Bechard v. Rappold

• Decision Date: 19 April 2002
• Docket Number: No. 00-35956.,00-35956.
• Citation: 287 F.3d 827
• Parties: Gordon BECHARD, Plaintiff-Appellant, v. William RAPPOLD, individually and in his capacity as Pondera County Commissioner; Dale Shelton, individually and in his capacity as Pondera County Commissioner; Robert Hovde, individually and in his capacity as Pondera County Commissioner; Pondera County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.3d 827

Gordon BECHARD, Plaintiff-Appellant, v. William RAPPOLD, individually and in his capacity as Pondera County Commissioner; Dale Shelton, individually and in his capacity as Pondera County Commissioner; Robert Hovde, individually and in his capacity as Pondera County Commissioner; Pondera County, Defendants-Appellees.

No. 00-35956.

United States Court of Appeals, Ninth Circuit.

Argued January 7, 2002.

Submitted January 22, 2002.

Filed April 19, 2002.

Jeff R. Lynch, Alexander, Baucus, Taleff & Paul, P.C., Great Falls, MT, for the plaintiff-appellant.

Roger T. Witt, Ugrin, Alexander, Zadick, & Higgins, P.C., Great Falls, MT, for the defendants-appellees.

Appeal from the United States District Court for the District of Montana Richard F. Cebull, Magistrate Judge, Presiding. D.C. No. CV-97-00011-RFC.

Before THOMAS, GRABER and GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge.

Gordon Bechard ("Bechard") appeals the district court's order granting summary judgment in favor of the Pondera County Commissioners and Pondera County ("defendants") on his claims for wrongful termination under Montana law and for violation of his civil rights under 42 U.S.C. § 1983. We review de novo, Schultz v. Sundberg, 759 F.2d 714, 716 (9th Cir.1985) (per curiam), and reverse the judgment below and remand for further proceedings.

Bechard's claims stem from defendants' decision to terminate him from his position of administrative assistant to the Pondera County Commissioners ("Commissioners"). The district court granted summary judgment because it concluded that defendants were entitled to legislative immunity for their actions in terminating Bechard.

Bechard was employed as an administrative assistant to the Commissioners from May 1, 1990, through March 15, 1996. He was terminated three and one-half months before the end of the County's fiscal year, and he was given severance pay equal to three and one-half months of salary. Upon termination, Bechard received a letter from the Commissioners stating that, although the termination was for "budgetary reason[s,] ... it [was] in the best interest of both parties to end [the] relationship immediately."

Bechard received the letter at 4:00 p.m. on Friday, March 15, 1996. He was immediately escorted from the building and directed not to return. The Commissioners in their deposition testimony said that the termination was conducted in this way for security reasons. After his termination, Bechard's duties were divided up between the Commissioners and the Office of the Clerk and Recorder.

No formal minutes were taken at the meeting or meetings at which the Commissioners unanimously decided to terminate Bechard. An entry to the effect that his position had been terminated for budgetary reasons was made in the County's Minute Book almost a week after the termination and not contemporaneously with it. The Commissioners indeed did not pass a resolution formally terminating the position until seventeen months after they had terminated Bechard.

The dispositive issue here is whether defendants are entitled to legislative immunity for their actions in terminating Bechard. In San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470 (9th Cir.1998), we stated our rule governing legislative immunity, which bars suits against legislators when they have

act[ed] in their legislative capacities, not in their administrative or executive capacities. In this circuit, we determine whether an act is legislative by considering two questions: (1) whether the act involves ad hoc decisionmaking, or the formulation of policy; and (2) whether the act applies to a few individuals, or to the public at large.

Id. at 476 (citations and internal quotation marks omitted). Additionally, in evaluating whether an act is legislative, we have been directed by the United States Supreme Court to look to whether the act is "formally legislative[in] character" and whether it bears "all the hallmarks of traditional legislation." Bogan v. Scott Harris, 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).

Although the decision to eliminate a position for budgetary reasons is clearly legislative, id., "[t]he decision to demote and to discharge a specific individual is an administrative act" that is not clothed in legislative immunity. Chateaubriand v. Gaspard, 97 F.3d 1218, 1221 (9th Cir.1996). The federal constitution grants legislative immunity explicitly only to members of the federal Congress. See U.S. Const. art. I, § 6, cl. 1; see also Tenney v. Brandhove, 341 U.S. 367, 372-73, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). But the application of the legislative immunity doctrine to local legislators, such as county commissioners, is now well-established. See Bogan, 523 U.S. at 49, 118 S.Ct. 966. Under this settled law, the issue that we must decide is whether the Commissioners' termination of Bechard was legislative, and protected by immunity, or administrative, in which case immunity is not a defense.

We conclude that defendants' actions in terminating Bechard, whether justified or actionable, were in any event not entitled to legislative immunity. The predominant circumstances surrounding Bechard's termination suggest that it involved ad hoc decisionmaking rather than the formulation of policy and that it initially affected only Bechard rather than affecting a large number of people. Moreover, the decision to terminate him neither was formally legislative in character, nor did it bear the hallmarks of traditional legislation.

We look, in part, to Montana law in evaluating these issues. In Montana, "[a]ll meetings of the board of county commissioners must be public," Mont.Code Ann. § 7-5-2125, and the commissioners' powers of self-government "may be exercised only by ordinance or resolution." Mont. Code Ann. § 7-1-104. The commissioners must record "all orders and decisions made by them and the daily proceedings had at all regular and special meetings" in a "`Minute Book.'" Mont.Code Ann. § 7-5-2129(1).

But here, no description of any proceeding at which the Commissioners decided to terminate Bechard appears in the record. And it is clear from the Commissioners' depositions, particularly the deposition of Robert Hovde, that the decision was not made at all at a public meeting.¹ The same deposition testimony also suggests that minutes were not taken during the proceeding at which the decision was made and that the decision was not made by ordinance or resolution. Thus, the decision did not meet the legislative requirements of the Montana statutes cited above.

5. That the Commissioners did not make the decision in accord with the legislative requirements of Montana law supports the conclusion that their termination of Bechard was the product of ad hoc decisionmaking rather than of policy formulation. Similarly, the fact that many of Bechard's duties continued to be performed by other County employees suggests that the termination decision was an ad hoc, administrative decision relating to Bechard rather than a policy decision that his position was no longer necessary because his duties were no longer required. Because the above facts suggest that Bechard's termination was the product of ad hoc decision-making rather than of policy formulation, the termination does not meet San Pedro Hotel Co.'s first requirement for legislative immunity. 159 F.3d at 476.

As for the second prong of San Pedro Hotel Co.'s test for legislative immunity, it is clear that the decision initially affected only Bechard rather than affecting a large number of people. 159 F.3d at 476. While it is true that a local government's budgetary decision to terminate a position can be said to affect all constituents of the locality, see Bogan, 523 U.S. at 56, 118 S.Ct. 966, here the Commissioners did not make a resolution eliminating the position until seventeen months after Bechard's termination. Thus, the decision to terminate Bechard (a decision which affected only Bechard) appears to have been made separately from the later decision to terminate his position, a decision which affected all the citizens of the County.²

Viewed in the light most favorable to Bechard, the Commissioners' conduct in terminating Bechard several months before the end of the fiscal year and in immediately escorting Bechard from the building and directing him not to return suggests an administrative decision to terminate Bechard rather than a policy decision to eliminate the position ...