Wilkerson v. State, 90CA1703

• Decision Date: 12 March 1992
• Docket Number: No. 90CA1703,90CA1703
• Citation: 830 P.2d 1121
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 182 Chris WILKERSON, Plaintiff-Appellant, v. The STATE of Colorado; Roy Romer, Governor of the State of Colorado, in his official capacity; Walter L. Kautzky, Executive Director of the Colorado Department of Corrections, in his official capacity; and the Colorado Department of Corrections, a department of Colorado state government, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 1121

830 P.2d 1121

59 Fair Empl.Prac.Cas. (BNA) 182

Chris WILKERSON, Plaintiff-Appellant, v. The STATE of Colorado; Roy Romer, Governor of the State of Colorado, in his official capacity; Walter L. Kautzky Executive Director of the Colorado Department of Corrections, in his official capacity; and the Colorado Department of Corrections, a department of Colorado state government, Defendants-Appellees.

No. 90CA1703.

Colorado Court of Appeals,

Div. II.

March 12, 1992.

Rehearing Denied April 16, 1992.

Certiorari Denied November 9, 1992 (92SC326).

Frank & Finger, P.C., William S. Finger, M. Hollace van Kleeck, Evergreen, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Arnold, Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Judge HUME.

Plaintiff, Chris Wilkerson, appeals from the summary judgment entered in favor of defendants, the State of Colorado; Governor Roy Romer; Walter L. Kautzky, Executive Director of the Colorado Department of Corrections; and the Colorado Department of Corrections. Additionally, plaintiff appeals the judgment entered upon a jury verdict in favor of the State on his claim for unpaid sick leave, and the denial of interest on his vacation time. We affirm in part and reverse in part.

Pursuant to Colo.Sess.Laws 1977, ch. 223, § 17-2-201 at 911-14 (old parole board statute), plaintiff was appointed as a member of the State of Colorado Parole Board (Board) on June 25, 1984, for a six-year term. However, by Colo.Sess.Laws 1985, ch. 142, § 17-2-201 at 637-38 (H.B. 1292), the General Assembly abolished the existing Board and recreated a new board effective July 1, 1987. Thus, plaintiff's appointment ended June 30, 1987, and he was not appointed to the new Board, nor was he offered alternative employment with the state.

I.

A.

Plaintiff first contends that he had a property interest in his appointment to the Board and that he was deprived of this right without due process of law under the Fifth and Fourteenth Amendments and Colo. Const. art. 2, § 25. We disagree.

The requirements of procedural due process apply only to the deprivation of a liberty or property interest protected by the Fourteenth Amendment. Property interests are not created by the Constitution but rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Adams County School District No. 50 v. Dickey, 791 P.2d 688 (Colo.1990) (sufficiency of claim of entitlement determined by reference to state law).

To have a property interest in a benefit, a person must have more than an abstract need or desire for it and must have more than a unilateral expectation of it. Instead, he must have a legitimate claim of entitlement to it. Board of Regents v. Roth, supra.

Thus, in alleging a deprivation of due process, plaintiff must first demonstrate the existence of the property interest which enables him to assert the constitutional claim and the basis of his entitlement to it. See Ellis v. City of Lakewood, 789 P.2d 449 (Colo.App.1989)

Here, plaintiff claims the basis of his property interest was the old parole board statute and an executive order from Governor Lamm appointing him to a six-year term on the Board.

While such basis may, in some circumstances, show there to be a property interest, here, much of plaintiff's argument is premised on the characterization of his position on the Board as an "employee," and we conclude that his status was that of an "officer." Hence, we further conclude he had no property interest in his position.

There is a distinction between an "officer" and an "employee." The term "office" implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office. Corfman v. McDevitt, 111 Colo. 437, 142 P.2d 383 (1943).

"Officer" is distinguished from "employee" in the greater importance, dignity, and independence of the former position; in an officer being required to take an official oath, and perhaps give an official bond; and usually, though not necessarily, in the tenure attached to such position. Hudson v. Annear, 101 Colo. 551, 75 P.2d 587 (1938); see also Evert v. Ouren, 37 Colo.App. 402, 549 P.2d 791 (1976) (terms "officer" and "employee" are not interchangeable); 63A Am.Jur.2d Public Officers and Employees § 2 (1984) (a public officer is such an officer as required by law to be elected or appointed).

The old parole board statute provided for appointments to the Board by the Governor and for fixed six-year terms of "office." In addition, Colo. Const. art. 12, § 13, exempts state parole board members from the state personnel system. Thus, we conclude plaintiff is properly characterized as an "officer," rather than an "employee."

As an officer, plaintiff has no property interest in his office. People v. Lindsey, 80 Colo. 465, 253 P. 465, cert. denied, 274 U.S. 757, 47 S.Ct. 767, 71 L.Ed. 1336 (1927) (there is no property interest in a statutory public office). However, plaintiff argues that the validity of Lindsey has been superseded by subsequent cases. We disagree.

The rule that a public officer has no property or vested interest in public office remains well-established. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Elam v. Williams, 753 F.Supp. 1530 (D.Kan.1990), aff'd, 953 F.2d 1391 (10th Cir.1992); Beck v. County of Santa Clara, 204 Cal.App.3d 789, 251 Cal.Rptr. 444 (1988); Slawik v. State, 480 A.2d 636, 644 (Del.1984) (fn. 9--citing cases from ten other jurisdictions); State v. Seigler, 230 S.C. 115, 94 S.E.2d 231 (1956); State v. Morton, 140 W.Va. 207, 84 S.E.2d 791 (1954); see also 63A Am.Jur.2d Public Officers and Employees § 8 (1984).

Thus, because plaintiff did not have a property interest in his office, the procedural protections of due process were not applicable.

B.

Plaintiff alternatively contends that he had a contract, either express or implied, with the State. We also reject this contention.

There is no contractual relation between the state and the incumbent of an office. People v. Lindsey, supra. Nor was there an enforceable right based on promissory estoppel.

Promissory estoppel is applied to prevent injustice under circumstances in which there has not been mutual agreement by the parties on all essential terms of a contract, but a promise was made which the promisor should reasonably have expected would induce action or forbearance, and the promise in fact induced such action or forbearance. Vigoda v. Denver Urban Renewal Authority, 646 P.2d 900 (Colo.1982); see also Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987) (application of promissory estoppel doctrine in employment situation).

As noted, plaintiff's reliance must be reasonable in order to establish an equitable estoppel. Here, H.B. 1292 clearly indicated that the existing Board was to be abolished and a new Board created.

Plaintiff claims that he relied on promises which were made or implied by Governor Lamm and his staff. However, it was Governor Romer, not Governor Lamm, who was to appoint members to the new Board. It was not reasonable for plaintiff to rely on any assurances made by Governor Lamm and his staff to create an expectation for his reappointment to the new Board. See Elam v. Williams, supra (not reasonable to rely on assurances from elected official for continued employment); Averitt v. Cloon, 796 F.2d 195 (6th Cir.1986) (promise by elected public official to make political appointment does not provide basis for reasonable expectation of employment).

Moreover, plaintiff's reliance was also unreasonable because the General Assembly retains the right to abolish a statutory office, modify duties, and shorten or lengthen the terms of office. See Higginbotham v. City of Baton Rouge, 306 U.S. 535, 59 S.Ct. 705, 83 L.Ed. 968 (1939). Since it was within the General Assembly's power to cut short his term, it was unreasonable for plaintiff to expect that his tenure under the old parole board statute would continue. Thus, we reject plaintiff's contention that he had an implied contract with the state either for continued or renewed employment.

In view of our determination that plaintiff has no protected property interest, we need not address his contention that the court erred in holding that his claim based upon a deprivation of a property right was barred by operation of the statute of limitations.

II.

Plaintiff next contends that he stated a valid claim of racial discrimination actionable under 42 U.S.C. § 1983 (1988) against defendants Romer and Kautzky. We disagree.

Initially, we note that neither a state nor a state official acting in his or her official capacity is a "person" who is subject to suit for damages under § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). However, state officials sued for damages in their personal or individual capacities are "persons" within the meaning of § 1983. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

To state a claim for relief under § 1983, a claimant must allege that: (1) some person deprived him of a right, privilege, or immunity secured by the federal constitution; and (2) that such person acted under color of state law. Dillingham v. University of Colorado Board of Regents, 790 P.2d 851 (Colo.App.1989).

However, § 1983 is not itself the source of any substantive rights. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Montoya v. City of Colorado Springs, 770 P.2d 1358 (Colo.App.1989). It merely provides a way in which a person can seek redress when his federal constitutional rights have been deprived under color of state law.

Here, plaintiff based his claim on 42 U.S.C. §...