OPINION
This is an action for damages and equitable relief under 42 U.S.C. § 1983 (hereinafter “§ 1983”) brought by Richard Meding, the former Chief of Police of Blades, against the Town of Blades, and individual town officials, namely, the May- or and members of the Town Council. The town officials are sued both in an official capacity and in an individual capacity. Meding alleges that the Town and the town officials deprived him of constitutionally protected property and liberty interests in connection with the termination of his employment as Police Chief. Both sides have completed discovery and all parties have moved for summary judgment. 1
*1094 FACTS
Blades is a small town of about seven hundred inhabitants. The Town is administered by the Mayor and the Town Council. The Town Council meets once a month and the elected officials receive a nominal salary for their services. During the events giving rise to this lawsuit, the Town employed three individuals full-time, which included the Chief of Police.
Meding was Chief of Police prior to his discharge on May 12,1980. He had several years of experience with the police force before his elevation to Chief of Police in July of 1977. The two sides in this lawsuit dispute the quality of Meding’s performance and his continued competence to serve in that position. The Court sees no benefit in repeating these allegations. For purposes of plaintiffs motion, the Court will assume that the Town Council had justifiable reasons for terminating Meding and for purpose of defendants’ motion, the Court will assume that Meding was fit for service.
The train of events that form the basis of Meding’s present lawsuit were brought to a head over a disagreement among the parties regarding the police department’s budget. On April 14, 1980, the plaintiff submitted his resignation as Chief of Police to take effect in sixty days and conditioned the resignation on the Town’s agreement to pay him certain benefits which he claimed were owed. The resignation was drafted with the advice of an attorney and submitted with the resignation was a doctor’s excuse addressed “To Whom It May Concern,” informing the reader that the plaintiff was in need of a two week rest for exhaustion. The plaintiff has not worked for the Town of Blades since his resignation was submitted.
The Town Council of Blades did not act on the plaintiff’s resignation until May 12, 1980 (the date of the next regularly scheduled council meeting). After the regularly scheduled meeting on May 12th, the Town Council met in executive session to consider Meding’s resignation. Rather than accept his resignation and implicitly agree to the plaintiff’s request for payment of benefits, the Town Council chose, instead, to accept his resignation under a section from the Town Ordinances that provided that an unexcused absence for more than three days shall be deemed a resignation. 2 The plaintiff alleges that he received no notice of the May 12th meeting, nor was he provided with a hearing prior to his termination. 3
*1095 Although Meding’s termination forms the crux of the Complaint, the Complaint also contains allegations regarding three subsequent incidents involving the defendants which could serve as bases for independent claims under § 1988. The first incident concerns a newspaper article in the Seaford Leader on May 14, 1980, that reported the Town Council had accepted Med-ing’s resignation because of unexcused absences. D.I. 31A:12. Meding claims that the article's averment that his absence was unexplained is false and that the defendants were the source of the report. Further, it is alleged that public dissemination of the purported reason for his termination damaged the plaintiff’s reputation.
The second incident occurred after Med-ing left his post as Police Chief. The plaintiff began working for a store, Guns and Goodies, owned and operated by Robert Smith. Smith informed Meding that unidentified individuals had come to him seeking to have Meding fired. After working only a week, Meding left contending that these individuals’ conduct pressured him to quit. Mr. Smith, however, maintains that Meding was welcome to stay on. D.I. 30:64.
On June 23, 1980, Meding brought an action in the Superior Court of Delaware in and for Sussex County against the Town of Blades. The initial complaint sought to recover accrued benefits from his employment as Police Chief, including pension and life insurance benefits and compensation for vacation time, sick leave, and severance. The complaint was amended in early November, 1980 to seek damages for illegal and wrongful termination. The case eventually went to trial in September of 1981 and the plaintiff received a judgment on a general verdict for nearly eight thousand dollars, a significant amount but substantially less than the amount that Meding sought.
Prior to the state court proceeding coming to trial, the Town of Blades and its Town Council asked the Attorney-General to investigate the possibility that Meding had falsified his reported overtime. This investigation was reported in the papers, and according to the plaintiff, the defendants sought the investigation and made it public solely to harass him. This represents the third incident following Meding’s termination that might serve as a basis for a civil rights claim.
Plaintiff’s counsel, in oral argument, expressly disavowed that the second or third incidents were meant to establish separate claims for liability under 42 U.S.C. § 1983 and thus, the Court will disregard those facts with respect to the cross-motions for summary judgment now before it. 4 What remains are two separate due process claims: one based on the termination which plaintiff contends deprived him of a constitutionally protected property interest; and the other based on the report , contained in the Seaford Leader on May 14, 1980 which plaintiff alleges deprived him of a constitutionally protected liberty interest. DISCUSSION
Actions by discharged public employees brought under § 1983 have the potential for creating complex jurisdictional questions because the facts underlying the federal cause of action will usually support a state action sounding in- tort. The difficulties created by dual jurisdiction are well-known, and for the most part federal law has evolved to resolve the most significant of these. Typically, the appropriate disposition of these federal actions may involve questions of state law. And to this extent, the. present action entails questions that are no different from the kinds of questions addressed by federal courts sitting in other state jurisdictions. What makes this particular case so difficult and also unusual is that Delaware is one of the few remaining state jurisdictions that continues to adhere to the traditional separation- of law and equity. This fact of Delaware law gives rise to a host of special problems *1096 which the Court must address in considering the numerous issues raised by the parties’ respective motions.
1. Claim Preclusion 5
Defendant Town of Blades contends that the pending action is precluded by the plaintiffs previously obtained state court judgment. The Full Faith and Credit Statute, 28 U.S.C. § 1738, requires federal courts “to give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.”
Migra v. Warren City School District Board of Education,
Delaware subscribes to the modern transactional view of claim preclusion.
Maldonado v. Flynn,
The modern transactional view of the doctrine ... does not require that the claim subsequently asserted be based on a same cause of action to be barred, but permits the doctrine to be invoked to bar litigation between the same parties if the claims in the later litigation arose from the same transaction that formed the basis of the prior adjudication ... The determination, therefore, whether the doctrine shall be invoked is now based on the underlying transaction and not on the substantive legal theories or types of relief which are sought. Under the modern rule, ordinarily, a transaction gives rise to only one claim regardless of the number of ways that the claim may be asserted.
Maldonado v. Flynn,
To determine, then, whether the plaintiff’s present action against the defendant Town of Blades is precluded by state law, requires a comparison of the operative facts underlying plaintiff’s federal claims, and his prior state court action. Meding’s federal causes of action rest on two events: his termination by the Town of Blades on May 12, 1980, and the allegedly false re *1097 ports appearing in the Seaford Leader on May 14, 1980. The events surrounding the Town Council’s termination of Meding form a common nucleus of fact with respect to each of his federal claims.
Plaintiff’s original complaint in the state court action merely sought accrued wages and benefits owed to the plaintiff as of April 14, 1980 along with two weeks severance pay. Thus, as originally filed, the state suit dealt with something entirely independent of the actual termination. Later, however, Meding amended his complaint to allege that “[pjlaintiff was illegally and unlawfully terminated from his employment [sic] Chief of Police of the Town of Blades” on or about April 14, 1980. D.I. 30:22, 23 (Motion to Amend filed October 28, 1980 and Order granting plaintiff’s motion entered November 7, 1980). This amendment raised the issue of the propriety of Meding’s termination squarely before the state court. Thus, the conclusion is inescapable that the underlying transaction in both actions is precisely the same.
Generally, a common underlying transaction in two separate actions is sufficient to bar a second suit if judgment has been obtained in the first. There are, however, notable exceptions to this general rule. The Restatement (Second) of Judgment § 26 & comment c (1980) recognizes one such exception where limitations on one court’s subject matter jurisdiction impairs the plaintiff’s opportunity to seek certain forms of relief that are obtainable in a second court. 6 This exception is of special importance in jurisdictions such as Delaware in , which law and equity are not merged because the rules underlying the transactional approach to preclusion are more consonant with a unified system of law and equity. See Restatement (Second) of Judgments § 25 comments f, i (1980); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4410 (1981). Although the need for such an exception in Delaware is fairly compelling, the Court must ultimately be guided by whether Delaware courts recognize such an exception in applying its doctrine of claim preclusion.
Defendant Blades contends there is no basis for inferring such an exception to the general rule of claim preclusion in Delaware because under 10 Del. C. § 1902, the plaintiff could have brought any equitable claims arising out of his Superior Court action in Delaware Chancery Court without initiating a second cause of action. 7 This argument is flawed in that it confuses two distinct issues. Although the enabling provision of 10 Del. C. § 1902 may permit the transfer of actions from courts lacking jurisdiction to courts of competent jurisdiction, such a provision does not resolve the essential issue presently before the Court, namely, whether state law precludes a separate action in equity after a judgment has been obtained in an action at law where both actions arise from a common transaction. While there is no authoritative declaration from Delaware’s highest court with respect to this issue, sufficient sources of state law exist from which to forecast Delaware law. 8 At least three considerations *1098 suggest that Delaware's highest court would permit a party seeking equitable relief to maintain a separate cause of action even though the party had obtained a final judgment at law with respect to claims arising out of the same underlying transaction.
First, Delaware courts have expressly endorsed the sections of the
Restatement
enunciating this exception.
See Maldonado v. Flynn,
Second, 10
Del.C.
§ 1902 provides little support for defendants’ position. The defendants contend that 10
Del. C.
§ 1902 requires a plaintiff to press all his claims for relief in a single action without regard to the subject matter jurisdiction of the state court in which he seeks to assert his claims and then to seek transfer of any part of the subject matter over which the original court lacks jurisdiction to an appropriate court. Not only is defendant’s interpretation unsupported by the statute’s literal wording, but the Delaware Supreme Court has repeatedly construed the statute’s purpose as essentially remedial, that is, to protect a plaintiff’s action from dismissal when he has sought relief in the wrong court.
See Wilmington Trust Co. v. Schneider,
Finally, contrary to defendant’s assertion, Delaware still steadfastly adheres to the separation of law and equity. Defendants argue that just as a Chancery Court may proceed to decide an entire controversy including questions of law once it obtains equity jurisdiction over a matter,
Wilmont Homes, Inc. v. Weiler,
Although the prior state court judgment obtained by Meding arose out of the same operative facts that form the basis of the claims he presently seeks to assert in federal court, the prior state court judgment precludes only subsequent claims in which the Superior Court had jurisdiction to award the relief which plaintiff presently seeks. Some of the remedies presently sought by plaintiff were available in Superior Court while others were not. Thus, the prior judgment’s preclusive effect on the present action is only partial.
Delimiting the precise scope of the prior judgment’s preclusive effect requires an analysis of the various forms of relief plaintiff presently seeks against the Town of Blades. Plaintiff seeks statutory damages including compensation for mental anguish, reinstatement or front pay, 10 back pay, and injunctive relief. 11 The Superior Court had subject matter jurisdiction over matters of common law and the concomitant power to award compensatory damages (what plaintiff refers to as “statutory damages”). Thus, Meding’s present claims arising from his termination are precluded insofar as they seek compensatory damages. 12 On the other hand, the prior state judgment is not a bar with respect to plaintiff’s claims insofar as he seeks equitable relief such as reinstatement because, under state preclusion law, a party’s equitable claims are not barred by a prior judgment of the Superior Court.
The difficult question is whether plaintiff’s claims for back pay and front pay are precluded by his prior state court judgment. Admittedly, under federal law, both back pay and front pay are regarded as equitable remedies.
See Gurmankin v. Costanzo,
Thus, Meding co.uld have sought past and future wages for his wrongful termination in Superior Court. In fact, Meding actually did seek both forms of relief in his state court action. The issue of lost wages up until the time of trial, September 8, 1981, was submitted to the jury. See D.I. 30:76 (extract from jury charge [page 181 of Superior Court trial transcript.] ). 14 The loss of all future wages also was raised in plaintiffs amended complaint. See D.I. 30:22. The demand for all future lost wages, howéver, was not included in the pretrial stipulation nor was it submitted to the jury. See D.I. 31:25 (Pretrial Stipulation).
Plaintiff contends that he faced a jurisdictional bar in his prior State Court action to maintaining his federal cause of action for lost wages because federal law characterizes compensation for lost wages as a form of equitable relief. Accordingly, plaintiff argues that the state court judgment should not preclude his civil rights claims for lost wages.
While plaintiffs argument raises a potentially thorny issue of state law regarding whether a jurisdictional bar exists to seeking back pay under § 1983 in a state court of common law jurisdiction, the Court cannot agree that that question is disposi-tive here. Even if such a jurisdictional bar existed, the Court predicts that Delaware’s highest court would nevertheless bar a second suit in equity arising from a common transaction when the particular form of relief sought by plaintiff was available on a slightly different theory of recovery in the Superior Court. Plaintiffs argument for a contrary proposition ignores the fundamental policy behind judicial doctrines of claim preclusion and the policy underlying the exception to the transactional view of claim preclusion on which plaintiff seeks to rely. Each policy figures prominently in Delaware case law.
In an early discussion of claim preclusion, Judge Rodney traced the foundation of that policy to society’s overriding interest in bringing legal controversies to an end.
Coca Cola Co. v. Pepsi-Cola Co.,
In this particular case, plaintiff relies on an exception to the transactional view of claim preclusion. In applying this exception, Delaware courts have underscored the crucial importance of a litigant’s opportunity to obtain a determination on the merits of his underlying claim.
See Hugh v. Trans-World Airlines,
Defendant Town of Blades argues that claim preclusion also bars the present action against the individual defendants because they could have been joined in the prior state court proceedings.
15
D.I. 29:13. As with any argument in federal court relying on the preclusive éffect of a state court judgment, the argument’s validity must be assessed in light of state law.
See Kutzik v. Young,
The individual defendants, in their official capacity, are entitled to the same protection afforded to the Town of Blades against relitigation of claims barred by the prior state court judgment because of the existence of privity between the individual defendants acting in their official capacity and the governmental entity on whose behalf they act.
See New Castle County v. Sterling Properties, Inc.,
Although plaintiff’s action is substantially barred against the individual defendants in their official capacity, the individual defendants in their individual capacity are not entitled to the benefits of claim preclusion.
Restatement (Second) of Judgments
§ 36(2) (1980);
cf. New Castle County v. Sterling Properties, Inc.,
2. Municipal Immunity Under § 1983
In
Monell v. Department of Social Services,
Plaintiff was discharged by a unanimous vote of the Town Council on May 12, 1980 during an executive session that was convened after a .regularly scheduled Town Council meeting for the sole purpose of considering Meding’s continued employment with the Town. When public officials, performing in a duly authorized capacity, take official action sanctioned by the municipality, there can be no question that the
Monell
standard has been satisfied.
16
See Owen v. City of Independence,
Blades’ argument that it is entitled to immunity under state law is deserving of only a brief comment. A state lacks authority to confer on a municipality immunity from liability under § 1983.
Martinez v. California,
In the absence of express directions from Congress, the Court has construed § 1983 consistently as prohibiting immunity unless the basis for immunity “was well-established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act.”
Owen v. City of Independence,
3. Plaintiffs Failure To Comply With The Notice Requirements Contained In The Town of Blades’ Charter.
Section 36 of the Charter for the Town of Blades provides that any suit for damages against the Town must serve notice on the Mayor within ninety days from the date of the injury giving rise to the *1103 plaintiff’s cause of action. 58 Laws of Delaware, Part 1, Ch. 34, § 36 (1971). 17 (An Act to Reincorporate the Town of Blades). There is no dispute that plaintiff did not notify the Mayor in accordance with the time limitations provided in the Town Charter. Defendant Town of Blades contends that plaintiffs failure to comply with this provision bars his federal cause of action under § 1983. 18
Section 36 is clearly inapplicable to the outstanding claim against the Town of Blades, since the claim is only one for reinstatement. Even if the notice provision were a statute of limitations, it is unclear whether it would apply to § 1983 actions. Although courts must look to the state law of limitations governing analogous causes of action when, as in the case of § 1983, Congress has not provided an applicable statute of limitations,
Board of Regents of the University of the State of New York v. Tomanio,
Section 36, however, is not a statute of limitations, but rather merely a notice provision. As such, and regardless of the Delaware state legislature’s intent, it applies exclusively to state causes of action. There is no basis under federal law to require a plaintiff seeking to maintain a claim under § 1983 to adhere to notice provisions as provided under state law.
Cf. Patsy v. Board of Regents of the State of Florida,
A Due Process Claims
Section 1983 makes deprivations of constitutionally protected interests under color of state authority actionable for damages and equitable relief. Plaintiff alleges that he was deprived of protected interests in property and liberty without notice or a hearing, and thus, in violation of the Due Process Clause of the Fourteenth Amendment. The alleged deprivations resulted from his discharge as an employee from a job in which he claims a property interest, and from public disclosure of the reasons *1104 for the discharge which he contends are false and violated his liberty interest in reputation. Defendant Town of Blades contends that no constitutionally protected interests of the plaintiff were affected by its actions, and therefore, plaintiff was not due any process. The individual defendants challenge solely plaintiffs allegation of a deprivation of liberty. Thus, before considering what constitutes due process of law, the Court must examine whether the defendants’ actions deprived plaintiff of constitutionally protected interests.
A. Meeting’s Property Interest
Any discussion of a constitutionally protected property interest must begin with the Supreme Court's explication of the concept in
Board of Regents v. Roth,
To have a property interest in a benefit, a person clearly must have more.... than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that supports claims of entitlement to those benefits.
Id.,
“A property interest in employment can ... be created by ordinance or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.”
Bishop v. Wood,
Defendant Town of Blades relies on § 22(a) of the Town’s Charter to argue that plaintiff had no property right under state law to continued employment on the Town’s Police Force. 19 According to the defendant, because the Town Council possessed the legislative power to remove the plaintiff at any time, his status was that of an at-will employee.
Plaintiff contests the applicability of § 22(a) for purposes of resolving whether he had a property interest in continued employment. Instead, he argues the question is controlled by an ordinance, An Ordinance Establishing A Personnel System for the Town of Blades, Delaware (“Personnel Ordinance”), adopted by the Town subsequent to the legislature’s approval of the Town’s Charter. The Personnel Ordinance is a comprehensive document that was promulgated for the purpose of establishing a uniform personnel system. D.I. 19A:4-29. The Ordinance classified all employees into three categories: excluded service, unclassified service and the classified service. Id. at 5. All those employees who do not fall within the express terms of the former two categories were automatically included in the latter category. Id. Meding, as a member of the police force, clearly fell within the classified service.
The protection afforded to members of the classified service was significant and encompassed the rights and privileges set forth in the remaining provisions of the Ordinance unless, by express exception or implication, protection was limited. Id. at 5 (Art. II sec. 6). The effect of the Ordi *1105 nance was to give employees with more than six months service to the Town “permanent status.” Id. at 7 (Art. IV sec. 1).
The declared policy of the Town, as expressed in the Personnel Ordinance, was to make employment of tenured employees subject only to “good behavior, satisfactory work performance, and availability of funds.” Id. at 4 (Art. 1 sec. 2(d)). This policy toward tenured employees was implemented in part by Article VI which discussed the types of disciplinary action and causes for such action. Id. at 10-12 (Art. VI). Significantly, disciplinary proceedings in the police force were explicitly singled out to emphasize that such proceedings should be disposed of in a manner consistent with the disciplinary procedures set out in Article VI. Id. at 10 (Art. VI sec. 2). The list of causes for which disciplinary action could be taken was not meant to be exhaustive. Id. at 11-12 (Art. VI sec. 5). Nevertheless, the list makes clear that disciplinary action could only be taken for cause.
Viewing facts in a light most favorable to defendants, the Court finds that Personnel Ordinance conferred on Meding a property interest in continued employment. First, the Personnel Ordinance is sufficient in and of itself to convey a property interest.
20
The Town's Charter empowering the Town to remove police officers “at any time” did not restrict the Town’s power to confer a property interest in employment. Nor is there any inconsistency
per se
between the Charter’s enumeration of powers and the Town’s adoption of the Personnel Ordinance. The Charter provision does not dictate the legal status enjoyed by the Town’s employees; rather, it merely authorizes the Town to remove officials under state law from the performance of their official duties. The Town remained free to grant employees an expectation interest in continued employment.
Cf. Perri v. Aytch,
B. Meding’s Liberty Interest.
In addition to the deprivation of his property interest in continued employment, the plaintiff alleges that the defendants deprived him of a liberty interest through public dissemination of the Town Council’s stated basis for its termination of the plaintiff. A newspaper article in the May 14, 1980 edition of the Seaford Leader 21 is the *1106 sole source of the material that allegedly deprived Meding of a liberty interest in reputation. Meding claims that the article repeats a false charge, namely, that he, Meding, had been absent from duty for unexplained reasons for more than three days.
Defendants challenge this claim on several grounds. Defendant Blades contends that Meding’s allegations constitute nothing more than a common law action for defamation in the belief that a claim cognizable for defamation cannot also form the basis of an action sounding in- constitutional tort. The Supreme Court has rejected the defendants’ argument repeatedly, recognizing that good name and reputation are fundamental attributes of the ordered concept of liberty.
See Wisconsin v. Constantineau,
The Court, however, is dubious whether the allegation of an “unexplained absence” is sufficiently stigmatizing to implicate plaintiff’s liberty interest. The Court’s own interpretation of the article does not suggest that plaintiff has been forced to bear a “badge of infamy” or even that plaintiff has been branded by the State in a degrading manner.
See Wisconsin v. Constantineau,
“Stigma to reputation alone, absent some accompanying deprivation of present or future employment, is not a liberty interest protected by the fourteenth amendment.”
Robb v. City of Philadelphia,
There is substantial evidence in the record refuting plaintiff’s allegation that his employment opportunities were affected by the charge that he was absent without excuse. Although plaintiff claims to have applied without success to over fifty police departments in and around Delaware, Meding was told by a knowledgeable Sussex County official the reason that he did not receive a job was that he “had filed suit against a municipality.” D.I. 34:1 (Deposition of Richard Meding). This was subsequently confirmed by a friend of Meding, Charles Vickers, a State Police employee, who contacted nine different people regarding- employment for his friend. In each instance, Vickers was told that plaintiff would not be hired because of the pending state court action. D.I. 19A:32 (Deposition of Richard Meding). 22 Plaintiff was *1107 subsequently hired by the Berlin, Maryland Police Department. D.I. 31A:10-11. Med-ing left that job voluntarily after deciding not to move to Maryland. Id. Following his termination from the Blades’ police force, Meding did obtain work from private employers such as a gunshop, Guns and Goodies, the Lackawana Detective Agency, and an automobile dealership. 23 See D.I. 34:2-3; D.I. 19A:56.
A moving party is entitled to summary judgment if the undisputed evidence shows that there are no genuine issues as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If the moving party carries its initial burden of demonstrating the absence of any genuine issue of material fact, then the burden shifts to the non-moving party to produce evidence in support of specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 55(e);
see Spirides v. Reinhardt,
C. Due Process Requirements
The Due Process Clause of the Fourteenth Amendment requires the state or those clothed in state authority, such as a municipality, to provide an individual with an opportunity for a hearing, absent extenuating circumstances, before depriving him of any significant property interest.
See Boddie v. Connecticut,
These principles collectively “require ‘some kind of a hearing’ prior to the discharge of an employee who had a constitutionally protected property interest in his employment.”
Cleveland Board of Education v. Loudermill,
— U.S. -, -,
At a minimum, however, due process requires that, prior to discharge, a tenured public employee be given “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present reasons, either in person or in writing, why proposed action should not be taken.” Id.
Given that Meding had a property interest in his job with the Town of Blades, he could not be terminated without the Town affording him due process. The Town failed to meet its constitutional obligations. Meding was given neither a pre-termination nor a post-termination hearing.. He never received notice that the Town Council would take up the matter of his resignation at their regularly scheduled meeting of May 12, 1980. More importantly, the defendants failed to provide Meding with notice that he stood accused of an unexplained absence in excess of three days. The failure to give Meding notice in this regard was particularly significant in that Meding had supplied the Town with, a medical excuse for taking a two week leave of absence in mid-April. If given an opportunity to respond with notice to the Town’s accusation, he may have been able to offer additional medical evidence explaining his absence.
The Town raises three different defenses to excuse, its failure to accord Med-ing the requisite notice and hearing to which he was entitled. First, the Town claims that Meding really was not terminated but that he resigned. Although Meding attempted to resign, the Town did not accept his submitted resignation. Instead, the Town chose to treat his alleged unexcused absences as an implicit resignation. A public employer cannot circumvent its constitutional obligations by recharacteriz-ing. an employee’s termination as a resignation. By formally rejecting Meding’s prof-erred resignation, and severing his employment relation with the. Town on terms to which plaintiff never gave his consent, the Town Council unequivocally terminated Meding’s employment.
The Town further contends that Meding’s actions in turning in his, gear signified a definite intent to resign and the Town Council could not do anything but consent. This argument ignores the fact that the Town actually went through the formality of rejecting his resignation. Nor can the Town complain that it would face intolerable uncertainty whenever an employee wished to resign. On the contrary, when a public employer refuses to accept an employee’s resignation and nevertheless wishes to discharge that employee, it can resolve all uncertainty by going through the formality of providing the employee with adequate notice of discharge and setting a time for a hearing. If the discharged employee fails to take advantage of a constitutionally sufficient procedure afforded to him, then he cannot claim subsequently that he was deprived of due process.
Alternatively, the Town claims its conduct at all times conformed to the Personnel Ordinance. According to defendant Blades, Meding was not entitled to the disciplinary procedures provided under Article VI because he was not terminated for disciplinary reasons, but rather for unexplained absences under Article XVI sec. 6. Regardless of the procedure Med-ing was entitled to under the Personnel Ordinance and regardless of what procedures are provided in the Personnel Ordinance for disciplinary actions, Meding was constitutionally entitled to certain minimum procedures which have already been described.
See Cleveland Board of Education v. Loudermill,
— U.S. at -,
Finally, the Town points to the special nature of a policeman’s duties which may require the Town to take emergency action in suspending such employees.
25
While the Town has properly set forth a recognized exception to the requirement of pre-termination hearing and notice, the Town neglects to realize the special responsibilities it faces in such extraordinary situations. When circumstances demand immediate suspension of an employee, the employee’s right to a speedy post-termination hearing is that much greater.
Barry v. Barchi,
In addition, when special circumstances justify immediate suspension, the public employer should act in a manner that minimizes the extent of his departure from the constitutional norm. Thus, although some justification may exist for immediately suspending an employee, the Town Council’s immediate suspension of Meding and his salary without some form of pre-termination process is less tenable.
26
See Hopkins v. Mayor & Council of Wilmington,
5. Qualified Immunity
The individual defendants have raised an affirmative defense of qualified immunity and claim that they are entitled to judgment as a matter of law. The necessity of extending immunity to public officials stems from a recognition that public officials cannot be expected to discharge their responsibilities without occasional mistakes and that on balance, the risk of occasional mistakes is far outweighed by the cost of public officials who are afraid to act in the public interest.
Scheuer v. Rhodes,
In view of this Court’s earlier determination that plaintiff was, as a matter of law, deprived of his right to due process in connection with his termination, and given that the legal basis for this decision “has been settled for some time now,”
Cleveland Board of Education v. Loudermill,
— U.S. -, -,
If, as in this case, “the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”
Harlow v. Fitzgerald,
The present controversy raises at least two instances of extraordinary circumstances that should be considered by a jury, or at least addressed by this Court after the parties have had an opportunity to brief the issue in greater detail. The first of these instances concerns plaintiff’s *1111 submission of his resignation, suggesting his willingness to voluntarily sever his employment relationship with the Town. The Town officials may have mistakenly believed that the submission of the plaintiffs resignation gave them greater latitude in dictating the terms on which Meding’s employment could have been severed without affording Meding any additional process. The second unusual feature in this case concerns the type of public officials involved. The Mayor of Blades and the individual members of the Town Council represent an extreme among public officials who perform their function on a part-time basis. The Town Council meets only once a month. Blades, a town of about seven hundred inhabitants, had only three full-time employees at the time of the events giving rise to this lawsuit.
Whether the resources available to a public official constitute an extraordinary circumstance within the meaning of Harlow is an unsettled question of law. In Harlow, the Supreme Court did not explain the kinds of circumstances that might be considered extraordinary. To weigh public resources available to an official in determining whether the public official should have known more about his legal obligations would undoubtedly undercut the objectivity of the Harlow standard. At the same time, imposition of a uniform standard for what the reasonable public official should know runs counter to the underlying policy behind qualified immunity, namely, the avoidance of huge penalties on the good faith efforts of local citizens arising from their participation in local government. 32 To some extent, the disparity in sophistication among public officials is minimized when the public official has access to legal counsel. Even this qualification, however, only serves to push the inquiry one step further, i.e., whether a public official is entitled to rely on mistaken legal advice. While the Court is confident that the defendants are not entitled to summary judgment on the issue of qualified immunity, this need not imply that summary judgment should automatically issue for the plaintiff. The task of shaping the issue of qualified immunity for trial is left to the parties.
6. Summary Of Issues For Trial
The plaintiff was deprived of his property interest in continued employment in violation of the Due Process Clause of the Fourteenth Amendment on the only surviving issue of liability presented in the Complaint. Thus, the issues for trial concern solely matters of relief. Only equitable remedies can be sought against the Town of Blades because of the prior state court action involving these two parties. Even the equitable remedies available to the plaintiff are somewhat limited because he will not be permitted to seek back or front pay. Thus, the availability of reinstatement as a remedy appears to be the sole triable question as between the plaintiff and the defendant Town of Blades. Reinstatement is a remedy which lies in the sound discretion of the trial court and will be considered only if the plaintiff is able to show that he would not have been discharged had he been afforded due process.
Skomorucha v. Wilmington Housing Authority,
The plaintiff can seek a wider range of remedies against the individual defendants because they were not parties to the previous state court action. Before reaching the -issue of relief, however, defendants will have an opportunity to argue to the jury that they are entitled to qualified immunity. If defendants establish that their actions did not stem from wanton conduct with respect to plaintiffs rights or a conscious effort to deny him due process, then plaintiff will be precluded from recovering any monetary damages from the individual defendants. On the other hand, the failure of the individual defendants’ affirmative defense would permit plaintiff to seek
*1112
recovery of nominal damages,
Carey v. Piphus,
Typically, more specific comments regarding the availability of compensatory damages would be unnecessary because the rules governing recoverable compensatory damages for a due process claim are roughly analogous to common law rules of damages.
Carey v. Piphus,
In accordance herewith, an order will issue.
Notes
.The parties have submitted nineteen docket items in the form of briefs and appendices in connection with their motions for summary judgment which incorporate the parties’ earlier submissions in connection with a motion to dismiss. Because of the number of submissions, the Court, for citation purposes, will refer to the relevant submission by its docket item (“D.I.”) number alone followed by the relevant page.
Plaintiff has made certain evidentiary objections to exhibits contained in the appendices supplied by defendant Town of Blades. The objections involve:
1. A newspaper article reporting remarks made by Chief Justice Burger, D.I. 30:80.
2. Minutes of Blades’ Council meeting of 5/19/80, D.I. 30:82 and D.I. 40:5.
3. Delaware State Hospital documents, D.I. 30:87 and D.I. 40:11.
4. Beebe Hospital documents, D.I. 30:98 and D.I. 40:25.
The plaintiff objects to the first item on grounds of relevancy and to the remaining items as hearsay.
*1094 Plaintiff concedes that items 2-4 fall within the hearsay exceptions set out in Federal Rules of Evidence 803(6) and 803(8), but contends that each record contains hearsay that does not fall within any hearsay exception, and thus, constitutes hearsay within hearsay. The Court cannot agree with the plaintiff. Although the records contain reports of statements made by other individuals, the statements contained in the reports were not offered in evidence to prove the truth of the matter asserted and therefore were not hearsay. Accordingly, plaintiff's objections on grounds of hearsay are overruled. The Court, in any event, notes that it has not relied on items 3 and 4 in its decision, and referred to item 2 only for a minor point.
Plaintiffs objection to item 1 on grounds of relevancy is sustained.
. The Town’s choice of terminology regarding the severance of Meding's employment with the Town has an unfortunate potential for confusion. According to the Town, there were two resignations: the "formal” one tendered by Meding which was rejected by the Town Council and the "implicit’’ one deemed to exist because of Meding’s allegedly unexplained absence. The merit of plaintiffs claim, however, does not hinge on the Town’s choice of terminology. The relevant substantive difference between these two types of resignations is that the "formal" resignation was at the request of the plaintiff, while the "implicit” resignation was on ■terms lacking plaintiffs consent. For purposes of clarification, the Court will refer to the "implicit” resignation throughout this opinion as a termination.
. Counsel for defendant Town of Blades conceded at oral argument that no formal notice was given nor was any attempt made to send notice to Meding's last known address. The separate Answers of the Town of Blades and the individual defendants, however, attempt to establish a legally cognizable defense, namely, that plaintiff left no forwarding address, and that plaintiff knew when the regularly scheduled Town Council meetings were held. See Complaint ¶ 10 (D.I. 1).
. Plaintiffs counsel reserved his right to subsequently argue to the Court that these incidents may be used as evidence at trial to establish the "willful” and "wanton” conduct of the defendants.
. In this opinion, the Court will adopt the Supreme Court’s preferred terminology for discussing res judicata and collateral estoppel. The Supreme Court has recently begun to use the term "claim preclusion” instead of res judi-cata to signify the preclusive effect of a prior judgment to foreclose litigation on matters or claims that should have been raised in an earlier suit. The term "issue preclusion” is used to encompass traditional notions of collateral es-toppel, namely, the effect of a judgment in foreclosing litigation of matters or issues that have been actually litigated and decided.
See Migra v. Warren City School District Board of Education,
. Plaintiff faced no bar in bringing his § 1983 in state court because federal courts’ jurisdiction is not exclusive over such claims.
See Martinez v. California,
. Section 1902 provides in part:
REMOVAL OF ACTIONS FROM COURTS LACKING JURISDICTION
No civil action, suit or other proceeding brought in any court of this State shall be dismissed solely on the ground that such court is without jurisdiction of the subject matter, either in the original proceeding or on appeal. Such proceeding may be transferred to an appropriate court for hearing and determination, provided that the party otherwise adversely affected, within 60 days after the order denying the jurisdiction of the first court has become final, files in that court a written election of transfer, discharges all costs accrued in the first court, and makes the usual deposit for costs in the second court....
.For a discussion of the methods federal courts should use in prognosticating state law, see generally
Jones & Laughlin Steel Corp. v. Johns-Mansville Sales Corp.,
. There are exceptional circumstances in which the Superior Court functions in an appellate capacity to review an award of equitable relief when so provided by statute. For example, 29
Del.C.
§ 5949 allows the district court to review an order of reinstatement of a state employee.
See State v. Berenguer,
. Although plaintiff does specifically ask for front pay, the Third Circuit recognizes front pay as an equitable alternative to reinstatement.
Goss v. Exxon Office Systems,
. Plaintiff concedes that he is not entitled to seek punitive damages against the Town of Blades.
See City of Newport v. Fact Concerts, Inc.,
. Although the plaintiffs attempt to obtain damages for mental anguish in his state contract action proceeding, see Appendix to Blades’ Opening Brief 55 (trial transcript) (sustaining defendants’ objections to questions regarding mental suffering); his inability to obtain the requested form of relief stemmed from theory of recovery advanced by plaintiff rather than any bar to recovering damages for mental suffering per se in Superior Court. Thus, plaintiffs present efforts to obtain relief that was readily available is foreclosed by claim preclusion.
. Ironically, federal courts have relied on the availability of back pay and future pay at common law to infer the existence of a similar remedy in civil rights actions causing the same sort of consequential injury.
Burt v. Board of Trustees of Edgefield County School District,
. See also Letter dated September 28, 1984 from defendant Town of Blades (attached copy of transcript of complete jury charge).
. The Court entertains some doubt whether defendant Town of Blades even has standing to raise this argument on behalf of the individual defendants. However, because resolution of the Court’s doubts with respect to Blades’ standing to raise this argument turns on the substantive merits of the defendants’ argument, namely, whether privity exists, the Court will address the defendants’ argument on its merits.
. The municipality could not be held liable for the allegedly false reports appearing in the newspaper without a showing that the story was leaked to the newspaper as part of an official act of some individual connected with the Town Council.
. Section 36 provides:
No action, suit or proceeding shall be brought or maintained against The Town of Blades for damages, either compensatory, or punitive, on account of any physical injury or injuries, death or injury of property by reason of the negligence, simple, gross, wilful, or wanton of the said The Town of Blades or any of its departments, officers, agents or employees thereof, unless the person by or on behalf of whom such claim or demand is asserted, within Ninety (90) days from the happening of such injury or the suffering of such damage, shall notify in writing the Mayor of The Town of Blades of the time, place, cause, character and extent of the injury sustained, so enrolled or damages suffered.
. Defendant Town of Blades also appeared to suggest that the plaintiff’s action exceeded the applicable statute of limitations. Generally 10
Del.C.
§ 8106 has been applied to actions involving wrongful termination.
See, e.g., Heritage v. Board of Education,
. Section 22(a) provides:
It shall be the duty of the Town Council to appoint a Police Force, consisting of a Chief of Police and such members or subordinates as the Town Council may deem wise. The Town Council shall, from time to time, make rules and regulations as may be necessary for the organization, government, and control of the Police Force. The Chief of Police and the members of the Police Force shall be subject to the direction of The Town Council and may be removed by the Town Council at any time.
58 Laws of Delaware, Part 1, Ch. 34 (1971) (emphasis added).
.
Heideck v. Kent General Hospital,
. The relevant portion of the article reads:
CHIEF’S RESIGNATION ACCEPTED
BLADES — Following a 50-minute executive session Monday night, the Blades Town Council accepted the resignation of Blades Police Chief Richard D. Meding.
Blades Town Clerk George P. Wroten, Jr. announced the council’s decision to accept the resignation.
Wroten said council members were based their decision on Section 6, Article 16 of the town personnel policy.
The article states that unexplained absences of three days or more will be deemed a resignation by a town employee.
MEDING HAD submitted a letter of resignation on April 11, but council members delayed accepting it until after they consulted the town attorney.
*1106 Meding had asked for severance pay and other considerations that council members weren’t certain he was entitled to.
D.I. 31 A: 12.
. Plaintiff did not raise any evidentiary objections to the incorporation of Meding’s statements regarding conversations he had with other parties into the record. In any event, the reported conversations qualify as admission by a party opponent, and thus would not constitute hearsay. Fed.R.Evid. 801(d)(2).
The Court need not address the legality of denying employment to a party because the party has filed lawsuits against another municipality. The Court is solely concerned with the claims against the defendants raised in the Complaint.
. The exact reasons for Meding’s departure from his job at Guns and Goodies are unclear. The Complaint alleges that Meding’s new employer, Robert Smith, was contacted by some of the individual defendants urging Smith to fire the plaintiff. Complaint jf 18 (D.I. 1); D.I. 31A:11 (Affidavit of Richard Meding). However, both Meding and his former employer indicated that Meding left voluntarily. D.I. 19A:39 (Deposition of Richard Meding); D.I. 30:64-66 (Affidavit of Robert Smith). Whatever the exact cause of Meding’s departure, plaintiff's attorney at oral argument disavowed any separate cause of action based on the incidents surrounding Meding’s employment with Guns and Goodies.
. The Court is mindful of the potential burden plaintiff faces in producing evidence to show "why" he was not hired. The Court, however, does not demand direct proof. Plaintiff could have offered indirect evidence. Of course, such indirect proof would be subject to rebuttal by direct evidence of the reason for not hiring a particular individual. Merely applying for a job that may or may not exist is not sufficient to show a genuine issue of fact once a defendant has adduced uncontested evidence that plaintiff was not hired for other reasons.
.To buttress its contention that Meding's continued employment constituted a danger to public safety requiring emergency action,' the Town of Blades has gone to considerable lengths in dredging up details regarding the emotional difficulties experienced by Meding requiring psychiatric counseling. See D.I. 30:86 (Turnabout Counsel Center letter of 3/16/84), 87 (Delaware State Hospital Documents), 98 (Beebe Hospital Documents). Such an argument obviously raises questions of fact that cannot be resolved on summary judgment. There are, however, certain difficulties with it. First, the Town Council was aware of the fact that Meding had received counseling on and off for a long period prior to his termination. Second, the Town does not point to a specific incident prior to Meding's termination that led it to believe he was dangerous. Finally, the fact that the Town Council was willing to wait almost thirty days after Meding submitted his resignation to take action, undercuts its contention that the necessity for immediate action precluded any possibility of a pre-termination hearing.
. Requiring the Town to continue paying salary to an employee after he has been suspended but before affording the employee some minimal form of process, does not prevent the Town from seeking restitution if the suspension turns out to be ultimately justified.
. The Town points, to a meeting between Med-ing and the Town Council, held one week after his termination, as evidence that the defendant properly discharged their constitutional obligations. However, it is undisputed that the meeting was held for the purpose of discussing severance pay and accrued benefits. The reason for Meding’s termination was not discussed, nor was Meding offered an opportunity to refute the charges against him. See D.I. 30:82.
. The Town of Blades has also argued on behalf of the individual defendants that subjecting public officials of Blades to liability in their
*1110
individual capacity will potentially discourage local residents from undertaking civic responsibilities. Legislative immunity which provides absolute immunity to legislators acting in an official capacity, also applies to individual members of a municipal council acting in a legislative capacity.
See Aitchison v. Raffiani,
.Although
Harlow
was not an action involving state officials under § 1983, the Supreme Court clearly indicated that the qualified immunity standard for a § 1983 action was essentially the same.
. Although Harlow modified the standard regarding qualified immunity articulated in Wood by expressly rejecting allegations of malice as a basis for withstanding summary judgment, Har- • low did not overrule the position advanced in Wood that a public official’s assertion of good faith does not, itself, automatically create a disputed issue of fact for trial.
. While the incidents giving rise to this lawsuit transpired in 1980, the law was well established at that time that public employers wishing to discharge employees having a property interest in their employment had to give those employees some procedural protections.
See, e.g., Board of Regents v. Roth,
. Obviously the more severe the infringement of an individual’s constitutional rights, the less tolerance courts should extend to the responsible public officials and the more uniform the standard governing immunity among public officials should be.