Gary D. Swank v. James Smart

MANION, Circuit Judge,

concurring in part, dissenting in part.

Although I take issue with some portions of the majority’s interesting discussion of substantive due process and the First Amendment, I agree with its conclusion that no fundamental rights have been affected by the City of Carthage’s action. I concur with the majority in affirming the dismissal of the substantive due process claims, the First Amendment claims, and claims against various individual defendants. The only question remaining is whether the City denied Swank his “tenured position without adequate procedural safeguards against erroneous deprivations.”

I. Background

The motorcycle incident which gave rise to this case was not Gary Swank’s first run-in with the Public Safety Committee. Swank previously had been accused of several job-related deficiencies including improper logging of activities, insufficient varying of his routes, improper patrolling, showing favoritism to his friends, and several instances of lying. On July 23, 1986, the Public Safety Committee notified Swank by letter that he was on “probation” until October 1, 1986. The committee stated it would terminate Swank at the end of the period if he did not improve his performance.

In the middle of the night of September 24 to 25 (near the end of the probation period), Swank gave Tina Millin, a 17-year-old student at the local college, a ride on his motorcycle. Carthage police officer Oral Lawrence observed the ride and reported it the next day to the new Police Chief, James Smart. On October 1, Smart questioned Swank and reported that Swank initially denied the incident had happened, then admitted it. Smart asked Swank if he would resign. Swank wanted time to think about it. On October 2, Smart again asked Swank if he would resign. Swank refused.

Smart drafted a list of charges against Swank for the Public Safety Committee. The committee met on October 6. Smart told the mayor, who was a member of the *1259 committee, he had a statement from Tina Millin concerning the incident. The mayor replied the committee did not want to see the gory details, so Smart did not divulge the statement’s contents. Smart presented the committee and Swank a list of seven charges relating to the motorcycle incident. 1 Bill Tomlinson chaired the meeting and questioned Swank concerning the charges. After Swank responded, Smart submitted a second page to the committee and to Swank setting forth his personal observations on the importance of maintaining the trustworthiness of the police department. 2 The committee discussed the second page after Swank and Smart left the room. When Swank returned several minutes later, Tomlinson informed him the committee had decided to suspend him with pay pending the next City Council meeting.

The Carthage City Council met on October 14, 1986. Tomlinson outlined the incident to the council and stated the Public Safety Committee had recommended immediate termination. Swank was given no opportunity to respond at the meeting (although, as will be determined on remand, Swank may have declined a full hearing). The council voted 4-3 to terminate Swank because the incident “was his third write up [and was] damaging the good relationship the city police and the city had with the college students and the college personnel.”

The majority holds the hearing before the Public Safety Committee violated due process in two respects: first, Smart did not divulge the contents of Tina Millin’s statement; second, Smart submitted a second page of personal observations to the committee, thus making an allegedly improper ex 'parte communication. I do not believe either of these alleged defects rises to the level of a due process violation.

*1260 II. Tina Millin’s Statement

Smart offered Tina Millin’s statement to the committee, but withheld it when the mayor said he did not want to hear the “gory details.” The majority contends Smart’s subsequent silence could be taken as an affirmation that the statement did contain gory details, thus prompting the committee members to presume the worst. In Lee v. Hutson, 810 F.2d 1030 (11th Cir.1987), the Eleventh Circuit addressed a substantially similar issue. Jaxie Lee was a tenured employee of the Cobb County, Georgia Sheriff’s Department. She was terminated after receiving a hearing before the Cobb County Civil Service Board. Among other things, she claimed the sheriff and the county violated her due process rights by failing to present exculpatory evidence at the hearing. The court first addressed Lee’s substantive due process claim. Citing Bishop v. Wood, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976), the court held, “[I]f a deliberate lie by governmental employer does not amount to an independent constitutional tort, then an alleged Brady violation during an employment hearing also fails to constitute a substantive due process violation.” Id. at 1032-33. The court then noted “[although procedural due process might be violated if a mechanism for correcting these alleged errors were not available, Georgia does provide avenues for redress of such claims_” Id. at 1033. Georgia had a procedure for certiorari review, just as Illinois has in this case. Odell v. Village of Hoffman Estates, 110 Ill.App.3d 974 , 66 Ill.Dec. 564, 566 , 443 N.E.2d 247, 249 (Ill.App. 1 Dist.1982). (“Under the writ [of certiorari], the trial consists only of a review of the administrative records. The reviewing court must ascertain whether the agency had jurisdiction and acted within its jurisdiction, whether it proceeded according to law and acted on the evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency.”) If Smart’s silence (about whether the statement was “gory”) can be taken as an affirmation, and that affirmation misled the committee, its effect likewise can be no worse than that of a deliberate lie. See also Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). As in Lee , Smart’s failure to produce Millin’s statement gives rise to neither substantive nor procedural due process claims.

The majority concludes Smart’s failure to disclose the contents of Tina Millin’s statement violated Swank’s due process rights, but holds the individual defendants free of liability under the doctrine of qualified immunity. Carthage nevertheless remains liable, but why? Assuming Smart violated Swank’s rights, he did so by misrepresenting the facts to the Public Safety Committee. The committee itself did nothing to encourage the misrepresentation. The mayor simply stated he did not want to hear the gory details; Smart could have responded, “The details might not be as gory as you suspect.” The wrong, if any, was committed by Smart, not the committee. Therefore the City of Carthage is liable only if Smart had “final policymaking authority” as a matter of state law. Jett v. Dallas Independent School District, — U.S. -, 109 S.Ct. 2702, 2723 , 105 L.Ed.2d 598 (1989). But he did not have that authority. The final policymaking authority for Swank’s termination in this case rested with the City Council — Smart and the Public Safety Committee merely made recommendations. Under Jett , the City of Carthage is not liable for Smart’s actions.

III. Smart’s Ex Parte Communication

I have no difficulty characterizing Smart’s second page as an ex parte communication even though Swank received a copy at the same time as the committee. However, as this court concluded in Shidaker v. Carlin, 782 F.2d 746, 752 (7th Cir.1986), judgment vacated on other grounds, Tisch v. Shidaker, 481 U.S. 1001 , 107 S.Ct. 1621 , 95 L.Ed.2d 195 (1987), “[n]ot every ex parte communication is a procedural defect so substantial and so likely to cause prejudice that it entitles the claimant to an entirely new administrative proceeding.” Ex parte evidence is not fatal if it is cumulative. Shidaker, 782 F.2d at 753 . Even an ex parte charge (as opposed to mere evidence or argument) was held *1261 harmless in Shidaker 3 “Many ... cases have found ex parte communications in administrative hearings to be harmless error.” Id.

The issue is whether the deprived party receives notice and a chance to offer his side of the story. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 , 105 S.Ct. 1487, 1495 , 84 L.Ed.2d 494 (1985). If the ex parte communication is cumulative, the deprived party essentially has received notice by virtue of the prior non-ea; parte charges and evidence. That is the case here. Swank knew the committee was considering recommending termination because of the motorcycle incident. He knew he was accused of conduct unbecoming a police officer. The ex parte communication only related Smart’s assessment of the incident’s possible damage. Swank must have known that any damage due to the incident was an issue. He had been warned of other misconduct and was on probation. This single and relatively benign ex parte communication did not so prejudice Swank’s interests as to poison the hearing. It was at most harmless error, and as such did not rise to the level of a due process violation. Shidaker, 782 F.2d at 752 .

IV. The Alleged Deprivation Arose From Random and Unauthorized Conduct

For the above stated reasons, I believe the Public Safety Committee hearing satisfied due process. However, under Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), we should not even reach the issue of the hearing’s validity.

Under Parratt v. Taylor and Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), random and unauthorized acts by state agents, even if intentional, do not violate procedural due process requirements so long as the state provides a “meaningful post-deprivation remedy.” In Illinois, “an interested party who has been aggrieved by a ruling of an administrative body has a right to have the proceeding reviewed by the common law writ of certiorari.” Odell v. Village of Hoffman Estates, supra, 66 Ill.Dec. at 566 , 443 N.E.2d at 249 . Granted, this review may not provide all the remedies Swank has under § 1983, but a certiorari procedure is a meaningful post-deprivation remedy under Parratt and Hudson . See also Lee v. Hutson, supra, 810 F.2d at 1033 .

The City of Carthage’s employment manual specifies a termination procedure for all city employees. 4 When an employee is performing unsatisfactorily, his supervisor must meet with him and give him a written list of the evidence of any deficiencies. If the employee’s unsatisfactory behavior continues, the supervisor must meet with him two more times before recommending termination to the appropriate committee of the City Council. The committee’s chairman will then notify the employee of his termination.

The record contains no evidence the City either formally repealed the manual’s ter *1262 mination provision or effectively repealed that provision by routinely ignoring it. The manual’s procedure was the City’s policy at the time of the motorcycle incident. Therefore, the manual’s termination procedure should have been used in Swank's case. Swank alleges at ¶ 20 of his complaint that defendants failed to follow the manual’s procedure. The facts support this allegation.' The defendants had no authority to supplant the manual’s procedure with the probation-hearing-termination procedure used in this case. This isolated instance of ignoring the established termination procedure was truly random and unauthorized. 5 Under Parratt , defendants cannot be held liable for violating Swank’s procedural due process rights. 6

I respectfully dissent.

. The page Smart presented the committee read in full:

ATTN: Mayor Nightingale & Public Safety Committee

REF: Officer Gary Swank

INCIDENT: Conduct Unbecoming a Police Officer

FACTS:

1. At approximately 1:30 am, the early morning hours of Thurs., Sept. 25, 1986, Officer Swank met a female college student at Robert Morris College Campus. They left the campus on his motorcycle and went west out of town.

2. Officer Swank is married.

3. Officer Swank’s wife, Sally, was at home asleep.

4. Officer Swank was off-duty, not in uniform, and on his personal motorcycle during this incident.

5. On Wednesday, October 1, 1986, I interviewed Officer Swank about the incident. He at first lied to me about the incident and denied that the incident even occurred. He then admitted to the above mentioned facts and asked me if his wife had to be told. He then agreed to a false excuse why he was meeting with me, in case his wife asked.

6. Officer Swank believes he did nothing wrong and does not understand why I’m reporting this incident, since he was off-duty.

7. Officer Swank was already on probation at the time of this incident.

. Smart's second page read in full:

ATTN: Mayor Nightingale & Public Safety Committee

REF: Sept. 25, 1986 Incident involving Officer Gary Swank

MEMO:

Much of our police work is done on and around campus. Not only do we investigate crime, enforce laws and make arrests on campus; we solve problems.

We check on the well-being of students, at the request of their parents — who are many miles away. We discuss problem students with their parents, we’ve helped save the lives of many who’ve attempted suicide, we’ve guided many others away from attempting suicide, we help them when they have car trouble ... the list goes on and on. School Officials welcome us on campus. They cooperate and help us in any way that they can and vice-versa.

This is often the first time these young persons have been away from home. They and their parents are worried. When parents of these students are worried, they call us. They discuss their family’s darkest secrets with us. We are Police Officers. We are supposed to be trustworthy; after all, the citizens of this community bestowed this sacred trust with us when they pinned that badge on us. But we must constantly continue to earn and keep that trust. When an Officer violates that trust, he commits a grave injustice to his Department and to the citizenry that he is sworn to serve and protect — to serve and protect with his life, if necessary.

The People do not give their Police Officers respect and unquestioned trust with the badge. The Officers must EARN those things — both in and out of uniform.

This incident has tarnished OUR badge!

. In Shidaker, the aggrieved party had a chance to cure the procedural defect at a subsequent de novo hearing. There is some dispute as to whether Swank had a similar opportunity. However, the Shidaker court found the ex parte contact “already unlikely to do any harm” before the de novo hearing was even taken into consideration. Shidaker, 782 F.2d at 753 .

. The employment manual provides in full at section II.E:

Termination of an employee for unsatisfactory performance may occur after the employee’s immediate supervisor has met with the employee 3 times. The first time the supervisor will list in writing those things that he or she feels are evidence of poor performance and make suggestions as to what the employee should do to correct the deficiencies. The list will be dated. On the second occasion the supervisor will review the list and point out those items in which the employee has not improved and point out that if the deficiencies are not corrected by a date which is indicated in writing that the employee will be recommended for termination. At the third meeting, the supervisor will indicate to the employee which deficiencies have not been corrected and will then recommend his or her termination to the appropriate committee of the City Council.... The employee will then be notified by letter or in person of his or her termination by the chairman of the appropriate committee. IMMEDIATE termination of an employee will normally occur only if the employee threatens or carries out physical harm or other gross misconduct to a fellow employee or supervisor which is unprovoked.

. The Supreme Court’s recent analysis of Parratt (Zinermon v. Burch,- U.S. -, 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990)), does not affect the outcome here. In Zinermon , Burch alleged that defendant hospital officials committed him to state mental facilities without properly determining whether he was competent to give informed consent. Because the state delegated to the hospital administrators both the power to confine and the authority to initiate safeguards against unlawful confinement, the Court held that the decision was not random or unauthorized. In Zinermon , the state could foresee that disoriented mental patients might sign consent forms; therefore, the Court held state procedures should guard against this. In this case, Smart ignored established state termination procedure. His conduct was unforeseeable from the state’s perspective, and Parratt does apply.

. The parties did not argue this issue on appeal. However, "[a] reviewing court can affirm a judgment on any ground, if the record discloses a fair basis for doing so.” Klingman v. Levinson, 877 F.2d 1357 , 1360 n. 3 (7th Cir.1989).