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Amendola v. Schliewe

decided: April 12, 1984.

JAMES AMENDOLA, PLAINTIFF-APPELLANT,
v.
RICHARD SCHLIEWE, CHARLES RUDE, AND WAYNE KOESSL, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 892 -- Myron L. Gordon, Judge.

Bauer and Coffey, Circuit Judges, and Celebrezze, Senior Circuit Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge.

The plaintiff James M. Amendola commenced this action under 42 U.S.C. §§ 1983 and 1985 against the defendants, Wayne Koessl (Chairman of the Kenosha County Board of Supervisors), Richard Schliewe (the Kenosha County Assessor), and Charles Rude (the personnel director for Kenosha County). The plaintiff claims that he was deprived of his constitutional right to due process of law under the Fourteenth Amendment when his employment as a county assessor was terminated without prior notice and hearing. The plaintiff asserts that pursuant to Wis. Stat. § 70.99 (1971) he had an enforcible expectation of continued employment and was thus entitled to due process of law in the termination procedure. He also argues that the defendants should be estopped from denying his tenured status. At trial, the district court found that Wis. Stat. § 70.99 (1971) did not provide James Amendola with an enforcible expectation of continued employment and therefore dismissed his complaint. We affirm.

I.

James Amendola was employed as an appraiser by the City of Kenosha from October 4, 1961 to December 31, 1972. During that time, he passed two city civil service examinations and obtained tenure as a city employee. In August of 1972, Kenosha County adopted a county-wide assessment system pursuant to Wis. Stat. § 70.99 (1971).*fn1 Section 70.99 permitted counties to establish the office of county assessor upon adoption of a resolution or ordinance with an approving vote of at least two-thirds of the county board. The city, town and village assessors in counties that adopted a county-wide assessment system were to continue in office for the purposes of completing the current year's assessment. The county assessor would then assume assessment responsibility for all subsequent years, and the prior city, town and village assessors would be divested of that responsibility. Wis. Stat. § 70.99(8) (1971).

To be eligible for employment on the staff of the county assessor under § 70.99, job applicants were required to pass a state administered comprehensive examination related to the work of a county assessor. An exception was made, however, for those persons who had been city, town or village assessors prior to the adoption of the county-wide system in their respective communities. Those persons having previous municipal assessor experience could be hired "without prior examination," but were required to pass the state examination within three years of their employment in order to retain their position with the county. In addition, § 70.99 provided that persons who had been city, town or village assessors and were also previously under civil service could retain their position with the county assessor without ever being required to pass the state examination.*fn2 Along with the provisions that permitted the hiring and retention of assessors without prior examination, the statute expressly provided for the means of obtaining tenure:

"Any person who successfully passes such civil service examination shall thereafter have indefinite tenure of the same kind as that provided for the county assessor in sub. (1)."

Effective January 1, 1973, Amendola was employed by the Kenosha County Assessor's office where he performed essentially the same functions as he had in his prior position with the City of Kenosha. Since Amendola had been under civil service as a city employee, he was not required, under the terms of Wis. Stat. § 70.99 (1971), to take the state certification examination to be hired or retained as an employee of the county assessor. It was stipulated that Amendola never took the state certification examination for tax assessors.

On May 25, 1979, the plaintiff met with Mr. Koessl (Chairman of the Kenosha County Board of Supervisors), Mr. Schliewe (County Assessor for Kenosha County), and Mr. Rude (Personnel Director for Kenosha County), to discuss his employment with the county. Following that meeting, Amendola was terminated without prior notice or hearing.

At the plaintiff's request, a hearing was held on June 12, 1979, before the zoning committee of the Kenosha County Board of Supervisors to determine the propriety of his termination. Based in part on the advice of Kenosha County Corporation Counsel that the plaintiff was a tenured employee who was entitled to prior notice and a hearing before dismissal, the zoning committee voted unanimously to reinstate the plaintiff with full backpay and no loss of benefits. In accordance with that decision, Amendola was reinstated effective June 13, 1979, and received full backpay. He continued to be actively employed by Kenosha County until January 26, 1980, when he took a disability leave of absence. He voluntarily resigned a year later, on January 30, 1981.

Amendola commenced this suit in September of 1980 alleging that the absence of a pre-termination notice and hearing deprived him of his constitutional right to due process of law in the discharge procedure. The plaintiff maintains that he had tenure in his position with Kenosha County by virtue of his tenured status in his previous employment with the City of Kenosha and the provisions of Wis. Stat. § 70.99 (1971). In essence, Amendola argues that since the statute recognizes the qualifications of employees with the most job experience by giving them a preference in hiring and exempting them from the requirement of passing the state examination to retain their positions, it would be absurd to interpret the statute as denying tenure only to the most experienced employees. According to Amendola, it is implicit in Wis. Stat. § 70.99(1) and (3) that once the decision is made to retain an employee in the plaintiff's class (an individual with municipal experience and previously under civil service), the employee should be accorded tenure status without the requirement of an examination. He also argues that the defendants should be estopped from denying his tenured status.

The liability issue was tried to the district court on stipulated facts. Based on its interpretation of § 70.99 (1971), the court held that the plaintiff had no enforcible expectation of continued employment under Wisconsin law and, therefore, was not entitled to the procedural protection of the Fourteenth Amendment's Due Process Clause at the time his ...


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