Harkness v. City of Burley

• Decision Date: 28 February 1986
• Docket Number: No. 15793,15793
• Citation: 110 Idaho 353,715 P.2d 1283
• Parties: , 122 L.R.R.M. (BNA) 2045 C.K. HARKNESS, Plaintiff-Appellant, v. The CITY OF BURLEY, a municipal corporation; and W. Leman Messley, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1283

715 P.2d 1283

110 Idaho 353, 122 L.R.R.M. (BNA) 2045

C.K. HARKNESS, Plaintiff-Appellant, v. The CITY OF BURLEY, a municipal corporation; and W. Leman Messley, Defendants-Respondents.

No. 15793.

Supreme Court of Idaho.

Feb. 28, 1986.

W. Craig James of Skinner, Fawcett & Mauk, Boise, for plaintiff-appellant.

William Parsons of Parsons, Smith, Stone & Fletcher, Burley, for defendants-respondents.

BISTLINE, Justice.

I.

Plaintiff-appellant Harkness began employment with the City of Burley Police Department as a part-time dispatcher in November, 1967, while attending the College of Southern Idaho. In this initial position Harkness was a probationary employee. Subsequently Harkness worked for the Department as a parking meter officer, a patrolman, a detective, and finally a division commander. He was regularly and continuously employed with the Department from November 27, 1967 to October 2, 1981. On the latter date, Chief of Police Messley terminated Harkness' employment.

Chief Messley gave two reasons for Harkness' termination: a lack of arrests and citations, and his leaving his post on one occasion without authority or permission to do so. At trial Harkness offered evidence that his arrest and citation record were on par with others of his rank in 1981, and that his leaving his duty station was to deal with an emergency and thus within an exception to the proscription against leaving the duty station.

The parties dispute Harkness' status during his 14-year tenure. The defendants point out that he had no definite, fixed period of time to work. Harkness points out that the city council discovered his initial status as a probationary employee in 1970, at which time it passed a resolution making him a permanent employee. The Department issued a copy of the Burley Police Department Rules and Procedures Manual to Harkness in 1979, which established the permissible grounds and procedures for Harkness' dismissal.

On April 26, 1982 Harkness gave notice of his intention to file suit, and on May 13, 1983, he filed a six-count suit against the defendants. Count one alleged that Burley breached its contract of employment with Harkness. Count two alleged violation of equal protection and due process under the state and federal constitutions, the latter enforceable by virtue of 42 U.S.C. § 1983. This count constitutes the allegation of a deprivation of Harkness' property interest in his employment. Count three alleged a breach of the employer's duty of good faith and fair dealing toward employees. Count four alleged the intentional infliction of emotional distress on the part of Messley. Count five alleged defamation on the part of Messley. Count six involved a demand for costs and attorney's fees.

Upon the defendant's motion prior to trial, the district court dismissed count one (regarding breach of contract) and count three (regarding breach of the duty of good faith and fair dealings) for failure to provide timely notice as required by either I.C. § 6-906 or § 50-219. For the same reason, the district court dismissed counts four (regarding intentional infliction of emotional distress) and five (regarding defamation) as they pertained to the city and/or its employees acting within the scope of their employment, but not as they pertained to Messley, whom Harkness alleged had acted individually and outside the scope of his employment.

At trial, in response to the defendants' objections, the district court refused to admit into evidence a copy of the city council resolution making Harkness a permanent employee, and a copy of the Burley Police Department Rules and Procedures Manual. Harkness moved to certify the question of the admissibility of these exhibits as a controlling question of law to this Court. That motion was denied.

In the wake of these rulings, Harkness voluntarily dismissed counts four (regarding intentional infliction of emotional distress) and five (regarding defamation), leaving counts two (regarding due process and equal protection) and six (regarding attorney's fees). Harkness then presented limited evidence on damages and rested. At that point the defendants moved for entry of a directed verdict, which the district court granted.

II.

Harkness appeals from the directed verdict, arguing that the district court erred in (1) refusing to admit into evidence the resolution and the manual, and subsequently granting the motion for a directed verdict, and (2) dismissing several of his counts against the city and its employee because of his failure to provide timely notice. Harkness also appeals the granting of attorney's fees to the defendants following trial. As discussed below, we reverse the district court's refusal to admit the offered exhibits and consequently reverse the directed verdict as well. Perforce we reverse the granting of attorney's fees. However, we affirm the dismissals for failure to provide timely notice.

A. The Rejected Exhibits and the Directed Verdict

Harkness alleged that the defendants violated his constitutional right against the taking of his property interest in his governmental job without due process. Such a constitutional right is enforceable against persons acting under color of state law under 42 U.S.C. § 1983. To establish his property interest, Harkness offered exhibit 16--the police manual, and exhibit 22--the city council resolution making Harkness a permanent employee. In refusing to receive these into evidence, the district court ruled them irrelevant because they failed to establish a fixed term of employment. R., Vol. 1, pp. 97, 109-110. Apparently, the district court believed the only evidence relevant to a property interest in public employment is that which establishes a fixed term. Id. Without these exhibits, Harkness was unable to resist the defendants' motion for a directed verdict. Our analysis, set out below, leads us to hold that the exhibits were relevant to properly determining whether Harkness had a contract limiting the permissible reasons for discharge, and should have been admitted. We further conclude that since these exhibits amount to substantial evidence of a contract of employment in which Harkness had a property interest, the motion for directed verdict should have been refused.

1. Relevancy of the Exhibits to Harkness' Property Interest.

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the United States Supreme Court established the parameters of a legitimate property interest in public employment subject to due process protections:

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.

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. Id. at 577, 92 S.Ct. at 2709.

If the public employee has a property interest in employment, then due process requires that he or she be afforded notice and a hearing before termination of employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). In addition to procedural protections, the employer may not deprive the employee of the property interest "for an improper motive and by means that were pretextual, arbitrary and capricious, and, because unrelated to the proper reasons for layoff, without any rational basis. Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 510, 78 L.Ed. 940 (1933) ... [additional citations omitted]." Hearn v. City of Gainesville, 688 F.2d 1328, 1332-33 (11th Cir.1983).

The Supreme Court later specified the potential sources for a property interest in employment with a state: "A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (footnote omitted). Accordingly, we now examine what constitutes a property interest in employment under Idaho law.

To have a property interest in employment in Idaho, the employee must have more than a mere hope of continued employment. Loebeck v. Idaho State Board of Education, 96 Idaho 459, 461, 530 P.2d 1149, 1151 (1975). Certainly a permanent employee, whose employment is not terminable at the will of either the employee or the employer, holds a property interest in his or her position. Allen v. Lewis-Clark State College, 105 Idaho 447, 460 n. 6, 670 P.2d 854, 867 n. 6 (1983) ("A term of employment set by contract is a property interest safeguarded by due process."); Bowler v. Board of Trustees, 101 Idaho 537, 541, 617 P.2d 841, 845 (1980) (Teacher's interest in renewable contract rights to continued employment was a property interest.); Ferguson v. Board of Trustees, 98 Idaho 359, 364, 564 P.2d 971, 976 (1977), cert. denied, 434 U.S. 939, 98 S.Ct. 431, 54 L.Ed.2d 229 (Teacher's right to automatic annual renewal of contract and right not to be discharged except for cause gave property interest in employment.).

As Chief Justice Donaldson wrote for a unanimous Court, an employee "hired pursuant to a contract which specifies the duration of the employment, or limits the reasons for which the employee may be discharged" is not an employee "at will." ¹ MacNeil v. Minidoka Memorial...