Siebken v. Town of Wheatland, 84-152

• Decision Date: 07 June 1985
• Docket Number: No. 84-152,84-152
• Citation: 700 P.2d 1236
• Parties: 120 L.R.R.M. (BNA) 2392 Kenneth SIEBKEN, Appellant (Plaintiff), v. TOWN OF WHEATLAND, Wyoming; Charles Parsons, individually and in his official capacity as Mayor; Jim Dunham, individually and in his official capacity as Town Clerk; Bill Lindstrom, Harry Stevens, Jack Eddleman and Frank Tucker, individually and in their official capacities as members of the Wheatland Town Council, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1236

700 P.2d 1236

120 L.R.R.M. (BNA) 2392

Kenneth SIEBKEN, Appellant (Plaintiff), v. TOWN OF WHEATLAND, Wyoming; Charles Parsons, individually and in his official capacity as Mayor; Jim Dunham, individually and in his official capacity as Town Clerk; Bill Lindstrom, Harry Stevens, Jack Eddleman and Frank Tucker, individually and in their official capacities as members of the Wheatland Town Council, Appellees (Defendants).

No. 84-152.

Supreme Court of Wyoming.

June 7, 1985.

Rehearing Denied July 22, 1985.

Robert T. Moxley, Wheatland, for appellant.

Lawrence G. Orr, Guy, Williams, White & Argeris, Cheyenne, for appellees.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellant appeals from a summary judgment entered against him in his action against appellees for damages resulting from his discharge by appellees from employment as a garbage man for appellee Town of Wheatland.

We affirm.

Appellee Town of Wheatland received a complaint from one of its residents that while collecting garbage at his residence, the appellant and his fellow garbage man had scavenged or rummaged through the garbage. The Town of Wheatland had told all of its garbage men, including appellant, that scavenging or rummaging through garbage was not allowed. Appellant and his fellow garbage man were discharged immediately.

TENURE

Our recent opinions in Rompf v. John Q. Hammons Hotels, Inc., Wyo., 685 P.2d 25 (1984), and Allen v. Safeway Stores Incorporated, Wyo., 699 P.2d 277 (1985), are dispositive of most of the issues presented in this appeal. An employee may resign from employment under an at-will contract at any time without cause, and an employer may discharge an employee under an at-will contract at any time without cause. Also see Lukens v. Goit, Wyo., 430 P.2d 607 (1967); Long v. Forbes, 58 Wyo. 533, 136 P.2d 242, 158 A.L.R. 224 (1943); Casper Nat. Bank v. Curry, 51 Wyo. 284, 65 P.2d 1116, 110 A.L.R. 360 (1937). Appellant does not contend that he was employed under a contract for a definite term. He argues that he was a "permanent" employee in that he was paid by the month rather than hourly, in that he was allowed paid vacations, and in that he was included in a pension program. The failure of such conditions to establish a definite term of employment was recognized in Allen v. Safeway Stores Incorporated, supra. Without more, appellant's discharge as an at-will employee was proper.

The fact that appellant did not have tenure distinguishes this case from Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), which holds that a pretermination notice and opportunity to respond ¹ are required when a property right of tenure exists as it did in that case in which the employee was a " 'classified civil servant.' "

STATUTE

Appellant also contends that as a matter of public policy his discharge was improper inasmuch as § 15-1-103, W.S.1977 (July 1980 Pamphlet), set terms for discharge which, he alleges, were not followed. In this case, the statute need not be considered as setting forth public policy; it prescribes that necessary for discharge of municipal employees.

Section 15-1-103(a) ² read in pertinent part "(a) The governing bodies of all cities and towns may:

* * *

* * *

"(xxxvii) Appoint, in addition to the appointed officers and employees provided by law, other personnel as are necessary for the efficient operation of the city or town and:

"(A) Prescribe duties and rules of all appointees;

"(B) Determine working conditions or pay scales and supplementary benefits, as long as those provisions are not in conflict with existing statutes;

"(C) During an emergency or special conditions warranting, make additional temporary appointments;

"(D) If any person is removed from office for incompetency, neglect of duty or otherwise for cause, specify the charges and provide the person removed an opportunity for a hearing on the charges;

"(E) Make the cause of removal a matter of record; * * * " (Emphasis added.)

We considered this statute in Carlson v. Bratton, Wyo., 681 P.2d 1333 (1984), and, while the statute was inapplicable to the employee in that case, he being the chief of police, one of the "appointed officers and employees provided by law," we said at page 1339:

"Absent a discrimination amounting to a violation of civil rights, a person does not have tenure in employment unless such tenure is established by statute or by contract or by rules and regulations pursuant to statute or by rules and regulations having the force of a contract. One of the bargaining items in labor contracts concerns the causes for termination and the method of establishing the same. Adoption of the Little Norris-LaGuardia Act, § 27-7-101 et seq., W.S.1977, was for the purpose of insuring the right of labor to organize and bargain for such items. Personnel rules of the several governmental units serve the purpose of contractual labor requirements. In all such, there is a recognition of a definite cleavage between management and labor. The positions listed in § 15-3-204, supra, are positions of management and the appointees thereto serve at the pleasure of the mayor."

Appellant was certainly not in a position of management. The statute sets forth the causes for termination and the method of establishing the same. It is applicable to employees under an at-will contract as well as those having a fixed-term contract. Appellant, thus, may have a tort action if his discharge was not in accordance with the statute.

Appellees argue that the provisions of § 15-1-103(a) are permissive inasmuch as they indicate that which the governing bodies of cities and towns "may" do. Appellees are correct in that appointment of "other personnel" may, in the discretion of the governing body of a city or town, be made or not, but once an appointment is made, the requirements of the subparagraphs of § 15-1-103(a)(xxxvii) are mandatory unless otherwise provided in such subparagraphs. Reading the statute as a whole, such legislative intent is apparent.

"Then, as this court has said (Rasmussen v. Baker, 7 Wyo. 117, 50 Pac. 819), 38 L.R.A. 773, 'the primary principle underlying an interpretation of constitutions or statutes is that the intent is the vital part, and the essence of the law.' And the rule requires that the instrument must be construed as a whole in order to ascertain its intent and general purpose and also the meaning of each part. [Citations.]" Ross v. Trustees of University, 31 Wyo. 464, 489, 228 P. 642 (1924).

If the statute were read as requested by appellee, the authorizations in the five subparagraphs of § 15-1-103(a)(xxxvii) would be superfluous. Without statutory authorization, the right to prescribe duties and rules and to determine working conditions and pay scales not in conflict with existing statutes would follow from the authority to appoint personnel. The authority to appoint personnel as necessary for the efficient operation of the city or town would, by its terms, be authority to make temporary appointments in emergency situations. To make it discretionary whether or not to require cause for discharge of an employee following specification of charges and hearing would be another superfluous provision. Such authority would exist even without statutory authorization. The same is true with reference to the authorization to make the cause of removal a matter of record. To give purpose and meaning to these five subparagraphs, they must be taken to be requirements once the appointments are made pursuant to § 15-1-103(a)(xxxvii). In construing statutes, we endeavor to give meaning to every word, clause and sentence to the end that no part is inoperative or superfluous. Thomson v. Wyoming In-Stream Flow Committee, Wyo., 651 P.2d 778 (1982).

Appellees also place emphasis on the words "removed from office" in § 15-1-103(a)(xxxvii)(D), and they contend that the provisions thereof apply only to "officers" as distinguished from other employees. Again a reading of such words in context with the entire statute reflects a contrary legislative intent, as does our holding in Carlson v. Bratton, supra.

SUMMARY JUDGMENT

Before it can be said as a matter of law that appellant's discharge was not actionable, it must not have violated that set forth in § 15-1-103(a)(xxxvii)(D) ³; i.e., if the discharge is for "incompetency, neglect of duty or otherwise for cause," the charge must be specified, and there must be an opportunity for a hearing after discharge on the charges. If there is an issue of fact as to the existence of any one of these requirements, a summary judgment may not be rendered.

Rule 56(c), W.R.C.P., provides in part that a summary judgment

" * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * "

A summary judgment is proper only where there is no issue of material fact. Kimbley v. City of Green River, Wyo., 642 P.2d 443 (1982); Timmons v. Reed, Wyo., 569 P.2d 112 (1977).

With reference to the first requirement of § 15-1-103(a)(xxxvii)(D), appellant was advised both at the time of discharge and at the hearing before the town council of the complaint and the identity of the complainant. Appellant and his fellow garbage man, Joseph W. Lambert, acknowledge in their depositions that there was a rule against scavenging and that it was made known to them at a meeting of garbage men. Lambert acknowledges taking a belt from the garbage of the complainant. Both Lambert and appellant state that appellant took nothing from that garbage. Appellant said he "flipped the ashes" with his hand to see if they were hot. Lambert testified that appellee Jim Dunham told him that appellant was discharged because he was with Lambert. He also...