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Ohse v. Hughes

decided: April 1, 1987.

JAMES R. OHSE, PLAINTIFF-APPELLANT,
v.
MICHAEL HUGHES, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of Illinois. No. 83-2061-Harold A. Baker, Judge.

Author: Campbell

Before CUDAHY and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*

CAMPBELL, Senior District Judge.

Plaintiff-appellant James Ohse appeals the dismissal of his action brought in the United States District Court for the Central District of Illinois. Ohse claims he was wrongfully terminated from his position as an Illinois Adult Probation Officer and that the termination violated various rights which he was entitled to under the United States and Illinois Constitutions and Illinois state law. Seven individuals and entities are named as defendants in this action. Included are the Illinois Counties of Coles and Cumberland, Chief Probation Officer Michael Hughes, State's Attorney Nancy Owen, and Illinois Circuit Judges William Sunderman, Joseph Spitz and Paul Komada. The district court had jurisdiction over several counts in this suit pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Pendent jurisdiction was exercised over the state claims. Cross-motions for summary judgment were filed. The district court granted defendants' motion for summary judgment as to all the federal claim. Thereafter, pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) and Benson v. Cady, 761 F.2d 335 (7th Cir. 1985) the pendent state law claims were dismissed as well.

Factual Background

The relevant facts are as follows. On December 12, 1977 James Ohse was appointed as an Adult Probation Officer in an office headed by Michael L. Hughes, Chief Adult and Juvenile Probation Officer for Coles and Cumberland Counties, Illinois. In either late 1980 or early 1981 friction developed between Ohse and Hughes. There is some testimony that the friction was prompted in part by the promotion of a fellow employee, Vickie Starwalt, to the position of Deputy Chief Probation Officer. In any vent, by the spring of 1981 Ohse and Hughes spoke to each other only when necessary.

In April of 1982 Hughes approached Ohse about complaints he had received regarding Ohse. By May, 1982, the situation degenerated to the point where Hughes and Ohse had a confrontation at a staff meeting which was marked by name calling. On May 24, Ohse countered by conversing with two fellow employees about illegal and improper conduct at the Coles-Cumberland Probation Office. Ohse informed them that there had been alcohol consumed during business hours in the office by Hughes and others. Ohse also revealed that Hughes had directed employees to report meal expenses as mileage expenses for reimbursement purposes. The next day Hughes held a staff meeting and admitted the incidents of drinking on the job and the falsifying of mileage reports. Hughes stated, ". . . we'll all start fresh, we'll all start anew from this point." (See Hughes Deposition at p. 35). Soon thereafter Hughes revised the office policy manual and wrote a letter to Chief Circuit Judge Ralph Pearman indicating he intended to abide strictly by the rules therein. The Circuit Court has supervisory authority over the probation office, including the power to hire and fire personnel, pursuant to Ill. Rev. Stat. ch. 38, §§ 204-1 et seq. (see infra.)

In June, 1982, Hughes had the opportunity to evaluate Ohse's work performance. Ohse was rated as "adequate" to "exceptional." On August 11, Ohse complained about the evaluation in a memorandum to Hughes. Ohse especially wanted to know why he had been rated only "adequate" in certain areas.*fn1

On November 23, Ohse filed a 17 page grievance with Hughes pursuant to the established office grievance procedure. The grievance detailed their tumultuous personal history and questioned the veracity of Hughes' claim that he had received complaints about Ohse from employees at the State's Attorney's Office. Hughes responded to Ohse's grievance by meeting with three of the defendants in this case: Circuit Judges Spitz, Sunderman and Komada. Hughes asked the judges what he should do. They replied Hughes' evaluations were acceptable and nothing further need be done. Thereafter, on December 2, 1982, Hughes told Ohse his grievance lacked merit. On December 11, a dissatisfied Ohse took his grievance to Judge Pearman. Thereafter, on December 22, Ohse sent a memorandum addressed "To Whom It May Concern" to Pearman, the three defendant judges, selected County Board members and the Coles County States Attorney's Office. The letter alleged the following improper conduct from the Hughes-headed probation office: 1) misuse of mileage vouchers to cover meal expenses; 2) abuse of sick and vacation time; 3) misappropriation of money budgeted for office expenses; 4) abuse of authority concerning Hughes' obtaining of a hospital's records for personal use; 5) miscellaneous other violations such as the allowing of employees to sleep on the job and secretaries to do personal typing during business hours. Ohse's letter called for an investigation and the filing of criminal charges.

On December 27, defendant Nancy Owen, State's Attorney for Coles County, informed Ohse by letter that criminal charges would not be filed against Hughes. On the next day, December 28, Judge Pearman informed Hughes that he believed Hughes' defenses to the Ohse allegations were sufficient and that nothing further would be done. On January 3, 1983 Hughes suspended Ohse. He also requested Ohse's termination, alleging various acts of insubordination.*fn2 On January 6, Judge Pearman appointed defendant Judges Sunderman, Spitz and Komada to investigate Hughes' request to terminate Ohse. A hearing was held on February 1. On February 2, a written decision was issued terminating Ohse.

On March 16, 1983, Ohse filed the instant action in the district court. The district court broke down his various claims into four areas. First, Ohse alleged his termination violated his due process rights under the Fourteenth Amendment of the United States Constitution. He claimed he was deprived of property and liberty interests due to the manner in which he was terminated. Second, Ohse claimed his discharge violated his First Amendment rights to freedom of expression under the United States Constitution. Third, Ohse claimed he was denied his right to equal protection under the Fourteenth Amendment. Finally, Ohse asserted various claims under the Illinois Constitution and Illinois law. We shall discuss each claim as presented above.

I-Due Process Claims

A. Property Interest Claim

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) is the seminal case setting forth the current analysis to employ when ascertaining if a person has a property interest in a public sector employment position. In Roth, the Court recognized the now long-standing principle that a person may have a sufficient interest or expectation in a government benefit (see Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)) or a position of public employment (see Slochower v. Board of Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956)) to be deemed to have a property interest in that position safeguarded by the due process clause of the Fourteenth Amendment. When such a situation arises, summary termination or separation of the person from that interest is unconstitutional. Instead, a hearing or inquiry into the merits behind the proposed termination is necessary to meet Fourteenth Amendment due process requirements. This hearing ensures the person is separated from the entitlement only for good cause. When good cause is demonstrated by a separate and fair hearing, a person is deemed to have received all the process that he or she is due. In ascertaining whether a property interest attaches to a particular situation the Roth court stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined . . . . Property interest, 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 support claims of entitlement to those benefits.

92 S. Ct. at 2709.

Indeed, in Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976) the Court declared:

A property interest in employment can, of course, 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. (Footnotes omitted).

96 S. Ct. at 2077.

Turning to Illinois law, did Ohse have a legitimate claim of entitlement to his position as an Adult Probation Officer which would create a property interest as described above? We answer in the negative. In Levin v. Civil Service Commission of Cook County, 52 Ill. 2d 516, 288 N.E.2d 97 (1972), the Supreme Court of Illinois explicitly stated:

As to the status of a public employee, this court has held that a person has no property right in public employment. (People ex rel. Akin v. Kipley, 171 Ill. 44, 77, 49 N.E. 229; people ex rel. Akin v. Loeffler, 175 Ill. 585, 606, 51 N.E. 785; Elder v. Mall, 350 Ill. 538, 542, 183 N.E. 578). This court has likewise held that a public employee has no property right in public employment which falls within the protection of the due-process clause of either the State or Federal constitution. Pickus v. Board of Education, 9 Ill. 2d 599, 606, 138 N.E.2d 532; Jordan v. Metropolitan Sanitary Dist., 15 Ill. 2d 369, 155 N.E.2d 297.

288 N.E.2d at 100.

We also note the language of Ill. Rev. Stat. ch. 38, § 204-1 which stated in pertinent part during the relevant time pertaining to this lawsuit:

The circuit court of each of the several counties in this State may appoint a probation officer to act as such for and throughout the county to which he shall be appointed. The circuit court of any county may appoint such number of additional probation officers for such county as the court may deem to be necessary or advisable. Any circuit court may also, in its discretion appoint a chief probation officer, deputy chief probation officers, and supervisors, in addition to the number of probation officers appointed . . . . The probation officers shall serve as such from the date of their appointment, shall be subject to the orders of the courts appointing them, and removable in the discretion thereof by an order duly entered of record. (Emphasis added).*fn3

Ohse claims Ill. Rev. Stat. Chapter 38, § 204-5 mandates that he only be fired "if good cause existed for his termination." (Ohse brief, p. 10). Section 204-5 reads in pertinent part:

Any Chief Probation Officer shall have authority to suspend any Probation Officer under his supervision for a period of not exceeding thirty (30) days, but may not discharge, and it shall be the duty of such Chief Probation officer promptly to file charges against any Probation Officer so suspended by him, with the Court or Judges appointing such Probation Officer, and said Court or Judges shall thereupon investigate said charges and may hear evidence, and shall act thereon as the interest of justice and the good of the probation service may require. (Emphasis added).

We find Ohse's argument unpersuasive. The language of Levin explicitly rejects any notion that public employees in Illinois are presumed to have a property interest in their positions. Further, the language in section 204.1 supra clearly states probation officers serve at the discretion of the state circuit court. As Ohse himself points out in his brief, the rules of statutory construction dictate that words in a statute be given their plain and ordinary meaning. (Ohse Brief, p. 9). By invoking this rule of construction this court is lead to the inescapable conclusion that section 240-1 and Levin clearly indicate that Ohse had no property interest in his position at the probation office. Ohse's reading of section 204-5 as mandating his termination be for good cause only is (arguably) a reasonable interpretation, but not necessarily the only interpretation to be had from the language of the section.*fn4 Since the plain and explicit language of section 204-1 allows removal of Ohse at court discretion, we are unwilling to usurp the plain meaning of that language with Ohse's interpretation of section 204-5.

The Illinois Personnel Code at Ill. Rev. Stat. ch. 127, § 63b104a & c is supportive of this ruling. While recognizing Ill. Rev. Stat. ch. 127, § 63b1086.16 requires certain state employees be fired only for cause and only after notice and prior hearing, we note § 63b104a & c lists certain groups of employees as exempt from such treatment. "Employees of the courts" are included among the exempt groups.*fn5 Undoubtedly Ohse is an employee of the court, as the district court concluded. This point also nullifies Ohse's argument under Article VI, Section 18(b) of the Illinois Constitution for Ohse must consider himself to be a judicial officer of the Circuit Court in his position as Adult Probation Officer.*fn6

Definition of jurisdictions. There are hereby created three separate areas of personnel jurisdiction of the Department of Central Management Services, as follows:

(1) Jurisdiction A, with respect to the classification and compensation of positions in the State service.

(2) Jurisdiction B, with respect to the positions in the State service to which persons must hold appointments on ...


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