Lеslie G. SEELEY, Petitioner, v. BOARD OF COUNTY COMMISSIONERS FOR La PLATA COUNTY, Colorado; Alvin Brown, Sheriff of La Plata County, Colorado; and Sheriff‘s Department of La Plata County, Colorado, Respondents.
No. 89SC129.
Supreme Court of Colorado, En Banc.
May 14, 1990.
As Amended on Denial of Rehearing July 9, 1990.
791 P.2d 696
Justice VOLLACK
B.
On remand the trier of fact will also have to consider whether the procedures employed by the school board in terminating Dickey violated the procedural due process protections of the United States Constitution.
In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 540-41, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985), the Supreme Court explicitly rejected the notion that “[w]here the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant ... must take the bitter with the sweet.‘” (Quoting Arnett v. Kennedy, 416 U.S. 134, 153-54, 94 S.Ct. 1633, 1644, 40 L.Ed.2d 15 (1974) (plurality opinion)). The Court held that “the Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure аre distinct.” Id. 470 U.S. at 541, 105 S.Ct. at 1493.
“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.‘” Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)). “[T]he root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original)); but cf., Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 1787, 100 L.Ed.2d 265 (1988) (“[a]n important government interest accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation“). “Some kind of hearing” is constitutionally required рrior to the discharge of an employee who has a constitutionally protected property interest in his or her employment. Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493; Roth, 408 U.S. at 569-70, 92 S.Ct. at 2705; Sindermann, 408 U.S. at 599, 92 S.Ct. at 2698. In Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493, the Court held that terminated employees with a constitutionally protected property interest in continued employment are entitled to “some form of pretermination hearing” based on a “balancing of the competing interests at stake.” See id. at 543-46, 1493-95 (discussion of required formality and procedural requisites of a constitutionally sufficient hearing).
The judgment of the court of appeals is affirmed and the case is remanded for further proceedings.
Sander N. Karp, Denver, for petitioner.
Shand, McLachlan & Newbold, P.C., Michael E. McLachlan and Martha T. Minot, Durango, for respondent Alvin Brown, Sheriff of La Plata County, and Sheriff‘s Dept. of La Plata County.
Justice VOLLACK delivered the Opinion of the Court.
We granted certiorari in this case to review the court of appeals decision in Seeley v. Board of County Commissioners, 771 P.2d 21 (Colo.App.1989). The court of appeals held that a policy manual issued by former La Plata County Sheriff Alvin Brown did not preclude the sheriff from exercising his statutory prerogative to terminate the petitioner‘s employment. The court of appeals also held that the sheriff was not estopped from denying reinstatement to petitioner by petitioner‘s reliance on the policy manual. We affirm.
I.
The petitioner, Leslie G. Seeley (Seeley), filed a complaint in La Plata County District Court аgainst defendants the Board of County Commissioners for La Plata County (the Board), former La Plata County Sheriff Alvin Brown (Sheriff Brown), current La Plata County Sheriff Bill Gardner (Sheriff Gardner), and the La Plata County Sheriff‘s Department (the Sheriff‘s Department),1 alleging a claim for relief for breach of contract.
The complaint alleges that prior to June 6, 1985, Seeley was employed as a deputy sheriff for the Sheriff‘s Department under the supervision of Sheriff Brown and the Board. Seeley alleges that on June 5, 1985, he was unjustly accused of assaulting an inmate at the La Plata County Jail. Seeley was placed on administrative leave with pay on June 6, 1985, pending the outcome of an investigation conducted by the district attorney and the Colorado Bureau of Investigation arising out of Seeley‘s alleged assault of the inmate. On June 21, 1985, Seeley was given written notice of his suspension without pay pending the filing of criminal charges. Sheriff Brown gave Seeley written notice of his termination on October 18, 1985. The termination notice stated that after a preliminary hearing on October 8, 1985, the district court found probable cause that Seeley committеd the assault, and bound the case over for trial. The termination notice also set forth the applicable provisions of the Sheriff‘s Policy and Procedure Manual.2 Seeley was acquitted by a jury on December 13, 1985.
Seeley alleges that at all times he followed the rules, regulations, and policies of the Sheriff‘s Department, and that in terminating him Sheriff Brown breached the contract of emрloyment embodied in the rules, regulations, policies, and manuals of the defendants. Seeley specifically alleges that Sheriff Brown terminated him in violation of an employee manual promulgated by Sheriff Brown which contained disciplinary and termination procedures. Seeley alleges that the employee manual established an impliеd contract between Seeley and Sheriff Brown, which Sheriff Brown breached by terminating Seeley. Seeley also alleges that the manual contained a promise that Seeley would only be discharged for cause, that he relied on that promise to his detriment, and that Sheriff Brown breached that promise.
The Board filed a motion to dismiss the complaint pursuant to
II.
Seeley argues that under these facts he has stated a claim for relief for breach of implied contraсt. We disagree.
In Colorado, an employee hired for an indefinite period of time is an “at will employee” whose employment “may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action.” Adams County School District v. Dickey, 791 P.2d 688, 691 (Colo.1990); Continental Air Lines v. Keenan, 731 P.2d 708, 711 (Colo.1987); Johnson v. Jefferson County Bd. of Health, 662 P.2d 463, 471 (Colo.1983). A local government entity may limit its power to terminate its employees if it possesses the requisite statutory authority to do so. Dickey, at 691; Johnson, 662 P.2d at 471. A local government entity possesses the requisite statutory authority to limit its power to terminate employees if that authority is expressly conferred, or is an incidental power reasonably necessary to carry out an express power. Dickey, at 690 (quoting Johnson, 662 P.2d at 471). A local government entity does not possеss the requisite authority if the local government‘s exercise of that authority would “forbid that which the state has explicitly authorized.” Dickey, at 690; see also 1 C. Antieau, Municipal Corporation Law § 5.37 (1983). In Dickey, at 691-93, we hold that school boards are authorized to limit their power to dismiss personnel by statutory provisions which give school boards the power “[t]o discharge or otherwise terminate the employment of any personnel,” and adopt “written policies, rules and regulations” on a variety of subjects related to employment, promotion, and dismissal practices.
In this case Sheriff Brown‘s power to appoint and discharge deputy sheriffs is defined by
The plain language of
The decision in Seeley, 654 F.Supp. 1309, was the result of Seeley‘s action in federal court basеd on the facts underlying the present case. Seeley‘s complaint in the United States District Court for the District of Colorado alleged causes of action for breach of contract and deprivation of property without due process of law in violation of the fourteenth amendment to the United States Constitution and
Our interpretation of
Sheriff Brown did not possess the statutory authority to limit his power to discharge Seeley “at his pleasure.” Johnson, 662 P.2d at 471; but cf. Dickey, at 692. The broad language of
Because Sheriff Brown was not authorized to limit his power to discharge Seeley, Seeley cannot state a claim for relief for breach of implied contract. Johnson, 662 P.2d at 471. Seeley cannot enforce the terms of a contract into which Sheriff Brown had no power to enter. Id.; Zatkin v. Bank of the Commonwealth, 163 Mich.App. 171, 175, 414 N.W.2d 371, 373 (1987); see also 10A E. McQuillin, Municipal Corporations § 29.111, at 96 (3d ed. 1990); but cf. Dickey, at 692.
III.
Seeley argues alternatively that, based on disputed material issues of fact, he has stated a claim for relief under the theory of promissory estoppel. We disagree.
The district court had before it Sheriff Brown‘s three memos to Seeley informing Seeley of his placement on administrative leave, his suspension and his termination. The district court also had before it the relevant provisions of the employment manual and Seeley‘s affidavit. Seeley and Sheriff Brown do not dispute the contents of the employment manual, or that Seeley was discharged after a district court found probable cause that he assaulted a prisoner at the county jail. Seeley argued in his memorandum in opposition to the defendants’ motion to dismiss that by dismissing him Sheriff Brown breached his promise to only discharge Seeley for cause. The record does not contain disputed issues of materiаl fact, and establishes that Seeley was discharged in accordance with the provisions of the manual. See also Seeley, 654 F.Supp. at 1314 (noting in passing that Sheriff‘s Department‘s compliance with manual‘s findings requirement made Seeley‘s implied contract claim meritless).
Seeley is not entitled to state a claim for relief under a promissory estoppel theоry because Sheriff Brown was not authorized to limit his own power to discharge deputy sheriffs at his pleasure. A party cannot state a claim for relief under a theory of estoppel against a state or local government entity on the basis of an unauthorized action or promise. Edwards v. Guthner, 106 Colo. 209, 211, 103 P.2d 6, 7 (1940); Smith v. Stapleton, 105 Colo. 565, 570, 100 P.2d 162, 164 (1940); Johnson v. Board of County Comm‘rs, 676 P.2d 1263, 1265 (Colo.App.1984); Van Cleave v. Board of County Comm‘rs, 33 Colo.App. 227, 232, 518 P.2d 1371, 1374 (1973); Abbott v. Harris, 610 F.2d 563, 564 (8th Cir.1979); Wilson v. Southeastern Pa. Transport. Auth., 709 F.Supp. 623, 626 (E.D.Pa.1989) (“an act that is illegal because of a failure to follow the correct procedure may be subject to estoppel; an act that the corporation could not legally perform under any circumstances is not subject to estoppel“); Genesco Entertainment v. Koch, 593 F.Supp. 743, 753 (S.D.N.Y.1984); Chesapeake Bay Village, Inc. v. Costle, 502 F.Supp. 213, 227 (D.Md.1980). Therefore, Seeley cannot state a claim for relief under a theory of promissory estoppel. Cf. Lindemuth v. Jefferson County School Dist., 765 P.2d 1057, 1059 (Colo.App.1988).3
Because Seeley сannot state a claim for relief for breach of implied contract or promissory estoppel, we affirm the judgment of the court of appeals.
MULLARKEY, J., specially concurs, and LOHR, J., joins in the special concurrence.
Justice MULLARKEY specially concurring:
The majority holds that under
I am authorized to state that Justice LOHR joins in this speсial concurrence.
Notes
All members shall observe and obey all laws and ordinances, all rules and policies of the department and all General or Special Orders of the Department or Divisions thereof. In the event of improper action or breach of discipline, it will be presumed that the member was familiar with the law, rule or policy in question.
Section V(A)(7) of the manual provided that:The existence of facts establishing a violation of the law or ordenance [sic] is all that is necessary to support any allegation of such as a basis for a charge under Section VII. It is not necessary that a formal charge be filed or sustained.
Section VII(B) of the manual identifiеs four approved disciplinary actions within the Sheriff‘s Department, which are reprimand, suspension without pay for a period of no more than thirty working days, demotion, and dismissal. Subsection VII(B)(2) provides that “[t]he type of disciplinary action chosen shall be appropriate to the seriousness of the violation.”