MARTHA WAITE υ. CIVIL SERVICE COMMISSION OF WEST VIRGINIA
(No. 13814)
Supreme Court of Appeals of West Virginia
Decided December 20, 1977.
I am authorized to state that Justice McGraw joins with me in this dissent.
Chauncey H. Browning, Attorney General, George H. Mitchell, Assistant Attorney General, for appellee.
MILLER, JUSTICE:
Appellant, Martha Waite, a classified civil service employee, asks this Court to set aside a decision of the West Virginia Civil Service Commission denying her a hearing before the Commission.1
Appellant attacks the decision of the Commission on two grounds: (1)
By letter dated November 6, 1974, appellant, a nurse at the Barboursville State Hospital, was notified that
She requested a hearing before the West Virginia Civil Service Commission regarding the suspension in a letter dated November 21, 1974. Proceedings were held on the request, and the Commission found that under West Virginia law appellant was not entitled to a hearing. See note 1, supra.
“Any employee in the classified service who is dismissed or demoted after completing his probationary period of service or who is suspended for more than thirty days in any one year, may, within thirty days after such dismissal, demotion or suspension, appeal to the Commission for review thereof.”
Article XI, Section 3 of the Rules and Regulations of the West Virginia Civil Service System provides:
“The Appointing Authority may, upon notice confirmed in writing or by written notice, suspend any employee without pay for deliquency or misconduct, for a period not to exceed thirty calendar days in any one calendar year. The employee shall only have recourse to appeal if sus-
pended for more than thirty days in any one year.”
Article XII, Section 4-1 of the Rules and Regulations reads:
“A permanent employee who is dismissed, suspended for more than thirty days or demoted shall have the right to appeal to the Commission not later than thirty days after the effective date of the dismissal, suspension, or demotion. . . .”
I. Appellant‘s rights under statutory law
We first note that
II. Appellant‘s constitutional claim to due process
In North v. Board of Regents, W. Va., 233 S.E.2d 411 (1977), we treated at some length the procedural safeguards required under
To evaluate appellant‘s constitutional claim we employ a two-step analysis. Cf. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Initially, we determine whether appellant‘s interest rises to the level of a “liberty” or “property’ interest. If the answer is no, the second step becomes unnecessary because appellant has no claim warranting constitutional protection. If, however, either a liberty or property interest is at stake, then we must weigh the competing interest of the appellant and the State agency to determine what procedural due process is constitutionally required. We turn first to determine whether appellant‘s claim involved an interest in liberty. Thereafter, we will consider whether a property interest is involved.
A. Appellant‘s liberty interest claim
The concept of a “liberty” interest is grounded in the Due Process Clause of both our State and Federal Constitutions, which prohibit the deprivation of “... life, liberty or property, without due process of law.”
The liberty interest concept developed in Roth, supra, is the interest an individual has in being free to move about, live and work at his chosen vocation without the burden of an unjustified label of infamy. Roth, supra, 408 U.S. at 572, 33 L. Ed. 2d at 558, 92 S. Ct. at 2707. A liberty interest is implicated when the state makes a “charge against him that might seriously damage his standing and associations in his community.” Id. at 573, 33 L. Ed. 2d at 558, 92 S. Ct. at 2707. The Roth Court stated that a charge of dishonesty or
We follow these principles and find that an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence, is likely to have severe repercussions outside his work world, infringes one‘s liberty interest. Moreover, an individual has an interest in avoiding “a stigma or other disability” that forecloses future employment opportunities. See Roth, supra, 408 U.S. at 574, 33 L. Ed. 2d at 559, 92 S. Ct. at 2707. See also Codd v. Velger, 51 L. Ed. 2d 92, 100, 103 at nn. 3 & 11 (1977) (Stevens, J., dissenting); Goss v. Lopez, 419 U.S. 565, 574-575, 42 L. Ed. 2d 725, 735-736, 95 S. Ct. 729, 736-737 (1975).
In the present case, appellant‘s suspension was based on several infractions of hospital policy. We do not deem these charges reach the level of stigmitization which would foreclose future employment opportunities or seriously damage appellant‘s standing and associations in the community.5 We, therefore, conclude that appellant has not suffered damage to her liberty interest.
B. Appellant‘s property interests in uninterrupted employment
Appellant alleges that her suspension by the hospital superintendent violated procedural due process because she was deprived of property without “a right to a hearing and an opportunity to present evidence or otherwise contest the reasons given for such a suspension.”
It is clear from the Supreme Court decision in Roth, supra, that the Constitution protects property interests
Appellant contends that her interest in continued uninterrupted employment meets the standards set out in Roth. However, the situation here is not akin to that of the teacher in Roth who argued that a hearing was necessary before the University could refuse to rehire him. Here, no question arises as to the right of appellant to her position. Appellant was suspended for ten days, after which she resumed her position. Thus, the question is whether appellant has a legitimate claim of entitlement to remain on her job and earn a salary, part of which was denied her by virtue of the suspension.
Although there is no direct pronouncement by this Court concerning a public employee‘s claim of entitlement to continued uninterrupted employment, a property interest clearly can be found in appellant‘s acknowledged status as a permanent employee entitled to “security of tenure.” State ex rel. Karnes v. Dadisman, 153 W. Va. 771, 781, 172 S.E.2d 561, 568 (1970).6
Having found that appellant‘s interest in uninterrupted employment to be a “property” interest, we must consider whether a ten-day suspension is so minimal that due process protection need not be afforded. The de minimis concept was specifically discussed in Goss v. Lopez, supra, and the Court held that a ten-day suspension from school was not such a minimal deprivation that no due process procedure need be afforded. In North v. Board of Regents, supra, we adopted the Goss rule in interpreting our State‘s Due Process Clause. There, we concluded, as did Goss, that the extent of the deprivation would be a relevant consideration in determining the extent of the due process procedures afforded.
We conclude that a ten-day suspension is not so minimal a deprivation of appellant‘s property interest in continued uninterrupted employment to require no due process procedural protection.
III. The extent of due process protection
Again in North, supra, we summarized some broad principles relating to the scope of due process procedures that would be made available in given cases:
“First, the more valuable the right sought to be deprived, the more safeguards will be interposed. Second, due process must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise. Third, a temporary deprivation of rights may not require as large a measure of procedural due process protection as a permanent deprivation.”
Further refinement of these principles was not necessary to the resolution of North because of the serious
In Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the United States Supreme Court has enunciated some of the factors which should be considered in determining the process which is appropriate to protect a property interest. The Court held that such a determination:
“... generally requires consideration of three distinct factors; first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of [a property] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.”
We consider these factors to be germane to a selection of an appropriate procedure under our Due Process Clause. Applying the first factor, we find that the appellant suffered tangible economic loss when suspended without pay. Moreover, under the statutory scheme appellant could be deprived of one-twelfth of her annual income before any statutory relief is possible.
Utilizing the second factor which relates to the risk of an erroneous deprivation, there are presently no statutory procedures designed to protect against an erroneous suspension of under thirty days. Consequently, any procedural safeguards will diminish this risk of error.
Finally, and of no small consideration, is the State‘s interest, including the additional burden that would be added by imposing some due process procedures.
Like any State agency, the hospital has a strong interest in being able to deal quickly and inexpensively with
The hospital‘s interest is unusual in another respect. A hospital staff is highly interdependent, both in the sense that a physician needs the skills and presence of a nurse and in the sense that the collegial nature of the staff requires the presence of the nurse for effective performance. Obviously if a nurse is absent without authorization, the hospital is required to find a replacement to perform those tasks. There can be no doubt that the State‘s interest is not inconsequential and it should not be required to afford extensive procedural protection on short suspensions.
In Goss, supra, the Supreme Court held that due process requires, in connection with a suspension of ten days or less, that a student be given written or oral notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version. Moreover, the Court stated that generally notice and hearing should precede the student‘s removal from school, since the hearing may almost immediately follow the misconduct. If prior notice and hearing are not feasible, as where the student‘s presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. We expressly sanctioned this approach in North. 233 S.E.2d at 417.
We are of the opinion that due process requires that similar procedures must be afforded a State classified civil service employee who is suspended for thirty days or less on charges amounting to misconduct or delinquency. Appellant‘s property interest is important
There is no substantial burden that will be placed upon the State agency by requiring such procedure. In fact, a similar statutory procedure exists for those who are given a discharge or reduction in rank, under
In fashioning any procedural remedies arising out of our due process standards, we have utilized the doctrine of least obtrusive remedy to “... avoid striking down legislation whenever ‘... there is an adequate remedy to prevent such legislation from being unconstitutionally applied.’ Point 4, Syllabus, State ex rel. Alsop v. McCartney, W. Va., 228 S.E. 2d 278 (1976).” State ex rel. Harris v. Calendine, W. Va., 233 S.E.2d 318, 323 (1977).
Therefore, under the doctrine of least obtrusive remedy, we decline to declare
IV. Appellant‘s equal protection claim
Appellant also advances an equal protection argument on the basis that
In State ex rel. Piccirillo v. Follansbee, W. Va, 233 S.E.2d 419 (1977), we discussed at some length the concept of equal protection. We adopted and applied the standard that unless the State action violates certain sensitive and fundamental rights and constitutional freedoms, such as religion or speech, then the chal-
The right that is here involved is a property right in continued uninterrupted employment. It is not a sensitive and fundamental right or constitutional freedom. Therefore, we need only determine whether this classification bears some rational relationship to legitimate State purposes.
In the early portion of this opinion we discussed at some length the State‘s interest “in being able to deal quickly and inexpensively with routine personnel matters in order to promote efficiency and economy in administration.” We consider such interest to be a legitimate State purpose and certainly disciplinary procedures permitting a distinction between minor disciplinary punishments and major ones are rationally related to this interest. We, therefore, hold that
For the reasons stated above, the appeal is dismissed.
Appeal dismissed.
NEELY, JUSTICE, Concurring:
I concur in the dismissal of the appeal in this case, but respectfully disagree with the majority‘s extension of certain procedural safeguards to classified civil service employees who are suspended for thirty or fewer days on charges amounting to misconduct or delinquency. The requirement that employees be notified before their suspension of the charges against them and be given the opportunity, except in situations where there is a continuing danger to persons or property or to the orderly conduct of the agency‘s affairs, to respond to the employing authority in my view unreasonably fetters agency discretion in personnel matters, creates one more procedural trap for the unwary, and creates a need for
In the absence of statutory authority to the contrary, I cannot join in the majority‘s declaration of procedural rights in this context. This is obviously a case which requires the striking of a balance between the employee‘s constitutional rights and the right of the government to govern efficiently. Frequently procedures achieve nothing but the guarantee that the taxpayers will pay and pay and pay for State employees who do not work. Procedural safeguards in the case of the temporary suspension will not achieve a more just result for the employer but may well do a disservice to the State.
RICHARD NEELY
JUSTICE