Bennett v. Oklahoma Merit Protection Com'n

Bennett v. Oklahoma Merit Protection Com'n
1991 OK 99
849 P.2d 391
64 OBJ 954
Case Number: 77766
Decided: 10/02/1991
Supreme Court of Oklahoma

J.B. BENNETT, PETITIONER,
v.
THE OKLAHOMA MERIT PROTECTION COMMISSION, AND JAMES L. HOWARD, EXECUTIVE DIRECTOR OF THE OKLAHOMA MERIT PROTECTION COMMISSION, RESPONDENT.

ORDER

OPALA, Chief Justice.

¶1 Original jurisdiction is assumed. Respondents, Oklahoma Merit Protection Commission and its director, James L. Howard, are ordered to comply with 74 O.S.Supp. 1986 § 841.7 , and hold a hearing in J.B. Bennett v. Oklahoma Tourism Commission, Case No. (MPC) 91-395, within thirty (30) days from the date of this order. Section 841.7 is the applicable statute, not section 841.15. Section 841.7 does not give the director the authority to dismiss the case after he has conducted an investigation and determined that the case is meritless. Section 841.7 states: "The Commission shall set such matters down for hearing within thirty (30) days after the filing of a request for review." The word "shall" is mandatory unless a contrary intent appears. Citicorp Sav. and Trust Co. v. Banking Bd., 704 P.2d 490 (Okla. 1985). We can find no contrary intent in the statutes. Therefore, we hold that section 841.7 requires that the Commission conduct a hearing when an aggrieved employee or former employee files a request for such a hearing pursuant to that section.

¶2 Mandamus to require the respondents to hold a hearing in J.B. Bennett v. Governor David Walters, Case No. (MPC) 91-405 is denied. The Oklahoma Merit Protection Commission does not have jurisdiction over the Governor. Okla. Const. art. VIII, § 1.

¶3 HODGES, V.C.J., and LAVENDER, KAUGER and SUMMERS, JJ., concur.

¶4 SIMMS, J., concurs in paragraph 2 of the Orders, dissents from paragraph 1.

¶5 DOOLIN, J., concurs in part 2, dissents from part 1.

¶6 HARGRAVE, J., joins SIMMS, J.

¶7 ALMA WILSON, J., dissents to Part I and concurs in part II.