COLUMBUS - Tomorrow, former Ohio Supreme Court Justice Andy Douglas starts what he calls a new career - head of the state s largest public employees union.
Mr. Douglas, the 71-year-old former Republican Toledo city councilman, becomes the executive director of the Ohio Civil Service Employees Association, which has 37,000 members.
“My chief goal is to protect the rights of all state workers, negotiate living wages, and help the state through its employees set good policy to serve the taxpayers,” he said last week.
But some legal observers say Mr. Douglas new job is not a new role for a pro-labor judge who could not run for re-election in 2002 because he had reached the mandatory retirement age.
“He has favored special-interest groups and been interested in policy questions his whole career as a justice,” said David Mayer, a professor of law and history at Capital University in Columbus. “Now he is working for one of those groups.”
A Blade analysis found that in 18 years on Ohio s highest court, Justice Douglas voted on nine cases with written decisions in which his new employer, OCSEA, was involved as a party or as a friend of the court.
He sided with the union or its members in all but one case. In that one case, Justice Douglas in 1987 dissented in a 6-1 decision in which OCSEA, Hamilton County officials, and the State Employment Relations Board filed a joint motion to dismiss a case, saying it was moot. Justice Douglas wrote that the court needed to resolve whether SERB decisions regarding representation election disputes could be appealed.
In 1991, Justice Douglas dissented from a 5-2 decision in which the Supreme Court upheld an appeals court ruling that said an arbitrator had exceeded his authority by reinstating a state employee.
The employee had been fired for verbally abusing and putting a mentally retarded person into a headlock at a state home for the mentally retarded and developmentally disabled in Toledo.
Justice Douglas sided with OCSEA, which had filed a grievance challenging the employee s firing. He said the state and OCSEA had given the arbitrator the power to reinstate the state employee if it was determined she was “terminated without just cause.”
“I believe that any proven abuse of a patient by an employee should result in termination of employment,” wrote Justice Douglas in his dissent, joined by Justice A. William Sweeney.
“However, while I would have ruled differently, had I been the arbitrator, that does not give me the right to substitute my judgment for that of the arbitrator,” Justice Douglas added.
In 2001, Justice Douglas wrote the decision siding with an OCSEA member, prison guard Darrold R. Clark, who was held hostage and beaten by inmates in the 1993 riot at the state prison in Lucasville.
The state had argued that temporary total disability payments to Mr. Clark under Ohio s workers compensation system should be reduced because he had also received hostage leave under his union contract.
In decisions from 1985 to 2002, Justice Douglas voted on 19 cases with written decisions in which the American Federation of State, County, and Municipal Employees was either a party or a friend of the court. Justice Douglas sided with AFSCME in 15 of 19 decisions.
Justice Douglas joined in a unanimous decision in 2002 in which the court ordered a Cincinnati area school district to reinstate a school bus mechanic whose job was eliminated when a private firm was hired to do the work. In 2001, the court also ruled unanimously that the Springfield school district improperly had “outsourced” school bus transportation jobs to a private firm.
In 1984-1985, OCSEA competed with the National Union of Health Care Employees District 1199 to be the bargaining representative for employees of a state home for the mentally retarded and developmentally disabled in Wooster.
OCSEA s sister union, AFSCME Ohio Council 8, won the battle, after writing and distributing a leaflet signed by the head of the union at the state home in Wooster that joined Council 8. The leaflet said 1199 organizer Larry Dale “lied, promised to help, left us.”
In 1986, Mr. Dale sued OCSEA, AFSCME, and two employees at the state home for the mentally retarded, alleging defamation. A jury returned a verdict for Mr. Dale against AFSCME and awarded $1,000 in nominal and $14,000 in punitive damages. An appeals court affirmed.
In 1991, Justice Douglas joined the 6-1 decision that reversed the appeals court. The majority ruled that Larry Dale, the 1199 District organizer, had to prove that OCSEA and AFSCME had shown “actual malice” in the leaflet - and Mr. Dale had failed to do so.
On the other hand, Justice Douglas did not side with AFSCME in a significant case in 1993.
In 1984, AFSCME wanted to represent some workers at the Ohio Historical Society. AFSCME filed a petition for representation election with SERB.
After the historical society took legal action to block the petition, arguing that it is not a “public employer” under state law and not subject to the state collective bargaining law, a trial court and an appeals court ruled in favor of the historical society.
When the case reached the Supreme Court, attorneys for the historical society asked Justices Douglas, Alice Robie Resnick, and A. William Sweeney to recuse themselves.
The reason: The trio had received campaign contributions from AFSCME. The historical society s motion said Justice Douglas s 1990 campaign had received $40,000 from AFSCME, Justice Resnick s 1988 campaign had received $17,500, and Justice A. William Sweeney s campaign also that year received $12,500. (A review of a computerized database compiled by the Secretary of State s office dating to 1992 showed that OCSEA s political action committee contributed $5,000 to Justice Douglas re-election campaign on April 3, 1996.)
Justice Douglas and his two colleagues rejected the historical society s motion to recuse themselves, saying that campaign contributions did not affect their decisions.
Justice Douglas explained why he agreed in the court s 4-3 majority decision that the historical society is not a “public employer.”
Justices Resnick, A. William Sweeney, and Francis Sweeney dissented: “Even if one accepts the somewhat dubious assumption that the Society is a private corporation, the Society is clearly a public employer as that term is used in [state law],” Justice Resnick wrote in the dissent.
In his 18 years on the Supreme Court, Justice Douglas pushed for a check on the power of the State Employment Relations Board. The three-member board appointed by the governor oversees the negotiation and settlement of disputes between public employees and employers.
By a 6-1 vote in 1987, the Supreme Court approved a joint motion to dismiss a case as moot sought by OCSEA, the director of Hamilton County welfare department, that county s board of commissioners, and SERB.
SERB had ordered a rerun election on OCSEA s attempt to organize county welfare department workers. The Hamilton County board of commissioners appealed, but a Franklin County Common Pleas Court dismissed the appeal, saying it lacked jurisdiction. The appeals court disagreed and remanded the case to the trial court.
Justice Douglas wrote a dissent calling on his colleagues to resolve whether SERB orders regarding representation election disputes could be appealed. His plea came three years after the state s public employees collective bargaining law took effect.
“This novel question squarely implicates the Public Employees Collective Bargaining Act, and the court of appeals decision, which is permitted to stand by dismissing this appeal, presents a grave danger to the rights guaranteed by [state law],” Justice Douglas wrote in his dissent.
By a 5-2 vote, the Supreme Court ruled in 1991 that SERB decisions on whether to pursue an unfair labor practice were not subject to judicial review.
Justice Douglas dissented in the case, in which SERB had dismissed the charge of a Dayton City School District employee who said she was fired because of her union activities.
In 1992, Justice Douglas joined the 4-3 majority that ordered SERB to re-examine whether the Ohio Association of Public School Employees had met the deadline to file an unfair labor practice against the Lorain County Board of Mental Retardation and Developmental Disabilities.
And in 1993, the Supreme Court unanimously upheld an appeals court decision that ordered SERB to certify a union as the exclusive representative of a proposed bargaining unit for Columbiana County Auditor employees.
“...granting SERB the absolute and ultimate power to finally determine the rights of the parties without some judicial review presents a potential for abuse of that power which is too great to ignore,” Justice Douglas wrote in his concurring opinion.
In 1998, Justice Douglas wrote the 4-3 majority decision ordering SERB to issue an unfair labor practice complaint against the University of Cincinnati.
Unions representing employees at the University of Cincinnati Hospital had filed the charge with SERB after the university decided to privatize the hospital.
SERB had determined there was no probable cause for the allegation, but the majority including Justice Douglas disagreed and cited internal memos from the hospital management to show it wanted to evade state labor law.
He wrote that a court order was an “appropriate remedy to correct an abuse of discretion by SERB.”
Justice Deborah Cook, a Republican from Akron, dissented. “The majority opinion, in essence, holds that any decision by a public employer to privatize is an unfair labor practice,” she wrote.
In an interview last week, Justice Douglas said he has “long friendships” with several OCSEA officials. But he said when he was on the bench, he never envisioned working for the union someday.
After leaving the court at the end of 2002, Mr. Douglas joined the Columbus law firm of Crabbe, Brown, and James as a partner.
OCSEA hired Mr. Douglas in January, 2003, to contest a legislative attempt to remove state attorneys from OCSEA, said OCSEA spokesman Peter Wray.
OCSEA also hired Mr. Douglas to wage the legal battle to prevent Gov. Bob Taft from closing the Lima Correctional Institution - a skirmish the state eventually won.
On Feb. 14, OCSEA s board of directors voted to hire Mr. Douglas as its executive director. OCSEA would not reveal his salary.
Mr. Douglas said he will remain “of counsel” to Crabbe, Brown, and James.
It was a natural fit for OCSEA to hire Mr. Douglas to succeed retiring executive director Irwin Scharfeld, said Kent Markus, a law professor at Capital University and a former counselor to U.S. Attorney General Janet Reno.
“You have the usual revolving-door concerns that one might be motivated to act to support an entity one hopes to seek employment with, but that is a significant stretch for judges. You re not handling contracts.
“A justice on the Supreme Court is only one of seven votes. What comes before a court is reactive, not proactive. Cases come to them. Legislators decide what to address, and the same with the executive branch,” Mr. Markus said.
When Supreme Court justices leave office, they are barred from participating in cases in which they took part as a judge, but there are no other “revolving-door restrictions,” a court spokesman said.
But Dr. Mayer, the professor of law and history at Capital University, said Mr. Douglas is another example of someone moving from a government job to a “quasi-government job.”
“It s the price we pay not only for an elected judiciary but also a judiciary in which individual judges move into the realm of policy making,” he said.
Mr. Douglas said the critiques don t bother him.
“I only know I don t have any problem looking in the mirror and recognizing that I continue to do what I believe is the right thing to do,” he said.
First Published February 29, 2004, 5:49 p.m.
