Palmer v. City of Monticello

• Decision Date: 05 March 1990
• Docket Number: Civ. No. 89-C-762A.
• Citation: 731 F. Supp. 1503
• Parties: Brett G. PALMER, Plaintiff, v. CITY OF MONTICELLO and Kent Adair, individually and as Chief of Police, Defendants.
• Court: U.S. District Court — District of Utah

731 F. Supp. 1503

Brett G. PALMER, Plaintiff, v. CITY OF MONTICELLO and Kent Adair, individually and as Chief of Police, Defendants.

Civ. No. 89-C-762A.

United States District Court, D. Utah, C.D.

March 5, 1990.

COPYRIGHT MATERIAL OMITTED

Erik Strindberg, Prince, Yeates & Geldzahler, Salt Lake City, Utah, for plaintiff.

Lynn J. Lund, Salt Lake City, Utah, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

ALDON J. ANDERSON, Senior District Judge.

I. INTRODUCTION

The Plaintiff alleges eight causes of action against the City of Monticello and the city's Chief of Police, Kent Adair. The first and second causes of action are brought under 42 U.S.C. § 1983, alleging a due process violation. The first cause of action alleges deprivation of a property interest and the second deprivation of a liberty interest. The sixth cause of action alleges that plaintiff was terminated for exercising his First Amendment rights. The rest are state law causes of action. Plaintiff seeks reinstatement and damages. After Plaintiff filed his complaint, Defendants moved immediately for a Judgment on the Pleadings. This motion was referred to the United States Magistrate pursuant to 28 U.S.C. § 636(b)(1)(B), and the Magistrate's Report and Recommendation was received by the court on December 5, 1989. The Magistrate found that all requirements of a pre-termination hearing had been met except for notice of the pre-termination hearing. Because such notice was not conceded in the Plaintiff's complaint, the Magistrate recommended that the Defendants' motion for Judgment on the Pleadings be denied. Subsequently, Defendants filed an objection to the Report and Recommendation. Before the court is the Defendant's motion for Judgment on the Pleadings as to the federal claims. The pendant state law claims are not specifically addressed by the Defendants' motion. However, in the event that the court grants Defendants' motion for Judgment on the Pleadings as to the federal claims, Defendants also ask the court to dismiss all state claims for lack of subject matter jurisdiction.

II. FACTUAL BACKGROUND

Plaintiff was a police officer for the City of Monticello from May of 1985 to the time he was terminated in January of 1989. In January of 1989, Defendant Adair, along with other city officials, confronted the Plaintiff with evidence that on March 28, 1987, he had falsified a traffic citation to justify a stop for drug running. Plaintiff denied the allegations. Later that same month, Defendant Adair notified the Plaintiff that he was being terminated. The alleged incident of March 28, 1987 served as one of the bases for the termination. However, subsequently Plaintiff was also informed that he was being terminated for disclosing confidential information to unauthorized persons. Plaintiff claims that this latter charge had never been raised with him prior to the pre-termination meeting. The Plaintiff was allowed to speak with the Mayor and the councilmen several days later. However, after conferring with Defendant Adair, the city upheld the Plaintiff's discharge.

The Plaintiff claims that he was deprived of a property interest in continued employment without due process of law. The Plaintiff alleges that he had an interest in continued employment, in that he could only be fired for cause and through certain procedures contained in the City of Monticello's Personnel Manual. At the time the City of Monticello hired the Plaintiff, he received a Personnel Manual, setting forth policies and procedures for dealing with employee discipline and discharge. Plaintiff asserts that the City's Personnel Manual created an implied employment contract between himself and the City of Monticello, and thus also created a property interest in his continued employment, which protected against termination except on a showing of good cause.

Plaintiff also alleges that he was deprived of his liberty interest without due process. He claims that the Defendants made statements to the effect that plaintiff was terminated for dishonesty and possible criminal conduct. These statements allegedly have hurt the Plaintiff's good name and reputation.

The Plaintiff asserts that the process due him with respect to the deprivation of both his property and liberty interest was flawed. He claims that he was not given notice of all of the charges against him prior to his pre-termination hearing. Subsequent to the pre-termination hearing, the Plaintiff alleges that he was told he was being terminated for the falsification of a traffic ticket and also for disclosing confidential information. The Plaintiff claims that he was not given notice of the latter charge prior to or at the first hearing, and thus the process was flawed.

The Plaintiff's final federal claim alleges that the wrongful termination violated his first amendment rights. The Plaintiff alleges that he met with Monticello's Mayor on numerous occasions to discuss the operations of the Police Department, and had similar meetings with two councilmen. Plaintiff claims that because of these communications, Defendant Adair terminated him. Plaintiff asserts that protecting such communication is a matter of public concern and should be protected speech to assure that the town officials have accurate information.

III. ANALYSIS

The Defendants have moved the court, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for Judgment on the Pleadings. Such a motion, however, is proper only after the pleadings are closed.¹ Rule 7(a) establishes when the pleadings are closed.² The filing of an answer usually signals the close of pleadings, unless the answer contains a counterclaim or a cross-claim. See Fed.R.Civ.Pro. 7(a). Consequently, a motion for Judgment on the Pleadings is improper before an answer is filed, "although such a motion filed by the defendant before answering may be treated as a motion to dismiss." 2A Moore's Federal Practice ¶ 12.15 (1989), citing City Bank v. Glenn Construction Corp., 68 F.R.D. 511 (D.Hawaii 1975). As Defendants have not filed an answer in this case, a motion for Judgment on the Pleadings is improper. In its discretion, however, the court will treat Defendants' motion as a motion to dismiss.

For the purposes of this motion, the court will assume as true the facts alleged by the Plaintiff. See Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57 (2d Cir.1985).

A. Deprivation of Plaintiff's Property Interest Without Due Process

In order to claim that he has been deprived of a property interest without due process, the plaintiff must first prove that he had a property interest. "To have a property interest ... a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). To implicate a property interest, the Plaintiff alleges that he had an interest in continued employment, in that he could only be fired for cause and through certain procedures contained in the City of Monticello's Personnel Manual.

1. Property Interest in Continued Employment. Whether or not a property interest exists is to be determined under state law. Under Utah law, and absent statutory language to the contrary, if there is no contractually specified term or duration of employment then employment is presumed to be at-will. See Berube v. Fashion Center Limited, 771 P.2d 1033, 1044 (Utah 1989); Ward v. Richfield City, 776 P.2d 93, 96-97 (Utah App.1989). The consequence of at-will employment is that it carries no vested property interest in continued employment and thus there would be no concern as to due process. See Ward v. Richfield City, 776 P.2d 93, 96-97 (Utah App.1989) (discussing the implications of at-will employment).

The Plaintiff has pointed to no statutory or express contractual language that would modify the at-will relationship. As a police officer, Plaintiff is specifically excluded from section 10-3-1105 of the Utah Code Annotated which prohibits termination of other municipal employees other than for cause. Section 10-3-1105 provides:

All appointive officers and employees of municipalities, other than members of the police departments, fire departments, heads of departments, and superintendents, shall hold their employment without limitation of time, being subject to discharge or dismissal only as hereinafter provided.

By specifically excluding police officers from the purview of this section, the Utah legislature consciously left police employment subject to termination at-will. See Ward v. Richfield City, 776 P.2d 93, 96-97 (Utah App.1989). Section 10-3-1105, however, does not prevent police officers from negotiating separate employment contracts, or cities from giving police officers further rights in their employment.

Utah law recognizes the possibility of an implied employment contract based on the terms and conditions of an employment manual, which could rebut the at-will presumption. See Berube v. Fashion Center Limited, 771 P.2d 1033, 1044 (Utah 1989). In Berube, the Utah Supreme Court held that "evidence of an implied agreement may be found in employment manuals, oral agreements, and all circumstances of the relationship which demonstrate the intent to terminate only for cause or to continue employment for a specified period." Berube v. Fashion Center Limited, 771 P.2d 1033, 1044 (Utah 1989). Relying on Berube, the Plaintiff alleges that various provisions of the Personnel Manual limit the grounds for discipline and discharge of an employee, and thus rebut the presumption of at-will employment. The Plaintiff claims that he has a property interest in continued employment which was created by the Personnel Manual. Whether or not the City's Personnel Manual created an implied employment contract may be a question of fact for a...