Johnson v. City of Buckner, WD

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Citation: 610 S.W.2d 406
• Parties: Raymond A. JOHNSON, Plaintiff-Appellant, v. CITY OF BUCKNER, Missouri et al., Defendants-Respondents. 31095.
• Court: Missouri Court of Appeals

Page 406

610 S.W.2d 406

Raymond A. JOHNSON, Plaintiff-Appellant, v. CITY OF BUCKNER, Missouri et al., Defendants-Respondents.

No. WD 31095.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

Richard W. Noble, Steven D. Ruse, Shughart, Thomson & Kilroy, Kansas City, for plaintiff-appellant.

Don Hutson, Hutson, Schmidt & Hammett, Kansas City, for defendants-respondents.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

Raymond Johnson filed suit in seven counts against the City of Buckner and its mayor and board of aldermen alleging violations of his procedural and substantive due process rights under the Fourteenth Amendment to the United States Constitution, a right to judicial review of his termination as a police officer and damages for defamation. The eighth count was a suit by Johnson's wife, Janet, but no appeal has been taken on that count.

After extensive discovery consisting of requests for admissions and depositions, Buckner and the individual defendants filed a motion for summary judgment which was granted as to all counts of the petition. On this appeal Johnson contends: (1) he was not an employee at will and, therefore, he was not terminable at will; (2) he had a liberty interest which was violated when he was terminated; (3) he was denied substantive due process in his termination; (4) he was entitled to judicial review of his discharge; (5) the counts in defamation raised issues of fact which need to be resolved; and (6) the allegations of actual malice raises issues of fact which are triable by a jury. Affirmed.

Johnson was a full-time police officer employed by Buckner for about a year when he was terminated by action of the mayor and board of aldermen. The action to terminate Johnson was taken at a closed meeting of the board without notice or hearing, and after the meeting Johnson was called to the meeting and informed that he had been terminated. When Johnson entered the meeting, he noted the presence of a stranger who was not a part of the board of aldermen. When informed that he had been terminated, Johnson asked the reasons and in response the mayor made the following statement:

"The counsel voted to dismiss Ray Johnson. All members of this board agree on this is based on his conduct and deportment, careless handling of city property, disregard of orders and his general attitude."

The person unknown to Johnson who was in the meeting at the time Johnson requested the mayor to give the reasons for his termination turned out to be a reporter for a newspaper of general circulation in the area, and the newspaper, on the next day, carried an account of the termination with the reasons as given by the mayor. No other publication by the City or its officers is alleged by Johnson other than the statement given by the mayor at the time Johnson requested the reasons for his termination.

About a week after the termination, Johnson made a request in writing for an appeal hearing before the board of aldermen concerning his termination. A short time later, the board conducted a hearing, and thereafter the board voted to ratify the termination. This suit followed. In Counts I through IV Johnson alleged violation of his procedural and substantive due process rights in his termination without notice and hearing prior to the termination; in Count V he sought judicial review of his termination; in Counts VI and VII he alleged defamation by the reasons given for his termination. The prayer generally was for reinstatement to his position and for actual and punitive damages.

Johnson first contends the court erred in granting summary judgment on Counts I through V on a finding that he was an employee at will because under certain city ordinances he could not be discharged for disciplinary reasons without procedural steps being taken which the City failed to follow. Johnson concedes the city ordinance provided that police officers hold their office at the will of the mayor and board of aldermen. Section 85.620, RSMo 1978, ¹ provides that the police of cities of the fourth class, as is Buckner, may be appointed for such times as may be prescribed by ordinance. In Cooper v. City of Creve Coeur, 556 S.W.2d 717 (Mo.App.1977) the court held that under §§ 79.230 and 79.240 police officers of fourth class cities are employees at will and may be removed for no reason or any reason by the mayor with the consent of a majority of the board of aldermen. Johnson acknowledges the holding in Cooper is squarely against him, and does not dispute the action taken by Buckner was sufficient to discharge him under Cooper, but contends city ordinances providing for disciplinary actions against police officers were not complied with by the City and for that reason his termination was improper. In Russell v. City of Raytown, 544 S.W.2d 48, 51(4, 5) (Mo.App.1976) this court held that provisions of a personnel code in the city ordinances could not place a city employee beyond the power of the mayor and board of aldermen to remove pursuant to authority granted by statute. In this case, under the holding in Cooper, Johnson was an employee at will. Although the City could have given him a different status under § 85.620, it did not do so. As an employee at will he could be removed for any reason or no reason. Any city ordinance to the contrary is not effective to grant him any greater status than an employee at will. Russell, supra. The trial court was correct in holding that Johnson was an employee at will and granting summary judgment as against contentions he was entitled to notice and hearing because he was not an employee at will.

Johnson contends that even if it be held that he was an employee at will the court erred in granting summary judgment because there are material questions of fact to be resolved by his pleadings that his termination deprived him of a liberty interest under the Fourteenth Amendment. In this point Johnson contends that he was entitled to procedural due process because the reasons given for his termination were false and defamatory and this deprived him of his liberty. He contends he was entitled to notice and hearing prior to his termination to afford him an opportunity to contest the reasons for his termination.

In Mazaleski v. Treusdell, 562 F.2d 701 (D.C. Cir. 1977) a government employee was terminated for unsatisfactory performance and insubordination. The court stated at p. 712:

Subsequent lower court decisions have interpreted the guidelines articulated in Roth (Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)) to require that an employee claiming an infringement of liberty show that the government's action was likely to either seriously harm his standing in the community or foreclose his future opportunities for reemployment.

The court observed that Mazaleski was not terminated for dishonesty, for having committed a serious felony, serious mental illness or for lack of intellectual ability as distinguished from his job performance. The court held the reasons assigned did not show an infringement of liberty. The court quoted with approval from Russell v. Hodges, 470 F.2d 212, 217(5, 6) (2d Cir. 1972) when the court referred to Roth and said:

(W)e believe the Court was thinking of something considerably graver than a charge of failure to perform a particular job, lying within the employee's power to correct; the cases cited as illustrations involved charges of chronic alcoholism or association with subversive organizations. Indeed, a general rule that informing an employee of job-related reasons for termination created a right to a hearing, in circumstances where there was no constitutional requirement for the state to do anything, would be self-defeating; the state would merely opt to give no reasons and the employee would lose the benefit of knowing what might profit him in the future.

In Russell v. Hodges the court was considering reasons for termination which included sleeping on duty, absence from his post without authorization and wearing improper attire. The court held these reasons did not infringe the liberty interest protected by the Fourteenth Amendment.

This court believes the rule stated in Russell v. Hodges, supra, is correct and that the court in Roth was thinking of something more than reasons for job termination related to a failure to perform and other performance deficiencies within the employee's power to correct. The reasons given in this case were wholly related to Johnson's job performance and were wholly within his province to correct. They do not charge him with any...