Mondt v. Cheyenne Police Dept.

• Decision Date: 09 September 1996
• Docket Number: No. 95-240,95-240
• Parties: Linda M. MONDT, Appellant (Petitioner), v. CHEYENNE POLICE DEPARTMENT; and Cheyenne Police Civil Service Commission, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 70

924 P.2d 70

Linda M. MONDT, Appellant (Petitioner), v. CHEYENNE POLICE DEPARTMENT; and Cheyenne Police Civil Service Commission, Appellees (Respondents).

No. 95-240.

Supreme Court of Wyoming.

Sept. 9, 1996.

Mitchell E. Osborn of Grant & Osborn, Cheyenne, for appellant (petitioner).

Wallace L. Stock of Bailey, Pickering & Stock, Cheyenne, for appellees (respondents).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

GOLDEN, Justice.

A non-probationary police officer in the service of the City of Cheyenne, whose employment relationship is governed by the state's civil service law found in WYO. STAT. §§ 15-5-101 through 121, challenges her forty-hour suspension without pay by her police chief. Her challenge requires us to answer three important questions which lie at the heart of her public employment relationship:

1. Whether she has a constitutionally protected property interest in her continued public employment;

2. If she does, whether a forty-hour suspension without pay from that employment constitutes a deprivation of that protected property interest; and

3. If it does, what constitutionally required due process must the public employer afford the public employee when the deprivation occurs.

We hold that a non-probationary police officer in the service of the City of Cheyenne, whose employment relationship is governed by the state's civil service law found in WYO. STAT. §§ 15-5-101 though 121, has a constitutionally protected property interest in her continued employment; a forty-hour suspension without pay from that employment constitutes a deprivation of that protected property interest; and, when the deprivation occurs, the public employer must afford the public employee constitutionally mandated pre-deprivation and post-deprivation due process.

FACTS

On March 16, 1995, Roy E. Pack, Chief of Police, Cheyenne Police Department, imposed a forty-hour suspension without pay on Police Officer Linda Mondt, a non-probationary police officer in the service of the Cheyenne Police Department. According to the police chief, his action was based upon his review of an internal affairs investigation into allegations that Officer Mondt's job performance had been unsatisfactory. Police Chief Pack's written notification to Officer Mondt of his action stated in pertinent part:

The reasons for this suspension have been discussed with you on March 16, 1995. Those reasons include, but are not limited to the following: Unsatisfactory Performance as outlined in our policy and procedures manual, Part I. Section 12.

* * * * * * You are not entitled to a hearing on this suspension. You do, of course, have the right to consult with an attorney of your choosing at your expense.

A copy of Wyoming Statute 15-5-112 is attached hereto for your convenience.

(Emphasis in original). Officer Mondt asserts that Police Chief Pack did not give her an opportunity to tell him her side of the matter. Thus, she contends he did not give her a predeprivation hearing. Officer Mondt's attorney made written request to the Cheyenne Police Civil Service Commission (Commission) for a hearing before that body. In that request she denied the allegations against her and alleged that the suspension violated her civil and constitutional rights to due process. The Commission denied that request. Thus, Officer Mondt contends that the Commission did not give her a post-deprivation hearing.

Officer Mondt's attorney then filed a petition for judicial review in the district court naming as respondents both the Cheyenne Police Department and the Cheyenne Police Civil Service System. In the petition, Officer Mondt's attorney stated in pertinent part:

The specific issues of law addressed to the District Court are whether the decision of the Respondent, attached hereto, is based upon substantial evidence and whether the decision was arbitrary, capricious and contrary to the law of the State of Wyoming, and further whether said denial of a hearing constitutes a denial of due process which is guaranteed under the Constitutions of the United States and State of Wyoming.

The facts relevant to the legal issues are concerning whether or not Petitioner's suspension was appropriate and with good cause and whether or not Petitioner was denied her guaranteed due process when she was refused a hearing to present her position as it relates to the suspension. Petitioner asserts that the denial of a review hearing is effectively denial (sic) her due process of law as she asserts a property right in her employment as a public employee.

The Cheyenne Police Department filed a motion seeking to have itself dismissed from the review proceeding, claiming that Officer Mondt's appeal was from the Commission's decision and not from any decision of the police department. The parties' appellate briefs inform us that the district court denied the police department's motion to dismiss. Although the record does not contain the district court's order denying that motion, it does contain the parties' pleading entitled STIPULATED FACTS AND QUESTIONS FOR CERTIFICATION TO SUPREME COURT PURSUANT TO W.R.A.P. RULE 12.09, which states, among other things, that the district court denied without prejudice the police department's motion to dismiss and "stated that the case should be certified to the Wyoming Supreme Court." The record contains the district court's ORDER OF CERTIFICATION OF QUESTIONS TO SUPREME COURT PURSUANT TO W.R.A.P. RULE 12.09. That order references the parties' aforementioned stipulation. Thus, this matter is before this Court upon the district court's certification.

In the parties' aforementioned stipulation, referenced in the district court's certification order, the parties have posed the following seven questions:

1. Does the grievance procedure for the Cheyenne Police Department, taken in conjunction with the City of Cheyenne Police Department Civil Service Commission Rules and Regulations and the City of Cheyenne Wyoming Police Manual, Policies and Procedures, allow or grant the Petitioner the right to an appeal and/or hearing upon the merits of a grievance, specifically, a suspension for disciplinary purposes?

2. Does Wyoming Statute 15-5-112 allow a Chief of Police for the Cheyenne Police Department to suspend an employee, specifically the Petitioner, for disciplinary purposes without a right of a hearing and, if so, does Wyoming Statute 15-5-112(c) violate the Petitioner's constitutional rights to due process?

3. Did the Cheyenne Police Department, in denying Petitioner a hearing, violate their own Policy and Procedure, and thereby violate Petitioner's rights?

4. Did the imposition of the suspension upon Petitioner for the stated offense violate the Cheyenne Wyoming Police Department's Manual and their Policy and Procedure provisions?

5. Was the decision by the Commission to deny Petitioner's request for hearing in the case of a suspension for disciplinary purposes "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law"?

6. Was the decision by the Commission to deny Petitioner's request for hearing in the case of a suspension for disciplinary purposes "contrary to constitutional right, power, privilege or immunity"?

7. Was the decision by the Commission to deny Petitioner's request for hearing in the case of a suspension for disciplinary purposes "without observance of procedure required by law"?

At some variance from those seven questions contained in the parties' stipulation, Officer Mondt presents in her appellate brief the statement of a single broad issue:

Was Appellant Linda D. Mondt, a non-probationary police officer, deprived of her right to due process, guaranteed under the Fourteenth Amendment, when she was suspended without pay for disciplinary reasons, pursuant to W.S. § 15-5-112, and was denied the opportunity for a hearing.

The appellate brief of the Cheyenne Police Department and the Cheyenne Police Civil Service Commission is also at some variance from the seven questions referred to in the parties' stipulation. Their brief states two issues:

I. Whether or not Linda Mondt, a non-probationary police officer, has a property right in her continued employment.

II. If W.S. § 15-5-112 and/or the Commission's regulations can be construed to grant a property right, has that right been taken from her without due process?

Having considered the seven issues contained in the parties' stipulation and the several issues stated in the parties' appellate briefs, as well as the arguments made in those briefs, we believe that the issues presented fairly reduce to the three questions of law we identified at the outset of this opinion.

DISCUSSION

1. General.

The parties agree that the terms and conditions of employment of a City of Cheyenne police officer, like Officer Mondt, are controlled by the Wyoming statutes governing civil service employment found in WYO. STAT. §§ 15-5-101 through 121 (1992 & Supp.1996). The parties also call our attention to certain provisions contained in the police department's manual and certain rules adopted by the Commission. The pertinent provisions in the police department manual establish a grievance procedure which permits an employee to present a grievance and an appeal without restraint; a progressive discipline procedure which categorizes offenses and provides for different types of discipline; and an appeal procedure which expressly states that appeals of suspension, demotion, and removal will follow the Commission's rules. The pertinent Commission rules provide for a hearing before the Commission in cases of discharge or reduction of classification or compensation, but not in cases of suspensions for disciplinary purposes. It seems fairly clear that the provisions of the police department manual and the rules of the Commission are essentially procedural, not substantive, in nature. Even were they substantive in nature to some extent, however, we understand that they...