As noted by the Board, “The essential requirements of due process . . . are notice and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). The Board cited D. H. Overmyer Co., Inc., of Ohio v. Frick Co., 405 U.S. 174, 185-86, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972), in concluding that waiver of the right to a pre- termination hearing must “be voluntary, knowing, and intelligently made.” The Board further stated that the Cabinet could “not presume acquiescence in the loss of fundamental rights.” Ohio Bell Tel. Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 307, 57 S. Ct. 724, 81 L. Ed. 1093 (1937).
Although the Cabinet disputes the judgment of the Board regarding the credibility of the evidence, there is substantial evidence to support the Board’s finding that Wade did not waive her right to a pre-termination hearing. While the Cabinet characterizes Wade’s attempt at postponing the hearing as improper, the Cabinet was without authority to dispense with the “minimal requirement” of a hearing in the interest of “convenience or expediency, or because of a natural desire to be rid of harassing delay[.]” Id. at 305. We are mindful that the pre- termination hearing “need not be elaborate” to satisfy due process. Loudermill, 470 U.S. at 545. However, in the case at bar, the Cabinet’s action deprived Wade of a fundamental right, “[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken . . . .” Id. at 546. After careful review, we conclude that substantial evidence supported the Board’s findings, and the Board correctly applied the law.
FINANCE AND ADMINISTRATION CABINET, ET AL.
VS.
WADE (WANDA FAYE), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
WINE (CONCURS) AND HENRY (SENIOR STATUS JUDGE)(CONCURS)
2008-CA-001822-MR
TO BE PUBLISHED
FRANKLIN
1/14/2011
