Richards v. Board of Ed. Joint School Dist. No. 1, City of Sheboygan, 303

• Decision Date: 01 May 1973
• Docket Number: No. 303,303
• Parties: , 71 Lab.Cas. P 53,116 William RICHARDS, Appellant, v. BOARD OF EDUCATION JOINT SCHOOL DIST. NO. 1 CITY OF SHEBOYGAN etc., Respondent.
• Court: Wisconsin Supreme Court

Page 597

206 N.W.2d 597

58 Wis.2d 444, 71 Lab.Cas. P 53,116

William RICHARDS, Appellant, v. BOARD OF EDUCATION JOINT SCHOOL DIST. NO. 1 CITY OF

SHEBOYGAN etc., Respondent.

No. 303.

Supreme Court of Wisconsin.

May 1, 1973.

As Modified on Denial of Rehearing June 29, 1973.

Walter, Hopp & Hodson, Sheboygan, for appellant.

Clarence H. Mertz, City Atty., Sheboygan, for respondent.

CONNOR T. HANSEN, Justice.

The following issues are determinative of this appeal:

1. Is the defendant's refusal to relate the reasons for plaintiff's dismissal as basketball coach and to afford plaintiff a hearing thereon in violation of the due process clause of the fourteenth amendment of the Constitution of the United States?

2. Did the defendant violate state law in failing to give preliminary notice in writing to plaintiff, pursuant to sec. 118.22(3), Stats., that his co-curricular assignment would not be renewed?

3. Does the master agreement between the defendant and the Sheboygan Education Association require a statement of the reasons for dismissal and a hearing thereon?

This court has held that, in the absence of civil service regulations or properly authorized statutory rules governing labor relations, a municipal employee has no tenure in his public service. Adamczyk v. Caledonia (1971), 52 Wis.2d 270, 190 N.W.2d 137. In Adamczyk, supra, at page 274, 190 N.W.2d at page 139, this court stated:

'In the case of State ex rel. Wattawa v. Manitowoc Public Library Board (1949), 255 Wis. 492, 39 N.W.2d 359, a city librarian sought to have her discharge vacated. This court pointed out:

"In the absence of tenure rights the right to hire carries the concomitant of the right to fire. This power may be exercised by the board arbitrarily and without cause. . . ." (P. 493, 39 N.W.2d p. 360)

'The court further stated:

"The board having power to discharge without cause, even though it be done unfairly and unreasonably, the courts have no right to interfere. The alternative writ must be quashed because the petition upon which it is based fails to state a cause of action." (P. 494, 39 N.W.2d p. 361)

'In the case of Richmond v. Lodi (1938), 227 Wis. 23, 277 N.W. 620, the manager of the village waterworks brought an action for damages for an improper discharge. The court sustained the village's demurrer, concluding that the plaintiff had failed to state a cause of action. The court said:

"The commission is authorized to appoint the manager and fix his compensation. The word 'appoint' completely expresses the power of the utility commission as to the manager's tenure. Under such provisions, the power to remove at pleasure is implied." (P. 25, 277 N.W. p. 621)'

In Adamczyk, supra, this court further held that the municipality was empowered to discharge its employee without prior notice and without the requirement of a common-law hearing, and that the municipality was powerless to abrogate by contract its authority to terminate the services of an employee at its pleasure.

This case is in harmony with the traditional principle that governmental employment, in the absence of legislation, can be revoked at will of the appointing officer. ⁴

As we view this case, the substantive and principal issue is whether the plaintiff, a teacher, who was offered his basic teaching contract, is entitled to notice and hearing for his nonretention to a nontenured co-curricular assignment for which he receives additional compensation.

Due Process.

Plaintiff contends that defendant's refusal to relate the reasons for his dismissal as basketball coach and to extend a hearing to him was in violation of the due process clause of the fourteenth amendment of the United States Constitution.

It is our conclusion that this case is controlled by Board of Regents of State Colleges, et al., v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. The Roth Case concerned the nonretention of a nontenured faculty member in the Wisconsin State University system. It determined that a nontenured faculty member is not entitled to the procedural due process requirements encompassed by the fourteenth amendment. Mr. Justice Stewart, speaking for the United States Supreme Court, stated on pages 569, 570 and 571, 92 S.Ct. on pages 2705, 2706:

'The requirements of procedural due process apply only to the deprivation of interests encompassed within the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

'The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent's interest in re-employment at Wisconsin State University--Oshkosh outweighed the University's interest in denying him re-employment summarily. 310 F.Supp. 972, at 977-979. Undeniably, the respondent's re-employment prospects were of major concern to him--concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake. See Morrissey v. Brewer, 408 U.S. 471, at 481, 92 S.Ct. 2593, 33 L.Ed.2d 484. We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property.'

Roth, supra, further held that the terms 'liberty' and 'property' are among the great constitutional concepts purposely left to gather meaning from experience, and for that reason the 'wooden' distinction between 'rights' and 'privileges,' that once seemed to govern the application of procedural due process, has been fully and finally rejected. ⁵ In discussing whether the state's refusal to re-employ the teacher implicated interests in 'liberty,' the court, on pages 572 and 573, 92 S.Ct. on page 2706 stated:

"While this court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042. In a Constitution for a free people there can be no doubt that the meaning of 'liberty' must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

'There might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated. But this is not such a case.

'The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For '(w)here a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515. Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216; Joint AntiFascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; United States v. Lovett, 328 U.S. 303, 316-317, 66 S.Ct. 1073, 90 L.Ed. 1252; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 99 L.Ed. 1129 (Douglas, J., concurring). See Cafeteria Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 6 L.Ed.2d 1230. In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent's interest in his 'good name, reputation, honor, or integrity' is at stake.'

Similarly, the defendant, in the instant case, made no charges against the plaintiff that might seriously damage his standing and association in his community. Speculation by other citizens in the community, as to why the plaintiff was not rehired, does not constitute harmful governmental action for which redress may be secured under the due process clause of the fourteenth amendment.

The court in Roth, supra, further discussed the concept of 'liberty' on pages 573 and 574, 92 S.Ct. on page 2707.

'Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not involve any regulations to bar the respondent from all other public employment in State universities. Had it done so, this, again, would be a different case. For '(t)o be deprived not only of present government employment but of future opportunity for it certainly is no small injury. . . .' Joint AntiFascist Refugee Committee v. McGrath, supra, 341 U.S., at 185, 71 S.Ct. 624 (Jackson, J., concurring). See Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities 'in a manner . . . that contravene(s) . . . due process,' Schware v. Board of...