McLeod v. Chilton
| Decision Date | 10 November 1981 |
| Docket Number | CA-CIV,Nos. 1,s. 1 |
| Citation | 132 Ariz. 9,643 P.2d 712 |
| Parties | Kenneth L. McLEOD, D. V. M., Plaintiff-Appellee-Appellant, v. Kenneth CHILTON, Lawrence Beck, Robert Bowman, Dwayne Dobson, Don Martin and Kenneth Morrison, individually and as members of the State of Arizona Livestock Sanitary Board; Joseph Samsill; Wayne Wiekhorst, D. V. M.; and the State of Arizona, Defendants-Appellants-Appellees. 5117, 1 5216, 1 5481 and 1 5761. |
| Court | Arizona Court of Appeals |
Robert K. Corbin, Arizona Atty. Gen. by Stephen K. Smith, Asst. Atty. Gen., Phoenix, for defendants-appellants-appellees.
Plaintiff Kenneth L. McLeod, D. V. M., was dismissed by the State Livestock Sanitary Board (Livestock Board) from his position as Chief Veterinary Meat Inspector, a state position created by A.R.S. § 24-621. These appeals represent the culmination of the morass of litigation commenced by plaintiff as a result of that dismissal.
The central issues presented to us are:
(1) Whether the Livestock Board violated Arizona's "open meeting" laws, A.R.S. §§ 38-431 through 38-431.09, thus rendering the resolution to dismiss plaintiff "null and void" under A.R.S. § 38-431.05;
(2) Whether plaintiff had a "property interest" or a "liberty interest" in his employment sufficient to entitle him under the due process clause of the fourteenth amendment, to a "pretermination " hearing;
(3) Whether plaintiff is entitled to judicial review of the Livestock Board's decision to terminate him, either indirectly through the procedures governing appeals to the State Personnel Board (Personnel Board), A.R.S. §§ 41-781 through 41-785, or directly pursuant to the Administrative Review Act, A.R.S. §§ 12-901 through 12-914.
These issues arise through appeals, which have been consolidated by order of this court, from four separate superior court orders. Specifically, the Livestock Board appeals from:
(1) A preliminary injunction issued November 9, 1979, directing the Livestock Board to reinstate plaintiff as the chief veterinary meat inspector until a hearing was held before the Personnel Board;
(2) A second preliminary injunction issued on January 18, 1980, again directing the Livestock Board to reinstate plaintiff pending the Personnel Board hearing, and additionally awarding plaintiff back wages from November 9, 1979; 1 and
(3) A superior court order determining that the Personnel Board had jurisdiction to hear plaintiff's case entered pursuant to an appeal to the superior court under A.R.S. § 41-785, which provides for appeals to superior court from Personnel Board decisions, after the Personnel Board had determined it was without jurisdiction to hear the case on its merits;
and plaintiff appeals from:
(4) A superior court order dismissing plaintiff's claim based on the Administrative Review Act, A.R.S. § 12-901 et seq., for lack of jurisdiction.
The facts and circumstances surrounding the issuance of these orders are as follows. The Livestock Board is a state agency responsible for "protect(ing) the public from diseased and unwholesome meat products." A.R.S. § 24-104(A) (1). The position of "chief veterinary meat inspector" is created by A.R.S. § 24-621. The chief inspector is to be appointed by the Livestock Board and Sometime during the last years of plaintiff's service, the Livestock Board became concerned with what it considered plaintiff's lax administration of the meat inspection program. In early June, 1979, Joe Samsill, the Livestock Board's Assistant Director of Administrative Services, met with plaintiff, discussed with him the Livestock Board's dissatisfaction with his present administrative procedures, and set a deadline in late June for shoring up the program's administration. On June 29, 1979, Samsill informed plaintiff that the Livestock Board still considered plaintiff's work as unsatisfactory, and offered him the option of accepting a voluntary demotion, being involuntarily demoted, or being dismissed. Plaintiff refused to accept a demotion.
[132 Ariz. 12] "shall serve at the pleasure of the board." A.R.S. § 24-621(A). Plaintiff had served as chief inspector for some twenty-three years prior to his dismissal.
Consequently, on August 22, 1979, the Livestock Board met and considered plaintiff's employment. Plaintiff had requested, prior to the meeting and in writing, pursuant to A.R.S. § 38-431.03, that all discussion concerning his employment be held in open session. After some discussion of plaintiff's situation in open session, the Livestock Board voted to continue discussing plaintiff's employment in "executive" session; that is, not before the public. A.R.S. § 38-431.03. Plaintiff objected to this procedure. Following the "executive" session, the Livestock Board returned to open session, where it voted to direct Samsill, now Acting Director for the Board, to request plaintiff to resign effective August 24, 1979, or, if plaintiff did not tender his resignation by that date, to dismiss him.
Plaintiff indicated he would not resign, and on August 23, 1979, received a nine-page dismissal letter, effective August 24, prepared and signed by Samsill. The letter opened by stating some general grounds regarding the dismissal, then outlined several specific situations where the Board felt plaintiff had not satisfactorily performed his duties as chief inspector. The particular dissatisfaction with plaintiff's performance in the bulk of these outlined situations involved plaintiff's reluctance to impose sanctions upon certain meat processing and packaging installations for their continuing disregard of sanitary standards. One situation involved an alleged conflict of interest. The letter closed by advising plaintiff of his right to appeal his dismissal to the Personnel Board. See A.R.S. § 41-768.
Upon receipt of the dismissal letter, plaintiff instituted a suit in two counts in superior court. Count One sought to nullify the August 22, 1979 Livestock Board action ordering his dismissal on the grounds that the "executive" session was held in violation of the Arizona open meeting laws, A.R.S. § 38-431 et seq., and thus the Board's actions taken pursuant to that session were "null and void." A.R.S. § 38-431.05. Count One also sought injunctive relief from any further attempt to terminate plaintiff pursuant to any Livestock Board resolution entered at the August 22 meeting. Count Two sought both damages and injunctive relief, based on 42 U.S.C.A. § 1983, alleging the Livestock Board had deprived the plaintiff of liberty or property without due process of law by not affording him a pretermination hearing. Additionally, Count Two prayed for an order restraining the Livestock Board from taking any further steps in connection with its plan to terminate plaintiff until a Personnel Board hearing was held.
While these matters were pending, the Livestock Board, on August 30, held a second meeting, this time completely in open session, in an attempt to cure both the alleged open meeting violation and the alleged deprivation of due process under 42 U.S.C.A. § 1983. At this meeting, the Board again voted to order plaintiff's dismissal. Shortly thereafter, plaintiff amended his complaint by adding a third count based on the Administrative Review Act, A.R.S. § 12-901 et seq., seeking judicial review of the procedures surrounding his dismissal. Plaintiff also filed a timely appeal with the Personnel Board. See A.R.S. § 41-768.
Based on the complaint filed in superior court, Judge Michael E. Bradford issued the November 9, 1979 injunction ordering plaintiff's reinstatement pending a Personnel Board hearing. This injunctive order was apparently based on the court's feeling that a prima facie "open meeting" violation had occurred, and that the August 30 Livestock Board meeting had not cured that defect. It is unclear what portion, if any, of the relief granted by the court was premised on plaintiff's due process request for a pretermination hearing. The court's conclusion of law indicates that reinstatement was based on the open meeting violation. However, the court's findings of fact numbers 6 and 7 state:
6. The dismissal of Dr. McLeod occurred in an atmosphere infused with allegations of scandal directed against the Livestock Sanitary Board and carries a taint of unethical conduct on Dr. McLeod's part.
7. The charges against Dr. McLeod and the attendant dismissal from his position are causing him a loss of pay and may be causing injury to his reputation. (emphasis added)
It further appears that plaintiff's claim under the Administrative Review Act was not considered or ruled upon at this time. The January 18, 1980 injunction was based on the same findings of fact and conclusions of law. The Livestock Board, as noted above, appealed from both orders.
While preparing for the Personnel Board hearing, the Livestock Board 2 discovered the language in A.R.S. § 24-621(A) which provides:
There is created the office of chief veterinary meat inspector. The (Livestock) board shall appoint (the chief inspector) .... (H)e shall serve at the pleasure of the board. (emphasis added)
The Livestock Board then filed a motion to dismiss the Personnel Board action, contending the above emphasized language-"shall serve at the pleasure of the board"-exempted plaintiff from the operation of the State Merit System 3 under A.R.S. § 41-771(12), set forth hereafter, and thus the Personnel Board was without jurisdiction over the matter. The Personnel Board agreed, and dismissed the case. Plaintiff appealed the dismissal to the superior court under A.R.S. § 41-785, and the superior court, exercising appellate jurisdiction, determined the Personnel Board did have jurisdiction, and remanded the matter back to the Personnel Board with...
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