Conine v. City of Marinette
| Decision Date | 01 November 1994 |
| Docket Number | No. 94-0933,94-0933 |
| Citation | 527 N.W.2d 400,189 Wis.2d 493 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Peter M. CONINE and Lois J. Conine, Plaintiffs-Appellants, v. CITY OF MARINETTE, a municipal corporation; Common Council of the City of Marinette; Nancy Mann, individually and in her capacity as Administrator of Utilities for the City of Marinette; and Employers Insurance of Wausau, a mutual company, a Wisconsin corporation, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
CANE.
Peter Conine appeals a summary judgment dismissing his action seeking reinstatement and damages following his discharge as deputy administrator of utilities for the City of Marinette. Conine lost his employment when the common council adopted an ordinance eliminating the position of deputy administrator. Conine filed this lawsuit alleging claims for a violation of 42 U.S.C. § 1983, misrepresentation, breach of contract and promissory estoppel. His wife, Lois Conine, also filed a claim for loss of consortium. 1
The dispositive issue in review of the § 1983 claim is whether there are material disputed facts bearing on Conine's contention that the City's reliance upon the "reorganization" exception to avoid the requirement of a predischarge hearing is a sham or a pretext. Because Conine's proofs in opposition to summary judgment fail to show a pretextual reorganization, as that phrase is defined by the case law, we affirm the dismissal of the § 1983 claim. Because the doctrine of governmental immunity bars the claim for negligent misrepresentation, we also affirm dismissal of that claim. Finally, because Conine failed to show any causal connection between his alleged damages and the intentional misrepresentation by a city official, that claim also fails. 2 We therefore affirm the summary judgment.
Conine's affidavit in opposition to summary judgment included the following factual assertions. He was appointed to his position by administrator of utilities, Nancy Mann, in 1989. During hiring interviews, he asked Mann about "relationships between City Hall officials and the Utilities Boards and staff." She represented that there were "no problems and ... everybody gets along real well." However, after Conine accepted the position, he discovered a "longstanding feud" between the mayor and the utility boards, and that the mayor had plans "to strip the Utility Boards and Nancy Mann of all ... authority." He attached newspaper articles he found in a file at the utility board office describing a proposal to reduce the two city boards to advisory status. Conine stated that he would not have resigned a position he held for ten years in Wausau, sold his home at a loss, and incurred the expenses of moving his family to Marinette for a new position if he had known of the preceding problems. Conine also stated that he was given only a one week's notice and no hearing prior to the abolition of his position by the common council in June 1991. In response to demands from Conine's attorney, city officials advised Conine that the reason for eliminating the position of deputy director was a "budgetary crisis." Conine stated that it was his opinion that there was no budgetary crisis, as evidenced by a $500,000 utility budget surplus and 6% pay raises given to Mann and other staff members. The circuit court rejected Conine's affidavit and proofs as insufficient to bar summary judgment on all claims.
We apply the same summary judgment methodology as the circuit court. Bantz v. Montgomery Estates, 163 Wis.2d 973, 977, 473 N.W.2d 506, 508 (Ct.App.1991). Summary judgment is rendered pursuant to § 802.08(2), Stats., where a determination of an issue of law concludes the case. Northwest Eng. Credit Union v. Jahn, 120 Wis.2d 185, 187, 353 N.W.2d 67, 68 (Ct.App.1984).
Ordinarily, the first step to determine the validity of a 42 U.S.C.1983 claim is an inquiry into whether the plaintiff had a "protected property interest in a benefit." Hough v. Dane County, 157 Wis.2d 32, 40-42, 458 N.W.2d 543, 546-547 (Ct.App.1990). 3
We will assume without deciding that Conine has shown the requisite property interest by virtue of the provisions of § 17.12(1)(c), Stats. 4 We do so because, despite the existence of a property interest, the law recognizes an exception to the right to a due process hearing where a government reorganization eliminates a position of employment. Misek v. Chicago, 783 F.2d 98 (7th Cir.1986), cited with approval in Dane County v. McCartney, 166 Wis.2d 956, 968, 480 N.W.2d 830, 835 (Ct.App.1992).
The plaintiffs in Misek, as is the case with Conine, were employed by a municipality, in that case the City of Chicago's Health Systems Agency. Id. at 100. As is the case with Conine, their jobs were protected by a "for cause" provision in a state statute. Id. As is also the case here, the city claimed an exception to the requirement for a due process hearing because the discharge was caused by "reorganization." Id. Finally, as is true of Conine, the plaintiffs claimed the reorganization was a sham or pretext. Id.
The Misek court held that plaintiffs' affidavits stated facts to show that the "so-called reorganization ... was purely pretextual...." Id. It is critical, however, to examine the meaning Misek gives the term "pretextual reorganization." That court noted that the plaintiffs' factual assertions in their affidavits were sufficient to prove there was "no reorganization of the agency," and that the city was actually only replacing the discharged workers with others more favored. Id. With those facts in mind, the court "easily distinguish[ed]" several other decisions that the district court had erroneously relied upon in applying the "reorganization exception" to deny a hearing. Id. at 100-01.
Misek pinpointed the critical fact essential to the holds in those other decisions. In each of those cases, the plaintiff had not challenged the fact that his job was abolished; he or she challenged the bad faith or political motive for the city council's decision to eliminate the position Id. at 101. Misek held:
These cases are factually distinguishable from the case before us. In each of the above cases the plaintiffs admitted that their jobs had been abolished and that a reorganization had in fact taken place. Here the plaintiffs assert that the reorganization was a sham and that their jobs were never abolished.
Conine is in the precise position of the plaintiffs in the cases distinguished by Misek. He is challenging the abolition of a position on the basis of the motives of the common council. He states that the council's action was the result of a political feud between the mayor and the officials in his agency, reciting extensive newspaper headlines to substantiate his contention. He recites the fact that there was a surplus in the utilities budget of a half million dollars, and that the money was used to grant the remaining officials a substantial raise shortly after his position was eliminated. He never disputes that the position of deputy administrator of utilities was in fact eliminated.
Long-standing Wisconsin case law also recognizes that the motive of a legislative body in enacting legislation is not a proper subject of judicial inquiry; it is enough that the council had the power under the city charter and acted in the manner prescribed by law. State ex rel. Miller v. Baxter, 171 Wis. 193, 198, 176 N.W. 770, 772 (1920). In Baxter, a City of Superior police officer challenged an ordinance adopted by the city council reducing the number of police officers. Despite a finding of fact by the trial court that the discharge was not in the interest of economy, but was for the purpose of evading the "for cause" powers afforded the police and fire commissioners, our supreme court rejected the plaintiff's attempt to be restored to office. Id. at 196-97, 176 N.W. at 772.
Thus, allegedly improper political motives of a legislative body in reorganizing government does not eliminate the recognized "reorganization" exception to the due process hearing requirements otherwise afforded an employee. The elimination of Conine's position eliminates the rights otherwise afforded by the provisions of § 17.12(1)(c), Stats.
Conine also maintains, however, that even if his civil rights claim fails, the trial court erred by dismissing the remainder of his action. Conine pled intentional misrepresentation and, alternatively, negligent misrepresentation. He cites cases from other jurisdictions that recognize claims against private employers for misrepresentation arising out of fraudulent inducement to take employment.
The City seeks to apply the doctrine of governmental immunity to bar the negligent misrepresentation claim. The immunity for public bodies and officials for negligent acts undertaken in their official capacities derives from the common-law. Harkness v. Palmyra-Eagle School Dist., 157 Wis.2d 567, 574, 460 N.W.2d 769, 772 (Ct.App.1990). Section 893.80(4), Stats., grants immunity to municipalities for "quasi-legislative" and "quasi-judicial" acts, and those terms have been held to be synonymous with "discretionary" acts. Harkness, 157 Wis.2d at 574, 460 N.W.2d at 772. Thus, a public officer or body is immune from suit where the act or acts complained of are "discretionary" as opposed to merely "ministe...
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