Roberts v. City of Tucson

593 P.2d 679, 122 Ariz. 125, 1978 Ariz. App. LEXIS 746
CourtCourt of Appeals of Arizona
DecidedJune 15, 1978
DocketNo. 2 CA-CIV 2800
StatusPublished
Cited by2 cases

This text of 593 P.2d 679 (Roberts v. City of Tucson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. City of Tucson, 593 P.2d 679, 122 Ariz. 125, 1978 Ariz. App. LEXIS 746 (Ark. Ct. App. 1978).

Opinion

OPINION

HOWARD, Judge.

Appellant was recreation administrator in the Parks & Recreation Department of the City of Tucson and a permanent employee under the city’s civil service system. In February 1976, he was informed by his immediate supervisor and the department head that due to his performance and failure to follow and implement departmental policies, his termination was being considered. Subsequently an agreement was reached between appellant and the department head wherein appellant was to submit his resignation effective on May 31,1976, in exchange for the promise by his immediate supervisor and the department head that the resignation would not be processed until May 1, 1976, and the furnishing of a favorable letter of recommendation by the department head.

Appellant submitted his resignation, but when it became clear to him that no letter of recommendation was going to be furnished he withdrew his resignation on May 3. As soon as the department head discovered that the resignation was withdrawn, appellant was terminated effective May 4. The notice of termination which was given to appellant on May 3 had attached to it 12 reasons for the discharge.

On May 11, 1976, appellant filed with the Civil Service Commission a notice of appeal which requested a hearing for the purpose of determining whether petitioner was terminated with cause. The commission set the matter for hearing on June 21. However, on June 3 a motion to continue the hearing was filed by the city for the reason that the appellant’s immediate supervisor, James Ronstadt, assistant director of the Parks & Recreation Department, an essential witness, would be out of the city attending a seminar. The commission considered the motion and the appellant’s opposition and granted the continuance on June 10.

Appellant then filed a special action along with a temporary restraining order in the Pima County Superior Court on June 16, 1976. In the superior court action, appellant sought his immediate reinstatement [127]*127to the position of recreation administrator and the payment to him of all back pay and benefits.

The matters were heard by the superior court on June 18 and the trial court ruled that the commission should hear the termination within 30 days from June 18 and should review whether the grounds for termination were set forth with sufficient specificity. All other relief was denied. The commission complied with the court’s order. Upon review of the grounds for discharge provided in the notice of termination, the commission ordered that further specificity be provided for each of the 12 grounds. Additional delineation of each of the grounds for discharge was provided to the appellant on July 2. Appellant’s appeal was then heard by the commission commencing July 8, and continuing on August 4, 5 and 6 and concluding on August 9. Upon the conclusion of the hearing, the Civil Service Commission upheld appellant’s termination. Appellant then filed a special action in the superior court which denied him relief.

Appellant first contends that his immediate termination was unlawful since it violated Rule XI, Sec. 2 of the Tucson Civil Service Commission Rules and Regulations. This rule states:

“An appointing officer may for just cause suspend without pay for periods in excess of the number of days specified in Section 1 above [ten days], demote or reduce in pay or position, or discharge a permanent employee under his jurisdiction only provided he furnishes such employee and the Commission with a written notice and reasons therefor. Such notice shall be on a form supplied by the Director and shall state the effective date of such suspension, demotion, or reduction in pay or position, or discharge and clearly set forth the specific act or acts or omissions thereof which constitute cause for the action of the appointing officer. Such form shall inform the employee of his right of appeal to the Commission in accordance with Rule XII, Section 4. Pending the filing and hearing of charges intended to effect the discharge of a permanent employee, an appointing officer may, upon written notice thereof to the employee and the Commission, suspend such employee without pay.” (Emphasis added)

Appellant contends that under the rule he could not have been immediately discharged but that, instead, the most the city could do was suspend him without pay until such time as his discharge was approved by the commission. We do not agree. The rule provides for a procedure by which an appointing officer, who has made a decision to discharge an employee, but has not completed the preparations and notice of termination and specifications for the grounds for the discharge, may remove the employee from the work force through the process of suspension. It does not mean that an employee cannot be discharged pri- or to the hearing of an appeal by the commission.

Appellant next contends that he was denied his constitutional right to due process under the Fifth and Fourteenth Amendments of the United States Constitution because he was not given a pre-termination hearing. Since appellant can only be discharged for cause, he has a property interest in continuing employment which is constitutionally protected. City of Flagstaff v. Superior Court of the State of Arizona in and for the County of Coconino, 116 Ariz. 382, 569 P.2d 812 (1977). The seminal ease dealing with the necessity of a pre-termination hearing when government benefits are involved is Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) where the issue was whether a welfare recipient could have his payments terminated without a pre-termination hearing even though a post-termination hearing was available. The Court in Goldberg quoted from the district court opinion in Kelly v. Wyman, 294 F.Supp. 893 (1968):

“While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. * * * Suffice it to [128]*128say that to cut off a welfare recipient in the face of . ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.” 294 F.Supp. at 899-900.

The Court in Goldberg further focused on the plight of the welfare recipient when it stated:

“It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process, [citation omitted] For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care, [citation omitted] Thus the crucial factor in this context — a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which he live while he waits. Since he lacks independent resources, his situation becomes immediately desperate.

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Related

Roberts v. City of Tucson
593 P.2d 645 (Arizona Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
593 P.2d 679, 122 Ariz. 125, 1978 Ariz. App. LEXIS 746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-city-of-tucson-arizctapp-1978.