Painter v. Graley , 84 Ohio App. 3d 65 ( 1992 )

I respectfully dissent from the majority's decision that Sections 2 and 11, Article I, Ohio Constitution are not sufficient public policy exceptions under Greeley v. MiamiValley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228,551 N.E.2d 981, when the freedom of expression at issue is the right to become a candidate and run for public office. In arriving at its decision the majority concludes that the right to run for public office must be a fundamental right in order to invoke the Greeley public policy exception to the employment-at-will doctrine. The majority's application of the fundamental rights doctrine to this case is an interesting concept, although it is misplaced.

In order to fully appreciate the majority's interpretation of the Greeley standard, it is necessary to understand theGreeley public policy exception to the employment-at-will doctrine. Basically, it is the granting of a cause of action in tort to those employees who are wrongfully discharged in violation of public policy. The Ohio Supreme Court held inGreeley that other public policy exceptions to the doctrine may exist and if so they are required to be of an import as serious as the statutory violation in the Greeley case.

Therefore, in applying the Greeley exception to this case, the standard is whether the public policy at issue is as serious as a statutory violation to warrant the application of the exception. The majority says that since the right to run for public office is not a recognized fundamental right, it is not as serious as a statutory violation and Greeley does not apply. For this position they cite the Ohio Supreme Court's decision inState ex rel. Keefe v. Eyrich (1986), 22 Ohio St.3d 164, 22 OBR 252, 489 N.E.2d 259. I submit that the proper application of the court's holding in Keefe is that "`[t]he right to become a candidate for state office, like the right to vote for the election of state officers * * * [citation omitted], is a right or privilege of state citizenship * * *.'" Id. at 165, 22 OBR at 253, 489 N.E.2d at 260. In Keefe, the court further states that for purposes of review under the United States Constitution the right to run for public office is not a fundamental right. This holding is not a restriction on Painter's case, which deals with review of the Ohio Constitution. In Keefe the Ohio Supreme Court recognizes the right to run for public office as a viable public policy concern when the court states that the right to run is a right of citizenship.

Besides the state's right to recognition, the right to run for public office has always been included in the right to speech, expression, and association. Mancuso v. Taft (C.A.1, 1973), 476 F.2d 187, 195-196; Vincent v. Maeras (S.D.Ill. 1978),447 F. Supp. 775, 777-779; Johnson v. Cushing (D.Minn. 1980),483 F. Supp. 608, 614. Consequently, the right to run for office under Sections 2 and 11, Article I, is a public policy concern sufficient to invoke the Greeley exception. A violation of the Ohio Constitution is as serious as the violation of a statute, and, as such, the Greeley public policy exception applies. Additionally, the United States Supreme Court has held that a public employee may redress a discharge when the discharge violates the employee's right to expression and association.Pickering v. Bd. of Edn. (1968), 391 U.S. 563, 88 S.Ct. 1731,20 L.Ed.2d 811; Mt. Healthy City Bd. of Edn. v. Doyle (1977),429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471; and Rankin v. McPherson (1987), 483 U.S. 378,107 S.Ct. 2891, 97 L.Ed.2d 315.

Regardless of the triplication of rights employed in this case, Painter established that she was fired because she exercised her right to run for office. When she was fired the city's action impinged on her right to speech, expression and association as guaranteed to her under the Ohio Constitution. Therefore, she may redress this wrongful violation in tort under the Greeley standard.

Hence, I would hold that the trial court properly granted summary judgment as well as correctly applied the balancing test of Pickering, which requires the weighing of the employee's rights and the city's interest in discharging her for exercising her rights. The city was required to establish that discipline, harmony, relationship between the incumbent councilmen, job performance or general enterprise suffered as a result of her candidacy in order to outweigh her rights of her expression and association. Since she was not at work during her candidacy and therefore not a policymaker, and since there was no prerestrictive policy forbidding her candidacy, the trial court's decision to grant summary judgment was correct.