Mermelstein v. Haner

• Decision Date: 02 August 1977
• Docket Number: Civ. A. No. 76-0261.
• Citation: 436 F. Supp. 238
• Parties: Lothar MERMELSTEIN, Plaintiff, v. Byron E. HANER, Defendant.
• Court: U.S. District Court — Western District of Virginia

436 F. Supp. 238

Lothar MERMELSTEIN, Plaintiff, v. Byron E. HANER, Defendant.

Civ. A. No. 76-0261.

United States District Court, W. D. Virginia, Roanoke Division.

August 2, 1977.

Fergus B. Norton, Roanoke, Va., for plaintiff.

William R. Rakes, Gentry, Locke, Rakes & Moore, Roanoke, Va., for defendant.

MEMORANDUM OPINION AND JUDGMENT

DALTON, District Judge.

This action is currently before the court on defendant's motion to dismiss plaintiff's complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Both parties to this action presented various memoranda, affidavits, depositions, and exhibits in support of their respective positions. Accordingly, the court now considers defendant's motion as one for summary judgment under Rule 56 of the Federal Rules, pursuant to the requirements of Rule 12(b).

STATEMENT OF THE FACTS

The plaintiff, Lothar Mermelstein, was hired in 1970 as the Manager of Planning for the City of Roanoke. Apparently, plaintiff was hired by the then City Manager of Roanoke, with the approval and concurrence of the Roanoke City Council.¹ Subsequent to plaintiff's employment by the City, the defendant, Byron E. Haner, became City Manager. In early June of 1976, the defendant notified plaintiff that the latter's employment with the City of Roanoke would be terminated as of June 18, 1976.²

Plaintiff now contends that his termination was effected in violation of the formal Personnel Rules of the City of Roanoke. Plaintiff further alleges that defendant's course of conduct creates a cause of action under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff contends that the actions of the defendant operated so as to deprive plaintiff of due process of law as secured under the Constitution and laws of the United States. Plaintiff alleges that the defendant, acting under color of law, deprived plaintiff of the property right of continued employment in violation of certain constitutionally protected procedural safeguards. Plaintiff does not allege infringement of any rights of expression, protected under the First Amendment. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1332, and 1343.

Defendant's motion to dismiss is primarily grounded on the assertion that the termination of plaintiff's employment was effected by the Roanoke City Council's general budgetary reduction for the fiscal year commencing on July 1, 1976. Defendant further contends that plaintiff had no property interest in his job, subject to protection under the Due Process Clause of the Fourteenth Amendment.

RESOLUTION OF THE ISSUES

The court has determined that summary judgment must be entered for the defendant. The primary issue raised in plaintiff's complaint is whether the termination of plaintiff's employment was occasioned by illegal action of the defendant. In his initial complaint, plaintiff correctly contends that specific personnel retention or non-retention is a matter generally delegated to the City Manager, pursuant to and subject to the limitations contained in Sections 7 and 21(b) of the Roanoke City Charter. In his Memorandum in Opposition to Defendant's Motion to Dismiss, plaintiff notes that such delegation is intended to segregate the administrative function of city government from the policy-making function of City Council. Given the "City Manager" form of local government that prevails in the City of Roanoke, plaintiff's observation is undoubtedly valid. However, such segregation of functions neither establishes nor implies that City Council has surrendered the authority to alter the structure of the city administration. Such alterations in the city administrative structure embody and manifest policy considerations. It is not to be unexpected that such structural alterations should sometimes involve dislocation of personnel. In the instant case, the record clearly reveals that the position occupied by plaintiff was eliminated by action of the city's duly elected governing body. The record further establishes that the elimination occurred as a result of the Roanoke City Council's implementation of its own policy decision to achieve budgetary reductions for the fiscal year commencing on July 1, 1976.

Pursuant to the Roanoke City Charter, the City Manager undertakes each year the preparation and presentation to City Council of a proposed annual budget for the City. Under Section 33 of the Charter, the City Manager is required to produce a balanced budget proposal. In his Budget Message containing proposals for the fiscal year commencing on July 1, 1976, City Manager Haner recognized a need for a reduction in the number of classified employees in the city's service, in order to assure a balanced budget for the upcoming fiscal year.³ The City Manager further suggested that such reduction should apply to newly requested as well as to then existing personnel positions. The City Manager recommended elimination of one hundred forty six (146) positions. Of that number, the City Manager stated that forty six (46) were newly requested positions while one hundred (100) were already authorized. The City Manager specifically noted that many of the 100 authorized positions, proposed for deletion, were occupied as of the date of his message.

Apparently, City Council concurred in the need for reduction of personnel positions. By way of affidavit, defendant asserts that on June 1, 1976, he was authorized by council to implement a reorganization and reduction of the city work force.⁴ Such assertion is documented by formal action taken by the City Council on June 23, 1976. On that day, Council passed a resolution directing the City Manager to limit the number of classified employees to no more than sixteen hundred fifty five (1,655) persons.⁵ On the same day, the Council enacted an ordinance adopting a budget and providing for appropriations for the upcoming fiscal year.⁶ Incorporated in the budget ordinance were breakdowns of the expenditures and salaries for personnel in each department of the city. These figures reveal that no appropriation was made for the position of Manager of Planning.

The court must conclude that the termination of plaintiff's position occurred as a direct result of action by the Roanoke City Council. The factual situation of this case is similar to that recently considered by this court in Graham v. Haner, 432 F.Supp. 1083 (W.D.Va., 1976). In Graham, the plaintiff's position with the City of Roanoke had also been eliminated as part of the same general budgetary reduction. In granting defendant's motion for summary judgment in Graham, the court noted that the City Manager could not be held responsible for the formal act of City Council which effectively eliminated plaintiff's position. In language equally applicable to the instant case, the court commented in Graham v. Haner, supra, as follows:

". . . the fact remains that City Council declined to appropriate the necessary funds for the continuation of the position of Manager of Personnel and Training. While the City Council undoubtedly relied to a certain extent on the City Manager's recommendations, the final decision rested exclusively with City Council. Appropriations are solely within the province of City Council. There is no requirement, Constitutional or otherwise, for the City Council to assign reasons for the allocation or nonallocation of funds. Moreover, the record reveals that numerous other classified positions were eliminated as a result of the reorganization implemented through the appropriations ordinance. It is true that the duty to notify the affected employees fell to the defendant. Whether the City Manager did or did not enjoy his task is irrelevant. Plaintiff's position was to be no longer existent. The defendant's letter apprising plaintiff of this circumstance does not create a cause of action against the City Manager." (footnote omitted) (at 1086-1087).

Just as in Graham, plaintiff in this action does not contend that the budget and appropriations ordinance was not duly enacted. The plaintiff does not contend that he had an employment contract with the City of Roanoke such as would prohibit termination of employment. There is no allegation that plaintiff had qualified for vested rights under the City's pension plan, which have been denied by the City Manager. In short, plaintiff has failed to advance any conceivable theory of action under which he might establish that he has suffered denial of procedural due process at the hands of the defendant City Manager.

Plaintiff in this action has assigned several factors which purportedly distinguish this case from Graham v. Haner, supra. In Graham, plaintiff intimated that the City Manager improperly represented to City Council the facts concerning the number of persons in the City's employ. In the current action, plaintiff has presented facts, figures, and various observations in support of this same allegation.⁷ It is plaintiff's contention that as of at least May 31, 1976, there were less than 1655 occupied positions in the City of Roanoke work force. Thus, plaintiff would argue that defendant improperly represented a need for termination of occupied positions in order to comply with City Council's decision eventually embodied in the resolution of June 23, 1976. At the most, plaintiff's figures serve to create some factual discrepancy as to the number of occupied positions that were actually deleted pursuant to the general budgetary reduction implemented by the ordinance of June 23, 1976.⁸ However, such a discrepancy has absolutely no relevance to the legal issue at hand. The crucial factor is that City Council specifically made no appropriation for the position of Manager of Planning. The City Manager's input in Council's decision making process may have been great or it may have been small. However, the final decision rested solely with City Council. Viewed in a light most favorable to plaintiff, the personnel figures submitted by plaintiff...