Dahlinger v. Town Board of Town of Delavan, 74-C-280.

• Decision Date: 04 September 1974
• Docket Number: No. 74-C-280.,74-C-280.
• Citation: 381 F. Supp. 474
• Parties: Harold J. DAHLINGER, Plaintiff, v. TOWN BOARD OF the TOWN OF DELAVAN et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

381 F. Supp. 474

Harold J. DAHLINGER, Plaintiff, v. TOWN BOARD OF the TOWN OF DELAVAN et al., Defendants.

No. 74-C-280.

United States District Court, E. D. Wisconsin.

August 1, 1974.

Supplemental Opinion September 4, 1974.

COPYRIGHT MATERIAL OMITTED

Braden & Olson by John O. Olson, Lake Geneva, Wis., for plaintiff.

Kenny & Clair by J. Edward Clair, Delavan, Wis., Kluwin, Dunphy, Hankkin & Hayes by Michael J. Pfau, Milwaukee, Wis., for defendants.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

This matter is before me on the plaintiff, Harold Dahlinger's motion for a temporary restraining order. Mr. Dahlinger was appointed chief of police for the town of Delavan, Wisconsin, by the defendant town board on May 24, 1972. On June 16, 1974, he was advised by two members of that three-member body that he was suspended with pay pending a closed board meeting scheduled for June 19, 1974, with respect to certain charges of misconduct against him.

At the June 19, 1974, meeting the plaintiff again received oral notice as to the general nature of the charges against him and refused to resign. He first received written notice of various charges of misconduct eight days later, on June 27, 1974.

This action was filed on July 9, 1974, two days before the defendant board was scheduled to meet for the purpose of publicly considering the charges against Mr. Dahlinger. At the July 11 meeting, which lasted for four hours, the plaintiff was represented by counsel and, according to the defendants, he was invited to confront his accusers, cross-examine witnesses and present his own case. On July 17, 1974, the defendants Gifford and DeHaan, acting as the town board, served a letter upon Mr. Dahlinger informing him of their decision that his employment as chief of police was to be terminated as of July 18, 1974.

The plaintiff seeks declaratory and injunctive relief as well as damages against the town board and its members, both as individuals and in their official capacity. He claims that the notice and hearing procedures which were afforded him failed to comport with the requirements of due process for the following reasons: (1) It was not until 11 days after he was suspended that he received written notice of the charges of misconduct; (2) the members of the town board acted as investigators and also sat in judgment of the charges; and (3) his inability to subpena witnesses effectively denied him the opportunity to present his own case. I conclude that the plaintiff's motion for a temporary restraining order should be granted.

At the time he was suspended, Mr. Dahlinger appears to have had a justifiable expectancy of continued employment as chief of police; this constitutes a property interest protected by due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1970). Moreover, it is recognized that "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Larkin v. Withrow, 368 F.Supp. 793 (E.D.Wis.1973).

There exists no inherent right in a public employee to a pre-suspension, as opposed to a pre-termination, hearing. Wilson v. North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865 (1898); Fair v. Kirk, 317 F.Supp. 12, 16 (N.D. Fla.1970). The eradication of corrupt practices in government is such an important responsibility that suspension of a public employee prior to a hearing is consonant with due process. Miller v. Iowa State ASCS Committee, 374 F. Supp. 415 (S.D.Iowa, 1974). Moreover, the need for a pre-suspension hearing is not present where, as here, Mr. Dahlinger continued to receive his salary while suspended.

A full pre-termination hearing complying with procedural due process is clearly required, however. Indeed, the whole theory of termination "for cause" presupposes a right to hearing, notice and appeal. Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir. 1969). The government's interest in maintaining efficiency and effectiveness through the prompt suspension of an employee is thus balanced against the employee's interest in avoiding termination or continued suspension "for cause" when it is not warranted by the facts. Kennedy v. Sanchez, 349 F.Supp. 863, 865 (N.D.Ill. 1972).

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court indicated that for a "for cause" type hearing to satisfy the requirements of due process the following should be provided: (1) Written notice of the charges; (2) disclosure of the evidence supporting the charges; (3) an opportunity to be heard in person and to present witnesses and evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached decision-making body, no member of which has engaged in the investigation of the charges. See Miller v. Iowa State ASCS Committee, 374 F.Supp. 415, 419 (S.D. Iowa, 1974).

Set forth at § 62.13(5), Wis. Stats., is a procedure providing for notice, hearing, and appeal which boards of police commissioners must follow in "disciplinary actions against subordinates", including police chiefs. The protections outlined therein are in line with those contemplated by the Supreme Court in Morrissey.

Population alone precludes the town of Delavan from commissioning such a board and from coming directly within the terms of that regulatory statute. § 62.13(8), Wis.Stats. The authority for the defendant town board to appoint and terminate the plaintiff is found at § 60.29, Wis.Stats., and the defendants urge that such authority is entirely discretionary. See Adamczyck v. Caledonia, 52 Wis.2d 270, 190 N.W.2d 137 (1971).

No statute expressly requires a town board which is engaged in a disciplinary action against a police officer to follow the procedures observed by its large-city counterpart, the board of police commissioners. Nevertheless, § 60.29(9), Wis.Stats., authorizes a town board to adopt by-laws to regulate the conduct of its policemen.

My reading of § 60.18(3) indicates that the town meeting has the power to make by-laws for the management of the police department, including procedures such as are set forth in § 62.13(5), for discharging police officers. I conclude that, to the extent it is practicable, a town is required to provide those in its employ with the same procedural due process safeguards enjoyed by comparable employees of cities in Wisconsin. Equal protection considerations compel such a conclusion.

While the town board permitted Mr. Dahlinger to be represented by counsel and invited him to cross-examine witnesses as well as present his own case, I find that the notice and the hearing given to Mr. Dahlinger on July 11, 1974, were constitutionally deficient in several respects.

First, Mr. Dahlinger was not served with written notice of the misconduct charges until some 11 days after he was suspended and two weeks prior to the challenged hearing. A police chief of a Wisconsin city would have been entitled to receive written charges at the time of suspension notification. See § 62.13(5) (b), Wis.Stats.

Secondly, unlike the accused in a § 62.13(5) proceeding, Mr. Dahlinger was unable to subpena certain witnesses whose testimony he claims would have exonerated him. His ability to present his own case was damaged. Compare § 62.13(5)(b), Wis.Stats. Moreover, while the defendant town board claimed at the time of...