557 F.2d 435 (5th Cir. 1977), 75-4417, Moore v. Otero

Docket Nº:75-4417.
Citation:557 F.2d 435
Party Name:Robert I. MOORE, Plaintiff-Appellant, v. Charles OTERO, Individually and as Chief of Police, City of Tampa, Florida, et al., etc., Defendants-Appellees.
Case Date:August 12, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 435

557 F.2d 435 (5th Cir. 1977)

Robert I. MOORE, Plaintiff-Appellant,

v.

Charles OTERO, Individually and as Chief of Police, City of

Tampa, Florida, et al., etc., Defendants-Appellees.

No. 75-4417.

United States Court of Appeals, Fifth Circuit

August 12, 1977

Cary R. Singletary, Tampa, Fla., for plaintiff-appellant.

Henry E. Williams, Jr., City Atty., Stann W. Givens, Matias Blanco, Jr., Asst. City Attys., Tampa, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before CLARK and GEE, Circuit Judges, and MARKEY, [*] Chief Judge.

GEE, Circuit Judge:

In this appeal, we consider a police officer's contention that his transfer from corporal to police patrolman deprived him of "liberty" or "property," vesting him with a right under the due process clause of the fourteenth amendment to a hearing on the charge that provoked the transfer. The district court granted summary judgment for the City of Tampa, and the plaintiff appeals. We affirm.

At the time of the district court's ruling, the plaintiff, Robert Moore, was a sixteen-year veteran of the City of Tampa police, having joined the force in 1959. Moore served from 1970 to 1974 as a corporal. The position is a hybrid; although a corporal has operational duties like any other patrolman, he also has the supervisory responsibilities of training probationary patrolmen

Page 436

and of serving as squad supervisor in the absence of the sergeant. Patrolmen are appointed as corporals on the basis of ability and demonstrated above-average performance. Only continued above-average performance will assure a patrolman's retention of the position. 1 The chief of police, with the approval of the mayor, assigns patrolmen to corporal status but, again with the approval of the mayor, may reassign appointees to the duties of a regular patrolman. 2 In this case, the chief of police reassigned Moore to patrolman's duties after other officers reported that Moore failed to assist an off-duty patrolman investigating a possible breaking-and-entering suspect.

Corporal appointments have no effect on an employee's civil service status, so civil service review procedures do not apply when the chief of police reassigns a corporal to patrolman duties. The City of Tampa Code does provide a grievance procedure when civil service review does not apply. 3

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After his reassignment, Moore did not file a grievance; instead, he filed suit alleging a denial of due process in this transfer.

Moore's claim to due process under the fourteenth amendment merits consideration only if the department's action deprived him of "liberty" or "property." 4 We conclude that Moore had no property interest in his position as corporal, nor did the circumstances of his transfer deny a liberty interest.

Moore plainly had no property interest in his position as corporal. We look to state law to measure Moore's property claim. 5 The Tampa Code could not be clearer that a corporal serves in that special capacity only at the pleasure of the chief of police and the mayor. 6 Although Moore alleged that corporal assignments were more or less permanent somewhat akin to the de facto tenure alleged by the plaintiff in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) personnel records reveal that on other occasions the chief of police reassigned corporals to regular patrolman's duties. Moore cites no state law that gives a patrolman a property interest in the position of corporal, 7 and assignment to that position had no effect on Moore's civil service status. We view Moore's position as corporal as no different from that held by a probationary employee: no reasonable expectation of continuous employment as a corporal exists that could give rise to a property interest. 8 To accord Moore a due process right to a hearing before reassignment would require the Tampa Police Department to grant hearings before assigning patrolmen to traffic duty or to the radio room. We see no justification for such a...

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