Finck v. City of Tea

MILLER, Justice.

In this opinion we uphold the termination of a municipal chief of police and hold (1) that the mayor had the statutory power to terminate the chief of police; (2) that it is mandatory to serve a notice upon a public entity before a tort claim may be filed against it; and (3) that a statement made concerning the chief of police by a councilman was not slanderous as a matter of law.

PROCEDURAL HISTORY

Kevin Finck (Finck) was fired as police chief for the City of Tea (City) and thereafter brought an action against City and its mayor and councilmen alleging wrongful termination, breach of contract, retaliatory discharge, negligent wrongful termination and intentional infliction of emotional distress. Finck’s complaint also contains a count alleging defamation, which appears to be exclusively directed against Councilman Henry Hagemeyer.

Defendants (appellees) moved for summary judgment. The trial court granted summary judgment holding (1) that there was no contractual relationship between the parties; (2) that because South Dakota is an employment-at-will state, appellees were entitled to judgment as a matter of law on the wrongful termination, breach of contract, intentional infliction of emotional distress, and negligent wrongful termination counts; (3) that Finck had not established a genuine issue of material fact on the retaliatory discharge count; and (4) that the statements attributed to Councilman Hagemeyer were an opinion and not slanderous as a matter of law.

The trial court denied part of appellees’ motion for summary judgment on the grounds that Finck’s claim against City is barred due to failure to give the notice required by SDCL 3-21-2 and 3 and that SDCL 9-14-13 gives the mayor the absolute power to fire the chief of police.

In this appeal, Finck argues that the trial court inappropriately granted summary judgment, generally challenging all of the rulings made thereon by the trial court. By notice of review, appellees assert that the trial court erred in denying that part of the motion for summary judgment relating to the statutory notice requirements and the statutory authority of the mayor to fire appointed city officials.

Other than the defamation issue, we need not address the issues raised by Finck because, unlike the trial court, we conclude that SDCL 9-14-13 is dispositive as to the validity of the termination. Thus, we hold for appellees on the notice of review and affirm the result but not the specific holding of the trial court. We agree with and affirm the trial court concerning its defamation holding and that part of its denial of the summary judgment relating to mandatory notice, except as the same relates to tort claims.

FACTS

Because of the limited nature of our holding, a short recitation of the facts is sufficient. Finck was hired as City’s chief of police in 1984. There was no formal contract of employment. The city council met in executive session on August 4,1986, and concluded that his employment should be terminated. On August 6, the mayor, in the presence of Councilman Gerdes, met with Finck and advised him that his employment was terminated for several reasons (Finck was given an opportunity to resign but declined). A written list of those reasons was subsequently furnished by the mayor to Finck’s counsel.¹ Finck ultimately commenced this action.

DECISION

I

A MAYOR IN AN ALDERMANIC FORM OF CITY GOVERNMENT HAS THE STATUTORY POWER TO TERMINATE APPOINTIVE CITY OFFICERS.

First, it must be observed that in an aldermanic form of government the mayor is the city’s chief executive officer. SDCL 9-8-1. His powers and duties are generally specified in SDCL 9-8-3, and although they do not specifically mention hiring and firing of employees, it does state that the mayor “shall perform such other duties as may be prescribed by the laws and ordinances!.]”

SDCL 9-14-13 states:

In an aldermanic-govemed city the mayor shall have power except as otherwise provided to remove from office any officer appointed by him, whenever he shall be of the opinion that the interests of the city demand such removal, but he shall report the reasons for his removal to the council at its next regular meeting.

This court has previously held that this statute gives the mayor “full and absolute power to remove appointed officers whenever, in his opinion, the interests of the city require it[.]” State ex rel. Dickson v. Williams, 6 S.D. 119, 125, 60 N.W. 410, 412 (1894). See also Kierstead v. City of Rapid City, 248 N.W.2d 363 (S.D.1976) and Baker v. Jackson, 372 N.W.2d 142 (S.D.1985) (holding abrogated on other grounds by 1986 S.L. Ch. 73, § 1, codified at SDCL 7-18A-15.1, 9-20-18, and 9-20-19.) We continue to believe that the statute gives great power to the mayor although that power may not be absolute. We can envision scenarios where the mayor could abuse his statutory authority, but find no such abuse here.

We note that it is within the exclusive province of the legislature to determine terms under which employment may be terminated. As we have so often noted, the legislature by SDCL 60-4-4 has created “employment at will” in this state. Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221 (S.D.1988); Blote v. First Federal Savings & Loan Ass’n of Rapid City, 422 N.W.2d 834 (S.D.1988); Bauer v. American Freight System, Inc., 422 N.W.2d 435 (S.D.1988); Hopes v. Black Hills Power & Light Co., 386 N.W.2d 490 (S.D.1986). The legislature has not seen fit to depart from that status. Similarly, despite our prior pronouncements, they have not seen fit (except as is noted below) to limit the power of a mayor to terminate appointive officers.

We hasten to emphasize and point out that this holding applies only to “appointive officers” as that term is defined by SDCL 9-14-1. Under that statute, appointive officers include the auditor, treasurer (or combined position of finance officer), attorney, engineer, chief of police, and “such other officers as needed and provided for by ordinance.”

It is interesting to note that prior to a 1985 amendment, the definition of appointive officers under SDCL 9-14-1 included “policeman,” but it is now limited to the chief of police. It is thus clear that the legislature only intended to give the mayor power to terminate the appointive officers, 1.e., the department heads, rather than giving him blanket termination authority over all municipal employees.

II

STATUTORY NOTICE TO A PUBLIC ENTITY IS MANDATORY BEFORE A TORT CLAIM MAY BE FILED AGAINST IT.

City asserts that the trial court erred in refusing to grant summary judgment ² in its favor due to Finck’s failure to provide notice in accordance with SDCL 3-21-2 and 3-21-3.

SDCL 3-21-2 provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

SDCL 3-21-3, in salient part, reads:

Notice shall be given to the attorney general and the following officers as applicable:

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(3) In the case of a municipality, to the mayor or city finance officer[.]

Clearly, Finck’s causes of action dealing with intentional infliction of emotional distress and retaliatory discharge sound in tort.³ In order to commence suit on those counts, the provision of statutory notice was mandatory. It would not be necessary, however, to give the notice on his contract-based claims. However, because we have previously held that the mayor had authority to terminate Finck, we need not reverse the trial court on this issue.

Ill

STATEMENTS MADE BY COUNCILMAN HAGEMEYER WERE NOT SLANDEROUS AS A MATTER OF LAW.

Finck alleged, and it appears to be undisputed, that Councilman Hagemeyer at various times called Finck names and insulted him by using words or characterizing him as a “dumb son-of-a-bitch” and “incompetent” in front of the city council and other third persons. He argues that these statements, coupled with his termination, damaged his reputation as a faithful and diligent employee and law enforcement officer.

SDCL 20-11-4 defines slander as a false and unprivileged publication which tends to injure a person with respect to his office, profession, trade or business. The trial court found that Hagemeyer’s statements were not slanderous because they were statements of opinion rather than fact.

Epithets such as those used by Hagem-eyer are not generally considered to be actionable. This result stems from the concept that “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974). An opinion is not considered to be a statement of fact and therefore cannot be false. Moreover, even if an opinion is falsely or insincerely held, it may still be constitutionally protected. See Rinaldi v. Holt, Rinehart & Winston Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). As was noted in Raible v. Newsweek Inc., 341 F.Supp. 804, 808-809 (W.D.Pa.1972), “Americans have been hurling epithets at each other for genera-tions_ Certainly such name calling, either express or implied, does not always give rise to an action for libel.”

We find, as a matter of law, that Councilman Hagemeyer’s statements constitute an opinion and therefore the trial court was correct in granting summary judgment. See Lewis v. Time Inc., 710 F.2d 549 (9th Cir.1983).

For all of the foregoing reasons, summary judgment is affirmed.

WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., specially concurs. SABERS, J., concurs in part and dissents in part.

1 . The list included:

(1) Using the city police car for personal reasons;

(2) Use of profane language;

(3) Failure to keep accurate police logs;

(4) Failure to wear his uniform while on duty;

(5) Failure to keep his police radio on when outside of the vehicle while on duty; and

(6) Failure to follow the instructions of the city council.

2 . Even though the trial court in orally denying the summary judgment motion on this issue recognized that the statutes apply only to tort-based causes of action, its written Order and Judgment does not so reflect.

3 . His cause of action for negligent wrongful discharge also sounds in tort, but is not actionable in this state. Larson v. Kreisers, Inc., 427 N.W.2d 833 (S.D.1988) (Miller, J., concurring specially). See also Dakota Gear and Elote, supra, and Tombollo v. Dunn, 342 N.W.2d 23 (S.D.1984).