Felton v. Board of Com'rs of Greene County, TH 89-263-C.

• Decision Date: 25 July 1991
• Docket Number: No. TH 89-263-C.,TH 89-263-C.
• Citation: 796 F. Supp. 371
• Parties: William E. FELTON, Plaintiff, v. BOARD OF COMMISSIONERS OF GREENE COUNTY, Lee J. Stone, and Robert Crowe, Defendants.
• Court: U.S. District Court — Southern District of Indiana

796 F. Supp. 371

William E. FELTON, Plaintiff, v. BOARD OF COMMISSIONERS OF GREENE COUNTY, Lee J. Stone, and Robert Crowe, Defendants.

No. TH 89-263-C.

United States District Court, S.D. Indiana, Terre Haute Division.

July 25, 1991.

Terry L. Monday, John H. Haskin & Associates, Indianapolis, Ind., for plaintiff.

Marilyn A. Hartman, Bloomfield, Ind., James S. Stephenson, Stephenson and Kurnik, Indianapolis, Ind., for defendants.

ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND FOR DISMISSAL

TINDER, District Judge.

I. Overview

Elections sometimes bring about change. After the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and most recently in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), elections frequently spawn lawsuits. As a result of these cases, the ability of a government entity to accomplish politically motivated hirings and firings is now quite limited. For as the Supreme Court has said, "to the victor belong only those spoils that may be constitutionally obtained." Rutan, 110 S.Ct. at 2731.

In Greene County, Indiana, the November, 1988 election changed the makeup of the Board of County Commissioners. Two Democrats were elected to the County's three person Board. The Democrats' election to the Board changed the majority of the Board from Republican to Democrat. Late in 1988 and early in 1989 the newly constituted Board terminated the contracts of some County employees and failed to renew the contracts of some others. Several lawsuits followed.

The plaintiff, William Felton, was an individual hired by a prior Republican County Board of Commissioners. His employment relationship with the County was not renewed in 1989. Mr. Felton was appointed on January 1, 1987, see Dep. Exh. FF,¹ and reappointed on January 4, 1988, see Dep. Exh. EE, as the County's veterans' service officer,² and he believes that the failure to renew his appointment to that position in 1989 "was based upon political considerations." Plaintiff's Statement of Genuine Issues at 2.

During his tenure as the County's veterans' service officer Mr. Felton ran the County's Veterans' Service Office and managed the office's two additional employees. Mr. Felton annually submitted a budget for his office to the County Board of Commissioners. In addition, Mr. Felton was required to know the law with respect to veterans' affairs and to advise, counsel and provide information regarding veterans' issues to veterans and their family members. It appears that the Board attempted to exercise only minimal oversight over Felton during the time that he was employed as veterans' service officer.

On January 6, 1987 the Board passed Ordinance 1987-2 which provided in part that:

Every person hired to work for the County, except superintendents, shall be subject to a ninety (90) day probationary period. If a probationary employee is not terminated during said probationary period, the employee shall, on the ninety-second (92) day of employment become a permanent employee and shall thereafter be terminated only for just cause, except that the superintendent shall be employed at will by the Board regardless of length of employment.

This ordinance was repealed by the Board on May 4, 1987.

While he stated in his deposition that he did not know if he was required to do so, in late 1988 Mr. Felton submitted a memo to the Board requesting that he be reappointed as the County's veterans' service officer for the upcoming year. The Board customarily reappointed Mr. Felton at the Board's first meeting in January.

Plaintiff claims both that he had a protectible property interest in his job as the County's veterans' service officer that entitled him to notice and a hearing before termination and that he was discharged due to his political affiliation in violation of his first amendment rights to freedom of speech and association.

In their motion for summary judgment defendants argue that plaintiff had no protectible interest in his job, that even if plaintiff was fired for a political reason his firing was justified because political affiliation was an appropriate requirement for his job, and that the county commissioners whom plaintiff has sued in their individual capacities are protected by the doctrine of qualified immunity. In addition, defendant has filed a separate motion to dismiss plaintiff's individual capacity claim against former commissioner Lee Joe Stone.

II. Defendants' Motions for Summary Judgment

A. Mr. Felton's Property Interest

In Count II of his amended complaint Mr. Felton claims that he had a due process right to notice and a hearing before he was terminated from his job as veterans' service officer. The right to notice and an opportunity to be heard is the touchstone of constitutional due process. See, e.g., Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981) ("due process ... held to require ... notice and hearing"); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) ("the fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner'") (citation omitted). However, these procedural protections are only due if there has been a deprivation of a liberty or a property interest by the state.

Mr. Felton does not contend that he was deprived of a liberty interest by the action of the Greene County Commissioners. He does contend that he had a property interest in continued employment by the County. Property interests are created by state law. As the Supreme Court said in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972):

Property interests ... 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.

The concept of property that receives due process protection is broad. "The types of interests protected as `property' are varied and as often as not, intangible, relating `to the whole domain of social and economic fact.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (citation omitted). Nevertheless, mere expectations or hopes are not protected against summary deprivation. It is imperative that the claimant alleging a property interest precisely identify the state law source of that interest.

The sole source of the property interest claimed by Mr. Felton is Ordinance 1987-2 which was enacted on January 6, 1987 and repealed on May 4, 1987. Mr. Felton has a property interest in the job security afforded by that ordinance only if Mr. Felton can enforce that ordinance under state law.

Because the ordinance had long since been repealed at the time the Commissioners failed to reappoint him, Mr. Felton is entitled to rely on the ordinance only if a property interest acquired as a result of the ordinance "vested" prior to the time that the ordinance was repealed. There are two ways that Mr. Felton might try to establish that the ordinance created a property interest that survived the ordinance's repeal: (1) Mr. Felton could try to show that Indiana law prohibits the repeal of benefits assigned by statute to public employees or (2) Mr. Felton could attempt to prove that the provisions of the ordinance became part of his contract with the County. Mr. Felton, however, can do neither.

Indiana law is manifestly clear that benefits given to public employees by legislative decree can be taken away by that same authority. As the Indiana Supreme Court said in State ex rel. Yancey v. Hyde, 129 Ind. 296, 28 N.E. 186, 187-88 (1891):

Offices are neither grants nor contracts, nor obligations which cannot be changed or impaired. They are subject to the legislative will at all times, except so far as the constitution may protect them from interference.... `Offices created by the legislature may be abolished by the legislature. The power that creates can destroy. The creator is greater than the creature. The term of an office may be shortened, the duties of the office increased, and the compensation lessened by the legislative will.'

(citations omitted). See also Kirkpatrick v. King, 228 Ind. 236, 91 N.E.2d 785, 788-89 (1950) ("public officers have no property interest in their offices, or any right of property in the prospective compensation attached thereto") (citation omitted); Corn v. City of Oakland City, 415 N.E.2d 129, 133 (Ind.App.1981) (city judge who had served previous term in office, which had been created by city ordinance, and who had won Democratic primary for that office did not have vested right in office and office could be repealed by ordinance prior to general election). There is no provision of state law that caused Ordinance 1987-2 to vest rights in Mr. Felton in perpetuity. Once that ordinance was repealed all potential rights created by that ordinance were extinguished except for any independent contract rights the ordinance memorialized.

A statute in force at the time a contract is entered into may create certain contract rights which inure to the benefit of a public employee. Such was the case in Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938), where the United States Supreme Court held that under Indiana law a public teacher acquired lifetime tenure pursuant to a statute that had been expressly incorporated into the teacher's contract even though the provision of that statute that afforded the teacher tenure was subsequently repealed.

In this case the ordinance in question was not adopted until January 6, 1987, five days after Mr. Felton's January 1, 1987, reappointment to the position of...