Shepherd v. Jones

• Decision Date: 27 October 1982
• Citation: 186 Cal.Rptr. 708,136 Cal.App.3d 1049
• Court: California Court of Appeals Court of Appeals
• Parties: Wallace K. SHEPHERD, Plaintiff and Appellant, v. Rogers JONES et al., Defendants and Respondents. Civ. 50767.

Page 708

186 Cal.Rptr. 708

136 Cal.App.3d 1049

Wallace K. SHEPHERD, Plaintiff and Appellant, v. Rogers JONES et al., Defendants and Respondents.

Civ. 50767.

Court of Appeal, First District, Division 3, California.

Oct. 27, 1982.

Campbell, Warburton, Britton Fitzsimmons & Smith, C. Michael Smith, San Jose, for plaintiff and appellant.

Douglas J. Maloney, County Counsel (Marin), Allen A. Haim, Chief Deputy County Counsel, Patrick K. Faulkner, Deputy County Counsel, San Rafael, for defendants and respondents.

BARRY-DEAL, Associate Justice.

Wallace Shepherd brought this action for damages under the federal Civil Rights Act of 1871 (42 U.S.C. §§ 1983, 1985(3) )¹ against respondents, citizen members of the Board of Commissioners of the Marin County Housing Authority (Housing Authority). He claimed that his discharge from his position as executive director of the Housing Authority without first receiving notice of the charges against him or an opportunity to be heard violated his constitutional right to procedural due process. He also alleged that respondents conspired to violate his constitutional rights. Respondents, Rogers Jones, Philip S. Ehrlich, Jr., Myrna Bergerson, and Leatrice Mikkelsen, voted to remove appellant from his post as executive director on the grounds of incompetence, disobedience, and mismanagement. Respondents' motion for summary judgment was granted as to Shepherd's first cause of action. Shepherd subsequently entered into a stipulation sustaining a demurrer to his second cause of action. The trial court entered a final judgment granting the summary judgment and dismissing the second cause of action. Shepherd appeals from this judgment. For the reasons discussed below, we affirm the judgment.

In the first cause of action under 42 United States Code section 1983, appellant alleged (a) that he had a constitutionally protected right in his position as executive director from which he could not be terminated without first receiving written notice of the charges against him and a public hearing; and (b) that statements made by respondents in connection with his dismissal infringed his constitutionally protected liberty interest, which entitled him to a public hearing to clear his name.

In the second cause of action, appellant alleged that by the foregoing actions respondents conspired to deprive him of his constitutional rights under 42 United States Code section 1985(3). ²

In granting respondents' motion for summary judgment as to the first cause of action, the trial court concluded (1) that since appellant served at the pleasure of the Housing Authority he could be terminated at any time with or without cause, and he therefore was not entitled to a pretermination hearing; (2) that respondents were entitled to good faith immunity from liability; and (3) that respondents' remarks and criticisms did not stigmatize appellant so as to warrant a hearing to clear his name.

At the same time the trial court granted respondents' motion for judgment on the pleadings as to the conspiracy cause of action, granting appellant 15 days' leave to amend this portion of the complaint. ³

Appellant filed a timely first amended complaint in which he realleged the conspiracy count. The parties subsequently entered into a stipulation to sustain respondents' demurrer to the first amended complaint.

In this appeal appellant contends (1) that the trial court erred as a matter of law in concluding that he had no constitutionally protected property interest in his position as executive director, (2) that the trial court erred in finding that respondents were entitled to good-faith immunity, and (3) that his first amended complaint stated sufficient facts to constitute a cause of action for conspiracy to violate appellant's procedural due process rights.

The facts are not in material dispute. ⁴ On December 8, 1970, the commissioners of the Housing Authority confirmed appellant's appointment as executive director. At approximately the same time appellant was confirmed as executive director of the Marin County Redevelopment Agency (Redevelopment Agency). The Housing Authority and the Redevelopment Agency were each governed by a board of seven commissioners. The Housing Authority is a state agency funded by the federal government to provide low income housing for qualified persons in the county. As its executive director, appellant was primarily responsible for implementing the policies and programs developed by the board of commissioners of the Housing Authority.

Subsequently appellant proposed a change in the Housing Authority's personnel policy under which he was hired, to provide that: "6. ... The Executive Director is appointed by, and serves at the pleasure of the joint Board of Commissioners." ⁵ The proposed revision was adopted.

On June 25, 1974, respondents and other Housing Authority commissioners met in executive session to discuss their dissatisfaction with appellant's job performance. Appellant's requests to attend the meeting and/or to have the meeting transcribed were denied. The meeting was adjourned with no action being taken on the question of appellant's continued employment.

In a letter dated June 26, 1974, respondent Ehrlich advised Board Chairman Harold Strouss that at the next regular meeting he intended to propose a revision of the personnel policy to eliminate the requirement that "joint" approval of both boards was necessary before appellant could be dismissed.

On July 18 and 24, 1974, the commissioners for both the Housing Authority and the Redevelopment Agency held public meetings to discuss the proposed revision to the personnel policy and to hear complaints about appellant's performance. At both meetings, Housing Authority Counsel Albert Bianchi advised the members that as autonomous agencies, and in the absence of a joint powers agreement, either entity could independently act to terminate appellant as its executive director. Counsel for the Redevelopment Agency, William Hochman, concurred in Bianchi's opinion. ⁶ No vote was taken at this time.

On August 13, 1974, the commissioners of the Housing Authority convened a special meeting to vote on appellant's continued employment. The public was also invited to attend. However, appellant indicated that he would not attend the meeting. Respondent Ehrlich and, to a lesser extent, respondent Bergerson expressed their views on appellant's job performance, including strengths as well as weaknesses.

Ehrlich stated that appellant "never recognized who was in charge"; that he "ignored ... or subverted" policy with which he did not agree; that "... there was deception, failure to disclose, misrepresentation in the relationship with the Board that made it impossible for me, as a Board member, to know what was going on; ..." that appellant was responsible for a "total breakdown of communications" with the board; that appellant "generated strong antagonisms" among the board members; that appellant was inadequate "in many areas of administration"; that appellant exhibited "an arrogance in dealing with the problems of our low income tenants"; ⁷ and that in his 16 years of government service he "never dealt with any public official who I felt communicated less effectively with a board in making clear to the board what the problems of the agency were, ..."

Respondent Bergerson remarked that appellant "wants a one-man show ...," that he does not allow contracts to be fulfilled, that "[h]e hides things from us and ... he just goes his own way...."

Respondents Jones and Mikkelsen did not comment at this time, but were content to stand on comments they made at earlier meetings.

All respondents voted to dismiss appellant. Local newspapers reported on the running dispute between appellant and respondents, as well as appellant's ultimate termination. Several of these newspapers also reiterated the remarks made by Ehrlich and Bergerson.

Appellant remained in his post as executive director of the Redevelopment Agency for approximately six months following his termination from the Housing Authority. In November 1978 appellant was hired by the federal Department of Housing and Urban Development.

I. Appellant has no constitutionally protected property right to continued employment as executive director.

In order to maintain a cause of action under 42 United States Code section 1983, appellant must establish that (a) respondents acted under color of state law, and (b) that this conduct deprived him of a right secured by the federal Constitution. (See Parratt v. Taylor (1981) 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 716, 152 Cal.Rptr. 65.)

The parties concede and we agree that respondents exercised their authority as members of the duly constituted board of the Housing Authority and thus acted under color of state law. (See Health & Saf. Code, § 34240 et seq.)

In support of his first contention appellant argues that he had a legitimate expectancy of continued employment, in that he only could be discharged upon a majority vote of the combined boards of the Housing Authority and the Redevelopment Agency.

The types of property interests entitled to constitutional protection take many forms. (Board of Regents v. Roth (1972) 408 U.S. 564, 569-571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548.) Clearly, one may have acquired a property interest in his continued employment. (Perry v. Sindermann (1972) 408 U.S. 593, 599-602, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570; Board of Regents v. Roth, supra, 408 U.S. at pp. 576-578, 92 S.Ct. at pp. 2708-2709.)

But in order to establish such a property interest, an employee 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, supra, 408 U.S. at p. 577, 92 S.Ct. at p. 2709.) Whether appellant can stake a legitimate claim to his post as executive director depends upon...