Barber v. Inhabitants of Town of Fairfield

• Citation: 460 A.2d 1001
• Parties: Robert T. BARBER v. INHABITANTS OF TOWN OF FAIRFIELD and H. Dale Green.
• Decision Date: 10 May 1983
• Court: Maine Supreme Court

Page 1001

460 A.2d 1001

Robert T. BARBER v. INHABITANTS OF TOWN OF FAIRFIELD and H. Dale Green.

Supreme Judicial Court of Maine.

Argued March 10, 1983.

May 10, 1983.

Law Offices Burton G. Shiro, Louis J. Shiro (orally), Waterville, for plaintiff.

Preti, Flaherty & Beliveau, John P. Doyle, Jr. (orally), Portland, Peter J. Beckerman, Waterville, for defendant.

Before GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

CARTER, Justice.

The plaintiff, Robert Barber, was dismissed as Police Chief of the Town of Fairfield. Pursuant to Rule 80B, M.R.Civ.P., he filed an appeal to the Superior Court, Somerset County. After an evidentiary hearing, the court sustained the appeal. The defendants, the town et al., appeal the judgment of the Superior Court. The plaintiff cross-appeals from the entry of judgment in the amount of $768.38, representing back pay from the date of dismissal to the date of the termination of the plaintiff's one-year employment contract. For reasons other than those relied upon by the Superior Court, we affirm the judgment which the town has appealed. As for Barber's appeal, we affirm the judgment in part and remand for further proceedings consistent with this opinion.

I. Procedural and Factual Background

Since 1976, the plaintiff, Robert Barber, had been appointed Chief of Police of the Town of Fairfield pursuant to one-year employment contracts. On February 8, 1978, Dale Green, the Town Manager of Fairfield, sent a letter to the plaintiff which indicated that because Green had lost confidence in the plaintiff's ability to operate the department, Barber would not be reappointed police chief for the ensuing year. The letter further provided that the plaintiff had "the right to request a review of my [Green's] action by the Town Council." The plaintiff thereafter requested a hearing before the Town Council of Fairfield. On February 14, 1978, Green notified Barber that he was suspended with pay pending the hearing before the town council. At the March 1, 1978 hearing, the town council was asked to determine whether Green had "sufficient reason not to reappoint Barber." In a 2-2 vote, the council refused to support Green's decision. On March 22, 1978, Barber was reappointed for another year until March 31, 1979.

On March 6, 1979, Green asked the plaintiff to resign but the plaintiff refused to do so. Green subsequently handed the plaintiff a six-page letter dated March 5, 1979 and signed by Green informing the plaintiff that he was "removed from and dismissed" as the police chief "effective immediately." The letter cited sixteen reasons for his decision. The letter further read that "if you [the plaintiff] wish to appeal my [Green's] decision to remove you from your position ... which decision is effective immediately, ... you have the right and the opportunity to a fair hearing before the Fairfield Town Council which will meet in a Special Town Council Meeting ... on Tuesday March 13, 1979." Finally, the letter informed the plaintiff that he would be paid from March 6 to March 13, the hearing date.

The plaintiff subsequently retained counsel, Jed Davis, Esq. By letter dated March 8, 1979, Davis informed the chairperson of the town council that because the plaintiff was dismissed without notice and a hearing, rendering the dismissal improper, the March 13 hearing on his appeal to the town council was "entirely out of order." The town attorney for Fairfield contacted Davis by a letter dated March 9, 1979. The letter read that the plaintiff had been merely "suspended with pay not dismissed" pending a final determination after a fair hearing. Mr. Davis was scheduled to be away on vacation during the March 13 hearing. The plaintiff, therefore, obtained other counsel to represent him at the hearing.

On March 13, the plaintiff appeared before four members of the town council. One member, David Dulac, was not present; Mr. Dulac testified at trial that he was not in favor of the dismissal. He further stated that he had told Green that he would be away on vacation on March 13. Plaintiff's counsel informed the town council and Green that the plaintiff was not ready to proceed with the hearing. Plaintiff's counsel cited the following reasons: (1) plaintiff had been dismissed without a prior hearing in violation of 30 M.R.S.A. §§ 2317(1)(N) and 2361 (1978), (2) David Dulac, a town council member who was expected to testify for the plaintiff, was away on vacation, and (3) Mr. Davis, plaintiff's counsel, was away on vacation. ¹ After some discussion, the plaintiff and his counsel left the hearing. No evidence was ever presented.

In a letter dated March 14, 1979, Green informed the plaintiff that by "walking out" of the hearing the plaintiff waived all due process rights to a fair hearing. Green further notified the plaintiff that 30 M.R.S.A. § 2317(1)(N) granted him, Green, as town manager, the "exclusive authority" to remove the plaintiff as police chief without any opportunity for any appeal to the town council. Green thereafter dismissed the plaintiff.

Shortly after the hearing, Mr. Davis was informed by the plaintiff that he would no longer be representing the plaintiff. For the remainder of the proceedings, Barber was represented by the law office that appeared for him at the aborted hearing.

On May 1, 1979, the Town of Fairfield appointed David DiTomaso as chief of police. He accepted the position despite the uncertainty of his status created by this pending lawsuit.

Pursuant to Rule 80B, M.R.Civ.P., the plaintiff filed in Superior Court, Somerset County, a complaint, later amended, alleging that he was dismissed as the Police Chief of the Town of Fairfield without a pretermination hearing in violation of 30 M.R.S.A. §§ 2317(1)(N) and 2361(1) and of the due process clause of both the Maine and United States Constitutions, and that because his attorney and one of his witnesses were away on vacation, the hearing should have been postponed until April 1, 1979. ² The plaintiff requested reinstatement and full back pay from the time of his dismissal to his reinstatement. ³

After a jury-waived trial, the court entered a judgment on behalf of the plaintiff. The justice ruled that the March 5 letter acted as an "unequivocal dismissal," not a suspension with pay, which violated 30 M.R.S.A. § 2317(1)(N) and due process because no pretermination hearing was held. ⁴ The justice further determined that neither the statute nor the town charter indicated that a police chief hired on a yearly contract is entitled to a hearing if his appointment is not renewed. The justice ruled, therefore, that because the term of his appointment had expired on March 31, 1979, the plaintiff was not entitled to reinstatement and that the plaintiff was only entitled to back pay from March 13 to March 31, $768.38. Finally, the justice ruled that Rule 80B does not provide the court with the authority to order attorney fees.

II. The Town's Appeal

The town first contends that the plaintiff did not have a property interest in his employment which would have given rise to due process protection. The requirement of procedural due process applies to deprivations of liberty or property interests. U.S. Const., amend. 14; Me. Const., art. I § 6-A. In this case, the plaintiff claims a property interest and does not assert any liberty interest. "A property interest in public employment can be created by a statute or ordinance that restricts the grounds upon which an employee may be discharged." Lovejoy v. Grant, 434 A.2d 45, 50 (Me.1981); see Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir.1981); State ex rel. Sweikert v. Briare, 94 Nev. 752, 755, 588 P.2d 542, 544 (1979); see also Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972) (state law may create property interest in public employment).

Title 30 M.R.S.A. § 2317(1)(E) (1978) authorizes the town manager to appoint the chief of police. Title 30 M.R.S.A. § 2317(1)(N) (1978) provides:

1. Duties. The town manager shall:

N. Have exclusive authority to remove for cause after notice and hearing all persons whom he is authorized to appoint and report all removals to the board of selectmen.

Section 2317(1)(N), therefore, enables the town manager to remove the police chief for cause after a hearing. In addition, 30 M.R.S.A. § 2361(1) (1978) reads, in part:

Police officers may be removed for cause after notice and hearing. ⁵

By providing that the plaintiff can be removed for cause after notice and hearing, both sections 2317(1)(N) and 2361 specifically limit the defendant's power to discharge the plaintiff. These statutes, therefore, create a property interest in the plaintiff's employment as the Police Chief of the Town of Fairfield.

The town also contends that even assuming a property interest exists, the justice erred in determining that the March 5 letter to the plaintiff acted as an unequivocal dismissal without the benefit of a prior hearing in violation of 30 M.R.S.A. § 2317(1)(N) and of the due process clauses of both the State and Federal Constitutions. By enacting sections 2317(1)(N) and 2361, the Legislature intended to ensure that municipalities discharge police chiefs only after compliance with due process rights, notice, a hearing, and removal for cause. See L.D. 231, Statement of Fact (109th Legis.1979). These statutes do not attempt to prevent a municipality from suspending a police chief prior to a hearing. When an officer is charged with misconduct, suspension pending a hearing is "fair and often necessary" for the protection of the public against delinquent officials. Griffin v. Denton, 61 Ariz. 454, 458, 150 P.2d 96, 98 (1944); Russo v. Walsh, 31 N.J.Super. 558, 561, 107 A.2d 528, 531 (1954), aff'd, 18 N.J. 205, 113 A.2d 516 (1955).

The March 5 letter from Green, the town manager, did provide that the plaintiff was dismissed effective immediately. The letter, however, further provided that the...