Hough v. Dane County

• Decision Date: 07 June 1990
• Docket Number: No. 89-0535,89-0535
• Citation: 458 N.W.2d 543,157 Wis.2d 32
• Parties: C. Merrill HOUGH, Plaintiff-Respondent-Cross Appellant, d d> v. DANE COUNTY, Defendant-Appellant-Cross Respondent. d . Orally
• Court: Wisconsin Court of Appeals

Page 543

458 N.W.2d 543

157 Wis.2d 32

C. Merrill HOUGH, Plaintiff-Respondent-Cross Appellant, ^dd> v. DANE COUNTY, Defendant-Appellant-Cross Respondent.

d

No. 89-0535.

Court of Appeals of Wisconsin.

Orally Argued Oct. 19, 1989.

Opinion Released June 7, 1990.

Opinion Filed June 7, 1990.

[157 Wis.2d 37] Judith H. Toole, Deputy Corp. Counsel, of Dane County Corp. Counsel, Madison, for defendant-appellant-cross respondent.

Cheryl Rosen Weston, orally, and Cheryl Rosen Weston, Lester A. Pines, and Carol L. Grob of Cullen, Weston, Pines & Bach, on the briefs, Madison, for plaintiff-respondent-cross appellant.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Dane County appeals from a judgment awarding damages and attorney fees to C. Merrill Hough based on his claim under 42 U.S.C. sec. 1983 that the county violated his due process rights under the fourteenth amendment ¹ when it terminated his employment. The central issues are (1) whether Hough had a protected property interest in continued employment, (2) if so, whether the county denied Hough procedural due process, and (3) whether the trial court abused its discretion in ruling that the county could not introduce evidence that the county board would have terminated Hough's employment had he been afforded due process.

We conclude that Hough did have a protected property interest in continued employment by virtue of sec. 59.032(2)(b), Stats. (1983-84), and that his procedural due process rights were violated. We further conclude that the trial court made the proper evidentiary ruling because the county failed to make an adequate offer of proof regarding what decision the county board would have made. Accordingly, we affirm.

Hough cross-appeals from the judgment. The issues raised are (1) whether the trial court abused its discretion by denying Hough's request for a declaratory judgment that the county violated sec. 59.032(2)(b), Stats. (1983-84), (2) whether the court abused its discretion by refusing to reinstate Hough, and (3) whether Hough waived his civil service rights when he became director of the Department of Emergency Planning.

Because Hough obtained damages under 42 U.S.C. sec. 1983, we conclude that the trial court did not abuse its discretion by denying Hough's requests for declaratory relief and mandamus. We need not address the waiver issue because we conclude that Hough had a protected property interest in his employment as director. We therefore also affirm that part of the judgment relating to Hough's cross appeal.

BACKGROUND

The parties stipulated to the facts. From 1974 through 1982, Hough served as the deputy director of the Dane County Department of Emergency Planning. The deputy director position was covered by the Dane County Civil Service Ordinance. The ordinance provided that the position was terminable only for just cause and contained procedures for termination.

On October 4, 1982, County Executive Jonathan Barry appointed Hough director of the Department of Emergency Planning effective January 1, 1983. As director, Hough was the head of the department. The director's position was not a regular position under the Civil Service Ordinance. Barry terminated Hough effective October 12, 1984, ² without filing charges with the county board.

Hough sued Barry, the Dane County Board of Supervisors and the Personnel Committee of Dane County, seeking mandamus, declaratory relief, and legal and equitable remedies under state law and under 42 U.S.C. sec. 1983. The trial court dismissed Hough's complaint. We reversed and remanded for trial. Hough v. Barry, 141 Wis.2d 978, 415 N.W.2d 861 (Ct.App.1987).

Before trial, the parties stipulated to the dismissal of all defendants except Dane County. Based on the parties' stipulation, the trial court directed a finding that the county executive had failed to file charges against Hough with the county board. The jury found that Hough had waived his civil service rights when he accepted appointment as the director of Emergency Planning. The jury also found that the county's actions injured Hough, and it awarded him $88,742 for lost wages, $58,000 for impairment of future earning capacity, and $25,000 for emotional distress. The trial court awarded Hough $42,157 in attorney's fees under 42 U.S.C. sec. 1988.

Both parties filed motions for judgment notwithstanding the verdict. The county asked the court to overturn the jury's finding that the county's failure to file charges injured Hough. Hough requested a declaratory judgment that his discharge violated sec. 59.032(2)(b), Stats. (1983-84) and mandamus reinstating him. He also sought a judgment notwithstanding the verdict regarding the waiver of his civil service rights. The court denied all requests for post-trial relief.

I. APPEAL

A. HOUGH'S PROPERTY INTEREST

To have a property interest in a benefit and a right to procedural due process under the fourteenth amendment, a person must have a "legitimate claim of entitlement" to the benefit rather than a mere "unilateral expectation." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests 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.

A Wisconsin public employee has no reasonable expectation of continued employment "absent civil service regulations or laws, or the protections of a contract or collective bargaining agreement authorized by statute." Amendola v. Schliewe, 732 F.2d 79, 83 (7th Cir.1984) (citing Castelaz v. Milwaukee, 94 Wis.2d 513, 520, 289 N.W.2d 259, 262 (1980); see Adamczyk v. Caledonia, 52 Wis.2d 270, 273-75, 190 N.W.2d 137, 138-40 (1971)).

Hough cannot rely on the Dane County Civil Service Ordinance as a source of a property right. His position was excluded from the removal-for-cause provisions of the ordinance. Dane County, Wis., Civil Service Ordinance sec. 18.05(1)(c). Nor can he claim the protections of a contract or collective bargaining agreement. Neither existed.

Rather, Hough argues that his expectation of continued employment arises from sec. 59.032(2)(b), Stats. (1983-84), which provided:

The duties and powers of the county executive shall be ... to:

....

(b) Appoint the heads of all departments of the county except those elected by the people and except where the law provides that the appointment shall be made by a board or commission or by other elected officers; but the county executive shall also appoint all department heads where the law provides that the appointment shall be made by the chairperson of the county board or by the county board, except for an appointment to fill a vacancy in an elective office. An appointment by the county executive under this paragraph requires the confirmation of the board. The county executive may file with the county board charges for the removal, discharge or suspension of any person appointed by the executive.

(Emphasis added.) Hough contends that, because he could not be removed without "charges" being filed with the county board, he could only be removed for cause. We agree.

Statutory interpretation is a question of law, which we determine without deference to the trial court. State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647, 650 (1984). The starting point for our interpretation of a statute is the statutory language itself. State v. Williquette, 129 Wis.2d 239, 248, 385 N.W.2d 145, 149 (1986). A nontechnical term in a statute is given its ordinary and accepted meaning. Id. When no statutory definition for the term is provided, we may resort to a recognized dictionary for guidance. Id.

"Charges" is not defined in sec. 59.032(2)(b), Stats. (1983-84). We therefore look to dictionary definitions for guidance. Webster's Third New International Dictionary, 377 (1976), defines "charge" as: "6a: an accusation of wrong or offense: allegation, indictment ... b: a statement of complaint or hostile criticism." This definition suggests that the charges to be filed with the county board be charges of wrongdoing. Based on the ordinary meaning of "charges," we conclude that Hough had a statutory entitlement to his position, which could only be terminated for cause.

An attorney general opinion supports our conclusion. According to the attorney general, the county board could remove a department head only for cause upon charges filed by the county executive:

The county executive has no statutory authority to unilaterally remove a department head, but may 'file, with the county board, charges for ... removal, discharge or suspension ...' Sec. 59.032(2)(b), Stats. Violations of work rules and the existence of oral or written reprimands might support such charges....

72 Op.Att'y Gen. 161, 167 (1983). ³

B. HOUGH'S DUE PROCESS RIGHTS

Because he had a property interest in continued employment, Hough could not be terminated without (1) oral or written notice of the charges against him, (2) an explanation of the evidence supporting the charges, and (3) an opportunity to respond to the charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985).

Hough's due process rights included the right to have the proper decisionmaker hear the charges against him, hear his response to the charges, and determine whether he should be terminated. Morgan v. United States, 298 U.S. 468, 480-81, 56 S.Ct. 906, 911, 80 L.Ed. 1288 (1936); Hawkins v. Board of Public Education, 468 F.Supp. 201, 209-10 (D.Del.1979).

Under sec. 59.032(2)(b), Stats. (1983-84), the county board, not the county executive, had the authority to terminate Hough. Because Barry, rather than the county board, terminated Hough, his procedural due process rights were violated.

C. THE APPROPRIATE REMEDY AND THE MOTION IN LIMINE

Once Hough established a...