Gomez v. CITY OF SHERIDAN BY AND THROUGH HERRING

• Decision Date: 19 June 1985
• Docket Number: Civ. A. No. 83-K-1545.
• Citation: 611 F. Supp. 230
• Parties: Rodney D. GOMEZ, Plaintiff, v. The CITY OF SHERIDAN, COLORADO, By and Through the following Officers: Ann HERRING, Mayor, Ronald Salee, Police Commissioner, James Curnes, as City Manager, Wayne Peck, Theresa Vallejos, John Anderson, Ailene Marble, Carol Jonkoniec, as Councilmembers; J.A. Stephenson, as Chief of Police; and J.A. Stephenson, Individually, Defendants.
• Court: U.S. District Court — District of Colorado

611 F. Supp. 230

Rodney D. GOMEZ, Plaintiff, v. The CITY OF SHERIDAN, COLORADO, By and Through the following Officers: Ann HERRING, Mayor, Ronald Salee, Police Commissioner, James Curnes, as City Manager, Wayne Peck, Theresa Vallejos, John Anderson, Ailene Marble, Carol Jonkoniec, as Councilmembers; J.A. Stephenson, as Chief of Police; and J.A. Stephenson, Individually, Defendants.

Civ. A. No. 83-K-1545.

United States District Court, D. Colorado.

June 19, 1985.

COPYRIGHT MATERIAL OMITTED

Peter H. Blair, Jr., Stutz, Dyer, Miller & Delap, Denver, Colo., for plaintiff.

Brad W. Breslau, Deisch and Marion, P.C., Denver, Colo., John E. Hayes, McMartin, Burke, Loser & Fitzgerald, Englewood, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff was discharged as an employee of the Sheridan Police Department on July 26, 1983. He instituted this action claiming that the city's actions denied him due process protections insured by the Fourteenth Amendment of the United States Constitution. Plaintiff also asserts a pendant cause of action for defamation. Trial is scheduled July 11, 1985. Before me today is defendants' motion for summary judgment.

Summary judgment is a drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to Rule 56, Fed.R.Civ.P., should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual issues of material fact must be viewed in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 573 (10th Cir.1984). However, a party opposing summary judgment may not rest on allegations contained in pleadings to rebut the movant's factual proof in support of the motion for summary judgment. The party opposing the motion must respond with specific facts demonstrating genuine issues requiring resolution at trial. Unless the moving party can demonstrate his entitlement beyond a reasonable doubt, summary judgment must be denied. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

The uncontroverted facts are as follows. On June 21, 1982, the Sheridan City Council approved a recommendation that the probationary period for police employees be extended from the six-month period in effect on that date to a full year. On August 6, 1982, plaintiff was hired by the Sheridan Police Department as a police officer. Plaintiff was advised when he was hired that he would be a probationary employee of the police department for a one-year period. On July 26, 1983, the Chief of Police recommended to the city council that plaintiff be dismissed as a police officer. The city council accepted and approved the recommendation and plaintiff was discharged. Plaintiff was not afforded a hearing regarding his termination.

Defendants' motion for summary judgment argues that: 1) plaintiff had neither a property nor a liberty interest protected by the Fourteenth Amendment which would require a hearing; and 2) the police chief was privileged in publishing the allegedly defamatory comments regarding the reasons for plaintiff's termination to the city council on July 26, 1983. In response, plaintiff contends that: 1) he was a permanent employee at the time he was discharged and, as such, he had a property interest at stake; and 2) the police chief's comments to the city council were made maliciously and, therefore, exceeded the scope of any privilege. Plaintiff does not respond to defendants' motion for summary judgment regarding the asserted liberty interest apparently in the belief that there is a sufficient showing of a property interest and that it was infringed.

I. Procedural Due Process

"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). When either of these protected interests is implicated, the plaintiff is entitled to a pretermination hearing. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, see also Cleveland Bd. of Educ. v. Loudermill, ___ U.S. ___, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1984); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Miller v. City of Mission, Kan., 705 F.2d 368, 369 (10th Cir.1983). However, plaintiff must first establish that there is a protected interest at stake:

A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, "he must settle for whatever procedures are provided by statute or regulation."

Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984) (citation omitted).

A. Property Interests

Determination of a plaintiff's property interests is a question of state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). As the United States Supreme Court has stated:

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.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548. Ultimately, the question is whether the plaintiff has a "legitimate claim of entitlement" to the benefit alleged to constitute a property interest. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548.

In this case, the issue is whether the plaintiff had a protected property interest in his employment as a police officer. Defendants claim that plaintiff was a probationary employee at the time he was dismissed. In support, defendants point to the city council resolution extending the probationary period from six months to one year which was implemented pursuant to § 2-4 of the Sheridan Municipal Code before the plaintiff was hired. Section 2-4 provides:

Rules, Regulations of Police Department. All officers and members of the police department shall be subject to such rules and regulations as shall be prescribed from time to time by the chief of police and approved by the city council.

In response, plaintiff first asserts that the city council's action, increasing the probationary period for police employees, was an ordinance or was intended to amend § 2-55(e) of the Sheridan Municipal Code. This section provides:

Each employee receiving an appointment or a promotion to a position with the city must serve a probationary period of six (6) months before his/her appointment or promotion shall be considered permanent ... An employee terminated during the probationary period does not have the right of appeal or a hearing ...

Because Sheridan is not a home rule city, it cannot enact ordinances without following the publication requirements specified in Colo.Rev.Stat. §§ 31-16-105, 31-16-106 (1984 Cum.Supp.). Plaintiff asserts that since the publication requirements were not complied with, the city council's action was ineffective in changing the six-month probationary period for police employees. Therefore, plaintiff maintains that his employment was permanent, rather than probationary, at the time he was discharged.

Additionally, plaintiff argues that § 2-36(g) of the Sheridan Municipal Code controls. This section provides that department directors such as the police chief, "have power, when authorized by the council, to appoint and remove, subject to any personnel system regulations for personnel, all subordinates under him." Plaintiff maintains that "personnel system regulations" refers to those ordinances within Article IV of the Sheridan Municipal Code, and not those prescribed pursuant to § 2-4. Specifically, plaintiff contends that § 2-55(e) is one of the "personnel system regulations" referred to in § 2-36(g) and that the six-month probationary period applied.

These contentions give rise to two issues. First, whether § 2-36(g) applies only to those ordinances within Article IV of the Sheridan Municipal Code. Second, whether the council's extension of the probationary period was made pursuant to § 2-4 or was intended to amend § 2-55(e).

The same rules of construction are used in construing legislative enactments whether they are statutes or ordinances. Martin v. King, 417 F.2d 458, (10th Cir. 1969). It is a basic rule of statutory interpretation or construction that statutes are to be

construed in a manner so as to effectuate the intent of the enacting body, and that in construing a statute the court should first look to the language of the statute itself. If the language is clear and the purpose appears with reasonable certainty, there is no need to resort to other rules of construction to ascertain its meaning. United States v. Ray, 488 F.2d 15 (10th Cir.1973). An unambiguous statute must be given effect according to its plain and obvious meaning. United States v. Western Pacific Railroad Company, 385 F.2d 161 (10th Cir. 1967).

Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743 (10th Cir.1974), rev'd on other grounds, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976); see also People v. Deadmond, 683 P.2d 763 (Colo. 1984); Engelbrecht v. Hartford Acc. & Indem. Co., 680 P.2d 231 (Colo.1984); Colo. Rev.Stat. § 2-4-101 (1980 Repl.Vol.).

In the present case, § 2-36(g) refers to "any personnel system regulations." Because the word "any" in § 2-36(g) is unambiguous, I find that this section does not refer only to those ordinances within Article IV of the Sheridan Municipal Code. Rather, the...