Abell v. Dewey

• Decision Date: 15 March 1994
• Docket Number: No. 92-41,92-41
• Citation: 870 P.2d 363
• Parties: 9 IER Cases 470 Linda M. ABELL, Appellant (Plaintiff), v. Roger W. DEWEY and the State of Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 363

870 P.2d 363

9 IER Cases 470

Linda M. ABELL, Appellant (Plaintiff), v. Roger W. DEWEY and the State of Wyoming, Appellees (Defendants).

No. 92-41.

Supreme Court of Wyoming.

March 15, 1994.

Harold F. Buck, Buck Law Offices, Cheyenne, for appellant.

Elizabeth Zerga, Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., and Joseph B. Meyer, Atty. Gen., and John Renneisen, Deputy Atty. Gen., Cheyenne, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN, and TAYLOR, JJ.

TAYLOR, Justice.

After granting a petition for rehearing, we are asked to examine whether a government official has qualified immunity from a civil action for deprivation of constitutional rights. Asserting we erroneously decided two issues in Abell v. Dewey, 847 P.2d 36 (Wyo.1993) (reh'g granted 3/16/93), the State of Wyoming and a government official contend that at the time a former employee was dismissed from her position, the law was not "clearly established" that a probationary employee of the executive department of state government would have a constitutionally protected property interest in continued public employment. Further, the State and the government official insist that this question is an issue of law for the court to decide, not an issue of fact as we previously held. The State and the government official argue that if these issues had been properly decided, the government official would have qualified immunity. Upon further review, we hold the government official is entitled to qualified immunity, in his individual capacity, to the cause of action under 42 U.S.C.S. § 1983 (Law Co-op.1986) brought by the former employee.

I. ISSUES

Appellees, the State of Wyoming and Roger W. Dewey, identify two issues for rehearing:

I. The Court erroneously applied the law of qualified immunity, i.e. the law was not clearly established in 1990 that a state probationary employee had a property interest in continued employment, and Appellee Dewey is therefore immune from suit.

II. The question of whether Appellee Dewey is entitled to qualified immunity is solely a question of law and not a question of fact, as indicated in the Court's opinion.

Appellant, Linda M. Abell, summarizes:

I. Whether a reasonable department head working for the State of Wyoming could have believed in January, 1990, that terminating a state employee who was employed pursuant to an employee handbook requiring cause to terminate, without cause to terminate, and without affording her a hearing of any kind, was lawful in light of clearly established law.

II. FACTS

In June of 1989, Linda M. Abell (Abell) completed an application for employment with the State of Wyoming (State). Abell sought a position as an auditor in the Minerals Audit Division of the Department of Audit. Question number twenty-one on the application form inquired: "Have you ever been convicted of an offense in a court of law?" After consulting with her attorney, Abell intentionally failed to answer the question.

Abell maintained her attorney advised her that she had not been convicted of an offense, but that position was confusing due to her prior criminal record; so, she did not respond to the question. In 1984, Abell had entered a plea of nolo contendere to a charge of felony larceny. See Wyo.Stat. § 6-3-402(a) (1988). During a five-year period of employment with Natural Gas Processing, a Worland, Wyoming firm, Abell had stolen $193,737.52 in checks from the firm. The district court sentenced Abell, then known as Linda Wyss, to five years of supervised probation. A related civil action, filed by Natural Gas Processing, was settled out of court.

In July of 1989, the Manager of the Minerals Audit Division of the Department of Audit, John McGrath (McGrath), conducted an employment interview with Abell. In response to a question about her employment history, Abell said: "I left Natural Gas Processing as a result of two very personal and painful lawsuits with my former employer." Without mentioning that one of the "lawsuits" involved a conviction for a felony offense, Abell said the civil lawsuit was settled out of court. Following the interview, McGrath offered Abell the position of Natural Resources Production Principal Auditor.

Abell understood that she would be classified as a probationary employee. According to the Personnel Rules of the then Department of Administration and Fiscal Control (hereinafter personnel rules), a new employee of the executive branch of state government is given a probationary appointment during the first year of continuous service. Chapter IV, Section 7 of the personnel rules explains:

(a) The probationary period is an integral part of the examination process and shall be utilized for closely observing the new employee's work, for securing the most effective adjustment of the employee to the position, and for dismissing any employee without right of appeal whose performance is found not to meet required standards.

Abell accepted the offer and began her employment on August 1, 1989. After about two weeks, Abell discussed her criminal conviction with the Acting Director of the Department of Audit, Stan Hunt (Hunt). Abell told Hunt she was "on probation" for "embezzlement." Abell claimed she could not discuss the details because of a confidential settlement in the related civil action. Hunt requested Abell obtain a confirming letter from the Department of Probation and Parole which was placed in Abell's personnel file. The letter, dated September 21, 1989, was written by Abell's probation officer. The probation officer indicated Abell had entered a plea of nolo contendere to a charge of felony larceny but due to "unusual circumstances," Abell had not been ordered to repay the stolen funds. Abell had been sentenced to five years of supervised probation which was due to expire in February of 1990. Hunt purportedly told Abell the conviction was "not a problem."

On October 15, 1989, Roger W. Dewey (Dewey) was appointed the Director of the Department of Audit. Shortly after he assumed his official duties, Dewey reviewed Abell's personnel file, including the letter from the Department of Probation and Parole. Dewey requested that the Department of Audit's personnel officer seek advice from the Attorney General's office about Abell's status. Dewey expressed his concern about Abell's employment to Hunt. Dewey told Hunt that having an auditor on staff who had a past history of manipulating financial data to her benefit would raise questions about the credibility of Abell's work.

In late October of 1989, Dewey met with Abell to discuss her status with the Department of Audit. Abell informed Dewey that she did not believe she had been convicted of a crime and hoped to have her record expunged in February of 1990 when her probation expired. Abell reported she had taken the checks as her share of what she described as a business partnership with a close personal friend. Abell agreed to sign a release to enable Dewey to obtain additional information from the Department of Probation and Parole. Abell signed the release form on November 21, 1989.

After he received the release form, the Director of the Department of Probation and Parole agreed to meet with the personnel manager of the Department of Audit and Abell. The meeting did not occur until January 8, 1990. Following the meeting, the personnel manager informed Dewey that the Department of Probation and Parole considered Abell to be a convicted felon. Dewey then directed the personnel manager to consult with the Attorney General's office and the executive department's personnel office to determine the proper procedure to terminate Abell's employment.

Dewey and the personnel manager met with Abell on January 10, 1990. Dewey told Abell that the information from the Department of Probation and Parole was a problem. Abell again responded that she did not consider herself a convicted felon. Resignation and various settlement options were discussed, but Abell did not resign.

Dewey delivered a dismissal letter to Abell on January 16, 1990. The personnel rules permitted the dismissal of a probationary employee by letter: "An agency head may dismiss an employee having other than permanent status, without right of appeal, for reasonable cause upon providing written notification to the employee specifying: (A) The reason(s) for the dismissal; and (B) The effective date of the dismissal." The letter stated: "Due to circumstances involved in your criminal case * * *, it will not be possible for this office to effectively adjust you to the Auditor position during your probationary period nor to continue your employment as an Auditor for the Minerals Division." The letter explained Abell was dismissed because: "There is reasonable cause to believe that, as a professional person auditing oil and gas companies, your previous record will have an adverse effect on the credibility of the audits performed by this office, and that your continued employment is detrimental to the operation of the agency."

Abell requested a dismissal appeal hearing. The Personnel Administrator of what is presently the Department of Administration and Information, Mike Miller (Miller), denied the hearing request. Miller informed Abell that under the personnel rules, probationary employees of the executive branch of state government could be dismissed for reasonable cause without a right of appeal.

Abell filed a complaint seeking damages and injunctive relief on January 14, 1991. Abell alleged: a cause of action against the State for breach of a contract of employment; a cause of action against Dewey for depriving Abell of a property interest in her state employment without due process of law in violation of 42 U.S.C.S. § 1983; and a cause of action seeking a declaration that the personnel rules were unconstitutional.

On July 26, 1991, the State and Dewey filed a motion for summary judgment. The State asserted that there was no breach...