Owen v. City of Independence, Missouri
| Citation | 560 F.2d 925 |
| Decision Date | 26 September 1977 |
| Docket Number | 76-1799,Nos. 76-1758,s. 76-1758 |
| Parties | George D. OWEN, Appellant, v. The CITY OF INDEPENDENCE, MISSOURI, Lyle W. Alberg, City Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., Members of the Council of the City of Independence, Missouri, Appellees. George D. OWEN, Appellee, v. The CITY OF INDEPENDENCE, MISSOURI, Lyle W. Alberg, City Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., Members of the Council of the City of Independence, Missouri, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Irving Achtenberg, Kansas City, Mo., for appellant.
Richard G. Carlisle, Asst. City Counselor, Independence, Mo., for appellees; Thomas D. Cochran, Independence, Mo., on brief.
Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.
Following his discharge in April 1972 as chief of police of Independence, Missouri, appellant George D. Owen filed this civil action against the City of Independence, city manager Lyle W. Alberg, and the present members of the city council in their official capacities. 1 Owen seeks a declaration that his discharge violated his constitutional right to due process, and prays for a mandatory injunction reinstating 2 him as chief of police with backpay. After a bench trial, the district court held that Owen could assert a claim against the City and its council members in their official capacities arising directly from the fourteenth amendment under the general federal question jurisdiction statute, 28 U.S.C. § 1331, but the court denied Owen relief on the merits. Owen appeals. Appellees cross-appeal, asserting that the City and the individual defendants are not amenable to suit under 28 U.S.C. § 1331 and the fourteenth amendment. The district court opinion is reported at 421 F.Supp. 1110 (W.D.Mo.1976). For reasons stated below, we affirm on the City's cross-appeal and reverse and remand on Owen's appeal.
The district court's findings of fact, quoted in part below, furnish the background needed for understanding the issues presented here:
"I. Findings of Fact.
Plaintiff is, and at all times material was, a citizen of the United States and a resident of the State of Missouri.
Defendant City is a municipal corporation organized and existing under the laws of the State of Missouri. The City's government is organized in the council-manager form pursuant to a Missouri Constitutional Home Rule city charter adopted December 5, 1961, and amended April 4, 1972.
Defendant Lyle W. Alberg is the duly appointed and acting City Manager and Chief Administrative Officer of the City.
Defendant Richard A. King is the duly elected and acting Mayor of the City and a member of the City Council. He is the successor of Phil K. Weeks who was, on April 17, 1972, and prior thereto, the City's Mayor.
Defendants Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., are the duly elected and acting members of the City Council of the City. They are the successors of William A. McGraw, Lauzon H. Maxwell, Arthur W. Lamb, R. M. "Rudy" Bonville, Morris D. McQuinn and Paul L. Roberts who were the members of the City Council on April 17, 1972, and prior thereto.
Under Section 3.3(1) of the City's Charter, the City Manager is vested with the sole power to
'(a)ppoint, and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads of administrative departments and all other administrative officers and employees of the city. . . .'
Plaintiff, as Chief of Police, was subject to this provision. The Charter did not provide that the Chief of Police was entitled to any notice of reasons, or a hearing, in connection with the termination of his employment.
The City Council, and its members, are prohibited from influencing, or interfering with in any manner, the City Manager's power of appointment and discharge of City employees. Section 2.11 of the City Charter provides that:
On February 20, 1967, plaintiff was appointed Chief of Police of the City for an indefinite term by then City Manager Robert L. Broucek. Prior to that time he had served as an assistant to the Chief of Police of Kansas City, Missouri. Plaintiff was given no contract of employment, and there was no de facto tenure system which would have given him a reasonable or legitimate expectation of continued employment. Plaintiff served as Chief of Police until his employment was terminated effective April 19, 1972, by notice in writing of April 18, 1972, by the present City Manager Lyle W. Alberg.
For a substantial period of time prior to March, 1972, plaintiff and City Manager Alberg had had several sharp disagreements over plaintiff's administration of the Police Department, including but not limited to plaintiff's choice of people for positions in the Department and his administration of the Police Department's property room. In early March, 1972, a handgun, which had been destroyed according to records of the Department's property room, was discovered in the hands of a felon by Kansas City, Missouri, police. In about mid-March, 1972, City Manager Alberg initiated an investigation of the property room of the Police Department initially under plaintiff's direction. Later in March, 1972, Alberg decided that the investigation should be conducted by an independent branch of the city government. He transferred the two police officers who had begun the investigation, Sergeant Robert Jackson and Detective William Reynolds, to the City's Department of Law; and directed City Counselor James S. Cottingham who was head of the Department of Law to supervise the conduct of the investigation and to report the findings of the investigation directly to him.
On or before April 12, 1972, City Manager Alberg received copies of statements of witnesses secured in the investigation, and reports from the City Auditor and City Counselor Cottingham. The City Auditor reported that there were insufficient records in the Police Department property room to make an adequate audit of the property in the property room. Cottingham reported in writing to Alberg that there was no evidence of any criminal acts, or violation of any state law or municipal ordinances, in the administration of the property room.
At an informal meeting with several of the City Council members, which took place on or before April 10, 1972, City Manager Alberg discussed the investigation and told the City Council members that he would take action at an appropriate time to correct any problems in administration of the Police Department disclosed by the investigation. At that time, Alberg intended to keep the witness statements and details of the findings of the investigation confidential.
On April 10, 1972, Alberg communicated by telephone with plaintiff, who was then on vacation in Las Vegas, Nevada. Alberg told plaintiff he was dissatisfied with plaintiff's job performance, and asked plaintiff to resign as Chief of Police and accept another position in the Police Department. He told plaintiff that if he refused to accept another position in the Department, he would be discharged. Plaintiff requested a personal conference with Alberg in Independence the following day.
On April 11, 1972, Alberg and plaintiff met in Alberg's office in Independence. Alberg stated to plaintiff that he was dissatisfied with plaintiff's administration of the Police Department, including plaintiff's lack of supervision over the records section of the Department; the state of those records; and plaintiff's inadequate administration, and lack of control, of the property room which had resulted in the reappearance of supposedly destroyed property in the hands of other people. Alberg again requested plaintiff to resign as Chief of Police, and to accept an advisory position with the Police Department. Plaintiff responded that he was not interested in another position, and that he would fight to remain Chief of Police. Alberg told plaintiff that if he continued to refuse to take another position, his employment with the City would be terminated.
On April 13, 1972, Alberg had a discussion with Lieutenant Lawrence L. Cook of the Police Department, during which he asked Cook if he would be willing to take the position of Chief of Police. Cook stated that he would. On the same day, Alberg released a public communication to the Mayor and City Council concerning the investigation and audit of the Police Department's property room, which stated:
"At my direction, the City Counselor's office, on conjunction with the City Auditor have completed a routine audit of the police property room.
'Discrepancies were found in the administration, handling and security of recovered property. There appears to be no evidence to substantiate any allegations of a criminal nature.
'Steps have been initiated on an administrative level to correct these discrepancies.'
Alberg's statement was prominently reported by a local newspaper.
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