Pfister v. Niobrara County

• Decision Date: 09 December 1976
• Docket Number: No. 4622,4622
• Citation: 557 P.2d 735
• Parties: 13 Empl. Prac. Dec. P 11,403 Mrs. Carmen PFISTER, Appellant (Complainant below), v. NIOBRARA COUNTY, Appellee (Respondent below).
• Court: Wyoming Supreme Court

Page 735

557 P.2d 735

13 Empl. Prac. Dec. P 11,403

Mrs. Carmen PFISTER, Appellant (Complainant below), v. NIOBRARA COUNTY, Appellee (Respondent below).

No. 4622.

Supreme Court of Wyoming.

Dec. 9, 1976.

Linden E. Whitchurch, Cheyenne, signed the brief and appeared in oral argument for appellant.

William A. Taylor, Lusk, signed the brief and appeared in oral argument for appellee.

V. Frank Mendicino, Atty. Gen., and Eric A. Distad, Special Asst. Atty. Gen., Cheyenne, filed an amicus curiae brief for Wyoming Fair Employment Commission.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The sheriff of Niobrara County appointed a male his deputy from applicants, including a woman, appellant-complainant. The complainant contends she was discriminated against because of her sex, so filed a complaint to that effect with the Wyoming Fair Employment Commission. Niobrara County became the respondent and is here as appellee. The Commission, after hearing, found discrimination and awarded complainant $2,508.30 as a 'fair and reasonable amount for recovery.' On review by the district court, the Commission was reversed. In this appeal by the complainant, we will agree with the district court's result.

After agreeing with the Commission that the complainant had been discriminated against, the district court entered the following pertinent and controlling conclusion:

'5. That the Sheriff of Niobrara County is the employer of deputy sheriffs and is an independent public officer not under the control of the Niobrara County Commissioners, other than in matters of budgeting and the approval of such deputy or deputies whose names are submitted to the Board of County Commissioners by the Sheriff, which approval shall not be unreasonably withheld by said County Commissioners.' ¹

In the order that we will consider them, the litigants have raised the following questions:

1. Is a deputy sheriff an officer or employee?

2. Does the Wyoming Fair Employment Practices Act of 1965 apply to an elected sheriff and his deputy or to either?

3. If an employee, is a deputy sheriff employed by the sheriff or by the county?

4. Can the Fair Employment Commission make an award of money damages to a person it finds discriminated against?

5. Was there sex discrimination?

In 1965, the Wyoming State Legislature enacted what is cited as the Wyoming Fair Employment Practices Act. Section 27-257 et seq., W.S.1957, C.1967. ² The act created a Commission to receive, investigate, conduct hearings and pass upon complaints. Appeals to the District Court and this Court by aggrieved parties are allowed. It is provided by § 27-261, W.S.1957, C.1967, that :

'It shall be a discriminatory or unfair employment practice:

'(1) For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation against, any person otherwise qualified, because of sex, race, creed, color, national origin or ancestry.

'(2) For a person, an employment agency, a labor organization, or the employees or members thereof, to discriminate in matters of employment or membership against any person, otherwise qualified, because of sex, race, creed, color, national origin or ancestry.'

The sheriff of a county is an elected officer. ³ By the provisions of § 18-173, W.S.1957, as amended:

'(a) The sheriff of each county may appoint an undersheriff who shall be a bona fide resident of such county and who shall qualify as required by law for deputy sheriff, and who shall serve as sheriff in case of death, resignation or other disability of the sheriff until such time as the board of county commissioners shall fill such vacancy, and the person so appointed shall have qualified in accordance with law. Such undersheriff so appointed may receive an annual salary not to exceed ninety-five percent (95%) of the annual salary of the sheriff in their respective counties.

'(b) The sheriff of each county may, by and with the consent of the board of county commissioners of the respective counties, appoint one or more deputies who may receive an annual salary, fixed by the board of county commissioners not to exceed ninety percent (90%) of such sheriff's salary, and may also appoint such other clerks, stenographers and assistants as may be necessary to properly administer the affairs of the office.'

From the applicants and acting under authority of the foregoing statute, the elected sheriff of Niobrara County submitted only the name of his choice for a deputy to the Board of County Commissioners and the consent was forthcoming without question. We note that the sheriff did not appoint an undersheriff and apparently does not have one. The record discloses that the sheriff has a full-time two-person office-himself and one deputy.

Niobrara County is one of the least populated Wyoming counties, rural in character. In the year previous to the hearing before the Wyoming Fair Employment Commission, the sheriff had only from time to time 36 prisoners in his jail. He indicated that his clerical work takes only about 30 minutes per month. The sheriff and his wife have an apartment in the jail building and he is also the jailer. His wife has a deputy's commission but her work is only occasional; she helps out in the handling of female and juvenile prisoners and patients for the Wyoming State Hospital and transporting them, for which she receives very little by way of reimbursement, other than expenses; she gets no salary. The sheriff has no radio in his offices but uses the facilities of the State Department of Revenue at its port of entry, located at Lusk. He has several unpaid deputies, on call for emergencies.

The sheriff appointed the man he selected for a deputy because 'he was the sort of individual I was looking for,' even though lacking in law enforcement experience. The reasons given by the sheriff for not employing the complainant were that 'he could not justify hiring a woman'; 'what would you think if I came in the middle of the night and picked up your wife to go patrolling in the boondocks?'; 'could not justify hiring a woman because of what the people in the county might think'; 'it would just not work for a woman to be on the force'; 'his wife wouldn't like it'; 'the citizens of Niobrara County would consider it improper to patrol with a woman at night in the country and he would not consider it'; 'it being a small department I wasn't sure it (hiring of a female) was a feasible thing'; 'I use my own standards this being a two-man department and having my wife as matron and deputy, there is no vacancy for another woman in the department.' The sheriff also indicated that he had a little difficulty with the complainant and her husband over a tax collection against them. The complainant had experience as a clerk and radio operator in a police department in South Dakota but had not worked the street, had not carried a gun and made only arrests in police headquarters, as required.

The County Commissioners did not participate in the selection of the sheriff's deputy. The sheriff did not submit the names of applicants to them at the time of appointment of his choice and they had no knowledge that the complainant had submitted an application to the sheriff; she sumbitted no application to them. The Board did not learn about it until sometime after appointment of the sheriff's preference for deputy. She did not even mention it at a meeting she had with the Board of County Commissioners on another matter regarding taxes. She later complained by letter to the Board, which communication was not answered. The first real knowledge of the Board of any problem was when contacted by an investigator of the Fair Employment Commission.

The foregoing narration is of value only to present background showing the circumstances under which this case arose, because we are of the opinion that, as a matter of law, the Fair Employment Practices Act has no application to the appointment of a deputy sheriff. By its entire thrust, it is aimed at an employer-employee relationship. Its title so implies and its language so suggests in its use of such terms as 'employees,' 'employing' and 'hire.' A deputy sheriff is an officer, not an employee; he is appointed, not hired. This will, of course, be more fully explained.

Annotation, 5 A.L.R.2d 415, entitled 'Constitutional or statutory provision referring to 'employees' as including public officers,' summarizes its coverage of the subject in the following language:

'While there are exceptions, and in a particular instance regard must be had to the phraseology and intention of the provision in question, the term 'employee,' or 'workman,' used in a constitutional, statutory, or charter provision in referring to those performing services for a state or political subdivision thereof, is seldom construed so as to include public officers unless the provision in question expressly so stipulates. * * *'

The Wyoming Fair Employment Practices Act nowhere mentions appointment of public officers.

The appointment of a deputy has constitutional roots. Section 3, Article XIV, Wyoming Constitution, provides that:

'The legislature shall by law designate county offices and shall, from time to time, fix the salaries of county officers, which shall in all cases be in proportion to the value of the services rendered and the duties performed.'

Section 4, Article XIV, Wyoming Constitution, provides that:

'The legislature shall provide by general law for such deputies as the public necessities may require, and shall fix their compensation.'

Section 5, Article XIV, Wyoming Constitution, provides that:

'Any county officers performing the duties usually performed by the officers named in this article shall be considered as referred to by section 3 of this article, regardless of the title by which their offices may hereafter be designated.' (Emphasis added.)

Acting with that trilogy of authority, the Legislature has...