Dickeson v. Quarberg

• Decision Date: 25 April 1988
• Docket Number: No. 85-1715,85-1715
• Citation: 844 F.2d 1435
• Parties: Dick DICKESON and Beth Weaver, Plaintiffs-Appellants, v. Deloyd QUARBERG and the Board of County Commissioners of Hot Springs County, Wyoming, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1435

844 F.2d 1435

3 Indiv.Empl.Rts.Cas. 425

Dick DICKESON and Beth Weaver, Plaintiffs-Appellants, v. Deloyd QUARBERG and the Board of County Commissioners of Hot Springs County, Wyoming, Defendants-Appellees.

No. 85-1715.

United States Court of Appeals Tenth Circuit.

April 25, 1988.

Harold F. Buck, Kline, Buck & Asay, Cheyenne, Wyo., for plaintiffs-appellants.

Lawrence G. Orr, Guy, Williams, White & Argeris, Cheyenne, Wyo., for defendant-appellee DeLoyd Quarberg.

Nickolas G. Kalokathis, Lathrop & Uchner, P.C., Cheyenne, Wyo., for defendant-appellee The Board of County Com'rs of Hot Springs, Wyo.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and BROWN, District Judge. ^*

HOLLOWAY, Chief Judge.

Plaintiffs Dickeson and Weaver filed suit against the defendants Board of County Commissioners of Hot Springs County (Board) and Sheriff Quarberg under 42 U.S.C. Sec. 1983, alleging violations of their constitutional rights under the First and Fourteenth Amendments. They asserted that they had been discharged from their employment in the Sheriff's Department because of their association with the former Sheriff, Walter Harvey, and that their terminations violated their due process rights.

The defendants moved for summary judgment. The district court rejected the plaintiffs' claims of violations of both their property and liberty interests. The court concluded that "[i]ncident to the sheriff's power to appoint jailers, deputies and assistants, is the power to remove those appointed ..." I R. 153. The court further held that "as appointees, the terms of plaintiffs' office expired with the term of the appointing officer." Id. at 153-54. With respect to the claim that the terminations were made because of plaintiffs' political association with the previous sheriff, the court held that such allegations were meritless because the newly elected sheriff had the authority to make new appointments to the positions. Moreover the court noted that there was no wholesale replacement of appointees and employees, an occurrence which is indicative of constitutionally impermissible motives. Id. at 154. Summary judgment was entered in favor of the defendants and both plaintiffs appeal.

I Facts

Construed in the light most favorable to the party opposing summary judgment, as it must be in reviewing a summary judgment, ¹ the record shows these facts:

Dickeson was appointed by the previous sheriff, Walter Harvey, as the head jailer for the joint law enforcement facility for the County of Hot Springs and the Town of Thermopolis. V R. 139. He was never deputized. V R. 141. Weaver was likewise appointed by ex-Sheriff Harvey. She worked as an administrative assistant to the sheriff and as a special deputy. Although she devoted ninety percent of her time to secretarial duties, she occasionally acted as a process server. IV R. 140-41. She too was never sworn as a peace officer. IV. R. 140-41.

Sheriff Harvey was defeated by Quarberg in the November 1982 general election. ² Quarberg assumed office in January 1983. Shortly thereafter he discharged both plaintiffs. ³

II

Procedural Due Process

A

Property interest analysis

In order to invoke the procedural safeguards of the Due Process Clause, a plaintiff must show "the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A protected property interest in continued employment exists only if the employee has "a legitimate claim of entitlement" to continued employment. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Property interests are not created by the Constitution, but arise from independent sources such as state statutes, local ordinances, established rules, or mutually explicit understandings. Perry, 408 U.S. at 601-02 & n. 7, 92 S.Ct. at 2699-2700 & n. 7. See also Bishop v. Wood, 426 U.S. 341, 344 & n. 6, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). If a plaintiff can prove he has a property interest in his employment, a state cannot deprive him of that interest without due process. See Roth, 408 U.S. at 576-77, 92 S.Ct. at 2708-09.

The plaintiffs argue that as employees of Hot Springs County, their employment was governed by the Personnel Policies and Practices of Hot Springs County. ⁴ They say these personnel policies gave them a property interest in their employment and vested them with due process rights. ⁵ Defendants, on the other hand, assert that the plaintiffs served at the will of the sheriff. According to the defendants, the plaintiffs cannot be viewed as employees of Hot Springs County at all. Rather they were appointees of the sheriff. Consequently any personnel policies covering county employees would not extend to individuals appointed by the sheriff. Indeed, the Board of County Commissioners here argues that the Board and the Sheriff as elected officials have different sets of powers, and that with respect to running a jail and the appointment of deputy sheriffs and jailers, the Commissioners have no power and it is granted exclusively to the sheriff under W.S. Sec. 18-3-602. The Commissioners say that beyond the responsibility of providing funding for running the sheriff's office, they have no further powers over the means and methods chosen by the sheriff to run his office. Brief of the Board of County Commissioners at 3.

We note, however, that the Personnel Policies and Practices of the Board do state that they "shall apply to all full-time Employees of Hot Springs County." I R. 24. It is thus arguable that the policies and practices were applicable to plaintiffs by their terms.

We are persuaded that the district court did not err in rejecting the plaintiffs' property interest claims. Wyoming law gives sheriffs broad authority in the appointment of deputies, assistants, jailers, clerks, stenographers and the like to administer their offices. W.S. Sec. 18-3-602 provides that with the consent of the Board of County Commissioners, each county sheriff may appoint one or more full-time deputies and the sheriff may also appoint other assistants as necessary to properly administer the affairs of the office. In Sec. 18-3-602(c), authority is granted for the sheriff to appoint special deputies to perform particular acts and it is provided that such appointments are not required to be filed or revoked as in the case of regular deputies. Furthermore, Sec. 18-3-603(a) provides that the prisoners shall be kept by the sheriff "or by a deputy or jailer appointed for that purpose ..." And we note that the Supreme Court of Wyoming in Pfister v. Niobrara County, 557 P.2d 735, 738 (1976), stated that a deputy sheriff is an officer, not an employee and that "he is appointed, not hired." The Court further said that "[a] deputy sheriff is not an employee of either the sheriff or the Board of County Commissioners; he is appointed by the sheriff to fill a county office specifically authorized by law." Id. at 742.

Thus the Wyoming Court in the Pfister opinion recognizes the distinctive authority of appointment conferred by the Wyoming statutes. 557 P.2d at 742. The broad power of appointment which is vested in the sheriff by Sec. 18-3-602 includes the appointment of not only full-time deputies but also "other assistants as necesary to properly administer the affairs of the office." As noted, Sec. 18-3-603(a) again refers to the authority of the sheriff with respect to a "jailer appointed for that purpose ..." of keeping of prisoners.

Moreover, the Supreme Court of Wyoming in Carlson v. Bratton, 681 P.2d 1333, 1336-37 (Wyo.1984), reasoned that, unless modified by a statute or otherwise, the power of appointment to an office such as that of police chief of a city, carries with it as an incident the power of removal. Such authority to remove "is a necessary corollary of that power [of appointment]." Id. at 1337.

Under the Wyoming statutes and decisions we are convinced that the district court reached the proper conclusion that the plaintiffs did not have a property interest within the meaning of the Fourteenth Amendment and Roth principles with respect to their positions. See Carlson v. Bratton, 681 P.2d at 1337; accord Irby v. Sullivan, 737 F.2d 1418, 1422 (5th Cir.1984); Guy v. Mohave County, 701 F.2d 73, 77 (9th Cir.1982). We further agree with the district court that the Board of County Commissioners was not empowered to control the sheriff's appointments under his independent office created by the Wyoming statutes with respect to either the appointment of plaintiff Dickeson as a jailer or plaintiff Weaver as an assistant, with her clerical, process service and other functions. Hence no property interest was created by the Personnel Policies and Practices of the Board of County Commissioners.

Aside from the Personnel Policies and Practices basis relied on for a property interest, there was also a claim made that explicit understandings existed between former Sheriff Harvey and the plaintiffs which created a property interest in their positions. We are convinced that the evidentiary showing with respect to such understandings was such that this claim could not be dismissed as presenting no genuine issue of fact as to the understandings. Nevertheless, Sheriff Harvey's representations and any understandings he had with plaintiffs were necessarily confined to his term of office under the Wyoming elective system. In light of that system and his limited term, and the new sheriff's appointing powers which we have outlined, we hold that this theory of a claim of a property interest was insufficient as a matter of law.

In sum, the district court properly rejected the plaintiffs' claim of error based on their property interest analysis.

B

Liberty interest analysis

Plaintiffs argue that the district court also erred in rejecting their liberty...