Parks v. Goff

• Decision Date: 08 January 1980
• Docket Number: No. H-C-77-37.,H-C-77-37.
• Citation: 483 F. Supp. 502
• Parties: Luther Gerald PARKS, Jr., Plaintiff, v. Joe GOFF, Individually and as Chief of Police of the City of Forrest City, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

483 F. Supp. 502

Luther Gerald PARKS, Jr., Plaintiff, v. Joe GOFF, Individually and as Chief of Police of the City of Forrest City, et al., Defendants.

No. H-C-77-37.

United States District Court, E. D. Arkansas, E. D.

January 8, 1980.

Robert M. Cearley, Jr., Cearley, Gitchel, Bogard & Mitchell, Richard W. Roachell, Little Rock, Ark., for plaintiff.

Knox Kinney, City Atty., Forrest City, Ark., for defendants.

MEMORANDUM OPINION

OREN HARRIS, Senior District Judge.

In this proceeding plaintiff, a former police officer of the City of Forrest City, Arkansas, seeks reinstatement in his former position, with raises, seniority and promotions, and an award of backpay, contending that his rights to due process were violated when he was fired by the Chief of Police and his firing upheld by the City Council. He also seeks recovery for alleged damages to his reputation and for alleged malicious interference with his application for a permit from the State Alcoholic Beverage Commission. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1343, 2201 for vindication of a cause of action provided for under 42 U.S.C. §§ 1981, 1983 and the Fifth and Fourteenth Amendments to the Constitution of the United States.

Defendants deny that the rights of plaintiff under the Constitution and laws of the United States were violated by the manner and means of termination of plaintiff's employment, relying upon a post-termination hearing procedure set up under a City ordinance. Defendants further deny any malicious interference with the application of plaintiff for a permit from the Alcoholic Beverage Commission.

Pursuant to regular setting, the matter was tried to the Court, without the intervention of a jury, with the consent of all parties and waiver of right to trial by jury. The Court heard and received evidence from plaintiff, present in person and represented by Hon. Robert Cearley and Hon. Richard Roachell, and from defendants, represented by Hon. Knox Kinney. The parties rested and the matter was taken under advisement pending receipt of briefs of counsel. All briefs have now been received and the matter submitted for determination.

The Court, in consideration of the pleadings, testimony, exhibits, and the entire record, and after careful review of the briefs and authorities presented by counsel, makes the following findings of fact and conclusions of law, which are incorporated herein pursuant to Rule 52, Federal Rules of Civil Procedure:

Plaintiff is a resident citizen of the United States and of the State of Arkansas. Defendants are alleged to have acted as to the allegations of the complaint in their official capacities as Chief of Police, Mayor, and Aldermen of the City of Forrest City, Arkansas, a municipal corporation established under the laws of the State of Arkansas. The Court finds that a cause of action has been stated pursuant to 42 U.S.C. § 1983 and that jurisdiction exists pursuant to 28 U.S.C. § 1343. The complaint states a cause of deprivation of rights protected by the Constitution and Laws of the United States to plaintiff and that such deprivation was accomplished by defendants under color of their duties pursuant to laws of the State of Arkansas.

The basic evidentiary facts are virtually without dispute. Plaintiff, Luther Gerald Parks, Jr., was employed by the City of Forrest City, Arkansas, as a police officer on October 3, 1969. He had been promoted to the rank of Lieutenant by the time of the events complained of herein.

At the time of his appointment, and in fact from the 4th of October, 1949, members of the Forrest City police department were protected in their employment by Ordinance No. 634, adopted on that date pursuant to Ark.Stats.Ann. 19-1601, et seq., which established a Civil Service Commission. One of the provisions of the civil service laws was to provide that police officers were not subject to dismissal except for cause, and to establish a right to pre-discharge hearing and to judicial review of decisions adverse to an officer. Rights of officers under civil service will be reviewed in more detail below.

On January 7, 1975, the City Council adopted Ordinance No. 1340, the effect of which was to abolish the Civil Service Commission of Forrest City, to give the Chief of Police the sole right to hire and fire members of the police department, and to remove direct judicial review of adverse actions by police officers affected. The Ordinance, in its pertinent part, provides:

"Section 4. That the Chief of Police . . shall . . . have the sole right to hire and fire all personnel within . . such department; and any person aggrieved as the result thereof shall have the right to request, within thirty days of such action, a hearing before the City Council by filing request for hearing with the City Clerk; whereupon the City Council shall forthwith set a hearing upon said matter at subsequent meeting of the Council expeditiously provided, and shall take such action thereupon as shall fully comply with the requirements of justice and due process of law."

It is noted that the Ordinance does not provide for a pre-termination hearing, and that it is not clear what the City Council might provide by way of relief after such hearing, the "sole right to hire and fire" having been delegated to the Chief of Police. The Ordinance does not provide for any right of review of any action taken by the Council in court, as did the Civil Service statutes and ordinance. The Ordinance does not set up any procedures, or provide for compulsory attendance of witnesses, as did the Civil Service statutes and ordinance.

Plaintiff had served for some 6 years as a police officer on the Forrest City Police Department, had advanced to the rank of lieutenant, and the Court concludes that he did have a reasonable expectation of continued employment with the department, even in the absence of civil service protection. The civil service Rules and Regulations, 1970 edition, were furnished to plaintiff and the other officers, and had not been replaced. Further, the grounds specified in the letter of dismissal of January 16, 1975, setting forth the reasons for which plaintiff was dismissed, effective that date, from the department, are clearly for violation of the civil service Rules and Regulations which existed at the time of the alleged violations. The Court, therefore, finds and concludes that the plaintiff had a property interest in his employment with the Forrest City Police Department which could not be divested without due process of law.

It has been well established since Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), that notice and an opportunity to be heard before termination are required where a property right is found to exist in continued employment. It is undisputed that plaintiff was fired on January 16, 1975, and that no hearing was afforded until February 11, 1975. The rights of plaintiff to a pre-termination hearing were clearly violated.

A careful review of the grounds for dismissal set forth in the January 16, 1975 letter from Chief of Police Goff to plaintiff, reveals that the grounds stated are not sufficient to operate as effective notice of particular charges of misconduct within the bounds of due process. The charges do not specify the dates, places and conduct alleged to constitute a violation of the rules, merely conclusions that these rules have been violated.

Plaintiff requested a hearing before the City Council, as was provided for in the Ordinance. Plaintiff was present at the hearing and represented by counsel, Hon. John Bilheimer. Mr. Bilheimer objected to the charges as conclusory, but denied them on behalf of plaintiff. According to the transcript of the hearing, plaintiff admitted that he had taken a drink of liquor, but not on duty. He admitted the charge, but only on the basis that an officer is always on call 24 hours a day, and it was not charged that he was drunk or under the influence of alcohol, as set out in Rule 10, Civil Service Rules and Regulations.

Plaintiff denied having failed to pay bills, as provided for in Rule 7 and 8. Plaintiff admitted that he had on occasion attended night clubs, but denied "frequenting" them. No rule or regulation prohibited such actions.

Plaintiff denied having assaulted a female, resulting in filing of misdemeanor charges as a matter of record. He did admit an altercation with his former wife which resulted in her swearing out a warrant, which was later withdrawn at her request.

The City Attorney, Hon. Knox Kinney, acting as hearing officer for the Council, elaborated on the charge of conduct not becoming to an officer by commenting that it included all of the foregoing, and in addition, such matters as engaging in excessive police brutality, cursing and epithets directed to persons being arrested, affrays with the person being arrested, and "things of that sort". Plaintiff denied these charges, but when asked to do so Mr. Kinney refused to be more specific.

The sixth charge, failure to meet leadership responsibilities inherent in his position, was denied. Mr. Kinney stated that the only question was whether the council wants to have this man employed in the police department. He stated that, "We aren't prepared to have a trial tonight, that's not what it's here for. It is an administrative hearing." No persons were brought forward or even named who purported to provide any evidence whatever as to any of the alleged violations of rules by plaintiff.

Plaintiff was thus denied the opportunity of confronting his accusers, or of even knowing who they were or what particular conduct was complained of. It developed at the trial of this cause in this Court that one of the principal accusers was the Mayor, Mr. Conlee, a defendant herein. He testified about receiving complaints about plaintiff, about following and observing plaintiff in what would clearly be instances which would warrant disciplinary action or...