Bowers v. Town of Smithsburg ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS J. BOWERS,
Plaintiff-Appellant,
v. No. 98-1038
TOWN OF SMITHSBURG, MARYLAND,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-97-3304-L)
Argued: October 29, 1998
Decided: February 5, 1999
Before WIDENER and MURNAGHAN, Circuit Judges, and
WILSON, Chief United States District Judge for the
Western District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Paul Benedict Weiss, MARTIN & SEIBERT, L.C., Mar-
tinsburg, West Virginia, for Appellant. Daniel Karp, ALLEN, JOHN-
SON, ALEXANDER & KARP, Baltimore, Maryland, for Appellee.
ON BRIEF: Lewis C. Metzner, Hagerstown, Maryland, for Appel-
lant. Denise Ramsburg Stanley, ALLEN, JOHNSON, ALEXANDER
& KARP, Baltimore, Maryland; Edward L. Kuczynski, KUCZYNSKI
& KUCZYNSKI, P. A., Hagerstown, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In August of 1997, the Mayor of the Town of Smithsburg, Mary-
land, fired Thomas Bowers from his position as Chief of Police. Bow-
ers sued for reinstatement and damages under 42 U.S.C. § 1983(1994), claiming that the Town deprived him of a property interest in
public employment in violation of the Due Process Clause of the
Fourteenth Amendment. He claimed that he had a property interest
because of article 23A, section 2(b)(25) of the Maryland Code, which
grants municipal legislative bodies the power to remove appointed
officials for cause after notice and a hearing. See Md. Ann. Code art.
23A, § 2(b)(25) (1996). Bowers argued that section 2(b)(25) estab-
lishes the exclusive method for removing appointed municipal offi-
cials. The District Court granted the Town's motion for summary
judgment. See Bowers v. Town of Smithsburg, 990 F. Supp. 396 (D.
Md. 1997). It found that the Town police chief is an at-will employee
whom the Mayor is empowered to remove without cause and without
a hearing, and that section 2(b)(25) simply details when and how a
municipal legislative body is empowered to remove an appointed
municipal employee. See id. at 401. We agree and affirm.
I.
On September 7, 1997, the Town of Smithsburg hired Bowers as
a Chief of Police. The Town's charter provided that the "mayor, with
the approval of the council, shall appoint the heads of all offices,
departments, and agencies...." See Smithsburg, Md., Charter § 31-
19(b) (1957), reprinted in Pub. Local L. Wash. County (1970 & Supp.
1979) at 134-6. Although it limited the Mayor's ability to hire depart-
ment heads, the Town's charter granted the Mayor the power to fire
appointed officials without cause. See id. ("All office, department,
and agency heads shall serve at the pleasure of the mayor."). In
August of 1997, the Mayor, Mildred Myers, exercised this power and
2
fired Bowers.1 The Mayor did not give Bowers prior notice or a hear-
ing. Shortly after his dismissal, Bowers filed this§ 1983 action,
claiming that the Town violated his due process rights.
The District Court granted summary judgment for the Town
because it concluded that article 23A, section 2(b)(25) of the Mary-
land Code is not the exclusive means of removing an appointed
municipal official. See Bowers, 990 F. Supp. at 400. It found "no indi-
cation" that section 2(b)(25) "supplant[s] the power of the mayor to
remove appointed municipal officials from office." Id. at 400. The
District Court observed that section 2(b)(25) merely"provides a city
council with a check upon the administrative powers that the charter
delegates to the mayor." Id. at 399. The Court analogized section
2(b)(25) to the power of the United States Congress to impeach and
remove. See id. at 400 (citing U.S. Const. art. I, §§ 2 & 3). Conse-
quently, the District Court held that Bowers did not have a property
interest protected by the Due Process Clause of the Fourteenth
Amendment.
II.
As the District Court recognized, Bowers does not have a claim
under the Due Process Clause unless he had a property right. "The
Fourteenth Amendment does not itself create property rights but
rather affords a protection to them. Property rights are determined
from sources independent of the Constitution, such as ... state law."
Linton v. Frederick County Bd. of County Comm'rs , 964 F.2d 1436,
1438 (4th Cir. 1992); see Board of Regents v. Roth, 408 U.S. 564, 577
(1972). Thus, we first examine Maryland law.
Under Maryland law, absent some special tenure provision, a local
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1 Bowers was notified of his dismissal by letter. He received a letter
dated August 13, 1997, signed by the Mayor and all five members of the
Town's council. The letter stated that the Mayor and the council met in
executive session on August 5, 1997, and decided"[b]y unanimous deci-
sion" to fire Bowers from his position. The District Court found that the
Mayor had exercised her power to fire Bowers. Although the council
concurred in the Mayor's judgment, it did not exercise any independent
power to remove Bowers.
3
government employee, including a police officer, serves "at will" and,
therefore, does not have a property right in continued public employ-
ment. See Elliott v. Kupferman, 473 A.2d 960, 966 (Md. Ct. Spec.
App. 1984) ("Absent some special tenure provision, a police officer
does not have a federally protected right to continued employment as
a police officer."). If the Town had granted merit protection to the
position of chief of police or if Bowers had an employment contract
that altered his "at will" status, he would have had a protected prop-
erty interest. Bowers, however, cannot claim either and concedes that
under the Town's charter, which was validly adopted, appointed offi-
cials serve at the Mayor's pleasure. See Charter § 31-19(b). It would
seem to follow that Bowers had no protected property interest in his
job.
Bowers, nevertheless, claims that he had a protected property inter-
est because of article 23A, section 2(b)(25), which states:
[i]n addition to, but not in substitution of, the powers which
have been granted ... [a municipal] legislative body shall
also have the following express ordinance-making powers:
... (25) To remove or temporarily suspend from office any
person who has been appointed to any municipal office and
who after due notice and hearing is adjudged to have been
guilty of inefficiency, malfeasance, misfeasance, non-
feasance, misconduct in office, or insubordination....
Bowers argues that section 2(b)(25) provides the exclusive means by
which municipalities can remove appointed officials. According to
Bowers, when the Maryland General Assembly passed section
2(b)(25), it implicitly rescinded, despite the express provisions of the
Town's lawfully adopted Charter, the mayor's authority to fire
appointed officials. According to Bowers, only the legislative body of
a municipality can fire an appointed official and then only for cause
after notice and a hearing.
Bowers contends that this result is dictated by the canon of statu-
tory construction that "[a] statute that directs a thing to be done in a
particular manner ordinarily implies that it shall not be done other-
wise." Roselle Park Trust Co. v. Ward Baking Corp., 9 A.2d 228, 231
4
(Md. 1939).2 Bowers misapplies the rules of statutory construction.
Indeed, as the Court of Appeals of Maryland has recognized
the maxim "expressio unius est exclusio alterius" ... is not
a rule of law, but merely an auxiliary rule of statutory con-
struction applied to assist in determining the intention of the
Legislature where such intention is not manifest from the
language used. It should be used with caution, and should
never be applied to override the manifest intention of the
Legislature....
Hylton v. Mayor & City Council of Baltimore, 300 A.2d 656, 664
(Md. 1972) (quoting Kirkwood v. Provident Sav. Bank, 106 A.2d 103,
107 (Md. 1954)); see INS v. Federal Labor Relations Auth., 4 F.3d
268, 272 (4th Cir. 1993) (refusing to apply expressio unius est exclu-
sio alterius when the statute was not an effort"at legislative micro-
management"); Director, Office of Workers' Compensation Programs
v. Bethlehem Mines Corp., 669 F.2d 187, 197 (4th Cir. 1982) ("The
maxim [expressio unius est exclusio alterius ] is to be applied with
great caution and is recognized as unreliable."). Nevertheless, Bowers
argues that the absence of any express reference in the Maryland
Code or Constitution to a municipal executive's power to fire
appointed officials requires this court to conclude that municipalities
can only fire appointed officials in accordance with section 2(b)(25).
Bowers correctly notes that Maryland municipalities have limited
powers. See City of New Carrollton v. Belsinger Signs, Inc., 292 A.2d
648, 652 (Md. 1972). Maryland courts, however, have held consis-
tently that municipalities have powers that are not expressly granted
by the Maryland Code or Constitution. See Hardy v. Housing Man-
agement Co., 444 A.2d 457, 458 (Md. 1982); Birge v. Town of Eaton,
337 A.2d 435, 440 (Md. 1975); Bowie Inn, Inc. v. City of Bowie, 335
A.2d 679, 689 (Md. 1975); Belsinger Signs, 292 A.2d at 652;
McRobie v. Mayor & Comm's of Westenport, 272 A.2d 655, 656 (Md.
1971); Montgomery County v. Maryland-Washington Metro. Dist., 96
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2 This canon is referred to as expressio unius est exclusio alterius (the
expression of one thing is the exclusion of another), see Black's Law
Dictionary 581 (6th ed. 1990), or inclusio unius est exclusio alterius (the
inclusion of one is the exclusion of another), see id. at 763.
5
A.2d 353, 358 (Md. 1953). Maryland municipalities have powers that
are fairly implied from the powers expressly granted, and powers that
are essential to the accomplishment of the objects of the municipality.
See Harding, 444 A.2d at 458; Birge, 337 A.2d at 440; Bowie Inn,
335 A.2d at 689; Belsinger Signs, 292 A.2d at 652; McRobie, 272
A.2d at 656; Montgomery County, 96 A.2d at 358. The failure of the
Maryland Code or Constitution to explicitly grant a power does not
require a court to conclude that the power does not exist. See, e.g.,
Birge, 337 A.2d at 440 (finding that the General Assembly's grant of
the power to operate an electric utility fairly implied the power to
acquire property lying in another state).
The express powers that the General Assembly granted municipali-
ties necessarily implies the power to hire and fire employees. For
example, municipal legislatures are granted the right to establish a
merit system for nonappointed and nonelected employees, see art.
23A, § 2(b)(19), to establish a retirement system, see id. § 2(b)(21),
and to fix the salaries and compensation of all municipal officers and
employees, see id. § 2(b)(26). In fact, the express powers granted by
section 2(b) do not include the power to hire municipal employees,
but it is beyond doubt that municipalities have that power.
Additionally, the Maryland General Assembly recognized that
municipalities have an implied power to fire appointed officials with-
out complying with section 2(b)(25). In 1955, the General Assembly
passed a "Model Town Charter," upon which Smithsburg's Charter is
based. See Md. Ann. Code art. 23B (Supp. 1955) (repealed 1994).
This Model Town Charter gave the mayor the power to fire appointed
officials. See id. § 21(b) ("All office, department, and agency heads
shall serve at the pleasure of the mayor."). The Model Town Charter,
being a mere example and lacking the force of law, did not indepen-
dently create this power. See Inlet Assoc. v. Assateague House Con-
dominium Assoc., 545 A.2d 1296, 1305 n.4 (Md. 1988). Indeed, the
General Assembly recently repealed the Model Town Charter. See
Md. Ann. Code art. 23B, ed.'s note (1996). Yet, the General Assem-
bly adopted the Model Town Charter shortly after passing the lan-
guage in section 2(b)(25),3 and it was presumably aware of section
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3 The language in article 23A, section 2(b)(25) was originally enacted
in 1947. See Md. Ann. Code art. 23A, § 2(26) (Flack 1951). The Model
Town Charter was promulgated in 1955. See Md. Ann. Code art. 23B,
§ 21(b) (Supp. 1955) (repealed 1994).
6
2(b)(25)'s supposed impact on a municipal executive's ability to fire
appointed officials. See State v. Bicker, 581 A.2d 9, 12 (Md. 1990)
("It is presumed that the General Assembly acted with full knowledge
of prior legislation and intended statutes that affect the same subject
matter to blend into a consistent and harmonious body of law."). The
General Assembly would not have promulgated a Model Town Char-
ter that allowed a mayor to fire appointed officials if municipalities
did not have the implied power to fire employees outside the confines
of section 2(b)(25). This stark evidence of an implied power, com-
bined with well-settled Maryland law recognizing that municipalities
have powers not expressly granted, further exposes the weakness of
Bowers's argument. The Model Town Charter and the express powers
granted municipalities by article 23A, section 2 provide ample proof
that the General Assembly did not intend for section 2(b)(25) to be
the exclusive means by which a municipality can fire an appointed
official.
III.
Neither Maryland employment law, the Town's charter, nor article
23A, section 2(b)(25) of the Maryland Code gave Bowers a federally-
protected property right in continued employment. 4 Accordingly, the
Mayor did not violate the Due Process Clause of the Fourteenth
Amendment when she fired Bowers.
The decision of the District Court is
AFFIRMED.
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4 Bowers did not request that this court certify a question to the Court
of Appeals of Maryland. We believe that certification is not necessary in
this case because Bowers clearly does not have a property right in contin-
ued public employment under Maryland law.
7