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CITY OF JENKS v. STONE2014 OK 11321 P.3d 179Case Number: 111223Decided: 02/25/2014THE SUPREME COURT OF THE STATE OF OKLAHOMACite as: 2014 OK 11, 321 P.3d 179
CITY OF JENKS, OKLAHOMA, an Oklahoma Municipality, 
Plaintiff/Appellee,v.TIMOTHY E. STONE, II, an individual, 
Defendant/Appellant.

ON CERTIORARI FROM THE COURT OF CIVIL 
APPEALS,DIVISION III

¶0 Plaintiff, City of Jenks, Oklahoma, filed a petition for declaratory 
judgment in the District Court in Tulsa County, Oklahoma. In the petition, the 
plaintiff sought a declaration that the defendant, a probationary police trainee 
employed by plaintiff, was an at-will employee and that 11 O.S.2011, § 50-123, does not 
require the plaintiff to provide a cause for the defendant's dismissal or 
provide him with a board of review hearing. The district court found that 
plaintiff met the exception to § 50-123's requirement that it establish a board 
of review because it had entered into a collective bargaining agreement and that 
defendant was an at-will employee who was not entitled to a post-termination 
hearing under § 50-123, the collective bargaining agreement, or general 
principles of due process. The Court of Civil Appeals affirmed. This Court 
previously granted certiorari.

COURT OF CIVIL APPEALS' OPINION VACATED;DISTRICT 
COURT AFFIRMED.

Stephen L. Oakley, Jenks City Attorney, Jenks, Oklahoma, for 
plaintiff/appellee.James R. Moore, Jarrod A. Leaman, Douglas D. Vernier, 
James R. Moore & Associates, Oklahoma City, Oklahoma, for 
defendant/appellant.


TAYLOR, J.
I. ISSUES
¶1 The question before this Court is whether title 11, section 50-123(B) 
gives a probationary police trainee who is a member of the Oklahoma Police 
Pension and Retirement Systems (OPPRS), see 11 O.S.2011, §§ 50-101 to -136.8, a 
right to be terminated only for cause and a right to a post-termination hearing 
before a board of review. We answer the question in the negative.
II. PROCEEDINGS BELOW
¶2 The City of Jenks (Jenks) filed a petition for declaratory judgment, 
attaching a collective bargaining agreement (agreement) between it and the Jenks 
Fraternal Order of Police, Lodge 146. Jenks alleged that it was entitled to a 
declaration that title 11, section 50-123 does not require it to provide the 
defendant, Timothy E. Stone II (Stone), with a post-termination hearing or to 
give him cause for terminating his employment. Stone filed a motion to dismiss 
for failure to state a claim. Jenks then filed a motion for summary judgment, 
asserting as facts that (a) Stone was on probation when he was discharged from 
his employment effective March 1, 2012, (b) Jenks and the Fraternal Order of 
Police, Lodge 146 had an agreement outlining the grievance and arbitration 
rights of full-time, permanent police officers, (c) Stone requested a review 
board hearing under title 11, section 50-123 of the 2011 Oklahoma Statutes, and 
(d) Stone is not entitled to a hearing. Stone did not refute the facts but 
maintained that he is entitled to a hearing before a board of review under 
section 50-123(B) and because he is a OPPRS member.1
¶3 The district court denied Stone's motion to dismiss and granted summary 
judgment in Jenks' favor. The district court found that Stone was an at-will 
employee with no property rights in continued employment with Jenks. The 
district court also found that Jenks was exempt from offering Stone a board of 
review hearing by virtue of the agreement. Stone appealed. The Court of Civil 
Appeals found that Jenks was exempt from section 50-123 because it had entered 
into a collective bargaining agreement. This Court granted the writ of 
certiorari.
III. FACTS
¶4 The facts are undisputed. Stone was employed by Jenks from August 29, 
2011, until March 1, 2012, when Jenks terminated his employment. At the time of 
his discharge, Stone was a probationary police trainee; he was not covered by 
the collective bargaining agreement between Jenks and the Fraternal Order of 
Police, Lodge No. 146; the agreement's grievance and arbitration process was 
unavailable to him;2 and he was a member of the OPPRS.
¶5 After Stone was discharged, he requested a hearing before a municipal 
review board under title 11, section 50-123. Jenks denied the request, 
maintaining that section 50-123 did not require it to provide Stone with a 
hearing before a review board.
IV. STANDARD OF REVIEW
¶6 Summary judgment settles only questions of law. Pickens v. Tulsa 
Metropolitan Ministry, 1997 OK 
152, ¶ 7, 951 P.2d 1079, 
1082. The standard of review of questions of law is de novo. Id. 
Summary judgment will be affirmed only if the appellate court determines that 
there is no dispute as to any material fact and that the moving party is 
entitled to judgment as a matter of law. Id. Summary judgment will be 
reversed if the appellate court determines that reasonable men might 
reach different conclusions from the undisputed material facts. Runyon v. 
Reid, 1973 OK 25, ¶15, 510 P.2d 943, 946.
V. ANALYSIS
¶7 An employee who can establish that he has a property right in his 
employment is protected by the Due Process Clause of the Fourteenth Amendment to 
the United State Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 
U.S. 532, 538 (1985). Property interests are not created by the Due Process 
Clause but "are created and their dimensions defined by existing rules or 
understandings that stem from an independent source such as state-law rules or 
understandings that secure certain benefits and that support claims of 
entitlement to those benefits." Bd. of Regents of State Colleges v. Roth, 
408 U.S. 564, 577 (1972). "To have a property interest in a benefit, a person 
clearly must have more than an abstract need or desire for it. He must have more 
than a unilateral expectation of it. He must, instead, have a legitimate claim 
of entitlement to it." Id. Stone contends that title 11, section 
50-123(B) provides him with a claim of entitlement, that is a property interest, 
in his continued employment.
¶8 Effective 1937, the Oklahoma Legislature enacted the Police Pensions Act, 
1936 Okla. Sess. Laws 159-166 (ch. 33, §§ 1 - 24), authorizing a city or town 
employing two or more police officers to establish a pension and retirement 
system with contributions to be paid by the police officer and the city or town. 
Id. at 160 (§ 2). In 1977, the Oklahoma Legislature moved the management 
of the municipal systems to a state board. 1977 Okla. Sess. Laws 901-919 (ch. 
256, §§ 50-101 to - 308).
¶9 In 1980, the Oklahoma Legislature created OPPRS. 1980 Okla. Sess. Laws 
1093-1115 (ch. 356, §§ 1 - 41) (codified at 11 O.S.Supp. 1980, §§ 50-101 to 
-135). This enactment merged the local municipal police retirement systems into 
a unified state police retirement system. Id. Making only minor changes 
not relevant to our analysis, the Legislature retained title 11, section 50-123, 
which was originally enacted in the 1977 legislation. Section 50-123 remains 
unchanged since 1980.
¶10 Title 11, section 50-123 of the 1981 Supplement and the 2011 Oklahoma 
Statutes provides, in part:


A. The governing body of every participating municipality, except 
    municipalities which have provided for a civil service board of review or 
    merit board, or have negotiated a contract covering discharge with their 
    members to hear such appeals, shall establish a board of review to hear 
    appeals concerning the discharge of members. . . .
. . .
B. No member may be discharged except for cause. Any member who is 
    discharged may appeal to the board of review herein provided. . . 
  .
¶11 The last significant amendments to the relevant provisions of the OPPRS 
Act occurred in 1995. See 1995 Okla. Sess. Laws 632-635 (ch. 173, §§ 1 - 
8). Before the 1995 amendments, member was defined as "all eligible officers of 
a participating municipality." 11 
O.S.1991, § 50-101(7). The 1995 amendments added language to the definition 
of member and to the eligibility requirements to specifically include "[a]ny 
person hired by a participating municipality who is undergoing police training 
to become a permanent police officer of the municipality." 1995 Okla. Sess. Laws 
at 632 (§ 1) (codified at 11 
O.S.Supp.1978, §§ 50-101(7), 50-112(A)).3 A person undergoing police training is 
a probationary trainee such as Stone.4
¶12 The plaintiff argues that section 50-123 is unambiguous, and the Court of 
Civil Appeals has split on its meaning.5 Because we find section 50-123 is ambiguous on the 
issues presented, we must determine legislative intent. Rogers v. Quiktrip 
Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859.
¶13 Two principles serve to inform our construction of title 11, section 
50-123. The first is that Oklahoma follows the at-will employment doctrine. 
See Burk v. K-Mart Corp., 1989 
OK 22, ¶ 6, 770 P.2d 24, 26. 
The at-will employment doctrine allows an employer to "discharge an employee for 
good cause, for no cause or even for cause morally wrong, without being guilty 
of legal wrong." Id.; Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 6, 878 P.2d 360, 363 ("Employers can 
discharge at-will employees without recourse, in good or bad faith, with or 
without cause.")6
¶14 Second is the definition and the meaning of probation in the employment 
context. A probationary term is a trial period when an employee must prove that 
he is capable of performing the job duties before becoming a permanent employee. 
Black's Law Dictionary 1082 (5th ed. 1979). The Highway Safety Code, 47 O.S.2011, § 2-105(C)(1), defines 
the probationary period for Cadet Highway Patrolmen and Probationary 
Communications Dispatchers as a period when "the employee may be terminated at 
any time and for any reason at the discretion of the Commissioner." A 
probationary employee is an at-will employee: probationary trainees are not 
permanent officers and "lack the full panoply of employment rights enjoyed by 
those who have completed their initial training period." Fraternal Order of 
Police, Lodge 108 v. City of Ardmore, 2002 OK 19, ¶ 16, 44 P.3d 569, 573.
¶15 Keeping these premises in mind, we must determine whether, when it 
enacted title 11, section 50-123, the Oklahoma Legislature intended to create an 
exception to the at-will employment doctrine and to a municipality's authority 
to place a police trainee on probation or whether it intended only to allow the 
trainees to participate in the retirement system.7 In determining legislative intent, 
this Court utilizes rules of statutory construction. Lumber 2, Inc. v. 
Illinois Tool Works, Inc., 2011 
OK 74, ¶ 8, 261 P.3d 1143, 
1146. A statute will be given a reasonable and sensible construction: one that 
will reconcile its provisions and avoid inconsistences and absurdities. 
Zaloudek Grain Co. v. Compsource Oklahoma, 2012 OK 75, ¶ 7, 298 P.3d 520, 523. The legislative 
intent may be expressed in an enactment's title. Lumber 2, 2011 OK 74 at ¶ 8, 261 P.3d at 
1146. Where there is authority to speak, legislative silence may indicate its 
intent. Zaloudek Grain Co., 2012 OK 75 at ¶ 7, 298 P.3d at 
523.
¶16 In applying the rules of statutory construction, we may look to the title 
of the 1995 act that added trainees to the definition of members. The 1995 
enactment was titled "Oklahoma Police Pension and Retirement 
System-Participation by Trainees." The title stated that it was an act 
"modifying provisions with respect to persons participating in retirement 
system," among other things, none of which supports Stone's position that the 
Legislature intended to give probationary trainees rights in their employment.8 The title shows 
the Legislature intended to allow probationary trainees to become members of the 
retirement and pension system, but there is no express or implied intent to give 
them rights in their employment. The negative implication then is that, when the 
Legislature allowed probationary trainees to participate in the retirement 
system, it did not intend to also create rights in their employment.
¶17 We next look at the inconsistencies and absurdities which Stone's 
construction would create. Title 11, section 50-123(A) requires each 
municipality participating in OPPRS to establish a board of review to hear 
appeals regarding the discharge of members. If a municipality has entered into a 
collective bargaining agreement covering the discharge of members, then it is 
exempt from establishing a board of review.9 The Fire and Police Arbitration Act 
(FPAA),11 O.S.2001, §§ 51-101 to 
-113, gives the right to collective bargaining to permanent members of paid fire 
and police departments only but not to probationary members, i.e., 
trainees. 11 O.S.2011, §§ 
51-102(1), 51-103(A). To read members in section 50-123(A) as extending 
beyond permanent officers to include probationary trainees would strip the 
provision of any meaning. Instead, because the FPAA reserves the collective 
bargaining rights to permanent officers only, the term "members" as used in 
section 50-123(A) must be read to exclude probationary trainees. To read it 
otherwise would create an absurd result. It is uncontested that Jenks has 
entered into a collective bargaining agreement which meets section 50-123(A)'s 
exemption requirements and, therefore, is exempt from establishing a board of 
review.
¶18 We next turn to section 50-123(B), particularly the language relied on by 
the plaintiff: "No member may be discharged except for cause. Any member who is 
discharged may appeal to the board of review herein provided." Because Jenks is 
exempt from establishing a board of review, section 50-123(A) does not require 
Jenks to provide a board of review. It would be absurd to construe section 
50-123(B) as allowing an appeal to a non-existent, non-required board of review. 
The only way to reconcile subsections 50-123(A) and 50-123(B) is to restrict the 
term member to permanent officers. This construction is consistent with the 
rule, "[w]hen the provisions of a statute assign one meaning to a term, its 
definition will apply in every other instance in which the same term is found 
anywhere else in the compilation." Fraternal Order of Police, Lodge 108 v. 
City of Ardmore, 2002 OK 19, 
¶ 14, 44 P.3d 569, 573; 
see 25 O.S.2011, § 2. 
Since the term "members" as used in section 50-123(A) excludes probationary 
trainees, so must the term "members" exclude probationary trainees when it is 
used in section 50-123(B).
¶19 To find as plaintiff advocates would also be inconsistent with the 
statutes governing other law enforcement trainees. Title 47, section 
2-105(C)(1), requires a Cadet Highway Patrolman or Probationary Communications 
Dispatcher to serve a twelve month probationary period with a possible three 
month extension. "During such probationary period, the employee may be 
terminated at any time and for any reason at the discretion of the 
Commissioner." 47 O.S.2011, 2-105(C)(1). Only after completion of the 
probationary period and becoming a permanent employee does the statute require 
the employee be given cause for termination or removal. Id. Agents of the 
Oklahoma State Bureau of Narcotics and Dangerous Drugs Control must serve a 
one-year probationary period before being placed on permanent status. 63 
O.S.2011, § 2-103(B)(3). Deputy sheriffs and detention officers for counties 
with a population of five hundred thousand must serve a five-year probationary 
period, and, only after serving the probationary period, are they given the 
right to be discharged for cause. 19 
O.S.2011, § 547. It would be inconsistent with the legislative policy to 
give municipal probationary trainees the right to be discharged only for cause 
and to a post-termination hearing while withholding the same rights from state 
and county law enforcement trainees.
¶20 Stone relies on City of Durant v. Cicio, 2002 OK 52, ¶ 23, 50 P.3d 218, 222, in which this 
Court determined that "section 50-123 protects a member's right to continue in 
his employment in the absence of showing of cause, and the board of review has 
the authority to pass on the merits of the discharge decisions." The City of 
Durant had not entered into a collective bargaining agreement, and it appears 
that the policeman in Cicio was a permanent officer. Therefore, 
Cicio is distinguishable.
VI. CONCLUSION
¶21 All reasoning leads to the conclusion that the Legislature did not intend 
to give probationary police trainees the right to be fired only for cause and a 
post-termination hearing before a board of review. When the Legislature enacted 
the 1995 amendment redefining "member" in section 50-101(6), it must have 
overlooked the impact the new definition would have on section 50-123(B). This 
resulted in an ambiguity as to whether a probationary police trainee could be 
fired without cause and without a right to post-termination hearing. We resolve 
that ambiguity by finding that the term "member" as it is defined in section 
50-123 does not include a probationary police trainee.
¶22 Section 50-123 does not give Stone, a probationary trainee at the time of 
his discharge, any rights in his employment and does not entitle him to a board 
of review hearing. The Court of Civil Appeals' opinion is vacated; the district 
court's judgment is affirmed.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT 
AFFIRMED.

ALL JUSTICES CONCUR.

FOOTNOTES

1 In his 
petition for certiorari, Stone does not argue that he was entitled to a 
pre-termination hearing under the Due Process Clause of the 14th Amendment to 
the United States Constitution. Rather, he seeks a post-termination board of 
review hearing under title 11, section 50-123.

2 At 
Article I, the agreement provides: "The employer recognizes the Lodge as the 
sole and exclusive Bargaining Agent for all commissioned permanent paid members 
of the Police Department, excluding the Chief of Police, an Administrative 
Assistant, probationary employees, civilian or non-sworn employees, 
clerical/administrative employees, part-time employees, and Reserve Police 
Officers."
The grievance and arbitration process set out in the agreement starts with a 
discussion between the police chief and the employee and ends with 
arbitration.

3 Title 
11, section 50-112(A) of the 2011 Oklahoma Statutes provides:
All persons employed as full-time duly appointed or elected officers who are 
paid for working more than twenty-five (25) hours per week or any person hired 
by a participating municipality who is undergoing police training to become a 
permanent police officer of the municipality shall participate in the System 
upon initial employment with a police department of a participating 
municipality. . . .

4 In 
Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, 44 P.3d 569, the issue was whether 
two probationary police trainees who were terminated were permanent members of 
the municipality's police department for purposes of invoking the grievance and 
arbitration rights under the terms of the Fire and Police Arbitration Act 
(FPAA), 11 O.S.2001, §§ 51-101 to 
-113. Because the FPAA did not define members, this Court turned to the OPPRS 
Act for guidance. In City of Ardmore, this Court recognized that with the 
1995 amendments, section 50-123 recognized two distinct classes: permanent 
officers and probationary trainees. Id. ¶ 13. We determined that one who 
is "undergoing police training to become a permanent police officer of [a] 
municipality" is a probationary trainee. Id.

5 The 
Court of Civil Appeals divisions have reached different results on the meaning 
of title 11, section 50-123. The Court of Civil Appeals ruled in the present 
case (Division III) and in City of Coweta v. Doughten, 2011 OK CIV APP 113, 264 P.3d 135 (Division IV), that 
section 50-123(B) does not create a right to be terminated for cause only or a 
right to a post-termination hearing for probationary employees. In White v. 
City of Del City, 2012 OK CIV 
APP 5, 270 P.3d 205 
(Division II) and O'Dell v. City of Tulsa, OK, 104,639, slip op. (Okla. 
Civ. App. Aug. 24, 2007) (Division I), the Court of Civil Appeals ruled that a 
probationary trainee had a right to a post-termination hearing under section 
50-123(B).

6 We have 
recognized a limited public policy exception to the at-will employment doctrine, 
known as a Burk tort. Burk, 1989 OK 22 at ¶ 21, 770 P.2d at 
29.

7 Before 
the 1995 enactment, only a "duly appointed and sworn full-time officer" could 
participate in the system. See 11 O.S.1981, §§ 50-101, 
50-112.

8 The 
title to the 1995 act, provides in its entirety:
An Act relating to the Oklahoma Police Pension and Retirement System; 
amending 11 O.S.1991, Sections 50-101, as last amended by Section 3, Chapter 84, 
O.S.L. 1994, 50-104.2, 50-111.1, as last amended by Section 5, Chapter 2, O.S.L. 
1994, 50-112, as amended by Section 4, Chapter 390, O.S.L. 1992, 50-115 and 
50-127 (11 O.S.Supp. 1994, Sections 50-101, 50-111.1 and 50-112), which relate 
to administration of the Oklahoma Police Pension and Retirement System; 
modifying definitions; adding definition; modifying provision related to office 
facilities; modifying terminology with respect to withdrawal of accumulated 
contributions; modifying provisions with respect to persons participating in 
retirement system; modifying provisions related to physical-medical 
examinations; providing for offset of benefits based upon preexisting 
conditions; modifying provisions related to withdrawal from retirement system; 
providing an effective date; and declaring an emergency.
1995 Okla. Sess. Laws 632-635 (ch. 173).

9 A 
municipality is also exempt from establishing a board of review if it has 
"provided for a civil service board of review or merit board," 11 O.S.2011, § 50-123(A). A 
municipality whose charter provides for a "civil service or merit system 
pertaining to the appointment and discharge of members and an independent board 
or commission having authority to hear actions involving the discharge of 
members" is exempt from section 50-123's provisions relating to the board of 
review and discharge. Id. at 50-123(B).


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