Opposition Brief — Melton v. Oklahoma City

o FILED

7, |

No. 91-29 , AUG 2 1991

) GAFIDE OF TRE OLE

In The

Supreme Court of the United States

October Term, 1991

*

RAYMON J. MELTON,

Petitioner,

CITY OF OKLAHOMA CITY, et al.,

Respondents.

¢

Petition For Writ Ox Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

.

RESPONDENTS’ BRIEF IN OPPOSITION

’

James G. HamMiILi GERALD S. Rakes

Municipal Counselor Assistant Municipal

Diane Lewis Counselor

Deputy Municipal Counsel of Record

ounselor for Respondent

Counsel of Record Lloyd Gramling

a a 309 Municipal Buildin

City of Oklahoma City 200 North Wetker

RicHarpD C. SmitH Oklahoma City, Oklahoma

Assistant Municipal 73102

Counselor (405) 297-2555

Counsel of Record

for Respondents

Emmett, deceased, Maxwell,

Chambless, Taylor, and

Hearn

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ISSUES PRESENTED IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

1. The Petition for Writ of Certiorari should not be

granted in that the in banc decision of the Tenth Circuit

Court of Appeals was consistent with Rule 35 of the Rules

of the Tenth Circuit and Rule 35 of the Rules of Appellate

Procedure and did not deviate from the usual course of

proceedings.

2. The Petition for Writ of Certiorari should not be

granted in that “falsity” of the reason for termination is a

prima facie element of a liberty interest and was argued by

all parties. Further, the decision of the 10th Circuit Court

of Appeals in banc on this issue was consistent with

opinions of this Court and with opinions of the various

circuits.

3. The Petition for Writ of Certiorari should not be

granted in that Petitioner failed to establish that he was

deprived of a liberty interest without due process.

4. The Petition for Writ of Certiorari shouid not be

granted in that Petitioner had no protected property

right.

ii

PARTIES

The participants in the proceedings below were:

Raymon J. Melton, Plaintiff

City of Oklahoma City, a municipal corporation;

Lloyd A. Gramling, Chief of Police for The City of Okla-

homa City; Gerald L. Emmett, deceased, Former Assistant

Chief of Police for The City of Oklahoma City; Marvin

Maxwell, Major, Oklahoma City Police Department; Wil-

liam R. Chambless, Major, Oklahoma City Police Depart-

ment; Car! Smith, Lieutenant, Oklahoma City Police

Department; Robert Taylor, Lieutenant, Oklahoma City

Pclice Department; David McBride, Lieutenant, Okla-

homa City Police Department; and Paula Hearn, Assis-

tant to The City Manager, Defendants.

Oklahoma Municipal League, Inc. amicus curiae.

ili

TABLE OF CONTENTS

Page

NN ey abe ede eek veeesdversevass i

EE ESE ee ii

ee iii

pe eS bys 0 | ee Vv

ty gO 8) 1

OTHER JURISDICTIONAL ISSUES................. 4

REVERSAL BY THE TENTH CIRCUIT IN BANC

Oy I oy i yy Oy Ga 4

STATUTES INVOLVED IN THE CASE NOT CITED

ee es 8 EE 6

STATEMENT OF THE CASE...................555. 8

MISTAKES IN FACTS IN PETITION FOR WRIT OF

ES 8

ee 0) | ls Ce 13

RE Ee eee eee 14

THE PETITION FOR WRIT OF CERTIORARI

SHOULD NOT BE GRANTED IN THAT FALSITY

OF THE REASON FOR TERMINATION IS A FUN-

DAMENTAL ELEMENT OF A LIBERTY INTEREST

AND WAS ARGUED BY ALL PARTIES.......... 14

THE PETITION FOR WRIT OF CERTIORARI

SHOULD NOT BE GRANTED IN THAT PETI-

TIONER FAILED TO ESTABLISH THAT HE WAS

DEPRIVED OF A LIBERTY INTEREST WITHOUT

es een sey res css ese sscees 16

A. ENTITLEMENT TO A HEARING.......... 17

ES ne 20

iv

TABLE OF CONTENTS - Continued

Page

C. THE USE OF THE DISJUNCTIVE.......... 22

D. DISSEMINATION OF CHARGES INSTEAD

OF REASONS FOR TERMINATION........ 23

THE PETITION FOR WRIT OF CERTIORARI

SHOULD NOT BE GRANTED IN THAT PETI-

TIONER HAD NO PROTECTED PROPERTY

TABLE OF AUTHORITIES

Page

Cases

Aspen Highlands Skiing Corp. v. Aspen Skiing Co.,

738 F.2d 1509 (10th Cir. 1984), aff’d, 472 U.S. 585

RR EY Rn eer 5

Bailey v. Kirk, 777 F.2d 567 (10th Cir. 1985)....... 24, 26

Bishop v. Wood, 426 U.S. 341 (1976).................. 23

Board of Regents v. Roth, 408 U.S. 564 (1972)

CREPES TECEVGMUGS TEN wr ewe eeererecesetes 20, 23, 24, 25

Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988), cert.

Co eA 19

Brady v. Maryland, 373 U.S. 83 (1963)................. 8

Brandt v. Board of Co-op Educational Services, 820

ee es 19, 2

Christian v. Belcher, 888 F.2d 410 (6th Cir. 1989)...... 19

Clark v. Maurer, 824 F.2d 565 (7th Cir. 1987)......... 19

Clegg v. Conk, 507 F.2d 1351 (10th Cir. 1974), cert.

A Ee ) ee 5

Codd v. Velger, 429 U.S. 624 (1977) .............. passim

Connelly v. Comptroller of the Currency, 876 F.2d

Oe ne ee re 19

Cox v. Northern Virginia Transportation Commission,

rr re er ec ce se senesrercsers 19

Daniels v. Williams, 474 U.S. 327 (1986).............. 22

Davidson v. Cannon, 474 U.S. 344 (1986)............. 22

Doe v. Casey, 796 F.2d 1508 (D.C. Cir. 1986) ......... 20

vi

TABLE OF AUTHORITIES —- Continued

Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990),-cert.

denied, _ U.S. __,, 111 S.Ct. 1102 (1991)......... 18

Endicott v. Huddleston, 644 F.2d 1208 (7th Cir. 1980) .... 21

Fraternal Order of Police Lodge No. 5 v. Tucker, 868

F.2d 74 (Sed GAG Te ith de sie s ce cce 19

Goodwin v. City of Oklahoma City, 182 P.2d 762

(1967) .. 2 0000cce ese p ONTO. eb vss y esse 25

Graham v. City of Oklahoma City, 859 F.2d 142 (10th

Cig. 1966) . «0 sac dimen CUS f6s-n0s0% 26

Hadley v. Couniy of DuPage, 715 F.2d 1238 (7th Cir.

1983), cert. denied, 465 U.S. 1006 (1984)............ 24

Hall v. O'Keefe, 617 P.2d 196 (Okla. 1980)............ 25

Koerpel v. Heckler, 797 F.2d 858 (10th Cir. 1986)...... 21

Lipp v. Board of Education, 470 F.2d 802 (7th Cir.

1972)... 006569 0 en yy 24

Loudermill v. Cleveland Board of Education, 470 U.S.

532 (1905)... «: «190 20, 21, 26, 27

Lyons v. Barrett, 851 F.2d 406 (D.C. Cir. 1988)........ 19

McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977)...... 19

Meder v. City of Oklahoma City, 869 F.2d 553 (10th

Civ. 1989) ...3:<cnuee amen een a0 4 wc eset ee 26

Missouri v. Jenkins, 491 U.S. 274 (1989) ............... 3

Myrick v. City of Dallas, 810 F.2d 1382 (5th Cir.

1} )) rr aN ee 20

Oklahoma Education Association v. Alcohol Beverage

Laws Enforcement Commission, 889 F.2d 929 (10th

Cis. 1909) ... ois exp ep emee a s e U aa ea daese ves 18

vii

TABLE OF AUTHORITIES - Continued

Page

Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71 (ist

i Sar. ccc eS CeCe ue Cee eeg bay key i hne er DPN ees 18

Page v. United States, 808 F.2d 723 (10th Cir. 1987)

cert. dented, 462 US. DiS (ISG7) ...« 0. ceccecvveccs: 9

Paul v. Davis, 424 U.S. 693 (1976) ............ 15, 22,

Rosewitz v. Latting, 689 F.2d 175 (10th Cir. 1982)..... 26

Stone v. University of Maryland Medical System, 855

I EE WU a vio cccescceeveseececeeswes 19

Umholtz v. City of Tulsa, 565 P.2d 15 (Okla. 1977)... . 26

Walker v. United States, 744 F.2d 67 (10th Cir. 1984).... 21

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989) .... 22

Zimmerman v. First Federai Savings and Loan Asso-

ciation, 848 F.2d 1047 (10th Cir. 1988) .............. 5

Zinermon v. Burch, 494 U.S. 113 (1990)............ 20, 21

CONSTITUTION

Se ee eee ee 22

FEDERAL STATUTE

re 3

OKLAHOMA STATUTE

ene 6, 29

CHARTER OF THE City OF OKLAHOMA Clty

ee Dees cee saverseenees 6, 25

Se ag ae

viii

TABLE OF AUTHORITIES - Continued

Page

MIscELLANEOUS

Rule 13.4 of the Rules of the Supreme Court of the

ee ae eae ees 2, 3, 4

Rule 13.6 of the Rules of the Supreme Court of the

eRe aka ce te ws ek gp one id 2, 4

Rule 15 of the Rules of the Supreme Court of the

a Ste TUaee ee eek ea ch bs oes. cues 044s 3

Rule 15.2 of the Rules of the Supreme Court of the

ds ine laveayecnaes ens ke randss 6044500: 1

Rule 35 of the Rules of Appellate Procedure......... 3

Rule 35 of the Rules of the United States Court of

Appeals for the Tenth Circuit.................... 3, 4

Rule 40 of the Rules of the United States Court of

Appeals for the Tenth Circuit...................... 3

Rule 41.2 of the Rules of the United States Court

of Appeals for the Tenth Circuit................... 3

No. 91-29

¢

In The

Supreme Court of the United States

October Term, 1991

¢

RAYMON J. MELTON,

Petitioner,

CITY OF OKLAHOMA CITY, et al.,

Respondents.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

+

Respondents, The City of Oklahoma City, Lloyd Gram-

ling, Gerald Emmett, deceased, Marvin Maxwell, William

Chambless, Robert Taylor and Paula Hearn respectfully pray

that this Court deny Petitioner’s Petition for Writ of Cer-

tiorari filed herein.

JURISDICTIONAL ISSUES

The Respondents received a copy of the Petition for Writ

of Certiorari on July 5, 1991, and this brief in opposition is

timely filed as provided by Rule 15.2 of the Rules of the

Supreme Court of the United States.

Respondents question if the Petitioner’s Petition for

Writ of Certiorari is timely filed for two reasons. First,

Petitioner was granted an extension to file a Petition for

Writ of Certiorari to seek review of the opinion of the

Tenth Circuit Court of Appeals in banc on Petitioner’s

liberty interest claim, under Rule 13.6 of the Supreme

Court Rules. (See Paragraph No. 2 of Petitioner’s Request

for Extension of Time.) Petitioner’s Petition contains an

issue for which an extension was not granted, namely,

was the notice given sufficient for a property interest, an

issue decided by the panel and not reviewed by the in

banc Court. (Issue No. 3.) Petitioner’s failure to comply

with the mandatory language of Rule 13.6 (the Applica-

tion for Extension of Time . . . must identify the judgment

sought to be reviewed .. . ) should bar the review of the

panel’s decision on his alleged property interest.

Secondly, due to a change in the Supreme Court

Rules, the denial of Respondents’ Petition for rehearing

but acceptance for in banc consideration may not have

tolled the time period for commencing this appeal. Rule

13.4 of the Supreme Court Rules specifically provides:

The time for filing a petition for a writ of cer-

tiorari runs from the date the judgment or

decree sought to be reviewed is rendered, and

not from the date of the issuance of the mandate

(or its equivalent under local practice). How-

ever, if a petition for rehearing is timely filed in

the lower court by any party in the case, the

time for filing the petition for a writ of certiorari

for all parties (whether or not they requested

rehearing or joined in the petition for rehearing)

runs from the date of the denial of the petition

for rehearing or the entry of a subsequent judg-

ment. A suggestion made to a United States

court of appeals for a rehearing in banc pur-

suant to Rule 35(b), Federal Rules of Appellate

Procedure, is not a petition for rehearing within

the meaning of this Rule.

In the instant case, Respondents’ Petition for Rehearing

was denied on November 3, 1989. Petitioner’s Appendix

at pages 50-53. However, the Tenth Circuit Court of

Appeals accepted Respondents’ Rule 35(b) suggestion to

rehear the case in banc. Thus, Petitioner’s time to file the

instant petition may have commenced on November 4,

1989, the day after denial of the Rule 40 Petition for

Rehearing and absent an extension, expired on February

1, 1990. This Petition was not filed until July 2, 1991. On

March 19, 1991, the Circuit Court in banc entered judg-

ment for Respondents on the liberty interest claim. How-

ever, 28 U.S.C. § 2101(c) requires a judgment to appeal

from the case at bar. No judgment was entered until

March 19, 1991. (Note: The Respondents filed a Petition

for Rehearing and for suggestion on in banc which comes

under the purview of both Rules 35 and 40 of the Tenth

Circuit. The mandate was stayed even though the rehear-

ing was denied. See Rule 41.2 of the Tenth Circuit Rules.)

As noted in Missouri v. Jenkins, 491 U.S. 274 (1989), this is

a complex area, and it has been brought to this Court’s

attention, as required by Rule 15 of the Supreme Court

Rules. All the issues may, therefore, either be timely or

untimely pursuant to Rule 13.4. Respondents admit that

the application of this rule by this Court to bar a review

of an in banc decision seems unfair. If this Court should

hold that the added sentence of Rule 13.4 is not a bar for

review of the in banc decision (which was only on the

liberty issue), then, at least, Petitioner’s third issue

regarding the Tenth Circuit’s panel’s decision regarding

the property issue should be barred by the application of

Rule 13.4 or Rule 13.6 of the Supreme Court Rules.

S

OTHER JURISDICTIONAL ISSUES:

Reversal By The Tenth Circuit In Banc Of The Liberty

Interest

Petitioner states that the Tenth Circuit’s in banc decision

which reversed the trial court’s judgment on his liberty

interest deprivation claim deprived him of due process. He

makes this allegation partially on the premises that he was

not accorded an opportunity to adequately brief this matter

prior to the circuit’s decision in banc and attempts to allege

surprise. He alleges that “it is a matter of fundamental

fairness that the parties be afforded full notice and oppor-

tunity to address the matter.” (Petitioner’s Petition for Writ

of Certiorari, page 12.) He requests that the Court issue a

Writ of Certiorari alleging that the Tenth Circuit has so far

departed from the accepted and usual course of judicial

proceedings as to call for an exercise of the Court’s powers

of supervision.

It was proper for the Tenth Circuit Court of Appeals

in banc to review and reverse the liberty interest award

based upon plain error and in accordance with Rule 35(c)

of the Rules of the Tenth Circuit. This decision does not

conflict with prior decisional law, as falsity is a prima facie

element of an employment liberty interest claim. The in

banc Court held that the instruction on the liberty interest

was improper in several aspects, including the failure of

Petitioner to prove stigimatization as defined by “falsity

of the charges”, and that the combination of all! of the

mistakes in the liberty instruction constituted plain error.

The Court further held that this error was unjust and

prejudicial. Petitioner’s Appendix at 16. Petitioner at

page 12, footnote 15 of his Petition for Writ of Certiorari

acknowledges that an Appeliate Court may redress a

plainly erroneous jury instruction even if an objection is

not made at trial, citing Zimmerman v. First Federal Savings

and Loan Association, 848 F.2d 1047, 1054, 1055 (10th Cir.

1988), (as did the Court in banc) “and cases cited therein.”

Zimmerman, in turn, cites as authority Aspen Highlands

Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th

Cir. 1984), aff'd, 472 U.S. 585 (1985) (“where an objection

to an instruction is not made before the jury retires for

deliberation, we only review an instruction that is ‘pat-

ently plainly erroneous and prejudicial’”); and Clegg v.

Conk, 507 F.2d 1351, 1362 (10th Cir. 1974), cert. denied, 422

U.S. 1007 (1975) (party claiming plain error has “heavy

burden of demonstrating fundamental injustice”).

Omission of a prima facie element of a claim, in this

case “falsity” of the reason for termination, is patent plain

error. Codd v. Velger, 429 U.S. 624 (1977). (It should be

noted that both the in banc majority and dissent held the

liberty instruction given in the trial of the case was erro-

neous). The consideration of the issues by the Court in

banc was in accordance with judicial procedure and Peti-

tioner was accorded due process. Due te the number of

errors that the panel and the in banc judges held were

committed by the trial judge, this Court should be con-

vinced that fundamental! injustice was committed in the

trial of this case, all to the detriment of these Respon-

dents. The Petitioner cannot legitimately allege that the

issues raised by the in banc Court were inadequate to

place him on notice or that he had no opportunity to be

heard on these issues with regards to the liberty interest

question. His counsel filed briefs as scheduled on these

issues and argued the questions before the circuit court in

banc. The mere fact that the circuit court reversed the trial

court’s judgment does not show a departure from the

usual course of judicial proceedings.

*

STATUTES INVOLVED IN THE CASE NOT CITED

BY THE PETITIONER

Other than the Constitutional Amendment and the

statute cited by Petitioner, Respondents believe this case

also involves 11 O.S. § 50-125, which provides:

Members retired under the provisions of this

article may retain their status as peace officers

of the State of Oklahoma, retired, and as such

may retain the right to keep and bear firearms

when approved by the officials of the munici-

pality of retirement. Such retired members may

in times of great emergency or danger serve in

keeping with their availability and ability at the

request of the Governor of Oklahoma or the

mayor of their retirement municipality.

Lastly, this case involves two sections of the Charter

of The City of Oklahoma City, which provide:

ARTICLE III.

Section |. Appointments and Promotions.

Appointments and promotions in the classified

service of the City shall be made according to

merit and fitness, and removal and demotions

shall be made solely for the good of the service.

To carry out this purpose, there is hereby cre-

ated a Personnel Service Department, the head

of which shall be the Personnel Director who

shall be appointed by the City Manager and is

subject to removal by the Manager. . . .

ARTICLE IV.

Section 3. The City Manager. The City Manager

shall:

(a) Be the Chief Administrative Officer of the

City and shall have charge and supervision of

all branches of the City service, except as other-

wise in this Charter provided.

(b) See to the faithful execution of all laws and

ordinances of the State and City.

(c) Appoint all officers and employees of The

City of Oklahoma City except the elective offi-

cers and the officers whose election is vested in

the Council by this Charter.

(d) Dismiss any officer or employee appointed

by him whenever, in his judgment, the interests

of the City service so require. |

(e) Control, supervise and direct the several

officers, boards, and departments of the City

which are within and under his control and

management.

(f) At any time investigate the affairs of any

department. He, or any person appointed by

him for that purpose, shall have power to com-_

pel the attendance of witnesses and the produc-

tion of books, papers and other evidence.

(g) Attend all meetings of the Council and may

take part in the discussions, but shall not vote.

(h) Keep the Council advised of all the needs

of the City and shall recommend measures for

adoption.

(i) Prepare and submit to the Council, annually

during the month of July, an estimate in detail of

the probable receipts and the expenditures of

funds and needs of the City in its operation for

the ensuing fiscal year.

(j) Perform all such other duties as may be

imposed on him by this Charter or by the Coun-

cil.

¢

STATEMENT OF THE CASE

MISTAKES IN FACTS IN PETITION FOR

WRIT OF CERTIORARI

This case involves claims by a former police officer

who, while employed by The City of Oklahoma City,

surreptitiously tape recorded his conversation with an

Assistant United States Attorney concerning his friend’s

criminal trial, for purely personal reasons, and then sub-

sequently turned this tape recording to his friend’s

defense lawyers. After a complaint was filed, an investi-

gation was conducted wherein Petitioner admitted the

conduct. After notice and a hearing, an advisory board

found this conduct violated the Police Code of Ethics and

recommended termination. Instead, he was allowed to

retire. ;

Petitioner artfully fails to inform the Court of several

important dates and facts that occurred during and after

the jury trial of Judge William Page and leading up to

Petitioner’s termination or retirement from The City.

Initially, Petitioner fails to inform the Court that the

United States District Judge who was trying the Page

criminal case held that Melton’s information was not

Brady material nor was it evidence of prosecutorial mis-

conduct. Petitioner’s Appendix 121-22 (Dissenting opin-

ion of Judge Baldock). That determination in the criminal

case was upheld on appeal. Page v. United States, 808 F.2d

723 (10th Cir. 1987) cert. denied 482 U.S. 918 (1987).

Secondly, Petitioner fails to inform the Court that

Lieutenant Smith’s Internal Affairs notice letter was

dated August 17, 1983, and received by Petitioner three

weeks prior to the Departmentai hearing. Petitioner’s

Appendix 4-5 and 75. During Lieutenant Smith’s investi-

gation into the FBI’s allegations against Petitioner, Lieu-

tenant Smith interviewed Petitioner and informed him of

the charges and the name of the complaining witness. He

further informed Petitioner, as Lieutenant Smith testified

in the trial:

Q. Did you in fact - but did you in fact discuss

the allegation of perjury?

A. I advised him in my judgment the most

serious thing confronting Lt. Melton was

the violation of the Code of Ethics in the

fact that he - I don’t know, we keep getting

into this, that he tape recorded, but that’s

connected with what he did with it later.

But his main problem was the fact that he

recorded the conversation with United

States Attorney Fredenburg and then made

that tape available to the defense counsel

for Judge Page. (TR page 684, lines 11-19.)

During this interview, Melton admitted to Lieutenant

Smith that he had taped his conversation with the United

States Attorney and turned it over to Page’s defense

counsel. (TR pages 686-687.) |

Petitioner claims that Lieutenant Smith was to make

a conclusion whether the evidence supported the allega-

tions. However, under the Oklahoma City Police Depart-

ment policy, the Departmental Review Board and not the

10

Internal Affairs Division was to make determinations as

to whether complaints are “unfounded”, “founded”,

“exonerated”, etc. Oklahoma City Police Department Pol-

icy 9.01, Exhibit No. 53. The Board Chairman held the

perjury allegation to be “mute” (sic) as the Board

believed that the other charge was by far the most serious

conduct.

At the Departmental Review Board hearing, Peti-

tioner admitted he had taped this conversation and

turned it over to defense counsel. (TR pages 233-234;

721.) He further admitted he knew it was wrong. (TR

page 785.) At the trial of this case, Petitioner admitted

that after taping this conversation he told his major he

had had the conversation with the United States Attor-

ney, but that he did not tell the major he had taped the

conversation (TR page 228); that he did not tell the

United States Attorney he felt compelled to produce to

defense counsel the information he had (TR pages

255-256); and that he did not follow the normal pro-

cedures in turning over evidence (the tape) to defense

counsel. (TR page 256.) These would appeax to be actions

of a person who knew that the taping and turning over

was wrong.

Petitioner also asserts that he had no post-termina-

tion procedure. See pages 24-25 of the Petition. Yet, at

footnote 10, page 9, of the Petition he states there were

two methods of post-termination procedures available to

him. One method was by the grievance procedure estab-

lished through the contract between the Fraternal Order

of Police and The City, and the second was by The City’s

Personnel Policies. Trial Counsel for the Respondents

introduced evidence of these procedures in the trial. See

11

Testimony of P.D. Taylor (TR pages 587-597, particularly

TR pages 591-592, 596) and testimony of Scott Johnson.

(TR pages 936-937.) Petitioner testified he was aware of

The City’s grievance procedure and chose not to pursue

it. (TR pages 237-238.) Petitioner’s counsel continually

objected to the introduction of evidence and to questions

concerning the post-termination procedures. (TR pages

238-240.) The United States District Judge stated, in

ruling on one of these objections:

Q. After your termination, did you appeal it to

any other body?

A. Yes, sir.

MR. HUGHES: Excuse me, your

Honor. | object and request -

THE COURT: I think that that’s imma-

terial. He appealed it to this Court and it’s

before this jury now.

MR. NAIFEH: Well, your Honor, there

were procedures that are available to him that

he may be -

THE COURT: Well, he elected not to

use them. He elected to come before a federal

jury. And so that’s good enough for this Court.

(TR page 239, lines 2-13.)

Again, the Judge held at TR page 240, lines 4-25:

Q. (by Mr. Naifeh) And where was that hear-

ing? Who was that in front of?

A. That was in front of the Executive Board of

the Fraternal Order of Police.

Q. And did you appear before that Board?

A. Yes, sir, I did.

12

Q. Was that pursuant to your rights under you

contract -

MR. HUGHES: Your Honor, may |

have a continuing objection to this line of ques-

tioning?

THE COURT: Yes, and | don’t think

we need to pursue that any further. The Frater-

nal Order of Police was named as a defendant

but I dismissed it out. So it’s not before this jury.

MR. NAIFEH: Your Honor, may |

approach the bench on this?

THE COURT: No, you may not. This

jury is going to determine the facts here. | don’t

care what this Board here decided or the F.O.P.

Board. This jury is going to decide this case

MR. NAIFEH: I understand, your

Honor. My questions are in regards to the pro

cess that he received.

THE COURT: Yes, and I! said that it’s

immaterial, .. .

Petitioner also asserts that the press was never

informed that the perjury charges were determined to be

unfounded. The Tenth Circuit Court in banc found that

Lieutenant McBride did tell several radio stations that:

Just one? I’m sure that whoever covered that

story. And | know KEBC covered it. I don’t

know who all else covered that story, but there

were questions asked about the perjury allega-

tion. And my response was those charges were

found not to be, not to have happened, that it

was a misunderstanding. | recall specifically

talking to several members of the press about

that. TR 621.

13

Petitioner’s Appendix 10-11. The in banc Court further

held that McBride’s testimony recited above was not con-

troveried. Id. The story quoted at page 7 of Petitioner’s

Petition states “the Internal Affairs investigation did not

establish whether Melton perjured himself.” The press,

allegedly quoting McBride, was therefore telling the pub-

lic that the perjury charge was not supported by the

evidence.

Lastly, Petitioner at trial admitted:

Q. Was there anything about that that he

[McBride] stated that was untrue?

A. No, sir. They were investigating me for

everything in there... (lines 4-7.)

Q. Are there any statements in there that Mr.

McBride made that are untrue statements?

[questioning about Plaintiff's Ex. 50].

A. No, sir. They were investigating me for all

the responses in the release of the news

media. [TR 250, lines 20-23.]

SUMMARY OF ARGUMENT

Respondents contend that the decision of the Tenth

Circuit Court of Appeals’ in banc was correct on the

liberty interest issue in that the jury instruction was fun-

damentally and fatally flawed in requiring the Petitioner

to prove only stigmatization (without defining stigmatiz-

ation) or foreclosure of (employment) opportunity, and

that the Petitioner was not required to prove and, indeed,

he failed to prove, that he had challenged the reason for

his discharge as being false. The in banc decision was

14

consistent with decisions of this Court and with decisions

of other Circuit Courts.

Respondents further contend that Petitioner had no

property right under the City Charter of The City of

Oklahoma City in continued employment, nor did he

have a right to wear his uniform after termination or

retirement. Lastly, even if Petitioner had a property or

liberty right, the City provided him due process in con-

nection with his termination.

+

ARGUMENT

THE PETITION FOR WRIT OF CERTIORARI SHOULD

NOT BE GRANTED IN THAT FALSITY OF THE REA-

SON FOR TERMINATION IS A FUNDAMENTAL ELE-

MENT OF A LIBERTY INTEREST AND WAS ARGUED

BY ALL PARTIES.

Petitioner includes only a portion of the Trial Court's

instruction on the liberty issue. Cross-Petitioners’ Appen-

dix has reproduced this instruction in its entirety at pages

6-7.

Among all the other errors contained in this instruc-

tion, it does not require that the Plaintiff must challenge

the reason for the termination as being false before a

hearing is required, which is a necessary element of a

prima facie liberty case. Codd v. Velger, 429 U.S. 624 (1977).

Respondents concede that trial counsel did not object

to this instruction on the falsity element. Trial counsel did

object to “charges” instead of “reasons” for the discharge.

(TR page 1003.) Respondents assert that the omission of

this falsity element is fundamental error. All Respon-

dents, as did Petitioner, addressed the “falsity” issue on

15

appeal in all their Briefs filed in the appeal process. e.g.,

the Brief in Chief of the City, Proposition No. V at pages

26-32, entitled “The Trial Court Committed Prejudicial

Error on Fundamental Law in Instructing the Jury on the

Liberty Interest of a Terminated Public Employee” which

contains arguments on both “charges versus reasons for

termination” and “falsity of the charge”. See also the Brief

in Chief of Defendant McBride at Proposition No. 1 enti-

tled “The Actions of Defendant McBride Did Not Violate

A Liberty Interest of the Plaintiff” at pages 17-27. Page 18

of this Brief argued that the Plaintiff has the burden of

proving:

(1) That his name and reputation was stig-

matized and that the stigma was in connection

with the dischaige from employment. Paul v.

Davis, 424 U.S. 693 (1976)... .

(2) The damage to reputation or name must

imply a “stigma” which forecloses the

employee’s freedom to take advantage of other

job opportunities. Board of Regents v. Roth, 408

U.S. 564 (1972)...

(3) The plaintiff must prove the stigma arose

from substantially false characterizations of the

employee or his conduct. Codd v. Velger, 429 U.S.

624 (1977); Bishop v. Wood, 426 U.S. 341

(1974)...

The Petition for Rehearing argued at page 7 that falsity is

a fundamental element of a liberty case. In their opening

Brief in Response to Order For Rehearing En Banc,

Respondents argued at pages 8 and 10 that the liberty

jury instruction failed to define stigmatization and at

page 5 that the stigmatization must be considered under

the defamation test of Paul v. Davis, supra. In Proposition

No. Il of that same Brief, the Respondents argued that the

16

liberty instruction failed to instruct as to the falsity ele-

ment and that this failure was plain error. In the Answer

Brief to the Order on Rehearing at page 13, the Respon-

dents quoted a portion of Justice Baldock’s dissenting

opinion (Petitioner’s Appendix at 131):

‘In a series of cases, the [Supreme] Court has

held that for an employee to make a successful

liberty deprivation claim she must show that

her dismissal resulted in the publication of infor-

mation which was false and stigmatizing — infor-

mation which had the general effect of

curtailing future freedom of choice or action

(emphasis in original). Nevertheless, the court

today erroneously holds that the police depart-

ment’s publication alone of perjury charges

against Melton, subsequently dropped,

impaired his “liberty interest in good name and

reputation”.’ (citation omitted)

These Respondents have therefore argued that this

instruction was erroneous, in that Petitioner was not

required to show that he had challenged the reason for

his termination or the press reports as being false. Peti-

tioner was not deprived of due process by the in banc

decision.

THE PETITION FOR WRIT OF CERTIORARI SHOULD

NOT BE GRANTED IN THAT PETITIONER FAILED

TO ESTABLISH THAT HE WAS DEPRIVED OF A LIB-

ERTY INTEREST WITHOUT DUE PROCESS.

Petitioner’s liberty interest must fail for several rea-

sons: he never challenged that the reason for his termina-

tion was false; he had a hearing prior to his termination;

this hearing satisfied due process; the employer was not

17

solely responsible for publication; the publications attrib-

ute disclosure of defamatory reports of perjury to persons

other than the employer; all statements actually issued by

the employer were true; and the punitive action taken by

the employer against the Petitioner had nothing to do

with the reports of perjury.

A. ENTITLEMENT TO A HEARING.

In Codd v. Velger, 429 U.S. 624 (1977) at page 627, this

Court stated:

Assuming all of the other elements necessary to

make out a claim of stigmatization under Roth

and Bishop, the remedy mandated by the Due

Process Clause of the Fourteenth Amendment is

“an opportunity to refute the charge.” 408 US at

573, 33 L Ed 2d 548, 92 S Ct 2701. “The purpose

of such notice and hearing is to provide the

person an opportunity to clear his name,” id., at

573 n 12. But if the hearing mandated by the

Due Process Clause is to serve any useful pur-

pose, there must be some factual dispute

between an employer and a discharged

employee which has some significant bearing on

the employee’s reputation.

Petitioner has never claimed that he did not tape

record the United States Attorney and turn that tape over

to the defense counsel in the criminal case. As the in banc

court held, both parties were in agreement that the per-

jury charge was false. Petitioner’s Appendix at 20. At

page 25 of Petitioner's Appendix, the Tenth Circuit

majority stated:

In this case, there was no factual dispute

between Mr. Melton and the defendants over the

question of perjury.. Indeed, the evidence is

quite clear the defendants concluded at an early

18

stage of the proceeding that the accusation arose

from a “misunderstanding.” It is a simple fact

that the FBI accusation was neither considered

relevant by the defendants in their decision to

discipline Mr. Melton, nor a reason for his dis-

missal.

Lastly, on the issue of the perjury allegation, the

Court stated at page 28 of Petitioner's Appendix:

In structuring the parameters of constitutional

guarantees, we must be mindful that our zeal

for the protection of individual rights does not

lead us to absurd conclusions. To hold here that

the defendants were required to provide Mr.

Melton with a hearing to clear his name from

accusations neither made nor adopted by these

defendants, or as seemingly suggested by the

dissent, a name-clearing news conference,

would be just such an absurdity.

Petitioner was not entitled to a name clearing hear-

ing, in light of his admission of the conduct for which he

was terminated. Codd, at 627.

Petitioner argues at pages 13-14 of his Petition that

all that is required to have an entitiement to a name

clearing hearing is that the nature of the charges be

stigmatizing or deprive the employee of employment

opportunities and that the charges be published. What

Petitioner ignores is that prior to the requirement of a

name clearing-hearing, the employee must deny the

charges. Codd, at 627. This requirement is widely recog-

nized among the Circuits. See, e.g., Ortega-Rosario v.

Alvarado-Ortiz, 917 F.2d 71, 74 (Ist Cir. 1990); Doe v.

Garrett, 903 F.2d 1455, 1463 (11th Cir. 1990), cert. denied,

US, 111 S Ct. 1102 (1991); Oklahoma Education

19

Association v. Alcohol Beverage Laws Enforcement Commis-

sion, 889 F.2d 929, 936 (10th Cir. 1989); Christian v. Belcher,

888 F.2d 410, 416 (6th Cir. 1989); Connelly v. Comptroller of

the Currency, 876 F.2d 1209, 1215 (Sth Cir 1989); Brady v

Gebbie, 859 F.2d 1543, 1553 (9th Cir. 1988), cert. denied, 489

U.S. 1100 (1989); Stone v. University of Maryland Medical

System, 855 F2d 167, 172 n.5 (4th Cir. 1988); Clark v

Maurer, 824 F.2d 565, 566 (7th Cir. 1987). Even the cases

cited by Petitioner in his argument concerning liberty

interests acknowledge this. See, e.g., Brandt v. Board of Co-

op Educational Services, 820 F.2d 41, 43 (2nd Cir. 1987)

(“employee must allege that the charges are false” citing

Codd; Lyons v. Barrett, 851 F.2d 406, 408 (D.C. Cir. 1988)

(“[Plaintiff}] denies the allegations of sexual harassment”);

McGhee v. Draper, 564 F.2d 902, 906, 907, 910, (10th Cir

1977); and Cox v. Northern Virginia Transportation Commis-

sion, 551 F.2d 555, 557 (4th Cir. 1976) (“Mrs. Cox was not

responsible for these questionable practices” ) Lastly, in

Fraternal Order of Police Lodge No. 5 v. Tucker, 368 F2d 74

(3rd Cir. 1989), the Third Circuit Court of Appeals stated

at page 83:

Accordingly, if the plaintiffs had alleged and

proved in this case that they had not used drugs

behind the Cobb Creek Park tennis courts or

that they had substantial evidence to tender at a

hearing in support of such an allegation, they, at

least arguably, would have made out a stigma-

tization case under the Due Process Clause.

However, as indicated by the above-quoted alle-

gation from their complaint, plaintiffs claim

only that the defendant's allegations were

“unconfirmed and unsubstantiated,’ not that

they were untrue.

20

When interviewed by Lieutenant Smith, Petitioner admit-

ted that he secretly taped a conversation between himself

and an Assistant United States Attorney in the Federal

Courthouse in Oklahoma City, Oklahoma, and that he

turned that tape over to the defense in an upcoming

criminal prosecution. He further admitted this conduct at

his hearing in front of the Departmental Review Board.

Petitioner’s Petition is centered around the FBI's alle-

gation that Petitioner committed perjury. The FBI, and

not Respondents, made this allegation. Petitioner did not

contest that fact. The uncontradicted evidence at trial of

this case was that neither the Board members, the Chief

of Police, nor the City Manager considered the

unfounded perjury charge in recommending or terminat-

ing Melton’s employment with The City. The conduct that

he was terminated for (or more properly, allowed to retire

for) was admitted by Melton. There was no factual dis-

pute and therefore no hearing of any type was required.

B. TYPE OF HEARING

The Trial Judge instructed the jury that the Petitioner

was entitled to a pretermination hearing complete with

the rights of representation and cross-examination. The

Respondents assert that this Court would not require a

fully adversarial pretermination hearing. Zinermon v.

Burch, 494 U.S. 113, (1990); Loudermill v. Cleveland Board of

Education, 470 U.S. 532 (1985); and Board of Regents v.

Roth, 408 U.S. 564 (1972). Other circuits have not required

a full adversarial hearing. See e.g., Brandt v. Board of Co-op

Educational Services, 820 F.2d 41 (2nd Cir. 1987); Myrick v.

City of Dallas, 810 F.2d 1382, 1386 (5th Cir. 1987); Doe v.

21

Casey, 796 F.2d 1508 (D.C. Cir. 1986); and Endicott v.

Huddleston, 644 F.2d 1208 (7th Cir. 1980). The Tenth Cir-

cuit has held both ways. Compare Koerpel v. Heckler, 797

F.2d 858, 869 (10th Cir. 1986) with Walker v. United States,

744 F.2d 67 (10th Cir. 1984).

In Zinermon v. Burch, 494 U.S. 113 at __, 108 L.Ed.2d

at 118 (1990), this Court stated:

Burch argues that postdeprivation tort remedies

are never constitutionally adequate for a depri-

vation of liberty, as opposed to property, so the

Paratt rule cannot apply to this case. We, how-

ever, do not find support in precedent for a

categorical distinction between a deprivation of

liberty and one of property. See Lynch v. House-

hold Finance Corp., 405 US 538, 552, 31 L Ed 2d

424, 92 S Ct 1113 (1972) (“the dichotomy

between personal liberties and property rights is

a false one”); Wolff, 418 US, at 557-558, 41 L Ed

2d 935, 94 S Ct 2963 (a hearing is generally

required before final deprivation of property

interests, and “a person’s liberty is equally pro-

tected”). In Parratt itself, the Court said, 451 US,

at 542, 68 L ED 2d 420, 101 S Ct 1908, that its

analysis was “quite consistent with the

approach taken” in Ingraham v. Wright, 430 US

651, 51 L Ed 2d 711, 97S Ct 1401 (1977), a liberty

interest case.

In an attempt to avoid this language, Petitioner adds

as an issue that the procedure for the “property” depriva-

tion was deficient. If not for this addition, this Court,

consistent with Zinermon v Burch, would hold that if a

procedure satisfies the Loudermill test for a property inter-

est (which the panel held herein, see Petitioner’s Appen-

dix at 75), then such hearing would also satisfy a liberty

interest. It was fundamental error to instruct that a liberty

22

interest hearing must be pretermination, and the

employee has the rights to counsel and confrontation and

cross-examination of witnesses.

C. THE USE OF THE DISJUNCTIVE

Instruction No. 7 allowed recovery for public dissem-

ination of the charges . . . [if] those charges would stigma-

tize the employee’s reputation or foreclose future

employment opportunities. Cross-petitioner’s Appendix

at 8-9. This portion of Instruction Number 7 is incorrect

as to when a liberty interest would be invoked pursuant

to the Fourteenth Amendment of the United States Con-

stitution, and thus permitted recovery when not autho-

rized by decisional law of this Court. By instructing in the

“disjunctive,” the trial court permitted an alternate recov-

ery for defamation alone, a recovery for a state-tort claim

which was and is precluded by the holding in Paul v.

Davis, 424 U.S. 693 (1976), and Wulf v. City of Wichita, 883

F.2d 842, 869 (10th Cir. 1989), and authority cited therein.

Defamation alone, although occurring at the same time as

termination, is not sufficient to create a cause of action for

denial of liberty without due process, and accordingly

does not rise to a civil rights action without the addi-

tional deprivation of future employment opportunities.

The appropriate remedy for defamation is through state

tort law, and the potent § 1983 remedies should be

reserved to remedy constitutional violations. Daniels v.

Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S.

344 (1986). 7

23

Instruction Number 7 permitted recovery by Plaintiff

for foreclosure of future employment opportunities with-

out a requirement of a stigmatization of Plaintiff’s name

and reputation. Such “instruction” was therefore contrary

to the decisions of this Court in Bishop v. Wood, 426 U.S.

341 (1976); Board of Regents v. Roth, supra; and Codd v.

Velger, supra, and Paul v. ' avis, supra.

D. DISSEMINATION OF CHARGES INSTEAD OF

REASONS FOR TERMINATION

Instruction Number 7 identifies as an element of

Melton’s claim, that “(the) termination was accompanied

by public dissemination of the charges against him.”

Cross-Petitioner’s Appendix at 8-9. This portion of the

instruction was inappropriate because the “charge of per-

jury” against Melton was raised by the FBI and reported

and investigated by Respondents, but was not a reason

for Meiton’s discharge. The FBI complaint filed with the

Oklahoma City Police Department did include allegations

of perjury. Respondents contend that the use of the term

“charges” by the trial court in Instruction Number 7 is

plain error since the charges or allegations of perjury

were not those of Respondents, nor were they considered

by Respondents in connection with Melton’s termination.

Counsel for Respondents did object to the charge versus

reasons language (TR. page 1003). A public entity may

not be liable for a liberty interest violation unless it

creates and disseminates false and defamatory statements

in connection with an adverse employment decision. Codd

v. Velger, 429 U.S. at 628.

24

Additionally, the instruction of the court as to the

first element of Melton’s liberty claim, pertaining to

“charges”, and the second element, pertaining to “rea-

sons for dismissal”, coupled with the failure to define

“stigma” created an ambiguous and abstruse charge to

the jury, leaving the jury without meaningful direction as

to the essential elements of Melton’s claim. Further, plain

error was committed on page 1 of the Instructions

wherein the trial court, in essence, directed a verdict in

Plaintiff's favor by charging: “Where the allegations are

of a serious nature, such as perjury or unethical conduct,”

the Court mandated a due process hearing. This instruc-

tion was given without guidance as how the terms

“charges,” “allegations,” and “reasons for his dismissal”

fit within the elements of a liberty interest.

In Board of Regents v. Roth, supra, this Court suggested

the need for a multi-dimensional liberty test, and in

response the Seventh Circuit developed the following

two-prong test:

The concept of liberty recognizes two particular

interests of a public employee: (1) the protection

of his good name, reputation, honor and integ-

rity, and (2) his freedom of other employment

opportunities.

Lipp v. Board of Education, 470 F.2d 802, 805 (7th Cir. 1972).

The trial court committed plain error by substitutions

of the term “charges” for “reasons for dismissal.” This

merger was not considered permissible in Hadley v.

County of DuPage, 715 F.2d 1238, 1245-46 (7th Cir. 1983)

cert. denied, 465 U.S. 1006 (1984), cited with approval in

Bailey v. Kirk, 777 F.2d 567, 572 (10th Cir. 1985).

25

THE PETITION FOR WRIT OF CERTIORARI SHOULD

NOT BE GRANTED IN THAT PETITIONER HAD NO

PROTECTED PROPERTY RIGHT.

Petitioner asserts he had a continued interest in

employment. See page 20 of the Petition. Property rights

are defined by state law and not by Federal law. Board of

Regents v. Roth, 408 U.S. 564 (1972). The Court instructed

the jury that the Oklahoma City Police Department man-

ual and the Oklahoma City Policy and Procedures Man-

ual were sufficient to give Plaintiff a legitimate

expectation that his employment would continue absent a

cause for discharge. See Instruction No. 6, Cross-Peti-

tioners’ Appendix at 6-7. The Charter of The City of

Oklahoma City states at Article IV, Section 3:

Section 3. The City Manager. The City Manager

shall:

d. Dismiss any officer or employee appointed

by him whenever, in his judgment, the interests

of The City so require.

This Charter also states at Article III, Section 1, “remov-

als .. . shall be made solely for the good of the service”.

This Charter was introduced at Trial, contrary to the

finding of the three-judge panel of the Tenth Circuit

Court of Appeals. Petitioner’s Appendix at 72-74 n 15. See

Cross-Petitioners’ Appendix at 12-14, 15. A similar provi-

sion has been interpreted by the Oklahoma Supreme

Court as a terminable-at-will employee. See Hail v.

O'Keefe, 617 P.2d 196 (Okla. 1980), and Goodwin v. City of

Oklahoma City, 182 P.2d 762 (1947). The Charter is control-

ling in determining whether a City employee obtains a

property interest in continuation of employment with The

26

City. See Bailey v. Kirk, 777 F.2d 567, 574 (10th Cir. 1985).

Yet various panels of the Tenth Circuit Court of Appeals

have held that a police employee of The City of Okla-

homa City has no protected property interest in contin-

ued employment, Graham v. City of Oklahoma City, 859

F.2d 142 (10th Cir. 1988) or that if there is a property

right, the City’s procedures are sufficient due process.

Melton v. City of Oklahoma City, Petitioner’s Appendix at

p. 75; Meder v. City of Oklahoma City, 869 F.2d 553 (10th

Cir. 1989); and Rosewitz v. Latting, 689 F.2d 175 (10th Cir.

1982). Any policy, regulation or rule adopted by City

Council resolution purporting to grant employees’ rights

could in no way affect the conditions of employment

provided for by the Charter. Umholtz v. City of Tulsa, 565

P.2d 15, 21-22 (Okla. 1977). Petitioner had no property

interest in continued employment with Respondent City.

Not only did the Tenth Circuit panel erroneously hold

that the Charter was not admitted at trial, they then took

judicial notice of the Charter only for purposes of holding

The City liable for the liberty violation. Further, the panel

of the Tenth Circuit denied the individual Respondents

qualified immunity. Petitioner’s Appendix at 104-07.

Assuming that Petitioner had a property right, the

procedure supplied to him satisfied Loudermill. As the

panel held:

Nearly one month before the disciplinary board

was convened Mr. Melton was given written

notice of the Internal Affairs investigation, the

allegations against him, and the name of the

party who made the allegations. Additionally,

he was given five days’ (three working days)

written notice before the Review Board was

actually convened. While this period may not

27

have been as long as Mr. Melton desired, we

believe that in this case it was adequate to pre-

pare a defense in light of the earlier notice.

(footnote omitted) (Petitioner’s Appendix at 75.)

In Loudermill v. Cleveland Board of Education, 470 US.

532 (1985), this Court stated at 546:

The tenured public employee is entitled to oral

or written notice of the charges against him, an

explanation of the employer’s evidence, and an

opportunity to present his side of the story.

To require more than this prior to termination

would intrude to an unwarranted extent on the

government’s interest in quickly removing an

unsatisfactory employee. (Citations omitted;

emphasis added.)

(This Court did require that post-termination procedures

be available.) Even if Petitioner was a tenured public

employee (which in light of the City’s Charter, he was

not), the process supplied to him and the availability of

post-termination procedures satisfied the requirements of

Loudermill.

Petitioner, at footnote 28 of his Petition, alleges that

the termination procedure was fatally flawed because

Chief Gramling testified that he had already decided to

discharge the Petitioner before the Disciplinary Review

Board was conducted and their input would not have

made a difference. Neither the trial nor the deposition

testimony of Chief Gramiing support the allegations con-

tained in the footnote. Petitioner read into the record the

deposition testimony of Chief Gramling where, in

response to a hypothetical question, he stated that he

probably would not have retained Petitioner on the force

if the Review Board had recommended retention. The

28

hypothetical question omits the fact that the Review

Board would have already found that Petitioner had vio-

lated the Code of Ethics prior to making any recommen-

dation regarding Petitioner’s future with the department.

While the Chief may consider the Review Board’s recom-

mendations regarding appropriate discipline once it has

made findings that a violation has occurred, he is not

obligated to follow that recommendation. The Review

Board did not recommend that the Petitioner be retained

with the police department but voted to recommend that

Petitioner be terminated. That recommendation was not

followed by Chief Gramling in the strict sense because

Petitioner was allowed to retire from the force rather than

be terminated.

Contrary to the Petitioner’s allegations, the Chief

testified that he had not attempted to influence the selec-

tion of the Review Board members; that he had not dis-

cussed the Petitioner’s case with the Review Board

members prior to their hearing, that he had not

attempted to influence them in their decision nur had he

made any decision regarding what action should be taken

against Petitioner prior to their decision. (TR. pages

871-873.) Further, the Chief testified that, had the Review

Board determined that the charges against Petitioner

were not sustained, the case would have been dropped at

that point. (TR. page 874, lines 12-22.) The Chief testified

that in the past he had always followed the Review

Board’s decision as to whether or not the allegations

against a police ofricer were sustained. (TR. page 875,

lines 14-17.)

The Chief submitted the Petitioner's case to an

impartial Review Board composed of his peers, including

29

members of his police union, and followed the decision of

that board with regards to whether the allegation against

Petitioner was sustained. He also followed its recommen-

dation as to what discipline was appropriate and agreed

with that determination. There is nothing in the record to

support Petitioner’s allegations that the Chief had

already decided to discharge Petitioner or that he was not

impartial.

Additionally, Petitioner claims that he had a property

right in representing himself as a retired officer and in

carrying a firearm, under 11 O.S. § 50-125, which states:

Members retired under the provisions of this

article may retain their status as peace officers of

the State of Oklahoma, retired, and as such may

retain the right to keep and bear firearms when

approved by the officials of the municipality of retire-

ment. Such retired members may in times of

great emergency or danger serve in keeping

their availability and ability at the request of the

Governor of Oklahoma or the mayor of their

retirement municipality. (emphasis added)

This statute is permissive in several respects. The

Oklahoma Supreme Court has never held that the statute

is mandatory. Even if this Court has the jurisdiction to

hear this issue, the panel’s decision should be affirmed on

the grounds that Petitioner had no property right in

continued employment or that he received due process.

La

_—

30

CONCLUSION

For reasons stated herein, Respondents would urge

this Court to deny the Petition for Writ of Certiorari.

Respectfully submitted,

James G. HaMiLe . GERALD S. Rakes

Municipal Counselor Assistant Municipal

Diane Lewis Counselor

Deputy Municipal Counsel of Record

Counselor for Respondent

Counsel of Record Lloyd Gramling

for Respondent

City of Oklahoma City 309 Municipal Building

200 North Walker

RicHarp C. SmitH Oklahoma City, Oklahoma

Assistant Municipal 73102

Counselor (405) 297-2555

Counsel of Record

for Respondents

Emmett, deceased, Maxwell,

Chambless, Taylor, and

Hearn

Attorneys for Respondents