Petition — City of Independence v. Owen
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preme Court, U. S,
FILED
DEC 97 1977
MICHAEL RODAK, JR., CLERK
IN THE oe
Supreme Court of the Anited States
OBER TERM, 1977
No. 77-914
THE CITY OF INDEPENDENCE, MISSOURI,
LYLE W. ALBERG, CITY MANAGER,
RICHARD A. KING, MAYOR, CHARLES E. CORNELL,
DR. RAY WILLIAMSON, DR. DUANE HOLDER,
RAY A. HEADY, MITZI A. OVERMAN, AND
E. LEE COMER, JR., MEMBERS OF THE COUNCIL
OF THE CITY OF INDEPENDENCE, MISSOURI,
Petitioners,
GEORGE D. OWEN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHARLES S. RHYNE
WILLIAM S. RHYNE
JAMES S. COTTINGHAM DONALD A. CARR
City Counselor
Suite 400, Main Street Building ‘ye gon SLSSENDORE
420 South Main Street 1000 C iii Renin SO
Independence, Missouri 64050 = Washington, D.C. 20036
RICHARD G. CARLISLE
Assistant City Counselor
103 North Main Street
Independence, Missouri 64050
Attorneys for Petitioners
Washington, 0.C. ¢ CLS PUBLISHERS « LAW PRINTING CO. « (202) 393-0625
(i)
TABLE OF CONTENTS
Page
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re ic cc cece ecenedereteansaseaceteeens 2
ee 3
DT deacdnaesdcnedenebabhasesekes Pree reer errr rere 3
OPINION AND DECISION BELOW .................... 5
REASONS FOR GRANTING THE WRIT ................. 6
1. The Decision of the Court of Appeals Supplants
Established Principles of Vicarious Municipal
Liability with a Rule of Strict Liability Which
Cannot by Any Act of Responsible and
Authorized Municipal Officials be Avoided ............ 8
i on cn oe Cece kee eeeened Rake iesnaneekienhaenet 12
APPENDICES
Opinion of the Court of Appeals .............. 0000 e cece la
ee ee ec cc cccccnncceseeeenetsans Ib
TABLE OF AUTHORITIES
Cases:
Adekalu v. New York City, 431 F. Supp. 812
Ce HUE cc cceccccenccccccevecesoscncosccsosececs 9
Amen v. City of Dearborn, 532 F.2d 554 (6th Cir.
PR it¢absdceeebdedenthhs d4dbawessneseven¥ensshsecenes 9
‘ Birnbaum v. Trussel, 371 F.2d 672 (2d Cir. 1976) ........... 10
Bishop v. Wood, 426 U.S. 341......... 2. ccc ee cece eee eee eeeee 5
Bivens v. Six Unknown Agents, 403 U.S. 388.............. 8.9
Board of Regents v. Roth, 408 U.S. 564...............200055. 7
Brault v. Town of Milton, 527 F.2d 730 (2d Cir.
1975), reversed on other grounds, 527 F.2d 736
C38 Cie. 19TS) Gam GOB)... ccreccccccccccccccccccceccces 9
(ii)
Page
Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020
EL 04s ke dee pee sebabssdssnnnoneubaneatensudedenes 11
Churchwell v. United States, 545 F.2d 59 (8th Cir.
DE? nekaaks cen deeb nope ada ednele ce bickeneneui cheese 10
City of Kenosha v. Bruno, 412 U.S. 507.................0005. 5
Oe SS, MP en ccccvsccuseedcnece< sans 3
Cox v. Northern Virginia Transportation Commission,
Soe FB SSS COR Cae, GGTB) nn nc ccccccccccscccccoccccs 10
Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975).................. Y
Creelman v. Svenning, 67 Wash. 2d 882, 410 P.2d
er ee as ies cieueesen neck 1!
DeBoer Construction, Inc. v. Reliance Insurance
Company, 540 F.2d 486 (10th Cir. 1976)................ 10
Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975) .............. 10
Hostrop v. Board of Junior College District No.
ee Pk ee 9
ND WH. TID, Be WI Os ccc cv sccccccccncconcctescsceens 5
Be Oe, IA, Ge WI isc cdcccnncaccccescvecscccncess 7
Shellburne, Inc. v. New Castle County, 293 F.
Ne eee eee ee ld cic ccccues 11
Tanner v. Gault, 20 Ohio App. 243, 153 NE.
SE betes 4 deen dneaselu sevens ede ndscesececeeuns 11
Ey G. TRU, Fe eB occ cc veccccascccecccccess 1]
Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977).............. 9
Weber v. Lane, 99 Mo. App. 69, 71 S.W. 1099
oo hs cts. onnsauntsededbedducsedudsucbeues<ackassesn 11
Wisconsin v. Constantineau, 400 U.S. 433 .................... 7
Statutes:
ee EN I Se i Rete ee ee a
The Charter of the City of Independence, Missouri
IE iia ee ee ee a 2. 10
SE OEE sé psanndbpiiadnsciRsndendoundiccees 2, 3, 6, 10
(iii)
Page
Other: d
Restatement (Second) of Agency...-.-.-+-++ssrrrrerrrrrees . *
W. Prosser, Law of Torts, (4th ed.) ...--+--+-s+eererrrree ;
W. Seavey, Law of Agency (1964 ed.)....------ epseestonsthe
International City Management Association, Municipal ia
Yearbook (1977) ....cccccece eee eee eeeeneeeereteeeeeee
aS OND Wwe arenes
et th Oy A -
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1977
THE CITY OF INDEPENDENCE, MISSOURI,
LYLE W. ALBERG, CITY MANAGER,
RICHARD A. KING, MAYOR, CHARLES E. CORNE iL,
DR. RAY WILLIAMSON, DR. DUANE HOLDER,
RAY A. HEADY, MITZI A. OVERMAN, AND
E. LEE COMER, JR., MEMBERS OF THE COUNCIL
OF THE CITY OF INDEPENDENCE, MISSOURI,
Petitioners,
GEORGE D. OWEN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioners pray that a writ of certiorari issue to review the
judgment of the United States Court of Appeals for the Eighth
Circuit dated August 15, 1977.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 560 F.2d
925 and is printed in Appendix A, infra, p. la.
The opinion of the District Court is reported at 421 F. Supp.
1110 and is printed in Appendix B, infra, p. 1b.
2
JURISDICTION
The judgment of the Court of Appeals panel (with one dissent)
was entered August 15, 1977. The jurisdiction of this Court is
invoked under 28 U.S.C. §1254. The Order of the Court of
Appeals below (based on a 4-3 division of the participating
Judges) denying Petitioner’s Motion for Rehearing En Banc was
entered September 26, 1977.
QUESTIONS PRESENTED
1. Whether under 28 U.S.C. §1331 a municipality may be
held vicariously liable for arguably slanderous statements made
by Council members in the context of their recommendation
which the public understood to be that a non-tenured employee
be discharged, where satisfaction of the causality requirement
between the statements and any cognizable liberty interest in
employment is absolutely precluded by a municipal charter
provision vesting the City Manager with full discretion to hire
and fire and prohibiting interference by Council members in the
Manager’s decisions to hire and fire.
2. Whether a municipality may be held vicariously liable to
remedy monetarily statements made by Council members, where
the Council members are themselves absolutely privileged from
liability for damages based on such statements.
STATUTES INVOLVED
Sections 3.3(1) and 2.11 of the Charter of the City of Inde-
pendence, Missouri were reproduced by the Court of Appeals
below in its opinion, App. A, p. 4a, infra.
Section 1331 of Title 28, United States Code.
+ enn
3
STATEMENT OF THE CASE
Facts
The Court of Appe2!s adopted and approved fully, App. A,
pp. 3a-10a, the following facts as found by the District Court,
App. B at pp. 2b-13b.
Plaintiff Owen, as Chief of Police of the City of Independence
without contract or tenure, was implicated in a 1972 investiga-
tion of the Police property room. Owen could, by §3.3(1) of the
City Charter, be fired only by the City Manager and could be
fired without cause, notice or hearing.
Owen was fired by the City Manager on April 18, 1972
without any articulation of reasons except an unadorned citation
to §3.3(1) of the Charter. Cf, Codd v. Velger, 429 U.S. 624,
627-28.
The gravamen of Owen’s suit and of the opinion of the Court
of Appeals below, after conceding that Owen had no property
interest in employment as Chief of Police, App. A, p. 26a, is
that Owen was stigmatized in a way appropriately remedied by
packpay from the City Treasury, as follows. .
The City Manager on April 17, 1972 possessed a written
report of the investigation of the Police property room, which the
Manager at all times intended to keep confidential. A lame duck
City Councilman whose term expired April 17, 1972, obtained
pursuant to authority a copy of this report from the Assistant
City Manager. Lame duck Councilman Roberts read in public
Council session on April 17 the statement set forth by the
District Court at App. B, pp. 7b-9b, infra, and below.’
'The statement, in its entirety, read:
“On April 2, 1972, the City Council was notified of the existence of an
investigative report concerning the activities of the Chief of Police of the City of
Independence, certain police officers, and activities of one or more other City
City Officials. On Saturday, April 1 Sth for the first time I was able to see these
27 voluminous reports. The contents of these reports are astoundingly shocking
and virtually unbelievable. They deal with the dissappearance of 2 or more
television sets from the police department and signed statements that they were
taken by the Chief of Police for his own personal use. ji
“The reports show that numerous firearms properly in the police department
(continued)
4
The Court of Appeals below adopted the District Court’s
finding, App. B at p. 6b, that the City Manager had decided
on April 15, 1972, two days before Councilman Roberts’
precatory statement, to fire Owen. App. A, p. 7a.
The record of this case reflects no publication or communica-
tion of the investigation report except to Councilman Roberts,
(footnote continued from preceding page)
custody found their way into the hands of others including undesirables and
were later found by other law enforcement agencies.
“Reports show (sic) that narcotics held by the Independence, Missouri Chief
of Police have mysteriously disappeared. Reports also indicate money has
mysteriously disappeared. Reports show that traffic tickets have been
nanipulated. The reports show inappropriate requests affecting the police court
have come from high ranking police officials. Reports indicate that things have
occurred causing the unusual release of felons. The report show gross
inefficiencies on the part of a few of the high ranking officers of the police
department.
“In view of the contents of these reports, I feel that the information in the
reports backed up by signed statements taken by investigators is so bad that the
council should immediately make available to the news media access to copies
of all of these 27 voluminous investigative reports so the public can be told what
has been going on in Independence. I further believe that copies of these reports
should be turned over and referred to the prosecuting attorney of Jackson
County, Missouri for consideration and presentation to the next Grand Jury. I
further insist that the City Manager immediately take direct and appropriate
action, permitted under the Charter, against such persons as are shown by the
investigation to have been involved.
__ “T have been advised that the City Manager has requested the resignation of
the Chief of Police but to date the Chief has not done so. It should be noted that
many persons in the Police Department have come forward in the investigation
of these matters and their efforts are recognized and appreciated. Because these
investigative reports and statements have not been available to the news media,
I respectfully move as follows:
“I move first that the Council instruct the City Manager to immediately
make available to the news medie access to copies of all the 27 voluminous
investigative reports and the statements and attachements therewith.
* “Second:
“That copies of the investigative reports be turned over and referred to the
Jackson County Prosecuting Attorney for presentation to the next.Grand Jury.
* *Third:
*“ “The City Council recommends to the City Manager that he should take all
direct and appropriate action permitted under the Charter against such persons
as are shown by the investigation to have been involved in illegal, wrongful, or
gross inefficient activities brought out in the investigative reports, and to
complete the investigation.’ ”
DE ANS Bee OEE A
~~ ee ee
5
and in press reports solely of his April 17 remarks.Cf Bishop v.
Wood, 426 U.S. 341, 347.”
Owen sued for a hearing and for notice of the reasons for his
discharge, and for backpay and fringe benefits, notwithstanding
that at the time of the operative complaint in this suit, Owen had
exceeded the City’s mandatory retirement age.
Opinion and Decision Below
The Court of Appeals awarded monetary relief solely against
the City of Independence, and solely, App. A at p. 16a, under
direct action under the Fourteenth Amendment, pursuant to 28
U.S.C. §1331.
The basis of the Court of Appeals’ conclusion that Owen's
complaint stated a claim against the City under 28 U.S.C.
§ 1331 was an exegesis, App. A at p. 15a, of the implication
of this Court’s order remanding in City of Kenosha v. Bruno,
412 U.S. 507.
The Court discussed at some length, App. A at pp. 12a-16a,
whether the monetary remedy of bagkpay was inappropriately
applied against the City by analogy to the doctrine of Monroe v.
Pape, 365 U.S. 167, under 42 U.S.C. §1983. After extended
discussion of liability of City officials themselves (for deprivation
of liberty interest without due process), App. A, pp. 18a-21a, the
Court of Appeals below discussed only in the most cursory
fashion whether any liability could be imputed vicariously to the
City government as master of these City officials.
The analysis of the Court of Appeals—which serves as its own
refutation as discussed infra—of the causality requirements of
the law of vicarious liability was:
"Indeed, the District Court found, App. B at p. 6b, and the Court of Appeals
below approved, App. A at p. 7a, that the City Manager affirmatively
exculpated Owen on April 13, 1972.
6
The district court in finding no stigma focused upon the
nondefamatory legal justification for Owen’s discharge
given by the city manager in the discharge notice. That
notice by itself did not case a stigma upon Owen. But
Roberts, in his capacity as a city councilman, released to
the public and to the press a statement impugning Owen’s
honesty and integrity. This statement, allegedly false, was
made at an official meeting of the city council. The city
council itself appeared to lend support to Roberts’ charges
by resolving that the investigative reports be referred to the
county prosecutor for presentation to the grand jury.
Newspapers prominently reported Roberts’ statements and
the city council resolution. Owen’s discharge followed
immediately after the April 17, 1972 meeting. The city
manager notified Owen of his discharge, citing no reasons
for the discharge, but referring only to provisions of section
3.3(1) of the city charter. The fact of the discharge,
Roberts’ statement, and the council action received great
publicity, and the newspapers linked the discharge to the
investigation.
The fact of actual stigma to Owen connected with his
discharge is undeniable, for the action of the City of
Independence as employer served to blacken Owen’s name
and reputation. That the stigmatizing charges did not come
from the city manager and were not included in the
discharge notice is immaterial...” App. A, pp. 21a-22a,
(emphasis in original, footnotes omitted).
REASONS FOR GRANTING THE WRIT
The Court of Appeals stated:
“(T]he crucial issue is whether the government employer, in
connection with the termination of government employment
. makes a charge. . .”
App. A, p. 19a, infra.
7
Of legal moment here is whether the agency and causality
requirements (stigmatizing action of government employer
“in the course of” termination, Pau! v. Davis, 424 U.S. 693,
704) are satisfied by a record revealing discharge by the City
Manager without adopting (indeed, while disavowing) the
arguably stigmatizing comments of a lame duck City Council-
_man forbidden by Charter from interfering with the Manager’s
plenary hiring and firing prerogative.
So stated, the arguable defamation in the instant case is
indistinguishable from the defamation which in Paul, supra,
424 U.S. 697, 701 was held neither to constitute a con-
stitutional violation nor to evoke any due process or mone-
tary remedy in Federal Court.’ The Court of Appeals
below substituted for Paul’s (and Roth’s, 408 U.S. 564, 573)
“course of” requirement of proximate cause (the requirement as
applied to this case being that the defamation be a cause of
Owen’s termination or even that it be uttered by the City official
charged with the power to fire Owen, all in a way remediable by
the notice and hearing provisions of procedural due process) a
mere “connected with” test, which was satisfied here by
inaccurate newspaper reports linking solely by sentence structure
the defamation and the termination to which the Court of
Appeals appended its own inducement and _ innuendo.‘
(... “charges against Owen contemporaneous and, in the eyes of
the public, connected with that discharge.” App. A, at p. 23a.)
If this is within the ambit of scope of employment, authority
and causality to require a City as employer (and master) to
respond in damages without defense,* then the professionalism
and independence of City Managers will be destroyed. The
Indeed, the facts of this case do not rise even to the level of causality and
apparent authority in Wisconsin v. Constantineau, 400 U.S. 433, 437
(“because of what the government is doing to him”), criticized and limited in
Paul, 424 U.S. 693, 708.
‘Cf. W. Prosser, Law of Torts, §111 at 748 (4th ed. 1971).
‘See pp. 8-12, infra.
8
Manager of Independence could have avoided liability on the
part of the City as master under the Court of Appeals’ rule only
by (1) forbidding Councilmen to speak in public session without
the Manager’s prior censorship, or (2) declaring that he intended
to disregard entirely the recommendation of the Council to
investigate City employees’ illegal and inefficient actions.
These untoward results easily are avoided by the application
— which the Court of Appeals failed to follow —not of municipal
immunity from tort but of traditional principles of the law of
vicarious liability of masters for servants’ defamation.
This case, therefore, requires not an expansion of immunity of
either Cities or their officials, but merely the rejection of the
holding below that Cities are strictly liable in monetary relief for
any speculative consequences of torts committed ultra vires by
immune legislators in debate.
=—D
1. The Decision of the Court of Appeals Supplants Established
Principles of Vicarious Manicipal Liability with a Rule of
Strict Liability which Cannot by Any Act of Responsible and
Authorized Municipal Officials Be Avoided.
The Court of Appeals below, App. A at p. 16a, relied on the
cause of action implied in Bivens v. Six Unknown Agents, 403
U.S. 388, 408 n. 8, enabling a Federal Court to make principled
choices among traditional judicial remedies.
No reasoned principle, traditional or otherwise, authorizes the
Federal Courts to exact from City treasuries monetary relief
without a showing of fault or preventability by the municipal
master. Under the rule of this case, no limitation of scope of
employment, no limitation of proximate cause can be operative
to limit vicarious municipal liability to those circumstances
where liability can be avoided by due care and by due attention
to Constitution, statute and charter.
2
If the Court Appeals’ test, App. A, p. 19a, infra, quoted at
page 6 supra, is proper and allowed to stand, if the responsibility
of the government employer is fixed by gratuitous comments
which cannot, as a matter of law under the City Charter, be given
effect in the government’s employment decisions, then govern-
ments at all levels (even the Federal government as defendant,
as it was in Bivens, 403 U.S. 388) will become insurers in tort
against the snide comments of fellow government servants
against their peers, whether made at the watercooler, by dis-
gruntled “‘leakers’’ to journalists, or in purloined internal
memoranda.
In recent years, a number of Courts, relying on Bivens, supra,
have held that a complaint against a municipality alleging a
violation of Federal constitutional rights states a cause of action
over which jurisdiction lies under 28 U.S.C. §1331.° See, e.g.,
Amen v. City of Dearborn, 532 F.2d 554 (6th Cir. 1976); Brault
v. Town of Milton, 527 F.2d 730 (2d Cir. 1975), reversed on
other grounds, 527 F.2d 736 (2d Cir. 1975) (en banc); Cox v.
Stanton, 529 F.2d 47 (4th Cir. 1975); Hostrop v. Board of
Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975).
None of these decisions, however, purport to remove the
defenses available to a municipality under the doctrine of
respondeat superior; municipal liability was predicated upon acts
which were solidly within the scope of authority of the officials
who committed them.’
*This Court has never ruled upon the point, and there is no clear agreement
among the Circuits regarding the circumstances in which Section 1331
jurisdiction is properly invoked, or the type of relief which may properly be
granted. See Adekalu v. New York City, 431 F. Supp. 812, 818 (S.D.N.Y.
1977), and cases cited therein.
"In cases involving the responsibility of supervisory municipal employees for
the acts or ommissions of their subordinates under 42 U.S.C. §1983, the
Courts have required the plaintiff to show the supervisor’s personal
involvement or negligent entrustment of duties. See, e.g., Vinnedge v. Gibbs,
550 F.2d 926 (4th Cir. 1977).
10
In this case, however, the Independence City Council had no
power whatever to discharge the City’s Police Chief, and the
harsh rule fashioned by the Court of Appeals is starkly at odds
with the traditional considerations of respondeat superior which
should have governed.
The Court of Appeals stated:
“It is the fact of the City’s public accusation which is of prime
importance, not which official made the accusation. . .”
In support of this proposition, however, the Court of Appeals
proferred only cases involving no issue whatsoever as to the
official’s authority to fire or dismiss the plaintiff.* (App. A
at p. 23a).
The Court of Appeals decision abrogates the most funda-
mental of agency principles — that, as a matter of law, a master
cannot be required to respond in damages for acts which are
beyond even the apparent authority of a servant. Restatement
(Second) of Agency, §§8C, 166, 167, 247, 265a. Apparent
authority can exist only to the extent that it is reasonable for third
persons to believe that the servant is authorized to do the act in
question, and if the master in a document available to all con-
cerned or otherwise has communicated a disclaimer of any
authorization, the master is not liable. DeBoer Construction,
Inc. v. Reliance Insurance Company, 540 F.2d 486, 491 (10th
Cir. 1976).
Sections 3.3(1) and 2.11 of the Independence City Charter
publicly, specifically and unequivocally remove any trapping of
authority for the Council to terminate the police chief's employ-
ment. Neither Owen, nor the media which reported Roberts’
April 17 remarks, nor the Independence public, could justifiably
*Cox v. Northern Virginia Transportation Commission, 551 F.2d 555,
558 (4th Cir. 1976) (Commissioners fired executive director responsible to
them); Churchwell v. United States, 545 F.2d 59 (8th Cir. 1976) (Public
Health Service fired nurse employed by it); Greenhill v. Bailey, 519 F.2d 5
(8th Cir. 1975) (Executive Committee of medical school dismissed medical
student); Birnbaum v. Trussel, 371 F.2d 672 (2d Cir. 1976) (Commissioner
of Department of Hospitals discharged attending physician at municipal
hospital ).
1]
have assumed Roberts’ statements to constitute the City’s
position with respect to Owen’s firing. Only the City Manager’s
words could commit the City in that regard.
The Court of Appeals’ error, however, does not lie solely in its
failure to give any weight to the Council’s lack of actual or
apparent authority to discharge Owen. The Court of Appeals
decision has the perverse effect of rendering the City as master
liable for failure to retract statements its legislators were
absolutely privileged to make, thereby destroying yet another
traditional limitation to an assertion of vicarious responsibility,
as well as the strong public interest in insulating and avoiding
inhibition of comment — even stigmatizing comment — by
legislators and inhibition of reporting — even false or inaccurate
reporting — of those legislators’ comments by journalists.
Under Missouri law, members of City Councils are absolutely
privileged from liability for any statements made in the course of
Council action of the character involved in this case. Callahan v.
Ingram, 122 Mo. 355, 26 S.W. 1020, 1022 (1894). See also,
Shellburne, Inc. v. New Castle County, 293 F. Supp. 237 (D.
Del. 1968); Tanner v. Gault, 20 Ohio App. 243, 153 N.E. 124
(1925).° The District Court thus properly recognized the
applicability of the privilege in this case. (App. B, p. 21b).
If the agent is privileged, the master is of course not liable. W.
Seavey, Law of Agency, §93 (1964 ed.); Creelman v. Svenning,
67 Wash. 2d 882, 410 P.2d 606 (1966) (county not liable for
malicious prosecution because county prosecutor absolutely
privileged). As the fundamental purpose of shielding legislators
from deterrents to the uninhibited discharge of their duty is “. . .
not for their private indulgence but for the public good,” Tenney
v. Brandhove, 341 U.S. 367, 378, this protection is obviously
not a mere “immunity” which is personal to the holder. W.
’ Seavey, supra, §93; W. Prosser, Law of Torts, §114 n. 66 (4th
°Cf, Weber v. Lane, 99 Mo. App. 69, 71 S.W. 1099 (1903) (qualified
privilege where Council acting in judicial capacity in licensing decisions).
12
ed.) In its disregard for the proper extension of the Councilmen’s
privilege to Independence, the Court of Appeals took a second
long step in the direction of a rule under which a municipality is
strictly responsible for any ultra vires conduct of its legislators.
CONCLUSION
The Court of Appeals decision establishes an unprecedented
and unwarranted rule of strict municipal liability. This rule
affects all municipal governments, but especially the 3,064
-Council-Manager'® municipalities whose structure is designed to
insulate personnel administration from gratuitous political inter-
ference. In these days when more and more able persons reject
public office because of their exposure to enormous, costly
litigation, it is important that this Court settle this issue. A writ
of certiorari should issue to the United States Court of Appeals
for the Eighth Circuit.
International City Management Association, Municipal Year Book 1977
at Table |, 2d prefatory page (1977).
APPENDIX A
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 76-1758 |
George D. Owen, .
Appellant, °
v. °
*
The City of Independence, S
Missouri, Lyle W. Alberg, °
City Manager, Richard A. a
King, Mayor, Charles E. Cornell, °
Dr. Ray Williamson, Dr.Duane °
Holder, Ray A. Heady, °
Mitzi A. Overman, and E. Lee °
Comer, Jr., Members of the .
Council of the City of Inde- .
pendence, Missouri, bd
*
Appellees. °
' Appeals from
. the United
States District
Court for the
Western
District of
2a
No. 76-1799
George D. Owen,
Appellee,
v.
The City of Independence,
Missouri, Lyle W. Alberg,
City Manager, Richard A.
King, Mayor, Charles E. Cornell,
Dr. Ray Williamson,
Dr. Duane Holder, Ray A. Heady,
Mitzi A. Overman, and E. Lee
Comer, Jr., Members of the
Council of the City of Inde-
pendence, Missouri,
Appellants.
*e# #e# # #8 HH HH
Submitted: March 16, 1977
Filed: August 15, 1977
Before VAN OOSTERHOUT, Senior Circuit Judge; BRIGHT
- and ROSS, Circuit Judges.
BRIGHT, Circuit Judge.
Following his discharge in April 1972 as chief of police of
Independence, Missouri, appellant George D. Owen filed this
civil action against the City of Independence, city manager Lyle
W. Alberg, and the present members of the city council in their
3a
official capacities.' Owen seeks a declaration that his discharge
violated his constitutional right to due process, and prays for a
mandatory injunction reinstating? him as chief of police with
backpay. After a bench trial, the district court held that Owen
could assert a claim against the City and its council members in
their official capacities arising directly from the fourteenth
amendment under the general federal question jurisdiction
statute, 28 U.S.C. § 1331, but the court denied Owen relief on
the merits. Owen appeals. Appellees cross-appeal, asserting that
the City and the individual defendants are not amenable to suit
under 28 U.S.C. §1331 and the fourteenth amendment. The
district court opinion is reported at 421 F. Supp. 1110 (W.D.
Mo. 1976).4For reasons stated below, we affirm on the City’s
cross-appeal and reverse and remand on Owen’s appeal.
The district court’s findings of fact, quoted in part below,
furnish the background needed for understanding the issues
presented here:
I. Findings of Fact.
Plaintiff is, and at all times material was, a citizen of the
United States and a resident of the State of Missouri.
Defendant City is a municipal corporation organized and
existing under the laws of the State of Missouri. The City’s
government is organized in the council-manager form
pursuant to a Missouri Constitutional Home Rule city
— adopted December 5, 1961, and amended April 4,
1972.
Defendant Lyle W. Alberg is the duly appointed and
— City Manager and Chief Administrative Officer of
the City.
'These council members replaced those serving on the city council at the
time of Owen's discharge.
The claim for actual reinstatement has been abandoned (but not the backpay
element of a reinstatement remedy) because Owen reached the mandatory
retirement age of sixty-five during the course of the litigation in district court.
4a
Defendant Richard A. King is the duly elected and acting
Mayor of the City and a member of the City Council. He is
the successor of Phil K. Weeks who was, on April 17,
1972, and prior thereto, the City’s Mayor.
Defendants Charles E. Cornell, Dr. Ray Williamson, Dr.
Duane Holder, Ray A. Heady, Mitzi A. Overman, and E.
Lee Comer, Jr., are the duly elected and acting members of
the City Council of the City. They are the successors of
William A. McGraw, Lauzon H. Maxwell, Arthur W.
Lamb, R. M. “Rudy” Bonville, Morris D. McQuinn and
Paul L. Roberts who were the members of the City Council
on April 17, 1972, and prior thereto.
Under Section 3.3(1) of the City’s Charter, the City
Manager is vested with the sole power to
“[a]ppoint, and when deemed necessary for the good
of the service, lay off, suspend, demote, or remove all
directors, or heads of administrative departments and
all other administrative officers and employees of the
Giios
Plaintiff, as Chief of Police, was subject to this provision.
The Charter did not provide that the Chief of Police was
entitled to any notice of reasons, or a hearing, in connection
with the termination of his employment.
The City Council, and its members, are prohibited from
influencing, or interfering with in any manner, the City
Manager’s power of appointment and discharge of City
employees. Section 2.11 of the City Charter provides that:
“{njeither ‘he council, the mayor, nor any of its other
members may direct the appointment of any person to,
or his removal from office or employment by the city
manager or by any other authority, or, except as
provided in this charter, participate in any manner in
the appointment or removal of officers and employees
of the city. Except for the purpose of inquiry, the
council, the mayor, and its other members shall deal
with the administrative servic > solely through the city
manager. . . . If the mayor or any other councilman
violates any provision of this section, he shall be guilty
of a misdemeanor, and upon conviction thereof, shall
cease to be a councilman... .”
Sa
On February 20, 1967, plaintiff was appointed Chief of
Police of the City for an indefinite term by then City
Manager Robert L. Broucek. Prior to that time, he had
served as an assistant to the Chief of Police of Kansas City,
Missouri. Plaintiff was given no contract of employment,
and there was no de facto tenure system which would have
given him a reasonable or legitimate expectation of
continued employment. Plaintiff served as Chief of Pclice
until his employment was terminated effective April 19,
1972, by notice in writing of April 18, 19°72, by the present
City Manager Lyle W. Alberg.
For a substantial period of time prior to March, 1972,
plaintiff and City Manager Albert (sic) had had several sharp
disagreements over plaintiff's administration of the Police
Department, including but not limited to plaintiff's choice of
people for positions in the Department and his administra-
tion of the Police Department’s property room. In early
March, 1972, a handgun, which had been destroyed
according to records of the Department’s property room,
was discovered in the hands of a felon by Kansas City,
Missouri, police. In about mid-March, 1972, City Manager
Alberg initiated an investigation of the property room of the
Police Department initially under plaintiffs direction. Later
in March, 1972, Alberg decided that the investigation
. should be conducted by an independent branch of the city
government. He transferred the two police officers who had
begun the investigation, Sergeant Robert Jackson and
Detective William Reynolds, to the City’s Department of
Law; and directed City Counselor James S. Cottingham
who was head of the Department of Law to supervise the
conduct of the investigation and to report the findings of the
investigation directly to him.
On or before April 12, 1972, City Manager Alberg
received copies of statements of witnesses secured in the
investigation, and reports from the City Auditor and City
Counselor Cottingham. The City Auditor reported that
there were insufficient records in the Police Department
property room to make an adequate audit of the property in
the property room. Cottingham reported in writing to
Alberg that there was no evidence of any criminal acts, or
6a
violation of any state law or municipal ordinances, in ‘he
administration of the property room.
At an informal meeting with several of the City Council
members, which took place on or before April 10, 1972,
City Manager Alberg discussed the investigation and told
the City Council members that he would take action at an
appropriate time to correct any problems in administration
of the Police Department disclosed by the investigation. At
that time, Alberg intended to keep the witness statements
and details of the findings of the investigation confidential.
On April 10, 1972, Alberg communicated by telephone
with plaintiff, who was then on vacation in Las Vegas,
Nevada. Alberg told plaintiff he was dissatisfied with
plaintiff's job performance, and asked plaintiff to resign as
Chief of Police and accept another position in the Police
Department. He told plaintiff that if he refused to accept
another position in the Department, he would be dis-
charged. Plaintiff requested a personal conference with
Alberg in Independence the following day.
On April 11, 1972, Alberg and plaintiff met in Alberg’s
office in Independence. Alberg stated to plaintiff that he
was dissatisfied with plaintiff's administration of the Police
Department, including plaintiff's lack of supervision over
the records section of the Department; the state of those
records; and plaintiff's inadequate administration, and lack
of control, of the property room which had resulted in the
reappearance of supposedly destroyed property in the hands
of other people. Alberg again requested plaintiff to resign as
Chief of Police, and to accept an advisory position with the
Police Department. Plaintiff responded that he was not
interested in another position, and that he would fight to
remain Chief of Police. Alberg told plaintiff that if he
continued to refuse to take another position, his employ-
ment with the City would be terminated.
On April 13, 1972, Alberg had a discussion with
Lieutenant Lawrence L. Cook of the Police Department,
during which he asked Cook if he would be willing to take
the position of Chief of Police. Cook stated that he would.
On the same day, Alberg released a public communication
me we i ae
7a
to the Mayor and City Council concerning the investigation
and audit of the Police Department’s property room, which
stated:
“At my direction, the City Counselor’s office, on
conjunction with the City Auditor have completed a
routine audit of the police property room.
“Discrepancies were found in the administration,
handling and security of recovered property. There
appears to be no evidence to substantiate any
allegations of a criminal nature.
“Steps have been initiated on an administrative level
to correct these discrepancies.”
Alberg’s statement was prominently reported by a local
newspaper.
Alberg was away from Independence on the weekend of
April 15 and 16, 1972. On April 15, he decided to replace
plaintiff with Lieutenant Cook as Chief of Police. However,
he did not inform anyone of his decision, and did not take
formal action to implement his decision until April 18,
1972.
In Alberg’s absence, Assistant City Manager Parley
Banks became the Acting City Manager. During the
‘ weekend, City Councilman Paul L. Roberts requested
copies of the reports of the audit and statements of
witnesses secured in the investigation of the Police
Department property room. Roberts had recently been
defeated for re-election to the City Council, and his term
was to expire following the meeting of the City Council on
the evening of April 17, 1972. Banks, unaware of Alberg’s
intention to keep the details of the reports confidential,
complied with Roberts’ request and delivered the docu-
ments to Roberts without reading them.
During the weekend Roberts read the reports and
unilaterally decided that their contents should be made
public. He secretly drafted a statement to be made by him
without prior notice to anyone, at the City Council meeting
on the evening of April 17, 1972. The statement is
described below.
8a
An informal meeting was held on the morning of April
17, 1972, between Alberg and four members of the City
Council, during which the investigation of the Police
Department was again discussed. At that time, Alberg did
not inform the council members of his intention to discharge
plaintiff; and Councilman Roberts did not disclose his
intention to make a statement concerning the investigation
at the formal meeting of the City Council that evening.
On the evening of April 17, i972, the City Council held a
regularly scheduled meeting. The agenda of the meeting did
not list a statement or motion by Councilman Roberts.
After completion of the scheduled business, Councilman
Roberts read his prepared statement. The statement alleged
that plaintiff had taken two television sets from the property
room of the Police Department for his own personal use;
that numerous firearms in the custody of the Police
Department had “. . . found their way into the hands of
others including undesirables . . .”; that narcotics being held
by the Department “. . , have mysteriously disappeared”’;
that traffic tickets had been manipulated; that inappropriate
requests had been made by “high ranking police officials to
the police court”; “*. . . that things have occurred causing the
unusual release of felons”; and the reports disclosed “gross
inefficiencies on the part of a few of the high ranking officers
of the police department.” Councilman Roberts then moved
that the reports be made public; that they be turned over to
the Prosecuting Attorney of Jackson County; and that the
City Council recommend to the City Manager
““. . , that he should take all direct and appropriate
action permitted under the Charter against such
persons as are shown by the investigation to have been
involved in illegal, wrongful, or gross inefficient
activities brought out in the investigative reports, and
to complete the investigation.”
* * * After discussion of Councilman Roberts’ motion, six
members of the Council voted to approve the motion.
Councilman McGraw abstained from voting on the motion.
On April 18, 1972, City Manager Alberg implemented
his prior decision to discharge plaintiff as Chief of Police.
erent os om et eens cate AN ee eee
9a
On that day plaintiff received a written notice from Alberg
stating merely that his employment as Chief of Police was
“[tlerminated under the provisions of Section 3.3(1) of the
City \harter” effective April 19, 1972. Plaintiff requested
that .verg provide him with written notice of the reasons
for the termination and a hearing in a letter to Alberg dated
April 15, 1972. The letter was not received by Alberg until
after plaintiff's discharge. Both the action of the City
Council and plaintiff's discharge by City Manager Alberg
were prominently reported in lecal newspapers.
After termination of plaintiffs employment, Alberg
referred the investigation reports and statements to the
Prosecuting Attorney of Jackson County, Missouri, for
consideration by a grand jury as recommended by the City
Council. The grand jury subsequently returned a “no true
bill.” Since that time, neither City Manager Alberg nor the
City Council made any further investigation of plaintiff's
administration of the Police Department.
In April 1972, plaintiff's attorney requested a hearing on
the reasons for plaintiff's discharge. The request was denied
by Assistant City Counselor James L. Gillham by a letter
to plaintiff's counsel dated May 3, 1972. [Owen v. City of
Independence, Mo., 421 F. Supp. 1110, 1113-17 (W.D.
Mo. 1976).]
The district court found no causal relationship between
councilman Roberts’ statement, as supported by the city
council’s resolution, and the termination of Owen’s employment.
The record shows, and the district court found, that city manager
Alberg did not subscribe to Roberts’ accusations and that Alberg
publicly stated in his April 13, 1972, report to the city council
that, although the investigation uncovered evidence of ineffi-
ciency in administration of the police department, no evidence of
any criminal activity existed.
The district court also found that when Owen was discharged
neither the members of the city council nor the city manager
knew that a municipal employee discharged in the face of
allegations of improper or immoral conduct was entitled to
10a
receive notice of the reasons for discharge and an opportunity to
clear his name at a hearing.’
Owen did not join former councilman Roberts in this lawsuit.
He did, however, bring an action in the Missouri courts seeking
damages for defamation against Roberts and city manager
Alberg in their individual capacities. Owen settled and dismissed
his case against Roberts, and thereafter also dismissed the state
suit against Alberg.
The federal district court determined that Owen’s procedural
due process claims against the City and its officials for their
failure to give Owen a hearing on his discharge could rest directly
upon the fourteenth amendment and that Owen could bring such
an action in federal court against the City of Independence and
its officials in their official capacities under 28 U.S.C. §1331.
The district court determined, however, that the discharge
deprived Owen of no property interest in his job because he was
an untenured employee, and that the action of the City in
discharging Owen did not so stigmatize him as to deprive him of
“liberty” protected by the fourteenth amendment. As an
alternative ground for denying Owen relief, the district court
ruled that the City could assert a qualified immunity based on the
good faith exercised by its officials in denying Owen a hearing.‘
As the district court noted:
The United States Supreme Court first recognized that a public
employee, who was discharged under circumstances imposing a
“stigma” on his professional reputation and injuring his ability to find
employment in the future, was entitled to notice and a hearing to clear his
name in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33
L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct.
2694, 33 L.Ed.2d 570 (1972). These cases were decided on June 29,
1972, more than two months after plaintiff's discharge. [Owen v. City of
Independence, Mo., supra, 421 F. Supp. at 1118].
‘The district court reasoned that the individual officials sued in their official
capacities had no greater claim to good faith immunity than the City itself
because any award against the officials would be paid from municipal funds.
421 F. Supp. at 1123.
The district court found that the City had established this defense
because, as we have already noted, on the date of Owen’s
discharge neither the city manager nor the members of the city
council knew that the chief of police, an untenured administrative
official of the City, possessed any right to a statement of reasons
for his discharge and an opportunity for a hearing to clear his
name.
The parties present these issues on appeal:
By appellees: ;
1) That 28 U.S.C. §1131° does not support a claim against
the City of Independence and its outicials in their official
capacities arising directly from the Constitution.®
By appellant:
2) That the district court erred in ruling that Owen’s discharge
did not deprive him of a liberty interest without an opportunity
for hearing.
3) That the trial court erred in determining that Owen
possessed -no job tenure rights under Missouri law and thus
suffered no deprivation of property when discharged.
4) That the trial court erred in applying a good faith defense to
claims against the City and its agents in their official capacities.
‘That section in relevant part reads:
(a) The district courts shall have original jurisdiction of all civil
actions wherein the matter in controversy exceeds the sum or value of
$10,000, exclusive of interest and costs, and arises under the
Constitution, laws, or treaties of the United States except that no such
sum or value shall be required in any such action brought against the
United States, any agency thereof, or any officer or employee thereof in
his official capacity.
*Appellees phrase the issue in terms of subject matter jurisdiction. Properly
viewed, however, the issue is whether Owen has stated a claim. Clearly,
Owen’s claim “arises under” the Constitution or laws of the United States, and
is not completely baseless or plainly foreclosed by prior decisions. Thus, 28
U.S.C. §1331 affords a federal district court subject matter jurisdiction over
cases such as this one. See, ¢.g., Mt. Healthy City School Dist. Bd. of Ed. v.
Doyle, 97 S. Ct. 568, 572 (1977); Bell v. Hood, 327 U.S. 678 (1946).
12a
In this regard, appellant particularly notes that good faith does
not bar equitable relief which ordinarily includes backpay as an
incident of reinstatement.
We turn to a consideration of these issues.
I. Right of Action Against the City.
Assuming a constitutional violation, the City and its agents in
their official capacities contend that federal law precludes any
monetary award which must be satisfied by the City.
Although Owen’s complaint alleges jurisdiction under 28
U.S.C. §1343(3) and (4) and 42 U.S.C. § 1983 (as well as 28
U.S.C. §1331), it is clear that no action lies against the
municipality under sections 1343(3) and (4) and 1983, because
the City is not a “person” within the meaning of section 1983.
City of Kenosha v. Bruno, 412 U.S. 507 (1973); Monroe v.
Pape, 365 U.S. 167 (1961). Owen asserts, however, that his
claim to retrospective monetary relief is not barred under either
of two theories: (1) the individual defendants, in their official
capacities, may be ordered under section 1983 to grant Owen a
hearing and backpay from city funds under their control; or (2)
the City is subject to suit for reinstatement and backpay under an
implied right of action arising directly from the fourteenth
amendment, and the district court possessed subject matter
jurisdiction over that claim under 28 U.S.C. §1331._
The individual defendants are, both in their official and
individual capacities, ““‘persons’”’ under section 1983, subject to
federal suits in equity to remedy unconstitutional behavior. It is
also true that in section 1983 actions against government
administrators, monetary relief in the form of backpay to be
awarded from public funds under the defendants’ control may be
awarded as part of an equitable decree. See, e.g., Wellner v.
Minnesota State Junior College Board, 487 F.2d 153, 156-57
(8th Cir. 1973); Cooley v. Board of Education of Forrest City
School Dist., 453 F.2d 282 (8th Cir. 1972). Owen argues that
he may recover backpay from the individual appellees in their
official capacities as part of general equitable relief, even though
13a
the backpay award would be paid by the City, which could not be
held directly liable for backpay under section 1983, because it is
not a “person” within the meaning of section 1983. This position
has some support. See, e.g., Lytle v. Commissioners of Election
of Union County, 541 F.2d 421, 426 (4th Cir. 1976), pet. for
cert. filed, 44 U.S.L.W. 3739 (U.S. June 22, 1976); Burt v.
Board of Trustees of Edgefield County School Dist., 521 F.2d
1201, 1205-06 (4th Cir. 1975); Incarcerated Men of Allien
County Jail v. Fair, 507 F.2d 281,288(6th Cir. 1974); Dyson v.
Lavery, 417 F. Supp. 103, 109 (E.D. Va. 1976); Adamian vy.
University of Nevada, 359 F.2d 825 (D. Nev. 1973), rev'd on
other grounds sub nom. Adamian v. Jacobsen, 523 F.2d 929
(9th Cir. 1975); Developments in the Law: Section 1983 and
Federalism, 90 Harv. L. Rev. 1133, 1197-99 (1977).
Other courts have rejected this theory, however. They argue
that a monetary award under section 1983, even if made part of
equitable relief ordered in a suit against a city official, is really a
judgment against the city, if the award is v be satisfied from city
funds, and is therefore barred by City of Kenosha v. Bruno,
supra, and Monroe v. Pape, supra. These cases draw an analogy
to Edelman v. Jordan, 415 U.S. 651 (1974), which held that a
request for retroactive welfare benefits, even if entitled
“equitable restitution” and made part of an equitable decree in a
suit against a state official, is in reality a suit against the state
barred by the eleventh amendment if the retroactive benefits are
to be paid from the state treasury. See, e.g., Monell v.
Department of Social Services of City af New York, 532 F.2d
259, 264-67 (2d Cir. 1976), cert. granted, ___. U.S. ____ , 97
S. Ct. 807 (1977) (No. 75-1914); Muzquiz v. City of San
Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc), pet. for cert.
filed, 44 U.S.L.W. 3703 (U.S. May 23, 1976) (No. 75-1723);
Patton v. Conrad Area School Dist., 388 F. Supp. 410 (D. Del.
14a
1975).’ This analogy is criticized in Developments in the Law:
Section 1983 and Federalism, supra, 90 Harv. L. Rev. at 1198-
99.
However, we need not choose between the conflicting
approaches to Owen’s claims that he may obtain monetary relief
from the City through the individual city officials in their official
capacities under section 1983, because we are convinced that
Owen has established a claim on his second theory, that of an
implied right of action arising from the Constitution itself.
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), clearly recognized that a
federal “court of law vested with jurisdiction over the subject
matter of a suit has the power—and therefore the duty—to make
principled choices among traditional judicial remedies” to
vindicate rights arising from positive law, such as the Constitu-
tion, without express congressional authorization. 403 U.S. at
408 n.8 (Harlan, J., concutring). We are confronted with the
fundamental questions of whether the remedies Owen seeks
against the City of Independence are available as “necessary” or
“appropriate” to the vindication of fourteenth amendment
values, see Bivens, supra, 403 U.S. at 397; id. at 406 (Harlan,
J., concurring), and whether Congress has expressly decided that
a person injured by a municipal violation of the Constitution may
not recover money from the city but must be limited to remedies
against others specifically provided by Congress, Bivens, supra,
403 U.S. at 397.
Some courts have held that municipal immunity from suit
under section 1983 necessarily indicates that Congress intended
These holdings are not necessarily inconsistent with our cases awarding
‘ backpay to be paid by school districts, e.g., Wellner v. Minnesota State Junior
College Bd., supra, 487 F.2d 153; Cooley y. Board of Educ. of Forrest City
School Dist., supra, 453 F.2d 282. The parties in these cases did not question
the school boards’ status as “‘persons”’ under section 1983. In at least one case,
we have assumed that school boards are “‘persons” suable under section 1983,
Keckeisen v. Independent School District 612, 509 F.2d 1062, 1064-65 (8th
Cir.), cert. denied, 423 U.S. 833 (1975).
1Sa
to immunize local government units from monetary liability
under 28 U.S.C. §1331 and the fourteenth amendment. See,
e.g., Raffety v. Prince George’s County, 423 F. Supp. 1045 (D.
Md. 1976); Farnsworth v. Orem City, 421 F. Supp. 830 (D.
Utah 1976); Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D.
Pa. 1976); Turano v. Board of Educ. of Island Trees Union
Free School Dist. No. 26, 411 F. Supp. 205 (E.D. N.Y. 1976);
Mitchell v. Libby, 409 F. Supp. 1098 (D. Vt. 1976); Snead v.
Department of Social Services of City of N.Y¥., 409 F. Supp.
995, 1001-02 (S.D. N.Y. 1975) (three-judge court) (Mulligan,
J., concurring); Weathers v. West Yuma County School Dist. R-
J-1, 387 F. Supp. 552 (D. Colo. 1974), aff'd, 530 F.2d 1335
(10th Cir. 1976); Smetanka v. Bourough of Ambridge, 378 F.
Supp. 1366 (W.D. Pa. 1974); Perzanowski v. Salvio, 369 F.
Supp. 223 (D. Conn. 1974). The Supreme Court has not
expressly resolved the issue. See, e.g., Mt. Healthy City School
Dist. Bd. of Education v. Doyle, 97 S. Ct. 568, 571 (1977);
Aldinger v. Howard, 427 U.S. 1, 4 n.3 (1976). However, the
Supreme Court may well have already rejected local govern-
mental immunity under section 1983 as a basis for disallowing
an implied right of action against local governments under the
fourteenth amendment. In City of Kenosha v. Bruno, supra, the
Supreme Court held that section 1983 does not permit equitable
relief against a city, but remanded the case to the district cuurt to
determine whether the prerequisites for general federal question
jurisdiction under 28 U.S.C. §1331 were met and for
reconsideration of the merits in light of several intervening
decisions. See 412 U.S. at 514, 515. Against the City of
Kenosha, the issues on the merits could only be considered if
there were an implied right of action against the city, because
relief was vnavailable under section 1983. The Supreme Court
apparently did not view section 1983 as limiting the power of
federal courts to imply remedies from the Constitution against a
municipal corporation such as the City of Kenosha. See City of
Kenosha v. Bruno, supra, 412 U.S. at 516 (Brennan, J.,
16a
concurring); Hostrop v. Board of Junior College District No.
$15, 523 F.2d 569, 577 (7th Cir. 1975), cert. denied, 425 U.S.
963 (1976); Dahl v. City of Palo Alto, 372 F. Supp. 647, 650
(N.D. Cal. 1974); Note, Damage Remedies Against Munici-
palities For Constitutional Violations, 89 Harv. L. Rev. 922,
941-42 (1976) (hereafter cited as Note, Damage Remedies).
But see Pitrone v. Mercadante, 420 F. Supp. 1384, 1388 (E.D.
Pa. 1976).
The majority of those courts considering these issues have
concluded that monetary relief such as backpay may be awarded
against local governmental entities on a Bivens theory, even
though those governmental units are immune from section 1983
liability, and that such a remedy is an appropriate one to
vindicate constitutional rights in proper cases.* Thus, we agree
with the district court, 421 F. Supp. at 1119, that Owen may
assert a claim for monetary relief under the fourteenth
amendment against the City of Independence.* See Stapp v.
Avoyelles Parish School Bd., 545 F.2d 527, 531 n.7 (Sth Cir.
1977); Amen v. City of Dearborn, 532 F.2d 554, 559 (6th Cir.
1976); Reeves v. City of Jackson, Ms., 532 F.2d 491, 495 (Sth
Cir. 1976); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975); Brault
*As explained in the section of this opinion dealing with the remedy to be
awarded Owen, infra, monetary relief in the nature of backpay is an “ordinary”
or “necessary” remedy for the unlawful discharge of a public employee.
%We emphasize that, given the facts of this case, we discuss only an equitable
remedy, which may include backpay, for an illegally discharged public
employee. We do not intend to imply that municipalities are monetarily liable
for each and every constitutional violation committed by their agents. For
example, cases such as Adekalu v. New York City, 431 F. Supp. 812 (S.D.
N.Y. 1977), Crosley v. Davis, 426 F. Supp. 389 (E.D. Pa. 1977), and
Gresham v. City of Chicago, 405 F. Supp. 410 (N.D. Ill. 1975), which refused
to hold cities liable on a Bivens theory for brutality, false arrest and
imprisonment, and unlawful search and seizure committed by individual police
officers, absent proof that the cities’ policy-making agencies or officials
knowingly encouraged or tolerated such conduct, involve considerations of
vicarious liability not present in this case where the conduct of the city’s highest
ranking officials allegedly resulted in the constitutional violation.
17a
v. Town of Milton, 527 F.2d 730 (2d Cir.), rev'd on other
grounds, id. at 736 (2d Cir. 1975) (en banc); Hostrop v. Board
of Junior College District No. 515, supra, 523 F.2d 569; Gray
v. Union County Intermediate Education District, 520 F.2d
803, 805 (9th Cir. 1975); Calvin v. Conlisk, 520 F.2d 1 (7th
Cir. 1975), vacated and remanded on other grounds, 424 U.S.
902, cert. denied sub nom. Afro-American Patrolmen’s League
v. Conlisk, 424 U.S. 912 (1976); Hanna v. Drobnick, 514 F.2d
393 (6th Cir. 1975); Skehan v. Board of Trustees of
Bloomsburg State College, 501 F.2d 31, 41-44 (3d Cir. 1974),
vacated and remanded on other grounds, 421 U.S. 983 (1975);
Adekalu v. New York City, 431 F. Supp. 812 (S.D. N.Y. 1977);
Sedule v. Capital School Dist., 425 F. Supp. 552 (D. Del.
1976); Sanabria v. Village of Monticello, 424 F. Supp. 402
(S.D. N.Y. 1976); Sixth Camden Corp. v. Township of
Evesham, 420 F. Supp. 709 (D. N.J. 1976); Behan v. City of
Dover, 419 F. Supp. 502 (D. Del. 1976); Sheets v. Stanley
Community School Dist. No. 2, 413 F. Supp. 350, 351 (D.
N.D. 1975), aff'd, 532 F.2d 111 (8th Cir. 1976); Demkowicz v.
Endry, 411 F. Supp. 1184 (S.D. Ohio 1975); Collum v.
Yurkovich, 409 F. Supp. 557 (N.D. Ill. 1975); Panzareilla v.
Boyle, 406 F. Supp. 787 (D. R.I. 1975); Williams v. Brown,
398 F. Supp. 155 (N.D. Ill. 1975); Everett v. City of Chester,
391 F. Supp. 26 (E.D. Pa. 1975); Dahl v. City of Palo Alto, 372
F. Supp. 647 (N.D. Cal. 1974).
The City also suggests in its brief that the Missouri rule of
sovereign immunity for municipalities shields it from liability.
The short answer to this contention is that this case presents a
federal question in which state law does not control. As indicated
in our discussion of remedies, infra, backpay is an appropriate
remedy to vindicate the federal rights of illegally discharged
public empicyees such as Owen, and contrary state immunity
defenses cannot, consistent with the Supremacy Clause, protect
the City. Hampton v. City of Chicago, 484 F.2d 602, 607 (7th
Cir. 1973), cert. denied, 415 U.S. 917 (1974); Sullivan v.
18a
Murphy, 478 F.2d 938, 972 (D.C. Cir), cert. denied, 414 U.S.
880 (1973); Maybanks v. Ingraham, 378 F. Supp. 913, 916 n.2
(E.D. Pa. 1974); Note, Damage Remedies, supra, 89 Harv. L.
Rev. at 955-56.
Il.
The Liberty Interest.
Despite the obviously derogatory and stigmatizing nature of
Robert’s statement on April 17, 1972 (one day preceding the
actual discharge), the district court held that Owen had not been
deprived of a constitutionally protected interest in liberty,’°
relying on three arguments. First, the district court reasoned that
the only official reason for Owen’s discharge by the city
manager, the official with sole power to discharge the chief of
police, was that Owen was “[tjermininated under the provisions
The text of Roberts’ statement, which is reproduced in full at 421 F. Supp.
1116 n.2, in part recites:
On Saturday, April 15th for the first time I was able to see these 27
voluminous reports. The contents of these reports are astoundingly
shocking and virtually unbelievable. They deal with the disappearance of
2 or more television sets from the police department and signed statement
that they were taken by the Chief of Police for his own personal use.
“The reports show that numerous firearms properly in the police
department custody found their way into the hands of others including
undesirables and were later found by other law enforcement agencies.
“Reports whow (sic) that narcotics held by the Independence Missouri
Chief of Police have mysteriously disappeared. Reports also indicate
money has mysteriously disappeared. Reports show that traffic tickets
have been manipulated. The reports show inappropriate requests
affecting the police court have come from high ranking police officials.
Reports indicate that things have occurred causing the unusual release of
felons. The reports show gross inefficiencies on the part of a few of the
high ranking officers of the police department. [Owen v. City of
Independence, Mo., 421 F. Supp. 1110, 1116 n.2 (1976).]
19a
of Section 3.3(1) of the City Charter [,]’’ which provided for
discharge merely for the “good of the service.” Thus, according
to the district court, there exist no statements in Owen’s official
record which could possibly stigmatize Owen. 421 F. Supp. at
1121.
Secondly, the district court determined that there was no
“causal connection” between Owen’s discharge and the state-
ment made by councilman Roberts and the actions taken by the
city council. The court pointed out that before the council
meeting of April 17, 1972, city manager Alberg had already
decided to discharge Owen. Moreover, the city council and its
members were prohibited by the city charter to attempt to
influence the city manager’s decision regarding hiring and firing
of employees. See 421 F. Supp. at 1121.
Thirdly, the distrct court reasoned, 421 F. Supp. at 1121-22,
that Owen was completely exonerated from any charges of
criminal or immoral conduct by the city counselor’s and city
manager’s pre-April 17th statements that the investigation had
uncovered no evidence of illegal conduct in the police
department, and by the county grand jury’s subsequent return of
a “no true bill.”
We disagree. In determining whether a government employer
has deprived its employee of a liberty interest in the termination
of employment, the crucial issue is whether the government
employer, in connection with the termination of government
employment, including a refusal to rehire or reemploy, makes a
charge which might seriously damage the employee’s standing
and reputation in the community. Bishop v. Wood, 426 U.S. 341
(1976); Board of Regents v. Roth, 408 U.S. 564, 573 (1972).
Compare Codd v. Velger, ___ U.S. ___., 97 S.Ct. 882 (1977);
Paul v. Davis, 424 U.S. 693, 708-710 (1976); Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971).
The elements of a claim for deprivation of liberty on the part of
a public employee, first enunciated by the Court in Roth, have
been clarified in Bishop and Codd, as well as in the related case
20a
of Paul v. Davis, supra. In Bishop, supra, the city manager on
recommendation of the police chief discharged a policeman for
reasons of conduct “unsuited to an officer.” 426 U.S. at 343. In
addressing the liberty claim, Mr. Justice Stevens, writing for the .
majority, made reference to the elements necessary to establish
the claim, i.e., that the reasons given for the discharge may
severely damage the employee’s reputation in the community
and that the employee claims those reasons were false. Jd. at
347. In that case, petitioner could not establish his right to
recovery because the city did not publicly disclose the asserted
reasons for the discharge decision.
In Codd v. Velger, supra, Velger complained that he had been
wrongly dismissed as a New York policeman without a hearing
or statement of reasons. A potential employer in examining
Velger’s personnel file “ ‘gleaned that plaintiff [Velger] had been
dismissed because while still a trainee he had put a revolver to
his head in an apparent suicide attempt.’ ” 97 S.Ct. at 883,
quoting the findings of the district court. The Court held that
policeman Velger did not state a claim because the record
disclosed that he had failed to allege the falsity of the stated
reasons for the dismissal. Thus, a hearing could clear his name.
The Velger Court explained as follows:
Assuming all of the other elements necessary to make out
a claim of stigmatization under Roth and Bishop, the
remedy mandated by the Due Process Clause of the
Fourteenth Amendment is “an opportunity to refute the
charge.” 408 U.S., at 573, 92 S.Ct. at 2707. “The purpose
of such notice and hearing is to provide the person an
opportunity to clear his name,” id., n. 12. But if the hearing
mandated by the Due Process Clause is to serve any useful
purpose, there must be some factual dispute between an
employer and a discharged employee which has some
significant bearing on the employee’s reputation.
** *
But the hearing required where a nontenured employee
has been stigmatized in the course of a decision to terminate
2la
his employment is solely “to provide the person an
opportunity to clear his name.” If he does not challenge the
substantial truth of the material in question, no hearing
would afford a promise of achieving that result for him. For
the contemplated hearing does not embrace any determina-
tion analogous to the “second step” of the parole revocation
proceeding, which would in effect be a determination of
whether or not, conceding that the report were true, the
employee was properly refused re-employment. Since the
District Court found that respondent had no Fourteenth
Amendment property interest in continued employment, the
adequacy or even the existence of reasons for failing to
rehire him presents no federal constitutional question. Only
if the employer creates and disseminates a false and
defamatory impression about the employee in connection
with his termination is such a hearing required. Roth, supra;
Bishop, supra. |Id. at 883-84 (footnote omitted). ]
In Paul v. Davis, supra, Davis complained that a defamatory
flyer issued by the chief of police of Louisville, naming Davis as
an active shoplifter, deprived the complainant of “liberty”
or “property” secured against state deprivation by the Due
Process Clause. The Court, although rejecting the claim that an
interest in one’s reputation alone is protected by the Due Process
Clause, reaffirmed its decision in Board of Regents v. Roth, 408
U.S. 564 (1972), with the following language:
Thus it was not thought sufficient to establish a claim under
§ 1983 and the Fourteenth Amendment that there simply
be defamation by a state official; the defamation had to
occur in the course of the termination of employment.
Certainly there is no suggestion in Roth to indicate that a
hearing would be required each time the State in its
capacity as employer might be considered responsible for a
statement defaming an employee who continues to be an
employee. [424 U.S. at 710 (emphasis added).]
The district court in finding no stigma focused upon the
nondefamatory legal justification for Owen’s discharge given by
the city manager in the discharge notice. That notice by itself did
22a
not cast a stigma upon Owen. But Roberts, in his capacity as a
city councilman, released to the public and to the press a
statement impugning Owen’s honesty and integrity. This
statement, allegedly false, was made at an official meeting of the
city council. The city council itself appeared to lend support to
Roberts’ charges by resolving that the investigative reports be
referred to the county prosecutor for presentation to the grand
jury. Newspapers prominently reported Roberts’ statement and
the city council resolution. Owen’s discharge followed imme-
diately after the April 17, 1972 meeting. The city manager
notified Owen of his discharge, citing no reasons for the
discharge, but referring only to provisions of section 3.3(1) of the
city charter. The fact of the discharge, Roberts’ statement, and
the council action received great publicity, and the newspapers
linked the discharge to the investigation."
The fact of actual stigma to Owen connected with his discharge
is undeniable, for the action of the City of Independence as employ-
er served to blacken Owen’s name and reputation. That the stigma-
tizing charges did not come from the city manager and were not
included in the discharge notice is immaterial, because the official
'1A lead article in the Independence, Missouri, Examiner for April 18, 1972,
reported:
The dismissal of the 35-year veteran police officer came on the heels of
a massive police department audit of the property room and investigation
into other areas of the department.
The reports of that investigation were delivered to J. D. Williamson,
an assistant Jackson County prosecutor, late Tuesday by one of the
report investigators, Sgt. Robert Jackson.
Lyle Alberg, city manager, made no comment on the firing but did
name Lt. Lawrence Cook, a ten-year veteran of the department, as the
new chief. Cook began his new duties today.
While city manager Alberg did not subscribe to councilman Roberts’
derogatory remarks obout Owen, his later public announcement that he was
referring the investigative reports to the county attorney for submission to the
grand jury did reinforce the city council's implication of wrongdoing against
Owen.
23a
actions of the city council released charges against Owen contem-
poraneous and, in the eyes of the public. connected with that
discharge. It is the fact of the City’s public accusation which is of
prime importance, not which official made the accusation. See
Cox v. Northern Virginia Transportation Commission, 551 F.2d
555, 558 (4th Cir. 1976); Churchwell v. United States, 545 F.2d
59 (8th Cir. 1976); Greenhill v. Bailey, 519 F.2d 5 (8th Cir.
1975); Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966).
Finally, the secret deliberations of a grand jury cannot be
deemed exoneration for one stigmatized in his employment or the
equivalent to the due process right of an employee subject to
dismissal to attempt to “clear his name” in hearings which can be
open to the public. See Codd v. Velger, 97 S.Ct. at 883-84.
Accordingly, we hold that the action of the City of Indepen-
dence deprived Owen of liberty without due process of law, in
violation of Owen’s rights under the fourteenth amendment.
Ill.
Property Interest.
The city charter of Independence provides in section 3.3(1) that
a department head, such as the chief of police, may be removed by
the city manager only “when deemed necessary for the good of the
service.” Owen contends here, as he did in the district court, that
this city charter provision granted him a continuing contract as
police chief, subject only to termination for cause. Therefore, he
claims the protections of procedural due process in termination.
The city charter makes no express provision for a termination
hearing for department heads, but it also does not expressly deny
that right.
Appellant relies principally on Arnett v. Kennedy, 416 U.S.
134 (1974). In that case, a federal employee, Kennedy, attacked
the discharge procedures under the Lloyd-LaFollette Act, 5
24a
U.S.C. §7501, and attendant regulations, which did not extend to
nonprobationary federal employees such as Kennedy the right toa
full trial-type hearing before removal. Although the Supreme
Court in a divided series of opinions rejected Kennedy’s claim, six
of the nine justices agreed that Kennedy’s government employ-
ment was one which could be terminated only for cause, i.e.,
-“such cause as will promote the efficiency of the service,” 5
U.S.C. §7501(a), and that such statutory language created a
property interest in employment, entitling the employee to some
form of a due process hearing prior to discharge.
Subsequently, in Bishop v. Wood, 426 U.S, 341 (1976), the
Court considered the case of a Marion, North Carolina, police
officer, who was classified as a permanent employee and covered
by provisions of an ordinance which specified that an employee
might be discharged if he failed “to perform work up to the
standard of the classification held, or continues to be negligent,
inefficient, or unfit to perform his duties***.”’ Jd. at 344 n.5 The
Court rejected Bishop’s claims to a property interest in his job
because North Carolina precedent supported the lower court’s
conclusion that despite the language of the ordinance quoted
above, that ordinance granted no right to continued employment,
but merely conditioned an employee’s removal upon compliance
with certain specified procedures. Id. at 345. Thus, Bishop
teaches that the Supreme Court’s interpretation of a federal statute
does not control the interpretation of similarly worded state laws.
While some of the Missouri cases which interpret statutes
allowing discharge of public employees “for the good of the
service.” appear to support Owen’s position, see State ex rel. Reid
v. Walbridge, 119 Mo. 383, 24 S.W. 457 (1893); State ex rel.
Denison v. City of St. Louis, 90 Mo. 19, 1 S.W.757 (1886); State
ex rel. Eckles v. Kansas City, 257 S.W. 197, 200-OL (Mo. App.
1923); see also Friedman v. Miller, 525 S.W.2d 770, 772 (Mo.
App. 1975), the state supreme court’s opinion in State v.
Crandall, 269 Mo. 44, 190 S.W. 889 (1916) (en banc) supports
the position of the appellee that Owen possessed no property
interest in his job. The state court there said:
25a
[W]here the power to remove is given, expressly or by
necessary implication, in the Enabling Act, by words or
terms denoting that it may be exercised in discretion, such
power, to the extent thus given, is ex hypothesi, one which
may be exercised whenever in the mind and judgment of the
donee of the power the fact or thing exists upon which his
discretion is rested. In the case at bar the statute in express
terms tells the Governor to remove any commissioner “upon
his being fully satisfied” of “‘the alleged official misconduct”
of such commissioner. It therefore falls within the exact
terms of the proposition last stated * * *. [190 S.W. at 891.]
The provision of the charter which authorizes the city manager
to “[alppoint, and when deemed necessary for the good of the
service * * * remove all directors or heads of administrative
departments” may be fairly interpreted as conferring upon the city
manager the power to remove such officers at will. [Emphasis
added]. The city manager’s power to discharge seems analogous to
that of the governor in Crandall, who could discharge “upon his
being fully satisfied” that there was misconduct. Under Missouri
law, such language confers the power to discharge at will.
The district court determined that under the home rule provi-
sions of the Missouri Constitution, the applicable law is the
charter of the City of Independence. The court construed that
charter not to provide rights to a notice and hearing for an
employee who is an administrative department head such as
Owen, and responded to appellant’s argument that he was entitled
to a hearing with this language: |
Plaintiff argues that in spite of the fact that heads of
administrative departments are not expressly accorded rights
to notice and a hearing, such rights are to be implied from the
fact that heads of administrative departments were made
dischargeable only “when necessary for the good of the
service.” However, from Sections 3.28 and 3.1 of the
Charter, it is clear that the drafters of the Charter knew how
to expressly provide for rights to notice and a hearing when
such rights were intended. In view of the express provision of
such rights tu other employees, it is unlikely that the drafters
26a
intended to accord heads of administrative departments such
rights by implication through use of the phrase “for the good
of the service.” Rather the absence of an express provision of
such rights is persuasive evidence that no such rights were
intended to exist. [421 F. Supp. at 1125.]
We can find no specific Missouri case law to the contrary.
While the question is one not entirely free from doubt, under these
circumstances we are required to give great weight to the views of
the district judge, wo is familiar with the local law. See
Merchants Mutual Bonding Co. v. Appalachian Ins. Co., No.
76-1334 (8th Cir., June 16, 1977); Rodeway Inns of America,
Inc. v. Frank, 541 F.2d 759, 767 «8th Cir. 1976), cert. denied, —
U.S. ___, 97 S.Ct. 1580 (1977), Luke v. American Family
Mut. Ins. Co., 476 F.2d 1015 (8th Cir.) (en banc), cert. denied,
414 U.S. 856 (1973).
Accordingly, we reject Owen’s contention that he possessed a
property interest in continued employment as chief of police of
the City of Independence.
IV.
Remedy.
We held in Wellner v. Minnesota State Jr. College, 487 F.2d
153 (8th Cir. 1973), that when an untenured employee of a state
agency is, upon discharge, stigmatized by the release of defama-
tory information by his employer and denied the right to clear his
name in a public hearing, that employee is entitled to judgment
including lost wages, but not actual reinstatement.’ In that case
we said:
"The court majority in Bishop v. Wood, supra, 426 U.S. 341, commented
that
{t]he federal court is not the appropriate forum in which tq review the
multitude of personnel decisions that are made daily by public agencies.
We must accept the harsh fact that numerous individual mistakes are
inevitable in the day-to-day administration of our affairs. The United
States Constitution cannot feasibly be construed to require federal
(continued)
27a
Wellner [the state employee] was improperly discharged
because he was not accorded an appropriate hearing. His
termination was therefore a nullity and he remains on the
payroll until a proper hearing is held, at which time he may
be retained or not reappointed. It is not within our province to
speculate that after a proper hearing clearing his reputation
the Board will recommend that Wellner not be reappointed,
or that the appropriate official will not reappoint him to a
similar teaching position. In any event, Wellner remains on
the payroll and is entitled to receive the wages he will have
earned until his name is cleared by proper Board action and
the decision is properly made with respect to whether he will
be reappointed. [487 F.2d at 157. ]
As we have noted, Owen’s age bars him from qualifying to
serve further as chief of police, so vindication of his good name
could not restore Owen to this job at this time. Moreover, in light of
the findings by the district court that the city manager, prior to
April 17, 1972, had decided to discharge plaintiff for reasons
which apparently did not relate to Owen’s honesty or integrity, a
full backpay remedy would afford Owen a windfall at the expense
of the municipality and the municipal taxpayers. A person
deprived of constitutional rights by the Government is entitled to
relief only to the extent of the harm sustained, Codd v. Velger,
supra, 97 §.Ct. at 884; to the extent that the constitutional
violation causes no injury, no remedy is called for, Mt. Healthy
City School District v. Doyle, supra, 97 S.Ct. at 575. Thus, in its
remedial aspects, this case can be distinguished from Wellner, for
there one could not say whether or not the discharged employee
would have retained his job after a public hearing.
(footnote continued from preceding page)
judicial review for every such error. [/d. at 349-50 (footnote omitted). ]
Footnote 14 at p. 349 adds, in part:
The fact of the matter, however. is that the instances in which the federal
judiciary has required a state agency to reinstate a discharged employec
for failure to provide a pretermination hearing are extremely rare.
28a
However, merely to order that the City now give Owen a hear-
ing would amount to no relief at all. Although Owen would not
have remained chief of police even after a hearing, it seems likely
that he was still employable in the law enforcement field and that
Roberts’ charges adversely affected Owen’s employability. The
record discloses that the city manager did offer Owen a different
position with the City when Owen’s resignation was demanded.
In addition, he did work at some other security jobs during the
period between his discharge and the time when he would have
retired. However, the record shows that Owen sought other similar
employment opportunities and that at least one such opportunity
was denied him because of the adverse publicity surrounding his
discharge. We believe some amount of compensatory relief is
appropriate here. The present record’* can furnish an adequate
basis for the district court to determine the proper amount of
compensation, measured by the amount of money he likely would
have earned to retirement if he had not been deprived of his good
name by the action of the City, subject to mitigation, including the
amounts earned up to retirement age as well as the amount, if any,
recovered from councilman Roberts in the state defamation suit.
The award against the municipality here, while not strictly
backpay, is in lieu of backpay and represents a form of equitable
relief, because, as explained in the Wellner case, Owen’s termina-
tion without an appropriate hearing must be deemed a nullity; he
remains on the payroll and is entitled to backpay. As we have
noted, however, he is not entitled to a windfall.
'3At the district court’s discretion, it may permit the parties to supplement the
record by such additional evidence as may be available bearing upon Owen's
likely earnings to retirement in the absence of his being deprived of his good
name.
29a
Vv.
Good Faith Defense.
The good faith of the municipality does not constitute a defense
to exaction of monetary relief as an element of equitable relief.
Backpay has been often considered an incident to equitable relief.
See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48
(1937); Harkless v. Sweeny Independent School Dist., 427 F.2d
319, 324 (Sth Cir. 1970), cert. denied, 400 U.S. 991 (1971).
In making available to the City the defense of good faith, the
district court relied on the elements of that defense applied in
section 1983 actions against state officials, as enunci 1ted in Wood
v. Strickland, 420 U.S. 308, 319-21 (1975), and Scheuer v.
Rhodes, 416 U.S. 232, 241-42 (1974). Wood v. Strickland notes
that “immunity from damages does not ordinarily bar equitable
relief as well.”"420 U.S. at 314-15 n. 6. To the extent that backpay
or a lesser equivalent qualifies as equitable relief, the immunity
ruling of the Wood case ought not to apply.
Moreover, the primary justification for the defense of good faith
in Wood, to insure that public officials will not hesitate to
discharge their duties out of fear of personal monetary liability, see
420 U.S. 319-21, does not exist where the city itself will bear the
monetary award. In Hander v. San Jacinto Junior College, 519
F.2d 273, rehearing denied, 522 F.2d 204 (Sth Cir. 1975), which
involved an illegally discharged college professor, the court
refused to apply the immunity rule of Wood v. Strickland, stating:
The Wood rationale, however, is inapplicable to the
instant case because the backpay award is entered against
San Jacinto Junior College itself and not against the individ-
ual members of the Board of Regents. [519 F.2d at 277 n. 1.]
See also Developments in the Law: Section 1983 and Fed-
eralism, supra, 90 Harv. L.Rev. at 1217-20; Note, Damages
Remedies, 89 Harv. L.Rev. at 955-58.
30a
In addition to the Wellner case previously cited, this court in
Cooley v. Board of Educ. of Forrest City School Dist., 453 F.2d
282, 287 (8th Cir. 1972), awarded backpay against a school board
in favor of an unconstitutionally discharged schoolteacher. Al-
though Wellner and Cooley arose under section 1983, the
backpay liability was assessed against the school officials in their
official capacities and constituted an obligation of the school
districts themselves, not the individual defendants. If equitable
relief will be against a school board without regard to the board’s
good faith as it did in Wellner and Cooley, we perceive no reason
to extend a qualified good faith immunity to a city which has
inflicted similar injury to an employee’s reputation in the course of
discharging that employee.
Whether good faith may be a defense to a municipality in an
action for damages apart and aside from backpay or its equivalent,
see, e.g., Hostrop v. Board of Junior College Dist. No. 515, 523
F.2d 569, 579 (7th Cir. 1975), cert. denied, 425 U.S. 963 (1976)
(damages for violation of intangible constitutional rights) is a
matter which we do not address in this opinion.
Finally, in determining that the city officials acted in good faith,
the district court focused upon the City’s failure to give Owen a
hearing. The city manager and the members of the city council,
except councilman Roberts, all testified and asserted that they did
not know in April 1972, that an employee in Owen’s position
was entitled to a hearing, and testified further that their actions
arose from a good faith belief that the public was entitled to
know the results of the investigation. The fact of the matter is that
the results of the investigation were never made public. Council-
man Roberts, however, made statements at an official meeting of
the city council implying that the investigation showed the chief of
police to have been guilty of criminal conduct, without giving the
accused person an opportunity to respond or to defend himself. It
is Roberts’ allegedly false accusation which damaged Owen’s
reputation and future employment prospects. The city officials may
have acted in good faith in refusing the hearing, but lack of good
3la
faith is evidenced by the nature of the unfair attack made upon the
appellant by Roberts in the official conduct of the City’s business.
The district court did not address the good faith defense in light of
Roberts’ defamatory remarks.
In any event, however, we hold the good faith defense unavail-
able as a matter of law in cases involving claims for backpay and
similar equitable remedies which will be borne by a unit of
government and not individual office holders..
VI.
Conclusion.
_ It follows from the foregoing discussion that, in addition to some
compensatory relief, Owen is entitled to a declaratory judgment
that his discharge from employment deprived him of constitu-
tionally protected liberty without due process of law.
Accordingly, we reverse the judgment and remand this case to
the district court for entry of the declaratory judgment and an
award of compensatory relief consistent with this opinion.
VAN OOSTERHOUT, Senior Circuit Judge, dissenting.
The issue of whether an action against a city and its officers can
be instituted directly under the fourteenth amendment and 28
U.S.C. § 1331 is a close one on which, as noted by majority, the
courts are divided. The issue is one which “has never been decided
by [the Supreme Court].” Mt. Healthy Bd. of Educ. v. Doyle,
—___._ U.S. ___., 45 U.S.L.W. 4079, 4080 (Jan. 11, 1977). Since
in my opinion plaintiff cannot recover on the merits, I will assume
for the purpose of this case, without so concluding, that the major-
ity has correctly resolve this issue. I accordingly do not dissent
from the dismissal of the cross-appeal.
I agree with the majority that the plaintiff was an untenured
employee and that he had no property interest in his position.
My point of departure is on the majority’s holding that plaintiff
was deprived of a liberty interest without a hearing and in particular
32a
on the majority’s conclusion that the stigma to Owen was
“connected with his discharge.” That this conclusion is essential
to the result reached by the majority is clear. In Paul v. Davis, 424
U.S. 693 (1976), city police had furnished a list of shoplifters to
local merchants for the purpose of assisting them in preventing
shoplifting. Plaintiff, whose name appeared on the list, had been
charged with shoplifting but had not been tried when the list was
provided. On the liberty issue the Court holds:
The words “liberty” and “property” as used in the Four-
teenth Amendment do not in terms single out reputation as a
candidate for special protection over and above other inter-
ests that may be protected by state law. While we have in a
number of prior cases pointed out the frequently drastic effect
of the “stigma”’ which may result from defamation by the
government in a variety of contexts, this line of cases does not
establish the proposition that reputation alone, apart from
some more tangible interests such as employment, is either
“liberty” or “property” by itself sufficient to invoke the
procedural protection of the Due Process Clause.
** *&*%
While not in uniform in their treatment of the subject, we
think that the weight of our decisions establishes no constitu-
tional doctrine converting every defamation by a public
official into a deprivation of liberty within the meaning of the
Due Process Clause of the Fifth or Fourteenth Amendment.
Thus it was not thought sufficient to establish a claim under
§ 1983 and the Fourteenth Amendment that there simply be
defamation by a state official; the defamation had to occur in
the course of the termination of employment.
Id. at 701, 702, 710.
As set out in the trial court’s findings of fact incorporated in the
majority opinion, the city manager had exclusive jurisdiction to
hire and fire city employees. The chief of police was subject to this
33a
provision. The city charter specifically -prohibits the mayor or
council from interfering with the appointment or discharge of any
officer, such as the chief of police. Violation constitutes a
misdemeanor and grounds for removal from office upon convic-
tion.
On April 10, 1972, the city manager, being dissatisfied with the
work of the chief of police, requested the chief to resign and accept
another position in the police department, which plaintiff refused
to do. On April 13, the city manager obtained the consent of one
Cook to serve as police chief. On April 18, plaintiff was formally
advised of his discharge.
The majority agrees with the district court’s determination that
no stigma attached to the nondefamatory discharge notice given by
the city manager. The defamation made was contained in informa-
tion released by councilman Roberts at an April 17 council
meeting. Neither the mayor nor the council had any voice in
plaintiff's discharge. Plaintiff had been fully advised on April 10
and 11 that he would be discharged if he did not resign and
arrangements for a successor were made on April 13 by the city
manager, all prior to the April 17 council meeting.
I readily acknowledge that “official actions of the city council
released charges against Owen contemporaneous and, in the eyes
of the public, connected with that discharge.” Majority opinion,
supra at 6. While this fact might have some bearing on the amount
of damages recoverable in a state action for defamation, I cannot
agree that it somehow creates an otherwise absent liberty interest
entitling plaintiff to a hearing. It is clear that the public impression
gleaned from media reports did not conform to the true situation,
for the only official charged with responsibility to discharge, the
city manager, made no stigmatizing allegation. Nor was he in any
way responsible for the mistaken impression gained by the public.
Cf. Cox v. Northern Virginia Transportation Commission, 551
F.2d 555, 558 (4th Cir. 1976) Since nothing in the discharge |
process itself cast a stigma upon plaintiff, Paul v. Davis is, in my
opinion, controlling.
34a
I agree with the trial court’s determination that there is no causal
connection between plaintiff's discharge by the city manager and
the statements of Roberts at the council proceedings. Such
determination is supported by substantial evidence and is not
clearly erroneous under the authorities heretofore cited. No
violation of plaintiff's liberty rights in connection with his dis-
charge has been established.
I find it unnecessary to reach the good faith issue. I would affirm
the judgment of dismissal.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
Ib
APPENDIX B |
George D. OWEN, Plaintiff,
v.
CITY OF INDEPENDENCE, MISSOURI,
et al., Defendants.
Civ. A. No.73CV138-W-3.
United StatesDistrict Court,
W. D. Missouri, W. D.
June 25, 1976.
WILLIAM H. BECKER, Chief Judge.
This is an action under the Civil Rights Act of 1871, Section
1983, Title 42, United States Code, and under the Fourteenth
Amendment to the Constitution of the United States. Plaintiff,
George D. Owen (hereinafter “plaintiff”), contends that his prior
employment as Chief of Police of Independence, Missouri, was
terminated without notice of the reasons for the discharge or a
hearing in violation of his rights to procedural and substantive
due process under the Fourteenth Amendment, and that he was
discharged in retaliation for his exercise of First Amendment
rights. He seeks declaratory and injunctive relief to compel the
defendants to grant him notice and a hearing, and equitable relief
in the form of back pay and other fringe benefits from the date of
his discharge to the date the defendants grant him the notice and
hearing he requests. '
'In the original and amended complaints, plaintiff made other claims
and prayers for relief, including reinstatement. The prayer for
reinstatement has been abandoned because plaintiff is now disqualified
by reason of his age to be Chief of Police. The claims and prayers for
relief other than those considered herein were denied in the “Order
Denying Plaintiffs Motion For Summary Judgment and Narrowing
Issues For Evidentiary Hearing,” filed February 6, 1975.
2b
Defendants are the present City Manager, Mayor, and
members of the City Council of the City of Independence
(hereinafter “City”); and the City itself. Defendants deny
plaintiff's factual and legal contentions, and further assert that
even if plaintiff's contentions are determined in his favor,
defendants are not liable for damages because they, or their
predecessors, acted at all times in “good faith.” Defendant City
also contends that subject matter jurisdiction does not exist with
respect to plaintiff's claims against it.
After completion of the pretrial proceedings, a plenary
evidentiary trial without a jury was held on May 17, 1976. The
hearing was continued without objection from the parties to June
22, 1976, and was completed on that date. The parties have filed
proposed findings of fact and conclusions of law and have fully
briefed the legal issues. In order to expedite a final judgment, the
following material findings of fact and conclusions of law are
made based upon full consideration of the factual and legal
contentions of the parties and the evidence presented.
I. FINDINGS OF FACT
Plaintiff is, and at all times material was, a citizen of the United
States and a resident of the State of Missouri.
Defendant City is a municipal corporation organized and
existing under the laws of the State of Missouri. The City’s
government is organized in the council-manager form pursuant
to a Missouri Constitutional Home Rule city charter adopted
December 5, 1961, and amended April 4, 1972.
Defendant Lyle W. Alberg is the duly appointed and acting
City Manager and Chief Administrative Officer of the City.
Defendant Richard A. King is the duly elected and acting
Mayor of the City and a member of the City Council. He is the
successor of Phil K. Weeks who was, on April 17, 1972, and prior
thereto, the City’s Mayor.
3b
Defendants Charles E. Cornell, Dr. Ray Williamson, Dr.
Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee
Comer, Jr., are the duly elected and acting members of the City
Council of the City. They are the successors of William A.
McGraw, Lauzon H. Maxwell, Arthur W. Lamb, R. M. “Rudy”
Bonville, Morris D. McQuinn and Paul L. Roberts who were the
members of the City Council on April 17, 1972, and prior thereto.
Under Section 3.3(1) of the City’s Charter, the City Manager is
vested with the sole power to
“{a]ppoint, and when deemed necessary for the good of the
service, lay off, suspend, demote, or remove all directors, or
heads of administrative departments and all other
administrative officers and employees of the city. . . .”
Plaintiff, as Chief of Police, was subject to this provision. The
Charter did not provide that the Chief of Police was entitled to
any notice of reasons, or a hearing, in connection with the
termination of his employment.
The City Council, and its members, are prohibited from
influencing, or interfering with in any manner, the City
Manager’s power of appointment and discharge of City
employees. Section 2.11 of the City Charter provides that:
“{nJeither the council, the mayor, nor any of its other
members may direct the appointment of any person to, or
his removal from office or employment by the city manager
or by any other authority, or, except as provided in this
charter, participate in any manner in the appointment or
removal of officers and employees of the city. Except for the
purpose of inquiry, the council, the mayor, and its other
members shall deal with the administrative service solely
through the city manager. . . . If the mayor or any other
councilman violates any provision of this section, he shall be
guilty of a misdemeanor, and upon conviction thereof, shall
cease to be a councilman. .. .”
On February 20, 1967, plaintiff was appointed Chief of Police
of the City for an indefinite term by then City Manager Robert L.
Broucek. Prior to that time, he had served as an assistant to the
4b
Chief of Police of Kansas City, Missouri. Plaintiff was given no
contract of employment, and there was no de facto tenure system
which would have given him a reasonable or legitimate
expectation of continued employment. Plaintiff served as Chief
of Police until his employment was terminated effective April 19,
1972, by notice in writing of April 18, 1972, by the present City
Manager Lyle W. Alberg.
For a substantial period of time prior to March, 1972, plaintiff
and City Manager Alberg had had several sharp disagreements
over plaintiffs administration of the Police Department,
including but not limited to plaintiffs choice of people for
positions in the Department and his administration of the Police
Department’s property room. In early March, 1972, a handgun,
which had been destroyed according to records of the
Department’s property room, was discovered in the hands of a
felon by Kansas City, Missouri, police. In about mid-March,
1972 City Manager Alberg initiated an investigation of the
property room of the Police Department initially under
plaintiff's direction. Later in March, 1972, Alberg decided that
the investigation should be conducted by an independent branch
of the city government. He transferred the two police officers
who had begun the investigation, Sergeant Robert Jackson and
Detective William Reynolds, to the City’s Department of Law;
and directed City Counselor James S. Cottingham who was head
of the Department of Law to supervise the conduct of the
investigation and to report the findings of the investigation
directly to him.
On or before April 12, 1972, City Manager Alberg received
copies of statements of witnesses secured in the investigation, and
reports from the City Auditor and City Counselor Cottingham.
The City Auditor reported that there were insufficient records in
the Police Department property room to make an adequate audit
of the property in the property room. Cottingham reported in
writing to Alberg that there was no evidence of any criminal acts,
or violation of any state law or municipal ordinances, in the
administration of the property room.
Sb
At an informal meeting with several of the City Council
members, which took place on or before April 10, 1972, City
Manager Alberg discussed the investigation and told the City
Council members he would take action at an appropriate time to
correct any problems in administration of the Police Department
disclosed by the investigation. At that time, Alberg intended to
keep the witness statements and details of the findings of the
investigation confidential.
On April 10, 1972, Alberg communicated by telephone with
plaintiff, who was then on vacation in Las Vegas, Nevada. Alberg
told plaintiff he was dissatisfied with plaintiffs job performance,
and asked plaintiff to resign as Chief of Police and accept another
position in the Police Department. He told plaintiff if he refused
to accept another position in the Department, he would be
discharged. Plaintiff requested a personal conference with
Alberg in Independence the following day.
On April 11, 1972, Alberg and plaintiff met in Alberg’s office in
Independence. Alberg stated to plaintiff that he was dissatisfied
with plaintiffs administration of the Police Department,
including plaintiffs lack of supervision over the records section
of the Department; the state of those records; and plaintiff's
inadequate administration, and lack of control, of the property
room which had resulted in the reappearance of supposedly
destroyed property in the hands of other people. Alberg again
requested plaintiff to resign as Chief of Police, and to accept an
advisory position with the Police Department. Plaintiff
responded that he was not interested in another position, and
that he would fight to remain Chief of Police. Alberg told
plaintiff that if he continued to refuse to take another position,
his employment with the City would be terminated.
On April 13, 1972, Alberg had a discussion with Lieutenant
Lawrence L. Cook of the Police Department, during which he
asked Cook if he would be willing to take the position of Chief of
Police. Cook stated that he would. On the same day, Alberg
released a public communication to the Mayor and City Council
6b
concerning the investigation and audit of the Police
Department’s property room, which stated:
“At my direction, the City Counselor’s office, in
conjunction with the City Auditor have completed a routine
audit of the police property room.
“Discrepancies were found in the administration, handling
and security of recovered property. There appears to be no
evence to substantiate any allegations of a criminal nature.
“Steps have been initiated on an administrative level to
correct these discrepancies.”
Alberg’s statement was prominently reported by a local
newspaper.
Alberg was away from Independence on the weekend of April
15 and 16, 1972. On April 15, he decided to replace plaintiff with
Lieutenant Cook as Chief of Police. However, he did not inform
anyone of his decision, and did not take formal action to
implement his decision until April 18, 1972.
In Alberg’s absence, Assistant City Manager Parley Banks
became the Acting City Manager. During the weekend, City
Councilman Paul L. Roberts requested copies of the reports of
the audit and statements of witnesses secured in the investigation
of the Police Department property room. Roberts had recently
been defeated for reelection to the City Council, and his term was
to expire following the meeting of the City Council on the
evening of April 17, 1972. Banks, unaware of Alberg’s intention
to keep the details of the reports confidential, complied with
Roberts’ request and delivered the documents to Roberts without
reading them.
During the weekend Roberts read the reports and unilaterally
decided that their contents should be made public. He secretly
drafted a statement to be made by him without prior notice to
anyone, at the City Council meeting on the evening of April 17,
1972. The statement is described below.
An informal meeting was held on the morning of April 17,
1972, between Alberg and four members of the City Council,
during which the investigation of the Police Department was
|
7b
again discussed. At that time, Alberg did not inform the council
members of his intention to discharge plaintiff; and Councilman
Roberts did not disclose his intention to make a statement
concerning the investigation at the formal meeting of the City
Council that evening.
On the evening of April 17, 1972, the City Council held a
regularly scheduled meeting. The agenda of the meeting did not
list a statement or motion by Councilman Roberts. After
completion of the scheduled business, Councilman Roberts read
his prepared statement. The statement alleged that plaintiff had
taken two television sets from the property room of the Police
Department for his own personal use; that numerous firearms in
the custody of the Police Department had “ . . . found their
way into the hands of others including undesirables . . . ”; that
narcotics being held by the Department“. . . have mysteriously
disappeared”; that traffic tickets had been manipulated; that
inappropriate requests had been made by “high ranking police
officials to the police court”; “. . . that things have occurred
causing the unusual release of felons”; and the reports disclosed
“gross inefficiencies on the part of a few of the high ranking
officers of the police department.” Councilman Roberts then
moved that the reports be made public; that they be turned over
to the Prosecuting Attorney of Jackson County; and that the City
Council recommend to the City Manager
“. . that he should take all direct and ae action
permitted under the Charter against such persons as are
shown by the investigation to have been involved in illegal,
wrongful, or gross inefficient activities brought out in the
investigative reports, and to complete the investigation.
The full statement is set out in a marginal note.? After discussion
2The statement, in its entirety, read:
ril 2, 1972, the Cit Council was notified of the existence
of any a ae amine the activities of the Chief of
Police of the City of Independence, certain police officers and
activities of one or more other City officials. On Saturday, April
15th for the first time I was able to see these 27 voluminous
(continued)
8b
(footnote continued from preceding page)
reports. The contents of these reports are astoundingly shocking
and virtually unbelievable. They deal with the disappearance of 2
or more television sets from the police department and signed
statement that they were taken by the Chief of Police for his own
personal use.
“The reports show that numerous firearms properly in the
police department custody found their way into the hands of
others including undesirables and were later found by other law
enforcement agencies.
“Reports whow (sic) that narcotics held by the Independence
Missouri Chief of Police have mysteriously disappeared. Reports
also indicate money has mysteriously disappeared. Reports show
that traffic tickets have been manipulated. The reports show
inappropriate requests affecting the police court have come from
high ranking police officials. Reports indicate that things have
occurred causing the unusual release of felons. The reports show
gross inefficiencies on the part of a few of the high ranking officers
of the police department.
“In view of the contents of these reports, I feel that the
information in the reports backed up by signed statements taken
by investigators is so bad that the council should immediately
make available to the news media access to copies of all of these 27
voluminous investigative reports so the public can be told what
has been going on in Independence. I further believe that copies of
these reports should be turned over and referred to the
prosecuting attorney of Jackson County, Missouri for
consideration and presentation to the next Grand Jury. I further
insist that the City Manager immediately take direct and
appropriate action, permitted under the Charter, against such
persons as are shown by the investigation to have been involved.
“ I have been advised that the City Manager has requested the
resignation of the Chief of Police but to date the Chief has not
done so. It should be noted that many persons in the Police
Department have come forward in the investigation of these
matters and have cooperated in this investigation and their efforts
are recognized and appreciated. Because these investigative
reports and statements have not been available to the news media,
I respectfully move as follows:
“I move first that the Council instruct the City Manager to
immediately make available to the news media access to copies of
all the 27 volumimous (sic) investigative reports and the
statements and attachments therewith.
“Second:
“That copies of the investigative reports be turned over and
(continued)
9b
of Councilman Roberts’ motion, six members of the Council
voted to approve the motion. Councilman McGraw abstained
from voting on the motion.
On April 18, 1972, City Manager Alberg implemented his prior
decision to discharge plaintiff as Chief of Police. On that day
plaintiff received a written notice from Alberg stating merely that
his employment as Chief of Police was “(t}erminated under the
provisions of Section 3.3(1) of the City Charter” effective April
19, 1972. Plaintiff requested that Alberg provide him with written
notice of the reasons for the termination and a hearing in a letter
to Alberg dated April 15, 1972. The letter was not received by
Alberg until after plaintiff's discharge. Both the action of the City
Council and plaintiff's discharge by City Manager Alberg were
prominently reported in local newspapers.
After termination of plaintiff's employment, Alberg referred
the investigation reports and statements to the Prosecuting
Attorney of Jackson County, Missouri, for consideration by a
grand jury as recommended by the City Council. The grand jury
subsequently returned a “no true bill.” Since that time, neither
City Manager Alberg nor the City Council made any further
investigation of plaintiffs administration of the Police
Department.
In April, 1972, plaintiff's attorney requested a hearing on the
reasons for plaintiff's discharge. The request was denied by
Assistant City Counselor James L. Gillham by a letter to
plaintiff's counsel dated May 3, 1973.
(footnote continued from preceding page)
referred to the Jackson County Prosecuting Attorney for
presentation to the next Grand Jury.
“Third:
“The City Council recommends to the City Manager that he
should take all direct and appropriate action permitted under the
Charter against such persons as are shown by the investigation to
have been involved in illegal, wrongful, or gross inefficient
activities brought out in the investigative reports, and to complete
the investigation.”
10b
Plaintiff contends that his discharge on the day following
Councilman Roberts’ disclosure of details of tie investigaiion
and the City Council's actions has imposed a “stigma” of illegal
or unprofessional conduct upon his personal and professional
reputation which has impaired his ability to obtain future
employment. However, defendants have shown by a
preponderance of the evidence that the circumstances of
plaintiffs discharge did not result in imposition of such a
“stigma” for two reasons.
First, there was no causal relationship between the termination
of plaintiff's employment and Councilman Roberts’ statement
and the action of the City Council. City Manager Alberg had
decided prior to the City Council meeting to terminate plaintiff's
employment. Alberg had sole responsibility for hiring and
discharging the Chief of Police. City Council members were
prohibited by law from taking any action to influence Alberg’s
personnel decisions. Roberts’ statement and motion were
unauthorized actions under the City Charter. (Plaintiff sued
Roberts and Alberg in state court in an action for damages based
on the defamatory statement of Roberts and the alleged attempt
to procure criminal charges against the plaintiff. During trial of
this state court action plaintiff settled with Roberts giving a
general release of all liability of Roberts to plaintiff and agreed to
drop Alberg as a party.)
Second, plaintiff was completely exonerated in writing from
any charges of criminal misconduct arising out of the investiga-
tion of the Police Department by City Counselor Cottingham,
who was in charge of the investigation as head of the Department
of Law, and by City Manager Alberg, who was the only City
official with the power to terminate (or reinstate) plaintiff's
employment. [n his communication to the City Council on April
13, 1972, Alberg publicly stated, on the basis of the report of the
City Counselor, that although there was evidence of inefficiency
in administration of the Police Department,“. . . there was no
evidence to substantiate any allegations of a criminal nature.” At
llb
no time before or after plaintiff's discharge has City Manager
Alberg or the City Counselor ever made any statements which
imply that plaintiff's discharge resulted from criminal or other
“stigmatizing” misconduct. Further, in addition to Alberg’s
statement, plaintiff was exonerated by the grand jury’s return of a
“no true bill” following its investigation of the charges made at
the April 17, 1$72, City Council meeting.
Plaintiff also alleged in the complaint that his discharge was in
retaliation for exercise of First Amendment rights. However,
there is no evidence in the record to support that allegation.
Although the foregoing factual determinations are sufficient to
determine the issue of liability iv favor of defendants, the
material factual issues with respect to defendants’ “good faith”
defense will also be determined. Based on assumptions (without
so finding) that “stigmatizing” charges made by Councilman
Roberts were the basis for plaintiff's discharge, and that plaintiff
was accordingly entitled to notice of the reasons for his discharge
and a hearing under the Fourteenth Amendment, the material
factual issues on defendants’ “good faith” defense are (1) whether
defendants knew, or reasonably should have known, that their
refusal to grant plaintiff the requested notice and hearing
violated plaintiffs rights under the Fourteenth Amendment; and
(2) whether defendants acted with the malicious intention to
cause a deprivation of rights guaranteed by the Fourteenth
Amendment, or other injury, to the plaintiff.
There is no evidence that the individual defendants knew in
April, 1972, that a public employee who was discharged on the
basis of serious allegations of illegal or immoral conduct was
entitled by virtue of the Fourteenth Amendment to notice of the
reasons for his discharge, and to an opportunity for a hearing to
clear his reputation. Neither City Manager Alberg, nor any of the
members of the City Council were attorneys. Alberg, Mayor
Weeks, and Councilmen Maxwell, McGraw, Lamb and
McQuinn all testified that they did not know in April, 1972 that
such rights exisied, and that they relied on the City’s Department
12b
of Law for legal advice. After receiving plaintiff's letter request
for notice of reasons for his discharge and a hearing, Alberg
directed an inquiry to the City’s Department of Law to determine
whether plaintiff was entitled to notice and a hearing. Alberg
testified that at no time did City Counselor Cottingham advise
him that plaintiff had a right to notice and a hearing under either
the City Charter, state law, or the United States Constitution.
Cottingham also advised Councilman McGraw and Councilman
Roberts’ successor, Dr. Eugene Theiss, that plaintiff had no right
to a hearing; and Assistant City Counselor James L. Gillham
gave the same answer to plaintiffs counsel in response to
plaintiff's counsel’s request for certification of plaintiff's
discharge to the proper appellate board.
Further, the individual defendants have proven by a pre-
ponderance of the evidence that their belief that plaintiff had no
right to notice and a hearing was reasonable. The United States
Supreme Court first recognized that a public employee, who was
discharged under circumstances imposing a “stigma” on his
professional reputation and injuring his ability to find
employment in the future, was entitled to notice and a hearing to
clear his name in Board of Regents v. Roth, 408 U.S. 564, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408
U.S. 593, 92 S.Ct: 2694, 33 L.Ed.2d 570 (1972). These cases were
decided on June 29, 1972, more than two months after plaintiff's
discharge. The individual defendants cannot reasonably be
charged with notice of the subsequent decision in these cases.
Plaintiff presented no evidence that the individual defendants
should have recognized the right to a hearing, under the
circumstances, on the basis of any other controlling authority in
existence in April, 1972.
Finally, there is no evidence that City Manager Alberg or the
members of the City Council acted with malice in denying
plaintiff's request for notice and a hearing. Alberg testified that
3Councilman Bonville is deceased.
13b
his personal relationship with plaintiff was good despite his
disagreements with plaintiff over plaintiff's administration of the
Police Department. The City Council members all testified that
they acted out of a good faith belief that the results of the
investigation of the Police Department were matters which
should be made public, and that they bore no ill will toward
plaintiff personally. Their testimony is credible and is not
substantially controverted by opposing evidence.
It is, therefore, factually concluded that plaintiff's employment
as Chief of Police was not terminated under circumstances in
which his reputation and prospects for future employment were
damaged by allegations of immoral, illegal, or other
“stigmatizing” conduct; that plaintiffs employment was not
terminated in retaliation for his exercise of First Amendment
rights; and that even if discharged under “stigmatizing”
circumstances, the individual defendants acted in good faith in
refusing to grant plaintiff's requests for notice of the reasons for
his discharge and a hearing to clear his name because they neither
knew, or reasonably should have known, of the existence of such
rights under the Fourteenth Amendment, and did not act
maliciously to deprive plaintiff of Fourteenth Amendment rights
or to cause him injury.
II. CONCLUSIONS OF LAW
A. Subject Matter Jurisdiction
Subject matter jurisdiction over the claims against the
individual defendants under Section 1983, Title 42, United States
Code, exists under Section 1343(3) and (4), Title 28, United
States Code.
[1] However, Section 1983, Title 42, United States Code, does
not create a claim for relief against the defendant City, because a
municipal corporation is not a “person” within the meaning of
14b
that term as employed in Section 1983. City of Kenosha v. Bruno,
412 U.S. 507, 93 S.C. 2222, 37 L.Ed.2d 109 (1973); Moor v.
County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596
(1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961). Because Section 1983 does not provide a remedy
against the City, Section 1343(3), Title 28, United States Code,
does not provide a jurisdictional basis for an action against the
City because that provision is linked to statutory claims for relief
based on the Civil Rights Acts. Herzbrun v. Milwaukee County,
504 F.2d 1189 (7th Cir. 1974); Ybarra v. Town of Las Altos Hills,
503 F.2d 250 (9th Cir. 1974); Patterson v. City of Chester, 389
F.Supp. 1093 (E.D. Pa. 1975). See also: United Farm. of Fla. H.
Proj., Inc. v. City of Delray Beach, 493 F.2d 799, 802 n. [1] (Sth
Cir. 1974).
[2] Although subject matter jurisdiction does not exist over
plaintiff's claims against the City under Section 1343(3) and (4),
Title 28, United States Code, a number of federal courts have
ruled in cases involving claims of denial of procedural due
process in employment termination that jurisdiction over a
political subdivision can be based on the general federal question
statute, Section 1331, Title 28, United States Code, and on the
Fourteenth Amendment to the Constitution of the United States,
if the $10,000 amount in controversy requirement is satisfied.
Hostrop v. Bd. of Jr. College District No. 515, 523 F.2d 569 (7th
Cir. 1975); Roane v. Callisburg Independent School District, 511
F.2d 633 (Sth Cir. 1975); Skehan v. Board of Trustees of
Bloomsburg State College, 501 F.2d 31 (3rd Cir. 1974), vacated
on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474
(1975); Williams v. Brown, 398 F. Supp. 155 (N.D. Ill. 1975);
Patterson v. City of Chester, 389 F. Supp. 1093 (E.D. Pa. 1975);
Maybanks v. Ingraham, 378 F. Supp. 913 (E.D. Pa. 1974). See
also: Dahl v. City of Palo Alto, 372 F. Supp. 647°(N.D. Cal.
1974). But see: Weathers v. West Yuma County School District
R—J—1, 387 F. Supp. 552 (D. Colo. 1974). These courts have
implied a remedy against a political subdivision for violation of
constitutional rights directly from the Fourteenth Amendment
1S5b
by applying and extending the theory of Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388,
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See generaily: Note,
“Damage Remedies Against Municipalities For Constitutional
Violations,” 89 Harv. L. Rev. 922, 929 (1976). Adopting the
reasoning of these authorities, it is concluded that a claim for
relief against the City of Independence can be based directly on
the Fourteenth Amendment apart from Section 1983, Title 42,
United States Code; and, therefore, that subject matter
jurisdiction exists over the claims against the City under Section
1331, Title 28, United States Code, if the amount in controversy
requirement is satisfied.
Defendants contend that the amount in controversy
requirement has not been satisfied in this case. The general rule is
that the amount in controversy must be determined from the
complaint itself,
“unless it appears or is in some way shown that the amount
stated in the complaint is not claimed ‘in good faith.’ In
deciding this question of good faith . . . it ‘must appear to
a legal certainty that the claim is really for less than the
jurisdictional amount to just‘fy dismissal.’ ”
Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 353, 81
S.Ct. 1570, 1573, 6 L.Ed.2d 890, 894 (1961); St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586,
82 L.Ed 845 (1938). Although the complaint does not contain a
prayer for a specific dollar amount of back pay and damages, it
does seek
“. . back pay, full rights to normal salary increases, and
retirement benefits . . . [and] such further actual damages
as may be established on hearing. . .”
At the trial, plaintiff clearly established that his back pay and
damage claims exceed the $10,000 amount in controversy
requirement, and are made in good faith. The complaint will be
considered amended to state that plaintiff's claim for back pay
and damages exceeds $10,000. Rule 15(b) of the Federal Rules of
16b
Civil Procedure. Therefore, it is assumed foi the purpose of
disposing of this action that subject matter jurisdiction exists of
the claim for relief against the City of Independence under
Section 1331, Title 28, United States Code, despite the doctrine
of Monroe v. Pape, supra.
B. Claim of Denial of Procedural and Substantive Due Process
{3, 4] Plaintiff contends that the termination of his
employment without a notice of specific grounds for the
termination and a hearing violated rights to procedural and
substantive due process under the Fourteenth Amendment.
However, the requirements of procedural due process apply only
to a deprivation of interests which come within the Fourteenth
Amendment’s protection of “property” or “liberty,” Board of
Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972); and the right to substantive due process is no
greater than the right to procedural due process, Buhr v. Buffalo
Public School District, 509 F.2d 1196, 1202 (8th Cir. 1975);
Evans v. Page, 516 F.2d 18 (8th Cir. 1975). It must therefore be
determined whether plaintiff was deprived of an interest in either
“property” or “liberty” in connection with his discharge.
[5-7] The types of property protected by the Due Process
Clause vary widely and what may be protected under some
circumstances may not be protected under other circumstances.
To have a property interest in a benefit,
“. . . a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim
of entitlement to it.” Board of Regents v. Roth, supra, 408
U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.-
It is generally held that public office or employment, and in
particular an appointed office or position, is not a property
interest within the meaning of the Fourteenth Amendment. See,
17b
e.g., Board of Regents v. Roth, supra; Abeyta v. Town of Taos,
499 F.2d 323, 327 (10th Cir. 1974); Lontine v. Van Cleave, 483
F.2d 966 (10th Cir. 1973); Burks v. Perk, 470 F.2d 163 (6th Cir.
1972), cert. denied, 412 U.S. 905, 93 S.Ct. 2288, 36 L.Ed.2d 970
(1973). This general rule is inapplicable in situations when public
employees hold contractual rights to continuing employment
under formal or de facto tenure grounds. Perry v. Sindermann,
supra; Buhr v. Buffalo Public School District, 509 F.2d 1196 (8th
Cir. 1975); Abeyta v. Town of Taos, supra. Summary
termination of such employment, without a hearing and notice of
reasons, under such circumstances, may be actionable.
Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1973).
[8] Plaintiff's claim that he was deprived of a property interest
in his employment by his discharge, was tentatively dismissed for
failure to allege any contractual or other de facto right to
continued employment as Chief of Police in the “Order Denying
Plaintiffs Motion For Summary Judgment and Narrowing
Issues For Evidentiary Hearing” filed February 5, 1976, and
hereby incorporated herein. At the trial, plaintiff did not present
any credible evidence that he had either a contractual right to
continued employment, or that there existed a de facto tenure
system which gave plaintiff a legitimate expectation of continued
employment. Rather, a preponderance of the evidence shows
that plaintiff knowingly served as Chief of Police at the will of the
City Manager and was subject to discharge without notice of
reasons and a hearing at any time the City Manager determined
that his discharge was “for the good of the service.” It is therefore
concluded that plaintiff had no property interest in his
employment Chief of Police which would entitle him to
procedural and substantive due process rights.
[9] Deprivation of an interest in liberty occurs when the
discharge of a public employee imposes upon him a stigma or
other disability that impairs or forecloses his freedom to take
advantage of other employment opportunities. Board of Regents
v. Roth, supra; Arnett v. Kennedy, 416 U.S. 134, 94S.Ct. 1633,
40 L.Ed.2d 15 (1974); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729,
18b
42 L.Ed.2d 725 (1975). For “[wJhere a person’s good name,
reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be
heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433,
437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515, 519 (1971). Cf Paul v.
Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976),
explaining limitations on the doctrine of Wisconsin v.
Constantineau, supra.
[10, 11] To be “stigmatizing” the charges must be considerably
graver than charges of improper inadequate job performance, or
a failure to meet minimum standards of professional conduct.
The charges must involve imputation of illegal, dishonest or
immoral conduct which call the employee’s good name, honor or
integrity into question before a deprivation of liberty occurs.
Velger v. Cawley, 525 F.2d 334(2nd Cir. 1975); Lake Michigan
Col. Fed. of Teachers v. Lake Mich. Com. Col., 518 F.2d 1091
(6th Cir. 1975); Russell v. Hodges, 470 F.2d 212 (2nd Cir. 1972);
Springston v. King, 399 F. Supp. 985 (W.D. Va. 1975); Muir v.
County Council of Sussex County, 393 F. Supp. 915 (D. Del.
1975); Bishop v. Wood, 377 F. Supp. 501 (W.D.N.C. 1973), aff'd,
498 F.2d 1341 (4th Cir. 1974), aff'd. 423 U.S. 890, 96 S.Ct. 185, 46
L.Ed.2d 121 (June 8, 1976). Further, to be “stigmatizing” the
charges must have been made public in some intentional or
official manner which affects the discharged employee’s chances
of securing another job. Ortwein v. Mackey, 511 F.2d 696 (Sth
Cir. 1975); Buhr v. Public School District, 509 F.2d 1196 (8th Cir.
1975); Kaprelian v. Texas Women’s University, 509 F.2d 133 (Sth
Cir. 1975); Wellner v. Minnesota State Junior College Board, 487
F.2d 153 (8th Cir. 1973).
Plaintiff contends that because his discharge occurred the day
following Councilman Roberts’ public statement charging him
expressly and by implication with gross misconduct of the
administration of the Police Department, and the actions of the
City Council which followed, a “stigma” was imposed on his
professional reputation which has impaired or foreclosed future
employment opportunities. The defendants, however, have
i9b
disproved plaintiff's contention that the circumstances of his
discharge imposed a “stigma” upon his reputation by a
' preponderance of the evidence for three reasons.
First, the only official reason ever given for plaintiff's
discharge by City Manager Alberg, who possessed sole authority
to hire and discharge the Chief of Police, was that plaintiff was
“[t]erminated under the provisions of Section 3.3(1) of the City
Charter.” Thus, there are no statements in plaintiff's official
record imputing any illegal, immoral, or other “stigmatizing”
conduct to him.
Second, the statement made by Councilman Roberts and the
actions taken by the City Council had no causal connection to the
termination of plaintiff's employment. City Manager Alberg had
decided prior to the April 17, 1972, City Council meeting to
discharge plaintiff, and had even obtained a replacement for
plaintiff before the meeting. Further, the City Council and its
members were prohibited by the City Charter to attempt in any
manner to influence City Manager Alberg’s decisions about
hiring and discharging city employees, including the Chief of
Police, so their action was unauthorized.
Finally, prior to his discharge, plaintiff was completely
exonerated from any charges of illegal or immoral conduct by
City Counselor Cottingham, who supervised the investigation of
the plaintiff's administration of the Police Department, and by
City Manager Alberg, who possessed the sole power to hire and
discharge the Chief of Police. He was further exonerated
subsequent to his discharge by the grand jury which was
presented with the full investigative file referred to by
Councilman Roberts in his public statement.
On the basis of the above findings of fact, it is concluded that
the circumstances of plaintiffs discharge did not impose a stigma
of illegal or immoral conduct on his professional reputation. At
most, the circumstances of the termination of plaintiff's
employment suggested that, as Chief of Police, plaintiff had been
an inefficient administrator. Plaintiff was therefore not deprived
20b
of an interest in liberty in connection with his discharge, and
accordingly he was not entitled to procedural due process rights
under the Fourteenth Amendment.
C. Claim That Discharge Was In Retaliation For Exercise of
First Amendment Rights.
Plaintiff contends that his employment was terminated in
retaliation for his exercise of First Amendment rights. The
Supreme Court has made clear that
“. . . even though a person has no ‘right’ to a valuabie
governmental benefit and even though the government
may deny him the benefit for any number of reasons, there
are some reasons upon which the government may not rely.
It may not deny a benefit to a person on a basis that infringes
his constitutionally protected interests—especially, his
interest in freedom of speech.” Perry v. Sindermann, 408
U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570, 577
(1972). |
However, as factually found and herein legally concluded,
plaintiff presented no evidence that he was discharged in
retaliation for his exercise of any rights protected by the First and
Fourteenth Amendments. The evidence presented by the
defendants disproved this contention.
D. “Good Faith” Defense.
[12] Recent decisions of the United States Supreme Court have
established the existence of a “good faith” defense against
personal liability for damages under Section 1983, Title 42,
United States Code. O’Connor v. Donaldson, 422 U.S. 563, 95
S.Ct. 2486, 45 L.Ed.2d 396 (1975); Wood v. Strickland, 420 U.S.
308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416
U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The defense exists
for persons exercising executive functions. O’Connor v.
Donaldson, supra; Scheuer v. Rhodes, supra. It also exists for
21b
members of the city council. See e.g.: Rasmussen v. City of Lake
Forrest, Illinois, 404 F. Supp. 148 (N.D. Ill. 1975). See Also:
Wood v. Strickland, supra; Mims v. Board of Education of City
of Chicago, 523 F.2d 711 (7th Cir. 1975); Bertot v. School
District No. 1, Albany County, Wyo., 522 F.2d 1171 (10th Cir.
1975); Jones v. Diamond, 519 F.2d 1090 (Sth Cir. 1975). Because
of their legislative functions the immunity of city council
members may be even broader than that accorded by the “good
faith” defense. Compare: Tenney v. Brandhove,-341 U.S. 367, 71
S.Ct. 783, 95 L.Ed. 1019 (1951). |
[13] Although the precise nature of the “good faith” defense as
applicable to a city manager and members of a city council has
not yet been fully explored or defined by the courts of appeals‘ or
the Supreme Court, the defense has been defined in other
contexts. Under the most strict formulation of the defense,
applied to members of a school board in Wood v. Strickland,
supra, 420 U.S. 308, at 322,95 S.Ct. 992, at 1000, 43 L.Ed.2d 214,
at 225, and applied to administrators of a state mental hospital in
O’Connor yv. Donaldson, supra, 422 U.S. 563, at 577, 95 S.Ct.
2486, at 2494, 45 L.Ed.2d 396, at 408, the material factual issues
are whether the individual defendant
“.\. . ‘knew or reasonably would have known that the
action he took within his sphere of official responsibility
would violate the constitutional rights of [plaintiff], or if he
took the action with the malicious intention to cause a
deprivation of constitutional rights or other injury to
[plaintiff].”
4Lane v. Inman, 509 F.2d 184 (Sth Cir. 1974); Nelson v. Knox, 256
F.2d 312 (6th Cir. 1958) [Stewart, J.]; Cobb v. City of Malden, 202 F.2d
701 (ist Cir. 1953) (Magruder, J. concurring); Smetanka v. Borough of
Ambridge, Pennsylvania, 378 F. Supp. 1366 (W.D. Pa. 1974); Bunch v.
Barnett, 376 F. Supp. 23(D.S.D. 1974); Oberhelman v. Schultze, 371 F.
Supp. 1089 (D. Minn. 1974); Young v. Coder, 346 F. Supp. 165 (M.D.
Pa. 1972).
22b
The Supreme Court has further emphasized that “(flor purposes
of this question, an official has, of course, no duty to anticipate
unforeseeable constitutional developments.” O’Connor v.
Donaldson, supra; Wood v. Strickland, supra.
Had the individual defendants been sued in their individual
capacities, defendants have clearly shown by a preponderance of
the evidence that neither they, nor their predecessors, were aware
in April 1972, that, under the circumstances, the Fourteenth
Amendment accorded plaintiff the procedural rights of notice
and a hearing at the time of his discharge. Defendants have
further proven that they cannot reasonably be charged with
constructive notice of such rights since plaintiff was discharged
prior to the publication of the Supreme Court decisions in Roth
v. Board of Regents, supra, and Perry v. Sindermann, supra. See
e.g.: Mims v. Board of Education of City of Chicago, 523 F.2d
711 (7th Cir. 1975); Bertot v. School District No. 1, Albany
County, Wyo., 522 F.2d 1171 (10th Cir. 1975). Finally, the
individual defendants have proven that they did not act with a
malicious intent to deprive plaintiff of his constitutional rights or
to cause plaintiff other injury.
However, the individual defendants have been sued only in
their official capacities, and would, therefore, not be personally
liable for any award of equitable relief in the form of back pay, or
damages, regardless of their good faith. By suing the individual
defendants only in their official capacities, and by joining the
City of Independence as a defendant, plaintiff ultimately seeks
relief from the City of Independence. The question presented is
thus whether the City of Independence can assert a good faith
defense based on the good faith of its agents against liability for
claims based directly on the Fourteenth Amendment.
[14] The purposes of the good faith defense are (1) to avoid the
injustice of subjecting a public official who is required by the legal
obligations of his position to exercise discretion to liability in the
absence of bad faith; and (2) to encourage public officials to
execute their offices with the decisiveness and judgment required
23b
by the public good. Wood v. Strickland, supra, 420 U.S. at 319-
321, 95 S.Ct. at 999-1000, 43 L.Ed.2d at 223-224; Scheuer v.
Rhodes, 416 U.S. at241-242,94S.Ct. at 1688-1689, 40 L.Ed.2d
at 99-100. Substantial arguments have been made that the
reasons for permitting persons acting under color of state law to
assert a good faith defense against personal liability are
inapplicable to actions against a governmental unit. See, e.g:
Note, “Damage Remedies Against Municipalities For
Constitutional Violations,” 89 Harv. L. Rev. 922, 955-958 (1976).
The United States Court of Appeals for the Seventh Circuit has
ruled that damages for violation of a constitutional right can be
recovered from a governmental unit even though the
governmental unit’s agents were protected from personal liability
by a good faith defense. Hostrop v. Board of Junior College Dist.
No. 515, 523 F.2d 569, 576-579 (7th Cir. 1975); cert. denied, 425
U.S. 963, 9€ S.Ct. 1748, 48 L.Ed.2d 208 (1976).
[15] Nevextheless, the imposition of liability on a governmental
unit because of the acts of public officials acting in good faith
would also impair the ability of public officials to exercise their
legal duties forthrightly as required by the public good. The
distinction between imposing personal liability on the official
and imposing liability on the public body or agency that he serves
which underlies the argument against permitting a governmental
unit to assert a good faith defense is not convincing. A
conscientious public official’s discharge of his duties will be
impaired regardless whether liability is imposed on him
personally or upon the public as a whole. The difference in
impairment is one of degree. It is the fact of liability, rather than
the party upon whom it is directly imposed, which should be the
controlling factor. It is therefore concluded that the City of
Independence is entitled to assert a good faith defense against
liability based directly on the Fourteenth Amendment; and that
the City has estabiished a good faith defense against liability in
this action by proof of the good faith of the individual defendants
who acted as the agents and officers of the City of Independence.
24b
For the foregoing reasons, it is therefore
ORDERED and ADJUDGED that plaintiff's claims for relief
be, and they are hereby, determined to be without merit. It is
further
ADJUDGED that plaintiff be, and he is hereby, denied all
relief prayed for in the complaint.
ON MOTION TO AMEND OR VACATE
AND FOR ADDITIONAL FINDINGS
Plaintiff has moved to amend the findings of fact and con-
clusions of law and for additional findings of fact. Plaintiff has
also moved to vacate or amend the final judgment or in the
alternative for a new trial. Defendants have filed opposing
suggestions.
Plaintiffs motion ‘to amend the findings of fact and
conclusions of law and to make additional! findings, and the
supporting suggestions have been carefully reviewed. The
additional findings requested in paragraphs 1, 2, 3, and 4, while
substantially true factually, are adequately covered on page 10 of
the memorandum filed June 25, 1976. The findings requested in
paragraphs 5, 6, and 7 are not supported by substantial evidence.
The findings requested in paragraphs 8 and 9 will be denied for
the reasons stated below.
Plaintiff bases his motion to vacate or amend the final
judgment, or in the alternative for a new trial, on three grounds.
First, he contends that no ruling was made on the question
whether plaintiff had a right to notice and a hearing under
Missouri law, and that Missouri law requires notice and a
hearing. Second, he contends that the evidence supports a finding
that there was an implied contract that his employment would
only be terminated for cause with notice and an opportunity fora
hearing. Third, he contends that there was a sufficient nexus
between Councilman Roberts’ statement and the actions of the
25b
City Council on April 17, 1972, and his discharge on April 18,
1972, to support a finding that “stigmatizing” charges were made
“in the course of” the termination of his employment.
(1) State Law.
The United States Supreme Court has recognized that a public
employee has a “property” interest in his continued employment
if state law guarantees a right to notice and hearing in connection
with the termination of his employment. Bishop v. Wood, 426
U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (June 10, 1976); Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972). Plaintiff contends that under Missouri law, because he
could only be discharged “for the good of the service,” he was
entitled to notice and a hearing.
Contrary to plaintiff's allegation that no ruling has been made
on this contention, the contention was expressly rejected on page
17 of the “Order Denying Plaintiffs Motion For Summary
Judgment And Narrowing Issues For Evidentiary Hearing,” filed
February 5, 1976. However, because of the importance of this
issue, the reasons for that ruling will be more fully stated herein.
[16] Article 7, Section 4, of the Missouri Constitution of 1945
provides in pertinent part that “. . . all officers not subject to
impeachment shall be subject to removal from office in the
manner and for the causes provided by law.” (emphasis supplied)
The Chief of Police of the City of Independence is not subject to
impeachment under the Missouri Constitution, and thus Article
7, Section 4, was applicable to plaintiff. Cf State v. Williams, 346
Mo. 1003, 144.S.W.2d 98 (1940). The principal issue in this case is
what the applicable “law” is.
[17, 18] The city government of the City of Independence is
organized in the council-manager form under a “home rule”
charter authorized by Article 6, Section 19, of the Missouri
Constitution of 1945. Article 6, Section 22, of the Missouri
Constitution of 1945 provides in pertinent part that
26b
“[n]Jo law shall be enacted creating or fixing the powers,
duties or compensation of any municipal office or
employment, for any city framing or adopting its own
charter under this or any previous constitution. . . .”
This provision was intended to give “home rule” charter cities a
“broad measure of complete freedom from State legislative
control [over municipal employment decisions].” State v.
Cervanies, 423 S.W.2d 791 (Mo. 1968). See: Schmandt,
“Municipal Home Rule In Missouri,” 1953 Wash. U.L.
Quarterly 385, 406 (1953). Cf. City of St. Louis v. Missouri
Commission on Human Rights, 517 S.W.2d 65 (Mo. 1974). This
constitutional provision is persuasive authority that the
applicable “law” governing the employment decisions of charter
cities is the charter itself, and not state statutes or prior judicial
law. This ruling is consistent with the Missouri “home rule”
concept that matters of local interest are to be governed solely by
the charter. See: ‘Westbrook, Municipal Home Rule: An
Evaluation of the Missouri Experience, 33 Mo. L. Rev. 45(1968).
The Charter of the City of Independence (hereinafter
“Charter”) classifies municipal employees into the “classified”
and “unclassified” service. Section 3.28 of the Charter expressly
provides that an employee in the “classified” service shall have a
right to notice and a hearing prior to the termination of his
employment. Section 3.1 of the Charter accords similar rights to
the City Manager. However, no such rights are expressly
provided to heads of administrative departments such as the
Chief of Police. The only provision in the Charter pertaining to
the manner of and grounds for, the discharge of the head of an
administrative department is Section 3.3(1) which authorizes the
City Manager to
“[a]ppoint, and when necessary for the good of the
service ... remove all directors or heads of
administrative departments. . . .”
[19] Plaintiff argues that in spite of the fact that heads of
administrative departments are not expressly accorded rights to
27b
notice and a hearing, such rights are to be implied from the fact
that heads of administrative departments were made
dischargeable only “when necessary for the good of the service.”
However, from Sections 3.28 and 3.1 of the Charter, it is clear
thathe drafters of the Charter knew how to expressly provide for
rights to notice and a hearing when such rights were intended. In
view of the express provision of such rights to other employees, it
is unlikely that the drafters intended to accord heads of
administrative departments such rights by implication through
use of the phrase “for the good of the service.” Rather the absence
of an express provision of such rights is persuasive evidence that
no such rights were intended to exist.
Plaintiff has cited several early Missouri cases in support of his
contention that an employee dischargeable only “for cause” or
“for the good of the service” is entitled to notice and a hearing
prior to his discharge.' However, these cases are distinguishable
on their facts from this case.? To the extent that dicta in those
'\State ex rel Eckles v. Kansas City, 257 £.W. 197 (Mo. App. 1923);
State ex rel Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457 (Mo. 1893);
State ex rel Denison v. City of St. Louis, 90 Ms. 19, 1 S.W. 757 (Mo.
1886).
2In State ex rel Eckles v. Kansas City, supra, a discharged district
inspector for the water department of the City of Kansas City petitioned
for a writ of mandamus to compel the City of Kansas City to restore him
to his position. The only reasons given for his discharge were
“{rjeduction in force and good of the service.” However, there was
substantial evidence that he had been discharged because of his political
affiliation. [Cf. Elrod v. Burns, _U.S.__, 96 S.Ct. 2673, 49 L.Ed.2d
547 (June 28, 1976)]; and that his discharge was intended to be final. The
City of Kansas City had a “complete civil service law governing tenure
positions held by city employees” which was applicable to the
discharged employee whose position in the competitive class of the city
service was similar to that of the “classified” service of the City of
Independence in this action. The applicable charter provision provided:
“No person in the city’s service shall be removed . . . because of
political . . . beliefs of such persons; nor shall any person in the
competitive class of the city service be removed . . . without first
(continued) ,
28b
(footnote continued from preceding page)
having received a written statement setting forth in detail the
reasons therefore. * * * In case of discharge of any person
owing to the reduction of force, the discharged person shall
receive a certificate so stating, and shall be placed on the eligible
list with the same rank he had already attained, and shall have a
preference over those on the eligibie list, and those who have
served the longest before being so discharged shall be first
restored.”
The writ was granted to compel the City of Kansas City to restore the
discharged employee to his job because he had been discharged for
political reasons, no detailed statement of the reasons for his discharge
had been granted, and his name was not placed on the “eligible” list all
in violation of the above charter provision. This case is distinguishable
because it involved an employee with tenure under the civil service law,
and the charter expressly gave him a right to a detailed statement of the
reasons for his discharge, while plaintiff Owen was dischargeable at will
and was accorded no right to notice and a hearing by the Charter of the
City of Independence. .
In State ex rel. Denison v. City of St. Louis, supra, a discharged
police justice brought an action to test the validity of a resolution of the
council of the municipal assembly of St. Louis which removed him from
office. Police justices were appointed by the mayor for a term of four
years unless removed “for cause.” Because he could only be removed
from office prior to the expiration of his four year term of office “for
cause,” a right to notice and a hearing were implied.
The Court expressly noted, however, -that “[w]here an officer is
appointed during pleasure, or where the power of removal is
discretionary, the power to remove may be exercised without notice or
hearing.” Plaintiff Owen, in contrast to the police justice who was
appointed for a term of years, served at the will and pleasure of the city
manager.
Finally, in State ex rel. Reid v. Walbridge, supra, the commissioner
of public buildings of St. Louis petitioned for a writ of prohibition to
prohibit the mayor of St. Louis from trying him on charges of
dereliction of duties prior to his removal from office as provided by the
charter. He contended that a state statute enacted subsequent to the
charter provision, which provided a procedure for forfeiture of public
employment to be initiated by the prosecuting attorney, had repealed
the charter provision authorizing the mayor to prefer such charges by
(continued)
29b
cases, when réad out of context, seems to support plaintiff's
contention, those cases are not considered applicable. As stated
above, the applicable “law” in this case is the Charter of the City
of Independence, which clearly does not provide rights to notice
and a hearing, and not state statutory or judicial law which may
be to the contrary. —
For these reasons, it is concluded that plaintiff was accorded to
right to notice or a hearing by Missouri law.
(2) Allegation of “Implied” Contract.
Plaintiff contends that the evidence shows that although he
had no express rights to notice and a hearing under the Charter,
and no contract of employment, he was employed with the
understanding that hisemployment would only be terminated for
cause with notice anda hearing. He further contends that this
“understanding” gave’ rise to a legitimate expectation of
continuing employment sufficient to constitute a “property”
interest. poet
However, the evidence not only fails to support this
contention, but in fact refutes it. Plaintiff was employed with the
understanding that he served at the will of the City Manager. He
had no “legitimate expectation of continuing employment.”
(3) Whether “Stigmatizing” Charges Were Made “In The Course
Of’ The Termination of Plaintiffs Employment.
_ (footnote continued from preceding page)
implication. Thus, the charter in that case, contrary to the Charter of
the City of Independence, expressly provided a right to a hearing. It
should again be noted that each of these cases was decided prior to the
adoption of the Missouri Constitution of 1945 which, as more fully
stated on pages 3 and 4, supra, provides that the governing law on the
rights of an etnployee of a charter city is the charter alone and not prior
statutory or judicial law. |
30b
In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405
(1976), the Supreme Court in construing Board of Regents v.
Roth, supra, stated:
“Thus, it was not thought sufficient to establish a claim
under §1983 and the Fourteenth Amendment that there
simply be defamation by a state official; the defamation had
to occur in the course of the termination of employment.”
(emphasis added)
Plaintiff contends that the evidence is sufficient to show that the
alleged “stigmatizing” charges made by Councilman Roberts and
actions of the City Council on April 17, 1972, were made “in the
course of” the termination of plaintiff’s;employment.
[20] However, this contention was. rejected because the
evidence shows that the decision to terminate plaintiff's
employment was made at least seven days prior to the April 17,
1972, City Council meeting by City Manager Alberg; who had
publicly exonerated plaintiff from all charges. of. criminal
conduct. There was no causal or other substantial connection
between the events which occurred at the April 17, 1972, Gity
Council meeting and plaintiff's discharge.
For the foregoing reasons, it is therefore,
ORDERED that plaintiff's motion to amend the: findings of
fact and conclusions of law and for additional findings be, and it
is hereby, denied. It is further
ORDERED that plaintiffs motion to alter or amend
judgment, or in the alternative for a new trial be, and it is hereby,
denied.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.