Handing Employer Sergeant’s Stripes Does Not Necessarily Constitute Voluntary Demotion

Rose Gallagher is a sergeant with the Ross County, Ohio Sheriff’s Department. Gallagher was the subject of an investigation that she had used a racial slur. On receipt of a notice of a pre-disciplinary hearing, Gallagher handed her captain her “sergeant’s stripes,” and told him “I can’t do this anymore” and that she no longer wanted to be a supervisor.

Later, the Department terminated Gallagher for dishonesty for denying that she had used a racial slur. Gallagher appealed to the State Personnel Board of Review (SPBR), which appointed an administrative law judge to hear the matter. Immediately, a question arose as to whether, at the time of her termination, Gallagher was still a sergeant.

If Gallagher’s handing in her sergeant’s stripes constituted a voluntary demotion, the SPBR would have lacked jurisdiction to hear her appeal, and her discipline would have been subject to the grievance procedure set forth in a collective bargaining agreement between the County and the Fraternal Order of Police that applied to deputy sheriffs below the rank of sergeant. Eventually, the question of Gallagher’s status ended up before the Ohio Court of Appeals.

The Court held that Gallagher was a sergeant at the time of her termination. The Court had no trouble concluding that Gallagher’s turning in her sergeant’s stripes was the equivalent of a resignation. The Court observed that “a resignation is a formal renouncement or relinquishment of office and accompanied by an ‘act of relinquishment.’ Given the evidence regarding Gallagher’s statements to her captain, coupled with her actions of removing her sergeant’s stripes from her uniform and handing them to the captain, the conclusion that she tendered her resignation from the rank of sergeant is not unreasonable, or arbitrary or unconscionable.”

Whether Gallagher intended to resign was only half the issue, the Court found. For the resignation to be effective, it had to be accepted by the Department. The Court found that Gallagher’s resignation was never accepted.

As the Court noted, “the record contains no evidence of an affirmative act clearly indicating that the tender of resignation was accepted by someone empowered by the Sheriff to do so. Rather, the Sheriff’s own testimony contradicts any inference that he accepted Gallagher’s resignation from active sergeant prior to terminating her. The Sheriff did not talk to Gallagher about her alleged resignation and did not issue a written acceptance of her resignation. The Sheriff continued to address Gallagher as ‘sergeant’ at the pre-disciplinary conference and in his termination letter.”

Since the Court concluded that Gallagher was a sergeant at the time of her termination, it remanded the matter to SPBR for a determination on the merits of Gallagher’s appeal.

Gallagher v. Ross County Sheriff, 2007 WL 611377 (Ohio App. 2007).

This article appears in the May 2007 issue