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BARA v. AURORA CIV. SER. COM'N OF CITY OF AURORA

November 15, 1983

ROGER L. BARA, DAVID E. CAMIC, VICTOR GODINEZ, DANNY HORNBACK, FRANK MEXIN, BILL POWELL, ANTHONY C. RUSSO, JOHN P. RYAN GERLAD L. SOOS, JOSEPH L. STRATMAN, AND DAVE TORRES, PLAINTIFFS,
v.
AURORA CIVIL SERVICE COMMISSION OF THE CITY OF AURORA, ILLINOIS AND DAVID E. CHRISTENSEN, CHIEF EXAMINER OF THE AURORA CIVIL SERVICE COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

This case presents the question whether a group of policemen have either a liberty or property interest of a constitutional dimension in certain procedures used to establish a ranking of policemen for promotion within the Aurora, Illinois, Police Department. We conclude that they do not.

I.

Plaintiffs are members of the Aurora police force. Each of them has been placed upon the 1983 certified promotion eligibility list for the rank of either sergeant or lieutenant. The Department uses promotion eligibility lists for its promotions and develops new lists every two years. Each person on a list is given a score. The Department makes its promotions based on these scores. Each policeman's score is based on three differently weighted factors: a written examination (50%), seniority (20%), and a "promotability factor" (30%).

It is the derivation of the promotability factor which is at issue here. From the complaint it appears that prior to the 1983 eligibility list this factor was based on the results of an oral examination and an evaluation of a policeman's work performance by an immediate supervisor. In an April 9, 1982, "general bulletin" the defendant Civil Service Commission, through its director, defendant Christensen, announced that a promotion board comprised of the police chief and bureau commanders would assign a promotability score to each policeman seeking advancement. The focus of the promotion board's inquiry was to be the ability of a person to fill a position of higher rank, rather than the individual's past performance. Every policeman in the Department was to be assigned to a "rater." These raters were to be called before the Promotion Board to advise the Board of the status of the policemen seeking promotion. According to the bulletin the use of the Promotion Board would "equalize the top, low, and average scores across different shifts and bureaus." The promotability factor for the 1983 lists was apparently derived in accordance with these procedures for all Aurora policemen seeking promotion, including the plaintiffs.

The Rules and Regulations of the Aurora Civil Service Commission read in part that:

  All advancements shall be determined by
  competitive examination and shall be open to
  employees qualified for "promotion to a
  particular position. Promotions shall be made
  from promotional lists in the manner prescribed
  by state statutes, such lists to be compiled on the
  basis of fair examination, work performance, and
  oral examination.

Aurora Civil Service Commission, Rules and Regulations, ch. 6, § 6.01, subpart B (emphasis added). Plaintiffs claim that this provision gives them both property and liberty interests under the due process clause of the Fourteenth Amendment, interests that were infringed upon by defendants' failure to use oral examinations and evaluations of work performance by immediate supervisors when determining the plaintiffs' promotability factor. Plaintiffs also claim that the new method of computing the promotability factor denied them equal protection vis-a-vis police promotional applicants of prior years. They make two additional claims which we do not consider at this time.*fn1 Plaintiffs brought this action under 42 U.S.C. § 1983 and seek a declaratory judgment that the current promotional lists used by the Aurora Police Department have been unconstitutionally derived, an injunction prohibiting defendants from making promotions from the lists, and actual and punitive damages. Defendants have moved for dismissal.

II.

The Fourteenth Amendment prohibits the state from depriving an individual of life, liberty or property without due process of law. Courts have employed a two-step analysis when assessing due process claims. First, plaintiffs must identify a life, liberty or property interest which has been affected by state action. After plaintiffs have established the existence of such an interest the court then considers what procedures are required before the state can deprive the plaintiffs of the interest and whether the defendants have failed to employ the necessary procedures before doing so. Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).

The boundaries of constitutionally recognized property interests are neither fixed nor clear. The Supreme Court has stated that:

  [P]roperty interests subject to procedural due
  process protection are not limited by a few
  rigid, technical forms. Rather "property" denotes
  a broad range of interests that are secured by
  "existing rules or understandings." A person's
  interest in a benefit is a "property interest"
  for due process purposes if there are such rules
  or mutually explicit understandings that support
  his claim of entitlement to the benefit. . . .

Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972) (quoting from Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). It is well established that "a property interest can be created through a statutory entitlement, the operation of institutional common law, or through the principles of contract law." Vail v. Board of Education of Paris Union School Dist., 706 F.2d 1435, 1437 (7th Cir. 1983). Courts must look behind labels and decide whether a claimed interest is property in the functional sense. Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). For example, well-established patterns or mutual understandings in the nature of an implied contract may be the basis of a property interest. Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 700, 58 L.Ed.2d 717 (1979). The existence of a property interest is determined primarily by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).

The analysis of the existence of a liberty interest parallels but is not exactly the same as that for property interests. Jago v. Van Curen, 454 U.S. 14, 17-23, 102 S.Ct. 31, 33-36, 70 L.Ed.2d 13 (1981) (per curiam). The plaintiff must show that a claimed liberty interest is rooted in state law, a well-established understanding between the parties, or a course of conduct which creates substantial limits on the discretion of state officials. It is clear that no person can be arbitrarily deprived by the government of liberty ...


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