Betts v. City of Edgewater

• Decision Date: 23 October 1986
• Docket Number: No. 85-273-CIV-ORL-18.,85-273-CIV-ORL-18.
• Parties: Douglas W. BETTS, Plaintiff, v. CITY OF EDGEWATER, a municipal corporation, Earl D. Baugh, as Mayor and individually, Louis J. Rotundo, as Councilman and individually, Russell S. Prater, as Councilman and individually, Neil Asting, as Councilman and individually, and James W. Inman, as Councilman and individually, Defendants.
• Court: U.S. District Court — Middle District of Florida

646 F. Supp. 1427

Douglas W. BETTS, Plaintiff, v. CITY OF EDGEWATER, a municipal corporation, Earl D. Baugh, as Mayor and individually, Louis J. Rotundo, as Councilman and individually, Russell S. Prater, as Councilman and individually, Neil Asting, as Councilman and individually, and James W. Inman, as Councilman and individually, Defendants.

No. 85-273-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

October 23, 1986.

Ronald A. Nour, Ormond Beach, Fla., Bruce Rogow, Ft. Lauderdale, Fla., for plaintiff.

Jose B. Alvarez, Deland, Fla., Kimberly A. Ashby, Orlando, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE KENDALL SHARP, District Judge.

This action, alleging a violation of constitutionally protected property rights by defendants, was tried before the Court without a jury. At the end of plaintiff's case, the Court granted defendants' motion for involuntary dismissal in accordance with Rule 41(b) of the Federal Rules of Civil Procedure. Based upon the facts admitted by the parties in their joint pre-trial stipulation, the testimony, and evidence admitted at trial, the Court enters the following findings of fact and conclusions of law, pursuant to Rules 41(b) and 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff Douglas W. Betts was interviewed as a candidate for Edgewater Police Chief before a Special Meeting and Workshop of the Edgewater City Council (City Council, council) on July 12, 1984. At that meeting, plaintiff was told that there was a six-month probationary period and that there would be no employment contract. The testimony of a member of that City Council, Melbourne Wargo, was that no department heads had employment contracts with the city.

Plaintiff was appointed Chief of Police for the City of Edgewater, Florida, by Resolution No. 84-R-32 of the City Council on July 16, 1984, effective on August 1, 1984. Among other terms and conditions of employment, plaintiff's position was contingent upon a satisfactory background investigation; successful completion of a six-month probationary period; and service at the will of the City Council. His annual salary was $22,500.00. Regarding termination, Resolution 84-R-32 provided:

Termination of the appointment shall be by thirty (30) days written notification from either party. If the City Council chooses to terminate the applicant at any time after the probationary period, the thirty (30) days written notification shall provide written reasons and afford an opportunity for the Chief to be heard.

The City Council held a Special Meeting on October 19, 1984, at which plaintiff was present. A major topic of discussion was the purchase of police vehicles by plaintiff, who allegedly did not comply with the city's purchasing regulations. Plaintiff read a prepared statement, which attributed his problems in administering the Police Department to the City Clerk. He described the low morale of the Police Department; the concern regarding his remaining in office; and the City Clerk's attempts to discredit him and his staff by attacking their decisions. The upshot of this meeting was that there must be cooperation among the City Council, the City Clerk and the Police Chief, and that plaintiff must be more careful regarding city purchasing procedures in the future.

In October, 1984, the City of Edgewater made an inquiry into plaintiff's employment as a Florida Highway Patrol Officer from May 3, 1976 to March 15, 1977. The Florida Department of Highway Safety and Motor Vehicles responded that plaintiff was not eligible for rehire based upon his unsatisfactory performance as a patrol officer. Because of plaintiff's "Conditional" rating by his immediate supervisor on his nine-month Employee Performance Evaluation, plaintiff's probation period was extended three months from February 3, 1977 to May 2, 1977. Plaintiff resigned from the Florida Highway Patrol on February 23, 1977, effective March 15, 1977. Cross examination of plaintiff elicited that his previous law enforcement employment was characterized by short tenures, reprimands, and a probation period.

In November, 1984, four of the five City Council members were voted out of office; thus, they acted in a "lame duck" capacity. At a Special Meeting of the City Council on November 16, 1984, a motion to give plaintiff a one-year contract was withdrawn after the Mayor noted that only the City Attorney and City Engineer were under contract and that he would not endorse a contract for plaintiff. Councilman Asting expressed concern regarding any attempt "to tie the hands" of the new Council, following the local election. On November 19, 1984, the City Council approved Resolution No. 84-R-56, which repealed conflicting resolutions, removed plaintiff from probation status, and appointed him Chief of Police of Edgewater. With respect to termination, Resolution 84-R-56 stated:

Termination of this appointment shall be for cause only, said cause being malfeasance, misfeasance or nonfeasance, after written charges specifying the reasons therefor and an opportunity to refute said charges at a hearing that shall afford procedural due process.

On November 28, 1984, a Special Meeting of the newly elected City Council was held to consider, among other matters, Resolution 84-R-56. The general consensus of the new City Council, concurred in by a representative Edgewater citizen, was that they desired to review plaintiff's performance as Police Chief and to reinstate his original six-month probationary period would provide this opportunity. Plaintiff's counsel, who attended the Special Meeting, stated that plaintiff considered Resolution 84-R-56 to be a binding employment contract upon the City of Edgewater. He also explained that the section of Resolution 84-R-56, which repealed conflicting resolutions, eliminated Resolution 84-R-32, and, consequently, plaintiff's "at will" employment. Therefore, under Resolution 84-R-56, plaintiff's attorney argued that plaintiff could not be terminated except "for cause" and with appropriate due process. He contended that to restore plaintiff to probation was a disciplinary action to which the same due process should be accorded as with termination under Resolution 84-R-56. The City Council countered that Resolution 84-R-56 was not an employment contract and that the due process associated with termination was not triggered with replacing plaintiff on non-disciplinary probation in order for the new City Council to evaluate his performance as Police Chief. Accordingly, a motion was passed that the City Attorney prepare a resolution reinstating plaintiff to his original six-month probation period, which had commenced August 1, 1984, with no change in his pay or responsibilities.

The City Council had a regular meeting on December 3, 1984, at which the resolution restoring plaintiff to probationary status was an item of business. Plaintiff attended the meeting and stated that the proposed resolution deprived him of the property right of job security without due process, including reasonable notice and a hearing. The City Council told plaintiff that he merely was being returned to his original, agreed terms of employment; that he was losing no rights as Police Chief; and that he was not being threatened with termination. Accordingly, the City Council passed Resolution No. 84-R-61, which reinstated plaintiff's original probationary status until February 1, 1985, repealed conflicting resolutions, and was immediately effective.

At the City Council Special Meeting and Workshop on Friday, January 11, 1985, Councilman Asting, the one councilman who remained on the City Council after the November, 1984, election, observed that there had been no improvement with purchasing procedures utilized by plaintiff. This was confirmed by the Mayor and City Clerk. He also stated that plaintiff had represented that the three police cars purchased by the city were to be used for patrol work. Instead, only one was being used for patrol, one was being used by plaintiff, and the other was being used by plaintiff's assistant/records clerk/secretary. Councilman Asting wanted an explanation for this violation of the agreement for the use of the police cars between the City Council and plaintiff. Plaintiff responded that he had not made such a promise.

The Mayor recounted instances when plaintiff was inexplicably away, such as a trip to the West Coast. Council members stated their concern about plaintiff's traveling eighty-five miles per hour on the highway and asked the reason for his hurry. Plaintiff responded that he could not remember.

Plaintiff was questioned regarding his assistant/records clerk/secretary. The council elicited that, instead of using Police Department pagers, plaintiff and his assistant were using two of her personal pagers because of wider range capability and that the city was paying rent for these pagers. Furthermore, plaintiff admitted that his assistant had a city police radio in her private car because of the responsibility that he had given her and his need to contact her. Plaintiff was informed by Councilman Asting that this was misuse of city property. The Mayor also told plaintiff that his allowing his assistant to drive a patrol car to Seminole Community College was a misuse of the city car and a violation of the City Council's direction.

With respect to affirmative action, plaintiff was asked why in August, 1984, he rejected a female officer applicant, who required a forty-hour refresher course to be recertified, and later asked the City Council to send his assistant to school for 420 hours. Plaintiff responded that the position was "spoken for" and stated that he was not satisfied with the applicant. The Mayor also stated that plaintiff had told him that he did not have any openings, which was recorded in the council minutes, and a week later hired a new man. Plaintiff responded that he did not remember such...