© Christy B. Bishop, Esq.
Public-sector employees face an entirely different scenario than private-sector employees. For example, if you are an employee in the classified civil service, then you have what is known as a property interest in your continued employment. This means that public employers must adhere to minimal due process before they can terminate, demote, remove or suspend you from your employment. This is a Fourteenth Amendment right under the United States Constitution. Private employees do not enjoy this protection.
What is this property interest? Well, it’s not like owning a car or a home. You can’t sell it or transfer it to another person. No title is involved. But, it has economic value to the holder, i.e. the employee, in terms of value. So it is really what is referred to as a “quasi-property” right. In this context, “quasi” is another way of saying “really close, but not quite — but good enough to merit Constitutional protection.”
Classified employees can seek appellate review of any employment decision of discharge, removal, suspension, or demotion through the State Personnel Board of Review (SPBR) in Columbus. The federal counterpart is the Merit Systems Protection Board in Washington, D.C. (MSPB).
Moreover, you have much greater freedom to speak on issues relating to public interest, such as political discourse. No public employer can retaliate against you for your support of an opposition candidate, for example, or because you oppose or support a war. This is a First Amendment right under the United States Constitution available only to public employees.
Another advantage to being a public employee is that during the litigation process, it is generally easier to obtain documents, as most of them are already public records under both federal and state laws. See article, “How to Do a Public Records Request” below, for more information.
There are some downsides to public employment, however. If you are a state employee, you cannot sue the state for overtime and minimum wage claims arising under some federal statutes like FLSA (excluding the Equal Pay Act). You also cannot file an action for disablity or age discrimination under the ADA and the ADEA, if you are seeking damages; you can only obtain prospective relief such as reinstatement. These preclusions are due largely to recent deciions by the U.S. Supreme Court in its ongoing push for “states’rights.” This is referred to as “sovereign immunity” and was done by the Court actually reading language into the Eleventh Amendment that just is not there. So much for strict construction and judicial activism. These cases had strong dissents by 4 justices.
Sovereign immunity only applies to state employees. If you are an employee of, or employed, in a county, municipality, village or any other public entity, you can file under all of these federal statutes without facing an Eleventh Amendment argument.
Also, damages for the public employee may be limited. Punitive damages are not available against public employers as a matter of public policy. In Ohio, for claims arising pursuant to statutes enacted after 1973 (when the Court of Claims Act was enacted), the Court of Claims is the exclusive forum for bringing state claims against the State of Ohio. All claims subjected to Court of Claims’ jurisdiction have a two-year statute of limitations and no jury trial. The court is physically located in Columbus — in the beautiful Supreme Court building on Front Street right on the Olentangy River.
For statutes enacted prior to 1973, if the statute identifies the state of Ohio as being within the scope of the legislation, then the Court of Claims does not have exclusive jurisdiction and the law developed under the statute applies.
Finally, your status as a public employee may impact the ability to settle your case or, if you win, might subject you to appeals where a private employer might not be willing to risk it. The reason? The most likely reason is that public entities are not personally responsible for paying the judgment. Rather, it falls on taxpayers. As a result, public entities (who, ironically, are sworn to uphold the law) will more freely discriminate and mistreat employees, and will feel free to appeal the case for the same reason.
The public employee who has a property interest in his or her job should nonetheless pursue the wrongful treatment of them by public employers. It is important for public policy and for the integrity of the system in general.
Drafting the Public Records Request
Most states, including Ohio, as well as the federal government, have “sunshine” or open-records laws that require “public scrutiny” of many records generated by tax-funded public operations. This includes employment records for the most part.
The relevant law is encoded in Ohio’s Revised Code, which is a collection of statutes forbidding certain behavior and permitting enforcement through private or public means (i.e., a lawsuit or criminal prosecution). Ohio’s “open records” laws provide both “forbidding” statutes and “enforcement” statutes. The law is numerical and each “Chapter” deals with a family of laws, such as “public records,” or “discrimination” (for example, R.C. 149.01, et seq. for public records).
Any citizen can contact a public agency and demand access to the records kept or maintained by the agency. If the documents are truly public, the agency cannot refuse subject having to pay the person seeking the documents and perhaps additional penalties. Such requests can be particularly handy for public employees seeking information relative to their employment situation.
Regardless of whether they are in litigation or administrative proceedings, public employees can obtain public information at any time, just as any other inquirer can (newspapers are common sources of inquiries — and legal battles over disclosure). However, employees can use this tool to obtain not just general public information but also that that which is intimately connected to the employee’s own job situation; this includes wages (yours and other employees), performance history, the supervisor’s history, etc. Or maybe you’re a disgruntled member of a public committee or PTA and want information about the, say, school board. Regardless, a public records request is probably a good idea.
Drafting such requests is easy, though they should be done with definite goals in mind; i.e., there are ideal ways in which to approach such requests. Each request will use universal language and tenor in general, but the items requested must be carefully constructed and well-identified. Otherwise, you give the agency avenues to fight or uphold your requests (“too vague,” etc.) or otherwise “fail” to produce the information because you did not ask for it just right.
There are certain things you must present on any request: One, you need to properly identify the public agency. Two, be sure to identify yourself and provide full contact information. Three, double-check that your request is properly dated. Four, be sure to specify a reasonable date (perhaps two weeks) by which the public entity must comply with your request.
SAMPLE REQUEST COMING SOON
