Kester v. City of Stilwell

• Decision Date: 07 January 1997
• Docket Number: No. 87705,No. 1,87705,1
• Citation: 933 P.2d 952
• Parties: 1997 OK CIV APP 1 Robert L. KESTER, Appellant, v. CITY OF STILWELL, a municipal corporation, Appellee. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 952

933 P.2d 952

1997 OK CIV APP 1

Robert L. KESTER, Appellant, v. CITY OF STILWELL, a municipal corporation, Appellee.

No. 87705.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma Division No. 1.

Jan. 7, 1997.

Dan George, Sallisaw, for Appellant.

A. Carl Robinson, Robinson, Gage, & Williams, Muskogee, for Appellee.

OPINION

JOPLIN, Judge:

Appellant Robert L. Kester seeks review of the trial court's order granting summary judgment to Appellee City of Stilwell (City) in Kester's action against City arising from termination of Kester's employment as City's chief of police. We agree with Kester that the trial court erred in granting summary judgment to City, City having arguably failed to follow its own policies and procedures in terminating Kester and, accordingly, we reverse the order of the trial court and remand the matter for further proceedings consistent with this opinion.

Kester was hired as City's chief of police. Subsequently, members of the city council received complaints regarding Kester and other police officers, which the City council apparently considered on more than one occasion. Ultimately in April 1993, City council heard statements of the complaining parties, and upon consideration thereof in executive session, voted to terminate Kester's employment. City notified Kester by letter of his termination.

Kester requested a hearing, claiming City council had failed to follow its own policies and procedures for termination of City employees, particularly, that City had failed to notify Kester of the charges against him and to afford him an opportunity to be heard thereon prior to any action. The council then apprised Kester of the "reasons" for his termination and his right to a hearing, apparently pursuant to City's review procedures.

After City terminated Kester, City then conducted a hearing, ostensibly in accord with City's termination policies and procedures. Thereat, the City council produced and took testimony from the witnesses against Kester. However, Kester's attorney refused to cross-examine the witnesses, claiming the hearing to be in violation of the disciplinary procedures previously adopted by City through the City council, i.e., denying Kester a pre-termination hearing. At the conclusion of the hearing, the City council voted to adopt certain previously drafted findings of fact substantiating the reasons for Kester's termination of employment.

Kester appealed his termination to the district court, moving for summary judgment on the issue of City's liability. City filed its own motion for summary judgment, asserting Kester had no protected property interest in future employment and that City had nevertheless afforded Kester his "due process/appeal" hearing required by City's own self-imposed disciplinary procedures. The lower court affirmed the termination decision, and Kester appeals. The matter stands submitted for accelerated appellate review on the trial court record under Rule 13(h), Rules for District Courts, 12 O.S.Supp.1993, Ch. 2, App., and Rule 1.203, Rules of Appellate Procedure in Civil Cases, 12 O.S.Supp.1993, Ch. 15, App. 2.

We have reviewed the record and find no controversy of material fact on the issue of Kester's right to or expectation of future employment as an at-will employee. That is, by City charter provision, City could terminate Kester's at-will employment as police chief "when necessary for the good of the service." See, e.g., Hall v. O'Keefe, 617 P.2d 196 (1980) (term "for the good of the service" not synonymous with "good cause" or "cause" as to limit right of city to terminate employee at will and creates no protected property interest in future employment).

Nevertheless, at the time of Kester's hiring and firing, City had in place personnel policies and procedures, approved by the City council, which required City to notify employees of specific charges, allegations or reasons for City's consideration of "possible" disciplinary action. City argued below that to the extent the City's personnel policies and procedures might be read to restrict City's charter-granted right to terminate at-will, any...