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McClain v. Northwest Community Corrections Center6/19/2002
Employer and employee - Public employment - Department of Rehabilitation and Correction - Community-based correctional facility - Termination of employment.
Submitted March 13, 2002
On Order from the United States District Court for the Northern District of Ohio, Western Division, Certifying Questions of State Law, No. 3:00CV-7648.
. The United States District Court for the Northern District of Ohio, Western Division, has certified the following questions to us:
. "(1) Is an employee of a judicial corrections board hired to the staff of a community based correctional facility an at-will employee who serves at the pleasure of the Board?"
. The court declines to answer this certified question.
. "(2) Is an employee of a judicial corrections board hired to staff a community based correctional facility, who is subject to a 120 day initial review period pursuant to Board policy, entitled to `due process' in the termination of her employment pursuant to O.A.C. Section 5120:1-14-03(P) and R.C. Section 5120.111?"
. The court answers certified Question No. 2 in the affirmative.
Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.
Douglas and F.E. Sweeney, JJ., concur separately.
Lundberg Stratton, J., dissents.
Douglas, J., concurring.
. I concur in the judgment of the majority. I would, however, also answer question No. 1, and I would answer it in the negative.
F.E. Sweeney, J., concurs in the foregoing concurring opinion.
Lundberg Stratton, J., dissenting.
. Because I would find that an employee of a judicial corrections board hired to staff a community-based correctional facility is an at-will employee who serves at the pleasure of the board and is not entitled to due process in the termination of her employment pursuant to Ohio Adm.Code 5120:1-14-03(P) and R.C. 5120.111, I respectfully dissent.
. Certified Question No. 1 asks: "(1) Is an employee of a judicial corrections board hired to the staff of a community based correctional facility an at-will employee who serves at the pleasure of the Board?" I would answer this question in the affirmative.
. Certified Question No. 2 asks: "(2) Is an employee of a judicial corrections board hired to staff a community based correctional facility, who is subject to a 120 day initial review period pursuant to Board policy, entitled to `due process' in the termination of her employment pursuant to O.A.C. Section 5120:1-14-03(P) and R.C. Section 5120.111?" I would answer this question in the negative.
. R.C. 2301.55(A)(1) provides that the board "shall appoint and fix the compensation of the director of the facility and program and other professional, technical, and clerical employees who are necessary to properly maintain and operate the facility and program." The board becomes, in essence, the employer as the operator of the facility. R.C. 5120.112(C)(3) requires that staff are to be considered employees of the facility and program. No statute creates a classified position for such employees; they serve at the discretion of the board.
. However, in the process of drafting administrative rules, the Department of Rehabilitation and Correction erroneously added "due process" to the Administrative Code provisions to alter the state's at-will employment policy. Due process implies protections that are not required by law in a probationary period for an at-will employee. R.C. 5120.111 grants rule-making authority regarding community-based correctional facilities to the Ohio Department of
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