Kennedy v. McCarty

• Decision Date: 25 November 1991
• Docket Number: No. IP 90-228-C.,IP 90-228-C.
• Citation: 778 F. Supp. 1465
• Parties: John F. KENNEDY, Plaintiff, v. William E. McCARTY, an individual, and the City of Franklin, Indiana, Defendants.
• Court: U.S. District Court — Southern District of Indiana

778 F. Supp. 1465

John F. KENNEDY, Plaintiff, v. William E. McCARTY, an individual, and the City of Franklin, Indiana, Defendants.

No. IP 90-228-C.

United States District Court, S.D. Indiana, Indianapolis Division.

November 25, 1991.

COPYRIGHT MATERIAL OMITTED

John Emry, Franklin, Ind., for plaintiff.

James R. Acher, Franklin, Ind., Richard S. Ewing, Rebekah F. Pierson, Stewart & Irwin, Indianapolis, Ind., for defendants.

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

TINDER, District Judge.

I. Introduction

This case appears to be about principle. It is surely not about money. The plaintiff is seeking reinstatement to a job that paid $1.00 a year.¹ The justiciable principles identified by the plaintiff are the constitutional right to due process before the state may take liberty or property, the constitutional right to free speech and to petition the government for redress of grievances and various related state law claims. The complaint, however, also makes it evident that there is another principle that the plaintiff wants to stand up for, although he cannot recover on this basis — more about that later.

Both parties have moved for summary judgment — the plaintiff as to all aspects of his claims that the defendants are liable and the defendants on liability for the plaintiff's property interest and liberty interest claims, on the plaintiff's claim for punitive damages and on the basis of Indiana's governmental immunity statute. In addition, the plaintiff has moved to strike an affidavit and certain exhibits attached to defendants' motions. Finally, in their reply brief on their summary judgment brief the defendants raised for the first time the question of the applicability of the tort claims notice requirement imposed by Indiana statute. On October 24, 1991 a hearing was held on these motions. This entry resolves the outstanding motions between the parties.²

II. Factual Summary

John F. Kennedy, the plaintiff in this case, was a police reserve in the Franklin, Indiana police department from October 1982 through February 14, 1990. As a reserve in the police department Kennedy did not receive a salary per se. In fact, the only tangible remuneration that he received was $1.00 a year and a $99 uniform allowance. Kennedy "volunteered" his services hoping "that he would be able to move from part-time as a reserve police officer to full-time as a regular police officer when a position opened up." First Amended Complaint at 4.

Kennedy was given some responsibility in the reserve section of the department. He was named the reserve commander, and in that capacity was over the other reserves on the police force. Nevertheless, although Kennedy felt that "because of his seven years investment as a reserve police officer, he had a vested interest in his position in line for a job as a full time police officer," First Amended Complaint at 7 (emphasis added), his hopes have not come to fruition. Kennedy has not been appointed to the full time police force.

On February 15, 1990 Kennedy was abruptly terminated from his position by William E. McCarty, the Franklin Chief of Police. Kennedy's termination came after what appears to have been some months of turmoil within the department. There is little actual evidence before the court at this time that would indicate what the disputes within the department were about, nor is such evidence relevant to the issues before this court. However, the fact that the plaintiff here has seen fit to clutter his complaint with over ten pages of irrelevant and often trivial accusations against the chief of police³ leads this court to suspect that Kennedy was not Chief McCarty's biggest cheerleader.

In any case, the relationship between Kennedy and McCarty reached a breaking point during the days of Sunday, February 14 and Monday, February 15, 1990. On Sunday, February 14, Kennedy placed a phone call to Chief McCarty at the latter's home, but the purpose of the call was not to transmit a Valentines Day greeting. Rather, Kennedy wanted to know if the Chief had approved of a letter to the editor of the local newspaper, written by three reserve officers, that was supportive of the police department and which criticized unfavorable coverage of the department in the local paper.

When Kennedy found out that the letter had not been approved but that the Chief did not feel that the letter violated any departmental rules, Kennedy asked if he could write a more critical letter to the editor. Kennedy asserts that Chief McCarty said no. However, McCarty agreed to meet with Kennedy the following afternoon. Apparently, this impasse emboldened Kennedy to be willing to bring his criticisms to the attention of the mayor, because later that day or early the next Kennedy delivered a memorandum to his shift commander⁴ which stated simply:

I REQUEST PERMISSION TO SEE MAYOR ED TEETS. REFERENCE THE POOR MORALE PROBLEM OF THE FRANKLIN POLICE DEPARTMENT. FOR WHICH I BELIEVE POLICE CHIEF WILLIAM McCARTY IS RESPONSIBLE

SGT John Kennedy

Pursuant to departmental policy this memorandum was delivered to the Chief of Police.

Kennedy's commitment to openness, however, did not engender tranquility. On the day after Kennedy's Valentines Day call Chief McCarty was seeing red. By that time, the Chief had received the memorandum Kennedy had prepared. At their afternoon meeting the Chief asked Kennedy if he was the author of the memorandum. Kennedy's acknowledgment prompted McCarty to give Kennedy his pink slip, which was in the form of a terse letter:

February 15, 1990 John F. Kennedy Franklin Police Department PE# R12

Dear Sir:

As Chief of the Franklin City Police Department, I hereby terminate your status as Reserve Officer for the police department, effective immediately.

Yours Truly /s/ William E. McCarty William E. McCarty Chief of Police Franklin Police Department cc; file Board of Public Works and Safety

Less than two weeks after he was dismissed Kennedy appealed his termination and sought his reinstatement at a meeting of the Franklin Board of Public Works and Safety (the "Board" or the "Safety Board"). See City of Franklin, Board of Public Works & Safety, Minutes February 27, 1990 (Pl.Exh. D-3). The Board took no action on his request. This suit followed.

III. Discussion

A. Property or Liberty Interest

The starting point in analyzing Mr. Kennedy's due process claim is determining whether Mr. Kennedy lost property or liberty, for if he did not lose any property or liberty he was not entitled to any process. From his complaint this court is able to gather that Mr. Kennedy believes he has been unconstitutionally deprived of four things:

1. a vested interest in remaining on the police force in a reserve capacity in order that he might be in line for any full time jobs on the force that might open up,

2. $1.00 a year payment for his services,

3. a $99 a year clothing allowance,⁵ and

4. a liberty interest in his reputation that was affected by Chief McCarty's comments regarding his decision to fire Kennedy.

Each of these asserted interests will be discussed in turn.

1. Property interest

a. Creation by state statute

Mr. Kennedy's first claimed deprivation of property is easily disposed of. "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." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Mr. Kennedy did not have a property interest in his claimed "vested" interest in maintaining his reserve position in order that he might later become a full time officer because Kennedy only had a unilateral expectation or "hope" that he might attain a full time position.

Mr. Kennedy can point to no statute, ordinance, departmental regulation or private agreement that turns his hope into a legitimate claim of entitlement. The past practice of some reserve officers later becoming full time officers is not enough to give Kennedy a property interest. The Board of Public Works and Safety is the ultimate appointing authority for police officers in the City of Franklin, Indiana, and save their appointment, Kennedy's "vested interest" in eventual full time employment was no more than a chance, a mere possibility that what he hoped for — would one day come true.

The next property interest Kennedy claims he has been deprived of is entitlement to $1.00 a year for performing the services of a reserve officer. This court maintains little doubt that, despite its ever diminishing buying power, $1.00 is property in every sense of the word. But, Kennedy has a property interest in that dollar a year only if he has a legitimate claim of entitlement to it.⁶ The interest that a public employee has in his job is property only if the employee "has tenure rights in the job — that is, if he can be fired only for misconduct." Jungels v. Pierce, 825 F.2d 1127, 1130 (7th Cir.1987); accord Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir. 1989).

Whether Kennedy could be fired only for misconduct is a question of state law. See Thornton, 890 F.2d at 1386-87 ("In order to ascertain whether employees have a `protectible property interest,' we must turn to the applicable state law ..."). Kennedy points to two sources as the genesis for his alleged property interest in his public employment: an Indiana statute a and a local ordinance.

The Indiana statute relied upon by Kennedy is Ind.Code § 36-8-3-4(b).⁷ See Plaintiff's Brief in Support of His Motion for Partial Summary Judgment (filed April 17, 1990) at 3. Kennedy contends that this provision specifies that "a member of an Indiana police force can be dismissed only for cause." Id. This provision provides, in part, that:

a member of the police or fire department holds office or grade until he is dismissed or demoted by the safety board. A member may be disciplined by

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