Petition — Owen v. Independence

‘Buprame Court, U.& |

FILED

sn ai Ss TBaaallnaiaaa

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

GEORGE D. OWEN,

Petitioner,

vs.

THE CITY OF INDEPENDENCE, MISSOURI, LYLE W.

ALBERG, CITY MANAGER, RICHARD A. KING,

MAYOR, CHARLES E. CORNELL, DR. RAY WILLIAM-

SON, DR. DUANE HOLDER, RAY A. HEADY, MITZI A.

OVERMAN, AND E. LEE COMER, JR., MEMBERS OF

THE COUNCIL OF THE CITY OF

INDEPENDENCE, MISSOURI,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

IRVING ACHTENBERG

Davip ACHTENBERG

Suite 700, Ozark National Life

Building

906 Grand Avenue

Kansas City, Missouri 64106

Attorneys for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

I acc ciscenocinatcainccsmeanenioncenone ‘isceaeiaieaniosinn 2

ERED ESTEE SS ie ON ron EO a 2

Re a On TT CTO 2

Statutory Provisions Involved -...0.................:ceecesseeeeseeeeees 3

I I I os aces caensesesctntentvensinsnanemeenisalinnsentons 3

Reasons for Granting the Writ—

I. The Decision Below Erred in Its Resolution of

an Important and Recurring Issue Signifi-

cantly Affecting the Administration of Jus-

tice—Whether Qualified Immunity Should Be

Extended to Local Governmental Bodies ........ 7

II. The Decision Below Conflicts With Decisions

of Other Courts of Appeal on Whether Local

Governmental Bodies—As Opposed to Local

Officials—May Assert a “Good Faith” Defense

to Suits Under 42 U.S.C. $1983 ... oe 9

III. The Decision Below Misinterprets §1983 by

Denying Equitable and Declaratory Relief and

by Denying Petitioner Attorneys Fees .............. 11

Conclusion ; | 12

Appendix A—Opinion of the Court of Appeals on Re-

mand (589 F:2d 335) : Al

Appendix B—Opinion of the Court of Appeals (560

| __RRSEIENIR rns Weevtmerec tee Pree erNe reer an EA ne ee CR A8

Appendix C—Opinion of the United States District

Court (421 F.Supp. 1110)

Appendix D—Supreme Court of the United States

Memorandum Order (438 U.S. 902, 98 S.Ct. 3118, 57

L.Ed.2d 611)

II

Table of Authorities

CASES

Bertot v. School District No. 1, Albany County, Wyom-

ing, No. 76-1159 (Argued May 15, 1979) .................... 10

Birnbaum v. United States, 588 F.2d 319 (2nd Cir. 1978) 8

Bursey v. Weatherford, 528 F.2d 483 (4th Cir. 1975),

rev'd on other grounds, 429 U.S. 545 (1977) ...............- 10

Carey v. Piphus, 435 U.S. 247 (1978) ....ccccecsscscesssseeeeeeeseee 10, 11

Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 1971), rev’d

on other ground sub nom., District of Columbia v.

ROP MUN PI TURD, cceicseecdbckccsscnarsbineviersatvnsraionn 8

Cooley v. Board of Education of Forrest City School

District, 453 F.2d 282 (8th Cir. 1972) -..0..0...e eee 10

Hander v. San Jacinto Junior College, 519 F.2d 273 (5th

Cir, 1975), affd per curiam on rehearing, 522 F.2d

Se RN Sas RED hacia setbndiccficiicprmnccncitentinsnsiiinhantbeibsbiealabiiiep 9

Hostrop v. Board of Junior College District No. 515, 523

F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963

2, SNR Ea Mtakntcsiaclbseininariedstasiadbioncacubsaundenee rapes 10

Hutto v. Finney, 437 U.S. 678 (1978) ..2222..........ceccceceeeeeeee 11

In re Premus, 436 U.S. 412 (1978)... doce ccesdceeeee 8

Monell vy. Department of Social Services, 436 U.S. 658

DUP UTII. ncstehadchadetleigichshabcnantiahcnes tiie titbenpatstihehinaiiat Sensis 5, 7,8

Mt. Healthy City Board of Education y. Doyle, 429 U.S.

PEER T T sibiihdtakdandtuisdaiielabcnninrppniiionientpaabonngacbaghsiaicgaibede ae, 8

N.L.R.B. v. Jones & Laughlin Steel Corporation, 301

Ee MED» inidabiibtarineiindciianicsuinitisencdstunansliotatoniuaoseinss 12

Robertson v. Wegmann, 436 U.S. 584 (1978) .....0000000...... 8

Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973) ........ 11

Thomas v. Ward, 529 F.2d 916 (4th Cir. 1975) _..00000000.... 10

Wellner v. Junior College Board, 487 F.2d 153 (8th Cir.

ES ES SEE etka: ae «Sah ea SPIE A 10

Wood v. Strickland, 420 U.S. 308 (1975) 0. 7,9, 12

nm

m1

STATUTES

Te TE: TERS. seitdiceentciicctee 4 2

Se eee IE secscaniccitiilen : 3, 7,8

OTHER AUTHORITY

19878 Annual Report of the Director, Administrative

Office of the United States Courts .-..................0.......00+- 7

oe

In the Supreme Court of the United States

OCTOBER TERM, 1978

GEORGE D. OWEN,

Petitioner,

vs.

THE CITY OF INDEPENDENCE. MISSOURI, LYLE W.

ALBERG, CITY MANAGER, RICHARD A. KING,

MAYOR, CHARLES E. CORNELL, DR. RAY WILLIAM-

SON, DR. DUANE HOLDER, RAY A. HEADY, MITZI A.

OVERMAN, AND E. LEE COMER, JR., MEMBERS OF

THE COUNCIL OF THE CITY OF

INDEPENDENCE, MISSOURI,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Eighth Circuit dated December 1, 1978. ~

i)

OPINIONS BELOW

The opinion of the Court of Appeals on Remand is re-

ported at 589 F.2d 335 and is printed in Appendix A at pp.

Al-A7. The prior opinion of the Court of Appeals is re-

ported at 560 F.2d 925 and is printed in Appendix B at pp.

A8-A45. This Court’s previous memorandum order is re-

ported at 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 611, and is

printed in Appendix D at p. A79. The opinion of the Dis-

trict Court is reported at 421 F.Supp. 1110 and is printed in

Appendix C at pp. A46-A78.

JURISDICTION

The judgment of the United States Court of Appeals

for the Eighth Circuit was entered on December 1, 1978.

Petition for rehearing was denied by a divided court on

January 29, 1979. The time for filing a petition for writ of

certiorari was extended to May 29, 1979 by order of Justice

Blackmun signed April 10, 1979. The jurisdiction of this

Court rests on 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Should the qualified immunity available to local

officials in their individual capacities under Wood v. Strick-

land be extended to local governmental bodies?

2. If qualified immunity is extended to municipalities,

should it be further extended to bar declaratory and equi-

table relief as well as damages?

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42:

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

STATEMENT OF THE CASE

On and before April 18, 1972, petitioner was employed

as the chief of police of Independence. Under Section

3.3(1) of the city charter, he could be removed by the city

manager only “when deemed necessary for the good of the

service.” (App. at A32)

During a city council meeting on April 17, 1972, Paul

Roberts, in his capacity as city councilman, read a written

statement “impugning Owen’s honesty and integrity.” (App.

at A31) The statement alleged that Owen had misappro-

priated police department property, that narcotics had

“mysteriously” disappeared from his office, and that high

ranking police officials had made “inappropriate” requests

affecting the police court. It also alleged manipulation of

traffic tickets, the “unusual release of felons” and the

mysterious disappearance of money. As part of his state-

ment, Roberts moved that certain “investigative reports”

allegedly supporting the allegations be turned over to the

4

prosecutor for presentation to the grand jury, that they be

released to the press and that the city manager take “di-

rect and appropriate action” against those “involved in

illegal, wrongful, or gross inefficient activities.” The full

text of the statement and motion is set forth at A54 n. 2.

The city council by official action passed the motion

with one abstention and no dissents, thus lending its sup-

port to Roberts’ charges. (App. at Al6, A31) The following

day, the city manager discharged Owen, (App. at A26)

The discharge notice contained no reason for the discharge

but stated simply that Owen was “[t]erminated under the

provisions of Section 3.3(1) of the City Charter.” (App. at

A31) The city manager reinforced the council’s implica-

tion that Owen was guilty of wrongdoing by publicly

announcing that he was referring the reports of alleged

police department inefficiency to the prosecutor for sub-

mission to the grand jury. (App. at A3-4 and A31 n. 11)

He did not disavow the charges or the council’s actions or

take any steps to contradict reports that Owen’s discharge

was the direct result of the alleged misconduct.

The press and public were present at the April 17, 1972

city council meeting. (Tr. at 12, 49, 82 and 189) Copies of

the statement and motion were distributed to them. The

statement, motion and firing-received widespread public-

ity. (App. at A31) The area newspapers printed the state-

ment and motion substantially verbatim and reported the

adoption of the motion. Front page articles appeared for

several days under headlines such as “Lid Off Probe, Coun-

cil Seeks Action” (Independence Examiner, April 18, 1972,

P.Ex. 5, Tr. 25); “Independence Accusation. Police Probe

Demanded” (Kansas City Times, April 18, 1972, P.Ex. 6,

Tr. 25); “Probe Culminates in Chief’s Dismissal” (Inde-

pendence Examiner, April 19, 1972, P.Ex, 13, Tr. 27) and

“Police Probe Continues; Chief Ousted”. (Community Ob-

4)

server, April 20, 1972, P.Ex. 14, Tr. 27) A copy of the

statement and motion was placed in the City’s permanent

records, (Tr. at 81-82)

Owen’s request for a hearing was denied by the City

by letter dated May 3, 1972 from the city counselor’s office.

(App. at A4 and Al7) The grand jury subsequently re-

turned a no true bill.

Owen brought suit under 42 U.S.C. §1983, and the

Fourteenth Amendment asserting jurisdiction under 28

U.S.C. §1331, 28 U.S.C. §1343(3) and 28 U.S.C. §1343(4).

He sought declaratory and equitable relief, including a

hearing on his discharge, back pay and attorney’s fees. The

District Court entered judgment for defendants. (App. C)

On appeal, the United States Court of Appeals for the

Eighth Circuit reversed, ordering the entry of a declara-

tory judgment that Owen’s discharge had deprived him of

liberty without due process of law. In lieu of an award of

full back pay, it ordered equitable compensation measured

by the amount Owen would have earned to retirement if

he had not been deprived of his good name by the actions

of the City less mitigation. The Court of Appeals held that

the District Court had jurisdiction under 28 U.S.C. §1331

to grant equitable relief for Owen’s Fourteenth Amend-

ment claims. The court found it unnecessary to decide

whether, under 28 U.S.C. §1343 and 42 U.S.C. §1983, the

District Court also had jurisdiction to grant equitable relief

against the city officials in their official capacities. (App.

at A22)

On June 26, 1978, this Court vacated the Court of Ap-

peals’ prior decision for reconsideration in light of Monell

v. Department of Social Services, 436 U.S. 658 (1978). On

remand, the Court of Appeals found that the City of In-

dependence was subject to suit under Monell since the ac-

tions in question were those of the City’s highest ranking

officials. (App. at A3-4) It again found that petitioner had

been deprived of liberty without due process. (App. at A3)

However, the Court of Appeals ruled that petitioner should

be denied all relief on the basis that the City was entitled

to qualified “good faith” immunity.'. The Court rejected

petitioner’s contentions (a) that the defense of “good faith”

is limited to officeholders in their individual capacities and

does not extend to governmental entities, (b) that quali-

fied immunity does not forbid the granting of equitable

relief, and (c) that qualified immunity does not justify re-

fusal to issue a declaratory judgment. Rehearing and re-

hearing en banc were denied by a vote of five to two.

1. Paradoxically the Court concluded that, prior to Roth

and Sindermann, the City could not have known that its actions

violated Owen’s rights despite recognizing that:

“Before Owen’s discharge, the Supreme Court appeared to

find a liberty interest Sa joe a person’s good name, repu-

tation, honor, or integrity [was] at stake because of what the

government [was] doing to him,’ which, when infringed, re-

quired the Government to provide the individual with notice

and an opportunity to be heard. Wisconsin v. Constantineau,

400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971).

However, not until the Roth and Sindermann cases did the

Court first recognize that a public employee, in the context

of being terminated under circumstances imposing a stigma

on his professional reputation and impairing his ability to

find future employment, was entitled to notice and a name-

clearing hearing.”

A

The City Council of Independence: did not need to be aware

of subsequent decisions of this Court to know that its official

actions would seriously damage Owen’s “good name, reputation,

honor and integrity.”

REASONS FOR GRANTING THE WRIT

I

The Decision Below Erred in Its Resolution of an

Important and Recurring Issue Significantly Affecting

the Administration of Justice—Whether Qualified Im-

munity Should Be Extended te Local Governmental

Bodies.

The question raised in the present case is whether the

qualified immunity available to local officials under Wood

v. Strickland, 420 U.S. 308 (1975) is to be extended to cover

local governmental bodies sued directly. In Monell, this

Court expressly deferred ruling on the issue because it had

not been briefed by the parties nor discussed by the lower

courts. It remains an important question which has not

been, but should be, settled by this Court.

Resolution of the issue posed in this petition will

significantly clarify enforcement of constitutional rights

through 42 U.S.C. §1983. The substantial number of

§1983 cases need hardly be emphasized.? Faced with this

case load, the District Courts need early and definitive guid-

ance on the difficult question left for another day in Monell

—whether qualified immunity extends to local govern-

mental bodies as well as to local officials. In the end,

the question can be answered only by this Court. Delay

in providing the answer will lead, at best, to further

protraction of litigation in the already overburdened Dis~

trict Courts. At worst, it will lead to unjust results and

unnecessary retrials.

2. Private cases classified as “Civil Rights—Other Civil

Rights” or as “Prisoner Petitions—Civil Rights” represented more

that 11% of all civil filings for the year ending June 30, 1978.

Administrative Office of the United States Courts, 1978 Annual

Report of the Director at A16-A17 (1978).

The importance of resolving this question is under-

lined by the decision below which misconstrues §1983 and

Monell. The considerations which led this Court to grant

qualified immunity to local officials have no validity if

applied to suits brought directly against local governments.

Public treasury liability will not deter the most capable

candidates from seeking public office. Cf., Birnbaum v.

United States, 588 F.2d 319 (2nd Cir. 1978). It will not

cause undue timidity in decision making. Carter v. Carl-

son, 447 F.2d 358, 367 (D.C. Cir. 1971), rev’d on other

ground sub nom., District of Columbia v. Carter, 409 U.S.

418 (1973). Rather it insures that the public as a whole,

which receives the benefits of governmental policies, bears

the costs of unconstitutional ones. Denying public treasury

liability places the entire cost of a constitutional tort on

the innocent victim. Moreover, immunity from suit for

violations of all rights which have not already been recog-

nized destroys the incentive for litigation leading to the

recognition of new rights.®

One aspect of the Court of Appeals’ opinion could, if

upheld, have unfortunate consequences far beyond the area

of §1983.

This Court has repeatedly exercised its salutary power

to note the existence of an issue and yet to defer ruling on

it. E.g., Mt. Healthy City Board of Education v. Doyle, 429

US. 274, 279 (1977); In re Primus, 436 U.S. 412, 440 (1978)

(Justice Blackmun, concurring); Robertson v. Wegmann,

436 U.S. 584, 594 (1978). The Court did so in Monell by go-

ing out of its way to state that it expressed no view on

qualified municipal immunity. 436 U.S. at 701. The power

to reserve ruling on an issue permits this Court to observe

_ %. This is particularly true, if, as in the present case, the

immunity is extended to bar equitable relief, declaratory judg-

ments and attorney’s fee awards.

the constitutional limitation that it decide only cases and

controversies presented to it and the prudential rule that it

not decide issues which have not been briefed and argued

by the parties >r iddressed by the lower courts. It can

serve those functions only if the lower courts recognize that

this Court’s postponing ruling on an argument does not

imply that the argument has merit. In the present case,

the Court of Appeals failed to do so. Instead, it treated

Monell’s deferral of the qualified immunity issue as a final

determination that qualified immunity was a valid defense,

stating “We imply from the Court’s discussion of immunity

that local governing bodies may assert a limited immunity

defense to actions brought against them under section

1983.” (App. at A4-A5) It apparently felt that the “rul-

ing” it inferred required it to disregard its own previous

conclusion that the primary justifications for immunity

did not exist in suits against public entities. (App. at A39)

II

The Decision Below Conflicts With Decisions of

Other Courts of Appeal on Whether Local Govern-

mental Bodies—As Opposed to Local Officials—May

Assert a “Good Faith’? Defense to Suits Under 42

U.S.C. §1983.

The decision below conflicts with decisions in three

other circuits which have ruled that the good faith im-

munity of Wood v. Strickland does not extend to cover local

governmental bodies. In Hander v. San Jacinto Junior Col-

lege, 519 F.2d 273, 277 at n. 1 (5th Cir. 1975), aff'd per

curiam on rehearing, 522 F.2d 204 (5th Cir. 1975), the de-

fendants argued that, under Wood, good faith precluded any

award. The Fifth Circuit rejected that argument and af-

firmed the award stating:

ee ee

—

10

“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 individual members of the Board of

Regents.”

Similarly, in Hostrop v. Board of Junior College Dis-

trict No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425

U.S. 963 (1976), the Seventh Circuit held that the good

faith immunity of a school board’s members did not pro-

tect the board as an entity from liability for damages re-

sulting from a procedurally deficient discharge.

The Fourth Circuit has taken the same position. In

Bursey v. Weatherford, 528 F.2d 483, 488 at n. 8 (4th Cir.

1975), rev’d on other grounds, 429 U.S. 545 (1977), the

Court of Appeals instructed the lower court that, in a suit

against the individual defendants in their official capaci-

ties, “. . . the defense that they acted in good faith is in-

applicable.” Similarly, in Thomas v. Ward, 529 F.2d 916

(4th Cir. 1975), disapproved as to measure of damages,

Carey v. Piphus, 435 U.S. 247 (1978), it held that back pay

could be awarded against administrators and school board

members in their official capacity even though their good

faith barred such an award against them in their individual

capacities.

The Eighth Circuit’s opinion also conflicts with its own

pre-Monell decisions. In Wellner v. Junior College Board,

487 F.2d 153 (8th Cir. 1973) and in Cooley v. Board of Edu-

cation of Forrest City School District, 453 F.2d 282, 287 (8th

Cir. 1972), the Court had awarded back pay against school

boards without regard to good faith.

The Court of Appeals for the Tenth Circuit is presently

considering the issue en banc. Bertot v. School District No.

1, Albany County, Wyoming, No. 76-1159 (Argued May 15,

1979).

11

III

The Decision Below Misinterprets §1983 by Deny-

ing Equitable and Declaratory Relief and by Denying

Petitioner Attorneys Fees. .

The Court of Appeals previously held, inter alia, “Owen

is entitled to a declaratory judgment that his discharge from

employment deprived him of constitutionally protected

liberty without due process of law.” (App. at A41) The

present panel decision agreed that Petitioner had been de-

prived of liberty without due process. (App. at A3) How-

ever, without discussion, it failed to grant Petitioner a

declaratory judgment to that effect and to remand for de-

termination of attorneys fees. (App. at A7)

Since the Court of Appeals has twice held that Peti-

tioner’s rights have been violated, Petitioner knows no

basis or authority for its refusal to order the entry of a

declaratory judgment to that effect. Cf. Carey v. Piphus,

435 U.S. 247, 252 (1978). In a case such as this, in which

Petitioner’s good name, reputation and honor are at stake,

a declaratory judgment is important for its own sake. More-

over, it would permit Petitioner to recover his attorneys

fees under the Civil Rights Attorneys’ Fees Awards Act

of 1976 and this Court’s decision in Hutto v. Finney, 437

U.S. 678 (1978).

The decision below also held that qualified immunity

stood as a bar, not only to damages, but also to the Peti-

tioner’s claims for equitable relief. (App. at A5-46) This

holding represented a complete reversal of the Court of Ap-

peals’ previous position that “The good faith of the munic-

ipality does not constitute a defense to monetary relief as

an element of equitable relief.” (App. at A38-39) It was

a drastic departure from previous holdings. E.g., Strickland

v. Inlow, 485 F.2d 186, 190 (8th Cir. 1973) (“Good faith is

12

a defense in damage actions, but not in actions for equitable

relief.”), position on immunity sustained sub nom., Wood v.

Strickland, 420 U.S. 308, 314-315 n. 6 (1975) (“immunity

from damages does not ordinarily bar equitable relief as

well.”) On remand, the Wood plaintiffs were held entitled

to equitable relief clearing their records regardless of any

claim of good faith. Restitution in the form of back pay

(or its lesser monetary equivalent) has consistently been

held to be an incident to equitable relief. N.L.R.B. v. Jones

& Laughlin Steel Corporation, 301 U.S. 1, 47-48 (1937).

Sustaining a holding that “good faith” bars declaratory

and equitable relief as well as damages would effectively

eliminate incentives to test the constitutionality of any gov-

ernmental action not previously declared unconstitutional.

It would reduce most pioneering constitutional litigation to

a request for an advisory opinion since no relief could be

granted.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

IRVING ACHTENBERG and

Davin ACHTENBERG

700 Ozark National Life Building

906 Grand Avenue

Kansas City, Missouri 64106

Attorneys for Petitioner

Al

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 76-1758

George D. Owen,

Appellant,

Vv.

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,

Appellees.

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 Independence, Missouri,

Appellants.

Appeals From the United States District Court

for the Western District of Missouri.

A2

OPINION ON REMAND

Filed: December 1, 1978

Before VAN OOSTERHOUT, Senior Circuit Judge;

BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

In Owen v. City of Independence, Mo., 560 F.2d 925

(8th Cir. 1977), this court, relying on Monroe v. Pape,

365 U.S. 167 (1961), determined that appellant George

D. Owen could not bring an action under 42 U.S.C. §

1983 (1970) against the City of Independence because it

was not a “person” within the meaning of that statute,

but that the municipality was subject to suit under an

implied right of action arising directly from the fourteenth

amendment of the Constitution. The Supreme Court

granted the petition for writ of certiorari by the City

of Independence, vacated the judgment, and remanded

the case to us “for further consideration in light of Monell

v. Dept. of Social Services of the City of New York, 436

SS sncsitins , 98 S.Ct. 2018, 56 L.Ed2d ........ (1978).” City

of Independence, Missouri v. Owen, ........ ME lansctens , 98

S.Ct 3118 (1978). Monell modified Monroe v. Pape and

permits section 1983 actions against local governing bodies.

On this remand we consider these questions: (1) un-

der Monell, supra, does Owen demonstrate that official

municipal policy deprived him of constitutional rights, in

violation of section 1983; and (2) under the particular

circumstances of this case with the narrow issue presented,

is the City immune from damages. We answer both ques-

tions affirmatively. Our decision upen the second question

requires a dismissal of the action.

SER re OR ee ee ee

I. Section 1983 Action.

The pertinent facts are set forth in our prior opinion.

Owen, supra at 927-31. In Monell, the Supreme Court

held that municipalities and other local government units

could be sued as “persons” under section 1983 when

the action that is alleged to be unconstitutional imple-

ments or executes a policy statement, ordinance, regu-

lation, or decision officially adopted and promulgated

by that body’s officers. [Monell, supra at ........ , 98

S.Ct. at 2036.]

The Court determined that congressional intent permitted

municipalities to be held liable when “action pursuant

to official municipal policy of some nature caused a consti-

tutional tort.” Id. Although the language of section 1983

has not been read to impose vicarious liability on munici-

palities solely for the misdeeds of their employees, Moneil

makes clear that “when execution of a government’s policy

or custom [is] made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

[and it] inflicts the injury * * * the [municipality ]

as an entity is responsible under § 1983.” Monell, supra

a , 98 S.Ct. at 2038.

Turning to the application of Monell to the facts of

this case, we noted in our prior opinion that the actions

of the City of Independence deprived Owen of his constitu-

tional right to liberty. Owen, supra at 934-37. The City

stigmatized Owen when it reinforced councilman Roberts’

allegedly slanderous charges of August 1972 by directing

that an investigative report alleging misconduct in the

police department be referred to the county prosecutor

for presentation to the grand jury. In addition, after the

city manager terminated Owen’s employment as police

chief he publicly announced the referral of the investiga-

A4

tive reports concerning police department inefficiencies

to the county prosecutor for further action. The city

charter of Independence did not entitle the police chief

to a name-clearing hearing in connection with his dis-

charge, and Owen was not given one. We conclude that

the stigma attached to Owen in connection with his dis-

charge was caused by the official conduct of the City’s law-

makers, or by those whose acts may fairly be said to repre-

sent official policy. Such conduct amounted to official

policy causing the infringement of Owen’s constitutional

rights, in violation of section 1983.

A post-Monell interpretation of section 1983 permits

Owen to sue the City of Independence directly and, there-

fore, we find it unnecessary to rely on the Bivens doctrine

as we did in our previous opinion. By enacting section

1983, Congress has provided an appropriate and exclusive

remedy for constitutional violations committed by munici-

palities. Consequently, no reason exists to imply a direct

cause of action under the fourteenth amendment.

II. Immunity.

In the particular circumstances of this civil rights

action, we hold that the City of Independence is entitled

to qualified immunity from liability.

The Supreme Court decided in Monell that municipal

bodies sued under section 1983 are not protected by abso-

lute immunity. However, both the Court’s majority and

Mr. Justice Powell’s concurring opinion indicate that even

after Monell, municipalities may have some limited im-

munity in section 1983 cases, the boundaries of which are

yet to be defined. Monell, supra at ........ , 98 S.Ct. at 2038,

2041, 2044, 2047. We imply from the Court’s discussion

of immunity that local governing bodies may assert a

A5

limited immunity defense to actions brought against them

under section 1983.

In the instant case, Owen contended that he possessed

a property interest in continued employment as police

chief and, upon being discharged, demanded a due process

hearing. In our prior opinion we rejected Owen’s conten-

tion relating to an alleged property interest. Owen, supra

at 937-38.

Regarding the liberty interest, we previously decided

that the municipal employer, in connection with the ter-

mination of Owen as the police chief of Independence, in

effect made a “charge” which might seriously damage

Owen’s standing and reputation in the community. Owen,

supra at 935-37. That is, “[t]he 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.” Owen, supra

at 937. In addition, the City of Independence did not

provide Owen with a hearing to vindicate his name. Ac-

cordingly, we held that the action of the City of Indepen-

dence deprived Owen of a liberty interest without due

process of law.

The district court, however, as an alternative ground

for denying Owen relief, determined that the individual

defendants established a good faith defense to Owen’s

charges by demonstrating that they could not reasonably

have known of any obligation to afford Owen a name-

clearing hearing and that they acted without malice in

not providing such a hearing. Owen v. City of Indepen-

dence, Mo., 421 F. Supp. 1110, 1117-18 (W.D. Mo. 1976),

modified, 560 F.2d 925 (8th Cir. 1977). In our prior opinion

we recognized the probable applicability of the good faith

defense to a claim for damages, while we rejected its

¥

“4

q

'

A6

use in an action where backpay is an element of the

equitable relief sought, as in the instant case. Owen, 560

F.2d at 940. Monell undermined such a distinction when

the Supreme Court answered in the affirmative the foilow-

ing query raised by the grant of certiorari:

“Whether local governmental officials and/or lo-

cal independent school boards are ‘persons’ within the

meaning of 42 U.S.C. § 1983 when equitable relief

in the nature of back pay is sought against them

in their official capacities?” [Monell v. Dept. of

Social Services of the City of New York, 436 U‘S.

sehnatiy , 98 S.Ct. 2018, 2021 (1978).]

That answer, in light of the immunity discussion in Monell,

suggests that a limited immunity defense will apply to

claims for equitable relief against municipalities.

The Supreme Court’s decisions in Board of Regents

v. Roth, 408 U.S. 564 (1972) and Perry v. Sindermann,

408 U.S. 593 (1972), crystallized the rule establishing the

right to a name-clearing hearing for a government em-

ployee allegedly stigmatized in the course of his discharge.

The Court decided those two cases two months after the

discharge in the instant case. Thus, officials of the City

of Independence could not have been, aware of Owen’s

right to a name-clearing hearing in connection with the

discharge. The City of Independence should’ not be

1. Before Owen’s discharge, the Supreme Court appeared

to find a liberty interest “[w]here a person’s good name, repu-

tion, honor, or integrity [was] at stake because of what the

government [was] doing to ,’ which when infringed, re-

quired the vernment to provide the individual with notice

and an opportunity to be heard. Wisconsin v. Constantineau,

400 U.S. 433, 437 (1971). However, not until the Roth and Sin-

dermann cases did the Court first reccgnize that a public em-

ployee, in the context of being terminated under circumstances

imposing a stigma on his professiona! reputation and impairing

his ability to find future employment, was entitled to notice and

a name-clearing hearing.

A7

charged with predicting the future course of constitutional

law. See Wood v. Strickland, 420 U.S. 308, 322 (1975);

Pierson v. Ray, 386 U.S. 547, 557 (1967); Sullivan v. Meade

Independent School District No. 101, 530 F.2d 799, 806

(8th Cir. 1976). We extend the limited immunity the

district court applied to the individual defendants to cover

the City as well, because its officials acted in good faith

and without malice. We hold the City not liable for actions

it could not reasonably have known violated Owen’s consti-

tutional rights.

Accordingly, our prior opinion, Owen v. City of Inde-

pendence, Mo., 560 F.2d 925 (8th Cir. 1977), stands modi-

fied by this supplemental opinion on remand. Based on

both this and our previous opinion, we affirm the judgment

of the district court denying Owen any relief against the

defendants in this case.

VAN OOSTERHOUT, Senior Circuit Judge, specially con-

curring.

I fully concur in the result and the basic reasoning

supporting the affirmance in the majority opinion. I still

adhere to my view expressed in my dissent in the former

appeal at 560 F.2d 925, 941, and consider it an alternate

basis for affirmance.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

A8

APPENDIX B

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 76-1758

George D. Owen,

Appellant,

Vv.

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,

Appellees.

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 Independence, Missouri,

Appellants.

Appeals from the United States District Court for the

Western District of Missouri

A9

Submitted: March 16, 1977

Filed: August 15, 1977

Before VAN OOSTERHOUT, Senior Circuit Judge;

BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuii 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 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 four-

teenth amendment under the general federal question ju-

risdiction 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). For

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:

1. These council members replaced those serving on the

city council at the time of Owen’s discharge.

2. The claim for actual reinstatement has been abandoned

(but not the backpay element of a reinstatement remedy) be-

cause Owen reached the mandatory retirement age of sixty-five

during the course of the litigation in district court.

Al0.

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 Mis-

souri.

Defendant City is a municipal corporation orga-

nized and existing under the laws of the State of Mis-

souri. The City’s government is organized in the

council-manager form pursuant to a Missouri Consti-

tutional 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.

Defendants Charles E. Cornell, Dr. Ray William-

son, Dr. Duane Holder, Ray A. Heady, Mitzi A. Over-

man, 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 re-

move all directors, or heads of administrative de-

partments and all other administrative officers and

employees of the city... .”

All

Plaintiff, as Chief of Police, was subject to this pro-

vision. The Charter did not provide that the Chief of

Police was entitled to any notice of reasons, or a hear-

ing, in connection with the termination of his employ-

ment.

The City Council, and its members, are prohibited

from influencing, or interfering with in any manner,

the City Manager’s power of appointment and dis-

charge 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 employ-

ment by the city manager or by any other author-

ity, or, except as provided in this charter, partici-

pate 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 admin-

istrative service solely through the city manager.

: If the mayor or any other councilman vio-

lates 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 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 reason-

able or legitimate expectation of continued employ-

ment. Plaintiff served as Chief of Police until his em-

ployment was terminated effective April 19, 1972, by

notice in writing of April 18, 1972, by the present City

Manager Lyle W. Alberg. .

Al2

For a substantial period of time prior to March,

1972, plaintiff and City Manager Albert (sic) had had

several sharp disagreements over plaintiff's administra-

tion of the Police Department, including but not lim-

ited to plaintiff’s choice of people for positions in the

Department and his administration of the Police De-

partment’s property room. In early March, 1972, a

handgun, which had been destroyed according to rec-

ords 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 ini-

tiated an investigation of the property room of the Po-

lice Department initially under plaintiff’s direction.

Later in March, 1972, Alberg decided that the in-

vestigation 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 Reyn-

olds, 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 Albert

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. Cotting-

ham 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.

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 investi-

Al3 -

gation and told the City Council members that he

would take action at an appropriate time to correct

any problems in administration of the Police Depart-

ment disclosed by the investigation. At that time, Al-

berg intended to keep the witness statements and de-

tails of the findings of the investigation confidential.

On April 10, 1972, Alberg communicated by tele-

phone with plaintiff, who was then on. vacation in

Las Vegas, Nevada. Alberg told plaintiff he was dis-

satisfied with plaintiff's job performance, and asked

plaintiff to resign as Chief of Police and accept an-

other position in the Police Department. He told plain-

tiff that if he refused to accept another position in the

Department, he would be discharged. Plaintiff re-

quested a personal conference with Alberg in Inde-

pendence 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 ad-

ministration of the Police Department, including plain-

tiffs lack of supervision over the records section of

the Department; the state of those records, and plain-

tiffs inadequate administration, and lack of control,

of the property room which had resulted in the re-

appearance 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 re-

sponded 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 Depart-

Al4

ment, 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 re-

leased a public communication 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 week-

end 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 Par-

ley Banks became the Acting City Manager. During

the weekend, City Councilman Paul L. Roberts re-

quested copies of the reports of the audit and state-

ments of witnesses secured in the investigation of the

Police Department property room. Roberts had re-

cently 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 de-

Al5

tails of the reports confidential, complied with Roberts’

request and delivered the documents to Roberts with-

out 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 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 state-

ment concerning the investigation a. 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 Council-

man Roberts. After completion of the scheduled busi-

ness, 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 naysteriously disappeared”; that

traffic tickets had been manipulated; that inappropriate

requests had been made by “high ranking police of-

ficials to the police court”; “. . . that things have oc-

curred causing the unusuai release of felons”; and the

reports disclosed “gross inefficiencies on the part of a

few of the high ranking officers of the police depart-

Al6

ment.” Councilman Roberts then moved that the re-

ports 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 inef-

ficient 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 mo-

tion. Councilman McGraw abstained from voting on

the motion.

On April 18, 1972, City Manager Alberg imple-

mented his prior decision to discharge plaintiff as

Chief of Police.

On that day plaintiff received a written notice

from Albert 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 state-

ments 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

— + CFA SS

Al7

that time, neither City Manager Alberg nor the

City Council made any further investigation of

plaintiffs administration of the Police Depart-

ment.

In April 1972, plaintiff's attorney requested a

hearing on the reasons for plaintiff's discharge.

The request was denied by Assistant City Coun-

selor James Gillham by a letter to plaintiff’s coun-

sel dated May 3, 1972. [Owen v. City of Indepen-

dence, 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 employ-

ment. The record shows, and the district court found, that

city manager Alberg did not subscribe to Roberts’ accusa-

tions and that Alberg publicly stated in his April 13, 1972,

report to the city council that, although the investigation

uncovered evidence of inefficiency in administration of the

police department, no evidence of any criminal activity

existed.

The district court also found that when Owen was dis-

charged 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 en-

titled to receive notice of the reasons for discharge and an

opportunity to clear his name at a hearing.’*.

3. 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 in-

juring 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 dis-

charge. [Owen v. City of Independence, Mo., supra, .421 F.

Supp. at 1118.]

Al18

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 there-

after also dismissed the state suit against Alberg.

The federal district court determined that Owen’s pro-

cedural 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 de-

termined, 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.* 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 dis-

charge and an opportunity for a hearing to clear his name.

4. The district court reasoned that the individual offici

sued in their official capacities had no greater claim to sod faith

immunity than the City itself because any award against, the

= would be paid from municipal funds, 421 F. Supp at

Al9

The parties present these issues on appeal:

By appellees:

1) That 28 U.S.C. § 13315 does not support a claim

against the City of Independence and its officials in their

official capacities arising directly from the Constitution.®

By appellant:

2) That the district court erred in ruling that Owen’s

jischarge 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 of-

ficial capacities. 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.

5. 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.

6. 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 com-

pletely 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, e.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).

A20

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, be-

cause the City is not a “person” within the meaning of sec-

tion 1983. City of Kenosha v. Bruno, 412 U.S. 507 (1973);

Monroe v. Pape, 365 U.S. 167 (1961). Owen asserts, how-

ever, 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 un-

der 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 be-

havior. 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 defen-

dants’ control may be awarded as part of an equitable de-

cree. 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 Schoo! 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 the backpay

A21

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 Allen 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 v. 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 to 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 bene-

fits are to be paid from the state treasury. See, e.g., Moneli

v. Department of Social Services of City of New York, 532

F.2d 259, 264-67 (2d Cir. 1976), cert. granted, ........ REI ihicaies

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

a SF =

(D. Del. 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 Constitution, without express congressional

authorization. 403 U.S. at 408 n.8 (Harlan, J., concurring).

We are confronted with the fundamental questions of

whether the remedies Owen seeks against the City of In-

dependence 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., con-

curring), and whether Congress has expressly decided that

a person injured by a municipal violation of the Constitu-

tion may not recover money from the city but must be

7. 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

v. 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,

ete 1062, 1064-65 (8th Cir.), cert. denied, 423 U.S, 833

A23

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 to immunize local government units from mone-

tary 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); Al-

dinger v. Howard, 427 U.S. 1, 4.n.3 (1976). However, the

Supreme Court may well have already rejected local gov-

ernmental immunity under section 1983 as a basis for dis-

allowing an implied right of action against local govern-

ments under the fourteenth amendment. In City of

Kenosha v. Bruno, supra, the Supreme Court held that sec-

tion 1983 does not permit equitable relief against a city, but

remanded the case to the district court to determine

whether the prerequisites for general federal question

jurisdiction under 28 U.S.C. §1331 were met and for recon-

sideration of the merits in light of several intervening de-

cisions. See 412 U.S. at 514, 515. Against the City of

A24

Kenosha, the issues on the merits could only be considered

if there were an implied right of action against the city,

because relief was unavailable 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., concurring); Hostrop v.

Board of Junior College District No. 515, 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 Municipalities For Con-

Stitutional 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 In-

dependence.’ See Stapp v. Avoyelles Parish School Bd.,

8. 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.

9. 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 oe liable for each and every con-

stitutional violation committed by their agents. For example,

cases such as Adekalu v. New York City, 431 F. Supp. 812 (S.D.

(Continued on following page)

A25

545 F.2d 527, 531 n.7 (5th 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 (5th Cir. 1976); Coz v.

Stanton, 529 F.2d 47 (4th Cir. 1975); Brault v. Town of Mil-

ton, 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. Con-

lisk, 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); Ade-

kalu 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 Eve-

sham, 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); Panzarella 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

5]

Footnote continued—

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. IIl.

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 en-

couraged 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 con-

stitutional violation.

a eB BP ee

A26

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 employees 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. 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.

The Liberty Interest.

Despite the obviously derogatory and stigmatizing na-

ture of Robert’s statement on April 17, 1972 (one day pre-

ceding 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

10. 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

in the police department custody d their into the

(Continued on following

A27

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 “[tjerminated under the provisions 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 of-

ficial 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

statement 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 district court reasoned, 421 F. Supp. at

1121-22, that Owen was completely exonerated from any

charges of criminal or immoral conduct by the city coun-

selor’s and city manager’s pre-April 17th statements that

the investigation had uncovered no evidence of illegal con-

Footnote continued—

hands of others including undesirables and were later found

by other law enforcement agencies.

“Reports whow (sic) that narcotics held by the Inde-

pendence, Missouri Chief of Police have mysteriously dis-

appeared. Reports also indicate money has mysteriously

disappeared. Reports show that traffic tickets have been

manipulated. The reports show inappropriate requests af-

fecting 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 in-

efficiencies 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).]

A28

duct 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 seri-

ously 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). Com-

pare Codd v. Velger, ........ RIN. sauce , 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 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, 2e., that the reasons given for

the discharge may severely damage the employee’s reputa-

tion in the community and that the employee claims those

reasons were false. Id. 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 dis-

charge 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

oe

ee

oe rn hen Se en Oe —

To

eS ie an Rl ae a ll

A29

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 police-

man Velger did not state a claim because the record dis-

closed 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 oppor-

tunity 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 em-

ployer and a discharged employee which has some

significant bearing on the employee’s reputation.

But the hearing required where a nontenured em-

ployee has been stigmatized in the course of a decision

to terminate 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 determination analogous

to the “second step” of the parole revocation proceed-

ing, which would in effect be a determination of

whether or not, conceding that the report were true,

ee Te a eee

A30

the employee was properly refused re-employment.

Since the District Court found that respondent had

no Fourteenth Amendment property interest in con-

tinued employment, the adequacy or even the exis-

tence of reasons for failing to rehire him presents no

federal constitutional question. Only if the employer

creates and disseminates a false and defamatory im-

pression 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 de-

famatory flyer issued by the chief of police of Louisville,

naming Davis as an active shoplifter, deprived the com-

plainant of “liberty” or -‘property” secured against state

deprivation by the Due Process Clause. The Court, al-

though rejecting the claim that an interest in one’s reputa-

tion alone is protected by the Due Process Clause, reaf-

firmed 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 termi-

nation of employment. Certainly there is no sugges-

tion in Roth to indicate that a hearing would be re-

quired each time the State in its capacity as employer

might be considered responsible for a statement de-

faming 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 not cast a stigma upon Owen. But

A31

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 re-

ferred to the county prosecutor for presentation to the

grand jury. Newspapers prominently reported Roberts’

statement and the city council resolution. Owen’s dis-

charge followed immediately after the April 17, 1972 meet-

ing. 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

11. A 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 Jack-

son.

Lyle Alberg, city manager, made no comment on the

firing but did name Lt. Lawrence Cook, a ten-year veteran

Bm department, as the new chief. Cook began his new

uties y.

While city manager Alberg did not subscribe to councilman

Roberts’ derogatory remarks about Owen, his later public an-

nouncement that he was referring the investigative reports to

the county attorney for submission to the grand jury did rein-

force the city council’s implication of wrongdoing against Owen.

A32

not come from the city manager and were not included

in the discharge notice is immaterial, because the official

actions of the city council released charges against Owen

contemporaneous 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 Trans-

portation 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 employ-

ment 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

Independence deprived Owen of liberty without due pro-

cess of law, in violation of Owen’s rights under the four-

teenth amendment.

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 termina-

A33

tion 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 U.S.C. § 7501, and attendant regu-

lations, which did not extend to nonprobationary federal

employees such as Kennedy the right to a full trial-typé

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 -

employment 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, entitl-

ing 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 * * *.” Id. 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 con-

clusion that despite the language of the ordinance quoted

above, that ordinance granted no right to continued em-

ployment, 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.

A34

While some of the Missouri cases which interpret stat-

utes allowing discharge of public employees “for the good

of the service.” appear to support Owen’s position, see

State ex rel. Reid y. Walbridge, 119 Mo. 383, 24 S.W.

457 (1893); State ex rel. Denison v. City of St. Louis,

90 Mo. 19, 1 SW. 757 (1886); State ex rel. Eckles v.

Kansas City, 257 S.W. 197, 200-01 (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. Cran-

dall, 269 Mo. 44, 190 S.W. 889 (1916) (en banc) supports

the position of the appellee that Owen possessed no prop-

erty interest in iis job. The state court there said:

[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 “[a]ppoint, and when deemed necessary for

the good of the service * * * remove all directors or

heads of administrative departments” may be fairly inter-

preted as conferring upon the city manager the power

tc 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

A35

Missouri law, such language confers the power to discharge

at will.

The district court determined that under the home

rule provisions 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 appel-

lant’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 ac-

corded rights to notice and a hearing, such rights

are to be implied from the fact that heads of adminis-

trative departments were made dischargeable only

“when necessary for the good of the service.” How-

ever, 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 ex-

press provision of such rights to other employees, it

is unlikely that the drafters intended to accord heads

of administrative departments such rights by implica-

tion 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, who 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,

A36

767 (8th Cir. 1976), cert. denied, ........ Ww ‘ah , 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 pos-

sessed a property interest in continued employment as

chief of police of the City of Independence.

IV.

Remedy.

We ‘it in Wellner v. Minnesota State Jr. College,

487 F% %2 (8th Cir. 1973), that when an untenured

empley* ef a state agency is, upon discharge, stigmatized

by the reivese of defamatory 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:

Wellner [the state employee] was improperly dis-

charged 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 reap-

12. 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

to 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 State Con-

stitution cannot feasibly be construed to require federal ju-

ai for every such error. [Id. at 349-50 (footnote

omit e

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 employee for failure to provide a

pretermination hearing are extremely rare.

A37

pointed. It is not within our province to speculate

that after a proper hearing clearing his reputation

the Board will recommend that Wellner not be reap-

pointed, or that the appropriate official will not reap-

point him to a similar teaching position. In any event,

Wellner remains on the payroll and is entitled to re-

ceive 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 qualify-

ing 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 back-

pay 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 S.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.

However, merely to order that the City now give

Owen a hearing would amount to no relief at all. Al-

though 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 rec-

A38

ord discloses that the city manager did offer Owen a dif-

ferent 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 oppor-

tunities and that at least one such opportunity was denied

him because of the adverse publicity surrounding his dis- —

charge. 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 soup 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 defa-

mation 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 Well-

ner case, Owen’s termination without an appropriate hear-

ing 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.

V.

Good Faith Defense.

The good faith of the municipality does not constitute

a defense to exaction of monetary relief as an element

13. At 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 retire-

ment in the absence of his being deprived of his good name.

A39

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 (5th

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 offi-

cials, as enunciated 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 (5th 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 individual members of the Board of Re-

gents. [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.

A40

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. Although 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 municipal-

ity 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 Rob-

erts, 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. Councilman Roberts, however, made state-

ments at an official meeting of the city council implying

that the investigation showed the chief of police to have

A4l

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 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

unavailable 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 addi-

tion to some compensatory relief, Owen is entitled to a

declaratory judgment that his discharge from employment

deprived him of constitutionally sia 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

A42

is one which “has never been decided by [the Supreme

Court].” Mt. Healthy Bd. of Educ. v. Doyle, ........ US.

ksdeahak , 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 majority has correctly resolved this issue. I accord-

ingly 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 on the majority’s conclusion

that the stigma to Owen was “connected with his dis-

charge”. 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 shop-

lifters 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

Fourteenth Amendment do not in terms single out

reputation as a candidate for special protection over

and above other interests 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 em-

ployment, is either “liberty” or “property” by itself

AA3

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 constitutional 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 termina-

tion of employment.

Id. at 701, 702, 710.

As set out in the trial court’s findings of fact incorp-

orated in the majority opinion, the city manager had exclu-

sive jurisdiction to hire and fire city employees. The

chief of police was subject to this provision. The city

charter specifically prohibits the mayor or council from

interfering with the appointment or discharge of any of-

ficer, such as the chief of police. Violation constitutes

a misdemeanor and grounds for removal from office upon

conviction.

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 depart-

ment, 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.

A44

The majority agrees with the district court’s deter-

mination that no stigma attached to the nondefamatory

discharge notice given by the city manager. The defama-

tion made was contained in information released by coun-

cilman 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 dis-

charge.” Majority opinion, supra at 6. While this fact

might have some bearing on the amount of damages re-

coverable in a state action for defamation, I cannot agree

that it somehow creates an otherwise absent liberty in-

terest entitling plaintiff to a hearing. It is clear that the

public impression gleaned from media reports did not con-

form 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 respon-

sible for the mistaken impression gained by the public.

Cf. Cox v. Northern Virginia Transportation Commission,

951 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.

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

A45

the authorities heretofore cited. No violation of plaintiff's

liberty rights in connection with his discharge 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.

A46

APPENDIX C

George D. OWEN, Plaintiff

Vv.

CITY OF INDEPENDENCE, MISSOURI,

et al., Defendants.

Civ. A. No. 73CV138-W-3.

United States District 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 equi-

table relief in the form of back pay and other fringe bene-

fits from the date of his discharge to the date the defen-

dants grant him the notice and hearing he requests."

1. 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 Plaintiff's Motion For

Summary Judgment and Narrowing Issues For Evidentiary Hear-

ing,” filed February 6, 1975.

A47

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 jurisdic-

tion 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 par-

ties 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 find-

ings 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.

A48

Defendant Richard A. King is the duly elected and

acting Mayor of the City and a member of the City Coun-

cil. 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 mem-

bers of the City Council of the City. They are the suc-

cessors 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 connec-

tion 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:

“[n]either the council, the mayor, nor any of its other

members may direct the appointment of any person

to, or his removal from office ur employment by the

A49

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 em-

ployees 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 Chief of Police of Kansas

City, Missouri. Plaintiff was given no contract of employ-

ment, and there was no de facto tenure system which

would have given him a reasonable or legitimate expecta-

tion 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 plaintiff's administration of the Police

Department, including but not limited to plaintiff's choice

of people for positions in the Department and his admin-

istration 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

A50

aad

_— °

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.

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 adminis-

tration of the Police Department disclosed by the investi-

gation. 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 if he refused to accept

¥ tle Vi le

; ——

ye Adil masome 49 ‘

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 supervison 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 advisomz_—

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 termi-

nated.

On April 13, 1972, Alberg had a discussion with Lieu-

tenant 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 concerning the investigation

and audit of the Police Department’s property room, which

stated:

“At my direction, the City Counselor’s office, in con-

junction with the City Auditor have completed a

routine audit of the police property room.

“Discrepancies were found in the administration, han-

dling and security of recovered property. There ap-

A52

pears 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 wit-

nesses secured in the investigation of the Police Depart-

ment 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 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.

An informal meeting was held on the morning of

April 17, 1972, between Alberg and four members of the

|

A53

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 dis-

close 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, Coun-

cilman Roberts read his prepared statement. The state-

ment 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 nar-

cotics being held by the Department “. . . have mysteri-

ously disappeared”; that traffic tickets had been manip-

ulated; 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 depart-

ment.” Councilman Roberts then moved that the reports

be made public; that they be turned over to the Prose-

cuting 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 per-

sons as are shown by the investigation to have been

involved in illegal, wrongful, or gross inefficient activ-

ities brought out in the investigative reports, and to

complete the investigation.”

A54

The full statement is set out in a marginal note. 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.

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 re-

quested that Alberg provide him with written notice of

2. 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

officials. 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 un-

believable. They deal with the disappearance of 2 or more

television sets from the police department and signed state-

ment 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 Inde-

pendence, Missouri Chief of Police have mysteriously dis-

appeared. Reports also indicate money has mysteriously

disappeared. Reports show ‘that traffic tickets have been

manipulated. The reports show inappropriate requests af-

fecting 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 in-

efficiencies 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 investigators is so bad that the council should im-

mediately 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.

(Continued on following page)

A55

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 news-

papers.

After termination of plaintiff's employment, Alberg

referred the investigation reports and statements to the

Prosecuting Attorney of Jackson County, Missouri, for con-

sideration by a grand jury as recommended by the City

Footnote continued—

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 re-

quested 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 investi-

gation of these matters and have cooperated in this investiga-

tion and their efforts are recognized and appreciated. Be-

cause these investigative reports and statements have not

parse available to the news media, I respectfully move as

ollows:

“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 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 compiete the investigation.”

A56

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 plain-

tiff’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, 1973.

Plaintiff contends that his discharge on the day fol-

lowing Councilman Roberts’ disclosure of details of the

investigation 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, defen-

dants have shown by a preponderance of the evidence that

the circumstances of plaintiff's 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 unautho-

rized 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.)

A57

Second, plaintiff was completely exonerated in writing

from any charges of criminal misconduct arising out of the

investigation 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. In 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 in-

efficiency in administration of the Police Department,

“.. ‘there was no evidence to substantiate any allegations

of a criminal nature.” At 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 dis-

charge resulted from criminal or other “stigmatizing” mis-

conduct. Further, in addition to Alberg’s statement, plain-

tiff was exonerated by the grand jury’s return of a “no

true bill” following its investigation of the charges made

at the April 17, 1972, City Council meeting.

Plaintiff also alleged in the complaint that his dis-

charge 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 suf-

ficient to determine the issue of liability in favor of defen-

dants, the material factual issues with respect to defendants’

“good faith” detense 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 en-

titled 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)

oO

A58

whether defendants knew, or reasonably should have

known, that their refusal to grant plaintiff the requested

notice and hearing violated plaintiff’s 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 dis-

charged 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 existed, and that they relied on the City’s Depart-

ment 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 Depart-

ment 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 Coun-

cilman 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 plaintiff's

counsel in response to plaintiff's counsel’s request for cer-

tification of plaintiff's discharge to the proper appellate

board.

3. Councilman Bonville is deceased.

A59

Further, the individual defendants have proven by a

preponderance of the evidence that their belief that plain-

tiff 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 in-

juring 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 de-

cided on June 29, 1972, more than two months after plain-

tiff’s discharge. The individual defendants cannot reason-

ably be charged with notice of the subsequent decision in

these cases. Plaintiff presented no evidence that the indi-

vidual 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 his personal relationship with plaintiff was

good despite his disagreement with plaintiff over plain-

tiff’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 per-

sonally. Their testimony is credible and is not substan-

tially controverted by opposing evidence.

It is, therefore, factually concluded that plaintiff's em-

ployment as Chief of Police was not terminated under cir-

cumstances in which his reputation and prospects for

future employment were damaged by allegations of im-

A60

moral, illegal, or other “stigmatizing” conduct; that plain-

tiffs employment was not terminated in retaliation for his

exercise of First Amendment rights; and that even if dis-

charged under “stigmatizing” circumstances, the individual

defendants acted in good faith in refusing to grant plain-

tiffs 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 defen-

dant City, because a municipal corporation is not a “‘per-

son” within the meaning of that term as employed in Sec-

tion 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct.

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

A61

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](5th Cir.

1974).

[2] Although subject matter jurisdiction does not ex-

ist 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 termina-

tion 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 Amend-

ment 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 (5th 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). Seealso: 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 by apply-

ing 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 gen-

erally: Note, “Damage Remedies Against Municipalities

For Constitutional Violations,” 89 Harv. L. Rev. 922, 929

(1976). Adopting the reasoning of these authorities, it is

A62

concluded that a claim for relief against the City of Inde-

pendence can be based directly on the Fourteenth Amend-

ment 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 require-

ment is satisfied.

Defendants contend that the amount in controversy

requirement has not been satisfied in this case. The gen-

eral rule is that the amount in controversy must be deter-

mined 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 justify

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 contro-

versy requirement, and are made in good faith. The com-

plaint 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 Civil Procedure. Therefore,

it is assumed for the purpose of disposing of this action

A63

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 “lib-

erty,” 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 deter-

mined whether plaintiff was deprived of an interest in

either “property” or “liberty” in connection with his dis-

charge.

[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 Re-

gents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709,

33 L.Ed.2d at 561.

A64

It is generally held that public office or employment, and

in particular an appointed office or position, is not a prop-

erty interest within the meaning of the Fourteenth Amend-

ment. See, 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 con-

tractual 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 ter-

mination 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 prop-

erty 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 Plaintiff’s 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 plain-

tiff had no property interest in his employment Chief of

Police which would entitle him to procedural and substan-

tive due process rights.

A65

[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 opportu-

nities. Board of Regents v. Roth, supra; Arnett v. Kennedy,

416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Goss v.

Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

For “[w]here 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 imputa-

tion 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 (5th Cir.

A66

1975); Buhr v. Public School District, 509 F.2d 1196 (8th

Cir. 1975); Kaprelian v. Texas Women’s University, 509

F.2d 133 (5th 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 mis-

conduct 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 opportu-

nities. The defendants, however, have 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 CounciJman 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.

A67

Finally, prior to his discharge, plaintiff was completely

exonerated from any charges of illegal or immoral conduct

by City Counselor Cottingham, who supervised the investi-

gation of the plaintiff's administration of the Police De-

partment, 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 investi-

gative file referred to by Councilman Roberts in his public

statement.

On the basis of the above findings of fact, it is con-

cluded that the circumstances of plaintiff’s 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 adminis-

trator. Plaintiff was therefore not deprived 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 Ex-

ercise of First Amendment Rights.

Plaintiff contends that his employment was termi-

nated 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 valuable

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.”

A68

Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694,

2697, 33 L.Ed.2d 470, 477 (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 pre-

sented 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 Sec-

tion 1983, Title 42, United States Code. O’Connor v.

Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed2d 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. Don-

aldson, supra; Scheuer v. Rhodes, supra. It also exists

for members of the city council. See e.g.: Rasmussen

v. City of Lake Forrest, Iinois, 404 F. Supp. 148 (N_D. Il.

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 (5th 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

A69

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 v.

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 responsi-

bility would violate the constitutional rights of [plain-

tiff], or if he took the action with the malicious in-

tention to cause a deprivation of constitutional rights

or other injury to [plaintiff].”

The Supreme Court has further emphasized that “[f]or

purposes of this question, an official has, of course, no

duty to anticipate unforeseeable constitutional develop-

ments.” O’Connor v. Donaldson, supra; Wood v. Strickland,

supra.

Had the individual defendants been sued in their indi-

vidual capacities, defendants have clearly shown by a pre-

ponderance of the evidence that neither they, nor their

predecessors, were aware in April 1972, that, under the

circumstances, the Fourteenth Amendment accorded plain-

tiff 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

4. Lane v. Inman, 509 F.2d 184 (5th 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 (DSD.

1974); Oberhelman v. Schultze, 371 F. Supp . 1089 (D. Minn. 1974);

Young v. Coder, 346 F. Supp. 165 (M.D. Pa. 1972).

A70

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 liabil-

ity for claims based directly on the Fourteenth Amend-

ment.

[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 exer-

cise 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 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. at 241-242, 94 S.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 Municipal-

ities For Constitutional Violations,” 89 Harv. L. Rev. 922,

A771

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 govern-

mental unit even though the governmental unit’s agents

were protected from personal liability by a good faith

defense. Hostrop v. Board of Junior Coliege Dist. No. 515,

523 F.2d 569, 576-579 (7th Cir. 1975); cert. denied, 425 U.S.

963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).

[15] Nevertheless, 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 re-

quired by the public good. The distinction between impos-

ing 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 conscitn-

tious public official’s discharge of his duties will be im-

paired regardless whether liability is imposed on him per-

sonally 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

established a good faith defense against liability in this

action by proof of the good faith of the individual defen-

dants who acted as the agents and officers of the City

of Independence.

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

A72

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 conclusions 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.

Plaintiff’s 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 re-

quires 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 for a hearing.

Third, he contends that there was a sufficient nexus be-

tween Councilman Roberts’ statement and the actions of

the City Council on April 17, 1972, and his discharge on

April 18, 1972, to support a finding that “stigmatizing”

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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 con-

tinued 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 plaintiffs allegation that no ruling has

_ been made on this contention, the contention was expressly

rejected on page 17 of the “Order Denying Plaintiff’s Mo-

tion 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 Indepen-

dence is organized in the council-manager form under a

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“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 perti-

nent part that

“{njo 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 constitu-

tion. ...”

This provision was intended to give “home rule” charter

cities a “broad measure of complete freedom from State

legislative control [over municipal employment deci-

sions].” State v. Cervantes, 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 employ-

ment 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 “classi-

fied” and “unclassified” service. Section 3.28 of the Char-

ter expressly provides that an employee in the “clas-

sified” 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

———e—Sae——__aaaa a

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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 adminis-

trative 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 adminis-

trative departments. .. .”

(19] Plaintiff argues that in spite of the fact that

heads of administrative departments are not expressly ac-

corded rights to notice and a hearing, such rights are to

be implied from the fact that heads of administrative de-

partments 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 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 sup-

port 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

1. State ex rel. Eckles v. Kansas City, 257 S.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

Mo. 19, 1 S.W. 757 (Mo. 1886).

A776

case.? To the extent that dicta in those cases, when read

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 no right to notice or a hearing by Missouri law.

2. In 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, ........ 8 , 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 governi tenure positions held by city em-

ployees” 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 having received a written statement setting

forth in detail the reasons therefor. * * * In case of dis-

charge of any person owing to the reduction of force, the

discharged perron shall receive a certificate so stating, and

shall be placed on the eligible list with the same rank he

had alre

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