Government Employee Who Serves "At The Pleasure" Has No Property Interest In Employment
COVELL v. MENKIS (February 8, 2010)
The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.
In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.
Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.
Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.
From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.
Dr. Philip Bodenstab was an anesthesiologist at
Mark Rujawitz was an at-will employee of the
Ryan Clancy, an American citizen, traveled to Iraq in January 2003. Clancy's purpose was to protest the United States’ involvement in Iraq by acting as a “human shield.” Upon his return to the United States, Clancy admitted to a customs official the reason for his trip. The Office of Foreign Assets Control ("OFAC") issued a Pre-penalty Notice ("PPN"), charging Clancy with providing services to Iraq by shielding facilities from possible military action. OFAC relied on regulations, promulgated post-September 11, restricting trade and transactions with Iraq. OFAC advised Clancy that he could be assessed a penalty of up to $250,000. It offered him the opportunity to make a written response. Clancy submitted a response in which he challenged the validity of the regulations. He did not dispute the factual basis of the charges. OFAC assessed a final civil penalty of $8,000. Clancy filed suit. The district court granted summary judgment against Clancy on all of his claims. Clancy appeals.
Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.
Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.