Mining v. Wheeler, 20084-1.

• Decision Date: 03 April 1974
• Docket Number: No. 20084-1.,20084-1.
• Parties: James MINING et al., Plaintiffs, v. Charles WHEELER et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

378 F. Supp. 1115

James MINING et al., Plaintiffs, v. Charles WHEELER et al., Defendants.

No. 20084-1.

United States District Court, W. D. Missouri, W. D.

April 3, 1974.

Charles C. Shafer, Jr., Kansas City, Mo., for plaintiffs.

Dan G. Jackson, III, Associate City Counselor, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

Plaintiffs in this action,¹ several firefighters employed by the City of Kansas City, Missouri, and their local union, seek to void certain provisions of the Kansas City Charter and the City's Personnel Rules which regulate the political activities of city employees. Jurisdiction is alleged to arise under 28 U.S.C.A. § 1343(3) based upon a cause of action under 42 U.S.C.A. § 1983. Their complaint contends that Sections 126 and 127 of the Charter and Personnel Rule 1.5 violate the First, Ninth, and Fourteenth Amendments of the United States Constitution. They pray that these provisions be declared unconstitutional and void, and that the defendants be permanently enjoined from enforcing the challenged sections.

The case was submitted on an agreed Stipulation of Facts, and pends before us on cross-motions for summary judgment. For the reasons stated below, this Court must dismiss the action without prejudice to further proceedings in the State courts of Missouri.

I.

The agreed stipulation of facts establishes that the individual plaintiffs are fire-fighters, employed by the City, as "classified employees," as that term is defined in Section 115 of the Charter. They are appointed at will, pursuant to Section A7.5 of the City's Administrative Code. Plaintiff Local 42 is an unincorporated labor association affiliated with the International Association of Fire Fighters, AFL-CIO. This Local represents approximately 850 of the City's 900 Fire Fighters.

The City is governed by a City Charter adopted by a vote of the people of said City, pursuant to the provisions of Article VI, Section 19 of the Constitution of the State of Missouri of 1945. Pursuant to that Charter, the City Council has adopted an administrative code, ordinances and other rules and regulations for the government of the said City. Defendant Charles Wheeler is the duly elected Mayor of the City and defendant John L. Taylor was the duly appointed City Manager at the time this action was filed. The remaining individual defendants are duly elected members of the City Council.

Pursuant to Section 11 of the City Charter, the Mayor has all of the powers and duties of a member of the Council, and is president of the Council. Pursuant to Section 20 of the City Charter, the City Manager is the Chief Administrative Officer of the City; and pursuant to Section 21 of the City Charter, appoints and may remove all Directors of Departments and also all other officers except as otherwise provided in the Charter (Section 119). Neither the Council nor any of its committees or members has any authority to control the appointment or removal of any person to or from office or employment by the City Manager or any of his subordinates.

Section 126 of the City Charter, adopted by the electorate of the City on November 3, 1942, and popularly known as the Little Hatch Act, provides that:²

A No person shall solicit, orally or by letter, or otherwise, or be in any manner concerned in soliciting, any assessment, contribution or payment for any political purpose whatsoever from any officer or employee in the classified service of the city or from the city auditor, director of personnel or member of the personnel board.

B No officer, agent or employee of the city shall permit any such solicitation in any building or room occupied for the discharge of official duties of the city.

C No officer or employee in the classified service of the city, or auditor, director of personnel or member of the personnel board, shall directly or indirectly give, pay, lend or contribute any part of his salary or compensation or any money or other valuable thing to any person on account of, or to be applied to, the promotion of any political party or any political purpose whatsoever.

D No officer or employee of the city shall promote, remove, or reduce any other officer or employee, or promise or threaten to do so, for withholding or refusing to make any contribution for any political party or purpose, or for refusal to render any political service, and shall not directly or indirectly attempt to coerce, command or advise any other officer or employee to make any such contribution or render any such service.

E No officer or employee in the classified service of the city, or auditor, director of personnel or member of the personnel board, shall use his official authority or influence for the purpose of interfering with any election or any nomination for office, or affecting the result thereof.

F No officer or employee in the classified service of the city, or auditor, director of personnel or member of the personnel board, shall be a member or officer of any committee of any political party, or be ward committeeman or committeewoman, nor shall any such officer or employee, or auditor, director of personnel or member of the personnel board, solicit any person to vote for or against any candidate for public office, or "poll precincts" or be connected with other political work of similar character on behalf of any political organization, party or candidate. All such persons shall, however, retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.

G No questions in any examination shall relate to political or religious opinions or affiliations, and no appointment, transfer, lay-off, promotion, reduction, suspension or removal shall be affected or influenced by such opinions or affiliations.

H No persons shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under any provision of this article or in any manner commit or attempt to commit any fraud preventing the impartial execution of this article or any provision thereof.

I No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money, service or other valuable consideration for or on account of any appointment, proposed appointment, promotion, or proposed promotion to, or any advantage in, a position in the service of the city.

J No employee of the personnel department, examiner, or other person shall defeat, deceive or obstruct any person in his right to examination, eligibility, certification, appointment or promotion under this article, or furnish to any person any special or secret information for the purpose of affecting the rights or prospects of any person with respect to employment in the classified service.

K Any officer or employee of the city who shall violate any of the provisions of this section shall be discharged forthwith from the city service. It shall be the duty of the person or persons with authority to discharge, to discharge any such offending person at once. Any elector of the city may bring suit to restrain the payment of compensation to any such offending officer or employee and as an additional remedy any such elector may also obtain a writ of mandamus to compel the dismissal of such offending officer or employee. Officers or employees discharged by elector's mandamus, shall have no right of review of such action before the personnel board. Any person dismissed under this section shall, for a period of five (5) years, be ineligible for appointment to any position in the service of the city. Any person who shall willfully or through culpable negligence violate any of the provisions of this section shall, upon conviction thereof, be punished by a fine of not less than fifty dollars ($50.00) and not exceeding five hundred dollars ($500.00), or by imprisonment in the city prison for a term of not exceeding six (6) months, or by both such fine and imprisonment.

Section 127 of the City Charter provides that:

No person elected to the council shall, during the time for which elected, be appointed to any other office or position in the service of the city. Any appointive officer or employee of the city who shall become a candidate for nomination or election to any public office shall immediately forfeit the office or employment then held by him under the city.

The individual plaintiffs, as classified employees, are subject to the restrictions and penalties of Section 126 of the City Charter. Similarly, as appointive officers or employees, they are subject to the restrictions and penalty of Section 127 of the City Charter.

Pursuant to Section 116 of the City Charter, the City's Director of Personnel, with the concurrence of the City Manager, has promulgated certain Personnel Rules covering the conduct of all City employees, including Section 1.5 entitled "Prohibition of Political Activity and Discrimination."³

This litigation was obviously prompted by circumstances which occurred prior to the last Kansas City municipal election. Shortly before that election, defendant City Manager issued a letter, discussing political activity by city employees, which was intended for all classified employees, including the individual plaintiffs.⁴

At a regular meeting of the Firefighters Local Union No. 42 on December 1, 1970, particular union officials were authorized and instructed to prepare a list of questions regarding the "Local 42 Program" to ask of each candidate for city office and thereafter to make known to the union members the names of candidates whose answers to the questionnaire were most favorable to the union. On February 25, 1971, two Fire Captains, plaintiffs Taylor and Mining, mailed a letter to all Fire Stations reporting on interviews had with various candidates for city offices, to which was attached a list of names of those "that answered correctly and were consistent in their attitude" toward the...