Stuart v. City of Custer City, Corp.
| Decision Date | 22 October 2018 |
| Docket Number | NO. CIV-18-471-HE,CIV-18-471-HE |
| Parties | CARMEN STUART, as an elected official, and as an individual, Plaintiff, v. CITY OF CUSTER CITY, A municipal corporation, et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Plaintiff Carmen Stuart sued the Town of Custer City1 along with Fred Adam, the town mayor and a trustee, and Micki Urbanczyk and Clay Hooper, two other town trustees. She asserts claims under 42 U.S.C. § 1983 for violations of her First Amendment and Fourteenth Amendment rights. She also asserts various claims under Oklahoma law. Defendants have filed a partial motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
When considering whether a claim should be dismissed under Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and views them in the light most favorable to the plaintiff as the nonmoving party. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). All that is required is "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint must, though, contain "enough facts to state a claim to relief that is plausible on its face" and "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570, 555 (2007). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Shields, 744 F.3d at 640 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff alleges in the complaint that she is the elected town clerk/treasurer of the of Town of Custer City and is assigned additional duties pursuant to city ordinances.2 She alleges that, on February 9, 2018, Mayor Adams called an emergency meeting before a regularly scheduled Board of Trustees meeting. At that meeting plaintiff claims one of the town trustees presented her with a signed letter dated February 5, 2018, which removed her from her elected position as town clerk/treasurer. She alleges that after she obtained a restraining order,3 the town attorney provided her with a letter "stating that she was being suspended for oppression in office and willful neglect of duty, dealing only with the positions which are not, by statute, part of the positions of Town Clerk/Treasurer." Doc. #1, p. 5, ¶8.4 Plaintiff alleges the trustees then "held a 'due process' hearing on March 19,2018." Id., ¶9. While the hearing purportedly was to allow her to "cross-examine witnesses," plaintiff asserts that the "trustees presented no witnesses and no evidence, other than their statement of the reason for the hearing." Id., ¶ 10. Allegedly when she asked about evidence at the hearing, the town attorney referenced the February 5, 2018, letter, as the reasons why the town terminated plaintiff from her position as utilities clerk.5 The reasons stated for the trustees' action in the February 5, 2018, letter are listed in the complaint. They include: "Bad mouthed the Mayor and members of the Board of Trustees in public social media, on the telephone, and in person in violation of the Oklahoma code of conduct expected of public officials." Id., p. 4, ¶ 5(k).
Plaintiff alleges that she posted two comments on her personal Facebook page. One did not mention the trustees and the other was a response to a comment from a citizen. It, she alleges, consisted of a statement that three unnamed trustees were "putting up obstacles against her performance of her job, both as elected City Clerk/Treasurer, and as Utilities Clerk." Id., p. 7, ¶ 18. Plaintiff alleges that she "engaged in protected speech when, as a citizen, she posted on social media concerns about the operation of the City of Custer City." Id., p. 8, ¶ 26.6 She also alleges that Custer City "discouraged employees from publiclydiscussing any matter that would cast the municipality in a negative light." Id., p. 9, ¶ 31. Plaintiff asserts six claims against the defendants.
Counts 1 and 2 are asserted under § 1983 against defendants Urbanczyk, Hooper and Adams in their individual capacities. In count 1 plaintiff alleges the defendants retaliated against her in violation of her First Amendment rights when they attempted to remove her from her elected position and removed her other duties because she had engaged in protected speech.7 In count 2 plaintiff alleges the defendants violated her Fourteenth Amendment rights when they attempted to remove her from her elected position and removed her other duties without providing her with procedural due process.8
Count 3 is asserted under § 1983 against Custer City pursuant to Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). In Count 3 plaintiff alleges that the town's "policy or custom enabled its Board of Trustees to act with deliberate indifferenceto plaintiff's constitutional rights to free speech and due process and equal protection." Id., p. 12, ¶ 54.
Count 4 is asserted against defendants Urbanczyk, Hooper and Adams both individually and in their official capacities as members of the Custer City Board of Trustees. Plaintiff alleges that by impeding her ability to perform the duties of both her elected position and those additional duties "given to her by City Ordinances," defendants "interfered with Plaintiff's right to enjoyment of the gains of her own industry," id., p. 13, ¶ 57, in violation of Okla. Const. art. 2, §2. She alleges that by voting to remove her from her elected position and "terminate Plaintiff's employment with the City," Doc. #1, p. 13, ¶58, defendants deprived her of due process in violation of Okla. Const. art. 2, § 7. And finally, plaintiff alleges that defendants retaliated against her for speaking out about matters of public concern, violating her free speech rights guaranteed by Okla. Const. art. 2, § 22.
In count 5, asserted against all defendants, plaintiff alleges defendants reduced her salary during her term of office when they removed her additional duties, violating Okla. Const. art. 23, § 10. That section of the Oklahoma Constitution provides in pertinent part that "in no case shall the salary or emoluments of any public official be changed after his election or appointment, or during his term of office, unless by operation of law enacted prior to such election or appointment." Id.
Finally, in count 6 plaintiff asserts that defendants violated Oklahoma's Open Meeting Act by holding an emergency meeting and failing to include in the minutes of the meeting the reasons for declaring an emergency.
Plaintiff seeks damages, attorney's fees, plus declaratory and injunctive relief with respect to her Open Meeting Act claim. Defendants seek to dismiss all but plaintiff's §1983 First Amendment claims and her Open Meeting Act claim.
Initially defendants move to dismiss plaintiff's § 1983 due process claims asserted in counts 2 and 3. In these counts plaintiff asserts defendants violated her rights to procedural due process by "illegally attempting to remove her from office and removing duties specifically bestowed upon the City Clerk/City Treasurer by ordinance without providing Plaintiff adequate due process and failing to follow the City's established ordinances and state law."9 Doc. 14, p. 5.
To evaluate plaintiff's due process claim the court undertakes a two-step inquiry. It first determines whether the defendants' "actions deprived plaintiff[] of a constitutionally protected property interest." Pater v. City of Casper, 646 F.3d 1290, 1293 (10th Cir. 2011). If plaintiff satisfies that requirement, the court then considers whether she was afforded the appropriate level of process. Id. Defendants argue that plaintiff cannot make it past the first hurdle - that she did not have a protected property interest in her position as utilities clerk. The court agrees.
A property interest in the employment context is "'a legitimate expectation in continued employment.'" Hesse v. Town of Jackson, 541 F.3d 1240, 1245 (10th Cir. 2008) (quoting Lighton v. Univ. of Utah, 209 F.3d 1213, 1221 (10th Cir. 2000)). State law determines whether such a property interest exists. Id. "State law sources for property interest can include statutes, municipal charters or ordinances, and express or implied contracts." Schulz v. City of Longmont, 465 F.3d 433, 444 (10th Cir. 2006) (quoting Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1128 (10th Cir.2001)).
Custer City is governed by the "statutory town board of trustees form of government." 11 Okla. Stat. § 12-101. Under Oklahoma law, a governing town board of trustees may remove, demote, suspend or layoff an employee "solely for the good for the service." 11 Okla. State. § 12-114. Courts have repeatedly concluded that this standard is insufficient to create a constitutionally protected property interest and "creates essentially an 'at will' relationship between a town and its employees." DeFries v. Town of Washington, 875 F.Supp. 756, 762 (W.D.Okla. 1995); see Walker v. Town of Hennessey, 951 F.Supp.2d 1263, 1269 (W.D.Okla. 2013); see generally Parker v. Town of Chelsea, 275 Fed. Appx. 769, 771 (10th Cir.2008) (dicta) ("The district court properly concluded that Mr. Parker was an at-will employee who, according to Oklahoma law, could be terminated 'solely for the good of the service,' Okla. Stat. tit. 11, § 12-114, and therefore could not have a protected property interest in continued employment."). In other words, "no cause needs to be shown for proper termination." Youngwold v. Town of Stratford, 2013 WL 775355, at *1 (W.D.Okla. Feb. 28, 2013).
The parties appear to agree that Custer City employees are at-will employees. The issue is the characterization of plaintiff's position as utilities clerk, whether in that role she was considered to be an elected official or a Custer City employee.
Relying on two ordinances in Custer City's municipal code, plaintiff contends her other...
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