# Melanie Martinez, Cross-Appellee v. The City of Opa-Locka, Florida, a Municipal Corporation, Marcia L. Connor, Individually, Cross-Appellant > Court of Appeals for the Eleventh Circuit · September 10, 1992 · 971 F.2d 708 URL: https://www.frixlaw.com/law-library/cases/9483237 ## Case - **Full name:** Melanie MARTINEZ, Plaintiff-Appellant, Cross-Appellee, v. the CITY OF OPA-LOCKA, FLORIDA, a Municipal Corporation, Defendant-Appellee, Marcia L. Connor, Individually, Defendant-Appellee, Cross-Appellant - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** September 10, 1992 - **Citations:** 971 F.2d 708; 23 Fed. R. Serv. 3d 856; 1992 U.S. App. LEXIS 21005; 1992 WL 203328 - **Precedential status:** Published - **Opinion:** Concurring in part by Johnson - **Judges:** Hatchett, Johnson, Henderson - **Cited by:** 79 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483237 ## How later opinions describe it (automated extraction) - holding that under Praprotnik, a town charter’s directive that city manager’s personnel decisions be based on “merit and fitness” did not preclude city manager’s final policymaking authority where no other town officials were empowered to enforce that provision - finding monetary damages award against municipality was appropriate where the City Manager, who had final policymaking authority with respect to personnel decisions, terminated a city employee for exercising her First Amendment rights to criticize the City Manager - finding final policymaking authority where “the City Manager's decision to hire or fire administrative personnel is completely insulated from review” - finding final policymaking authority where “the City Manager’s decision- to hire or fire administrative personnel is completely insulated from review” ## Opinion text JOHNSON, Senior Circuit Judge, concurring in part and dissenting in part: I cannot agree with the majority’s conclusion that city manager Connor exercised final policymaking authority over Opa-Loc-ka’s employment practices. Consequently, I dissent from the majority’s reversal of judgment n.o.v. on the issue of municipal liability. 1 “It is well established that a municipality may be held liable under § 1983 only when the deprivation at issue was undertaken pursuant to city ‘custom’ or ‘policy,’ and not simply on the basis of respondeat superior,” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir.1991). City policy is not limited to the official acts of a city’s legislative body: “City policy also may be implicated by the acts of individual policymaking officials or by pervasive city custom.” Id. at 1480 . A person with final decisionmaking authority does not, however, necessarily possess authority to make final policy. Pembaur v. City of Cincinnati, 475 U.S. 469 , 481-83 & 483 n. 12, 106 S.Ct. 1292 , 1299-1300 & 1300 n. 12, 89 L.Ed.2d 452 (1986); see City of St. Louis v. Praprotnik, 485 U.S. 112, 126-27 , 108 S.Ct. 915, 925-26 , 99 L.Ed.2d 107 (1988). In order for municipal liability to attach on the basis of a single unlawful act, the official who causes the harm “must also be responsible for establishing final government policy respecting such activity.” Pembaur, 475 U.S. at 482-83 , 106 S.Ct. at 1300 ; see also Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.1990). Thus, the fact that city manager Connor had the power to hire and fire — final decisional authority — does not necessarily mean that she had the authority to set the final policies governing municipal employment. For reasons that are at best unclear, the majority has broadly construed article II, section 11 of the Opa-Locka city charter, reading this provision as conferring on the city manager absolute policymaking au *716 thority over the city’s personnel policies. “[I]t is a well recognized rule of statutory construction that exceptions or provisos should be narrowly and strictly construed.” Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1100 (Fla.1990); see Brown, 923 F.2d at 1480 . Article I, section 3 2 and article II, section 9 of the city charter together vest the city commission with the authority to run the affairs of the city absent an express delegation of a particular task or duty elsewhere in the charter. Section 11 thus constitutes an exception to the general powers conferred on the city commission under sections 3 and 9 and therefore, under well settled principles of construction, is to be narrowly construed. Marlow, 556 So.2d at 1100 . Under a narrow reading of article II, section 11, the provision merely confers final decisional authority on the city manager over individual personnel decisions. See id.; see also Jett v. Dallas Ind. School Dist., 491 U.S. 701, 737 , 109 S.Ct. 2702, 2723 , 105 L.Ed.2d 598 (1989); Praprotnik, 485 U.S. at 125 , 108 S.Ct. at 925 ; Bailey v. Board of Comm’rs of Alachua County, 956 F.2d 1112 , 1121, 1125 (11th Cir.1992); see generally Brown, 923 F.2d at 1480 . Because of the absence of contrary record evidence suggesting that a broad reading of article II, section 11 is. in order, I would defer to the city’s reasonable — and narrow — reading of this provision. Marlow, 556 So.2d at 1100 ; see Jett, 491 U.S. at 737 , 109 S.Ct. at 2723 ; Praprotnik, 485 U.S. at 125 , 108 S.Ct. at 925 ; Bailey, 956 F.2d at 1125. The city charter expressly gives the city commission the power to make all city policies, Opa-Locka City Charter, art. I, § 3, id. at art. II, § 9; consequently, unless the commission has delegated to Connor the final authority to set employment policies, Opa-Locka may not be held liable for Connor’s retaliatory firing of Martinez. 3 If final policymaking authority is delegated, then the person who assumes the power to make final policy may create municipal liability on the basis of a single unlawful act. Jett, 491 U.S. at 737 , 109 S.Ct. at 2723 ; Praprotnik, 485 U.S. at 124 n. 1, 127, 108 S.Ct. at 924 n. 1, 926; Pembaur, 475 U.S. at 483 , 106 S.Ct. at 1300 . When analyzing whether a delegation of final policymaking authority has occurred, the Court may examine both the city charter and the customs and practices of Opa-Locka with regard to who exercised final authority over the city’s employment policies. Brown, 923 F.2d at 1480 , Mandel v. Doe, 888 F.2d 783, 793 (11th Cir.1989). Cross-appellant Martinez has not provided either this Court or the court below with any evidence that would support a finding that the city commission had delegated to Connor the authority to make final policy decisions regarding the city’s employment policies. Moreover, as the plaintiff, she had the burden of establishing that her retaliatory discharge reflected an official policy of the city. See Brown, 923 F.2d at 1481 . Thus, although city manager Connor is vested with final decisional authority to take action regarding an individual’s employment with the city, there is no evidence before this Court showing that Connor has been delegated — either formally or through a de facto arrangement — the authority to set the final policies that govern the city’s employment practices. 4 It may well be *717 that the Opa-Locka city commission has delegated final policymaking authority over employment policies to the city manager. However, Martinez has failed to establish that this is the case. Having failed to meet her burden of establishing that Connor possessed final policymaking authority over city employment policies, Martinez may not recover damages from the city. Brown, 923 F.2d at 1480-81 . Consequently, the lower court’s entry of judgment n.o.v. in favor of Opa-Locka was proper. The majority has improperly and arbitrarily conflated the power to make a final decision with the power to set the policies that govern when a particular decision is proper. Because the district court’s order granting judgment n.o.v. to Opa-Locka is due to be affirmed, I dissent. . I concur with the majority’s resolution of all other issues presented for decision. . In relevant part, this provision provides that: Pursuant to its provisions and subject only to the limitations imposed by the state constitution and by this charter, all powers of the city shall be vested in an elective council, hereinafter referred to as "the commission,” which shall enact local legislation, adopt budgets, determine policies, and appoint the city manager, who shall execute the laws and administer the government of the city. Opa-Locka City Charter, article I, § 3. . The majority attempts to distinguish Praprot-nik from the case at bar based on the fact that Martinez could not appeal her dismissal. Majority opinion, supra, at 714. With all due respect, Martinez’s ability to appeal a particular employment decision is, by itself, entirely irrelevant to the determination of who had the authority to set the city's final employment policies. See Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. at 1300 n. 12. This rationale merely confirms my conclusion that the. majority has improperly equated the power to make a final decision with the power to set final policies. .For example, whether or not to require a high school diploma of all potential Opa-Locka city employees is ostensibly a policy decision that would be set by the city commission, even though Connor might, on a day-to-day basis, attempt to hire only those persons who possess *717 high school diplomas. Connor’s day-to-day practice would not preclude the city commission from setting an alternate policy, which Connor would be bound to enforce on pain of discharge. Opa-Locka City Charter, art. II, § 10. See Williams v. Butler, 863 F.2d 1398, 1402-03 (8th Cir.1988) (en banc) (explaining the difference between discretionary authority to act and delegation of final policymaking authority), ce rt. denied, 492 U.S. 906 , 109 S.Ct. 3215 , 106 L.Ed.2d 565 (1989), cited with approval, Mandel, 888 F.2d at 793 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483237. Public record. Not legal advice.