Garcia, Larry v. Kankakee County Hous

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2455
Larry Garcia,
Plaintiff-Appellant,
v.
Kankakee County Housing Authority,
Charles E. Ruch, Jr., and Yvonne Hayes,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-2143--Michael P. McCuskey, Judge.
Argued January 11, 2002--Decided February 1, 2002
Before Easterbrook, Kanne, and Diane P.
Wood, Circuit Judges.
Easterbrook, Circuit Judge. Larry Garcia
worked his way up from warehouse clerk to
Director of Technical Services at the
Kankakee County Housing Authority. During
1998 the Authority was in turmoil; its
Executive Director and all members of its
governing Board quit or were dismissed.
The new Board asked Garcia to serve as
Interim Executive Director, and he
assumed that position on December 4,
1998. Soon Garcia began to make changes
in the Authority’s operations, and he
challenged the authority of Charles Ruch,
the Board’s new Chairman. Within a week
of his appointment, Garcia started
writing memos to the Board complaining
about Chairman Ruch’s conduct and asking
other members to rein in their leader.
For forgetting who was in charge, Garcia
paid a penalty: he lasted exactly 18 days
as Interim Executive Director, and he
lost his job as Director of Technical
Services as well when a majority of the
Board deemed him insubordinate and showed
him the door.
In this suit under 42 U.S.C. sec. 1983,
Garcia contends that his discharge
violated not only the Constitution’s
first amendment but also the due process
clause of the fourteenth. The former
theory is that the Board penalized him
for sending the memos and for attending
public meetings at which Chairman Ruch
had sought to be the Authority’s sole
representative. The latter theory is that
he had a property interest in his job,
which the Board could not affect without
notice and an opportunity for a hearing.
Garcia actually received an elaborate
post-discharge hearing but contends that
the outcome was a foregone conclusion.
The district court was not persuaded by
either theory and granted summary
judgment to the defendants.
As the district court saw matters,
Garcia and Ruch were engaged in a
struggle for control of the Housing
Authority. Which of the two would emerge
on top was, in the judge’s view, a
personnel dispute outside the scope of
the first amendment. Compare Connick v.
Myers, 461 U.S. 138 (1983), with
Pickering v. Board of Education, 391 U.S.
563 (1968). Garcia insists, to the
contrary, that the dispute concerned how
the Authority would be run, rather than
who would carry out preordained tasks.
For example, the public meetings that
Ruch wanted to dominate concerned the
possibility of extending the Authority’s
services to the Pembroke area. That is an
issue of public concern, Garcia asserts;
and if the subject-matter of the meetings
were not enough, he submits that Ruch’s
principal reason for seeking the
limelight was to generate favorable
publicity and advance his political
career. If a newspaper editorial about
the Pembroke project would be protected,
Garcia insists, so is his role.
No editorial writer could be fined or
imprisoned for taking a stand on the
management of the Kankakee Housing
Authority, or the extension of its
services to Pembroke; nor could a
reporter be barred from a meeting open to
the public. But Garcia was not fined or
imprisoned. He was told that his services
are no longer required, but all economic
opportunities in the private sector
remain open. That is a substantial
difference in consequence for the
employee--a difference important to
public employers as well, for no
bureaucracy can function if each employee
is a free agent, entitled to undermine
the policy set by politically responsible
officials. See Waters v. Churchill, 511
U.S. 661, 672-75 (1994) (plurality
opinion). If as Garcia contends the
struggle within the Housing Authority was
about goals and their implementation,
then the Board was entitled to fire him
without transgressing the Constitution.
Although the first amendment protects
rank-and-file employees from discharge
for taking a public stand on how the
agency should be managed, it does not
protect those who act on their views, to
the detriment of the agency’s operations;
nor does it protect even the abstract
statements of those top employees who are
responsible for setting objectives and
implementing political decisions. A
Cabinet officer who published an op-ed
piece contrary to the President’s program
could be fired, even if the essay had
nothing to do with that agency’s
portfolio (for example, a Secretary of
Education who made a speech denouncing
the President’s economic stimulus
proposals). The Supreme Court has held
that all policy-making officials, and
some others, may be required on pain of
dismissal to give both public and private
support to thepolitical agenda of those
who hold elected office, and their top
appointees. The Court has yet to
articulate a rule for how far this circle
of conformity extends, but it includes
all employees whose views can promote or
defeat a political program. See Branti v.
Finkel, 445 U.S. 507, 518 (1980); Wilbur
v. Mahan, 3 F.3d 214 (7th Cir. 1993).
The Executive Director of a public
agency fits that description--more
securely than, say, the deputy director
of a bureaucracy, a position that we have
held may be limited to those who hold
views sympathetic with elected officials.
See, e.g., Tomczak v. Chicago, 765 F.2d
633 (7th Cir. 1985) (deputy head of water
bureau); Upton v. Thompson, 930 F.2d
1209, 1215-17 (7th Cir. 1991) (deputy
sheriff); cf. Livas v. Petka, 711 F.2d
798 (7th Cir. 1983) (assistant
state’sattorney). So Garcia’s failure to
support Chairman Ruch could have been a
basis for his discharge; what is more,
Garcia acted on his views, countermanding
Ruch’s instructions within the Agency.
This demonstrates either that Garcia was
a policymaking official (who could be
fired for political views even on the
broadest reading of Elrod v. Burns, 427
U.S. 347 (1976), and its sequels) or that
he was gumming up the works despite lack
of discretionary authority, and could be
fired for that reason. It makes no
difference whether Garcia knew more (or
knew better) than Ruch about how to run a
public housing agency. Many bureaucrats
think that they can manage the
organization better than political
leaders (and often the bureaucrats are
right), but those who have been elected
by the populace (or appointed by elected
officials) are entitled to make policy
even if that means making mistakes. The
first amendment does not frustrate
democracy by requiring elected officials
to tolerate what they reasonably perceive
as subversion by bureaucrats. Nor does
the first amendment prevent political
officials from insisting that "interim"
appointees speak and act like caretakers.
This leaves Garcia’s contention that he
had a property interest in his job, an
interest that under the due process
clause he could keep until the Authority
provided notice and an opportunity for a
hearing. It is hard to see where this
gets Garcia, because he had a hearing
before his discharge became final. True,
he was removed from office about a month
before the hearing, but he was paid for
that period and thus has no complaint
about the delay. See Gilbert v. Homar,
520 U.S. 924 (1997). The hearing also
offered him an opportunity to clear his
name, squelching any contention that the
discharge unconstitutionally besmirched
his reputation. See Codd v. Velger, 429
U.S. 624 (1977). What Garcia really wants
from this litigation is not another
hearing but his job. Yet the Constitution
does not require states to keep all
promises made in their contracts and
regulations. See Mid-American Waste
Systems, Inc. v. Gary, 49 F.3d 286 (7th
Cir. 1995); Shegog v. Chicago Board of
Education, 194 F.3d 836 (7th Cir. 1999).
To put this otherwise, a unit of state or
local government does not violate the
federal Constitution just because it
violates a state or local law, including
the law of contracts. See Archie v.
Racine, 847 F.2d 1211, 1215-18 (7th Cir.
1988) (en banc).
For what it may be worth, we add that
Garcia lacked any "property" interest in
his position, and the due process clause
therefore did not require a hearing. No
statute, regulation, or individually
negotiated contract gave him tenure or
the right to stay unless the Authority
demonstrated cause for his removal. See
Board of Regents v. Roth, 408 U.S. 564(1972); Upadhya v. Langenberg, 834 F.2d
661 (7th Cir. 1987). Garcia sees the
necessary legitimate claim of entitlement
in a combination of the Authority’s
personnel manual and an oral promise that
he could return to his position as
Director of Technical Services once the
Authority hired a new permanent Executive
Director. Whether such a promise was made
is a subject of dispute, but we may
assume that it was. Still, Garcia was an
employee at will in that position too,
unless the personnel manual gave him some
protection. So the oral promise is
irrelevant; only the manual matters.
Illinois treats employment handbooks as
having the potential to form contracts
between employers and workers. See
Duldulao v. Saint Mary of Nazareth
Hospital, 115 Ill. 2d 482, 505 N.E.2d 314(1987). A clear promise in a handbook
therefore creates legal entitlements.
Like the parties to other contracts,
however, the parties to an employment
handbook may elect to keep their affairs
out of court. Page 2 of the handbook
exercises this option:
This Manual creates no rights,
contractual or otherwise, between
the Authority, any prospective or
current employee, or any other
person. Statements of policy
contained in this Manual are not
made for the purpose of inducing any
person to become or remain an
employee of the Authority, and
should not be considered "promises"
or granting "property" rights.
Nothing contained in this Manual
impairs the right of an employee or
the Authority, to terminate the
employment relationship at will. .
. .
The following policies and
procedures state current policy and
are not themselves to be considered
or interpreted as terms of an
implied or express contract. The
Authority reserves the right to
amend, modify and/or revoke any of
its policies, practices, procedures
and standards summarized in this
handbook.
Disclaimers of this kind are enough in
Illinois to show that the handbook does
not create legal rights. Davis v. Times
Mirror Magazines, Inc., 297 Ill. App. 3d
488, 498, 697 N.E.2d 380, 388 (1st Dist.
1998); Condon v. AT&T Co., 210 Ill. App.
3d 701, 707, 569 N.E.2d 518, 521 (2d
Dist. 1991). See also, e.g., Workman v.
United Parcel Service, Inc., 234 F.3d 998(7th Cir. 2000) (Indiana law).
According to Garcia, the Housing
Authority took back the disclaimer (or at
least created an internal contradiction)
several pages later, when the handbook
said that employees could expect to keep
their jobs as long as they performed
well, and that an employee could have a
hearing before a discharge became final.
Garcia’s predecessor as Executive
Director filed an affidavit stating that
the Housing Authority never fired anyone
without a good reason. That may be true
as a factual proposition but the
affidavit and the assurances do not
contradict the handbook’s statement that
all employment is at will. To say that
employment is "at will" does not mean
that the employer randomly or maliciously
discharges good workers; that would serve
no one’s interests. Employment is "at
will" when the term of the arrangement is
open-ended, and there are no legal
remedies for bringing the arrangement to
a close. See Richard A. Epstein, In
Defense of the Contract at Will, 51 U.
Chi. L. Rev. 947 (1984). Employer and
employee have an equal right to end the
relation at any time, for any lawful
reason. Both employer and employee will
want to continue a satisfactory
arrangement; thus an employer rarely
fires anyone without thinking that it has
a good reason. All it means to say that
the arrangement is "at will" is that
courts do not inquire into the
sufficiency of that belief. Judges and
juries are not guaranteed to do better
than supervisors at determining whether
an employee had worked out in the
position; and as the legal process is
expensive (including the expense of
error), both employer and employee may
gain from saving those costs. Perhaps the
Housing Authority made a mistake in not
returning Garcia to his former post as
Director of Technical Services, but under
the handbook the penalty for any mistake
will be paid in the market (because the
Authority will have a harder time
recruiting a quality replacement, or will
need to pay more to make up for the
greater uncertainty) rather than in the
courts.
Affirmed