Miyler, Cody v. Village of East Gale ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3625
CODY MIYLER,
Plaintiff-Appellant,
v.
VILLAGE OF EAST GALESBURG,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 1228—Joe Billy McDade, Judge.
____________
ARGUED DECEMBER 3, 2007—DECIDED JANUARY 9, 2008
____________
Before BAUER, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. With his mother ensconced as
the president of the Village, and an ordinance that pro-
vided he could only be removed from office if the
president agreed, Cody Miyler must have been shocked
when he was discharged from his position as the Chief
of Police of tiny East Galesburg,1 Illinois, without his
mother’s consent. After this came to pass, Miyler sued the
Village under 42 U.S.C. § 1983, claiming a violation of his
1
East Galesburg’s population is around 900. It’s not to be
confused with its more robust neighbor to the west, just plain
old Galesburg, which has over 33,000 inhabitants.
2 No. 06-3625
due process rights under the Fourteenth Amendment to
the United States Constitution. The district court granted
the Village’s motion for summary judgment and Miyler
appeals.
In January 2001, Miyler was appointed to the position
of Chief of Police of the Village of East Galesburg. His
pay was set at the surprisingly low rate of about $9 per
hour. Two and a half years later, the Village Board of
Trustees, by a two-thirds vote, voted to remove Miyler
from office. The board claimed it was troubled by
various allegations of misconduct by Miyler, such as his
providing beer to some underage boys, using a local
brickyard for a firing range, and being ticketed for
riding a motorcycle without a valid license, a “violation”
to which he entered a guilty plea. Miyler’s employment
was actually terminated without a hearing two weeks
later.
As we said, at the time of the termination of his em-
ployment, Miyler’s mother was president of the Village. It
was Miyler’s understanding that his employment could
not be terminated unless his mother fired him. Given
the Village ordinances, we can understand the basis
for Miyler’s belief about what would have to happen
before he could be fired. But in this civil rights case, it
doesn’t matter. Nothing in the Village ordinances or the
state statutes gives him a protectible property interest
in his position, nor does he have an employment con-
tract with the Village. In short, he was an at-will em-
ployee.
For Miyler to have a constitutionally protected property
right in continued employment as the police chief of the
Village, he had to have a legitimate claim of entitlement
to continue in the job. Property interests are created
and defined by an independent source, such as state law
or a contract. Bd. of Regents of State Colls. v. Roth, 408
No. 06-3625 3
U.S. 564 (1972). Under Illinois law, public employees
do not have property rights in employment which trigger
due-process protections. Levin v. Civil Serv. Comm’n of
Cook County, 52 Ill. 2d 516, 288 N.E.2d 97 (1972).
Nevertheless, Miyler argues that state law, 65 ILCS
5/3.1-35-10, gives him a property interest. That section
states that the mayor or president of a municipality may
remove any officer appointed by a mayor or president. The
statute then sets out procedures for removal. Miyler
argues that a similar statute was found to be sufficient
to overcome the presumption of at-will employment in
Summers v. Village of Durand, 267 Ill. App. 3d 767, 643
N.E.2d 272 (2nd Dist. 1994).
We find Summers a bit puzzling. But one thing is
clear: it is not relevant to Miyler’s case. Summers is a
breach of contract action, not a civil rights case, and
involves the firing of the chief of police of the Village
of Durand. Summers’ employment contract, partly in
writing, partly oral, did not specify a definite term of
employment. His employment was terminated without
the filing of a formal charge, as the statute requires. In
his breach of contract action, Summers contended that
the Illinois Municipal Code provided him with procedural
protections, which he did not receive. The court said
that the “presumption that an employment contract is
terminable at will can be overcome by an applicable
statutory provision that demonstrates a contrary intent”
and that the Code demonstrated such an intent. The
court continued by saying that the Code became part of
Summers’ employment contract and so he could only be
fired pursuant to a formal charge presented to the board.
Because no charge was filed, Summers’ complaint stated
a claim for breach of contract. As we read the case, it
stands for the proposition that, in a claim based on
contract, a plaintiff can claim that the failure to pro-
vide procedural protections is a breach.
4 No. 06-3625
That is a far cry from saying that the statute estab-
lishes a property interest in employment for purposes of
the Fourteenth Amendment. Procedural guarantees do
not establish a property interest protected under the
Fourteenth Amendment’s Due Process Clause. In order
to create a property interest, a statute or ordinance must
provide “some substantive criteria limiting the state’s
discretion,” as for instance in a requirement that em-
ployees can only be fired “for cause.” A statute which
merely provides procedures to be followed does not in-
clude a substantive right. Cain v. Larson, 879 F.2d 1424,
1426 (7th Cir. 1989); see also Bishop v. Wood, 426 U.S.
341 (1976).
The Village ordinances are no more help to Miylar
than are the statutes. Ordinance 1-5-12(J) provides for
the termination of “[a]ny officer appointed by the Presi-
dent and Board of Trustees,” and Section 6-1-2(B) pro-
vides for removal of the chief of police by the “President,
with the advice and consent of the Board of Trustees.” The
police chief can be removed when “the corporate authori-
ties determine that the best interests of the Village re-
quire such removal.” It seems clear that the latter sec-
tion, applying specifically to the chief of police, is the
relevant ordinance. And it provides for removal by the
president of the Village, not the board. Contrary to the
ordinances, Miyler was removed by the board, not his
mother, the president.
But despite the fact that his removal may have been
contrary to the ordinance, it does not follow that there
has been a violation of the Due Process Clause. Miyler
simply cannot establish a property interest in continu-
ing to hold on to his position as the Village police chief.
That he may have a claim for some sort of relief in state
court is not a concern with which we can deal.
Accordingly, the judgment of the district court is
AFFIRMED.
No. 06-3625 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-9-08