Sullivan v. Coney

2013 Ark. 222, 427 S.W.3d 682, 35 I.E.R. Cas. (BNA) 1417, 2013 WL 2284987, 2013 Ark. LEXIS 257
CourtSupreme Court of Arkansas
DecidedMay 23, 2013
DocketNo. CV-12-1094
StatusPublished
Cited by14 cases

This text of 2013 Ark. 222 (Sullivan v. Coney) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Coney, 2013 Ark. 222, 427 S.W.3d 682, 35 I.E.R. Cas. (BNA) 1417, 2013 WL 2284987, 2013 Ark. LEXIS 257 (Ark. 2013).

Opinion

CLIFF HOOFMAN, Justice.

bln this interlocutory appeal, appellant, Mayor Robert “Bob” Sullivan of the City of McRae, Arkansas, appeals from the circuit court’s order denying his motion for summary judgment on the basis of qualified immunity.1 This case is presented to us following our grant of a petition for review from a decision of the Arkansas Court of Appeals. Sullivan v. Coney, 2012 Ark. App. 687, 2012 WL 6045919. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(e) and 2-4 (2012). We reverse and remand the circuit court’s decision.

Appellee Mary Coney was hired as the chief of police for the City of McRae in September 2008. Coney’s job duties included code enforcement, animal control, and acting as court bailiff. Mayor Sullivan terminated Coney on February 13, 2009, for allegedly | ¡¡.falsifying fire-department records and for insubordination. A special city-council meeting was held on February 24, 2009, to discuss Coney’s termination, and the council voted not to overturn the Mayor’s decision to terminate her.

Coney filed a complaint on March 27, 2009, against the City of McRae; Robert “Bob” Sullivan, individually and as Mayor of McRae; and Wayland Bradford, Benny Ward, Mike Smith, and Twyla Turner, all of whom were McRae aldermen. Coney claimed in her complaint that she had been previously employed not only as chief of police but also as the code enforcement officer for the City and that this position could be terminated only for cause. She denied that the Mayor had just cause to terminate her employment and asserted that she was terminated only because she had reported to the city attorney that the Mayor had committed misconduct by ordering her to issue a criminal citation to a citizen who had not committed any criminal act. Coney alleged (1) that the defendants failed to comply with the provisions of the Arkansas Freedom of Information Act because they did not give sufficient notice of the special city-council meeting; (2) that her due-process rights under the Arkansas Constitution were violated because she was not granted notice and a hearing on the charges against her; (3) that Sullivan’s termination of her employment violated her rights under the Arkansas Whistle-Blower Act; (4) that her termination from her positions of chief of police and code enforcement officer without just cause violated her rights under the Arkansas Civil Rights Act (ACRA); and (5) that she was entitled to COBRA benefits. Coney sought compensatory and punitive damages from the defendants, as well as reinstatement.

In their answer, the defendants denied the allegations in the complaint and affirmatively | ^asserted that they were entitled to statutory immunity. The defendants also filed a motion for summary judgment on each of the claims and asserted that they were entitled to qualified immunity because Coney had no property interest in her employment as an at-will employee and was not owed any procedural due process with regard to her termination. In support of their motion, the defendants filed a statement of uncontested material facts based on discovery responses by Coney.

In the portions of this statement that are relevant to this appeal, Coney admitted that a city ordinance establishing the position of “Building Official” required that an appointment be made by the Mayor and that she was never appointed by the May- or to be the building official. While she claimed that she was given the position (which Coney refers to as the code enforcement officer) by the city council in August or September 2008, she admitted that the minutes from the August and September 2008 council meetings did not reflect this appointment. Coney further agreed that she had served as secretary for the volunteer fire department, where she was responsible for entering run reports into the computer indicating which firemen appeared at the scene, after which she would give the reports to another employee who paid the firefighters based on these reports. She admitted that the Mayor began to suspect that she was altering the run reports to reflect that she was attending runs that she actually did not attend, although she denied that she had done this. Coney, also admitted that she was told by the Mayor to arrest a man for violating a zoning ordinance by operating a cabinet shop out of his residence and that she had refused to do this because she believed that the zoning ordinance did not provide for criminal sanctions. She agreed that she instead | ¿reported the Mayor’s directions to the city attorney, who told Coney that the matter would be addressed at the next city-council meeting, although Coney was fired before the next meeting was held. Coney admitted that the penalty section of the zoning ordinance at issue was correctly set out by the defendants, and it provided that a person who violates the ordinance shall be guilty of a misdemeanor and liable for a fine of not more than one hundred dollars.

A hearing was held on the motion for summary judgment on August 22, 2011, although the issue of qualified immunity was not discussed. At the conclusion of the hearing, the circuit court indicated that there were unresolved material issues of fact that prevented summary judgment from being granted. When Sullivan’s counsel indicated his intent to file an interlocutory appeal on the qualified-immunity issue, the circuit court noted that the issue had been briefed by the parties but not argued. Although counsel then attempted to address the issue, the circuit court stated that it had already ruled based on what was presented at the hearing. The order denying the summary-judgment motion was entered on September 16, 2011, and it states with regard to the immunity issue that “Mayor Sullivan’s motion for summary judgment based on qualified immunity was not argued during the hearing and is hereby denied.” The order noted that the other individual defendants were sued in their official capacity only. Sullivan filed a timely notice of appeal from the circuit court’s order denying him qualified immunity.

The court of appeals reversed and remanded for the circuit court to address the merits of the qualified-immunity issue. Sullivan v. Coney, 2012 Ark. App. 687, 2012 WL 6045919. We granted | sSulIivan’s petition for review, which argued that the court of appeals had erred by not addressing the issue when it was ruled on by the circuit court and was fully briefed by both parties on appeal. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Osborn v. Bryant, 2009 Ark. 358, 324 S.W.3d 687.

Generally, the denial of a motion for summary judgment is neither reviewable nor appealable; however, that general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to immunity from suit, as the right of immunity is effectively lost if the case is allowed to proceed to trial. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. Id.

Although there were numerous grounds raised by the defendants in their motion for summary judgment in this case, our current review is limited to the question of whether Sullivan, individually, is entitled to immunity from the present suit. City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006).

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Bluebook (online)
2013 Ark. 222, 427 S.W.3d 682, 35 I.E.R. Cas. (BNA) 1417, 2013 WL 2284987, 2013 Ark. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-coney-ark-2013.