Boston v. Webb
| Decision Date | 21 February 1986 |
| Docket Number | No. 85-1078,85-1078 |
| Citation | 783 F.2d 1163 |
| Parties | 121 L.R.R.M. (BNA) 3395 Joseph H.L. BOSTON, Appellant, v. Jack H. WEBB, City Manager of the City of Washington, North Carolina (official capacity); Johnny R. Rose, Chief of Police of the City of Washington, North Carolina (official capacity), Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Herman E. Gaskins, Jr. (Gaskins, McMullan & Gaskins, P.A., Washington, N.C., on brief), for appellant.
Richard T. Rice (Allan R. Gitter, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., James B. McMullan, Jr., McMullan & Knott, Washington, N.C., on brief), for appellees.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Following his discharge from employment as a police officer of the City of Washington, North Carolina, Boston sued the City Manager and the Chief of Police under 42 U.S.C. Sec. 1983, claiming a denial by those officials of his procedural due process rights in connection with his discharge. He now appeals from the district court's grant of summary judgment in favor of the city official-defendants. We affirm.
Boston was a police officer of the City of Washington from April 1976 until July 15, 1983, when he was discharged. His employment, as a matter of state law, was at will. His discharge followed and was based upon allegations made to responsible city officials, beginning in late 1982, that Boston had been accepting bribes from drug dealers in return for information concerning law enforcement investigations. The charges were investigated over a period of some six months. The State Bureau of Investigation participated in it along with local officials. Boston was apprised of the charges and of the investigation early in its course, and was represented by privately retained counsel throughout the ensuing phases of the investigation. The city officials withheld action for several months following the first charge.
In March 1983, city officials received an official report that one Flynn had been tested by polygraph and found truthful with respect to a specific allegation that Flynn had seen Boston take $1,000 from a known or suspected drug dealer named Credle. The city officials still withheld action.
Following the receipt of additional information in late June 1983, that Boston was involved in some way with the drug community in the area, appellee Webb, the City Manager, directed appellee Rose, the Chief of Police, to take action in the matter in order to conclude it. In the follow-up to this directive, on July 8, 1983, Boston took a polygraph test, as had earlier been suggested by the local district attorney, respecting the incident reported by Flynn. On July 15, 1983, following a discussion of the polygraph test results by Webb and Rose, Rose notified Boston that he was terminated. This termination notice informed Boston of his right to a post-termination hearing before appellee Webb, the City Manager, in accordance with the City's code. In accordance with the code, Boston gave timely notice of appeal to the City Manager. A hearing was set for July 27, 1983.
Following discussions between Boston's counsel and the city attorney respecting the procedures to be followed in the hearing before Webb, Webb wrote Boston on July 21, 1983, outlining the procedures. This letter stated that the reasons for the termination would be presented by Rose, the Chief of Police. Following that, Boston would be given an opportunity to present his side of the matter. This letter was followed up a day later by a letter from the city attorney to Boston's counsel which confirmed the essentials of the procedure described by Webb, and stated that Boston would be given an opportunity to question Rose and to present evidence to refute any reasons given by Rose for his termination.
The hearing before Webb proceeded on July 27, 1983, in the form as outlined in the two letters. Present throughout were Webb, Rose, the city attorney, Boston, and Boston's attorney. Rose gave as the specific reason for the termination Boston's taking of a $1,000 bribe. Rose was then questioned, conceding that he had no personal knowledge of the alleged misconduct. Boston testified and denied any improprieties. Credle, the alleged giver of the $1,000 bribe, was presented by Boston and denied giving Boston money at any time. The hearing was recessed without a decision by Webb.
On August 2, 1983, Rose and Webb met with other local officials, including the State Bureau of Investigation official who had administered the polygraph test to Flynn. Flynn was present for what was termed by the local officials an "investigatory meeting." The obvious purpose of this meeting was to seek further verification of Flynn's account of the Credle bribe incident. Boston's counsel was made aware of this meeting and that Flynn would be present. He requested permission for Boston and himself to attend. He was advised by the city attorney that Boston could not attend and that though he was unsure about Boston's counsel's appearing, counsel might submit written questions to be put to Flynn. Boston's counsel declined to submit questions and was not further advised, nor did he apparently seek further advice, as to whether he might appear. At the August 2 meeting, the city officials questioned both Flynn and the state officer who had administered the polygraph test to Flynn. Flynn confirmed his allegation and the officer confirmed the polygraph test result of truthfulness. A tape recording (presumably supplied by Boston's counsel) ostensibly of Flynn's voice denying that he had ever made the charges of bribe-taking was played. Boston's counsel was sought out and brought to the meeting where he verified that the voice recorded was that of Flynn. Boston's counsel was not asked whether he wanted to question Flynn or the state polygraph officer, nor did he request that he be allowed to do so.
On August 5, 1983, Webb wrote Boston's counsel, giving a narrative summary of the evidence received at the August 2 meeting and scheduling a "second ... and final hearing" for August 12, 1983. The stated purpose of that hearing was "for you to rebut the above stated allegations." Boston's counsel then requested and was denied an opportunity to review the documentation of the polygraph examination of Flynn.
The "final hearing" was held as scheduled on August 12, 1983. Present throughout were Webb, Rose, the city attorney, Boston, and Boston's counsel. Neither Flynn nor the polygraph administrator were present, their presence having been requested neither by Boston nor the city officials. The hearing consisted solely of the presentation of evidence by Boston disclaiming any misconduct. No evidence was presented by the city officials. The hearing was recessed that day without any decision by Webb.
On August 16, 1983, following a meeting with the city council, Webb advised Boston that Rose's decision to terminate him was being upheld by Webb. In a press release, Webb stated that Boston had been observed receiving a large sum of money as a bribe, that the decision to terminate Boston was "made on the basis that Boston was warned of the allegations, given the opportunity to disprove the allegations, and was not able to do so."
Boston then brought this action under 42 U.S.C. Sec. 1983 against Webb and Rose in their official capacities, seeking declaratory, injunctive, and monetary relief on the basis that their action had deprived him of constitutionally guaranteed procedural due process. The case was brought to issue on cross-motions for summary judgment, on an evidentiary record essentially as above summarized. A magistrate to whom the case was referred recommended the entry of summary judgment for Boston, concluding that on the undisputed facts, he had been denied procedural due process in connection with his termination. The district court, considering the case on defendants' objection to the magistrate's report, sustained the objections and, concluding to the contrary that there had been no denial of procedural due process, entered summary judgment for the city official defendants.
This appeal followed.
As the district court noted, the critical legal aspect of this case is that Boston concededly had no property interest in his continued employment. This meant that the only procedural due process owed him was that constitutionally due one whose "good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (dictum). That process requires "notice and an opportunity to be heard," id.,...
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