final ruling containing detailed findings of fact and conclusions of law. In summary, the Board found that TDOC had failed to carry its burden of proof on all but one alleged act of misconduct. Specifically, the Board found that Mr. Pressley had obtained advance permission from his supervisor to take food from the secure storage area in order to prepare meals for the third shift that evening. Additionally, the Board found that there was not sufficient evidence that Mr. Pressley broke tamper seals to enter the secure food storage area to support his dismissal.
The Board likewise determined that two correctional officers assigned to search the inmates upon the inmates’ return to the housing unit found no contraband, food or otherwise, on the inmates Mr. Pressley had been supervising in the kitchen. Accordingly, the Board concluded that TDOC had failed to meet its burden to demonstrate Mr. Pressley had committed a violation of the Post Orders or Tennessee Department of Human Resources Rule 1120.10-.03(2) concerning incompetence. The Board, however, found that TDOC carried its burden of proof with regаrd to Tennessee Department of Human Resources Rule 1120.10-.03(3) “negligence in the performance of duty,” by establishing that Mr. Pressley had failed to file a written report after going into the secure food storage area. Consequently, the Board issued Mr. Pressley a fourteen-day suspension without pay. The Board denied Mr. Pressley‘s request for attorney‘s fees.
Both the State and Mr. Pressley filed petitions for judicial review in the chan-
Mr. Pressley appealed the chancery court decision to the Tennessee Court of Appeals. The Court of Appeals reversed the chancery court‘s decision on the allocation of the burden of proof and determined that the State, rather than Mr. Pressley, had the ultimate burden to show cause to sustain the dismissal or suspension of an employee in a Step III appeal pursuant to
As to Mr. Pressley‘s appeal, the Court of Appeals also concluded that the Board erred in imposing any discipline on Mr. Pressley because of a lack of substantial and material evidence in the record to support the Board‘s conclusion that Mr. Pressley committed negligence in failing to file an incident report on the night of January 6, 2014. Id. at *17. Finally, the Court of Appeals determined that Mr. Pressley was entitled to attorney‘s fees as the “successfully appealing employee” before the Board of Appeals. Id. at *19. Accordingly, the Court of Appeals reversed the chancery court‘s judgment in all respects and remanded the case to the chancery court for a determination of Mr. Pressley‘s reasonable attorney‘s fees pursuant to
We granted the State permission to appeal to address the question of whether a preferred service employee has a protected property interest in his or her employment under the TEAM Act. If we answer that question in the negative, we then address the issue of whether the language of the TEAM Act itself requires that the
DISCUSSION
Standard of Review
Under the TEAM Act, Board of Appeals’ decisions are subject to judicial review in accordance with the Uniform Administrative Procedures Act (“UAPA“).
The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(5) (A) Unsupported by evidence that is both substantial and material in the light of the entire record.
(B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.
This case also involves the application and interpretation of the TEAM Act. Issues of statutory interpretation and the application of a statute to the facts of a case are determinations involving questions of law and are reviewed under a de novo standard with no presumption of correctness afforded to either the trial court or intermediate court of appeals. State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008). We independently construe the relevant provisions of the TEAM Act without deference to the interpretations made by TDOC, the chancery court, or the Court of Appeals. See In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015).
“When engaging in statutory interpretation, ‘well-defined ... precepts apply.‘” State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting State v. McNack, 356 S.W.3d 906, 908 (Tenn. 2011)). “The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope.” Id.
It is the duty of the Court to reconcile inconsistent or repugnant provisions; to place a construction thereon which will not be prejudicial to the public interest; to construe a statute so that no part will be inoperative, superfluous, void or insignificant, and the one section will not destroy another; and further to give effect to every word, phrase, clause and sentence of the act in order to carry out the legislative intent. Tidwell v. Collins, 522 S.W.2d 674, 676-77 (Tenn. 1975) (internal citations omitted).
Analysis
The primary issue we must resolve is which party bears the ultimate burden of proof in this case. Initially, in our efforts to decide this primary issue, we address the threshold issue of whether a preferred service state employee has a protected property interest in his or her continued employment under the TEAM Act. If such an interest exists, we then turn to the question of what process is due to protect that interest and whether a deprivation has occurred. Rowe v. Bd. of Educ. of City of Chattanooga, 938 S.W.2d 351, 354 (Tenn. 1996) (citing Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972)). If no such interest exists, we then turn to the final step of our analysis which is to determine whether the statutory language of the TEAM Act, along with its relevant regulations, requires the State or Mr. Pressley to bear the ultimate burden of proof in this action.
I. Protected Property Interest
The Fourteenth Amendment of the United States Constitution provides that no state may “deprive any person of life, liberty, or property, without due process of law.”
To be entitled to procedural due process protection, a property interest must be more than a “unilateral expectation” or an “abstract need or desire.” It must be a “legitimate claim of entitlement” to a specific benefit. Rowe, 938 S.W.2d at 354 (citing Roth, 408 U.S. at 577).
Thus, our determination of whether Mr. Pressley and other similarly situated preferred service employees possess a constitutionally protected property interest to continued employment is governed by the TEAM Act, its regulations, and other relevant state law. See Roth, 408 U.S. at 577; Bailey, 303 S.W.3d at 230. Accordingly, we turn to the text of the TEAM Act to determine whether the Act creates such an interest.
The Tennessee General Assembly enacted the TEAM Act in 2012, replacing the now repealed Civil Service Act and reforming the State‘s personnel system. See
[E]stablish in the state a system of personnel administration that will attract, select, retain and promote the best employees based on merit and equal opportunity, and free from coercive political influences. Because the citizens of the state deserve services from the best employees, the goal of the state personnel system is to provide technically competent employees to render impartial services to the public at all times and to render such services in an ethical and honorable manner. Specifically, the intent of the general assembly is to further this purpose by allowing agencies greater flexibility in personnel management in order to enhance the overall effectiveness and efficiency of state government. The general assembly further intends that state government operate within a framework of consistent best practices across all state agencies and entities and that the state‘s most valued resource, its employees, be managed in a manner designed to enhance work force productivity and demonstrate sound business practices.
The TEAM Act reformed Tennessee‘s state employment personnel system by establishing two separate and distinct employment categories under the umbrella of “state service“: “executive service” employees and “preferred service” employees.
The TEAM Act specifies that all other full-time positions in the “state service” are classified under the Act‘s other employment category, the “preferred service.”
The Court of Appeals reviewed the TEAM Act and concluded that “Mr. Pressley and other similarly situated employees have a ‘legitimate claim of entitlement’ to continued employment absent cause for their dismissal” because “TDOC was only entitled to dismiss, demote, or suspend Mr. Pressley ‘for cause.‘” Pressley, 2016 WL 1559138 at *13 (quoting Martin v. Sizemore, 78 S.W.3d 249, 262 (Tenn. Ct. App. 2001)). Thus, according to the Court of Appeals, “the fact that Mr. Pressley could only ‘be dismissed for cause ‘plainly supports the conclusion’ that [Mr. Pressley] and other similarly situated employees retain a protected property interest in continued employment.” Id. (quoting Loudermill, 470 U.S. at 539).
Based upon our review of the entire TEAM Act, we conclude that the Court of Appeals’ determination that Mr. Pressley and other similarly situated employees possess a protected property interest in continued employment because preferred service employees can only be dismissed “for cause” is erroneous. The language of the statute is clear. Section 8-30-316 of the TEAM Act unambiguously sets out the two separate grounds under which a preferred service employee may be dismissed—dismissal “for cause” pursuant to subsection 316(a) and dismissal for the “good оf the service” pursuant to subsection 316(b).
Moreover, and perhaps more significantly, even if we assume that the statutory language of the TEAM Act is not clear on its face, a thorough analysis of all provisions of the TEAM Act in light of the prior statutory schеme that the TEAM Act replaced supports our conclusion. When necessary to resolve a statutory ambiguity or conflict, courts may consider matters beyond the statutory text, including public policy, historical facts relevant to the enactment of the statute, the background and purpose of the statute, and the entire statutory scheme. Mills, 360 S.W.3d at 368 (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527-28 (Tenn. 2010)).
A plain reading of the TEAM Act makes clear the Act does not expressly confer a property interest in continued employment on preferred service employees. By contrast, the Civil Service Act that preceded the TEAM Act contained such an express provision. The Civil Service Act divided “state service” into “executive” and “career” service positions similar to the TEAM Act‘s “executive” and “preferred” service classifications. See
Nevertheless, Mr. Pressley argues that the TEAM Act effectively only provides for “for cause” terminations of preferred service employees because a terminаtion for the “good of the service” is a “for cause” termination by another name. Mr. Pressley reaches this conclusion by seizing on language in section 316(b), which provides, “[a]n appointing authority may dismiss any employee when the authority determines that the good of the service will be served thereby. Whenever an employee is dismissed ‘for the good of the service,’ the notice of termination must outline the reasons for dismissal.”
We are further guided in our decision by the fact that the former Civil Service Act used, as its chief dismissal mechanism, section 326(a)‘s good of the service provision but did not include a for cause termination provision for then-career service employees. In sharp contrast, the TEAM Act includes both a provision authorizing for cause terminations for preferred service employees and a provision separately authorizing terminations for the good of the service for any employee. We do not believe the legislature would have included a new for cause termination provision while maintaining section 326(a)‘s good of the service provision without intending for the newly created for cause termination provision to do something separate and distinct from the already existing good of the service provision. To adopt Mr. Pressley‘s argument that a dismissal for the good of the service is the same as a dismissal for cause would violate long-standing canons of statutory construction. The General Assembly clearly chose to allow dismissals under two separate provisions. Therefore, we decline to adopt Mr. Pressley‘s argument on this issue.
Additionally, Mr. Pressley‘s contention that the TEAM Act only permits for cause terminations of preferred service employees misapprehends the scope and function of the TEAM Act‘s good of the service provision. While most, if not all, terminations for cause also could be terminations for the good of the service, not all terminations for the good of the service will be terminations for cause. The TEAM Act‘s good of the service provision is a catch-all provision that permits an appointing authority to terminate any employee whenever it determines, in its discretion, that the termination will serve the good of the service of the appointing authority. Conversely, the TEAM Act‘s for cause provision applies solely to terminations of “prеferred service employee[s]” based on a job-related ground. Compare
Likewise, we are unconvinced by Mr. Pressley‘s argument that the TEAM Act‘s implementing regulations establish that preferred service employees have a constitutionally protected property interest. Mr. Pressley hinges this argument specifically on Tennessee Comprehensive Rules and Regulations 1120-02-.11, which provides:
(1) Regular Appointment. A regular appointment is an appointment to either a preferred, non-preferred or executive service position for an indeterminate period of time. A regular appointment is expected to continue contingent upon satisfactory performance and behavior by the employee and upon continued funding, classification and utilization of the position by the State. In the executive service, a regular appointment is at-will and continues at the pleasure of the Appointing Authority.
For all of these reasons, we hold that Mr. Pressley and other similarly situated preferred service employees do not possess a property interest in their continued employment with the State of Tennessee.
The Court of Appeals’ holding on the burden of proof was premised on its determination that Mr. Pressley and other similarly situated preferred service employees had a protected property interest in their continued employment. For that reason, it did not construe the TEAM Act‘s relevant provisions regarding the burden of proof. Thus, even though we have determined that preferred service employees have no such property interest, we still must determine which party ultimately bears the burden of proof in a post-termination Step III administrative appeal under the statutory provisions of the TEAM Act. We turn now to that issue.
II. UAPA Burden of Proof
There is no dispute that Mr. Pressley was a preferred service employee who had successfully completed his probationary period of employment. Accordingly, Mr. Pressley was entitled to the procedural protections attendant to his status as a preferred service employee, specifically, the TEAM Act‘s appeals process. See
(1)(A) Step I: The complainant shall reduce the complaint to writing and file the complaint with the complainant‘s appointing authority. The appropriate appointing authority or designee shall cоnduct any investigation considered necessary, meet with the complainant in person, and issue a decision, in writing, not later than fifteen (15) days after the date the appointing authority receives the complaint.... If the appointing authority does not issue a decision fifteen (15) days after the appointing authority receives the complaint, the complainant may appeal to the commissioner by filing the complaint in accordance with Step II.
The TEAM Act, in pertinent part, specifies the “Step II” appeal procedure as follows:
(B)(i) Step II: If the appointing authority does not find in favor of the complainant, the complainant may appeal to the commissioner of human resources by filing the complaint not later than fourteen (14) days after the date of the appointing authority‘s written decision. The commissioner of human resources shall review the complaint and the appointing authority‘s decision, and issue a decision, in writing, not later than thirty (30) days after the date the complaint was filed with the commissioner.... If the commissioner does not issue a decision thirty (30) days after the commissioner receives the complaint, the complainant may appeal to the board of appeals in accordance with Step III.
(ii) At Step II of the appeal procedure, it is the duty of the employee to provide written argument to the commissioner setting out why the employee believes the Step I decision was in error and ought to be overturned, reduced, or amended. An employee failing to provide such information to the commissioner shall be considered in default and forfeits the ability to appeal to Step III.
(C) Step III: The complainant or state agency may appeal in writing to the board of appeals not later than fourteen (14) days after the date the complainant, or in the case of a state agency, the state agency receives written notice of the action taken by the commissioner of human resources. Within ten (10) days after the receipt of the appeal, the administrative law judge assigned to assist the board of appeals in the proceedings related to the appeal shall determine whether all previous procedural requirements were completed properly and in a timely manner. If a procedural requirement has not been met, the appeal shall be dismissed. If the procedural requirements have been met, the board of appeals shall conduct proceedings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as modified herein, to determine if the law, rule, or policy specified in the complaint was violated.
This third step hearing I would remind you is a de novo hearing. In other words, the parties are starting over. The State must prove its case by evidence presented in this hearing. There‘s no presumption of correctness that attaches to the decision at Step I or Step II below. The State has disciplined the Complainant by termination. The State has the burden of proof. The Complainant does not have any burden to show that he is not guilty of the violations charged. The State has the burden to prove that (1) the violations charged are true; (2) that it took appropriate disciplinary action. These must be shown by a preponderance of the evidence....
The chancery court disagreed and determined that the Board of Appeals made an erroneous assignment of the burden оf proof. The chancery court reasoned that “[s]trongly implicit in [Tenn. Code Ann. § 8-30-318‘s] description of [section 8-30-318‘s] appeal right, ... is that the non-prevailing party at the Step II procedure has the burden of proof at the next level of the process, which is the Board of Appeals.” The chancery court explained its decision as follows:
Reading [Tennessee Code Annotated section] 8-30-316 together with [Tennessee Code Annotated section] 8-30-318, there is no adverse employment action and hence no appeal until the State agency employer has given written notice to the employee and the Commissioner of Human Resources, that the disciplinary action is being taken. That is the triggering event for the employee to file a Step I complaint. Mr. Pressley here did so, asserting that [] there was no cause for his dismissal. And because he did not prevail at Step I, he had the opportunity to, and did move forward to Step II, again to assert that the Department of Correction had no cause to dismiss him. The Step II decision, however, by Rebecca Hunter, the Commissioner оf the Department of Human Resources, was to uphold the dismissal, on the basis that the information given to her by the parties for consideration had indicated culpable wrongdoing by Mr. Pressley. Thus, when Mr. Pressley appealed that determination to Step III, the Board of Appeals, it was his burden to go forward at Step III to show that there was no cause for him to be dismissed. The Court thus finds that the Board of Appeals did apply an erroneous burden of proof.
Accordingly, the chancery court held that Mr. Pressley bore the ultimate burden of proof before the Board of Appeals and remanded the case to the Board of Appeals for a new hearing consistent with its burden of proof determination.
As set forth above, although based upon different reasoning, the Court of Appeals reversed and determined that TDOC, rather than Mr. Pressley, had the ultimate burden of proof.
The TEAM Act specifies that, in a Step III appeal, the Board of Appeals “shall conduct proceedings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as modified herein, to dеtermine if the law, rule, or policy specified in the complaint was violated.”
The Uniform Rules are not silent on the issue of the burden of proof and address its allocation by the ALJ in
The petitioner usually bears the ultimate burden of proof and will therefore present his or her proof first at the hearing. In some cases, however, the party who initiated the proceedings will not be the party with the burden of proof on all issues. In such cases, the administrative judge will determine the order of proceedings, taking into account the interests of fairness, simplicity, and the speedy and inexpensive determination of the matter at hand. The “petitioner” is usually a state agency or department.
(7) Burden of Proof—The “burden of proof” discussed in the definition of “petitioner” above refers to the duty of a party to presеnt evidence on and to show, by a preponderance of the evidence, that an allegation is true or that an issue should be resolved in favor of that party. A “preponderance of evidence” means the greater weight of the evidence or that, according to the evidence, the conclusion sought by the party with the burden of proof is the more probable conclusion. The burden of proof is generally assigned to the party who seeks to change the present state of affairs with regard to any issue. The administrative judge makes all decisions regarding which party has the burden of proof on any issue.9
In the present matter, Mr. Pressley was a preferred service employee who was terminated by a dismissal letter dated January 8, 2014, from the Warden of the MCCX. Under the TEAM Act, the termination of a preferred service employee takes effect immediately upon notice to the
In reaching its decision, the Court of Appeals commented that “it could be argued that either party was seeking to change the present state of affairs—Mr. Pressley by appealing the denial of his Step II appeal to the board of appeals or the State by seeking to change Mr. Pressley‘s employment status.” Pressley, 2016 WL 1559138 at *9. This reasoning misapprehends the nature of Mr. Pressley‘s employment and the structure of the TEAM Act.
When Mr. Pressley was dismissed by letter on January 8, 2014, his termination became final, effective January 17, 2014.10 Nothing more was required under the TEAM Act to permanently sever Mr. Pressley from his employment with the State. The present state of affairs when Mr. Pressley filed his Step I complaint with the Commissioner of TDOC was that he was no longer a preferred service employee. Following his failure to obtain a favorable resolution at both his Step I and Step II proceedings, Mr. Pressley‘s employment status with the State remained unchanged. He still was no longеr a preferred service employee. Thus, when Mr. Pressley initiated his Step III appeal before the Board of Appeals, he was the “party [seeking] to change the present state of affairs” with regard to his termination and should have been assigned the ultimate burden of proof. See
In the instant case, on the advice of the ALJ, the Board placed the ultimate burden of proof on the State. This was improper for the reasons stated above. Accordingly, we hold the Board erred when it assigned the ultimate burden of proof to TDOC to sustain Mr. Pressley‘s termination for cause. As noted by the chancery court:
The Board struggled with the burden of proof, struggled with the absence of some proof, and relied heavily on its conclusion that the Department did not carry its burden. The Final Order of the Board of Appeals thus states—in every place in which Mr. Pressley has been absolved of wrongdoing—that the Department did not carry the burden. That is why Mr. Pressley was reinstated.
Like the chancery court, we cannot specifically predict what the Board of Appeals would do if it had correctly assigned the ultimаte burden of proof. Accordingly, we remand this case to the Board of Appeals for the proper assignment of the burden of proof and a resolution of this matter. All other issues raised by the Parties are pretermitted.
CONCLUSION
For the foregoing reasons, we reverse the decision of the Court of Appeals. We remand the case to the Board of Appeals for all necessary proceedings consistent with this Opinion.
JEFFREY S. BIVINS
CHIEF JUSTICE
Notes
At any time during the employee‘s probationary period the appointing authority may remove the employee if, in the opinion of the appointing authority, the employee‘s performance or conduct during the probationary period indicates that such employee is unable or unwilling to satisfactorily perform or is not satisfactorily performing the employee‘s duties, or that the employee‘s habits, dependability, or conduct do not merit continuance in the service.