Goldsmith v. Mayor and City Council of Baltimore

• Decision Date: 26 February 1993
• Docket Number: No. 91-1141,91-1141
• Citation: 987 F.2d 1064
• Parties: Ronny J. GOLDSMITH, Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE; Wilbur E. Cunningham; Fred Morris Lauer, Jr.; Harry Loleas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1064

987 F.2d 1064

Ronny J. GOLDSMITH, Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE; Wilbur E. Cunningham Fred Morris Lauer, Jr.; Harry Loleas, Defendants-Appellees.

No. 91-1141.

United States Court of Appeals Fourth Circuit.

Argued Oct. 30, 1991.

Decided Feb. 26, 1993.

Howard J. Schulman, Baltimore, MD, argued, for plaintiff-appellant.

J. Shawn Alcarese, Sp. Asst. Sol., argued, Jensen, Morrow & Hassani, P.A., Towson, MD (Neal M. Janey, City Sol., Laurice D. Royal, Asst. City Sol., Baltimore, MD, on brief), for defendants-appellees.

Before WIDENER, Circuit Judge, SPROUSE, Senior Circuit Judge, and WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

WIDENER, Circuit Judge:

Ronny J. Goldsmith appeals from an order of the United States District Court for the District of Maryland dismissing her complaint in part, and entering summary judgment as to the balance of the complaint in favor of appellees Mayor and City Council of Baltimore, Maryland, Wilbur E. Cunningham, Fred Morris Lauer, Jr., and Harry Loleas. We hold that the district court erred in extending the preclusive effect of a prior judgment between the parties to Goldsmith's free speech claims in the instant suit. However, we affirm the court's grant of summary judgment in favor of the Mayor and City Council and the individual appellees.

The City Council of Baltimore, Maryland created the Office of Financial Review by an ordinance enacted in 1961. ¹ Goldsmith I, 845 F.2d at 62. That office was charged with monitoring the fiscal affairs of the city and advising the City Council in connection with the planning and ratification of the city budget. 845 F.2d at 62. It was to be headed by a Director who would be responsible solely to the City Council and subject to removal only upon proof of inefficiency, neglect of duty, or misconduct in office. 845 F.2d at 62.

The instant litigation has its origin in April 1980 when Miss Goldsmith, a government finance and public policy expert, was appointed Director of the Office of Financial Review. 845 F.2d at 63. Her tenure as Director was marked by controversy. "Her analyses led directly to the disclosure of millions of dollars of misappropriated, mismanaged and 'off-budget' funds in violation of the Baltimore City Charter and federal and state laws. Her work was frequently reported in the press." 845 F.2d at 63.

In early 1986, the City Council significantly altered the nature of the department of which Miss Goldsmith was head. The change was implemented by the passage of City Council Ordinance No. 625, codified in Article I, §§ 7 et seq. of the Baltimore City Code. Ordinance No. 625 abolished the Office of Financial Review and replaced it with an agency called the Office of Councilmanic Services. The new ordinance transferred all Financial Review personnel to the employ of Councilmanic Services. Miss Goldsmith likewise was designated Director of the new agency. The mission of the Office of Councilmanic Services remained essentially the same as that of its predecessor, the Office of Financial Review.

A change occasioned by Ordinance No. 625, however, concerned the relationship between Miss Goldsmith, the Office of Councilmanic Services, and the City Council. Where the Office of Financial Review had been sort of an independent agency under the supervision of a tenured Director, the Office of Councilmanic Services was far more directly accountable to the City Council. Ordinance No. 625 created an oversight committee, comprised of members selected by the President of the City Council and chaired by the President, which would assume primary responsibility for monitoring the functions of the Office of Councilmanic Services. Significantly to the present litigation, the ordinance removed the protection of tenure from the office of the Director. The Director could now be removed, without cause, by a majority vote of the oversight committee, subject to the approval of a majority of the City Council.

Ordinance No. 625 was signed into law by the Mayor on March 12, 1986. On March 26, 1986, Miss Goldsmith filed suit in the United States District Court for the District of Maryland against the Mayor and City Council ² and individual staff members Wilbur E. Cunningham, Fred Morris Lauer Jr., and Harry Loleas, ³ claiming that under 42 U.S.C. § 1983 the passage of Ordinance No. 625 deprived her of a proprietary entitlement without due process of law. This complaint also included certain state-law claims against the individual defendants, including intentional interference with contract and assault. Miss Goldsmith informed her employer on April 23, 1986 of her intention to resign from her position effective May 2, 1986. Following her resignation, on July 28, 1986, she filed a second amended complaint adding a claim that she had been constructively discharged by the City Council, again in violation of her right to due process.

The district court, by memorandum opinion dated April 30, 1987, entered summary judgment in favor of the defendants as to the section 1983 counts. In so holding the court found both that the passage of Ordinance No. 625 did not deprive Miss Goldsmith of any cognizable property interest, and that, in any event, "the undisputed facts indicate[d] that [Goldsmith] voluntarily resigned and was not constructively discharged." Finally, the court dismissed the state-law claims against the individual defendants for lack of subject matter jurisdiction, citing the absence of diversity of citizenship between Miss Goldsmith and the defendants at the time of the filing of the complaint.

On appeal, this court reversed the judgment of the district court, though not for the reasons Miss Goldsmith might have hoped. We held that the district court erred in exercising jurisdiction over the case and thus in entering summary judgment, as we were of opinion that the due process claims were so insubstantial as a matter of law that her complaint failed to raise a cognizable federal question. Goldsmith I, 845 F.2d at 65. We noted that the opinion of the United States Supreme Court in Higginbotham v. Baton Rouge, 306 U.S. 535, 59 S.Ct. 705, 83 L.Ed. 968 (1939), completely foreclosed any argument that Miss Goldsmith had a protected property interest in the tenure protection that the City Council removed from her job by the passage of Ordinance No. 625. Goldsmith I, 845 F.2d at 64-65. Accordingly, under the substantiality doctrine of Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974) and Eastern Band of Cherokee Indians v. Donovan, 739 F.2d 153, 159 (4th Cir.1984), we remanded the case with instructions to dismiss for lack of federal question jurisdiction. ⁴

Undeterred by that dismissal, on April 14, 1988 plaintiff filed another complaint in the U.S. District Court for the District of Maryland, naming the same defendants as did the second amended complaint in Goldsmith I. That complaint set forth nine counts, each of which mounted a challenge to the circumstances which led to her resignation from her post as Director of Office of Councilmanic Services, the same fundamental claims as those that formed the basis for our decision in Goldsmith I. Mindful of our decision in Goldsmith I, however, Miss Goldsmith altered certain of her substantive and jurisdictional claims in an attempt to avoid the preclusive effect of that prior decision.

The gist of Miss Goldsmith's complaint in the instant case is that the defendants constructively discharged her in retaliation for her conduct in reporting to the press and others her findings regarding fiscal irregularities in the budget of the City of Baltimore, thereby violating her free speech rights under the United States Constitution and the Maryland Declaration of Rights. Count I, alleging federal question jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, claims that the Mayor and City Council, through the passage of Ordinance No. 625 and non-legislative conduct, constructively discharged her in violation of the First and Fourteenth Amendments to the U.S. Constitution. Count III ⁵ makes essentially the same claim against the individual defendants. Counts V and VI, alleging diversity jurisdiction, ⁶ claim constructive, retaliatory discharge in violation of the free speech guarantee in Article 40 of the Maryland Declaration of Rights. Count VII, a diversity claim against only the individual defendants, alleges the state-law torts of intentional interference with contract and prospective advantage. Finally, Counts VIII and IX re-allege the section 1983 retaliatory discharge claims of Counts I and III, but under diversity of citizenship jurisdiction rather than under 28 U.S.C. § 1343.

All defendants filed motions to dismiss or, in the alternative, for summary judgment. The case was referred to a Magistrate Judge who recommended dismissal of Counts II and IV in toto, and partial dismissal of Counts V, VI, VIII and IX. As we have already noted, see supra note 5, the district court, by its adoption of the Magistrate Judge's report, dismissed for lack of jurisdiction all of Miss Goldsmith's due process claims on grounds that they were precluded by our decision in Goldsmith I. The defendants then moved for summary judgment on the remaining counts. The district court filed its memorandum opinion dated May 31, 1991, and held for the defendants on all the remaining counts.

As to Counts I and III, alleging constructive discharge in retaliation for Miss Goldsmith's exercise of her First Amendment rights, the district court held that our decision in Goldsmith I precluded those claims as well as her due process claims. The court similarly held Counts V and VI, claiming retaliatory discharge in violation of the Maryland free speech guarantee, to be barred by Goldsmith I. As to Miss Goldsmith's state law tort claims found in Count VII, the court held that she failed to...