Petition — Dew v. City of Florence

Supreme Court brief1983

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SUPREME COURT OF THE UNITED

TERM 1983

NO.

MIRIAM L. DEW,

PETITIONER,

Vs .

THE CITY OF FLORENCE,

RESPONDENT.

Ott 2 Supre we Court. U.S.

riLeD

AUG 23 1983

ALEXAND=EP L STEVAS

STATE =a

PETITION FOR WRIT OF CERT

TO THE SUPREME COURT

IORARI

THE STATE OF SOUTH CAROLINA

RICHARD G. DUSENBURY

201 WEST EVANS STREET

POST OFFICE BOX 555

FLORENCE, SOUTH

(803) 669-6481

CAROLINA 29503

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

1. Did Petitioner have an "expec-

tancy of employment" that amounted to

a “property” interest entitled to con-

stitutional due process protection?

2. Was Petitioner denied due

process because Respondent failed to

comply with the mandates of its own

self-imposed procedures?

TABLE OF CONTENTS

PAGE

Questions Presented for Review 1

a TS a ee a 2

rr wr rere eee . . f(g lg 8k wl tll ls 4

Opinion Below . . . «© «© «© «© «© © «© © @ « 3

Jurisdictional Statement .....+. +e §

Statutory Provisions Relating to

the Jurisdiction of this Court .... 8

Constitutional Provisions Involved

United States Constitution... 2

South Carolina Constitution. 10

South Carolina Statutes

1976 South Carolina Code of Laws

Sections 5-13-90, et seq.

Council-Manager Form of ;

Government (City Manager Statute) .10

Sections 8-17-10, et seq. ate

State Employee Grievance Procedure -+-

Sections 8-17-110, et sec.

County and Municipal Employees

Grievance Procedure ...... .- «12

City of Florence Ordinance ...... -13

Statement of the Case ....+ ++ +s d§

Background Pacts . ..cisesesceeereee ov 0h?

History of Petitioner's Grievance... 22

TABLE OF CONTENTS (CONT'D)

Due Process Violations

Argument

GubeGion 2. ic ss) «. 2 6 # Sie.

Question 2

Chtniuaian:y. 52 + «s/s oe *

Appendix A: Opinion of South

Carolina Supreme Court .

Appendix 2B: Order of Judge George

F. Coleman, dated May 30, 1980

Appendix C: South Carolina State

Statutes se Cems teow eee

Appendix D: Verbatim Excerpts from

City of Florence Handbook . ,

Appendix E: Verbatim Excerpts from

Transcript of Record ee

Appendix F:

Questions Argued in South Carolina

Court Appeal . .. .« + « « « es

Certificate of Servise

TABLE OF AUTHORITIES

Citations

Statute

sGames 2297 ~(3)

Constitution

O.S.C.A. Const.

Fourteenth Amendment

South Carolina Constitution

Article I, Section 3

South Carolina Statutes

Sections 5-13-90, et. seq.

Sections 8-17-10, et. seq.

Sections 8-17-1100, et. seq.

Federal Cases

Accardi v. Shaughnessy

, .* .*

Armstrong v. Manzo

350 U.S. 545, 552

65 §. Ct. 1187, 1191,

14 L. Ed. 2d 62,66 (1965)

Arnett v. Kennedy

416 0.5. at 16/7

Athas v. United States

Bishop v. wood

Board of Regents v. Roth

7. . 564

Bunting v. City of Columbia

639 F. 2a 1090 (1981)

Goldberg v. Kell

307 U.S. 254, 50

8. Ce. i043, 23 kL.

Ed. 2d 287

Grannis v. Ordean

234 U.S. 309, 34

s. Ct. 779, 58 L.Ed.

1363 (1914)

Greene v. Sas

. ‘

(1959)

Guerin v. Hicke

464 F. Supp. 34 (1979)

Hortonville Joint School

District v. Hortonville

Educational Association

U. . , )

In Re Murchison

Game

In Re Ruffalo

390 U.S. 544, 550,

oe G. Gs: tease

1225-26

Jones v. United States

ac Ghs 20

BES v. Zimmerman Bruck Co.

U.S. 2)

McKamey v. United States

Id8 ct. Cl. 28, 458

F. 2a 47 (1972)

McNeill v. Butz

ve ° » sad

(4th Cir. 1973)

Morrisey v. Brewer

708 U.S. 4/1, 488-89

(1972)

Perry v. Sindermann

408 U.S. 593

Robbins v. U. S. RR.

Retirement Board

594 F. 2d 448

(Sth Cir. 1979)

Satterfield v. Edenton-

Chowan Board of Education

F. eh Cir. 1975)

Service v. Dulles

354 U0. S. 303

Thomas v. Ward

529 F. ed at 919

Vitarelli v. Seaton

Uebe Bade Jar

540 3 L. Ed. 2d 1012

Vitek v. Jones

445 U.S. 480 (1980)

Withrow v. Larkin

o2i Us Os Sas 47

State Cases

Donnon v. Civil Service Commission

3 Pa. Comwith. 366, 283 A. 2d 92

Gardner v. Repesky

Pa.

A. 2a 704 (1961)

Phillips v. Board of Fire

& Police Comm'rs of St. Louis

24 Ill. App. 34 242, 320,

wR. 24 355

Schlesinger Appeal

4 Pa. = , ~-

A. 2d 835 (1961)

Sloan v. Whitlock

Rich. / 1)

State Ex Rel. Southern

Railway v. Earle

66 S.c. 194

Still v. Lance

182 5.5. 24 403

OPINION BELOW

The Opinion in Miriam L. Dew v. The

City of Florence, Opinion No. 21930, was

filed in the South Carolina Supreme Court

on May 25, 1983, and is printed in Appen-

aGix A hereto.

JURISDICTIONAL STATEMENT

Jurisdiction to entertain the petition

for writ of certiorari is founded upon 28

U.S.C.A. 1257(3) as it is claimed that the

Petitioner's rights guaranteed by the Four-

teenth Amendment of the United States

Constitution were violated by the Respondent

City of Florence in terminating her employ-

ment.

STATUTORY PROVISIONS RELATING TO THE

JURISDICTION

United States Statutes

Title 28 USC 1257

Final judgments or decrees rendered

by the highest court of a State in which

a decision could be had may be reviewed

by the Supreme Court as follows:

(1) By appeal, where is drawn in question

the validity of a treaty or statute

of the United States and the deci-

sion is against its validity.

(2) By appeal, where is drawn in question

the validity of a statute of any

State on the ground of its being

repugnant to the Constitution,

treaties or laws of the United

States, and the decision is in favor

of its validity.

(3) By writ of certiorari, where the

validity of a treaty or statute of

the United States is drawn in

question or where the validity of

a State statute is drawn in

question on the ground of its being

repugnant to the Constitution,

treaties or laws of the United

States, or where any title, right,

privilege or immunity is specially

set up or claimed under the Con-

stitution, treaties or statutes of,

or commission held or authority

exercised under, the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitutional Provisions

Fourteenth Amendment

Section l.

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States

and of the State wherein they reside. No

State shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States; nor shall

any State deprive any person of life, liberty,

Or property, without due process of law; nor

deny to any persons within its jurisdiction

the equal protection of the laws.

South Carolina Constitution

Article I.

Sec. 3. Privileges and immunities; due

process; equal protection of laws.

The privileges and immunities of citi-

zens of this State and of the United States

under this Constitution shall not be abridged,

nor shall any person be deprived of life,

liberty, or property without due process of

law, nor shall any person be denied the

equal protection of the laws. (1970) (56)

2684; 1971 (57) 315.)

South Carolina Statutes

1. Chapter 13. Council-Manager Form of

Government. Section 5-13-90. Responsi-

bilities of Manager. The Manager shall be

Sec. 3-17-160. Powers of city managers.

(See Full Statute in Appendix)

CITY OF FLORENCE ORDINANCE

STATE OF SOUTH CAROLINA, COUNTY OF FLORENCE,

RESOLUTION:

WHEREAS, any modern organization with

large numbers of employees needs a clearly

written set of rules and regulations; and

WHEREAS, a definite need has existed to

revise said rules and regulations to maintain

them current and in line with changing times;

and

WHEREAS, said revision has now been com-

pleted by the City Manager and the necessary

changes have been made to the extent that

employees presently with the city and those

who may be employed in the future will benefit

by these rules and regulations; that in opinion

of this Council said revision will also assist

the city government in the employment of new

personnel when required in the future.

Now, Therefore,

BE IT RESOLVED, by the City Council

of the City of Florence that the Personnel

Rules and Regulations of the City of

Florence and as presented to the City

Council with the agenda for the March 27,

1978 meeting, be and they are hereby revised.

Be it

FURTHER RESOLVED that a copy be given

to each present city employee so that he

May be aware of the changes incorporated

therein and to future employees to inform

them of said benefits.

Adopted this 27 day of March, 1978.

CITY ORDINANCE Promulgating personnel

rules and regulations of the City of

Florence including formal Grievance Pro-

cedures adopted March 27, 1978 pursuant

to the Enabling Act of the State Legislature.

(See Verbatim Excerpts from City of

Florence Handbook in Appendix)

STATEMENT OF THE CASE

Petitioner, formerly employed as

Administrative Assistant to the City Manager

of the Respondent City of Florence, brought

a declaratory judgment action alleging that

she was discharged by the City Manager in vio-

lation of her rights under the due process

clauses of the Fourteenth Amendment of the

United States Constitution and Article I,

Section 3 of the South Carolina Constitution.

She based her claim on the further grounds

that the Respondent City of Florence had

failed to abide by its own self-imposed

grievance procedures in discharging her.

(Vitarelli doctrine) She asked that her dis-

missal be declared illegal and that she be

awarded damages for lost wages. Initially,

she soughe reinstatement but later waived this

relief. The trial judge ruled in favor of

Petitioner, basing his decision on the grounds

that the Respondent had failed to comply with

its own rules and regulations governing the

removal of employees. Petitioner was

awarded damages for lost wages from the

time of her dismissal until the time she

waived any claim to reinstatement. The

trial judge also held that Petitioner was

not deprived of a "liberty" interest nor

was she possessed of a "property" interest

which would entitle her to constitutional

due process safeguards. Petitioner did

not appeal from the trial court's ruling as

to a liberty interest but asserted as an

additional sustaining ground on appeal that

she had an expectancy of employment amount-

ing to a property interest entitled to due

process protection. The South Carolina

x 4

Supreme Court, in its Opinion fi

1983, reversed the trial court, holding

that Petitioner was only an “at will"

employee with no vested "property"

interest in continued employment with the

City and not entitled to constitutional

due process protection.

BACKGROUND FACTS

The South Carolina Legislature passed

an enabling Act in 1971 (Section 8-17-110 et.

seq. of the 1976 South Carolina Code of Laws)

that authorized municipalities to establish

by ordinance or resolution employee grievance

procedures which, "if adopted, shall conform

substantially to the guidelines" established

by the Act." On March 27, 1978, the Florence

City Council pursuant to the enabling Act

promulgated an official Employee Handbook

and a formal Grievance Procedure.

The Federal Constitutional question was

taised from the outset. In her Amended

Complaint dated October 3, 1978, Petitioner

specifically alleged that Respondent had

violated her right to due process under both

the Federal and State Constitutions, speci-

fically alleging that Respondent's procedures

did not meet due process requirements as to

notice, a fair hearing, opportunity to

cross-examine witnesses, Opportunity to

confront witnesses, right to have the

effective assistance of counsel, and the

right to have an impartial judge; that

Petitioner did not have notice of the

specific charges against her; that the

City Manager improperly acted as the final

judge of his own actions in dismissing

Petitioner even when the Grievance Committee

entered a decision in her favor; and that

the City Manager acted improperly when he

ratified his own acts and decisions when

his acts and decisions constituted the

essence of Petitioner's grievance.

The Federal constitutional question

was addressed continuously throughout the

trial, and exhaustive briefs arguing the

Federal constitutional questions were sub-

mitted to the trial judge after the trial.

The trial judge addressed the Federal

constitutional questions at length in his final

Order. His entire forty (40) page Order focused

almost exclusively on (1) the Federal consti-

tutional principles relating to expectancy of

employment giving rise to liberty and property

interests entitled to constitutional due pro-

cess protection and (2) the constitutional due

process requirements applicable to public

agencies and entities which fail to observe and

follow their own self-imposed regulations and

procedures. (The Vitarelli Doctine, see Vitarelli

v. Seaton, 359 U.S. 535, 539-540)

In the appeal to the South Carolina Supreme

Court, Petitioner urged and relied on two grounds:

The issue of expectancy of employment creating

a property interest entitled to constitutional

due process protections and the due process

requirement that public entities abide by their

own self-imposed regulations and procedures.

The South Carolina Supreme Court rejected both

of these grounds, holding that Petitioner was

an at-will employee who did not have an

expectancy of employment amounting to a property

]

tr .

fen

rt)

interest entitled to constituti

process protection.

The South Carolina Supreme Court

based its judgment on statutory con-

struction grounds. It decided that

since there were no "property" interests

entitled to constitutional due process

protections involved, there were n

due process violations in the grievance

procedure that she could rely on to

establish her case. It did not recog-

nize any Vitarelli constraints as

applying in this case, holding that

they were not necessary since she was

"victorious" before the Grievance

Committee. The Court cited the pro-

vision in the grievance procedure pro-

visions in the handbook that: "If how-

ever, the City Manager rejects the

decision of the Committee, he st.all

make his own decision and that decision

shall be final..." In this case the City

Manager was an impermissible judge of his

own prosecution. It is submitted, however,

that where as here, Respondent <lagrantly

failed to follow its own self-imposed pro-

cedures, the court "need not consider

Petitioner's other arguments. Such a

G@efect renders an adverse personnel action

void ab initio". Athas v. United States,

597 F. 2d 722 (1979), citing as standing

for the same proposition Vitarelli v.

Seaton, 359 U.S. 535; Service vy. Dulles,354

U.S. 363; Jones v. United States, 203 Ct.

. 544 (1974); McKamey v. United States,

198 Ct. Cl. 28, 458 F. 2d 47 (1972).

The enabling statute (Section 8-17-1110

of the 1976 S. C. Code of Laws, as amended),

enacted in 1971, provided that municipalities

could by ordinance or resolution adopt a grie-

vance procedure which, "if adopted, shall con-

form substantially to the guidelines"

established by the Act.

On March 27, 1978, the Respondent

Florence City Council pursuant to the

enabling Act passed an ordinance estab-

lishing a formal Grievance Procedure

covering City employees.

HISTORY OF PETITIONER'S GRIEVANCE.

Petitioner began work with the

Respondent in January, 1975 and was pro-

moted to Administrative Assistant to the

City Manager in July, 1977. All of her

fitness reports as an employee of

Respondent were above average or superior.

On July 28, 1978, the City Manager

terminated Petitioner's employment, bas-

ing his action on five generally stated

grounds: that she was indiscreet, insu-

bordinate, defied his warnings, misrepre-

sented facts about his decisions, and did

not properly support or cooperate with

him. Petitioner disputed these charges

and insisted that the difference between her

and the City Manager were based on mis-

understandings and second-hand gossip.

On August 2, 1978, Petitioner appealed

her dismissal to the Grievance Committee,

and on August 9, 1978, the Grievance Commit-

tee held a hearing.

On August 29, 1978, the City Manager

overrode the decision and recommendations

of the Grievance Committtee and notified

Petitioner that her dismissal would stand.

Thereafter, Petitioner brought this action

for a Declaratory Judoment and incidental

damages.

Petitioner's Petition to the Grievance

Committee asserted that the City Manager had

not complied with "enacted termination poli-

cies and procedures" and had only informed

Petitioner in general terms of the grounds

for her discharge.

DUE PROCESS VIOLATIONS

At the hearing the Grievance Commit-

tee would not permit Petitioner or her

counsel in the hearing room when the City

Manager and witnesses presented by him

were testifying against her.

Petitioner's attorney asked that

he and Petitioner be allowed to be pre-

sent and to hear and cross-examine these

witnesses. This request was denied.

Further, Petitioner was not informed

by the City Manager or the Grievance

Committee of the particulars of the charges

against her and did not know what to rebut

or explain.

Finally, the City Manager, who had

dismissed Petitioner and testified against

her and presented the witnesses against her,

acted as judge of Petitioner's grievance

appeal and reversed the decision of the

Grievance Committee.

and 'property'. The Court ‘has placed

great emphasis both on making it possi-

ble for those who deal with the govern-

ment in any way to rely on any clearly

announced rules, and also on reducing

the nelplessness of persons who are in

a dependent relationship to government

with respect to basic needs.' Tribe,

American Constitutional Law, I5=-16

(Aneto «7

The State of South Carolina enacted a

Statute that heightened Petitioner's "expec-

tancy of employment". It authorized munici-

palities to establish employees' grievance

procedures and provided (Section 8-17-130)

that: "The presiding officer shall have control

of the proceedings. He shall take whatever

action is necessary to insure an equitable,

orderly, and expeditious hearing."

Bishop v. Wood held that "a property

interest in employment can, of course, be

Created by ordinance, or by an implied con-

and cited Perry v. Sindermann,supra,

that a “person's interest in a benefit is a

'property' interest for due process purposes

if there are...rules or mutually explicit

understandings that support his claim

of entitlement to the benefit and that

he may invoke at a hearing."

These principles find their reali-

zation in the South Carolina Legislature's

enabling Act, in the ordinance passed by

the Florence City Council pursuant to

this enabling statute, and in the City

of Florence Employee Handbook and grie-

vance procedure that were promulgated by

Respondent.

The Court in Bishop v. Wood, supra,

referred to the State law of North Carolina

in determining the extent of the property

interest involved in Bishop v. Wood:

"The North Carolina Supreme Court

has held that enforceable expecta-

tion of continued public employ-

ment in that State can exist only

if the employer, by statute or

contract, has actually granted

some form of guarantee. Still v.

Lance, 182 S.E. 24 403. Whether

Such a guarantee has been given

can be determined only by an

examination of the particular

statute or ordinance in question.

In North Carolina, nothing else

appearing, a contract of employment

which contains no provi sion for the

duration or termination of employ-

ment is terminable at the will of

ither party, irrespective of equality

of performance by the other party. By

statute, G:.S. Section 115-142(b), a

county board of education in North

Carolina may terminate the employment

of a teacher at the end of the school

year without filing charges or giving

its reasons for such termination, oF

granting the teacher an opportunit

to be heard. Still v. Lance, supra."

The dissenting opinions of Mr. Justice

White, along with Justice Brenan, Marshall and

Blackmon, point up clearly that the employee

in Marion, North Carolina, seeking relief in

Bishop, had much less of a "property interest"

or “employment expectan y" than an employee of

the City of Florence has. The North Carolina

District Court, in its opinion, said: “It is

clear from Article II, Section 6, of the City's

Personnel Ordinance, that the dismissal of an

employee does not require a notice of a hearing.

Upon request of the discharged employee, he

should be given written notice of his dis-

charge, setting forth the effective date and

the reasons for the discharge. It does

not appear that both the City Ordinance

and the State law have been complied with.

» Supp. 501, 504.

In marked contrast the City of

Florence Ordinance and the grievance pro-

cedure thereunder provide for a warning

procedure "before terminations are made."

Section 5.3 provides for that "a permanent

employee who receives a regular summary

year-end evaluation of ‘unsatisfactory'

must be terminated subject to procedures

outlined in the Disciplinary Action

Section.”

The 1971 enactment by the South

Carolina Legislature of an employment

grievance procedure created a totally

different expectancy from that which

obtained in Marion, North Carolina.

As to the principle enunciated in

Bishop v. Wood, that "a property interest

in employment can be created by ordinance or

by an implied contract, the Florence City

Council on March 28, 1978, passed “ne

ordinance setting up “he employee grievance

procedure, under authority of the enabling

Aet of the South Carolina Legislature. These

enactments confirm the substantial development

of South Carolina law in the area of employ-

ment security, particularly where public

employees are concerned.

The "implied contract" question must be

examined through the eyes of Bishop v. wood.

The ordinance adopted on March 27, 1978,

recites that "any modern organizatior with

large numbers of employees needs a clearly

written set of rules and regulations. (The

words "rules and regulations" echo the criteria

language of Bishop v. Wood, citing

Sindermann: A "person's interest in a benefit

is 'property' interest for due process if there

are...rules or mutually explicit understandings

that support his claim of entitlement to

the benefit and that he may invoke at a

hearing.”")

Continuing to quote from the

ordinance: "A definite need has existed

to revise said rules and regulations to

maintain them current in line with chang-

ing times..." (In Bishop v. Wood, the

Court observes that "only a stagnant

society remains unchanged"... Continuing

to quote from the resolution: "That a

copy be given to each present City

employee so that he may be aware of the

changes incorporated therein and to future

employees to inform them of said benefits.

These are more than just words; they are

promises that create an "expectancy of

employment" -- the expectancy of

security in employment."

In the concluding section of the

Employee Handbook, entitled "A Final

Note," the City of Florence stresses the

reciprocal nature of the responsibilities

that employer and employee have toward each

other. These reciprocal obligations and the

expectancies they create constitute an "implied

contract” between the employer and employee -

an expectancy that he will not be discharged

except for cause. Such job security is a

property right he is entitled to enforce.

A FINAL NOTE

The information in this booklet is

extensive and should give an

employee a good understanding of

his responsibilities and the

responsibilities of the City of

Florence, as well as City policies

and procedures. From time to time

new administrative and personnel

policies may be developed. Copies

of these policies will be sent to

all Supervisors, Division and

Department Managers when they are

issued and these supervisors and

managers will be responsible for

Keeping all employees so informed.

This booklet should be kept in a

special place for future reference.

If there are questions regarding

anything contained herein, Super-

visors, Department or Division

Managers should be consulted.

CONFLICT

hese rules and regulations shall

supplement and supersede all pre-

vious rules and regulations relat-

ing to the same subject. All con-

flicting rules and regulations are

hereby repealed.

We now consider specific provisions

of the City and State law to see whether

they operate to make Petitioner's employ-

ment rights "property" rights within

the meaning of Bishop v. Wood. On Page 8

of the City of Florence Handbook, we

find "agreement" provisions that bear

on this question: "YOUR EMPLOYER'S

RESPONSIBILITIES TO YOU...

"S$. Security in employment...

(Emphasis added)

Other provisions that meet the

"implied contract” criterion in Bishop

are" "YOUR RESPONSIBILITIES TO YOUR

Florence expects you to be: l...2...

Becabnce Secs Geos Teee (even sepa-

rate provisions) (See Full text in

Appendix.)

When the employer's responsibilities

’

to the employee are compared with th

employee's responsibilites *o the employer

that are set forth on the next page of the

Employee Handbook we see that another Bishop

vy. Wood criterion is applicable: that "a

person's interest in a benefit is a ‘property

interest for due process purposes if there

are...rules or mutually explicit understand-

ings that support his claim of entitlement to

the benefit and that he may invoke at a hearing.

Section 4 of the City of Florence Employee

Handbook covers permanent and part-time or

temporary status and spells out the benefits

and advantages of permanent status and points

we)

| ’

a six months probation

nine months in certain instances), “he may be

terminated at any time during the probationary

period with no redress to the Grievance

Committee."

Immediately following this sentence is 4

parenthetical insert that says "however see

Warning on page 27". Section 10.2 Warning,

on page 27, describes in detail the pro-

cedures that must be followed when an

employee's performance comes into question,

including counseling, the requirement that

written "summaries" be made of such counsel-

ing incidents and held for reference in pre-

paring the probational or regular service

evaluation. The Warning Section requires

that when a person's performance does not

meet certain standards, the employee will

"be notified of this eventuality at least

three months before sche evaluation is due...

The person-to-person notification will be

confirmed with a written Warning Notice,

the original of which shall be handed to

the employee concerned, one copy, signed by

the employee, retained by the Division Mana-

ger, and one copy, signed by the employee,

placed in the employee's personnel folder.

The Warning Notice will inform the employee

specifically of the following:... "Five

things that the employee will be informed

about include: "That the emplovee has an

Opportunity to improve."

Section 4.2, Permanent Status, provides

that "employees who have satisfacto ily com-

pleted at least six months of continuous

service with the City shall be granted perma-

nent status. Permanent employees are entitled

to all benefits and privileces provided in

following chapters of this policy." (Emphasis

added)

Section 5.2 of Employee Evaluation pro-

vides: "Unsatisfactory Reqular Service Evalua-

tion -- A permanent employee who receives a

regular summary year-end evaluation of

factory' must be terminated sub

cedures outlined in the Disciplinary Action

Section.” (Emphasis added)

Before enumerating other significant pro-

visions contained in the City of Florence

Handbook, some reference should be made <o

Section 4.7 of Section 4, Job TenumNot Estab-

lised, which provides: "Nothing contained in

this title shall be deemed to confer any

vested right in employment upon any City

employee." (Emphasis added) It is axio-

matic that the provisions of a contract

Or similar document must be construed as

a whole and separate provisions must be

construed in the light of the other pro-

visions contained in the contract. In

view of numerous affirmative promises the

City of Florence Handbook makes to employees,

this 19-word provision could hardly be

given a construction that would totally

negate the explicit protective provisions

granted City employees. If such an exclu-

sion clause was contained in an insurance

contract and the other provisions of the

contract promised a variety of benefits to

the beneficiary, the "reservation" pro-

vision, absent explicitly supporting and

Clarifying language, would not be construed

to deny the policyholder the benefits pro-

mised by other, specific provisions of

the length of continuous service

to the City, according to the

following schedule.”... “Durin

che Deriod of recall rights,

employees may be recalled to duty

in the reverse order in which they

were laid off. No new employees

may be hired into any classification

while there are emp Loyees with

recall rights in lay-off status who

were laid off from that classifi-

Cation.” (Emphasis added)

This list of employee expectations,

security in employment, seniority, lay-off in

reverse order of seniority, and rehire in order

of seniority, reflects modern conditions and

prevailing trends. The fact that “mutual”

Obligations of employer and employees are

spelled out in a City of Florence Employee Hand-

book is an indication of how interconnected all

sectors our society have become in thought and

practice. Economic security is a consideration

of no small concern to people who have to pay

their bills each week and cannot reasonably

enter into long-term mortgages and

other long-term contracts unless they

feel secure in their employment and Know

that they cannot be discharged for in-

substantial reasons.

The provisions of the City of

Florence Handbook must be construed as

a whole. They were enacted to achieve

various political, governmental, and

economic objectives and benefits for the

City as well as its employees. The City

of Florence cannot now disparage the

ffirmative provisions of an explicitl;

reciprocal document by pointing to a

single generally worded escape clause

that, if literally construed apart from

the other provisions of the contract,

would deny the employees their most

valuable economic asset - job security.

QUESTION Two

Was Petitioner denied due process because

Respondent failed to comply with the mandates

of its own self-imposed procedures?

Various self-imposed procedural require-

ments are binding on Respondent in this case.

The South Carolina statute (Section 8=-17=-130)

mandates the "presiding officer" to "stake what-

ever action is necessary to insure an equitable,

orderly, and expeditious hearing." The

Employee Handbook, promulgated pursuant to 4

duly enacted ordinance of the City of Florence,

spells out in detail the reciprocal rights and

duties granted to and imposed upon the employer

and its employees in the area of employment

rights and security and in terminating employees.

The United States Supreme Court in

Vitarelli v. Seaton, Secretary of Interior,

359 U.S. 335, 3 L. Ed. 2d 1012, and a series of

related cases held that even gratuitous prom

cedures, not required by Constitution or

statute, once they are promulgated or provided

by regulations, are binding on admini-

Number 2, Northwestern University Law

Review, 1967, summarizes the law in th

Vitarelli area: "That regulations have

"the force and effect of law' has been

often stated and never questioned.

(Citations) They are the product of the

"rule making' power, the delegated

legislative power, albeit only a power

"to £ill up che details.' It is because

of the exercise of ‘delegated authority’

that a regulation is 'of the same ‘force

as if made by the legislature,' ‘as

though prescribed in terms by the statute.

Under a section that Mr. Berger

entitled "Due Process and Compliance with

Regulations,” he states: "It is now time

to consider the impact of a trio of recent

Supreme Court decisions upon administrative

compliance with procedural regulations. In

all three, Accardi v. Shaughnessy, 347, U.S.

held that the reculations 'bound' the admini-

strators. The ‘rationale of the decisions, '

say Professors Gellhorn and Byse:

Seems to be either that the existing

regulations have 'the force and effect

of law' and must, therefore, be deemed

binding on the Government, as well as

on the citizen, or that they embody

a de facto recognition of minimum

standaras of procedural decency and

may, therefore, be roughly equated

with due process.” (Citations)

Under our system, the law binds all,

officers, as well as citizens, ‘from

the highest to the lowest.' Com-

pliance with a regulation that has

'the force of law' moreover, is

required by due process in its primal

sense; i.e., a regulation, like a

statute, is a part of ‘the law of the

land' which must be observed by an

official for the protection of a

citizen. (Citations)

The Respondent City of Florence in

the Resolution setting up its grievance

procecure pursuant to the enabling legis-

lation explicitly stated that it was adept-

ing "a clearly written set of rules and

regulations" needed by any modern organi-

zation and that those rules and regulations

"will also assist the City Government in

the employment of new personnel when

required in the future."

The City of Florence promised that

an employee could expect from the City of

Florence: "Fair sreatmen- at all times and

security in employment." ase 8, Employees

The full extent of the due process

violation in this case is shown in brief

excerpts from the testimony of the three

principal actors in the case: Petitioner,

the City Manager, and the Chairman of the

Grievance Committee:

"Miriam Dew: (Tr. 41, Appendix

Q. When we appeared at the hearing,

was any request made about appearing

when witnesses were called and cross-

examined? A. Yes. Well, you requested

that and Mr. Jeffords pointed out that

that was not our standard procedure;

that only on one other occasion did he

recall when an atto rney had appeared

in behalf of person who had filed a

grievance and that although you were

welcome to be there with me, at the time

that witnesses appeared that we were

asked to leave, and that was the standard

procedure.

Q. After th ity's witnesses were called,

(and had been enceeaay, did they permit

you to come in, you and your attorney?

A. Yes.

Q. Was any request again repeated for

an opportunity to examine these wit-

nesses? A.Yes, at that time you requested

[_-

~w*

Q. Were any of the witnesses ever pro-

duced for cross-examination? A. No. We

didn't even know who they were except

the ones we saw who came out through the

city manager's office. There was another

door, apparently.

William Jeffords, Chairman of Grievance

Committee: (Tr. 96

Q. And after Mr. Edwards came in, did

he present various witnesses? A. Yes.

Q. Were either Miss Dew or I present?

A. No

Q. Was our presence permitted by you

all's established procedure? A. No

Q. Was there any, so to speak, notice

Or verbatim specification given to

Miss Dew or to me of what these wit-

nesses testified to specifically?

A. Not that I know of.

Q. Did I give you a lawyer's memo-

randum stating my various views on

the constitutional Pro cedures prior

to the committee and discuss it with

you? A. You discussed it with me, I

don't remember any memorandun.

Q. And, were you informed chat

cross-examination was a constitu-

tional procedure and the right to

confront the witnesses? A. I was

informed of that but I didn't

necessarily think it was true.

Thomas Edwards, City Manager:

(Tre. 259,

Q. What did you (the City Manager)

tell the committee? A. I basically

recapped and presenting the wit-

nesses, their testimony, letting

them testify to their knowledge,

and presented one witness related

to organizational structure as more

or less a qualified person to so

testify to support my position as

far as the role of an administrativ

assistant, their relationship : th

manager, and used my own comments in

summarizing and pointing out those

items that had occurred and th

reasons for dismissal.

Q. And you, of course, again reco-

mmended dismissal or reaffirmed

your statement of dismissal. A. I

was there to certainly defend th

position of the city manager's

office in dismissing her and pre-

sented giving what we had to the

best of our ability to present to

the grievance committee.

Q. And you appeared there in the posi-

tion of an adversary to Miss Dew. A.

Adversary, not knowing how you meant

it, I appeared to present our case. If

that's an adversary, yes.

Q. And trying to get the grievance

committee to affirm your termination?

2 you're reading any-

na simple type

(Pe. 261)

Q. Were you aware of any conflict

of interest, any conflict of roles?

A. I was not aware of any. I was aware

—

the fact that we were operating as

far as we could tell, basically to the

letter of the State Code and the Codes

of the City of Florence, or ordinances

or policies of the City of Florence.

Q. Did you nage present the witnesses

and ask them questions? A. Yes Sir.

Q. Did you make any cl statement

to the committee as to what you thought

their action should se? A. I certainly

made a summary statement and as my

opening remarks reflected, they were in

avery difficult position, that I under-

stood their position, and certainly felt

that they had a difficult decision to

make and certainly do it without regard

to the fact that I was city manager of

the City of Florence.

Q. Was any notice given to Miss Dew of

which witnesses were being presented as

they were brought in? A. No, sir.

Q. Was Miss Dew or anybody repre-

senting her, an attorney, in the

committee room to cross-examine

any of these witnesses? A. No sir.

Q. And did she have any assistance

of counsel during that stage of

the proceeding? A....No, sir.

Q. And, of course, she obviously

was not there to confront the

witnesses herself, personally,

and test their credibility, was

she? A. Correct.

Q. In the preliminary process of

terminating Miss Dew, did you con-

sider yourself bound by or con-

Strained by the provisions of the

employee handbook? Z. As interpre-

ted, yes.

Q. I believe under Section 9.4,

page 25, (employees) may be dis-

missed, I'm leaving some others out,

by the city manager. And in that

same or immediately -- Chapter 10,

Section 10, disciplinary action,

which follows the authority of

the city manager to terminate,

there is a disciplinary action

section 10.0. Did you feel yourself

subject to those provisions? A.

As interpreted, yes.

Q. Going to 10.2 as to warnings, did

you feel yourself bound by the pro-

visions there as to warnings to an

employee about to be terminated?

A. As interpreted and upon the advice

of the city attorney, yes.

The State of South Carolina subscribes

to a standard definition of "due process".

O*V

State Ex Rel. Southern Railway v. Earle

S. C. 194, annotated under the South Carolina

Constitution, Article I, Section 3, relating

to due process.

In its opinion, The South Carolina Supreme

Court disparaged Petitioner's complaints of due

process violations for the reason that she was

"victorious" before the Committee; that it was

analogous to an accused person being found not

guilty appealing from his not guilty verdict,

‘

alleging the trial was not fair.

This view overlooks the peculiar interplay

of the factors in this case. If she City Mana-

ger who also acted as prosecutor is, as the

final arbiter of Petitioner's rights, to have

any possibility of judging Petitioner's appeal

in a fair and unbiased manner, he must permit

Petitioner to explain or rebut the evidence

against her so that those explanations and

rebuttals can operate on his judgmental

processes as arbiter.

The importance of the Grievance

Committee procedure in this case was not

the decision cua decision but its function

as "process" - an informing, and, from

tranforming process. Petitioner could

hardly expect to transform the City Mana-

ger's attitude the way the hearing was

conducted.

The South Carolina Supreme Court

cited Section 5-13-90 of the State law

relating to the responsibilities of the

City Manager:..."he shall (1) Appoint

and, when necessary for she good of the

a > |

municipality, remove any appointive

officer or emplovee of the municipality

(Emphasis added by the Court.) and £ix

the salaries of such officers and employees,

except as otherwise provided in this Chapter

or prohibited by law ... (Emphasis added by

Petitioner.) The Court also relied on the

fact that the Employee Handbook permitted

the City Manager to reject the decision of

implied contract the power of the City Manager

to fire without cause. South Carolina reco-

gnizes the existence of "implied agreements".

Sloan v. Whitlock,13 Rich. 177 (1861).

Although Section 8-17-140 of the 1976

South Carolina Code of Laws, authorizes the

City Manager to reject the decision of the

Grievance Committee and make an independent

final decision, it should not be necessary

to a decision in this case to decide the

effect of that particular provision, inasmuch

as the failure of Respondent to accord

Petitioner her due process rights and its

failure to comply with its own regulations

Operate to make its attempt *o terminate her

employment a nullity ab initio. This rule was

cited in Athas v. United States, 597 F. 24

722 (1979), citing as standing for the same

proposition Vitarelli v. Seaton,359 US 535;

Service v. Dulles,354 US 363; Jones v. United

States, 203 Ct. Cl. 544 (1974), McKamey v.

United States,198 Ct. Cl. 28, 458 F. 2d 47

(1972).

Considering that Respondent fla-

grantly deprived Petitioner of funda-

mental due process rights - including

exclusion from the hearing room while

the witnesses against her were testi-

fying - she in fact had no hearing in

«ct

he due process sense. The South

Carolina Supreme Court glossed over

these due process violations, holdin

that she had no property right entitled

to constitutional due process protection.

Logan v. Zimmermann Bruck Co., 455

U.S. 422 (1982), addressed the question

of the effect of the existence of State

procedures on Federal due process cases:

"Each of our due process cases has

recognized, either explicitly or

implicitly, that because ‘minimum

(procedural) requirements (are) a

matter of federal law, they are not

diminished by the fact that the

State may have specified its own

procedures that it may deem adequate

for determining the pre-conditions

to adverse official action.' Vitek

v. Jones,445 US 480 (1980)... Indeed,

any Other conclusion would allow the

State to destroy at will virtually

any state-created property interest.

The Court has considered and rejected

such an approach. "'While the legis-

lature may elect not to confer a

property interest,...it may not consti-

tutionally authorize the deprivation of

such an interest, once conferred, with-

out appropriate procedural safeguards...

(T)he adequacy of statutory procedures

for deprivation of a statutorily created

property interest must be analyzed in

constitutional tcerms'." Vitek v. Jones,

445 US at 490-491, N. 6, quoting Arnett

v.Kennedy,416 US at 167.

THE TRIAL JUDGE ON VITARELLI AND DUE PROCESS

ISSUES:

The trial judge, having ruled that Peti-

tioner did not have a liberty or property

interest entitled to constitutional protection,

held that the City had not complied with its

own self-imposed rules. Pertinent portions

of his scholarly Order will be quoted at

length. (Commencing at Page 26 of Order dated

May 23, 1980).

.--While the City of Florence is not

required to afford procedural due process absent

a constitutionally protected "liberty" or

"property" interest, the City is bound by

its rules. This obligation to comply with

established rules applies even if the rules

specify procedural safeguards which equal or

exceed those mandated by che Constitution.

Service v. Dulles, supra; Vitarelli v.

Seaton, supra. The quoted provisions of

the Employee Handbook clearly reveal that

a fair and equitable hearing before an

impartial decision maker is contemplated.

These promises of fairness and impartia-

lity must be considered as a recognition

of minimum standards of procedural decency,

which may be equated with due process.

See, Robbins v. U.S.R.R. Retirement Board,

594 F. 24 448 (5th Cir. 1979).

The questions involved nere, <hen,

are, first, what procedural protections

and, second, was the process afforded

Petitioner sufficient to satisfy the

required procedural protection.

...The contours of due process are

determined by taking into account "the

individual's stake in the decision at

issue as well as the state's interest in

a particular procedure for making it."

Hortonville Joint School District v.

“ortonville Education Association, 426 U.S.

482, 494 (1976).

_..While the process which is due is

etermined by balancing th competing interests

fis

o£ the individual and the state, certain ele-

ments or ingredients are recarded as the bul-

warks of due process, and have, therefore,

been considered essent: y invariable when the

protections of due process are applicable. in

Greene v. McElroy,360 U.S. 474, 496 (1959),

the Supreme Court stressed the critical nature

nesses:

Certain principles have remained

relatively immutable in our juris-

prudence. One of these :s chat where

governmental action seriously injures

n individual, and the reasonableness

of the action depends on fact findings,

the evidence used to prove the Govern-

ment's case must be disclosed =o the

individual so that he has an oppor

tunity to show that it is untrue.

The Fourth Circuit Court of Appeals has nov:

that in almost every instance where the termi-

nation decision turns on the truth or falsity

of disputed facts due process requires an

opportunity to confront and cross-examine

adverse witnesses. Thomas v. Ward, 529

F. 2d at 919; McNeil v. Butz, 480 F. 2d.

314, 321 (4th Cis. 1973)...-Finaily,

courts have identified the elements which

constitute minimum procedural due process.

These elements include: (1) Notice and

specification of the charges, (2) oppor-

tunity to be heard, (3) opportunity to

confront accusers, and (4) an impartial

tribunal. Morrisey v. Brewer, 408 U.S.

471, 488-89 (1972).

..-Here, there is no critical govern-

ment interest involved. Nor is the City's

interest in performing its responsibilities

effectively and efficiently shreatened by

affording Petitioner minimum due process

at the post termination grievance hearing.

At the time of the hearing, Petitioner was

not employed by the City and was, therefore,

no longer an obstacle, if ever she was, to

the implementation of the City Manager's

plans or the efficient operation of the

City Manager's office. At best, the City's

interest is in minimizing tne administrative

burden imposed upon it py affording Petitioner

minimum due process. But this is the very

burden the City gratuitously accepted, when

it promised its employees “fair and impartial

treatment" of grievance and “fair and equit-

able hearings." The City of Florence Employee

Handbook, Grievance Procedure, PP: 37-38.

What the Fourth Circuit Court of Appeals said

in a case involving the dismissal of two govern-

ment employees is apposite here:

(w)e conclude that the relative natures

of the government function and the

private interests do not permit the

government to discharge these employees

without providing notice and 4 hearing

at which the employees can confront

and cross-examine the government's

informers. In both cases, the propriety

of dismissal hinged strictly on factual

determination, and the evidence con~

sisted primarily of individual testimony.

Thus, these dismissals arise in a con-

text where confrontation and cross-exami-

nation are paradigmatically useful in

discovering the truth....We do not dis-

pute that the government has a sub-

stantial interest in the efficient and

orderly discharge of unsatisfactory

employees. But this interest does not

outweigh the employee's interest in

having an effective opportunity

to challenge damning evidence....

Despite its concern for the effi-

cient discharge of derelict employees,

the Department of Agriculture has

Created considerable procedural

burdens for itself, even in cases

such as these which involve non-

civil service employees....The

government expends considerable

effort to provide a semblence of due

process: notice, hearing, appeal.

It is evident that this system al-

ready occasions considerable govern-

mental inconvenience. The incre-

mental physical burden of present-

ing the accusing witnesses for cross-

examination upon the employee's

timely and good faith request would

neither be crippling nor add a signi-

ficant additional burden....

ct ¢

McNeill v. Butz, supra, 480 F. 2d at 322-

23. Similarly, in this case, there is no

indication that the City's interest out-

weighed Petitioner's interest in being noti-

fied of the case against her and in having

an effective opportunity to be heard and to

challenge the evidence against her. The

City's interest does not excuse it, in

meeting its obligation to afford "fair and

equitable hearings,” from affording the

Petitioner the traditional elements of a

due process hearing.

-.-AS a general rule, for notice to be

adequate, it must apprise

, ' 79

constitutionally

the person, who is to be affected by the

government action, of the charges against him

in such specifics and at such time as to per-

mit meaningful preparation of a response. In

Re Ruffalo, 390 U.S. 544, $50, 88 S. Ct. 1222,

1225-26. ...One such guideline, applicable

here, is that excessively general charges are

insufficient to satisfy due process. In In

Re Gault,supra, for example, the Supreme Court

found a general charge of "delinquency” to be

constitutionally inadequate.

Here, the only notice of the charges

against Petitioner was contained in the letter

of termination from the City Manager to Petit-

ioner. The grounds for her dismissal as set

forth in the termination letter are as follows:

"(1) Not making an effort to use proper dis-

cretion in the City Manager's office. (2) Not

Supporting and cooperating with the City

Manager. (3) Insubordination. (4) Misrepre-

senting facts concerning the City Manager's

decisions. (5) Defying warnings from the

City Manager." To a large extent, these

charges were founded upon information

supplied to the City Manager by other

City emplovees and a newspaper reporter.

The identity of these individuals and the

substance of their allegations relied upon

by the City Manager in discharging Petit-

ioner were not revealed to Petitioner

until the trial before this Court, so that

Petitioner was, in effect, precluded from

marshalling evidence in preparing her case

so as to benefit from the grievance hear-

ing. Therefore, even under the malleable

due process standard, the notice of the

grounds for Petitioner's termination was

inadequate.

The basic rule regarding opportunity

to be heard is that it be presented at "a

meaningful time and in a meaningful manner."

Armstrong v. Manzo,380 U.S. 545, 552 85

$.ct. 1187, 1191, 14 L. BG. 24 62, 66

(1965); Grannis v. Ordean,234 U.S. 385,

34 S. Ct. 779, 58 L.Ed. 1363 (1914). It

is true that in this Petitioner was afforded

an opportunity to appear at the grievance

hearing. The question, however, is whether

during her appearing before the Grievance

Committee, she was given an opportunity to

present a case in her defense. The recorec

revealed that Petitioner and her attorney were

the first to be called before the Grievance

Committee, but it is silent as to how this

phase of the hearing was conducted. One thing

is clear however. Any case that Petitioner was

able to present was made with no more informa-

tion as to the case against her than was pro-

vided by the generally worded grounds given for

her dismissal in the July 28, 1978 letter of

termination. Petitioner did not even have the

benefit of such notice as she would have received

from hearing the presentation of the City Mana-

ger's case against her, since she and her

attorney were excluded from the hearing room

during that time. Such insufficient notice of

the specific charges against Petitioner deprived

her of an adequate opportunity to be

heard. What the Pennsylvania Court said

in Mellon v. Travelers Insurance Company

is apposite here.

Notice and the opportunity to be

heard are essential elements of a

fair hearing....Litigants require

not simply notice that a hearing

is to occur, but also notice of the

issues to be litigated. The princi-

pal function of pleadings, even in

their shortened, modern form, is to

focus the litigants' attention on

issues so that they may marshal

their evidence and prepare their

arguments. Thus notice is inte-

grally linked to the right to be

heard, for without notice, litigants

are ill-equipped to assert their

rights and defend against claims.

Here, appellants were denied their

right to notice, and so their right

to be heard....Consequently, they

never marshalled such evidence nor

prepared such arguments as they might

have had against the claims.

The Fourth Circuit Court of Appeals

has given specific guidance on the extent

of the right of confrontation in a case

involving termination of public employment.

McNeill v. Butz, supra, Satterfield v.

Edenton-Chowan Board of Education, supra,

on fact findings, the evidence used to

prove the Government's case must be

Gisclosed to the individual so that he

has an opportunity to show that it is

untrue. While this is important in

the case of documentary evidence, it

is even more important where the

evidence consists of the testimony of

individuals whose memory might be faulty

or who, in fact, might be perjurers or

persons motivated by malice, vindictive-

ness, intolerance, prejudice, or

jealousy.

It is the conclusion of this Court that the

City's procedures which failed to provide

Petitioner adequate notice and effective oppor-

tunity to be heard and an opportunity to con-

front her accusers did not afford "fair and

equitable treatment" of her grievance or "fair

and impartial hearings” or "(f)air treatment at

all times" as promised in the City of Florence

Employee Handbook.

Besides neglecting to follow its own rules

regarding the grievance procedure, the City

of Florence failed to comply with its regula-

tions relating to disciplinary action as set

forth in Section 10.2 of the Employee Handbook.

Section 10.2 has been quoted at length in an

earlier section of this Order.

...The Defendants might argue that

since Petitioner had oral notice and

clearly understood her position, non-

compliance with Section 10.2 was harmless.

Such an argument would be wide of the mark,

since the Accardi-Service-Vitarelli

doctrine demands "scrupulous" observance

of even gratuitously promulgated rules

and regulations. See e.g., Vitarelli v.

Seaton, supra, 359 U.S. at 540, 79 S.Ct.

at 973.

It is the conclusion of this Court

that the City of Florence has failed to

comply with its own regulations and pro-

cedures as set forth in Section 10.2 and

10.3 of the City of Florence Employee Hand-

book. Therefore, Petitioner's dismissal

was “illegal and of no effect." Vitarelli

v. Seaton, supra, 359 U.S. at 544, 79 S.

Ct. at 975.

The direct involvement and prosecutorial

participation of the City Manager in the fla-

Srant violations of Petitioner's due process

rights makes the City Manager's actions as

judge reviewing the decision of the Grievance

Committee constitutionally impermissible. His

concurrence in the exclusion of Petitioner from

the hearing when he and the witnesses he pre-

sented and examined were testifying against

her evidences a fatally biased mind-set. The

"rule of necessity" doctrine is not applicable

under the circumstances in this case where the

proceedings involve formal grievance procedures,

quasi-judicial in nature, established pursuant

to statutory enabling legislation mandating

"an equitable...hearing”.

The dissenting opinion in Hortonville

Dist. v. Hortonville Ed. Assoc., 426 U.S. 482

(1976), notes that "It is now well established

that 'a biased decision-maker (is) constitut-

ionally unacceptable (and) "our system of law

has always endeavored to prevent even

the probability of unfairness."'" With-

row v. Larkin, 421 U.S. 35, 47, quoting

In Re Murchison, 349 U.S. 133. "In order

to ascertain whether there is a consti-

tutionally unacceptable danger of parti-

ality, both the nature of the particular

decision and the interest of the decision-

maker in its outcome must be examined.”

The Court in Withrow makes the point

that is specifically applicable to the

City Manager as adjudicator in the instant

case: "Not only is a biased decision-

maker constitutionally unacceptable but

‘our system of law has always endeavored to

prevent even the probability of unfairness.’

(Citations) In pursuit of this end, various

situations have been identified in which

experience teaches that the probability

of actual bias on the part of the judge

or decisionmaker is too high to be consti-

tutionally tolerable. Among these cases

are those in which... (the adjudicator) has

been the target of peisonal abuse or criti-

cism from the party before hin. In his

termination letter the City Manager charged

that Petitioner was “insubordinate", "defied

Ais warnings", misrepresented facts about his

decisions", and did not properly support or

cooperate with him.

Phillips v. Board of Fire & Police Comm'rs

of E. St. Louis, 24 Ill, App. 3d 242, 320, N.E.

24 355, in holding that there can never be a

merger of the prosecutorial and judicial func-

tion in an administrative body exercising quasi-

judicial functions, cited the following

authority:

"In Gardner v. Repasky, 434 Pa. 126,

252 A. 4 (1 , & case involv-

ing the discharge of a policeman, the

Supreme Court of Pennsylvania said at

page 706: 'We held in Schlesinger

Appeal, 404 Pa. 584, 172 A.dd #35 (1961),

chet where a prosecutor and judge were

combined in one body, the accused was

denied a fair hearing to which due pro-

cess of law entitled him.'"

"See also Donnon v. Civil Service Commiss-

ion, 3 Pa. : ’ . ‘

gist of all this authority is that

never, ever, can there be a merger of

the prosecutorial and judicial functions

in a court or in an administrative body

exercising quasi-judicial func-

tions.”

CONCLUSION

The Vitarelli doctrine is available

as an alternate method of protecting

employees' rights (due process, employ-

ment, or contractual), given substantial

"connections" with enabling acts, ordi-

nances, official handbooks and formal

grievance procedures, even where, as

determined by the United States Supreme

Court, an employee's expectancy of employ-

ment under State law does not amount to

a “property” right.

An employee, such as the Petitioner

in this case, is not without redress under

the United States Constitution, where her

due process rights as in this case have

been flagrantly violated.

It should be noted that Petitioner

brought a Declaratory Judgment action in

State Court; the lower Court found

judgment for Petitioner and granted

relief; the Supreme Court reversed

and, in effect, denied Petitioner any

relief under State law.

It is submitted that Petitioner

(1) had a property interest entitled

to constitutional protection; (2)

that Respondent violated its own self-

imposed procedural requirements; (3)

that Respondent violated Petitioner's

due process rights under the South

Carolina and United States Constitu-

tion and, therefore, its actions (the

City Manager's decision) is a nullity

and void ab initio, without having to

reach the issue of the inherent or

statutory authority of the City Manager

to dismiss for the "good of the muni-

cipality” (without cause).

For the foregoing reasons this Honorable

Court should grant Petitioner's Petition for

a Writ of Certiorari.

Respectfully submitted,

oe |

RICHARD G. DUSENBURY

Attorney for Petitioner

APPENDIX A

THE STATE OF SOUTH CAROLINA

In the Supreme Court

Miziam Lh. DOW, .ccccceces Respondent-Appellant,

The City of Florence,...Appellant-Respondent.

Appeal from Florence County

George F. Coleman, Judge

Opinion No. 21930

Filed May 25, 1983

REVERSED

James R. Bell, of

respondent.

Richard G. Dusenbury, of Florence, for

respondent-appellant.

LITTLEJOHN, A.J.: This is an appeal

from a declaratory judgment action brought

under the provisions of §15-53-10 of the

Code of Laws of South Carolina (1976), as

amended. Plaintiff-Respondent, Miriam L.

Dew (Dew) alleged that her employment had

been wrongfully terminated by the Florence

City Manager, Thomas W. Edwards (City

Manager). The trial court, sitting with-

out a jury, ruled in favor of Dew. The

city appeals; we reverse.

Dew began work with the City in

January of 1975. She was promoted to

administrative assistant to the City Mana-

ger in July of 1977. The current City

Manager was appointed a few months later.

Dew's duties as administrative

assistant to the City Manager initially

included the dual function of personnel

director and administrative assistant.

In January of 1978, the City hired a

personnel manager, leaving Dew as adminis-

trative assistant only. The newly appointed

personnel manager later assumed the title

of Personnel Director and began reporting

directly to the City Manager rather than to

Dew. It was at this point that communica-

tions between Dew and the City Manager began

to break down.

On May 26, 1978, new pay plan was

adopted by the City. In accordance with this

new plan Dew, who anticipated a salary in-

crease, found her position reduced from a

"Grade 16" to a "Grade 13". Her salary re-

mained the same. The position of Personnel

Director was elevated from a "Grade 16" to

a "Grade 17" with a thirty-five per cent

(35%) salary increase. According to Dew's

testimony, she was so “frustrated” and

"demoralized" by what she considered to be a

demotion that she had to leave work early

that day.

The following Monday, both the City

Manager and Dew expressed their doubts as

to whether she could continue as his assis-

tant. Subsequent events lead the City

Manager to prepare a letter of "severe

warning” on May 31 to Dew indicating that

her actions over the last several days would

not be tolerated and if she persisted upon

her present course she would be terminated.

After some discussion of the letter, the

City Manager apologized and destroyed the

warning letter and its carbon copy believ-

ing the problem had been resolved.

Between May 31, and July 18, 1978, at

least two high-level city employees inform-

ead the City Manager that they had overheard

Dew making comments critical of the new pay

plan and of the City Manager in public areas

in the presence of other employees. Also,

during this time a newspaper reporter for

the Florence EXAMINER approached the City

Manager with “pencil and paper in hand”

seeking a story about the new pay plan.

She stated she had heard it was unfair to

employees. At the meeting between the City

Manager and the reporter, the reporter dis-

closed that the source of her information

about the new pay plan was Dew.

On July 18, 1978, the City Manager

called Dew to his office to discuss “some

concerns he hac.” At this meeting, the

Dear Miss Dew:

Effective immediately, you are

hereby dismissed from the employment

of the City of Florence. This dis-

missal follows your lack of effort to

use proper discretion as an employee

€ the City Manager's Office, lack of

support of and cooperation with the

City Manager, insubordination, misre-

presentation of facts concerning

decisions of the City Manager, defiance

of repeated warnings from the City

Manager that your actions are unaccept-

able. These items were discussed with

you on May 29, 1978, in an attempt to

resolve this situation and again dis-

@ussed with you on May 30, 1978, and

May 31, 1978. Subsequently a review of

the matter was conducted with you on

July 18, 1978. Since July 18, 1978, I

have carefully deliberated the matter

and regretfully reached a decision of

your dismissal since repeated attempts

to gain your cooperation have failed

and your defiance has continued.

Dew, in the court action before us,

alleged that she would recover damages in

the form of lost wages on two theories:

1. The procedures by which she was

terminated did not afford her procedural

due process; and

2. The procedures affecting her dis-

charge did not comply with termination

rules and regulations promulgated by the

City.

By her first contention, Dew asserts

the City denied her procedural due process

“by failing to afford her adequate notice

of the charges against her or a hearing

comporting with the minimum requirements

guaranteed by the Fourteenth Amendment to

tne United States.

Section 8-17-110 et. seq. of the Code

of Laws of South Carolina (1976), as

amended, establishes guidelines for em-

ployee grievance procedures for counties

and municipalities which elect to utilize

such procedures. The act is designed to

establish uniform procedures for the resolu-

tion of grievances of employees arising out

of their employment. Pursuant to these code

sections, the City of Florence promulgated

rules and published a "City of Florence

Employee Handbook". The handbook provides

for the appointment of a Grievance Committee

to hear complaints of employees who allege

wrongful termination.

Dew appealed her termination to this

committee. By a vote of five to four, it

recommended that she be reinstated. The

committee's action is not final and the City

Manager is designated as the reviewing

authority saline both the statute and the

handbook. As reviewing authority, he over-

ruled the Grievance Committee. In so doing,

he exercised an authority given to him by

85-13-90 of the state law, which reads as

follows:

Responsibilities of manager.

The manager shall be the chief

executive officer and head of the

administrative branch of the munici-

pal government. He shall be responsi-

ble to the municipal council for the

proper administration of all affairs

of the municipality and to that end,

subject to the provisions of this

chapter, he shall:

(1) Appoint and, when necessary

for the good of the municipality, re-

move any appointive officer or

employee of the municipality and fix

the salaries of such officers and

employees, except as otherwise pro-

vided in this chapter or pyohibited

by law and except as he may authorize

the head of a department or office to

appoint and remove subordinates in

such department or office; (Emphasis

added. )

The damages awarded Dew were to com-

pensate for lost wages for the City's

failure to comply with its termination pro-

cedures as established in its handbook. The

decision was based on: (1) The City Manager's

failure to strictly comply with the "Warnings"

provision of the handbook; (2) A finding that

Dew received inadequate notice of the speci-

fic charges against her; and (3) A finding

that Dew was denied the right to appear while

testimony was presented against her and the

right to cross-examine the witnesses.

Her contention would have substantial

appeal except for the fact that she was vic-

torious before the committee as is shown by

its decision in her favor. Her position is

analogous to that of an accused person who

is found not guilty but who, nevertheless,

appeals, alleging the trial wasn't fair.

While the committee might have given her a

greater majority of the votes, it could not

have given her a more favorable result. In.

view of the several conferences referred to

above and the termination letter, it can

hardly be argued that she was unaware of the

true cause of her dismissal.

In addition to the authority given

to the City Manager under the Code section

quoted above, the handbook itself provides

as follows:

The Grievance Committee, after

having heard the testimony and after

having evaluated all the facts at

hand, shall vote to recommend what-

ever corrective measures are deemed

advisable.

The Committee shall, within

twenty days after hearing an appeal,

make its findings and decision and

report such findings and decision to

the City Manager.

If the City Manager approves,

the decision of the Grievance —s. 7

mittee shall be final, and copies of

“the decision’ shall be tramsmitted by

the Committee pe the employee, to the

City Manager and to the particular

Division Manager involved. If

«29

however, the City Manager rejects the

decision of the Committee, he shall

make his own decision and that decision

shall be final, with copies transmitted

to the employee and the employing agency.

(Emphasis added. )

It is obvious that the ultimate authority

to discharge, as indicated in the handbook,

and specifically delegated in the statute, is

in the City Manager. Under the facts and

circumstances of this case, failure of the

City Manager to technically comply with the

handbook regulation is not an irregularity

effecting the ultimate result. The relation-

ship between the City Manager and his adminis-

trative assistant is necessarily a close one

requiring the ultimate in confidence. From

a review of the whole of the record, it is

obvious that the discharge was a referred to\.

in the statute". . . necessary for the good -

of the municipality, .. ."

Having disposed of the City's appeal,

we now reach the appeal of Dew, whereby she

argues as additional sustaining grounds

that the trial court erred in finding that

she had no "property" interest in her con-

tinued employment with the City. This

contention is without merit.

Both the constitution of the United

States and of South Carolina require notice

and a hearing comporting with due process

if Dew could show that she had a "property"

interest in continued employment. See,

e.g. Board of Regents v. Roth, 408 U.S.

564, 92.S$.Ct. 2701, 33 L.Ed.2d. 548 (1972);

and Perry v. Sinderman, 408 U.S. 593, 92

S.Ct. 2694, 33 L.4.24. $79 (1972).

Where a “property” interest is

alleged to have been créuted, the suffi-

ciency of the claim of entitlement is

determined by reference to state law.

Bishop v. Wood, 426 U.S. 341, 344, 96

S.Ct. 2074, 48 L.Edw2d. 684 (1976).

Section 4.7 of the City of Florence

Employee Handbook entitled "Job Tenure

Not Established" states, "Nothing in

this title shall be deemed to confer any

vested right in employment upon any City

employee."

Section 9.4 of the Handbook, entitled

“Dismissal” states in part, "Any employee

may be dismissed or suspended by... the

City Manager."

South Carolina Code 85-13-90, quoted

above, allows the City Manager in a council-

manager form of government to dismiss any

City employee "for the good of the minici-

pality”.

Nothing in the record indicates Dew was

under contract with the City. In light of

unambiguous language of the Employee Hand-

book and §5-13-90, it is clear that Dew was

an "at will" employee with no vested "pro-

péerty" interest. in continuedfemploynen® with

a Pw. “

the City. ; " ~~

’

Cf£., Rhodes v. Smith, 273 S.C. 43,

254 S.E.2d. 49 (1979): Bane v. City of

Columbia, 480 F.Supp. 34 (D.S.C. 1979); and

Bunting v. City of Columbia, 639 F.2d. 1090

(1981).

REVERSED.

LEWIS, C.J., NESS, GREGORY and

HARWELL, JJ., concur.

APPENDIX B

Order of Judge George G. Coleman, dated

May 23, 1980. (Section order addressed to

question of Petitioner's "Liber«v" interest

is omitted. )

Order. The Plaintiff, formerly employed

by the City of Florence as <=he Administrative

Assistant to the City Manager, claims in this

declaratory judgment action (Section 15-53-10,

et seq. of the 1976 South Carolina Code of

Laws) that she was dischargec by the City in

violation of her rights under the due process

clauses of the Fourteenth Amendment of the

United States Constitution and Article I,

Section 3 of the South Carclina Constitution

and under the rules and recquilations govern-

ing the termination of City amplovees con-

tained in the City of Florence Employee Hand-

book. She seeks a judgment declaring that her

dismissal was illegal,” damages for lost salary

and her costs incurred in bringing this

action. Initially, the Plaintiff scught re-

instatement to her employment with the City

of Florence, but she has since waived

this remedy. The Defendants have denied

that the Plaintift's termination was

improper and that the City of Florence

failed to comply with its rules and

regulations governing the removal of its

employees. I find that the Plaintiff

was not deprived of a "liberty"interest

or possessed of a “property” interest

which would entitle her to invoke the

constitutional safeguards of due process.

I find, however, that the Plaintiff's

termination was wrongful in that the

City of Florence failed to comply with

its rules and regulations governing the

removal of the Plaintiff and, therefore,

the Plaintiff must prevail.

Facts. The Plaintiff, Miriam L.

Dew, was employed by the City of Florence

for approximately.three and a half years.

She was hired in January, 1975 as a staff

assistant to the Urban Development Divi-

sion Director, Clifford Rudd. She became

attitude changed and she exhibited resent-

ment toward the personnel department and its

director, Mrs. Stankus. Whatever attitude

change the Plaintiff may have experienced

during this period did not affect the per-

formance of her duties as evidenced by the

Plaintiff's regular employee performance

evaluation conducted by Mr. Edwards on

February 14, 1978. The lowest rating received

by the Plaintiff on her evaluation report,

which rated her performance in the categories

of knowledge, dependability, quantity of

work output and cooperation with other em-

ployees, was “above average."

The first significant di

between the Plaintiff and Mc. Edwards arose

when a new pay plan was released on Friday,

May 26, 1978. The Plaintiff testified that

the City Manager had previously indicated to

her that she was being underpaid for the job

she was performing and when the new pay plan

was developed he would see that her position

was reclassified and her salary "got

up to where it ought to be." The

Plaintiff, who then anticipated a

salary increase, discovered upon the

publication of the new pay plan that

her salary remained the same and her

position was reduced from a Grade 16

to a Grade 13. Under the new pay plan,

Mrs. Stankus received a thirty-five

per cent (35%) salary increase and

her position as personnel director

was elevated from a Grade 16 to a

Grade 17. According to the Plaintiff's

testimony, she was so "frustrated"

and "demoralized" by what she con-

sidered to be a demotion that she had

to leave work early that day.

The following Monday, May 29, 1978,

the Plaintiff "buzzed" the City Manager

and requested to speak with him about

her position and the reason it was be-

ing downgraded. [It is uncertain what

comments the Plaintiff made in expressing

her frustration and disappointment, but it

is clear that they caused the City Manager

sufficient concern so that he questioned

her ability as his administrative assistant

to continue to support him and his policies.

The Plaintiff expressed to the City Manager

her own doubts whether she could continue as

the City Manager's administrative assistant

and stated that if she could not, she would

resign. Mr. Edwards instructed the Plaintiff

to think about it over night and inform him

of her decision the next day. The following

day, Tuesday, May 30, 1978, the Plaintiff

advised the City Manager that she could con-

tinue as his administrative assistant. The

City Manager testified that he did not con-

template terminating the Plaintiff over this

incident and that he believed on Tuesday,

May 30, 1978, their differences had been

resolved. No formal reprimand was issued.

The next day, Wednesday, May 31, 1978, the

City Manager received a note from the

100

Plaintiff which was attached to a

bill for membership in the IMCA

(International City Manager's Associ-

ation). The note stated: "I don't

see any point in spending money for

this -- at least where I'm concerned.

I imagine Dorene (Stankus, the per-

sonnel director) should have this."

The City Manager regarded the note as

a further expression by the Plaintiff

of her resentment and displeasure

with the new pay plan. The City

Manager prepared a letter of "severe

warning” to the Plaintiff indicating

that the Plaintiff's actions of the

last several days would not be tole-

rated and if she persisted upon her

present course, she would have to be

terminated. The same day, Wednesday,

May 31, 1978, the Plaintiff was called

to the City Manager's office where

she was handed her note and the City

Manager's letter and Mr. Edwards

101

orally reviewed the events and attitude of

the Plaintiff which precipitated the letter

of warning. The Plaintiff responded that

the City Manager had misinterpreted the note

and explained she had declined the IMCA

membership since Mrs. Stankus’' position was

more important than hers and there was a

policy in effect that year to cut back on

unnecessary dues, memberships and other

extra expenses in the City Manager's office.

After some discussion, the City Manager

apologized and destroyed the letter of warn-

ing and its carbon copy, again believing

that the problem had been resolved.

Between May 31, 1978, and July 18, 1978,

at least two City employees informed the

City Manager that they had overheard the

Plaintiff making comments critical of the new

pay plan and the City Manager in open, public

areas in the presence of other employees.

Also during this time a newspaper reporter

for the Florence Examiner, Jeannie Griffin,

approached the City Manager with "pencil and

102

paper in hand" seeking a story about

the new pay plan, which she stated

she had heard was unfair to employees.

At the meeting between the City Manager

and Ms. Griffin, Ms. Griffin disclosed

to the City Manager, after he had

guessed, that the source of her infor-

mation about the pay plan was the Plain-

tiff. On July 18, 1978, the City

Manager called the Plaintiff to his

office to discuss "some concerns he

had." At this meeting, the City Manager

informed the Plaintiff that he had heard

that she was publicly criticizing the

pay plan and emphasized that her comments

could have an adverse impact on its

success. The City Manager related to

the Plaintiff his feeling that the con-

fidential relationship between them was

eroding so that he could no longer con-

fide in her. He told the Plaintiff that

this was the last time he would tolerate

her undermining of the City Manager's

103

office and misrepresentation of fact about

the new pay plan. The Plaintiff claimed,

as she did throughout the trial before this

Court, that she had not discussed the pay

plan with anyone other than close personal

friends and then only about how the plan

affected her position. The Plaintiff asked

the City Manager if she was terminated, to

which the City Manager replied "no, but that

she would be" if she continued as she had

been. As with the other meetings between

the Plaintiff and the City Manager, no

written summaries of their discussion were

made or retained.

Approximately a week later, on July 25

or 26, 1978, the Plaintiff and Jeannie

Griffin had lunch together. At the time,

Ms. Griffin was between jobs, starting in a

week at another newspaper, the Florence

Morning News, where she hoped to report city

and county news as she had at the Examiner.

Although there is some conflict in the record

as to what comments were made by the Plaintiff

104

to Ms. Griffin during lunch, Ms. Griffin

reported to the City Manager, "out of

her concern for the City," that the Plain-

tiff had criticized the City organization

and had made statements that the City

Manager was "unsuitable" for his position

and had been unfair to her. That night

on July 25, 1978, the City Manager de-

cided to terminate the Plaintiff.

On July 26, 1978, the City Manager

informed the Plaintiff of his decision

to discharge her and offered her the

Opportunity to resign. She requested

that she be allowed to consider her

decision over night and on the follow-

ing day, July 27, 1978, the Plaintiff

declined to resign. The Plaintiff asked

that her termination not be made effec-

tive until Friday, July 28, 1978, so

that she could complete a project for

the City upon which she had been working

for some time. On July 28, 1978, the

Plaintiff was terminated and given the

105

following letter of termination:

"Dear Miss Dew:

Effective immediately you are

hereby dismissed from the employment

of the City of Florence. The dis-

missal follows your lack of effort to

use proper discretion as an employee

of the City Manager's Office, lack of

support of and cooperation with the

City Manager, insubordination, misre-

presentation of facts concerning de-

cisions of the City Manager, defiance

of repeated warnings from the City

Manager that your actions are unaccept-

able. These items were discussed with

you on May 29, 1978, in an attempt to

resolve this situation and again dis-

cussed with you on May 20, 1978, and

May 31, 1978. Subsequently a review

of the matter was conducted with you

on July 18, 1978. Since July 18, 1978,

I have carefully deliberated the matter

and regretfully reached a decision of

your dismissal since repeated attempts

to gain your cooperation have failed

and your defiance has continued.

At the time of the Plaintiff's dismissal,

the City personnel policies were contained in

the "City of Florence Employee Handbook”.

The "City of Florence Employee Handbook” pro-

vides for an employee grievance procedure,

which was adopted under the authority of

Sections 8-17-110 et seq. of the 1976 South

Carolina Code of Lawd. The sections of the

Handbook concerning the employee grievance

106

procedure, as well as other sections

relevant to this action, are quoted

at some length later in this Order.

Following her dismissal, the

Plaintiff filed a timely grievance.

Attached to her Petition was a legal

memorandum indicating thet the Plain-

tiff would be represented by counsel

and that she wanted an opportunity

to confront and cross-examine the

witnesses against her. The Grievance

Committee's standard procedure did

not allow confrontation and cross-

examination of witnesses, so the

Plaintiff's request was denied. At

the grievance hearing on August 9,

1978, the Plaintiff and her attorney

were the first to appear before the

Grievance Committee. The Plaintiff

was required to present her case

with no more notice and specification

of the charges against her than was

supplied by the July 28, 1978 letter

107

Of termination. After presenting her case,

the Plaintiff and her attorney were instructe:

to leave the hearing room. The City Manager

then presented his case in Support of the

Plaintiff's termination Dy presenting and

examining witnesses and by submitting to the

Committee a letter from Jeannie Griffin

reporting comments allegedly made by the

Plaintiff concerning the Pay plan and City

Manager. After the City Maraver concluded

the presentation of his case, the Plaintiff

and her attorney were recalled to the hear-

ing room to answer questions from the

Committee members. At no time before or

during the grievance hearing was the Plaintiff

or her attorney informed of the identity

of the witnesses against her or the substance

Of their allegations relied upon by the City

Manager in discharging the Plaintife.

The Grievance Committee voted 5 to 4

to reinstate the Plaintiff. The City Manager

rejected the Grievance Committee's recom-

mendation of reinstatement and, by letter

108

dated August 29, 1978, informed the

Plaintiff that her termination would

"stand."

The Plaintiff's challenge to

the Defendant's action is two pronged.

She contends that her discharge’ by

the Defendants was unlawful in that:

(1) the procedures by which she was

terminated did not afford her proce-

dural due process, and (2) the pro-

cedures effecting her discharge did

not comply with termination rules and

regulations promulgated by the City

of Florence.

By her first contention, she

Plaintiff asserts that the City of

process by failing to afford her

the minimum requirements of due

process guaranteed by the Fourteenth

Amendment of the United States Con-

stitution and Article I, Section 3

109

of the South Carolina Constitution. But,

for constitutional procedural safeguards to

apply in a case such as this, the Plaintiff

must show the City's decision to terminate

her deprived her of a "liberty" or “property”

interest encompassed within the protections

of due process. See, Board of Regents v.

Roth, 408 U.S. 564, Perry v. Sindermann,

408 U.S. 593,599. Therefore, while the

Plaintiff's attack upon the Defendants'

actions in terminating her employment is two

pronged, it presents four critical issues.

These issues are:

(1) Was the Plaintiff deprived, by

the City of Florence, of an

interest in “liberty" which is

protected by the Fourteenth

Amendment of the United States

Constitution and Article I,

Section 3 of the South Carolina

Constitution?

(2) Did the Plaintiff have a "property"

interest in her employment with

the City of Florence which is

protected by the Fourteenth Amend-

ment of the United States Consti-

tution and Article I, Section 3

of the South Carolina Constitution?

(3) If the Plaintiff was deprived of

an interest in "liberty" by the

City and/or possessed a "property"

110

interest in her continuing

employment with the City of

Florence, was she afforded

procedural due process?

(4) Did the City of Florence fail

to comply with its own rules

and regulations which govern

the termination of the Plain-

tift's employment?

These issues are separately discussed

in the sections of this Order which

follow.

(The rtion of Judge Coleman's

Order relating to Petitioner's "Liberty”

interest has been omitted since it was

a completely separate and self-contained

section of the Order that does not relate

to any other portion of the Order or

the questions presented.)

Property Interest. Even if the

Plaintiff was not deprived of an interest

in "liberty" she is entitled to notice

and a hearing comporting with due process

if she can show that she had a "property"

interest in continued employment with

the City of Florence. Board of Regents v.

Roth, supra, 408 U.S. at 576; Perry v.

lll

Sindermann, supra, 408 U.S. at 599.

Just as the concept of "liberty" is

broader than mere freedom from bodily re-

straint, the concept of "property" extends

well beyond actual ownership of real estate,

chattels or money. See e.g., Connell v.

Higginbotham, 403 U.S. 207, 208; Bell v.

Burson, 402 U.S. 535; Goldberg v. Kelly, 397

U.S. 254. In the two companion cases of

Board of Regents v. Roth and Perry v. Sinder-

mann, the Supreme Court gave some definition

to the term "property" in the context of

public employment. Roth is particularly

helpful in identifying the parameters of due

process "property." In that case, the

Supreme Court said:

To have a property interest in a

benefit, a person clearly must have

more than an abstract need or desire

for it. He must, instead, have a

legitimate claim of entitlement to

it. It is a purpose of the ancient

institution of property to protect

those claims upon which people rely

in their daily lives, reliance that

must not be arbitrarily undermined.

Board of Regents v. Roth, supra, 408 U.S. at

577. Also in Roth the Supreme Court cited

112

several cases from which it said

"(clertain attributes of 'property'

interests protected by procedural

due process emerge." Board of Regents

vy. Roth, supra, 408 U.S. at 577. These

cases help flesh out the definition

of due process "oroperty." The Court

summarized the "sroperty” interest

involved in these cases as follows:

Thus, the Court has held that

a person receiving welfare

benefits under statutory and

administrative standards defin-

ing eligibility for them has an

interest in continued receipt

o£ those benefits that is safe-

guarded by procedural due process.

,. =

Goldberg v. Kelly, 397 U.S. 254.

See Fleming v. Nestor, 363 U.S.

603, 611. Similarly, in the area

of public employment, the Court

has held that a public college

professor dismissed from an

office held under tenure provi-

sions, Slochower v. Board of

Education, 350 U.S. 551, and

college professors and staff

members dismissed g@uring the terms

of their contracts, Wieman v.

Updegrafé, 344 U.S. 183, have

interests in continued employment

that are safeguarded by due pro-

cess. Only last year, the Court

held that this principle "“pro-

scribing summary dismissal from

public employment without hearing

113

or inguiry required by due process"

also applied to a teacher recently

hired without tenure or a formal con-

tract, but nonetheless with a clearly

implied promise of continued employ-

ment. Connell v. Higginbotham, 403

U.S. 207, 208.

15. Goldsmith v. United States

Board of Tax Appeals, 270 U.S.

117, is a related case. There, the

petitioner was a lawyer who had

been refused admission to practice

before the Board of Tax Appeals.

The Board had "published rules for

admission of persons entitled to

practice before it, by which attor-

neys at law admitted to courts of

the United States and the states,

and the District of Columbia, as

well as certified public accountants

duly qualified under the law of any

state or the District are made eli-

gible. .. . The rules further pro-

vide that the Board may in its dis-

cretion deny admission to any appli-

Cant, or suspend or disbar any person

after admission." Id., at 119, 46

S$.Ct., at 216. The Board denied

admission to the petitioner under its

discretionary power, without a prior

hearing and a statement of the

reasons for the denial. Although

this Court disposed of the case on

other grounds, it stated, in an

Opinion by Mr. Chief Justice Taft,

that the existence of the Board's

eligibility rules gave the peti-

tioner an interest and claim to

practice before the Board to which

procedural due process requirements

applied. It said that the Board's

discretionary power "must be con-

strued to mean the exercise of a

discretion to be exercised after fair

investigation, with such a notice,

114

hearing and opportunity to

answer for the applicant as

would constitute due process."

Sao ee bas, 46 §.Ct., at 21/.

Board of Regents v. Roth, supra, 408

U.S. at 576-77.

A due process "property" interest

in employment can be created by some-

thing less formal than a state statute

or written contract. In Roth, the

Supreme Court made this plain, stating

that "property" interests did not have

to be founded upon formal contractual

or tenure rights, and, instead could be

grounded in "rules of understandings

that secure certain benefits and that

support claims of entitlement to those

benefits." Board of Regents v. Roth,

supra, 408 U.S. at 577. This portion

was further refined in Perry v. Sinder-

mann where the Court emphasized that:

A person's interest in a benefit

is a "property" interest for due

process purposes if there are

such rules or mutually explicit

understandings that support his

claim of entitlement to the bene-

fit and that he may invoke at a

115

hearing. .. . {A])bsence of ... an

explicit contractual [tenure] provi-

sion may not always foreclose the

possibility that a teacher has a

"property" interest in re-employment.

For example, the law of contracts in

most, if not all, jurisdictions long

has employed a process by which agree-

ments, though not formalized in writing,

may be "implied." 3A. Corbin on

Contracts §§ 561-572 A (1960). Explicit

contractual provisions may be supple-

mented by other agreements implied from

"the promisor's words and conduct in the

light of the surrounding circumstances.”

Id., at § 562. And, "(t]he meaning of

[the promisor's words and acts is found

by relating them to the usage of the

past. Ibid. A teacher like the

respondent, who has held his position

for a number of years, might be able

to show from the circumstances of this

service -- and from other relevant

facts -- that he has a legitimate claim

of entitlement to job tenure. Just as

this Court has found there to be a

"common law of a particular industry

or of a particular plant” that may

aupplement 3 collective-bargaining

agreement .. ., so there may be an

unwritten "common law" in a particula:

university that certain employees shall

have the equivalent of tenure...

We disagree with the Court of Appeals

insofar as it held that a mere subjec-

tive “expectancy” is protected by pro-

cedural due process, but we agree that

the respondent must be given an oppor-

tunity to prove the legitimacy of his

claim of such entitlement in light of

"the policies and practices of the

institution."

Perry v. Sindermann, supra, 408 U.S. at

601-603. Thus, courts have held that

116

"property" interests may be created

by statute, implied contract, ordi-

nance, employee nandbooks, personnel

rules and regulations or be implicit

in the overall workings of particu-

lar government employer. See ¢@-.¢.-,

Paige v. Harris, 584 F. 24 178

(7th Cir. 1978); Ventetuolo v. Burke,

506 F. 2a 476 (lst Cir. 1979); Young

v. Brashears, 560 F. 24 1337 (7th

Cir. 1977); Thomas v. Ward, 529 F. 2d

916 (4th Cir. 1975); Kelly v. Action

for Boston Community Development, inc.,

419 F. Supp. 51l

Gerrin v. Hickey, 464 F. Supp. 276

(D. Ark. 1979); Webster v. Redmond,

443 F. Supp. 670 (D. Ill. 1977);

Gilbreath v. East Arkansas Planning

and Development District, inc., 471

F. Supp. 912 (D. Ark. 1979); Hickey v.

New Castle County of State of Delaware,

428 F. Supp. 606 (D. Del. 1977);

i1l7

Morris v. City of Kokomo, 381 N.E. 2d 510

(Ind. App. 1978); Lynch v. Gontarg, 386 A.

2d 184 (R.I. 1978); Gausert v. Meeks, 384

N.E. 2d 1140 (Ind. App. 1979).

However, a "property" interest is

alleged to have been created, the sufficiency

of the claim of entitlement must be deter-

mined by reference to state law. Bishop v.

Wood, supra, 426 U.S. at 344. The plaintiff

here points to the County and Municipal

Employees Grievance Procedure Act (herein-

after referred to as the Act), Sections

8-17-110 et seq. of the 1976 South Carolina

Code of Laws, and the City of Florence

grievance procedure, established under the

authority of the Act and adopted by the

City of Florence in an ordinance passed on

March 27, 1978, as comprising the “skeleton

and most of the flesh of state law in the

area of employment security" for public

employees. Plaintiff's "Supplementary

Legal Memorandum," August 10, 1979, p. l.

It is her contention that the South Carolina

118

legislature's passage of the Act

"ig an unmistakalbe declaration by

this State that State and Municipal

employees in South Carolina, covered

by the employee grievance procedure

act... ., are protected from dis-

charge except for cause.” Plaintiff's

"Legal Memorandum," August 9, 1979,

pp. 8-9.

It appears well stated that if

the Plaintiff could not be discharged

by the City except for cause, she

possessed a "property" interest in her

employment. See, Hickey v. New Castle

County of State of Delaware, 428 F.

Supp. 606, 609 (D. Del. 1977); Hayes

v. City of Wilmington, 451 F. Supp. 696

(D. Del. 1978); Hawkins v. Board of

Public Education in Wilmington, 468

F. Supp. 201 (D. Del. 1979); Davis v.

Civil Service Commission of the County

of Los Angeles, 155 Cal. Rptr. 650,

93 Cal. App. 3d 417 (1979); Gorham v.

119

City of Kansas City, 225 Kan. 369, 590 P.

2d 1051 (1979); State ex rel. Sweikert v.

Briare, 588 P. 2d 542 (Nevada 1978);

Williams v. County of Los Angeles, 150 Cal.

Rptr. 475, 586 P. 2d 956 (1978); Mendoza v.

Regents of University of California, 144 Cal.

Rptr. 117, 121, 78 Cal. App. 3d 168, 175

(1978); State ex rel. Warzynlak v. Grenchick,

379 N.E. 24 997 (Ind. 1978); Alello v. City

of Wilmington, 426 F. Supp. 1272 (D. Del.

1976); Skelly v. State Personnel Board, 124

Cal. Rptr. 14, 15 Cal. App. 3d 194, 539 P.

2d 774 (1975); Will v. City of Herington,

201 Kan. 627, 443 BP. 2d 667 (1968); Gary

Teachers Union, Local No. 4, A.F.T. V.

School City of Gary, 332 N.E. 2d 256, 259

(Ind. 1975); Roberts v. City of Tucson, 593

P. 24 645 (Ariz. 1979); Whitaker v. Board

of Higher Ed. of City of New York, 461 F.

Supp. 99 (D. N.Y. 1978); Berg v. Claytor,

436 F. Supp. 76 (D.D.C. 1977); City of

Flagstaff v. Superior Court In and For

Coconino County, 569 P 2d 812 (Ariz. 1977);

120

Diluigi v. Mier, 430 F. Supp. 1098

(D. Pa. 1977); Faulkner v. North

Carolina Dept. of Corrections, 428

F. Supp. 100 (D.N.C. 1977); Appeal of

Sergent, 49 Ohio Misc. 36, 3 0.0. 3d

308, 360 N.E. 2d 761 (Ohio Com. Pl.

1976); Kennedy v. Robb, 547 F. 2d 408

(8th Cir. 1976); Olshock v. Village of

Skokie, 541 F. 2d 1254 (7th Cir. 1976);

Sartin v. City of Columbus Utilities

Commission, 421 F. Supp. 393 (D. Miss.

1976); Jacobs v. Kunes, 541 F. 2d 222

(9th Cir. 1976); Thurston v. Dekle,

531 F. 2d 1264 (5th Cir. 1976); Thomas

v. Ward, 529 F. 2d 916 (4th Cir. 1975);

contra, Sumler v. City of Winston-Salem,

448 F. Supp. 519 530 (D.N.C. 1978);