Hall v. O'Keefe

• Decision Date: 08 July 1980
• Docket Number: No. 53465,53465
• Citation: 1980 OK 108,617 P.2d 196
• Parties: E. L. HALL and Mike Adams, Appellees, v. Paul O'KEEFE, City Manager, City of Broken Bow, Oklahoma, Maxine Welch, Mayor, City of Broken Bow, Oklahoma, Garfield Johnson, Councilman, City of Broken Bow, Oklahoma, D. L. Hewitt, Councilman, City of Broken Bow, Oklahoma, Sam Whitehead, Councilman, City of Broken Bow, Oklahoma, Travis McIntyre, Councilman, City of Broken Bow, Oklahoma, Appellants.
• Court: Oklahoma Supreme Court

Page 196

617 P.2d 196

1980 OK 108

E. L. HALL and Mike Adams, Appellees, v. Paul O'KEEFE, City Manager, City of Broken Bow, Oklahoma, Maxine Welch, Mayor, City of Broken Bow, Oklahoma, Garfield

Johnson, Councilman, City of Broken Bow, Oklahoma, D. L.

Hewitt, Councilman, City of Broken Bow, Oklahoma, Sam

Whitehead, Councilman, City of Broken Bow, Oklahoma, Travis

McIntyre, Councilman, City of Broken Bow, Oklahoma, Appellants.

No. 53465.

Supreme Court of Oklahoma.

July 8, 1980.

Rehearing Denied Sept. 15, 1980.

Appeal from the District Court, McCurtain County; John A. Benson, District Judge.

Appellants appeal from the issuance of a Peremptory Writ of Mandamus, Ordering them to reinstate Appellees in their positions with the Broken Bow Police Department.

TRIAL COURT REVERSED; REMANDED WITH INSTRUCTIONS TO DISSOLVE THE WRIT AND DISMISS.

McClendon & McClendon, Broken Bow, for appellants.

Philip F. Horning, Bulla, Horning & Johnson, Oklahoma City, Gary L. Brock, McCombs, McWhirter & Brock, Idabel, for appellees.

IRWIN, Vice Chief Justice.

On February 15, 1979, E.L. Hall and Mike Adams were removed from their respective positions as Lieutenant and Chief, Broken Bow Police Department. Both officers were notified by letter from City Manager Paul O'Keefe that they had been dismissed from the force effective at five o'clock that evening. The notification to Chief Adams stated:

"This termination is for the good of the service. Your actions as Chief have not been in the best interest of the police force. They have adversely reflected on the City Council and the City Government."

Lieutenant Hall's notification stated:

"This termination is for the good of the service. In the performance of your duties, you have consistently displayed a lack of courtesy and tact in dealing with the public. This has, and continues, to reflect adversely upon the City Government and the Police Department."

On February 23, 1979, Hall and Adams filed suit in the District Court, McCurtain County seeking a Writ of Mandamus ordering their reinstatement. The officers alleged that their dismissal occurred without adequate prior notice and hearing and therefore deprived them of due process of law. In addition, both officers alleged that their discharge one day prior to a "pre-negotiation meeting" between City officials and the local Lodge of the Fraternal Order of Police constituted an unfair labor practice prohibited by the Fire and Police Arbitration Act, 11 O.S.Supp.1979 § 51-101 et seq. ¹

Following a trial of the matter the district court issued a Peremptory Writ of Mandamus directing the City to reinstate Hall and Adams to their former positions with the Broken Bow Police Department. The court based its decision on the following findings: (1) that the City's reasons for removal of the two officers were insufficient under the applicable statutory criterion for removal; (2) that the officers had a statutorily created property right in continued employment which, under Article 2, section 7 of the Oklahoma Constitution, ² must be given greater procedural due process protection than accorded the officers by the City's action, and (3) that the timing of the removal of Hall and Adams constituted an unfair labor practice.

The City of Broken Bow is governed under a statutory council-manager form of city government. ³ As chief executive officer the city manager may, in the absence of a controlling statute or ordinance, remove, demote, suspend or lay off administrative officers and employees "when necessary for the good of the service" or "solely for the good of the service." ⁴ The district court determined, relying upon authority presented by the appellees, ⁵ that the phrase "solely for the good of the service" was synonymous with the term "cause," and that in any case the phrase stood as a criterion for removal, involving something more than the mere discretion of the city manager. In addition, the court found this, terminology sufficient to create a property interest within the meaning of Article 2, Section 7, of the Oklahoma Constitution, thereby invoking constitutional due process guarantees. We cannot agree.

Sections 10-113 and 10-120 of Title 11 do not fix any period of employment, nor do they in any way specify what may constitute a sufficient reason for discharge. They instead clearly vest in the city manager a discretionary authority to determine when and under what circumstances a personnel action will be "for the good of the service" and in the best interests of the city. The power to guide or limit the exercise of this authority is vested by section 10-120 in the city council: "The council by ordinance may establish a merit system and provide for its organization and functioning, and provide for personnel administration and regulation of personnel matters." ⁶

In Blinn v. Hassman, 162 Okl. 1, 18 P.2d 881 (1933), Hassman, the quarantine officer of Oklahoma City, was awarded a peremptory writ of mandamus by the district court commanding city officials to reinstate him after he had been discharged by the city manager "without cause or previous warning or notice, and without a hearing." The position Hassman held was within the classified civil service established by the city charter. The civil service provision of the charter provided that the mayor and city commissioners could remove employees within the service without regard to cause, but that discharge by a department head could only be for specified causes and with a right of appeal to the Board of Commissioners. During Hassman's tenure as quarantine officer the city charter was amended to reflect the city's new council-manager form of government. By these amendments the city manager was given the power to dismiss any officer or employee appointed under him, "when in his judgment the interest of the city service so requires," except as otherwise provided by the civil service provision of the city charter. In reversing the judgment of the district court, this court held that despite retention of the civil service provision in the amended charter, the power vested in the city manager concerning removal was not limited by that provision and therefore removal need not be for cause. The court did not construe the limitation contained in the grant of authority to the city manager to be the equivalent of a requirement that removal be for cause, and we do not believe that the limitation on the authority of a city manager contained in the phrase "solely for the good of the service" differs substantially.

Of course, the Hassman decision was rendered in an era when the employment and discharge of public employees was a prerogative of the sovereign based upon the narrow view that public offices were mere agencies which rarely conferred a property interest upon the officeholder. See 99 A.L.R. 336. The power to remove an employee appointed for an indefinite term was considered an implied part of the power to appoint him, and where the controlling charter, ordinances or statutes contained no provision to the contrary, such power was considered to be within the discretion of the appointing authority. Jones v. Bayless, 208 Okl. 270, 255 P.2d 506 (1953). Even where, by legislation, removal could only be for "good and sufficient cause" the discretion of the appointing authority was not substantially diminished. See City of Wewoka v. Rodman, 172 Okl. 630, 46 P.2d 334 (1935) (interest of a new fire chief in selecting his own men held good and sufficient cause for the removal of a fireman appointed by a former chief); Hunter v. Quick, 183 Okl. 19, 79 P.2d 590 (1938) (same); Goodwin v. Oklahoma City, 199 Okl. 26, 182 P.2d 762 (1947) (good and sufficient cause not limited to misconduct or inadequacy of employee-membership in F.O.P., considered detrimental to service by city manager, held to be sufficient cause). And further exemplifying this strict view concerning public employers' power over personnel matters, the court in Jones, supra, held that the provisions of the Tulsa city charter precluding policemen from being removed except for cause and after written notice and an opportunity to be heard did not apply to demotions, promotions, or transfers, stating that "such power should be guarded carefully for many sound reasons . . . and for an employee to be held within the protection of any specific legislative restriction of such power, he must definitely show that his position comes within the specific terms of such restriction."

It was within this general context that the 1949 legislature enacted sections 10-113 and 10-120 (neither provision has been materially altered since). Certainly the legislature could not have then meant a limitation so vague as "for the good of the service" to confer upon a city employee a property interest requiring due process protections unavailable to him under more explicit guarantees. Rather, it seems that the legislature left the personnel matters of statutory council-manager city governments to the judgment of the city manager, subject primarily to control by the council through appropriate ordinances, and prohibiting only these decisions which are clearly arbitrary or capricious.

More recently the law has recognized that the terms of employment established by an employer or by contract may create a sufficient expectancy of continued employment to constitute a property interest, which must be afforded constitutionally guaranteed due process. In Umholtz v. City of Tulsa, Okl., 565 P.2d 15 (1977), this court examined a provision of the Charter of the City of Tulsa which provided that all city employees would hold their respective positions "during good behavior" and would be "suspended without pay, demoted or removed from the same only for good and sufficient cause." The court found that this language did confer...