Opinion No. ( 1965 )

OPINION — AG — QUESTION 1: MAY THE BOARD SUBMIT THE RECORDED TESTIMONY TO THE ABSENT MEMBER AND LET HIS VOTE TO BREAK A TIE? (DISCHARGE OF A CLASSIFIED EMPLOYEE — APPEAL OF) — THE BOARD MAY NOT SUBMIT THE RECORDED TESTIMONY TO THE ABSENT MEMBER AND LET HIM VOTE THEREON TO BREAK THE TIE. QUESTION 2: IT IS IMPLICIT IN THE ACT THAT THE CHAIRMAN OF THE BOARD SHALL NOT VOTE EXCEPT TO BREAK A TIE, THUS ENABLING THE BOARD IN THE INSTANT SITUATION TO HAVE A THREE TO TWO VOTE? — NEGATIVE, NO AUTHORITY EXISTS UNDER THE PROVISIONS OF THE MERIT SYSTEM ACT, EITHER EXPRESSED OR IMPLIED, WHEREBY A MEMBER OF THE STATE PERSONNEL BOARD SHALL BE MADE A CHAIRMAN WHO WOULD VOTE ONLY IN CASE OF A TIE VOTE. QUESTION 3: IT IS NECESSARY OR PERMISSIBLE TO HOLD A NEW HEARING TO DECIDE THE APPEAL? — SAME REASON AS ABOVE, THERE IS NO EXPRESS OR IMPLIED AUTHORITY THEREFOR, THE ATTORNEY GENERAL ANSWERS YOUR THIRD QUESTION IN THE NEGATIVE; THAT IS, THE BOARD MAY NOT HOLD A NEW HEARING TO DECIDE THE APPEAL. QUESTION 4: DOES A TIE VOTE MEAN THE APPEAL IS SUSTAINED OR NOT SUSTAINED? — AS PREVIOUSLY INDICATED, WE CONSTRUE 74 O.S. 1961 833 [74-833] TO MEAN THAT THE ACTION OF AN APPOINTING AUTHORITY IN DISCHARGING, SUSPENDING, OR DEMOTING AN EMPLOYEE IS VALID AND BINDING UNLESS AND UNTIL SUCH EMPLOYEE SHOWS TO THE SATISFACTION OF A MAJORITY OF THE BOARD THAT SUCH ACTIONS WAS WRONGFUL. HERE THE EMPLOYEE IN THE QUESTION HAS NOT MET THE BURDEN PLACED UPON HIM AND HIS STATUS REMAINS THAT OF A DISCHARGED EMPLOYEE. CITE: 74 O.S. 1961 804 [74-804], 74 O.S. 1961 805 [74-805] (CHARLES OWENS)