# Petition — Owen v. Independence > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0249%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 622 ## Text ‘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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0249%3A1. Public record. Not legal advice.