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BREWER v. CITY OF SEMINOLE2014 OK 41326 P.3d 1143Case Number: 112292Decided: 05/13/2014THE SUPREME COURT OF THE STATE OF OKLAHOMACite as: 2014 OK 41, 326 P.3d 1143
RENEE BREWER, Plaintiff/Appellant,v.CITY OF SEMINOLE, 
Defendant/Appellee.

CERTIFIED QUESTIONS OF LAW FROM THE UNITED 
STATESDISTRICT COURT FOR THE EASTERN DISTRICT OF 
OKLAHOMA

¶0 Plaintiff, a probationary police trainee, filed suit in the United States 
District Court for the Eastern District of Oklahoma. Pursuant to the Uniform 
Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611, the Honorable 
James H. Payne, United States District Judge for the Eastern District of 
Oklahoma, certified three questions to this Court. We reformulate question one 
and answer questions one and two in the negative. Question three is not answered 
because it is dependent on an affirmative answer to question two.

CERTIFIED QUESTION ONE REFORMULATED AND 
ANSWERED;CERTIFIED QUESTION TWO ANSWERED;ANSWER TO 
CERTIFIED QUESTION THREE DECLINED.


Margaret McMorrow-Love and Matthew J. Love, The Love Law Firm, Oklahoma City, 
Oklahoma, for Defendant.1

TAYLOR, J.
¶1 The United States Court of District Court for the Eastern District of 
Oklahoma certified the following questions to this Court under the Revised 
Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611.


1. Whether a probationary police officer in a municipality that has 
    entered into a Collective Bargaining Agreement ("CBA") with a recognized 
    bargaining agent under the Fire and Police Arbitration Act, OKLA. STAT. tit. 
    11, § 51-101 ("FPAA"), who is excluded by the terms of the CBA from having 
    access to the grievance/arbitration process contained in the CBA in 
    connection with the termination of his/her employment due to his/her 
    probationary status, but who was also a member of the Police Pension and 
    Retirement Systems, OKLA. STAT. tit. 11, § 50-101 et seq., at the 
    time of the termination of his employment, has a right to be terminated only 
    for cause by OKLA. STAT. tit. 11, § 50-123(B) and, thus, is entitled to due 
    process in connection with the termination of his/her employment?2. 
    Whether the probationary police officer under the above scenario has a 
    statutory right to a hearing before a Police Pension Review Board as 
    provided for in OKLA. STAT. tit. 11, § 50-123(A)?13. If a probationary police officer has a 
    statutory right to a hearing before a Police Pension Board of Review under 
    by [sic] OKLA. STAT. tit. 11, § 50-123, must the officer request a hearing 
    and when must the officer request a hearing, or must the municipality offer 
    a hearing and when must the municipality offer a hearing?1 Compare city of Coweta v. Doughten, 
    2011 OK Civ App 113, 264 P.3d 135 (Division Four) 
    and White v. City of Del City, 2012 OK CIV APP 5, 270 P.3d 205 (Division 
  Two).
The United States District Court did not forward any record to this Court but 
provided a factual background in the certifying order.
¶2 We reformulate question one because answering it as written would require 
us to apply federal law. See 20 O.S.2011, § 1604(A)(3). Questions 
two and three remain unchanged. We reformulate question one as:


1. Whether title 11, section 50-123(B) of the 2011 Oklahoma Statutes 
    provides a right to a probationary police trainee to be terminated only for 
    cause if she is a member of the Police Pension and Retirement System as 
    defined by title 11, section 50-101(6) of the Oklahoma Statutes and is 
    employed by a municipality that has entered into a Collective Bargaining 
    Agreement (CBA) with a recognized bargaining agent under the Fire and Police 
    Arbitration Act, 11 O.S.2011, 
    §§51-101 to 51-113, but, due to her probationary status, is excluded by 
    the terms of the CBA from having access to the arbitration and grievance 
    process contained in the CBA in connection with the termination of her 
    employment.
¶3 We answer questions one and two in the negative. Because question three is 
dependent on an affirmative answer to question two, we decline to answer 
question three.
I. FACTUAL BACKGROUND AS PROVIDED BY THE CERTIFYING 
COURT
¶4 The plaintiff Renee Brewer (Brewer) was employed by the defendant City of 
Seminole (Seminole) from July 9, 2011, until January 4, 2012, when she was 
involuntarily terminated. At the time of her termination, Brewer was classified 
as a probationary police trainee; she was not covered by the terms of the 
collective bargaining agreement (CBA) between Seminole and the Fraternal Order 
of Police, Lodge No. 138;2 and she was a member of the Oklahoma Police Pension 
and Retirement System (OPPRS), 11 
O.S.2011, §§ 50-101 to 50-136.8.
¶5 Brewer filed an action in the United States District Court for the Eastern 
District of Oklahoma, asserting in part that she had a property interest in 
continued employment as a police trainee because she could only be terminated 
from her employment "for cause." Brewer alleged that she requested a hearing 
which Seminole denied.
II. BRIEFS
¶6 On November 6, 2013, we ordered the parties to file simultaneous briefs 
addressing only the issues raised by the certified questions. Brewer's argument 
is as follows. Title 11, section 50-123(A) provides: "No member [of OPPRS] may 
be discharged except for cause." Under section 50-101(6), a member includes "any 
person hired by a participating municipality who is undergoing police training 
to become a permanent police officer of the municipality." Because the 
definition of member includes probationary police trainees and Brewer is a 
member of OPPRS, she cannot be fired except for cause.
¶7 Seminole's argument is as follows. The legislature never intended to grant 
probationary employees the same employment rights as permanent employees as 
evidenced by the Fire and Police Arbitration Act (FPAA), 11 O.S.2011, §§ 51-101 to 51-113, 
and OPPRS. Section 50-123 does not apply when a municipality has entered into a 
collective bargaining agreement. Holding that a probationary employee can be 
terminated only for cause would reach the absurd results that a probationary 
employee is getting a review before a board that a municipality is exempt from 
establishing, that a probationary employee is entitled to more protections than 
a unionized employee, and that it would defeat the purpose of probationary 
status if section 50-123(B) applies to probationary employees.
III. ANALYSIS
¶8 This Court's recent decision in City of Jenks v. Stone, 2014 OK 11, 321 P.3d 179, is 
dispositive of certified questions one and two now before us. Like the 
probationary police trainee in City of Jenks, Brewer was classified as a 
probationary police trainee at the time of her discharge; she was a member of 
OPPRS; and she asserted she could only be terminated for cause. Id. ¶ 4, 
321 P.3d at 181. Also similar to the probationary police trainee in City of 
Jenks, Brewer alleged that she requested a hearing before a municipal review 
board pursuant to title 11, section 50-123(B)3 which the municipality denied. 
Id. ¶ 5, 321 P.3d at 181.
¶9 In City of Jenks, this Court held that title 11, section 50-123(B) 
does not provide a probationary police trainee, even though a member of OPPRS, 
any statutory rights in his employment, including a right to be terminated only 
for cause or a right to a post-termination hearing before a board of review. Our 
decision was not dependent on Jenks entering into a collective bargaining 
agreement with its permanent police officers pursuant to FPAA.
¶10 Pursuant to City of Jenks, we answer question one in the negative. 
Title 11, section 50-123(B) of the Oklahoma Statutes does not provide a right to 
a probationary police trainee to be terminated only for cause. Pursuant to 
City of Jenks, we answer question two in the negative. Title 11, section 
50-123(B) of the Oklahoma Statutes does not afford a probationary police trainee 
the right to a post-termination hearing. Because question three is dependent on 
question two being answered in the affirmative, we decline to answer question 
three.

CERTIFIED QUESTION ONE REFORMULATED AND ANSWERED; CERTIFIED QUESTION TWO 
ANSWERED; ANSWER TO CERTIFIED QUESTION THREE DECLINED.

Concur: Colbert, C.J.; Reif, V.C.J.; and Watt, Winchester, Edmondson, Taylor, 
Combs, and Gurich, JJ.
Concurs in Result: Kauger, J.

FOOTNOTES

1 Only 
those attorneys who have complied with Rule 1.5(a) of the Oklahoma Supreme Court 
Rules, 12 O.S.2011, ch. 15, app. 1, are listed on this opinion.

2 This 
statement is inconsistent with certified question one which states that Brewer 
was excluded by the terms of the CBA from having access to the grievance and 
arbitration process contained in the CBA. It is unclear whether the terms of the 
CBA exclude Brewer from coverage or cover Brewer but deny her access to the 
grievance and arbitration process. However, the discrepancy is not material to 
our decision.

3 Title 
11, section 50-123 of the Oklahoma Statute provides:
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. Appeals from decisions of 
said board of review may be taken in the manner provided for in this article, 
provided the provisions of this section relating to the board of review and 
discharge shall not apply to any municipality which has heretofore or 
hereinafter established by its charter 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.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2011 OK CIV APP 113, 264 P.3d 135, CITY OF COWETA v. DOUGHTENDiscussed 2012 OK CIV APP 5, 270 P.3d 205, WHITE v. CITY OF DEL CITYDiscussedOklahoma Supreme Court Cases CiteNameLevel 2014 OK 11, 321 P.3d 179, CITY OF JENKS v. STONECitedTitle 11. Cities and Towns CiteNameLevel 11 O.S. 50-101, DefinitionsCited 11 O.S. 51-101, Public Policy of Fire and Police Arbitration LawDiscussedTitle 20. Courts CiteNameLevel 20 O.S. 1604, Contents of Certification OrderCited










