State ex rel. DeLuca v. Common Council of City of Franklin

• Decision Date: 02 June 1976
• Docket Number: No. 92,92
• Citation: 72 Wis.2d 672,242 N.W.2d 689
• Parties: STATE of Wisconsin ex rel. Ben DeLUCA, Appellant, v. COMMON COUNCIL OF the CITY OF FRANKLIN, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 689

242 N.W.2d 689

72 Wis.2d 672

STATE of Wisconsin ex rel. Ben DeLUCA, Appellant, v. COMMON COUNCIL OF the CITY OF FRANKLIN, Respondent.

No. 92 (1974).

Supreme Court of Wisconsin.

Argued April 8, 1976.

Decided June 2, 1976.

James R. Glover (argued), Milwaukee, and Hauser, Glover & Webb, S.C., Madison, Coffey, Murray & Coffey, Milwaukee, on brief, for appellant.

Ray T. McCann, Milwaukee, on brief; John T. McCann (argued), Milwaukee, for respondent.

HEFFERNAN, Justice.

Ben DeLuca served as the City Clerk for the City of Franklin from January 16, 1966, to September 5, 1972, on which date he was suspended by the mayor following the adoption of a resolution passed by the common council to initiate his removal. On September 25, 1972, a verified petition setting forth alleged grounds for removal were filed with the common council by Harold D Robertson, president of the common council. A hearing on these charges was held by the common council on November 13, 14, and 15, 1972. On January 3, 1973, the council issued an order removing DeLuca from office. DeLuca sought to have the common council's action reviewed by writ of certiorari in the circuit court for Milwaukee county. The writ was issued on July 2, 1973; and on January 21, 1974, following a hearing on the City of Franklin's motion to quash, the circuit court issued an order quashing the writ. The appeal is from that order.

The fundamental issue presented in DeLuca's application for certiorari and the issue before us on this appeal is whether the investigatory and adjudicatory functions were so intermingled in these removal proceedings that DeLuca was denied due process.

The basic contention of DeLuca is that Alderman Robertson, by his participation in the investigatory stage of the proceedings, together with his having filed a verified petition with the council for DeLuca's removal, should have been disqualified from presiding over the common council's hearing on the removal and from voting on the proceedings. We conclude that DeLuca was not denied due process and the order quashing the writ of certiorari is affirmed.

Since this case is before us on certiorari, we are confined to the record, and the scope of review is limited to the issues set forth in State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 94 N.W.2d 711. Therein we said that this court on review is limited to the consideration of the following questions:

"(1) Whether the board kept within its jurisdiction; (2) whether it proceeded on correct theory of the law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." Ball, p. 199, 94 N.W.2d p. 716.

The removal of DeLuca was carried out under the provisions of sec. 17.16, Stats. This statute provides that an officer of a municipality having the status of DeLuca can only be removed for cause. Sec. 17.16(2) defines 'cause' as 'inefficiency, neglect of duty, official misconduct or malfeasance in office.' Removal, however, may be effected only after written verified charges have been preferred by 'a taxpayer and resident of the governmental unit' and only after a speedy public hearing, at which the officer is entitled to be heard personally and by counsel.

Sec. 17.16(3), Stats., requires that notice of the hearing and of the charges must be given to the officer not less than ten days prior to the hearing. Pending such hearing, the officer may be suspended by the order of the mayor. The body designated to conduct the hearing and which has the removing authority is the common council of the city.

No question is presented in respect to whether the procedures followed by the common council complied with the statutory mandates. It is conceded that they did. DeLuca, however, asserts that the council failed to act in accordance with the guarantees of due process of the Wisconsin and United States Constitutions.

The common council of the City of Franklin asserts, however, that these constitutional provisions are not applicable. It contends that under the circumstances, because DeLuca was deprived of neither liberty nor property, he was not entitled to the full panoply of due-process protections. Due process is a requirement only where state action is involved, but it is clear that a common council, as a creature of the state, is controlled by the strictures of the Fourteenth Amendment. Hortonville Educational Asso. v. Hortonville Joint School District No. 1 (1975), 66 Wis.2d 469, 487, 225 N.W.2d 658.

From the face of the statute, it appears that DeLuca had a statutory entitlement to his position and of which he could only be deprived for cause. The United States Supreme Court recently stated in Goss v. Lopez (1975), 419 U.S. 565, 573, 95 S.Ct. 729, 735, 42 L.Ed.2d 725:

'. . . a state employee who under state law . . . has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process.'

The property interest of DeLuca in his employment was one conferred by the law of the state and, as such, is protected by the due-process provisions of both the state and federal constitutions. See Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Wieman v. Updegraff (1952), 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. DeLuca's employment status constituted a property right and is afforded due-process protections.

Additionally, we are satisfied that a discharge for the causes set forth in the statute implicates, in a constitutional sense, the personal liberty of the discharged officer. In Wisconsin v. Constantineau (1971), 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515, cited with approval in Roth, the United States Supreme Court indicated that:

'Where 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.'

Roth also indicated that, where there was a stigmatization of an employee that would foreclose his future freedom to take advantage of other employment opportunities, there was a deprivation of liberty. Roth, 408 U.S. p. 574, 92 S.Ct. 2701. The teaching of Roth is that liberty in an employment context is composed of two interests--a reputational interest and an employability interest; and wherever charges might seriously impair one's standing and associations in the community, the reputational interest has been infringed. An infringement upon an employability interest is shown when the reasons for dismissal are those that would significantly undermine opportunities for future employment.

The charges and the subsequent hearing in this case were matters of public knowledge. Among the charges were allegations concerning DeLuca's character--that he was performing services for personal friends but not performing the same services for others. The charges left the implication that he was dishonest in the manner he operated his office. Charges of this nature that reflect or imply unsavory character traits affect the liberty of a public employee. Hostrop v. Board of Junior College District No. 515 (1972, 7th Cir.), 471 F.2d 488.

DeLuca, accordingly, was entitled to the full panoply of due-process protections, the minimum requirements of which include a timely and adequate notice of the reasons for the discharge, an impartial decisionmaker, and the opportunity to confront and cross examine adverse witnesses. From our perusal of the record brought to us on certiorari, we conclude that DeLuca was afforded all of these protections.

DeLuca argues that the notice of charges was not sufficiently detailed to adequately apprise him of the nature of the allegations and that it was impossible for him to defend himself against them. The charges brought before the common council set forth 16 separate items, and prior to the hearing DeLuca specifically answered each charge. Nevertheless, at the inception of the hearing, DeLuca's counsel asked that the charges be made more specific. This motion was denied by the president of the common council on the grounds of untimeliness. In addition, as the circuit court noted, the drafting of the answer, although such answer was not required by the statutes, was strong evidence that DeLuca was able to meet the charges responsively.

The charges in the instant case are drawn with much greater precision than those approved in State ex rel. Richey v. Neenah Police & Fire Comm. (1970), 48 Wis.2d 575, 180 N.W.2d 743, and comport with the standards stated in State ex rel. Messner v. Milwaukee County Civil Service Comm. (1972), 56 Wis.2d 438, 202 N.W.2d 13, in which we said that charges must be:

'. . . 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

Moreover, even at this late date, on appeal, counsel for DeLuca, although reasserting the point, makes no attempt to demonstrate that his client's ability to defend himself was in any way impaired by the insufficiency of the charges. We are satisfied that the notice was sufficient.

The most important issue presented in this case is whether, in the factual context of DeLuca's discharge, he was deprived of the due-process right to an impartial tribunal.

Immediately prior to the hearing, DeLuca's counsel requested the disqualification of four of the six common council members on the grounds of bias--the president, Robertson, because he preferred the charges, and the other three aldermen because they had participated in the resolution that initiated the removal proceedings. That motion was denied.

On certiorari, the trial court upheld the ruling of the common council on the theory of...