Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 71 C. 3005 RICHARD W. McLAREN, Judge.
Fairchild and Cummings, Circuit Judges, and Grant, Senior District Judge.*fn*
GRANT, Senior District Judge.
Plaintiffs appeal from an order denying their claim for "a written procedure for collective bargaining and the processing of grievances in relation to hours, wages and working conditions. . . ." We reverse.
The plaintiffs-appellants in this action for declaratory and injunctive relief are the Confederation of Police ("COP") and several of its officers. COP is an employee organization consisting of the majority of the sworn members of the Chicago Police Department in the patrolman classification. Approximately 6,000 of Chicago's 10,000 active patrolmen are among the COP's 6,200 paying members.
The patrolmen's basic concerns pertain to adverse job actions against them short of discharge. Chicago patrolmen are subject to changes in geographic assignment and work schedules without, they claim, effective explanation or review. They are also subject to denials of proposed vacation schedules and leaves of absence, and to demotions which may result in a loss of pay to the patrolman in excess of $1,000 per year.*fn1 Such demotions may apparently be based upon efficiency reports prepared every six months by a patrolman's superior. The patrolmen maintain that such reports are not shown to the officer affected, and that the officer has no effective opportunity to question the accuracy of the reports or to raise countervailing considerations. The patrolmen also suggest that demotions may be made on the basis of their actions within COP.*fn2
Appellants relied upon two basic arguments in the district court, and they reassert them here. First, they maintain that, inasmuch as collective bargaining rights and grievance procedures have been extended to the nonacademic employees of the Chicago Board of Education and to the civil service employees of the Chicago Library System, the defendants' failure to establish such procedures for, and to extend such rights to, patrolmen is claimed to constitute a violation of the equal protection clause of the fourteenth amendment. Secondly, appellants maintain that due process requires that such rights and procedures be extended to them.
In Confederation of Police v. City of Chicago, 382 F. Supp. 624 (N.D.Ill. 1974), the district court held that police have no "constitutional (due process) right to a grievance procedure or to make collective bargaining mandatory", in support of which the court cited several collective bargaining cases.*fn3 The court then addressed the equal protection claim. The district court found that the organization of the Chicago Board of Education was so dissimilar to that of the Police Department that no valid comparison could be drawn for equal protection purposes. Accordingly the court indicated that the operations of the Chicago Library Board provided the only conceivable basis upon which it could find an improper classification among civil service employees of a like nature. Even with respect to library personnel, the court noted that there may have been no involvement of the Mayor of Chicago in negotiations. Nonetheless, the district court went on to address the equal protection claim, holding first that it is no violation of the equal protection clause for the legislature to permit collective bargaining with some entities and not with others. The court further held that there is a rational basis for distinguishing between police officers and library workers in extending collective bargaining rights: because the police department is a quasi-military organization, "it would be improper for police officers to begin questioning the orders of their superiors at the time they are issued." The district court accordingly dismissed the complaint.
The district court seemed to tacitly presume that the patrolmen sought a unitary package of relief - collective bargaining rights and a written grievance procedure - and that they were either entitled to the full package or to nothing at all. We disagree. The issues involved in the demand for a grievance procedure differ greatly from those involved in the demand for collective bargaining rights, and we shall treat them separately here.
We turn first to the due process rights of policemen to a written grievance procedure regarding adverse job actions short of discharge.
Any consideration of the due process rights of public employees must begin with an analysis of Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Roth dealt with the nonrenewal of the contract of a nontenured teacher; Perry dealt with nonrenewal of the contract of a teacher who could point to a policy of the state school which vested him with de facto tenure. In Roth the Supreme Court held that the nontenured teacher was not entitled to a hearing on his discharge unless he could show that the decision not to rehire him somehow deprived him of an interest in "liberty," or that he had a "property" interest in continued employment. In Perry, the Court held that the de facto-tenured teacher had shown such a "property" interest, and thus was entitled to a hearing when the state school decided not to rehire him.
The district court held that because the case at bar deals with conditions of employment rather than termination of employment, Perry (and, by implication, Roth) did not apply. We do not believe that these landmark cases are limited by their facts.
The distinction between Roth and Perry is not difficult to draw. The interest of the Roth teacher in his employment was created solely by his contract. If "interest" is defined as something emanating from the state through its agencies, the Roth teacher had no further interest in his employment upon the expiration of that contract. The Perry teacher, however, had an interest which outlived the one-year life of his contract: the de facto tenure policy created by the state school vested him with a continuing ...