Oppenheimer Mendez v. Acevedo
| Decision Date | 11 September 1974 |
| Docket Number | Civ. No. 933-73. |
| Citation | 388 F. Supp. 326 |
| Parties | Jorge J. OPPENHEIMER MENDEZ, Plaintiff, v. Hector N. ACEVEDO, Executive Director of the Automobile Accident Compensation Administration, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
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Nachman, Feldstein & Gelpi, San Juan, P. R., for plaintiff.
Cancio, Cuevas & Mayo, Hato Rey, P. R., for defendants.
Plaintiff, the former legal director of the Automobile Accident Compensation Administration (hereinafter ACAA, as the acronym is written in Spanish), was discharged and has brought suit under the Civil Rights Act, Title 42, United States Code, Sections 1983 and 1985, and under the First, Fifth and Fourteenth Amendments to the Constitution of the United States, requesting declaratory relief, a mandatory injunction and damages as a result of what he alleges was an unconstitutional deprivation of his liberty and property.
The Court proceeded by Order to Show Cause rather than by a Temporary Restraining Order and issue was joined and a trial was held. Trial lasted two weeks during extended sessions and post-trial memoranda were ordered addressed to several questions of law. After trial plaintiff was granted leave to amend the caption and to conform the pleadings to the proof, so as to join the defendants in their official as well as their individual capacities. Several pronouncements by the Supreme Court of Puerto Rico1 and the Supreme Court of the United States2 have been delivered both before and after the transcript of testimony was received, which have required revisions of this Opinion and Order.
ACAA is Puerto Rico's unique response to the problem of automobile accidents and compensation of victims. It is sometimes called Puerto Rico's "No-Fault" law.3 Jorge Oppenheimer, the plaintiff, was the first employee of the agency. Originally, his title was "attorney", but after the table of organization was drawn and the external, internal and personnel regulations were approved, he was named "Legal Director", a position he has occupied continuously from 1969 to the date of his discharge. ACAA has all the powers of a Public Corporation. Title 9, Laws of Puerto Rico Annotated, Section 2063.
The Executive Director, the chief officer of the Administration, is appointed by the Board of Directors, who in turn, are appointed by the Governor with the advice and consent of the Senate, Title 9, Laws of Puerto Rico Annotated, Section 2060. All employees are excluded from competitive civil service and are placed in a category known as the Exempt Service under the Personnel Law of Puerto Rico, Title 3, Laws of Puerto Rico Annotated, Sections 641-702. ACAA, however, immediately upon its organization established its own personnel rules and regulations which governed its own operations. These rules and regulations provided, inter alia, that all employees would be secure in their jobs and that there would be no firings except for cause and only after notice of charges and a pre-dismissal hearing were had. These original rules and regulations were twice amended, once in 1971 to clarify form and again in 1972 to remove any ambiguity that the dismissal provisions were to cover every employee except the Executive Director.
Although a public corporation, ACAA is not a state-instrumentality. It can sue and be sued in its own name, it can contract with others and except for its original funding, it is self-supporting and does not depend upon the public fisc.4 Notwithstanding the apolitical purpose of ACAA, after the change of administration of the Commonwealth Government, following the 1972 elections, there was a decided change in management personnel. The plaintiff introduced evidence to indicate that this shift and his own discharge were motivated by political considerations. Since the Court bases its opinion on other grounds, this fact is mentioned in passing, and no finding is made on whether there was discrimination based upon political affiliation.
After the 1972 elections, Mr. Frank Fournier, the first Executive Director of ACAA, resigned. For a period of several months thereafter, Mr. Fournier's administrative assistant, Mr. Leopoldo Marcado Santini, was appointed by the Board of Directors as Interim Executive Director. Mr. Hector N. Acevedo was proposed for the post of Executive Director by the Governor's Special Assistant, the defendant, Salvador Rodriguez Aponte. Mr. Acevedo was appointed.
Upon the insistence of Mr. Acevedo, the plaintiff filed disciplinary charges against a lawyer in his department. The matter never came to a hearing because the personnel officer, who under the regulation was to have acted as hearing officer, took ill and went on leave. After several postponements, the accused, a lifelong member of the party in power, wrote a lengthy vitriolic diatribe against the people working in ACAA who were holdovers from the prior Administration and sent this letter to various party leaders including Mr. Rodriguez Aponte.5 He, in turn, placed his copy in an envelope of the Office of the Governor and sent it by messenger to the Executive Director of ACAA, Mr. Acevedo. Mr. Acevedo had taken over the duties of the personnel officer during the latter's absence and after the receipt of the letter he dismissed the disciplinary charges.
The accused in that case then reviewed files in which she had worked. In one action which had been dismissed for failure to prosecute, she sent a memo to the "legal technician",6 alleging that he had overlooked two memoranda that had been in the file dated on July 20 and August 13, 1972. The legal technician received the memorandum addressed to him on the 20th of September, 1973. In checking the relevant file, the legal technician and his fellow worker, another legal technician, found that the 1972 memoranda, to which reference had been made, were written on forms that had not been printed for ACAA until May or June, 1973. When they reported this fact to their supervisor, the Legal Director, Mr. Oppenheimer, he ordered a complete investigation and immediately notified the Executive Director. The investigation consisted of checking with the procurement office, finding the order for the new style memo pads, finding the invoice for them and the copy of the first delivery receipt. The legal technician also found the typewriter on which the memoranda were written and the typewriter ribbon and it appeared that the memoranda were written sometime during the Labor Day week-end of 1973. The memoranda were not written by the typist to whom that particular typewritter was assigned. When all this information was gathered and reduced to affidavit and exhibit form, it was turned over to the Legal Director who filed charges with both the Executive Director and the Personnel Director.7 Two working days later the Executive Director dismissed the charges as being "incomplete . . . defective . . . and partial".8
On the following day, the plaintiff, along with other workers in ACAA who were not members of the Union with which there was a collective bargaining agreement, petitioned the Executive Director for recognition of the Brotherhood of ACAA workers. This organization was established for general cooperative and credit union purposes, as well as for the right to petition for grievances. It had been registered with both the Labor and State Departments of the Commonwealth but had never been recognized by ACAA. Heated conversations and exchanges of memos occurred between the Executive Director and Legal Director on the 2nd, 3rd and 4th of October, 1973, concerning the Legal Director's request that the Executive Director disqualify himself as hearing officer in the matter concerning the tampering of documents and for his failure to follow the procedures established by the regulations. On the 4th of October, 1973, the Executive Director sent the plaintiff a letter demanding his resignation because he regarded the latter's position of favoring the recognition of the Brotherhood as a conflict of interest. The plaintiff refused to resign.
The disciplinary rules of ACAA in effect prohibited any discharge without written charges. The applicable rule is set forth in the margin.9
On October 11, 1973, the Chairman of the Board of Directors called a special meeting at the insistance of the Executive Director. All the Board members, except for the defendant, Juan A. Gil, were present. The agenda had only two items, one of which was the Executive Director's request for permission to fire the plaintiff for lack of confidence. Retained counsel for the ACAA were present. The Board member, Roberto A. Matos, the only lawyer among the defendants, objected in view of the provisions of Rule V(a), hereinabove set out. The matter was tabled at the morning session so that the legal counsel could present a written opinion as to the legality of the proposed action.
Matos then went to see the plaintiff to try to convince him to resign to avoid a scandal and to offer a settlement possibility.10 Matos and Gill were both absent at the afternoon meeting on the 11th of October. At that meeting the legal counsel submitted their opinion (Exhibit 25) which in essence concluded that Regulation V(a) was incompatible with Section 12 of the Act and was hence, a nullity. The opinion further suggested that if an employee contended that his dismissal was as a result of any discrimination or contrary to the regulations, he would be entitled to a post firing hearing. The Board then concluded that Rule V(a) was a nullity and remanded the matter to the Executive Director. Mr. Acevedo on the 12th of October fired Mr. Oppenheimer by stating in writing that this position was "vacant".
The next Monday, plaintiff petitioned the Board for a hearing alleging that his dismissal was based upon political discrimination and violations of the published procedures....
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