Hicks v. City of Watonga, Okl.

Decision Date19 August 1991
Docket NumberNo. 89-6418,89-6418
Citation942 F.2d 737
PartiesSteven R. HICKS, Plaintiff-Appellee, v. CITY OF WATONGA, OKLAHOMA, a Municipal Corporation; R.B. Bob Chapman, individually and in his official capacity as Mayor of the City of Watonga, Oklahoma; Pat Despain, individually and in her official capacity as City Clerk of the City of Watonga, Oklahoma; Brenda Diffey, individually and in her official capacity as City Council Member of the City of Watonga, Oklahoma; Charles Johnson, individually and in his official capacity as City Council Member of the City of Watonga, Oklahoma; Herman Brown; Pat Patterson, individually and in his official capacity as City Council Member of the City of Watonga, Oklahoma; Duff Norton, individually and in his official capacity as City Council Member of the City of Watonga, Oklahoma; Charles Swanegan, individually and in his official capacity as City Council Member of the City of Watonga, Oklahoma; Billy Don Pendergraft, individually and in his official capacity as City Council Member of the City of Watonga, Oklahoma; Donald H. Justice, individually and in his official capacity as City Council member of the City of Watonga, Oklahoma; Lonnie Rickie, individually and in his official capacity as Chief of Police of the City of Watonga, Oklahoma, Police Department; Dale Green, individually and in his official capacity as a Member of the City Council and in his official capacity as acting Mayor of the City of Watonga, Oklahoma; and Daniel Webber, individually and in his official capacity as City Attorney for the City of Watonga, Oklahoma, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Brently C. Olsson (Kent Fleming with him on the brief) of Huckaby, Fleming, Frailey, Chaffin & Darrah, Oklahoma City, Okl., for defendants-appellants.

Charles E. Wetsel (Robert T. Frantz with him on the brief) of Wetsel & Frantz, Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY and MOORE, Circuit Judges, and BROWN 1, District Judge.

McKAY, Circuit Judge.

This is an action for damages under 42 U.S.C. § 1983 (1988). The action arose out of the dismissal of Mr. Steven R. Hicks from his job as a police officer for the City of Watonga, Oklahoma. Mr. Hicks brought this action alleging that the appellants violated several of his constitutional rights. Mr. Hicks also brought various pendent state claims. The appellants moved for summary judgment claiming qualified immunity. The trial court found that the appellants are not immune, and denied their motion. This appeal followed.

We now hold that summary judgment should have been granted for all appellants on Mr. Hicks' claim that he was deprived of a liberty interest without due process of law. We also hold that appellants Rickey, DeSpain, Baker, Justice, Chapman, Green, Brown, Pendergraft, Norton, Patterson, and Swanegan are immune from damages on Mr. Hicks' claim that he was deprived of a property interest without due process of law, and that they are immune from damages on Mr. Hicks' first amendment retaliatory discharge claims. We affirm, however, the district court's denial of qualified immunity for appellant Diffey on the property interest claim, and hold that Ms. Diffey is not immune on the first amendment claim.

I. FACTS

Mr. Hicks worked in the City of Watonga, Oklahoma, Police Department for ten years, from 1978 to 1988. He rose from the rank of Patrolman to Assistant Chief. Mr. Hicks states that his problems with the City began on October 2, 1987, when he issued citations to a City Councilwoman, Brenda Diffey, and her son. He cited Councilwoman Diffey's son for driving without a license and impounded the Diffeys' car. He then cited Councilwoman Diffey for allowing her son to drive without a license. Mr. Hicks alleges that Councilwoman Diffey made harassing comments to him regarding the citations.

Apparently, Mr. Hicks revealed his intention to file a grievance against Councilwoman Diffey for making harassing comments, because on October 5, 1987, the Police Chief, Lonnie Rickey, informed Mr. Hicks that he had met with the Mayor, R.B. Chapman, and the City Clerk, Pat DeSpain. Chief Rickey told Mr. Hicks that if Mr. Hicks proceeded to file his grievance against Councilwoman Diffey, Mr. Hicks' girlfriend would be fired from her job in City Clerk DeSpain's office.

The appellants admit that this threat was made. Chief Rickey admitted in his deposition that it was his idea to make the threat, but that Mayor Chapman approved it and City Clerk DeSpain "didn't disapprove it." Deposition of Lonnie Rickey at 36. Mr. Hicks does not allege that any of the other appellants participated in this incident. Despite the threat, Mr. Hicks filed his grievance the next day, October 6, 1987. The threat to fire his girlfriend was never carried out.

In the Spring of 1988, several months after he filed his grievance with the Citizens Action Committee, Mr. Hicks again raised the issue of his encounter with Councilwoman Diffey--this time before the City Council. Mr. Hicks attended a City Council meeting where, in addition to relating his grievance about Councilwoman Diffey, Mr. Hicks told the City Council that Chief Rickey had purchased police radars but hid the purchases by representing the transactions as repairs. The City Council issued a letter of reprimand to Chief Rickey because of that revelation. On May 3, Chief Rickey tendered his resignation.

Early in 1988, Chief Rickey compiled notes listing infractions which Mr. Hicks had allegedly committed. In the spring of 1988, Councilwoman Diffey asked the Watonga City Attorney, Dan Webber, to investigate the alleged infractions. Mayor Chapman authorized the investigation and City Attorney Webber proceeded, hiring an outside investigator to determine whether there was any substance to the allegations. From the original list of twenty-seven alleged infractions gleaned from Chief Rickey's notes, City Attorney Webber compiled a list of twenty-one alleged infractions which were, in his opinion, substantiated.

On May 3, 1988, the Watonga City Council voted unanimously to suspend Mr. Hicks with pay pending a pre-disciplinary hearing. Councilwoman Diffey abstained from voting. The City Council members who voted were Dale Green, Herman Brown, Don Pendergraft, Duff Norton, Pat Patterson, and Charles Swanegan. On May 5, 1988, Mr. Hicks was notified of the suspension and of a pre-disciplinary hearing to be held on May 10.

The hearing did not go forward on May 10. Instead, on that date the city provided Mr. Hicks with a list of witnesses who would testify concerning the allegations. Additionally, the City apparently had concerns about compliance with the notice provisions of the Oklahoma Open Meetings Act. The pre-disciplinary hearing was rescheduled for June 2, 1988. Sessions of the hearing were held on June 2, 9, 10, 20 and 27. In all, some twenty-eight hours of testimony were taken. At Mr. Hicks' request, the sessions were opened to the public. Mr. Hicks was represented by counsel. He was allowed to cross-examine witnesses and present witnesses on his own behalf.

Chief Rickey took no part in the disciplinary proceedings after May 3. On that date he submitted his resignation, and on May 13 he was relieved of his duties as Police Chief. After he left the City's employ, Chief Rickey stated in his deposition that he would not have recommended disciplinary proceedings, and that he acted at the behest of Mayor Chapman when he turned over his notes containing the allegations against Mr. Hicks. Chief Rickey further stated that he believed the disciplinary proceedings were instigated by Councilwoman Diffey, and that he believed Mayor Chapman and Councilwoman Diffey wanted Mr. Hicks' "head on a platter." Deposition of Lonnie Rickey at 69.

It is unclear whether the entire City Council attended the lengthy pre-disciplinary hearing. Mr. Hicks' brief states only that Mayor Chapman "presided as the fact-finder." After the hearing, Mayor Chapman determined that all but seven of the twenty-one allegations were unsubstantiated. He ordered Mr. Hicks' reinstatement but placed a letter of reprimand in Mr. Hicks' file for the seven infractions. Those infractions were: (1) Mr. Hicks released confidential information from the personnel file of another officer without authorization; (2) Mr. Hicks was present at a private residence not on police business while on duty for an unwarranted period of time; (3) Mr. Hicks failed to follow procedure in recording mileage on his police unit; (4) Mr. Hicks failed to respond to a written memo of Chief Rickey as directed; (5) Mr. Hicks failed to properly supervise checkout of walkie-talkie equipment; (6) Mr. Hicks allowed a civilian to be present at the location of live ammunition and firearms training; and (7) Mr. Hicks threatened retaliatory conduct against a dispatcher.

In July of 1988, Mr. Hicks gathered signatures on petitions to force a grand jury investigation of city officials' dealings with him. Also, at roughly the same time, Mr. Hicks appealed the letter of reprimand. Although the city charter provided an intermediate appeal to the Police Review Board, with ultimate appeal to the City Council, the appeal went directly to the City Council. The City Council met in special session on August 22, 1988, to hear Mr. Hicks' appeal. At that time, Mr. Hicks and his counsel were again allowed to present arguments. The City Council voted unanimously to uphold the reprimand. Council members Green, Brown, Pendergraft, Diffey, Swanegan, Patterson, and Norton voted.

During all of the above proceedings Mr. Hicks was a suspect in an open criminal investigation being conducted by the Blaine County Sheriff. The investigation concerned a missing file containing information about Mr. Hicks' previous criminal convictions and one other charge for child molestation. Because the convictions occurred when Mr. Hicks was a minor, they had been expunged. The other charge occurred when Mr. Hicks...

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