Appendix — Mineer v. Fleming County

la

APPENDIX A

92-5368

UNITED STATES COURT OF APPEALS

FOR THE SIXTH DISTRICT COURT

FILED MAY 4 1993

LEONARD GREEN, Clerk

WILLIAM MINEER

Plaintiff-Appellee

V.

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF KENTUCKY

JEWELL CALL, FLEMING COUNTY JUDGE/

EXECUTIVE; MAGISTRATE GARY C. HARMON:

MAGISTRATE ANDY COLE; MAGISTRATE

RONNIE CARPENTER; MAGISTRATE

WILLIAM THOMPSON; MAGISTRATE

L.C. CORD. in Their Individuai Capacities,

Defendants-Appellants

JEWELL CALL, FLEMING COUNTY JUDGE/

EXECUTIVE; MAGISTRATE GARY C. HARMON;

MAGISTRATE ANDY COLE; MAGISTRATE

RONNIE CARPENTER; MAGISTRATE

WILLIAM THOMPSON; MAGISTRATE L.C. CORD.

in Their Official Capacities, FLEMING COUNTY

FISCAL COURT; FLEMINSBURG, KENTUCKY,

Defendants.

2a

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situations. Please see Rule 24 before citing in a proceed-

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3a

Before: GUY and RYAN, Circuit Judges; and

CHURCHILL, Senior District Judge.*

JAMES P. CHURCHILL, Senior District Judge,

delivered the opinion of the Court. GUY, circuit judge,

delivered a separate opinion, concurring in part and

dissenting in part, in which RYAN, circuit judge, con-

curred.

William Mineer was employed by Fleming County,

Kentucky, as road supervisor from 1978 until January

8, 1990 when his employment was effectively termi-

nated by actions of the Fleming County Judge/Execu-

tive and/or the Fleming County Fiscal Court.

Mineer commenced this lawsuit in the United States

District Court for the Eastern District of Kentucky for

injunctive relief and damages for constitutional viola-

tions pursuant to 42 U.S.C. § 1983. His complaint also

includes state law claims.

The defendants are Fleming County, the Fleming

County Fiscal Court, Jewell Call as Fleming County

Judge/Executive in his individual and official capaci-

ties, and six named fiscal court magistrates. All of the

magistrates are sued in their official capacities as

members of the fiscal court. All of them except one, John

Sims, are also sued in their individual capacities.

It is Mineer’s position that the term of his employ-

ment was for four years from the second Tuesday of

* Honorable James P. Churchill, United States District Court

for the Eastern District of Michigan, sitting by designation.

4a

January 1988, and that the termination of his employ-

ment without a predeprivation hearing in the middle of

his term denied him procedural due process under the

Fourteenth Amendment. He further asserts that the

actions of the defendants were in retaliation for his

political activity in violation of the First Amendment.!

The plaintiff's state law claims are for violation of

Ky. Rev. Stat. Ann. (“K.RS.”) §§ 179.020 and 179.060.

From their briefs, it appears that the defendants

denied the plaintiff's allegations generally and that the

individual defendants also pleaded the affirmative de-

fense of qualified immunity with respect to the federal

claims.

Following the close of discovery, the defendants

filed a motion for summary judgment as to all claims.

Call and the five magistrates who were sued in their

individual capacities also sought summary judgment on

the qualified immunity issue.

The District Court granted the magistrates’ motion

as to “Plaintiff's claims based on his First Amendment

and State Law claims for wrongtul discharge.” In all]

other respects, the defendants’ motion for summary

judgment was denied.

' The plaintiff also claims that his termination violated the

Fifth Amendment, but he does not explain how the Fifth

Amendment was implicated.

5a

Call and all six magistrates? filed a notice of appeal

in their individual capacities from the order denying

their motion for summary judgment on the issue of

qualified immunity. The individual defendants appeal

denial of the summary judgment motion for qualified

immunity as a matter of right. Mitchell v. Forsyth , 472

U.S. 511 (1985).

The appellants have asked the Court to exercise

pendent appellate jurisdiction with respect to other

state and federal issues. We decline to doso although we

realize that our decision on the qualified immunity

issue will impact other issues.

The Relevant Statutes

Kentucky statutes concerning county road supervi-

sors and county judge/executives are central to the

issues on appeal.

The position of County Road Supervisor is created

by statute, K.R.S. § 179.020.

The statute directs that if the fiscal court does not

provide for a county road engineer, the duties of the

county road engineer shall be performed by a county

road supervisor who shall be employed by the county

* It is not clear why magistrate John Sims filed a notice of

appeal from the order denying qualified immunity. Because

he was not sued in his individual capacity, the defense of

qualified immunity was not available to him.

6a

judge/executive with the consent of the fiscal court. In

order to qualify for the Position as a county road super-

visor, the candidate must meet the following require-

ments:

(a) He has at least three (3) years’ practical road

building experience of a nature satisfactory to ex-

amining authorities selected by the bureau of

highways for the Commonwealth of Kentucky, and

(b) He has passed an examination, either oral or

written, or both, given by the examining authori-

ties, and has received a certificate of qualification

from the authorities.

The statute also provides that the period of em-

ployment for any county road supervisor shall be two (2)

or four (4) years, in the discretion of the fisca] court,

beginning with the second Tuesday in January of an

even-numbered year.

The statute also provides that a county road su-

pervisor “may be removed in the same manner provided

for county road engineers.”

K.R.S. § 179.060, entitled “Removal of engineer —

Filling of Vacancy,” reads in its entirety as follows:

(1) The county judge/executive may remove the

county engineer, appointed under KRS 179.020, at

any time for incompetency, malfeasance or mis-

feasance in office upon written charges after a

hearing of which ten(10) days’ notice shall be given

by serving a copy of the charges upon the county

engineer. The hearing shall be at the courthouse, in

the county seat.

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(2) If upon the hearing the charges are sustained,

the county judge/executive shall remove the county

engineer and immediately notify him by mail of his

removal. The notice shall state specifically the

grounds for removal. The record of the proceedings

shall be filed in the office of the county clerk.

(3) Within ten (10) days after the removal, the

county judge/executive, with the consent of the

fiscal court, shall appoint a county engineer to fill

the vacancy caused by the removal. The person so

appointed shall hold office for the unexpired term or

until a final order of a court of competent jurisdic-

tion determines that the original county engineer

was wrongfully and illegally removed and directs

his reinstatement.

K.R.S. § 67.710 provides that the county judge/

executive shall be the chief executive of the county. The

statute provides that his responsibilities shall include

“exercis[ing] with the approval of the fiscal court the

authority to appoint, supervise, suspend, and remove

county personnel (unless otherwise provided by state

law).”

Facts Concerning Mineer’s Employment

Prior to the second Tuesday of January 1988, Mineer

had completed successive four and two year terms. In

January 1988, the county judge/executive submitted

Mineer’s name for another term, but the nomination

was disapproved by the fiscal court. He stayed on as de

facto county road supervisor until August of 1989 when

County Judge/Executive Owens again submitted

Mineer’s name to the fiscal court.

8a

The minutes of a regular meeting of the fiscal court

held on August 14, 1989 contain the following entry:

Motion by John, seconded by Ernie, to hire Bill

Mineer as Co. Rd. Supervisor for 4 years, retro-

active to 2nd Tues. of 1988, whereby the Court

failed to hire him in Jan. of 1988, and whereas it

was reviewed and brought to the Court’s attention,

and pursuant to K.R.S. 179-020, hereby being re-

solved by the above hiring action.

Magistrate Cord testified that the county attorney

was at the meeting and told the fiscal court that Mineer’s

term would be two years because one court could not

bind the next.

Facts and Allegations Concerning

Termination of Mineer’s Employment

The parties and the District Court all assume that

Mineer lost his employment on January 8, 1990 so we

proceed on the same assumption. The record on appeal

leaves something to be desired concerning Judge Call’s

role in the termination.

Mineer’s complaint contains the general allegation

that he was wrongfully discharged “by the actions of the

defendants berein in their official and individual capac-

ity [sic] on or about the 8th day of January, 1990.”

(emphasis added.)

The appellants’ brief contains three different ver-

sions of the event. One version is that the term of

Mineer’s employment expired as a matter of law on the

second Tuesday of January 1990 because one fiscal]

2

9a

court could not bind the next. Under this version he was

not fired. He just was not rehired. Another version is

that the fiscal court voted to rescind his four year

contract and thereafter Judge Call decided to nominate

his own appointee. The third version espoused in the

brief is that the court decided not to ratify his contract.

The January 8, 1990 minutes of the fiscal court

contain the following reference to Mineer:

Motion by John Sims, second by L.C. Cord, dr.,

to go into Executive Session to discuss personnel.

Vote Unam.

Court came out of Exec. Session

Motion by Bill Thompson, seconded by Andy

Cole, to nullify present Contract with Rd. Supervi-

sor Bill Mineer, (entered into8-14-89 for 4 years), as

this Court doesn’t feel bound by previous Court’s

motion of a Contract past their [sic] term, thereby

creating a vacancy at the end of 1-8-90 workday.

Yes: Ronnie, Garey and L.C.

Nay: John

Motion Carried.

The minutes disclose that “Bill” and “Andy” were at

the meeting, but they apparently did not vote on this

resolution. The motion was treated as carried although

it had the affirmative vote of only three magistrates in

a meeting attended by six magistrates and presided

over by the county judge/executive.

The minutes show that the next item of business

was Judge Call’s recommendation that Bill Gulley fill

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the vacancy on atemporary basis. Lacking support,

Call withdrew the recommendation. The fiscal court

then unanimously accepted Judge Call’s recommenda-

tion that James Watkins be appointed to fill the vacancy

on a temporary basis.

Judge Call has testified that he did not fire Mineer;

he just did not hire him.

Judge Call presided at the meeting.

There is no direct evidence that Judge Call asked

the fiscal court to take any action on January 8, 1990

concerning the county road supervisor position. There is

unrefuted evidence, however, that before Call took of-

fice on January 2, 1990 he intended to appoint someone

other than Mineer and that between January 2, 1990

and January 8, 1990, Call informed Mineer that he

intended to let Mineer go if he could do so.

—¥rom this record, it is clear that if Mineer was

discharged on January 8, 1990 he was discharged by

Judge Call. Whether he was lawfully discharged or not,

his ability to perform his duties was taken from him on

January 8, 1990 with the approval of three magistrates

and with no action to prevent it by the county judge/

executive and the two other magistrates.

The District Court’s Rationale

In ruling in favor of the magistrate defendants’ motion

for summary judgment on Mineer’s First Amendment

and state law claims and in denying the motions for

summary judgment on the Fourth Amendment due

lla

process claims, the District Court relied on Christian v.

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

The Christian court approved a ruling by the dis-

trict court that under Kentucky law, the terms of all

county employees expire automatically at the end of

each executive administration and that it was necessary

to reappoint the county flood administrator. The court

further ruled that, under the circumstances of that case,

the failure to do so constituted a constructive discharge.

The court also ruled that the fiscal court magistrates

were entitled to summary judgment on the First

Amendment claims because the magistrates had no

appointment authority. The court nevertheless reversed

a district court grant ofsummary judgment on Christian’s

Fourteenth Amendment due process claim.

Christian is similar to this case in some respects,

but is distinguishable in others. In Christian, the

plaintiff was a county flood plain administrator whose

appointment and removal was governed by K.R.S. §

67.710 rather than a county road supervisor whose

appointment and removal was governed by K.R.S. §§

179.020 179.060. Upon learning that he would not be

reappointed by a newly elected county judge/executive,

Christian sent a letter to the judge and fiscal court

requesting a hearing, which request was denied. Here,

Mineer never requested a hearing.

There is one other distinction between Christian and this

case on appeal. Here the Court is directly concerned

with qualified immunity only.

12a

The Magistrates’ Claim of Qualified Immunity

The general provisions concerning powers and re-

sponsibilities of county chief executive are set forth in

K.R.S. § 67.710. They apply to the appointment and

removal of county personnel except as otherwise provided

by law. The law with respect to the appointment and

removal of county road supervisors is “otherwise pro-

vided” in K.R.S. §§ 179.020 and 179.060

The powers and authority of county jJudge/execu-

tives and fiscal courts with respect to the appointment

and removal of county road supervisors are spelled out

in Kentucky statutes in a manner relatively free from

ambiguity.

The fiscal court has a limited discretion to determine

the term ofemployment ofa county road supervisor. The

term can be for two years or for four years and must

always expire on the second Tuesday of an even num-

bered year.

The county judge/executive appoints county road

supervisors. The appointmentofa county road supervisor

must have the consent of the fiscal court.

During a county road supervisor’s terms, he can be

removed for cause and only for cause. Cause for removal]

includes incompetency, malfeasance or misfeasance in

office.

Only the county judge/executive has the authority

to remove a county road supervisor. To lawfully remove

a county road supervisor, the county judge/executive

must follow a carefully specified procedure which in-

13a

cludes written charges and a hearing at the courthouse

after ten days’ written notice. K. RS. § 179.060(1).

If, and only if, the charges are sustained at the

hearing, may acounty judge/executive remove the county

road supervisor.

It is a reasonable construction of the statute that

the fiscal court would not be involved in the removal

hearing.®

It is also reasonable to construe § 179.060 concern-

ing the conditional appointment of a successor as ap-

plying to county road supervisors as well as to county

engineers.

Applying the law to the undisputed facts of this

case, the members of the fiscal court did not have the

legal capacity to deprive Mineer of constitutional rights

in connection with his termination.

* An annotation to K.R.S. § 179.060 contains the following

entry:

KRS 179.060 provides, in effect, pursuant to subsection

(2) of this section, that the county judge/executivecan remove

a county road supervisor, without the consent of the fiscal

court. However, it can be said that KRS 67.710(7) amended

KRS 179.060 by implication, and KRS 67.7 10(7) requires the

county judge/executive to exercise his authority to remove

county personnel with the approval of the fiscal court. OAG

84-205.

Since the county judge/executive did not initiate the

removal procedures spelled out by K.R.S. § 179.060 we need

not determine whether the statutory hearing would be con-

ducted by the fiscal court or by the county judge/executive.

l4a

The sole power of removal was vested in the county’s

chief executive office. As a matter of law, it is doubtful

that the fiscal court would have played a role had Judge

Call followed the statute in removing Mineer. Call did

not initiate removal proceedings. The fiscal court had no

authority to condlct a hearing.

We, therefore, conclude that the magistrates’ mo-

tion for summary judgment on qualified immunity should

have been granted with respect to the Fourteenth

Amendment procedural due process claim as well as

with respect to the First Amendment claim.

The County Judge/Executive’s

Claim of Qualified Immunity

As a matter of law, it was County Judge/Executive

Call who had the authority to initiate proceedings to

remove Mineer from his employment. As a matter of

law, the fact that Mineer was effectively fired was Call’s

responsibility.

On the record before the Court there are fact ques-

tions concerning Call’s motives for terminating Mineer’s

employment. Call may have terminated Mineer in re-

taliation for political activity. He may have terminated

him for incompetence. These fact questions, however,

are irrelevant if Call had qualified immunity for his

conduct, and they are likewise irrelevant in resolving

the issue of qualified immunity.

The relevant inquiry focuses on whether a reason-

able official in the defendant’s position could have be-

15a

lieved his conduct did not violate clearly established

statutory or constitutional rights. In determining

whether qualified immunity attaches, the focus is onthe

state of the law as it existed when the defendant took his

challenged action. See, Harlow v. Fitzgerald, 457 U.S.

800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987).

I. Fourteenth Amendment

Procedural Due Process Claim

Mineer’s claim under 42 U.S.C. § 1983 that Judge

Call’s conduct was violative of the Due Process Clause

of the Fourteenth Amendment is dependent upon two

conditions: 1) that he had a property right to continued

employmentand 2)thatits deprivation was without due

process of law.

A. Property Right

For reasons set forth above we conclude that on

January 8, 1990, Mineer had two more years to serve on

a four year term of employment and that his expectation

of continued employment was a property right within

the meaning of the Fourteenth Amendment.

Call raises several arguments to support the propo-

sition that on January 8, 1990, it was not clearly estab-

lished that Mineer’s term did not terminate as a matter

of law on that date.

One argument is based upon an opinion by the state

attorney general. OAG 78-432 supports the general

proposition that a fiscal court may not enter into con-

tracts which extend beyond its own term. The opinion

16a

clearly states, however, that this is not an absolute

principle: “there is one basic exception to this general

principle.... It is that if a particular statute conferring

the power to contract clearly authorizes the fiscal court

to make a contract extending beyond its own term, the

statute would govern ....” OAG 78-432. We find that §

179.020 clearly allows the fiscal court to authorize four

year terms of employment for county road supervisors.

The county attorney’s stated opinion at the August

14, 1989 meeting of the Fiscal Court was based upon

OAG 78-432. There are circumstances in which reliance

on the advice of counsel may support a claim of qualified

immunity. See, e.g., V-1 Oil Co. v. Wyoming, 902 F.2d

1482 (10th Cir. 1990) (“reliance on advice of counsel in

certain circumstances rises to the leve] of extraordinary

circumstances”). In this case, Judge Call cannot rea-

sonably claim that he relied on the county attorney’s

opinion because he was not in office when the county

attorney expressed his opinion nor is there anything in

the record to suggest reliance.

Call’s primary argument is based upon Christian v.

Belcher, wherein another panel of this court, while

affirming the district court’s grant of summary judg-

ment, stated:

Moreover, as noted earlier, the district court ex-

pressly held that under Kentucky law, the terms of

all county employees expire automatically at the

end of each executive administration, and that

‘{a]fter Belcher was elected, [Christian] had to be

reappointed to the job of [FPA].’ Since we have

found no Kentucky authority to the contrary, we

17a

defer to the experienced district judge’s interpreta-

tion of the law of the state in which he sits.

Christian, 888 F.2d at 414-15.

This language however, has no application to a

county road supervisor because § 179.02((7) provides

an exception to the general principle that all terms

expire automatically at the end of each executive ad-

ministration. An appointment to a four year term nec-

essarily extends beyond the executive administration in

existence at the time of the appointment.

We, therefore, conclude that Mineer’s property right

in his four year term of employment was clearly estab-

lished. All one had to do to reach this conclusion was to

read the applicable statutes.

B. The Process Due

Cleveland Board of Education v. Loudermill, 470

U.S. 532 (1985), and its progeny define the

pretermination process which is due. The Kentucky

statute provides adequate process to satisfy the Four-

teenth Amendment if followed. Here there was no pre-

tense to follow the statutory procedures for terminating

Mineer. Judge Call cannot claim qualified immunity

because he totally disregarded clearly established pro-

cedures set forth by statute.

Il. First Amendment Claim

Whatever the law may have been with respect to patron-

age hiring at the time Judge Call took the challenged

action, there is no authority for the proposition that

18a

political factors justify a decision to terminate an em-

ployee during the course of that employee’s statutorily

defined term of employment.

CONCLUSION

The District court’s denial of the magistrates’ motion for

5

immary judgment on the Fourteenth Amendment due

process issue is REVERSED

i he district court’s denial of the: ounty judge/executive’s

_ +. ~~ £

novon

immary Judgment on the qualified immu-

sue Should be AFFIRMED

19a

No. 92-5368

Mineer v. Fleming County, et al.

RALPH B. GUY, JR., concurring in part and dis-

senting In part. I concur in that portion of the court’s

opinion which grants qualified immunity to the magis-

trates with respect to the Fourteenth Amendment pro-

cedural due process claim and affirms the trial court’s

grant of qualified immunity to the magistrates with

respect to the First Amendment claim. I dissent on the

qualified immunity issue as it relates to the county

executive. I would grant qualified immunity to him on

both the Fourteenth and First Amendment claims.

I.

To prove a violation of procedural due process, a

plaintiff must demonstrate that he was deprived of a

constitutionally protected liberty or property interest

and that federal due process requirements were disre-

garded. Lee v. Western Reserve Psychiatric Habilitation

Center, 747 F.2d 1062, 1067 (6th Cir. 1984). An em-

ployee may demonstrate a protected property interest

in continued employment by showing an express or

implied state law basis for that interest. Bishop v. Wood,

426 U.S. 341, 344-45 (1976). In at least one instance, the

Supreme Court has held that a non-tenured state em-

ployee may prove such an interest by showing that the

policies and practices of the employer Justified his

legitimate claim of entitlement to continued employ-

ment. Perry v. Sinderman, 408 U.S. 593, 602-03 (1972).

Thus, the first question in this case is whether a reason-

20a

able official in Call’s position could have believed that

Mineer did not have a protectible property interest in

his employment.

In order to resolve this issue, it is important to

determine whether Mineer actually had an ongoing

employment contract or whether his term of office

expired with that of the outgoing fiscal court and county

executive. If Mineer had a clear right to his position as

road supervisor for four years beginning on January 8,

1988, then Call’s treatment of Mineer could be action-

able. If, as Call alleges, Mineer’s term of office expired

contemporaneously with that of the administration

that hired him, Mineer had no clearly established prop-

erty interest in his further employment,! and qualified

immunity would shield Call from Mineer’s procedural

due process claim.

The resolution of this issue turns on the proper

construction of Kentucky law. In Christian v. Belcher,

888 F.2d 410 (6th Cir. 1988), this court concluded that

under Kentucky law the terms of all county employees

expire automatically at the end of each executive ad-

ministration. Jd. at 414. Mineer does not respond di-

rectly to Christian’s conclusion in his brief; rather, he

' For qualified immunity purposes, Call need only demon-

strate that Kentucky law remained unclear regarding the

terms of county road supervisors at the time of Mineer's

dismissal. If reasonable county officials could disagree on this

issue, immunity should attach. Guercio v. Brody,911F.2d1 179,

1185 (6th Cir. 1990), cert. denied, ___ U.S.___ , 111 S. Ct.

1681 (1991).

ee

2la

contends that the fiscal court which appointed him toa

four-year term did soin furtherance of the plain meaning

of Kentucky law. Citing Kentucky Revised Statutes

Annotated § 179.020(7), which provides thatthe term of

office of a county road supervisor will be either two or

four years at the discretion of the fiscal court, Mineer

argues that the fiscal court simply followed its statutory

mandate when it appointed him to a four-year term

retroactive to January 8, 1988. Thus, Mineer’s conten-

tion by implication is that the Christian conclusion

applies only where no specific term of office exists.

Under Mineer’s construction of Kentucky law, then,

only non-civil service employees appointed without a

specific term of office are subject to the Christian rule

that employees’ terms expire at the conclusion of an

administration’s term in office.

I find Mineer’s reading of the statute umpersuasive.

The conclusion of this court in Christian that the terms

of non-civil service employees expire contemporane-

ously with that of the outgoing administration remains

the most commonsensical reading of the applicable

Kentucky law. See OAG 82-63 (absent a merit system,

county employees — including the county road supervi-

sor — under a previous administration automatically

lose their jobs at the beginning of the new administra-

tion); OAG 82-22 (present fiscal court may not bind

fiscal court coming into office in January 1982, with a

contract for a county road supervisor; appointee could

only fill out the remainder of the term ending on the

second Tuesday of January 1982). Kentucky Revised

22a

Statutes Annotated § 179.020(7) has much less rel]-

evance than Mineer attempts to give it. The statute

gives the county executive the power to employ a county

road engineer or supervisor with the consent of the

fiscal court. See OAG 82-142. Both the county executive

and the fiscal court magistrates serve four-year terms.

Ky. Rev. Stat. Ann. § 67.050 (magistrates); Ky. Rev.

Stat. Ann. § 67. 700(county executive). Thus, thestatute

serves only to give the county executive and the mag-

istrates the flexibility to make either one or two su-

pervisor appointments during their terms. The fiscal

court can consent to the county executive’s selection of

a road supervisor for a two-year appointment, allowing

the fiscal court and the county executive the opportu-

nity to re-think their decision in the middle of their four-

year terms, or they can select a road supervisor for their

entire terms.

A coherent reading of the entire statute compels the

conclusion that a road supervisor cannot serve a two-

year term and then receive a four-year appointment, as

was attempted by the incumbents in this case. Under

section 179.020(7), a county road supervisor’s period of

employment begins with the second Tuesday in Janu-

ary of an even-numbered year. Importantly, beginning

with the November 1977 election, county executives’

terms of office began on the first Monday in January of

the following year. See Ky. Rev. Stat. Ann. § 67.700.

Thus, as four-year officeholders, county executives like

Call would necessarily begin their terms on even-num-

bered years. The fact that the terms of county executives

ee

23a

and road supervisors parallel each other is significant,

for it suggests that section 179.020(7) allows a road

supervisor to serve consecutive two-year terms or one

four-year term. See OAG 82-22 (incoming county execu-

tive, with consent of fiscal court, must appoint a county

road supervisor whose term will begin the second

Tuesday of January 1982, and will end as of the second

Tuesday of 1984, unless another two-year term is desired;

otherwise, the road supervisor’s term would end on the

second Tuesday in January of 1986).

To read the statute otherwise would allow the

absurdity that has developed in this case — lame duck

magistrates and county executives could appoint offic-

ers to terms of office which would bind succeeding

popularly-elected administrations. Such a thwarting of

the majority will is not commanded by Kentucky law.

Mineer did not have a valid contract which extended his

term in office beyond January 1990. Thus, Call acted

reasonably in determining that it was lawful to conclude

that Mineer did not havea cognizable property interest,

and he is therefore entitled to qualified immunity.

The district court, relying on Christian, found a

material issue of fact remained as to whether Mineer

had an expectation of continued employment based

upon the fact that all other county employees were

allowed to maintain their jobs despite the change in

administration. See Christian, 888 F.2d at 417 (finding

a genuine issue as to whether plaintiff had a legitimate

claim of entitlement to continued employment when

“during [the applicable] time period [plaintiff] was the

24a

only county employee not to be reappointed to his job

upon a change in administration”). This conclusion is

relevant to the merits of Mineer’s underlying proce-

dural due process claim. But whether Mineer ulti-

mately had a protectible property interest matters not

to the question of whether Call acted reasonably in

concluding that Mineer did not have a protectible

property interest.

I do not focus, as did the district court, on whether

Call reasonably should have known of Mineer’s right to

notice and a hearing. Framing the issue in that way

implicitly decides that Mineer did in fact have a

protectible property interest in his employment which

required notice and a hearing. Having found that Call

reasonably concluded that Mineer did not have a

protectible property interest, I would not reach the

question of notice and hearing.

Il.

Having concluded that Mineer did not have a valid

contract which extended beyond January 1990, I next

consider whether Call’s politically motivated decision

not to rehire Mineer violated clearly established First

Amendment rights of Mineer. When considering politi-

cally motivated employment decisions, we normally do

not distinguish between dismissals and decisions not to

rehire. See id. at 416 (treating termination and failure

to rehire as indistinguishable for First Amendment

purposes). Thus, Call correctly characterizes this as a

“failure to rehire”/constructive discharge case.

25a

Call asserts that at the time of Mineer’s dismissal

in early 1990 the law was insufficiently developed,

thereby entitling Call to qualified immunity because he

acted in an objectively reasonable manner. See Malley

v. Briggs, 475 U.S. 335, 341 (1986). 1 agree. In January

1990, First Amendment law did not clearly establish

that a county executive could not refuse to rehire county

road supervisors for politically motivated reasons.

In early 1990, the relevant case law on politically

motivated personnel decisions included Brantiv. Finkel,

445 U.S. 507(1980); Elrod v. Burns ,427 U.S. 347(1976);

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

Balogh v. Charron, 855 F.2d 356 (6th Cir. 1988). Plain-

tiffrelies particularly on Elrod, Branti, and Christian to

support his contention that the law clearly establishes

that county road supervisors may not be dismissed from

office for political reasons.

The Supreme Court first considered politically mo-

tivated personnel decisions in Elrod. A plurality of the

Court concluded that a governmental unit violated the

First Amendment when it installed a traditional pa-

tronage system of government employment. The plural-

ity noted, however, that government has a vital interest

in ensuring that “representative government not be

undercut by tactics obstructing the implementation of

policies of the new administration.” Elrod, 427 U.S. at

367. Thus, confidential employees in policymaking po-

sitions could be dismissed for political reasons. Id. at 372.

Justice Stewart’s limiting concurrence, which provided

the critical fifth vote in Elrod, held that a

_ ee

26a

“nonpolicymaking, nonconfidential government em-

ployee can[not] be discharged or threatened with dis-

charge from a job that he is satisfactorily performing

upon the sole ground of his political beliefs.” Jd. at 375

(Stewart, J., concurring).

In an affirmation of Elrod , the Court in Branti

clarified the latitude government officials enjoy in mak-

ing personnel decisions. Importantly for our purposes,

the Court noted that “it is not always easy to determine

whether a position is one in which political affiliation is

a legitimate factor to be considered.” Branti ,445 U.S. at

518 (quoting Elrod, 427 U.S. at 367). It then reformu-

lated the inquiry by abandoning the labels “policymaker”

or “confidential employee” in favor of asking “whether

the hiring authority can demonstrate that party affili-

ation is an appropriate requirement for the effective

performance of the public office involved.” Branti, 445

U.S. at 518. Then, the Court held that the continued

employment of an assistant public defender could not be

conditioned on political affiliation. Jd. at 519.

At the time of Mineer’s dismissal, the Sixth Circuit’s

contribution to this area of the law included three cases

which discussed the propriety of political firings and

hirings. In Balogh, this court held that a trial judge

bailiff was a “confidential employee” whose discharge,

allegedly because he supported the judge’s opponent in

an earlier judicial election, did not violate the First

Amendment. The court emphasized that as a judicial

aide the bailiffhandled sensitive communications, acted

as the Judge’s bodyguard, and learned the outcome of

|

27a

cases prior to the publication of those decisions. The

function of the job, then, subjected the bailiff to politi-

cally-motivated discharge.

In Christian v. Belcher, a former county flood plain

administrator and building inspector brought an action

against the county executive and fiscal court magis-

trates arising out of their failure to rehire him after the

election of a new county executive. The district court

granted summary judgment to all defendants, and this

court remanded the case for further proceedings based

on our conclusion that genuine issues of material fact

existed as to whether the former administrator was

dismissed for political reasons and whether party affili-

ation was an appropriate requirement for his position.

888 F.2d at 415-16. In Belcher , the court addressed the

merits of whether the former administrator’s dismissal

had been proper. The issue of qualified immunity was

never considered.

In summarizing the state of the law on the issue of

politically motivated personnel decisions, this courtina

later case characterized the law as “unsettled.” In Cagle

v. Gilley, 957 F.2d 1347, 1349 (6th Cir. 1992). Cagle is

directly relevant to the resolution of Call’s qualified

immunity issue. In Cagle, we reversed a district court’s

denial of summary judgment toa sheriff who had failed

to rehire former deputies allegedly due to their election

support of an opponent. Concluding that “any sheriff of

reasonable competence in (defendant]’s position, mea-

sured objectively, would [not] have clearly understood

that he was under an affirmative duty to have refrained

28a

from refusing to reappoint the deputies in August and

September, 1988[,]” id., at 1349, this court found that

the sheriff was entitled to qualified immunity.

These cases support Call’s contention that he is

entitled to qualified immunity on Mineer’s First

Amendment claim. In addition to the cases already

cited, which constituted the law at the time of Mineer’s

dismissal, this court in recent years has held that a wide

variety of public officials do not enjoy the right to be free

from patronage dismissal. See, e.g., Monks v. Marlinga,

923 F.2d 423 (6th Cir. 1990) (city prosecutor); and

Williams v. City of River Rouge, 909 F.2d 151 (6th Cir.

1990) (city attorney). Whatever the ultimate merits of

Mineer’s claim, it cannot be said that he had a clearly

established right as a county road supervisor to be free

from a politically motivated dismissal.?

* If it were clearly established that political considerations

were not an appropriate job requirement for the position of

county road supervisor, then the only jury question, in this

case, would be whether the defendant's dismissal of plaintiff

was motivated solely by politics. Qualified immunity is not a

jury issue.

i cceeeeemeaimzaell

29a

APPENDIX B

93-6046

UNITED STATES COURT OF APPEALS

FOR THE SIXTH DISTRICT COURT

FILED SEPT. 3 1993

LEONARD GREEN, Clerk

AT LEXINGTON

LESLIE G. WHITMER

CLERK: U.S. DISTRICT COURT

In Re: JEWELL CALL, )

individually and ) ORDER

in his official capacity as )

Fleming Couny Judge/Executive )

Petitioner

BEFORE: GUY and RYAN, Circuit Judges; and

CHURCHILL, Senior District Judge.*

The petitioner seeks a writ of mandamus directing

the district court to enforce this court's mandate by

dismissing the complaint with prejudice. The district

court judge has indicated that he does not intend to

respond.

* The Honorable James P. Churchill, United States District

Court for the Eastern District of Michigan, sitting by desig-

nation.

30a

This petition arises following our opinion in Mineer

v. Call, Sixth Circuit No. 92-5368 (May 4, 1993) (un-

published). In that case, the defendants appealed the

district court's denial of qualified immunity. The de-

fendants included six fiscal court magistrates and the

petitioner, a county judge/executive. Following the is-

suance of this court's mandate, the district court dis-

missed the six fiscal court magistrates on grounds of

qualified immunity, but did not dismiss the petitioner.

The district court judge based his decision on the Mineer

opinion.

The opening paragraph of our prior opinion stated

that Judge Churchill delivered the opinion of the court

and that Judge Guy delivered a separate opinion, con-

curring in part and dissenting in part, in which Judge

Ryan concurred. Judge Churchill's opinion concluded

that the denial of summary judgement was reversed as

to the six magistrates, but affirmed as to the petitioner.

However, Judge Guy's opinion dissented as to the pe-

titioner and stated that he would grant the petitioner

qualified immunity. Judge Ryan concurred in that

opinion, and that concurrence effectively makes Judge

Guy's opinion the majority opinion as to the petitioner.

Therefore, Judge Churchill's opinion expresses the

majority result with respect to magistrates, but Judge

Guy's opinion, even though written as a dissent, states

this court's conclusions with respect to the petitioner.

this clarification should eliminate any confusion arising

from the prior opinion.

3la

It therefore is ORDERED that the district court

take all appropriate steps to enforce our mandate as

stated above. In view of this clarification, it is OR-

DERED that the petition for a writ of mandamus is

dismissed.

ENTERED BY ORDER OF THIS COURT

s/ Leonard Green, Clerk

A TRUE COPY

Attest: Leonard Green. Clerk

By: /s/ Chris Lawhorn, Deputy Clerk.

32a

33a

APPENDIX C

Eastern District of Kentucky

Filed: Mar 4 1992

At Lexington

Leslie G. Whitmer, Clerk

U.S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 91-4

WILLIAM MINEER, PLAINTIFF

V. MEMORANDUM OPINION

FLEMING COUNTY, ET. AL.., DEFENDANT

* * ke ke *

I. INTRODUCTION

This matter is before the court on the Motion of the

Defendants for Summary J udgment. The Plaintiff has

filed a Reply and the Defendants have responded to that

Reply and the matter is therefore fully briefed and ripe

for review by the Court. ,

Il. FACTUAL BACKGROUND

Plaintiff William Mineer was formerly the Fleming

County (Kentucky) Road Supervisor. The name Defen-

dants are as follows: Fleming County; Fleming County

Fiscal Court; Jewell Call, Fleming County Judge/Ex-

ecutive; and Fleming County Magistrates Gary C.

34a

Harmon, Andy Cole, John Sims, Ronnie Carpenter,

William Thompson and L.C. Cord.

In early 1990, Mineer lost his position as road

supervisor when a new Fiscal Court, composed of the

named Magistrates, voted not to ratify his appointment

by the former Fiscal Court,

Ill. TYPE OF ACTION

Mineer brings this action pursuant to 42 U.S.C. §§

1983, 1985 and 1988, alleging that the Fleming County

Fiscal Court and Judge Executive acted in violation of

his First, Fifth and Fourteenth Amendment rights under

the United States Constitution in discharging him from

his office. He alleges that his removal from office was

politically motivated punishment for the exercise of his

constitutional rights.

Mineer contends that his constitutional right of due

process was violated by the Defendants’ failure to afford

him notice and a hearing prior to his dismissal. He also

alleges claims under KRS 179.020 and KRS 179.060 and

a wrongful discharge cause of action under Kentucky

common law.

IV. UNDISPUTED FACTS

In 1978, Mineer was recommended for the post of

Fleming County Road Supervisor by then-Fleming

County Judge/Executive Bill Owens (“Owens”). In July

of 1978, Mineer's appointment was ratified by the Fiscal

Court and he assumed the post for a term to expire in

January of 1982. In J anuary of 1982, Owens again

35a

forwarded Mineer's name to the Fiscal Court for ap-

proval as county road supervisor and the Fiscal Court

ratified this appointment for aterm to expire in January

of 1986.

In January of 1986, Owens again requested the

Fiscal Court to ratify Mineer as road supervisor, how-

ever, the magistrates voted 5-1 against his reappoint-

ment. Mineer continued to hold the position as road

supervisor and another vote was taken on his nomina-

tion in February of 1986. The tally again resulted ina 5

to 1 vote against his reappointment. Mineer continued

to work until September of 1986 when another ballot

was taken by the Fiscal Court resulting in a tie vote of

3-3. Owens broke the tie and Mineer was reappointed

for a two year term which retroactively began in Janu-

ary of 1986, expiring in January of 1988.

Mineer continued to work as road supervisor after

January 1988, despite Owens’ failure to submit his

name to the Fiscal Court for approval. In May of 1989,

Owens lost the primary election for County Judge/

Executive to current Fleming County Judge/Executive

Jewell Call (“Call”). While still in office but after losing

the primary, Owens resubmitted Mineer's name to the

Fiscal Court for the post of road supervisor. Mineer was

reappointed toa four year term, retroactively beginning

in January of 1988 and extending to January of 1992.

' Two of the magistrates on the Fiscal Court who voted to

approve the appointment, Ernie Reeves and Charles Jolly,

had lost their primary elections and consequently had terms

of office that expired in J anuary of 1990. Therefore, the term

of office they voted to approve for Mineer exceeded their own.

a

36a

In September of 1989, Mineer announced he would

run as a write-in candidate for County Judge/Executive

and took a leave of absence from his road supervisor post

to do so. Thereafter, the Fleming County Attorney

requested an opinion from the Kentucky Attorney

General's Office as to whether Mineer could run for

elective office while on a leave of absence from his

appointed post. The Attorney General's Office responded

that a county road supervisor would have to resign from

office in order to run for elective office.”

In November of 1989, Cali was elected County/

Judge Executive. He took office in January of 1990, as

did a newly-elected Fiscal Court. In an action taken

January 8, 1990, the Fleming County Fiscal Court voted

not to ratify the action of the former Fiscal Court which

appointed Mineer to a four year term as County Road

Supervisor, effectively terminating his employment.

V. DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT

The Defendants advance four arguments in sup-

port of the Motion for Summary Judgment. Initially

* The letter is signed by Nathan Goldman, Assistant Attorney

General and is dated October 19, 1989. While Mr. Goldman

writes that the letter “does not represent a formal legal

opinion” he does state that on the basis of KRS 179.460, “it

would appear to us that even though the county road engi-

neer/foreman has taken a personal leave of absence, he is still

prohibited from running for office. He would have to resign as

county road engineer/foreman before he could run for county

office.” (Exh. 2, Mem. in Supp. of Mot. for Summ J.).

en

37a

they contend that Mineer had no constitutional right to

continued employment beyond the tenure of the Fiscal

Court who ratified his appointment, which terminated

in January of 1990. They argue that as a matter of

Kentucky law, the tenure of county employees cannot

extend beyond the tenure of the members of the Fiscal

Court which approves their appointments, citing KRS

67.710(7) and Christian v. Belcher, 888 F.2d 410 (6th

Cir. 1989).

Secondly, they argue that the dismissal of Mineer

was not improper, even if done for political purposes,

relying on Elrod v. Burns, 427 U.S. 347 (1978) and

Christian v. Belcher, supra. Defendants further contend

that Mineer's job performance was unsatisfactory and

had been for a number of years.

Third, the Defendants contend they are entitled to

qualified immunity for their actions iri dismissing Mineer

because they acted in good faith and without malicious

intent to deprive Mineer of his constitutional rights.

They argue that at the time the Fiscal Court acted

Mineer had no expectation of continued employment

because the former court did not have authority to

appoint him for a term which outlasted its own.

Next, the Magistrates argue that they are without

authority to actually nominate or appoint employees

and therefore are incapable of misusing that power

within the context of 42 U.S.C. § 1983, citing Christian

v. Belcher, supra. They contend that under KRS

67.710(7), it is the County Judge/Executive who has the

38a

power to appoint the County Road Supervisor and

therefore they, as Magistrates without such authority,

should be entitled to official immunity and granted

summary judgment.

Finally, the Defendants argue that public policy

and tradition support allowing public officials to make

employment decisions on the basis of party affiliation.

The Defendants argue that despite the Supreme Court's

holdingin Rutan v. Republican Party of Illinois ,58 USLW

4872 (June 19, 1990), they should have the authority to

terminate employees because of political differences.

In his response, the Plaintiff proposes a contrary

interpretation of statutory and case law. He argues that

the Defendants incorrectly interpret KRS 67.710(7) and

that under the First Amendment he had a right to free

speech without fear of reprisal. Mineer further argues

that Elrod v. Burns, supra, is inapplicable to this situ-

ation because the position of Road Supervisor is not a

policymaking one.

Mineer argues that the Defendants are not entitled

to qualified immunity because their actions were not

undertaken in good faith. He contends that the law

against terminating employees for political reasons was

firmly established at the time the Defendants terminated

his employment. Further, Mineer argues that the

Magistrates do have power to appoint county employ-

ees.

In their Reply, Defendants raise several new is-

sues. They contend that Plaintiff has no property inter-

39a

est in his employment, and therefore only his First

Amendment claim remains. Defendants argue that the

state cause of action for breach of contract precludes the

assertion of a Section 1983 claim. They also argue that

Mineer's Due Process rights were not infringed because

he knew he had a right to a hearing but failed to ask for

one after his employment was terminated.

Additionally, the Magistrate Defendants reiterate

their defense of qualified immunity, arguing that even

where there has been a violation of a clearly established

right, it must be determined whether a reasonable offi-

cial could reasonably have believed the action taken was

lawful. Defendants contend that under prevailing

statutory and case law, they had a reasonable basis for

believing that Mineer's four year appointment was

improper. They maintain that they are entitled to quali-

fied immunity in their individual capacities because

political considerations are appropriate in employment

decisions involving policymaking personnel.

VI. STANDARDS FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the moving

party establishes that there is no genuine issue of

material fact for trial and that he is entitled to judgment

asa matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp.

v. Catrett,477 U.S. 317 (1986). The Court must consider

all pleadings, depositions, affidavits, and admissions on

file and draw reasonable inferences in favor of the party

opposing the motion. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574 (1986); see Smith v.

ee

40a

Hudson, 600 F.2d 60 (6th Cir. ), cert. dismissed ,444U.S.

986 (1979).

Once the movant shows that there is an absence of

evidence to support the nonmoving party's case, the

opposing party has the burden of coming forward with

evidence raising the triable issue of fact. Celotex Corp.,

77 U.S. at 323. To sustain this burden, the opposing

party may not rest on the mere allegations of his

pleadings. Instead, it must set forth specific facts show-

ing that there is a genuine issue for trial. Potter's Med.

Center v. City Hosp. Ass'n. ,800 F.2d 1129(6th Cir. 1986).

Ultimately, the standard for determining whether

summary Judgment is appropriate is “whether the evi-

dence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Booker v.

Brown & Williamson Tobacco Co., 879 F. 2d 1304, 1310

(6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986)).

Applying these standards, the Court determines

that the Defendants are entitled to partial summary

judgment.

VII. DISCUSSION

A. Claims against the Magistrates

1. First Amendment Claims

By reference to the factually similar case of Christian

v. Belcher, 888 F.2d 410 (6th Cir. 1989), many of the

issues raised in this action may be decided. In Christian,

4la

the former-Harlan County (Kentucky) Flood Plain Ad-

ministrator and Building Inspector (“FPA”) brought

suit against the Harlan County Fiscal Court and the

County Judge/Executive alleging he had been termi-

nated as FPA solely for political purposes and as pun-

ishment for his exercise of his First and Fourteenth

Amendment rights. He also alleged the defendants had

denied him Due Process in failing to grant his request

for a post-termination hearing.

KRS 67.710 provides, in relevant part, as follows:

The county judge/executive shall be the chief ex-

ecutive of the county and shall have all the powers

and perform all the duties of an executive and

administrative nature vested in, or imposed upon,

the county or its fiscal court by law... and such

additional powers as granted by the fiscal court...

His responsibilities shal] include, but are not lim-

ited to, the following:

(7) Exercise with approval of the fiscal court the

authority to appoint, supervise, suepend, and re-

move county personnel (unless otherwise provided

by state law);

In interpreting this statute the Christian court held,

(T]he plain language of the statute indicates that

the Fiscal Court has not general authority to nomi-

nate or appoint county employees. The statute

grants the judge executive the “authority to ap-

point, supervise, suspend, and remove county per-

sonnel,” subject only to the “approval of the fiscal

court.” This language clearly contemplates that, in

general, only the Judge Executive may nominate

person for county employment, and that the Fiscal

eee

42a

Court must either accept or reject those nomina-

tions.

Christian at 414.

In sum, the Sixth Circuit held that summary

judgment in favor of the defendant fiscal court was

proper because under Kentucky law, the Magistrates

did not have the authority to reappoint the plaintiff to

county employment.

In this action, the Plaintiffin oral argument pointed

out the parenthetical phrase in KRS 67.710(7), which

allows the judge/executive to exercise his authority with

the approval of the fiscal court “unless otherwise pro-

vided by state law.” Mineer contended that this phrase

distinguished his case from Christian. Mineer alleges

that KRS 179.020(7) sets the term of office for the road

supervisor at a two or four year term, within the dis-

cretion of the fiscal court, and thus fits within the KRS

67.710(7) exception.

This statutory grant of discretion to the fiscal court

in setting the term of office at either two or four years

does not imply that the fiscal court has any greater

authority in the employment of the road supervisor

than in the employment of any other county employee.

In fact, KRS 179.020(1) and (2) expressly state that the

judge/executive shall employ the road supervisor “with

the consent of the fiscal court.” Therefore, the Court is

not persuaded that this action is distinguishable from

Christian.

Plaintiff further contended at oral argument that

43a

his employment was terminated from employment, un-

like the situation in Christian where the plaintiffs term

of office expired and the fiscal court failed to rehire him.

However, the Christian court expressly stated that

“decisions not to ‘reappoint’ state employees are treated

the same as job ‘terminations’ in this context,” Christian.

at 415, and therefore, that argument has no merit.

It is well settled that Section 1983 was enacted to

protect individuals against the “misuse of power, pos-

sessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

State law,” Monroe v. Pape, 365 U.S. 167, 184(1961). As

the foregoing Statutory and case law indicates, the

Fleming County Magistrates had no authority to ap-

point or reappoint county employees such as Mineer,

therefore the Court finds that summary judgment in

favor of the Magistrate Defendants on his First

Amendment claim is appropriate. As this issue has been

decided in their favor, it is unnecessary to address the

Magistrate Defendants’ argument that they are entitled

to qualified immunity on the First Amendment claim.

2. State Law Wrongful Discharge Claims

Although neither party has addressed this issue in

the pleadings, it is clear from the foregoing discussion

that Kentucky law does not provide Magistrates with

the power to independently hire or discharge a county

employee. Therefore there is no authority with which to

hold the Magistrates liable for wrongful discharge un-

der the common law of Kentucky.

44a

3. Due Process Claims

To prove a violation of procedural due process, the

Plaintiff must demonstrate that he was deprived of a

constitutionally protected liberty or property interest

and that federal due process requirements were disre-

garded. Lee v. Western Reserve Psychiatric Habilitation

Center, 747 F.2d 1062, 1067 (6th Cir. 1984). An em-

ployee may demonstrate a protected property interest

in continued employment by showing an express or

implied state law basis for that interest. Bishop v. Wood,

426 U.S. 341(1976). In Perry v. Sinderman, 408 U.S.593

(1972), the Supreme Court held thata nontenured state

employee may prove such an interest by showing that

the policies and practices of the employer justified his

legitimate claim of entitlement to continued employ-

ment.

Herein, Mineer alleges that Defendants violated

his constitutional rights by failing to provide notice and

a hearing required by KRS 179.060 “in that no charges

were brought against him and no notice or opportunity

for hearing was afforded him.” (Compl. at 4).

Defendants contend that Mineer had no expecta-

tion of continued employment because his term of office

expired contemporaneously with that of the adminis-

tration that hired him. They support this argument by

relying on the following discussion in Christian:

[T]he district court expressly held that under

Kentucky law, the terms of all county employees

expire automatically at the end of each executive

administration,... Since we have found no Ken-

45a

tucky authority to the contrary, we defer to the

experienced district judge's interpretation of the

law of the state in which he sits.

Christian at 414-415.

Mineer responds that he had been rehired for a four

year term which was to extend to January of 1992, and

therefore he had an expectation of continued employ-

ment.

There is evidence in the record which supports the

Defendants’ position. For example, in the Fleming

County Fiscal Court Personnel Policies, Hiring Guide-

lines section, the following statement is made: “Both the

date of employment and service date are established on

the first date the employee reports for work; however,

the former remains constant and the latter may be

adjusted from time to time.” Further, in the Adminis-

trative Code for the Operation of Fleming County,

Section 510.2, it states that the “county road supervisor

shall be appointed by the judge/executive with the

consent of fiscal court and shall serve at the pleasure of

the court.” (emphasis added). There is no proof in the

record that Mineer had possession or knowledge of

these documents.

In Christian, the Sixth Circuit reversed the district

court's grant of summary judgment on the plaintiff's

due process claims, despite the language in the same

case which implies that an employee's term of office

expires contemporaneously with the fiscal court which

appointed him.

46a

The Christian court found that the general policy

and practice in Harlan County was to maintain em-

ployees upon a change in administrations and that the

plaintiff was the only employee from the previous ad-

ministration who was not reappointed. Based upon this

evidence, the court concluded that the plaintiff had

“raised a genuine issue of material fact concerning

whether he had a legitimate claim of entitlement to

continued employment such that defendants’ failure to

grant him a hearing violated the due process clause of

the fourteenth amendment.” Christian at 417.

Pursuant to Christian, there is a material issue of

fact raised as to whether Mineer had an expectation of

continued employment. In Call's deposition, for ex-

ample, he admits that Mineer was fired even though

“[t]he rest of the boys I did hire all of then.” (Call Dep.

at 19-20) This statement can be reasonably interpreted

to show that other employees were allowed to maintain

their jobs despite the change in administration, and

Mineer may therefore have had an expectation in con-

tinued employment.

Further, in the case at bar, the evidence proferred

by the Plaintiff is that he did not receive a hearing

despite the provision in the Kentucky statutes mandat-

ing notice and a hearing upon removal of the Road

Supervisor from office.

The Magistrate Defendants claim they are entitled

to qualified immunity. Whether qualified immunity

applies is purely a legal issue to be determined by the

court. See Garvie v. Jackson, 845 F.2d 647 (6th Cir.

47a

1988). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the

Supreme Court established that qualified immunity

protects the actions of government officials, unless the

conduct violates “clearly established statutory or con-

stitutional rights.” The standard was further defined in

the case of Anderson v. Creighton, 483 U.S. 635, 639

(1987), wherein the Court stated that the issue of

whether qualified immunity will protect an official from

personal liability for an allegedly unlawful action

“generally turns on the ‘objective legal reasonableness’

of the action, assessed in the light of the legal rules that

were ‘clearly established’ at the time it was taken.”

(citations omitted). In determining whether the rules

were “clearly established” at the time of the alleged

violation, we look to “federal constitutional, statutory or

case law existing at the time.” Poe v. Haydon, 853 F.2d

418, 424 (6th Cir. 1988).

Herein, KRS 179.060 expressly states that the

“county judge/executive may remove the county (road

supervisor)... at any time for incompetency, malfea-

sance or misfeasance in office upon written charges

after a hearing of which ten (10) days’ notice shall be

given...”

There is no evidence presented in the record as to

the procedures normally implemented in Fleming County

to serve notice upon and arrange hearings at the request

of terminated employees. However, the Fleming County

documents referred to above do establish that the road

supervisor is to serve “at the pleasure of the (fiscal)

court.”

48a

The Court finds that a jury question exists as to

whether the Defendant Magistrates should reasonably

have known of Mineer's right to notice and a hearing. In

the case of Poe v. Haydon, supra, the Sixth Circuit

stated:

[Summary judgment would be not appropriate if

there is a factual dispute (i.e., a genuine issue of

material fact) involving an issue on which the

question of immunity turns, such that it cannot be

determined before trial whether the defendant did

acts that violate clearly established rights. Sum-

mary judgment also should be denied if the undis-

puted facts show that the defendant's conduct did

indeed violate clearly established rights. In either

event, the case will proceed to trial, unless the

defendant takes a successful interlocutory appeal

on the issue of qualified immunity.

Poe at 426.

Therefore, a grant of summary judgment to the

Defendants on this claim would be inappropriate.

B. Claims against the County Judge/Executive

In support of the Motion for Summary Judgment,

the County Judge/Executive argues that it was not

improper to terminate Mineer's employment for purely

political reasons. Call relies on a line of Supreme Court

cases which recognize that an employer may consider an

individual's political affiliations in making certain em-

ployment decisions.

However, inElrodv. Burns ,427U.S. 347,375(1976),

the Court held that a government employer may make

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politically motivated personnel decisions only when

“the hiring authority can demonstrate that party affili-

ation is an appropriate requirement for the effective

performance of the office involved.” In formulating this

opinion, the Court drew a distinction between

“policymaking” and “nonpolicymaking” employees and

held that only in the case of policymaking employees

could party affiliation be an appropriate requirement

for the effective performance of the office.

Subsequently, the Court held that unless political

loyalty is “essential to the discharge of the employee's

governmental responsibilities,” then dismissal of the

employee for political reasonsis unconstitutional. Branti

v. Finkel, 445 U.S. 507, 518 (1980). The Sixth Circuit

interpreted these holdings, stating that “once the em-

ployee shows that he was terminated... solely because of

his political expression or association, Branti imposes a

heavy burden upon the employer to justify that action.”

Christian at 415.

Recently, in Rutan v. Republican Party of Illinois,

supra, the Court broadened the scope of this rule to

include hirings and promotions based on political con-

siderations as well as discharges. The Rutan Court

stated that “conditional hiring decisions based on politi-

cal belief and association plainly constitutes an uncon-

stitutional condition, unless the government has a vital

interest in doing so.” Rutan, 58 USLW at 4876.

In Christian, the Sixth Circuit imposed a burden on

the county judge/executive to “demonstrat{e] that politi-

cal loyalty is essential tothe discharge of the [employee's]

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duties.” Christian at 416. The court denied summary

judgment, finding that material facts remained as to

whether the employee's termination was based solely on

political considerations and whether the political loyalty

was an appropriate job requirement.

However, in the case sub judice the Defendant Call

claims qualified immunity as a defense. The discussion

above in section VII.A.3 sets forth the standards to be

applied in determining whether qualified immunity is

applicable. Without repeating those standards, the

discussion below will refer to them.

The Sixth Circuit recently addressed the issue of

qualified immunity in the context of a wrongful termi-

nation suit in Gossman v. Allen, 950 F.2d 338 (6th Cir.

1991) Plaintiff Gossman, a former employee of the

Louisville (Kentucky) and Jefferson County Board of

Health, brought a state law and First Amendment

action against her former employer alleging she had

been wrongfully terminated because of statements she

made to the media, the public and a court. The defen-

dants claimed they were entitled to qualified immunity

on all claims.

The Sixth Circuit affirmed the district court's de-

nial of qualified immunity on the state law claims

“[slince (the plaintiff's) state law claims for damages do

not invoke any federal law whatsoever, qualified im-

munity is not an available defense.” Gossman at 341.

As to the federal law claims, the court held that

[t]he proper inquiry is not whether the claimed

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right existed in the abstract, but whether a reason-

able official would have known that the challenged

conduct violated that right. Under this test, an

official will be immune ‘if officers of reasonable

competence could disagree’ on whether the conduct

violated the plaintiffs rights.

Gossman at 341.

In the case at bar, Mineer alleges state law causes

of action based on KRS 179.020 and 179.060 as well as

a common law wrongful discharge claim. These statutes

provide for the hiring, term of office and reinoval from

office of the county road supervisor. KRS 179.060 spe-

cifically addresses the procedures to be undertaken for

removal of the engineer, including serving “written

charges after a hearing.” These causes of action do not

invoke any federal law but are claims for damages based

on state law. Therefore, pursuant to Gossman , qualified

immunity is not available to Defendant Callasa defense

to Mineer's state law claims.

As to Mineer's federal law claims, Call's claim of

qualified immunity requires the Court to ask whether a

reasonable official would have known that terminating

Mineer's employment violated his First, Fifth and

Fourteenth Amendment rights. However, as is dis-

cussed above, the Christian court determined that the

issues of whether an employee's termination was based

solely on political affiliations and whether political

considerations were an appropriate job requirement are

matters which are jury questions and cannot be decided

on a motion for summary judgment.

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This conundrum is considered and solved in Poe v.

Haydon, supra. Therein, the Sixth Circuit stated:

{S)ummary judgment would be not appropriate if

there is a factual dispute (i.e., a genuine issue of

material fact) involving an issue on which the

question of immunity turns such that it cannot be

determined before trial whether the defendant did

acts that violate clearly established rights. Sum-

mary judgment also should be denied if the undis-

puted facts show that the defendant's conduct did

indeed violate ciearly established rights. In either

event, the case will proceed to trial, unless the

defendant takes a successful interlocutory appeal

on the issue of qualified immunity.

Poe at 426.

Here, the right at issue is the right not to be fired

from a job for purely political purposes when political

considerations are not an appropriate factor for the

performance of that job. The Court concludes that a jury

issue exists as to whether Mineer had a right not to be

terminated from his position as Fleming County Road

Supervisor, and whether political affiliation is an ap-

propriate consideration for the position of road super-

visor.

Further, there is a material issue of fact which

exists as to whether Mineer was terminated for purely

political reasons. There is evidence in the record that

the Fiscal Court members had declined to approve his

appointed on several occasions as well as testimony in

deposition that Mineer had not performed his duties as

|

53a

Road Supervisor in a satisfactory manner.’ On the

contrary, there is evidence in the record from which the

reasonable inference could be drawn in favor of Mineer

that he was terminated solely because he contested

Call's candidacy for Judge/Executive. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574

(1986). For example, in his deposition, Mineer states

that Call told him, “ifI can get it done I'm going to let you

go. And he said I don't want any hard feelings, but he

said, you know, I promised your job to another guy.”

(Mineer Dep. at 43.)

Therefore, pursuant to the holding in Poe, the De-

fendant Call's motion for summary judgment must be

denied and the Court finds that he is not entitled to

qualified immunity.

Vill. CONCLUSION

For the foregoing reasons, the Court concludes that

partial summary judgment in the case is appropriate.

An Order consistent with this Memorandum Opinion

will be issued on the same date herewith.

This 4th day of March, 1992.

/s/ Karl S. Forester, Judge

3’ Deposition of L.C. Cord, Jr., at 21.