Delaware State Troopers Lodge, Fraternal Order of Police, Lodge No. 6 v. O'Rourke

• Decision Date: 31 May 1979
• Citation: 403 A.2d 1109
• Parties: DELAWARE STATE TROOPERS LODGE, FRATERNAL ORDER OF POLICE, LODGE # 6, Plaintiff, v. William O'ROURKE, Secretary of the Department of Public Safety; Col. Norman V. Cochran, Superintendent of State Police of the State of Delaware, Defendants.
• Court: Court of Chancery of Delaware

Page 1109

403 A.2d 1109

DELAWARE STATE TROOPERS LODGE, FRATERNAL ORDER OF POLICE LODGE # 6, Plaintiff, v. William O'ROURKE, Secretary of the Department of Public Safety; Col. Norman V. Cochran, Superintendent of State Police of the State of Delaware, Defendants.

Court of Chancery of Delaware, New Castle County.

Submitted April 24, 1979.

Decided May 31, 1979.

On Motion of the Defendants to Dismiss for Failure to State a Claim. Motion Granted.

David R. Hodas of Potter & Carmine, Wilmington, for plaintiff.

Charles M. Gruver, III, Deputy Atty. Gen., Department of Justice, Wilmington, for defendants.

BROWN, Vice Chancellor.

In this action the defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim against them upon which relief can be granted. The defendant O'Rourke is the Secretary of the Department of Public Safety of the State of Delaware and the defendant Cochran is the Superintendent of the Delaware State Police. ^* They are sued in their official capacities by the Delaware State Troopers Lodge, Fraternal Order of Police, Lodge # 6 (hereafter "F.O.P. # 6").

For the purpose of a Rule 12(b)(6) motion all well-pleaded allegations of the complaint must be accepted as true. Danby v. Osteopathic Hospital Association, 34 Del.Ch. 172, 101 A.2d 308 (1953), Aff'd, 34 Del.Ch. 427, 104 A.2d 903 (1954). A complaint should not be dismissed upon such a motion unless it appears to a certainty that under no set of facts which could be proved to support the claim would the plaintiff be entitled to relief. Morgan v. Wells, 32 Del.Ch. 108, 80 A.2d 504 (1951). The complaint must be viewed in the light most favorable to the plaintiff, Penn Mart Realty Co. v. Becker, Del.Ch., 298 A.2d 349 (1972), and all inferences must be accepted which favor the sufficiency of the complaint. Vale v. Atlantic Coast And Inland Corp., 34 Del.Ch. 50, 99 A.2d 396 (1953). Based upon these well-established principles, I reach the following findings and conclusions in light of the allegations of the complaint.

The plaintiff F.O.P. # 6, pursuant to 19 Del.C. § 1301, is the exclusive bargaining representative for all officers of the Delaware State Police, excluding the rank of Colonel and Lieutenant Colonel. F.O.P. # 6 brings this action in its capacity as bargaining representative and, allegedly, on behalf of the entire membership of the Delaware State Police. The critical paragraph of the complaint against which the motion to dismiss is directed is Paragraph 3, which reads as follows:

"At the time of appointment, i. e., initial hiring all State Police officers have the reasonable expectation that they will retain employment, on good behavior, until attaining retirement after a period of 20 years service or qualifying disability. All State Police officers upon becoming members of the Delaware State Police have the reasonable expectation of achieving advancement and promotion through the ranks based upon their general competence and industry and upon some equitable method fairly applied to select candidates for promotion."

The complaint goes on to allege that during the period of August 1, 1977 through November 30, 1977 the defendants devised and initiated a promotional test program designed to determine those officers qualified for various promotions within the ranks of the State Police. It is alleged that this program rated officers in four separate categories, with 40 per cent weight being given to a written examination, 40 per cent weight being given to a performance evaluation made over the four-month period by each officer's superior, 10 per cent weight being given to education and training, and 10 per cent weight to seniority. The results of this 1977 program were to govern promotions to be made in February 1978 as well as in May 1979.

The complaint goes on to allege that the test results achieved by this program were arbitrary, capricious and unreasonable in that the performance evaluation portion of the program established no guidelines or job descriptions against which performance could be fairly measured, that evaluators were given no standard as to what was average, above average or below average, and that some evaluators were given instructions on methods to apply in scoring candidates while others were not. In addition, the complaint alleges various arbitrary and capricious actions and lack of uniformity in the manner in which the four-month program was actually administered. The complaint concludes with the charge that unless an injunction is entered "restraining the effectuation of the unfair, arbitrary, capricious and haphazard promotional system, members of the Delaware State Police and those represented by the plaintiff will be affected in their reasonable expectations and careers as a result of the arbitrary, capricious and haphazard application of a promotional system . . . ."

For the purpose of the defendants' Rule 12(b)(6) motion it must be accepted as true that the promotional evaluation program itself, as well as the manner in which test results were obtained, can be shown to fall within the classification of arbitrary and capricious governmental action. But the motion further asks whether this assumption is of any consequence since it is the position of the defendants that F.O.P. # 6 has alleged no facts which would establish, if proven, that State Police officers have a reasonable expectation of promotion protected by the Due Process Clause of the Fourteenth Amendment. In short, F.O.P. # 6 premises its complaint on the alleged existence of a "property interest" in State employment which it feels the challenged promotional program has violated. The defendants take the position that there is no property interest in promotional expectations within the ranks of the Delaware State Police.

Any examination into the possible existence of a constitutionally protected property interest must begin with the decisions of the United States Supreme Court in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth the Supreme Court stated as follows concerning the concept of a property interest in public employment:

"The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests property interests may take many forms.

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims." 408 U.S. 576, 577, 92 S.Ct. 2708, 2709. (Emphasis added.)

The Court went on to explain the meaning of a "legitimate claim of entitlement" at 408 U.S. 577, 92 S.Ct. 2709:

"Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

In the companion case of Perry v. Sindermann, Supra, the Court stated as follows at 408 U.S. 601, 92 S.Ct. 2699:

"We have made clear in Roth, Supra, (408 U.S.) at 577, 92 S.Ct., at 2709, that 'property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' Id., at 577, 92 S.Ct., at 2709. A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing."

In the subsequent case of Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077...