Opinion
No. 79CA0186
Decided July 19, 1979.
Former city police chief appealed dismissal of his complaint, which, on several theories, alleged that he was wrongfully fired.
Affirmed in Part, Reversed in Part.
1. LIBEL AND SLANDER — Governmental Immunity Act — City — Immune — Action for Defamation. Under the Governmental Immunity Act, a city is immune from suit for defamation; thus, dismissal of claim premised upon alleged slanderous remarks of city councilmen was correct.
2. MUNICIPAL CORPORATIONS — Police Chief — Contract of Employment — No Specific Term — Could Be Terminated — At Any Time. Because city police chief's contract of employment was not for a specified term, it could be terminated at any time without notice or hearing.
3. Allegations — Firing of Police Chief — Contravened Charter — Violated Public Meetings Statute — Dismissal of Complaint — Error. Where complaint of city police chief alleged that his firing was wrongful because, in contravention of city charter, no acting city manager had been named and because council directed the city manager to fire him, and where complaint also alleged that, in violation of public meetings law, his firing was effected at secret meeting of city council, the dismissal of the complaint as to these allegations was erroneous since it precluded plaintiff from showing that his termination was wrongful.
Appeal from the District Court of El Paso County, Honorable Robert W. Johnson, Judge.
Donald E. King, for plaintiff-appellant.
Allan F. Asher, David E. Williams, for defendant-appellee.
Plaintiff, Thomas Gray, appeals from the dismissal of his complaint by the trial court. We affirm in part and reverse in part.
In his amended complaint plaintiff alleged that he was hired by the defendant, City of Manitou Springs, as its police chief. He served in that capacity from August 31, 1976, to December 3, 1977, when he was fired. The complaint alleged that the firing was wrongful because: (1) The City Council instructed the acting city manager to fire plaintiff, contrary to § 6.5 of the Manitou Springs city charter; (2) the Council's decision was reached in a closed meeting which violated § 29-9-101, C.R.S. 1973 (now in 1977 Repl. Vol. 12) and §§ 5.1 and 5.3 of the city charter; (3) the firing was in violation of Article 3 of the Colorado Constitution and § 2.2 of the city charter; (4) the acting city manager had no authority to fire plaintiff because he had not been designated pursuant to §§ 6.1 and 6.2 of the charter; (5) and the firing denied plaintiff procedural due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
Plaintiff also alleged that three members of the city council slandered him, ascribing to him a "belligerent attitude" and accusing him of being "grossly incompetent," and that such words were not substantially true and were published with knowledge of their falsity and with reckless disregard for their truth.
On motion of defendant the trial court dismissed the complaint, finding that plaintiff's due process rights were not violated and that, because there was no continuing contractual relationship, plaintiff's first claim for relief had no legal basis. The court further found that plaintiff's defamation claim was precluded by the Governmental Immunity Act, § 24-10-101, et seq., C.R.S. 1973, that the city would not be liable for the defamatory remarks made by the Council members, and that the comments were privileged.
I.
[1] We agree with the trial court that the city is immune from suit for defamation. Sections 24-10-105, 24-10-106, and 24-10-108, C.R.S. 1973.
[2] We also agree with the trial court that because plaintiff's contract of employment was not for any specified term, it could be terminated at any time without notice and hearing. "Implicit in the power of a city or town to hire is the power to discharge at any time without notice and without necessity of written charges or hearing thereon." Mitchell v. Town of Eaton, 176 Colo. 473, 491 P.2d 587 (1971).
II.
[3] However, the dismissal of plaintiff's complaint was erroneous insofar as it precluded plaintiff from showing, either on summary judgment or at trial, that the termination of his employment was wrongful because no acting city manager had been designated as such under the Manitou Springs City Charter §§ 6.1 and 6.2, because the council violated § 6.5 of the charter, and because the council meeting violated § 29-9-101, C.R.S. 1973 (1977 Repl. Vol. 12).
Section 6.1 of the Manitou Springs city charter provides that the Council shall appoint the city manager. Section 6.2 dictates the procedure when the manager is temporarily absent or disabled. Although § 6.2 does not appear to apply to the facts alleged in the complaint, plaintiff has alleged that the "Acting City Manager" was not appointed by the Council pursuant to § 6.1. If the employee purportedly firing plaintiff had no authority to do so, then plaintiff's employment was not properly terminated.
Section 6.5 of the charter prohibits the Council from requesting or directing the removal of an employee in the administrative service of the city. Plaintiff's complaint alleged that the acting city manager was directed by the Council to fire plaintiff. If this is so, plaintiff's employment was wrongfully terminated. Thus dismissal as to this issue was also error.
Finally, § 29-9-101, C.R.S. 1973 (1977 Repl. Vol. 12), the public meetings law, provides that actions taken by any authority of a political subdivision of the state in a meeting closed to the public shall be void unless the authority was properly meeting in executive session. Plaintiff's complaint alleges that the City Council decided to request plaintiff's firing during a closed meeting. If true, and assuming the acting city manager did not otherwise have the authority to fire plaintiff, the Council's action was void and plaintiff's employment was not terminated.
If plaintiff's employment was wrongfully terminated, he would be entitled to relief. See Rhoads v. Albertson's, Inc., 40 Colo. App. 198, 574 P.2d 114, rev'd on other grounds, 196 Colo. 159, 582 P.2d 1049 (1978); Shumate v. State Personnel Board, 34 Colo. App. 393, 528 P.2d 404 (1974). Thus it was error for the trial court to dismiss the entire complaint. See McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969).
The judgment of dismissal is reversed as to the issues indicated in this opinion, and is otherwise affirmed. The cause is remanded to the district court for further proceedings.
JUDGE COYTE and JUDGE STERNBERG concur.