# Opposition Brief — Melton v. Oklahoma City

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 906

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2324%3A3. Public record. Not legal advice.