Opposition — Kline v. City of Fairfax

Office - er Court, U.S.

FIL E D

Record No. 82-1112 FEB 4 1983

ACEXANDER L STEVAS,

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER 1982 TERM

LEONARD P. KLINE,

Petitioner,

vs.

THE CITY OF FAIRFAX, VIRGINIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION FOR RESPONDENT

* MICHAEL ©. MONTAVON

Wrarr B. DURRETTE, JR.

MALONEY and CH ESS

3900 University Drive

Suite 300

Fairfax, Virginia 22080

(708) 691-1700 =

Counsel of Record for

Respondent

WILSON - Eras Printine CO. ‘na « 706-0068 - WASHINGTON, D.C. 20001 0

QUESTION PRESENTED FOR REVIEW

May a municipal government, consistent with the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution, experiment with and modify

its procedures for payment of accrued sick leave at re-

tirement when, under Virginia law, there are no contract

or property rights involved, there are no vested rights

involved, when Petitioner Kline was compensated fully in

accordance with the ordinances in effect at the date of

his retirement and when Kline never had any of his ac-

crued sick leave taken away?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.

STATEMENT OF JURISDICTIONAL GROUNDS....

STATEMENT OF THE CASEZWEßBgn .

SUMMARY OF THE ARGUMENT

ARGUMENTS

I. As a public employee of the City of Fairfax,

II.

III.

Virginia, Kline had no property or contract

rights in the terms of his employment, and par-

ticularly no property or contract rights suffi-

cient to preclude the City of Fairfax from

changing its policies regarding payment for ac-

crued sick leave at retirement

Ordinance No. 1974-4, which was the first of

three ordinances regarding the City’s policies

for payment of accrued leave at retirement, did

not confer vested contract or property rights

FER a ae MC IN GS 1) 5

a. Contrary to the assertions in his Petition,

Kline did not rely upon the expectation of

payment at retirement of his accrued sick

BD eld A W Ä Midis sauicdeicons

b. Kline confuses earned compensation with

employee’s benefit?

c. Kline has no right to seek the benefits of

Ordinance No. 1974-4, nor did any rights

thereunder vest because Kline failed to meet

the contingency of retiring during the effec-

tive period of the Ordinan ...........................

Kline was not deprived of any compensation for

which he had agreed to work for the City

ohh .

Page

a no — —

12

14

16

21

21

iv

TABLE OF AUTHORITIES

CASES Page

Ballard v. Bd. of Trustees, 824 N.E.2d 818, 815

c A 19

Bennett v. Beard, 27 Ariz. App. 534, 556 P. 2d

/ 18

Bd. of Regents v. Roth, 408 U.S. 564, 577, 33

L. Ed. 2d 648, 561 (1972) ..........cccccccccccceecceeseceeene 7, 8

Booker v. Donohoe, 96 Va. 359, 368, 28 S. E. 584

%% 10

Donner v. Anton, 444 U.S. 958, 62 L Ed. 2d 871

/ hel cainliclcosanatbph ia 2

Frazier v. Virginia Military Institute, 81 Va. 59,

r 9

Hajek v. City of St. Paul, 35 N. W. 2d 705, 227

Minn. 477 (Minn. 1949) 19

Hicks v. Miranda, 422 U.S. 332, 344, 45 L. Ed. 2d

n Sock acrescenaccalaotic bilities. Snsipidantantimosbones 20

Johnson v. Black, 108 Va. 477, 489, 49 S.E. 633

c 10

Kennedy Coal Corp. v. Buckhorn Coal Corp., 140

Va. 87, 124 S. E. 482 (1924) .. . . 20

Loving v. Auditor of Public Accounts, 76 Va. 942,

, ⅛iEwH RROD Wp ae aN 9

Mississippi v. Miller, 276 U.S. 174, 72 L.Ed. 517

„% bsctasie sebiisttscdgscceveossecessiinons 17

Ramey v. State, 296 Mich. 449, 296 N.W. 323

c aeteNltle tals ai ouetsnnteibdcodsagesnapice 18

Reinman v. City of Little Rock, 287 U.S. 171, 59

eee eis iosntbboorancodectnaisnabcddnnace 1

Sinclair v. Young, 100 Va. 284, 290, 40 S. E. 907

%%% 10

VEPCO v. Clark, 179 Va. 596, 19 S. E. 2d 693

F x 6

Walker v. Massie, 202 Va. 886, 889, 121 S. E. 2d 448

%%% . OE APH IY Oe 11

Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17

r [T 2

Vv

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS Page

Fourteenth Amendment 8

STATUTES

een 1,2

28 U.S.C. § 2101 — 2

4

6

Va. Code Anno. § 15.1-7.1 (Repl. Vol. 1981) .........

Va. Code Anno. § 8.01-675 (Repl. Vol. 1977) .......

ORDINANCES

City of Fairfax Ordinance No. 1974-4 .................... passim

City of Fairfax Ordinance No. 1975-27 .................. passim

City of Fairfax Ordinance No. 1975-62 .................. passim

MISCELLANEOUS

Rule 15 of Rules of the Supreme Court 2

Rule 17 of Rules of the Supreme Court 8

IN THE

Supreme Court of the United States

OCTOBER 1982 TERM

Record No. 82-1112

LEONARD P. KLINE,

Petitioner,

vs.

THE CITY OF FAIRFAX, VIRGINIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION FOR RESPONDENT

STATEMENT OF JURISDICTIONAL GROUNDS

Kline applies to this Court for a writ of certiorari pur-

suant to 28 U.S.C. § 1257 (3). However, this case draws

into question the validity of a state statute, which in-

cludes a municipal ordinance, Reinman v. City of Little

Rock, 237 U.S. 171, 59 L.Ed. 900 (1915), on the ground

of its being repugnant to the United States Constitution.

The decision of the Circuit Court of Fairfax County, Vir-

ginia was that the Ordinance is valid. The Supreme Court

of Virginia affirmed this decision, finding no reversible

error. Therefore, this matter properly comes before this

Court on appeal, pursuant to 28 U.S.C. § 1257(2), and

not a Petition for Writ of Certiorari, as claimed by

Kline.

As the proper jurisdictional basis for this matter is by

appeal under 28 U.S.C. § 1257(2),' Kline is required to

comply with Rules 15.1 (e) (ii), (h) and (j) (iv) of the

Rules of this Court. The Order of the Supreme Court of

Virginia denying review of this action was entered Oc-

tober 8, 1982. Under 28 U.S.C. § 2101(c), a Notice of

Appeal must be filed with the state court within ninety

days of the date of the judgment appealed from. No no-

tice of appeal has, as of the date of this brief, been filed

by Kline in the Supreme Court of Virginia. Accordingly,

Kline has not noticed his appeal to this Court in a timely

fashion and therefore, his appeal must be dismissed.

Donner v. Anton, 444 U.S. 958, 62 L.Ed.2d 371 (1979).

Alternatively, even if this Court believes it has juris-

diction to entertain this action on a petition for a writ

of certiorari, the Petition should be denied for the rea-

sons discussed below.

STATEMENT OF THE CASE

This case arises from a former municipal employee’s

objection to one small part of the evolving comprehensive

personnel administration plan of the City of Fairfax,

Virginia. Petitioner Kline retired, as the Chief of Police

of the City of Fairfax, in June, 1977, and was fully

compensated in accordance with the ordinances then in

effect. Nevertheless, Kline seeks to obtain the benefits of

an earlier ordinance, even though he did not retire when

that earlier ordinance was in effect, although he knew the

earlier ordinance was going to be modified. (Tr. Tran.,

p. 164)

Due to its evolutionary nature, many aspects of the

personnel plan of the City of Fairfax have been modified

1Cf. Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17 (1981).

and limited since its original passage. Kline makes no

objection to the City’s ability to limit major benefits in

the original pian, and even concedes that it is the City’s

perogative to do so. (Pet., p. 10). Nevertheless, Kline

objects to one change in the City’s plan because he claims

he “relied” upon the former provision, although his own

testimony makes clear he did not. In reviewing the ordi-

nances set out below, it is important to keep in mind that

Kline’s contention is that he is entitled to be paid for all

of his accrued sick leave on retirement, not that he was

entitled to sick leave which was denied him. Not one day

of sick leave which Kline accrued was ever denied or

taken from him.

In addition, the City feels obligated to point out that

much of the “factual background” asserted by Kline is

not established in the record of this case. For example,

the Petition references the deposition transcript of Me-

Nayr, Fleck, Foster, and Thomas were never admitted

in evidence and were one of the bases for Kline’s Petition

for Appeal to the Virginia Supreme Court. (Pet. to Va.

Sup. Ct., p. 26-27).

Prior to July 1, 1974, the City of Fairfax had a policy,

but no ordinances, setting forth leave policies for its em-

ployees. The City’s policy regarding leave was that, upon

retirement, an employee would be paid in full for ac-

cumulated annual leave up to a thirty day maximum. If

accumulated annual leave was less than thirty days, ac-

cumulated sick leave would be credited, at the ratio of

three days sick leave for one day annual leave, until the

thirty day annual leave maximum was met. Thus, prior

to 1974, Kline did not work with the expectation that he

would be paid for his accumulated sick leave, as such,

upon retirement. Rather, his accrued sick leave was

available to be used as a fractional credit towards reach-

ing the ceiling of thirty days annual leave for which pay-

ment would be made at retirement. All other accrued

leave in excess of this maximum was not compensated in

any manner at retirement. Kline worked under this pol-

4

icy from 1958 until July 1, 1974, at which time Ordi-

nance No. 1974-4 was adopted.

Ordinance No. 1974-4 was adopted on May 21, 1974 by

the City of Fairfax, as required by Virginia Code § 15.1-

7.1, to provide for a system of comprehensive personnel

administration. This Ordinance became effective July 1,

1974 (Pet. App. 8a). The portion of this comprehensive

personnel Ordinance relevant to this action, section 2-

47(b), provided in part, for a single classification of

leave. Upon retirement, an employee was to be paid in

full for all accrued leave upto a maximum of 240 hours.

Leave in excess of 240 hours was to be paid at a ratio

of one day for each two days accrued. Employees who

retired while this Ordinance was in effect were compen-

sated as specified in the Ordinance. As can be seen, the

net effect of this Ordinance was to allow employees to be

paid at retirement for accrued sick or annual leave in

excess of the old thirty day maximum.

In June 1975, the City amended the foregoing Ordi-

nance by passing Ordinance No. 1975-27. This amend-

ment provided that accrued leave in excess of 240 hours

was to be paid at retirement at the same ratio of one

day for each two days accrued, pursuant to the 1974

Ordinance, but that such payments would not be made

for any leave in excess of 120 additional hours. Thus, a

limit of 45 days was placed on the amount of leave an

employee could accrue for purposes of payment at retire-

ment. This forty-five day limit was to be applied pro-

spectively, only to leave accrued from June 17, 1975, the

date the Ordinance was adopted.

Although this amendment clearly limits the amount of

leave to be compensated at retirement as originally set

forth in the 1974 Ordinance, Kline makes no objection to

it. In fact, he concedes that it is the City’s perogative to

do so. (Pet., p. 10). Nevertheless, Kline asserts the City

could not make the next change in the City’s evolving per-

sonnel plan.

On October 20, 1975, the City adopted the Ordinance

in question in this case, Ordinance No. 1975-52, which

amended the earlier 1975 Ordinance. This Ordinance re-

established two categories of leave (sick leave and annual

leave) for leave accrued from October 20, 1975 forward;

it designated as annual leave all leave accrued from July

1, 1974 through October 20, 1975, and it reconstituted

leave accrued prior to July 1974 into the two leave cate-

gories (sick and annual) which had then eixsted in the

amounts as it had then existed for each employee. Upon

retirement, eligible full-time employees would be paid for

all their accrued annual leave on the basis of one day

for each day of annual leave accrued up to a maximum

of thirty days. Accrued annual leave in excess of thirty

days was to be paid on a ratio of one day for each two

days accrued. Thus, the Ordinance increased the amount

of compensation available at retirement by eliminating

the forty-five day limit. It is noteworthy that Kline does

not object to this part of Ordinance No. 1975-52. It is

also noteworthy that this Ordinance was more generous

in terms of the compensation available at retirement than

had been the case prior to the original 1974 Ordinance.

It is true that under Ordinance No. 1975-52, no payment

was to be made for accrued sick leave at retirement, but

no such leave was taken away. Up until July 1, 1974,

no City employee, including Kline, expected to be paid

for accrued sick leave at retirement, except insofar as

such leave, on a three-to-one ratio, would be credited to-

wards the maximum payment of thirty days annual

leave. Because Kline had well in excess of thirty days

accrued annual leave on July 1, 1974, and also on his re-

tirement, none of his sick leave would have been credited

towards the thirty day annual leave limitation. The net

effect of the final 1975 Ordinance, which is the only Ordi-

nance in this entire scheme Kline challenges, was to

eliminate crediting sick leave towards the amount of an-

nual leave to be paid at retirement, which did not affect

6

Kline, and also to eliminate the old thirty day maximum

on annual leave, which greatly benefited Kline.

From July 1, 1974 through October 20, 1975 Kline

worked under the expectation that all “leave” accumu-

lated from July 1, 1974 through October 20, 1975 would

be credited towards the amount to be paid at retirement.

The Ordinance in question honored that expectation by

treating all such leave as annual leave.

In 1975, Kline knew that Ordinance No. 1975-52 was

going to be passed by the City. (Tr. Tran., p. 163-165)

Nonetheless, he chose not to retire before October 20,

1975 although he was eligible to do so, and he thereby

lost his right to be compensated under the terms of the

Ordinance then in effect. By his own admission Kline’s

decision when to retire was made without any regard to

which Ordinance governed compensation for accrued leave

at the time he retired. (Tr. Trans., p. 163-165) Contrary

to the allegations in his Petition, Kline’s own testimony

shows he did not rely upon the compensation scheme for

accrued sick leave in his decision not to retire. Tr.

Trans., p. 165) In accordance with the provisions of

Ordinance 1975-52 in effect at the time of his retirement,

Kline was paid for his accrued annual leave, including

the “sick” leave accrued after July 1, 1974 which was

treated as annual leave, when he retired. Because the

Ordinance did not provide for compensation for other

accrued sick leave, he was not so compensated.

Kline thereupon instituted suit against the City seek-

ing payment for this other accrued sick leave despite the

clear terms of the Ordinance. The Circuit Court of Fair-

fax County, Virginia dismissed Kline’s suit on the merits,

finding no property or vested rights. Thus, due process

considerations need not and were not reached. The Su-

preme Court of Virginia affirmed the Circuit Court’s

judgment finding no reversible error and refusing Kline’s

Petition for Appeal. (Pet. App. la.) See Va. Code Anno.

§ 8.01-675 (Repl. Vol. 1977); VEPCO v. Clark, 179 Va.

596, 19 S.E.2d 693 (1942). This action followed.

7

SUMMARY OF THE ARGUMENT

The due process clauses in the amendments to the

United States Constitution protect life, liberty, and prop-

erty rights from arbitrary deprivation. Before he can

show that the City violated his due process rights, Kline

must first show that he had a property right to be com-

pensated at retirement for that portion of his accrued

sick leave in question and that the City deprived him of

it.

The due process clauses do not provide the sources of

the property rights. Generally, these are derived from

state law. Therefore, in order to establish a violation of

the due process clause, Kline must show that he had a

property interest in being compensated at retirement for

the sick leave in question under Virginia law. Under

Virginia law, a municipal employee, in Kline’s position,

has no such property interest generally, and certainly not

under the facts of this case. Moreover, the facts make

clear that Kline was not deprived of any right to com-

pensation he had upon his retirement.

ARGUMENT

Contrary to Kline’s assertions, this case does not pre-

sent a federal question worthy of this Court’s review. In

point of fact, this case does not present a federal ques-

tion at all. Kline agrees that this Court’s decision in

Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548

(1972) sets forth the standard for chis case. Roth holds

that (1) before due process protection is triggered, the

plaintiff must have a liberty or property right at stake,

and (2) these rights are derived from sources other than

the United States Constitution, generally from state law.

Thus, the real issue in this case is whether under Vir-

ginia law, Kline has a vested property right in one small

segment of the City’s evolving scheme for compensating

accrued sick leave at retirement. The Virginia courts

have ruled that he does not. Kline asks this Court to

undertake a full review of Virginia’s interpretation of

her own law that Kline had no such right. Such a case

does not meet any of the criteria for a grant of a writ

of certiorari as set forth in Rule 17 of Rules of this

Court, nor is there any other reason for this Court to

review this matter. Therefore, Kline’s Petition should

be denied.

I. Asa public employee of the City of Fairfax, Virginia,

Kline had no property or contract rights in the terms

of his employment, and particularly no property or

contract rights sufficient to preclude the City

of Fairfax from changing its policies regarding

payment for accrued sick leave at retirement.

The Fourteenth Amendment to the United States Con-

stitution prevents any state from “depriving any person

of life, liberty, or property, without due process of law.”

In interpreting and applying this section of the Consti-

tution, this Court has stated that:

To have a property interest in a benefit, a person

clearly must have more than an abstract need or de-

sire for it. He must have more than a unilateral ex-

pectation of it. He must, instead, have a legitimate

claim of entitlement to it.

Property interests, of course, are not created by the

Constitution. Rather, they are created and their

dimensions are defined by existing rules or under-

standings that stem from an indpendent source such

as state law—rules or understandings that secure

certain benefits and that support claims of entitle

ment to those benefits.

Board of Regents of State Colleges v. Roth, 408 U.S. 564,

577, 33 L.Ed.2d 548, 561 (1972). Kline agrees that this

is the federal standard governing this case. (Pet. p. 11)

Thus, this case does not present a federal question for

this Court to review. Instead, it is a question of Virginia

law on Kline’s retirement entitlements.

Assuming this Court undertakes a review of Virginia

law, the first question presented by this case is whether

or not Kline had a property right, under Virginia law,

to compensation at retirement for the accrued sick leave

in question. There can be no doubt that the law of Vir-

ginia is that a public officer, such as Kline, former Chief

of Police of Fairfax City, does not have a right, of any

kind, to get or keep a public position or office, or to get

or maintain any specific compensation for a public posi-

tion or office.

As stated by the trial court in its Letter Opinion, (Pet.

App. p.4a), the governing law in Virginia is clear: “the

nature of [Kline’s] employment with the City is ‘incon-

sistent with either a property or contract right.’” As

the Virginia Supreme Court stated in Loving, et al. v.

Auditor of Public Accounts, 76 Va. 942, 946-48 (1882)

(emphasis added) :

For obvious reasons of public policy, it is well settled

that the power of the legislature in respect to chang-

ing the compensation of pubiic officers is absolute,

except so far only as its powers may be limited by the

fundamental law of the State... . The services ren-

dered by public officers do not in this particular par-

take of the nature of contracts, nor have they the

remotest affinity thereto. As to a stipulated allow-

ance, that allowance, whether annual, per diem or the

particular fees for particular services, depends on the

will of the law-makers. . . . As we have seen, there

was no contract between the State and Taliaferro

that his compensation should remain unchanged dur-

ing his term of office; and that the power of the leg-

islature to change it was absolute and unquestionable.

To the same effect is Frazier v. Virginia Military Insti-

tute, 81 Va. 59, 62 (1885), where the Supreme Court of

Virginia stated:

It must be regarded as settled, that with regard to

appointments to offices like the one in this case, there

is nothing like a contract raised as to the salary

emoluments or allowances attached to the office.

10

The following decisions are similar: Booker v. Donohoe,

95 Va. 359, 363, 28 S. E. 584 (1897) (emphasis added):

In this country offices are not hereditaments, and the

right to hold office and receive its emoluments does

not grow out of any contract with the State, and that

an office is not property in the sense that cattle and

land are property of the owner . . . the legislature

may abolish the office during the term of the in-

cumbent or diminish the salary, or change the mode

of compensation, subject only to Constitutional re-

strictions. .. .

Sinclair v. Young, 100 Va. 284, 290-91, 40 S.E. 907

(1902) (citations omitted) :

Members of electoral boards are not Constitutional

officers. The office is a legislative creation; and an

election to it does not constitute a contract. When

a noffice is created by statute it is wholly within the

control of the Legislature. The term, the mode of

appointment, and the compensation may be altered at

pleasure, and the latter may be even taken away

without abolishing the office. There are no constitu-

tional limitations upon that power, and the Legisla-

ture may exercise it without let or hindrance.

Johnson v. Black, 108 Va. 477, 489-91, 49 S.E. 633

(1905) (emphasis added) :

Services rendered by public officers do not partake of

the nature of contracts and have no affinity thereto.

In short, generally speaking, the nature of the rela-

tion of a public officer to the public is inconsistent

with either a property or a contract right... [A pub-

lic officer) cannot legally claim additional compensation

for the discharge of [his] duties, even though the

salary be a very inadequate remuneration for the

services. Nor does it alter the case that by subse-

quent statutes or ordinances his duties within the

scope of the charter powers pertaining to the officer

are increased but not his salary. Whenever he con-

siders the compensation inadequate, he is at liberty

to resign.

11

More recently, the Virginia Supreme Court affirmed these

principles in Walker v. Massie, 202 Va. 886, 889, 121

S.E.2d 448 (1961), stating:

Public offices are not held by grant or contract; but

are created by the law-making power, and no person

has a vested right in them.

The policy behind these rules of law is obvious. Any

benefit given by the government to its employees must

necessarily be paid by the public. Flexibility must there-

fore be maintained not only to satisfy competing social

policies and programs, but also to insure fiscal soundness.

To rule otherwise is to mandate the perpetuation of all

prior personnel policies as well as all prior social policies

and programs generally. This would deter legislative ex-

perimentation as well as possibly forcing municipal bank-

ruptcies. It would also be hostile to the principles of

democratic, representative government.

The public officer, such as Kline, must be deemed to

undertake his duties with knowledge of these principles.

Unlike the private employee, the public officer knows that

a number of restrictions can be placed upon him or her

which may not be permissible in the private sector. Vari-

ous outside activities presenting possible conflicts of in-

terest can be proscribed, as can various financial dis-

closure requirements. Politica] activity can be restricted

in ways that would be constitutionally offensive in the

private sector. So, too, the public officer is chargeable

with the knowledge that the office itself can be abolished,

its duties changed, or the emoluments of the office radi-

cally altered. As the Virginia Supreme Court stated in

Walker, faced with any such change the public officer has

two choices: first, he can accept the alteration and con-

tinue employment; or second, the public officer can quit.

The greater good of the public requires such a policy, a

policy which is simply one of the facets of public em-

ployment. -

12

This review of Virginia law clearly shows that Kline

had no property or contract right to his job or his com-

pensation at any specified rate. Accordingly, he cannot

claim any vested rights in general, nor specifically with

respect to the City’s scheme for compensating accrued

leave at retirement.

IL Ordinance No. 1974-4, which was the first of three

ordinances regarding the City’s policies for payment

of accrued leave at retirement, did not confer vested

contract or property rights on Kline.

The original 1974 Ordinance, No. 1974-4, for the first

time formalized, in a comprehensive manner, the per-

sonnel plan of the City of Fairfax. With respect to pay-

ment at retirement of accrued sick leave, it changed the

policy which had previously been in effect. This Ordi-

nance was one of a series of measures which were de-

veloped over time to provide a system of personnel

administration that was consistent with fiscal integrity.

On its face, Kline’s challenge to one small section in one

of these three Ordinances, while conceding, either ex-

pressly or implicitly, the validity of the other changes

and modifications, is without merit. The situation would

be different if Kline had been told that he would receive

a specified amount of compensation, had performed his

job with that expectation, and then was told he would

be compensated in a lesser amount. If that were the

situation, Kline may well have some property rights. But

that is not the situation before this Court. Kline worked

from 1953 until July 1, 1974 with the understanding

that he would be compensated upon retirement for a

maximum of thirty days accrued annual leave and no

compensation for accrued sick leave.“ Under Ordinance

2 Accrued sick leave could be converted into annual leave to

reach the thirty day maximum at a ratio of three sick leave days

to one annual leave day. Because Kline had in excess of thirty days

accrued annual leave on July 1, 1974 (Pet. p. 11), he would receive

no compensation for his accrued sick leave.

13

No. 1975-52, Kline was compensated precisely in the

manner he had expected when he worked those days from

1953 until July 1974.

From July 1, 1974 until June 17, 1975, during which

Ordinance No. 1974-4 was in effect, Kline worked ex-

pecting to be compensated at retirement for the leave he

was accruing. Ordinance No. 1975-52, which is the

Ordinance Kline challenges, paid him for that leave.

From July 17, 1975 until October 20, 1975, during

which Ordinance No. 1975-27 was in effect, Kline worked

zowing the leave he was accruing would be compen-

sated at retirement up to a maximum of forty-five days.

Ordinance 1975-52 paid him as he expected. Although

Ordinance No. 1975-27 clearly limits the benefits of

Ordinance No. 1974-4, Kline makes no objection to it

and even concedes that it was a legitimate exercise of

the City’s authority to do so. (Pet. p.10)

From October 20, 1975, when Ordinance No. 1975-52

went in effect, Kline worked with the knowledge that he

would be compensated at retirement for his accrued an-

nual leave only. He was paid as he expected.

The only remaining theory on which Kline can be

relying to show a property right is that when the City

enacted its original 1974 Ordinance, No. 1974-4, it vested

its employees with a scheme for compensating accrued

leave at retirement that cannot ever be changed. If this

were true, then it seems the 1974 Ordinance itself would

be invalid, given the fact that the City had a previous

policy towards compensating accrued leave at retirement.

Kline advances no good reason as to why the original

scheme established by policy, as opposed to Ordinance, is

somehow not immutable, while the original comprehensive

Ordinance is. Moreover, Kline’s position would appear

to prevent any modification of a retirement scheme,

whether public or private. Not only is such a position

devoid of logical merit, but it would imperil all retire-

14

ment systems, including Social Security. Certainly, both

public and private retirement plans can be changed. In

particular, the City of Fairfax can lawfully change its

method for compensating accrued leave at retirement

when Kline himself was fully compensated for all such

leave under the expectation he had during the time when

he was accruing the leave. Moreover, Kline’s theory

ignores the facts established in this case, confuses earned

compensation and benefits, and overlooks the fact that

Kline’s entitlement to the benefit involved was contingent,

not vested.

a. Contrary to the assertions in his Petition, Kline

did not rely upon the expectation of payment at

retirement of his accrued sick leave.

Throughout his Petition, Kline attempts to posit a case

of detrimental reliance. The facts of this case are other-

wise. Specifically, Kline himself did not rely upon the

scheme for compensating accrued leave at retirement in

making his decision on when to retire. Obviously, Kline’s

retirement entitlements were governed by the Ordinance

in effect on the date of his retirement. When Kline re-

tird, he receives the full benefits of the Ordinance then

in effect.

A review of Kline’s deposition testimony clearly shows

that Kline had no detrimental reliance.

[Counsel for Defendant] Q. From the time you

came there in August of 54 until your retirement,

you never really considered leaving the City and

working somewhere else?

[Plaintiff] A. No, sir, I wanted to be a police-

man, and that’s what I was.

Q. Would that include the time of all of these

changes in the retirement plan and the accumulated

leave plan?

15

A. Yes, sir. In fact, I could have retired. I knew of

the ordinance change prior, in enough time that I

could have retired if I wanted to and collected my

money.

Q. So you would have been eligible for retirement

on August 13, 1974. Is that right?

A. Yes, sir. I could retire before the revised, before

the, between the time they renewed the grandfather

clause and drafted the last ordinance. Jf I had

wanted to retire, I could [sic] retire during that

period and collected my money and I wouldn’t be here

today.

Q. Why didn’t you?

A. Because I didn’t want to retire.

Q. Was there any financial reason why you didn’t

want to retire?

A. No, sir.

Q. Was there no increased retirement compensation

associated with working longer than 20 years?

A. Yes, but that had nothing to do with it.

Q, 0 If you say that wasn’t a factor, what was

your reason for not wanting to retire?

A. Well, I just wanted t. stay in the Police Depart-

ment. I liked the work.

Q. You had just enjoyed your job, and you wanted

to stay there.

A. Yes, sir.

Deposition of Leonard P. Kline, pp. 20, 21, 22 (Oct. 15,

1979) (emphasis added)

Kline’s testimony at trial was essentially the same. (Tr.

Tran. p. 161-165) Kline has thus admitted that he elected

to retain his position with the City for reasons wholly

16

outside the City’s scheme for compensating accrued sick

leave at retirement. He obviously enjoyed his job and

wished to continue for that reason alone. Clearly, Kline

did not rely to his detriment upon the expectation of

being compensated at retirement in accordance with the

terms of the original 1974 Ordinance. Yet, in this action,

that is precisely what he seeks. This is not a case of

detrimental reliance by Kline; on the contrary, it is a

case of a knowing and intelligent waiver by Kline of his

available benefits under the terms of the 1974 Ordinance.

He knew he could have retired and received those bene-

fits, but for personal reasons, he chose not to. “Waving

made his decision not to retire during the time when

that Ordinance was in effect, when he knew or should

have known the consequences of that decision, he cannot

be heard to complain now; particularly since the 1975

Ordinance increased the benefits he expected when he

worked from 1953 through 1974 by removing the thirty

day limit on payment for accrued annual leave.

b. Kline confuses earned compensation with employ-

ee’s benefits.

To the extent that Kline considers sick leave to be a

compensable benefit of the same nature as annual leave,

his argument fails for lack of factual basis. The fact is

that in Virginia, as clearly stated by the trial court, sick

leave is considered a different emolument of employment

than annual leave. (Pet. App. p. 5a) As can be seen

from the limitations on the use of sick leave in the city’s

pre-1974 policy and under the 1975 Ordinance, it is a

benefit of employment to assure that employees are not

penalized by the unfortunate and involuntary circum-

stance of being injured or ill.“ (Kline Tr. Exh. 1).

The pre-1974 policy of the City on sick leave is analogous, for

example, to military leave. An employee is not penalized for his

or her service to the country, but would not be compensated for

the military leave benefit if he or she were not a member of the

Armed Services. (Kline Tr. Exh. 1).

17

As the trial court stated in its letter opinion, an ap-

propriate and accurate analogy to sick leave is term life

insurance. “Should the insured party survive beyond the

term of the policy no benefit is obtained and the premiums

paid during the term are lost.” (Pet. App. p. 5a) In the

Virginia proceedings, Kline attempted to avoid the anal-

ogy, arguing instead that sick leave could be compared

to either term life insurance or whole life insurance, and

the City chose a “whole life” program and then changed

to a term life program. (Pet. to Va. Sup. Ct., p. 23)

Even assuming arguendo this were true, Kline is simply

incorrect in stating that the City may not legally

“switch” policies. As conceded on page 11 of his Petition

for Appeal to the Virginia Supreme Court, Kline agrees

that the “City may choose to pay or not to pay for un-

used ‘sick leave’ at its discretion,”

As noted previously, the City’s leave policies, like that

of all governments, are evolutionary in nature. Kline

cites no authority to suggest that once a given policy is

adopted, it may never thereafter be changed.

Unlike sick leave, annual leave is more akin to earned

compensation (like a salary), to be taken at the will of

the employee for whatever purposes he or she sees fit.*

The cases largely relied on by Kline support this distinc-

tion, holding that employees who have earned compensa-

tion (like wages, salary, commissions, vacations) cannot

be divested of it. However, these cases are cited by Kline

indiscriminately as if they were applicable to sick leave.

For example, Kline cites Mississippi v. Miller, 276 U.S.

1974, 72 L.Ed. 517 (1928), as apparently applicable to

sick leave when it is actually applicable to compensation

in the form of commissions on the amount of delinquent

taxes collected by the plaintiff. (Pet., p. 18.) Clearly,

The City does not concede, however, that annual leave is a form

of earned compensation. Instead, the City simply wishes to point

out that annual leave is more easily aligned with a compensation

analysis than is sick leave.

18

such compensation was in fact earned salary, not sick

leave benefits. Similarly, Kline cites Bennett cx rel. Ari-

zona State Personnel Commission v. Beard, 27 Ariz. App.

534, 556 P.2d 1137 (1976), as relevant to this case when

Kline admits the decision only concerns annual leave

(Pet. p. 14.)

In addition, on page 16 of his Petition, Kline cites

Ramey v. State, 296 Mich. 449, 296 N. W. 323 (1941)

although it is clear from the direct quote used by Kline

that it was applicable to vacation with pay, i.e., annual

leave:

Under the facts in this case, plaintiffs had performed

all acts necessary to insure themselves the right of a

vacation with pay, or if dismissed before exercised,

to receive compensation for the unused portion of

their annual leave allowances. There was nothing

remaining for them to do except exercise the right

which depended on no contingency, but was com-

plete and matured. In my opinion, vacation with pay

is not a gratuity; it is compensation for services

rendered, It is a rule that after the services are

rendered under a law which fixes the rate of compen-

sation, there arises an implied contract to pay for

those services at that rate and the contract cannot be

impaired by subsequent legislation.

(citations omitted and emphasis added)

It must be remembered that Kline’s burden is to estab-

lish that under Virginia law he has a property right to

payment of his accrued sick leave. Kline’s citations to

the law of other jurisdictions which may give their pub-

lie employees the right to such compensation does not es-

tablish Kline’s right to such in Virginia. The trial court

concluded that Kline had no such right in Virginia and

the Supreme Court of Virginia affirmed that decision.

Moreover, Virginia is not alone in the position that

sick leave is a benefit of, and not compensation for em-

19

ployment and that a municipality’s policy of paying em-

ployees for accrued sick leave may be changed at any

time since the right to such pay was not vested. See, e. g.,

Hajek v. City of St. Paul, 35 N.W.2d 705 (Minn. 1949)

In a case of precedential value to this matter, the

Supreme Court of Indiana, in Ballard v. Bd. of Trustees,

324 N.E.2d 813, 815 appeal dismissed, 423 U.S. 806, 46

L.Ed.2d 27 (1975) dealt with an action brought by a

retired city policeman for restoration of his pension

which had been terminated subsequent to his conviction

of a felony. The Supreme Court of Indiana noted that:

pensions under a state compulsory contribution plan

like the Police Pension Fund have traditionally been

considered gratuities from the sovereign involving no

agreement of the parties and, therefore, creating no

contractual rights.

The Ballard court continued by observing that:

The involuntary plans are gratuities from the sov-

ereign as distinguished from voluntary or optional

pension plans, normally called ‘annuities,’ where there

is an agreement that a deduction shall be made out

of the salary of the employee. . In a voluntary

system the employee theoretically may keep his money

or pay it back to the fund, while under the involun-

tary system the money, although denominated com-

pensation, is never owned or controlled by the em-

ployee but retained by the state and is therefore, in

practical effect a contribution by the state. Under

this theoretical distinction there is no vested right

in the money residing in an involuntary or compul-

sory pension system.

An analogy may be drawn between the facts of the pres-

ent case and those of Ballard. Here, Kline participated

in a “compulsory” sick leave system in the sense that he

accrued leave whether he wanted or not. Such leave, like

the pension monies referred to in Ballard, is “in practi-

cal effect a contribution by the [city].” Id. Such circum-

20

stances clearly provide no vested right to the “gratuity”

provided by a government to its employees.

Since Ballard was brought to this Court on appeal, the

dismissal of the appeal is a decision on the merits and

of precedential value in the determination of like issues.

Hicks v. Miranda, 422 U.S. 322, 344, 45 L.E.2d 223

(1975). Ballard, therefore, is direct authority from this

Court supporting the City’s position.

c. Kline has no right to seek the benefits of Ordinance

No. 1974-4, nor did any rights thereunder vest

because Kline failed to meet the contingency of

retiring during the effective period of the Ordi-

nance.

Even if Kline could show that he had a contract or

property right to compensation for accrued sick leave at

retirement and that payment for unused sick leave is

compensation, not a benefit, Kline cannot show that his

rights to such were vested. Again returning to Virginia

law to establish a property interest, the Virginia Su-

preme Court has defined when a right is vested, saying

“we would define it as a right, so fixed, that it is not

dependent on any future act, contingency, or decision to

make it more secure.” Kennedy Coal Corp. v. Buckhorn

Coal Corp., 140 Va. 37, 45, 124 S.E. 482 (1924). A re-

view of the Ordinance shows that Kline’s “rights” were

not vested. Ordinance 1974-4 clearly states that “[w]pon

separation or retirement an employee shall be paid in

full for all accrued leave... (emphasis added)

Kline did not take that last step that would make his

right secure, he did not retire while Ordinance No. 1974-

4 was in effect, although he was eligible to do so and

aware of its impending modification. His right to the

benefit conferred was contingent upon his retirement

during the period the Ordinance was in effect. Kline

failed to meet that contingency and his rights never

vested.

21

Contrary to the statements in his Petition, Kline did

not rely upon the continuation of the benefits in Ordi-

nance No. 1974-4. All Kline had to do to satisfy the con-

dition of his collecting the compensation of which he now

complains was retire sometime after July 1, 1974 and

before October 20, 1975, before Ordinance 1975-52 be-

came effective. Although he had the opportunity to do

so, he chose not to. Most importantly, in so choosing, he

did not rely on the continuation of Ordinances 1974-4

and 1975-27. Instead, Kline merely wanted to continue

working. He made his own choice, and now seeks to avoid

the effects of that choice. Having made that choice,

Kline is now estopped from claiming compensation for

accrued sick leave under an Ordinance upon which he did

not rely.

III. Kline was not deprived of any compensation for

which he had agreed to work for the City.

As previously pointed out, during the various stages of

the City’s evolutionary personnel plan, Kline was ac-

cruing leave under different sets of expectations. When

he retired, he was compensated in accordance with those

expectations. He should not be heard to ask for more.

CONCLUSION

In order to show a violation of due process, Kline must

show that he has a property right under Virginia law

to be compensated at retirement for the sick leave in

question and that he was deprived of this right. Kline

has failed to meet this burden. As held by the Virginia

courts in this case, Virginia law is clear that a public

employee has no property or contract rights to the terms

of his employment. Kline did not rely upon Ordinance

No. 1974-4 to compensate him for his unused sick leave

because he did not work with the expectation that he

would be so compensated and it was not a factor in his

decision as to when te retire. The Virginia courts have

stated in this case that payment for unused sick leave is

a benefit of, not compensation for, employment and that

Kline’s rights to such benefit were not vested because he

failed to retire during the operative period of the Ordi-

nance conferring the benefit.

Kline and the City do not disagree on the federal law

controlling this issue. The only disagreement is whether

Kline’s “rights” vested under state law to trigger the

operation of federal law. Virginia has twice stated in

this case that under Virginia law, Kline’s rights did not

vest. Granting Kline’s Petition for a Writ of Certiorari

will only serve to put this Court in the position of re-

viewing Virginia’s law on municipal employees’ retire-

ment entitlements. This case does not present the situa-

tion where a state court has decided an important federal

question, or decided a federal question in a way in con-

flict with the decision of another state court. Instead it

presents a question of Virginia law on the vesting of

public employees benefits. Virginia has answered the

question, in keeping with the dictates of federal law, and

a review of that decision by this Court is not warranted.

WHEREFORE, the Respondent, The City of Fairfax,

Virginia, respectfully requests this Court to deny Kline’s

Petition for a Writ of Certiorari and to award it its costs

herein incurred.

Respectfully submitted,

* MICHAEL C. MONTAVON

Wyatt B. DurReTTE, JR.

MALONEY and CHESS

8900 University Drive

Suite 800

Fairfax, Virginia 22080

(708) 691-1700

* Counsel of Record for

Respondent

Date: February 4, 1983