DeBono v. Vizas

• Decision Date: 28 February 1977
• Docket Number: Civ. A. No. 76-F-1218.
• Citation: 427 F. Supp. 905
• Parties: Nick DeBONO, Plaintiff, v. Christopher VIZAS, City Manager, and the City of Trinidad, Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

427 F. Supp. 905

Nick DeBONO, Plaintiff, v. Christopher VIZAS, City Manager, and the City of Trinidad, Colorado, Defendants.

Civ. A. No. 76-F-1218.

United States District Court, D. Colorado.

February 28, 1977.

Stanley W. Ereckson, Jr., Denver, Colo., for plaintiff.

Bruce D. Pringle, Denver, Colo., for defendants.

ORDER GRANTING MOTION TO DISMISS PLAINTIFF'S COMPLAINT

SHERMAN G. FINESILVER, District Judge.

This matter arises on Defendants' Motion to Dismiss, filed January 24, 1977. The central issue in this case is whether the procedures followed in suspending Plaintiff from his employment violated the due process clause of the Fourteenth Amendment.

Plaintiff's Amended Complaint, filed January 3, alleges that he was suspended without pay from the Trinidad, Colorado, Police Department on October 8, 1976 by Defendant Vizas, the city manager. Plaintiff, a police sergeant, was suspended for the stated reason that he had been indicted by a Grand Jury for official misconduct. He was informed of the reasons for his suspension by letter, which also permitted him to request a hearing within ten days. A hearing on November 8 allegedly resulted in a mistrial. Defendant has refused to provide any further administrative review of Plaintiff's suspension.

Plaintiff alleges that he has a constitutionally protected property right to continued employment, and that he is entitled to prior notice of the charges against him, and a hearing either prior to or immediately after his suspension. Plaintiff further argues that the city manager has no right to suspend him. He demands both reinstatement and back pay.

Defendants argue that (1) the city is not liable for § 1983 violations; (2) the city manager has authority to suspend employees of the city; (3) Plaintiff had no property right to continued employment; (4) C.R.S. § 31-3-211(2), which Plaintiff claims that Defendants violated, no longer exists; (5) any claim that the city manager has no authority to suspend, but only to terminate, is moot, because Plaintiff was dismissed on January 19, nunc pro tunc October 8, the date of his suspension; and (6) this Court should abstain, because there are substantial issue of uncertain state law.

We have considered Plaintiff's Opposing Brief, filed February 4, and Defendants' Reply Brief, filed February 14. We hold that Plaintiff had no constitutionally protected property right to continued employment, and that no liberty interest was infringed. We need not reach the first, fifth, and sixth defenses raised in Defendants' Motion. It appears beyond a reasonable doubt that no set of facts in support of the allegations of Plaintiff's Complaint can support a claim for relief in this court. Plaintiff's Motion to file a Second Amended Complaint, which attacks the validity of Plaintiff's dismissal as well as of his suspension, and Plaintiff's Motion for a Preliminary Injunction, filed on February 4 and February 9, are moot as a result of this decision.

I.

Both sides to this dispute agree that whether there was a deprivation of due process depends on whether Plaintiff had a constitutionally protected property right to continued employment. All parties further agree that whether Plaintiff had a constitutionally protected property right depends on whether state law provides an expectation of continued employment. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The central issue in this case, therefore, is whether state law raises such an expectation.

II.

Before turning to an examination of state law, we must note the limited scope of the federal issue raised by the pleadings in this case. It is clear from the above Supreme Court cases that an expectation of continued employment, which would require a hearing, may also arise through implied agreements or administrative regulations. Perry, supra, at 602-603, 92 S.Ct. at 2694; Roth, supra at 577-578, 92 S.Ct. 2701; see also Mitchell v. King, 537 F.2d 385, 390-391 (10th Cir. 1976); Weathers v. West Yuma County School Dist. R-J-1, 530 F.2d 1335, 1337 (10th Cir. 1976); Hamm v. Scott, No. 76-M-910 (D.Colo., Jan. 25, 1977). However, Plaintiff makes no claim or argument that such an understanding existed among the parties, or that any administrative regulations were violated by Defendants. Rather, Plaintiff relies on C.R.S. "31-3-211(2)" as the source of his alleged entitlement to continued employment.

Moreover, Plaintiff makes no claim or argument that he was suspended for a constitutionally impermissible reason. Even without a property right to continued employment, a court would have to investigate the merits of such an allegation. Perry, supra; Bertot v. School Dist. No. 1, Albany County, Wyo., 522 F.2d 1171 (10th Cir. 1975). Nor does Plaintiff allege that his suspension was in violation of federal statutes, such as the civil rights acts. Therefore, our analysis must focus on an interpretation of state law, in order to determine whether Plaintiff possessed a property right protected by the Fourteenth Amendment.

III.

C.R.S. § 31-4-211(2) (1975) repealed and re-enacted § 31-3-211(2), which is referred to in Plaintiff's Amended Complaint. The language of both sections is identical. Therefore, we will treat Plaintiff's Amended Complaint and his arguments in support thereof as referring to § 31-4-211(2): "Officers and employees appointed by the city manager may be removed by him at any time for cause. The decision of the city manager in any such case shall be final."

IV.

Initially, Plaintiff argues that the power to remove employees does not include the power to suspend employees. We disagree, and the Colorado Supreme Court has decided that the power to remove does include the power to suspend. Bratton v. Dice, 93 Colo. 593, 27 P.2d 1028, 1031 (1933).

Plaintiff's principal argument is that the words, "for cause," create a constitutionally protected property right to continued employment, which requires a hearing to review the city manager's decision. The strongest support for this position lies in Footnote 8 of Bishop v. Wood, supra, 426 U.S. at 345, 96 S.Ct. at 2078:

In that case Arnett the Court concluded that because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection. In this case, a holding that as a matter of state law the employee "held his position at the will and pleasure of the city" necessarily establishes that he had no property interest. The Court's evaluation of the federal regulations involved in Arnett sheds no light on the problem presented by this case.

See Jacobs v. Kunes, 541 F.2d 222, 224 (9th Cir. 1976).

We believe that Footnote 8, supra, was intended as an aid in statutory construction. The purpose of construing state statutes is to determine whether the statute, taken as a whole, creates an expectancy of continued employment. In Arnett itself, the extensive analysis of the legislative history of the federal civil service regulations, and the Court's consideration of the statutory scheme as a whole, belie the assertion that the addition of the words, "for cause," automatically creates a constitutionally protected property right. The entire statutory purpose must be considered in making such a determination. We note that in Bishop, the state statute listed the causes for which a permanent employee may be discharged by the city manager. Yet, the Court accepted the lower courts' interpretation of the statute, to the effect that Plaintiff "held his position at the will and pleasure of the city". Id. 426 U.S. at 345, 96 S.Ct. at 2078.

V.

Neither the parties nor the court have been able to find any Colorado cases that define the power of a city manager to remove employees pursuant to § 31-4-211(2) or its predecessor. Were the statutory language unclear as to whether it created an expectancy of continued employment, we might have certified this issue to the Supreme Court of Colorado. However, the second sentence makes both the nature of Plaintiff's interest in his employment and the legislative intent regarding the city manager's power to remove an employee of a non-home rule city very clear. Our ability to interpret such a state statute is further bolstered by Bishop, supra, 426 U.S. at 346, 96 S.Ct. at 2078, and Footnote 10. This Judge has previously served on the state trial court of Colorado, and continues to have many opportunities to interpret state law while sitting on the federal bench.

VI.

§ 31-4-211(2) clearly indicates that Plaintiff held his position subject to the final decision of the city manager. The state legislature thereby specifically excluded the necessity of providing any procedure for an administrative hearing either before or after the city manager's decision. This type of statute accords with the powers generally held by city managers. See 56 Am.Jur. 2d, Municipal Corporations § 186 at 238-239 (1971). All the Colorado cases cited by Plaintiff for the proposition that he is entitled to notice of charges and a hearing construed city charter provisions which provided for such procedures. Frazzini v. Wolf, 168 Colo. 454, 452 P.2d 13 (1969); Pueblo v. Grady, 131 Colo. 313, 281 P.2d 513 (1955); Bratton v. Dice, supra; Alderman v. Darrow, 13 Colo. 460, 22 P. 784 (1889). Unlike the statute in Bishop, the Colorado statute does not even restrict the city manager's power to remove employees for particular causes. A fortiori, the Colorado statute offers even less of a property right expectancy to continued employment than the statute in Bishop. We note again that the constitutionality of the statute itself is not challenged in this case, as it was in Arnett.

VII.

Except in certain situations, as where an employee has formal tenure rights, public...