Roberts v. City of Tucson , 122 Ariz. 91 ( 1979 )

HOLOHAN, Justice.

Appellant, Leonard Glenn Roberts, was discharged from his employment as recreation administrator for the City of Tucson. The Civil Service Commission of the city upheld the termination. Appellant sought relief by special action in the superior court, but that court denied relief. The Court of Appeals, Division Two, affirmed the decision of the superior court. We granted the appellant’s petition for review to consider only one issue: Should the appellant have been afforded a pre-termination hearing before his discharge?

The appellant began his employment with the City of Tucson in July of 1972. By mid 1974 a change of supervisors occurred which seems to have resulted in conflicts between appellant and his supervisor. In December 1975 appellant’s supervisor rated his performance satisfactory but a little on the low side. In February 1976 there were conversations between the supervisor and appellant concerning his termination. These conversations resulted in an agreement that the appellant would submit his resignation which was to become effective May 31, 1976, but the supervisor was to furnish appellant a favorable letter of recommendation.

Appellant concluded that he would not receive the promised letter of recommendation, so he withdrew his resignation on May 3, 1976. He was advised by his supervisor that he was terminated effective May 4, 1976. A notice of termination was given to appellant which contained 12 reasons for the discharge. Appellant appealed his termination with the result heretofore described.

It is conceded by all parties that the appellant was a permanent employee of the City of Tucson, who could be discharged only for cause. This right created by charter and ordinance of the city vested the appellant with a property right in his employment which cannot be taken without due process. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); City of Flagstaff v. Superior Court, 116 Ariz. 382, 569 P.2d 812 (1977). Appellant maintains that he has not received due process.

There is no dispute that the procedure required for the city to terminate a permanent employee includes written notice, specification pf the reasons for discharge, appeal to the Civil Service Commission, fair and prompt hearing within thirty days of the appeal, and award of back pay if the termination is found to be without cause. Appellant contends that this procedure is not sufficient. He contends that a pre-termination hearing is required for the taking of such an important property right. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Arnett v. Kennedy, supra.

Whether pre-termination hearings are required in public employment dismissals was discussed by this court in City of Flagstaff v. Superior Court, supra. We pointed out that in dealing with a protected property interest there must be a balancing of the government’s interest in summary removal of an unsatisfactory employee with the employee’s interest in the continuation of his employment pending an evidentiary hearing. The appellant does not contest this approach, but he argues that the City of Flagstaff case deals with a situation in which the governmental interest was compelling — the efficient operation of an emergency service. Appellant’s employment involved recreation supervision. It is appellant’s contention that no legitimate governmental interest required his immediate termination without a hearing.

We agree with appellant that the situation presented in the City of Flagstaff case is different. The governmental interest in efficient operation of emergency services far outweighs the property interest of the employee. This does not mean that a pre-termination hearing is necessary in all other types of non-emergency public employment. Although not as compelling as in emergency services, a city government has a substantial interest in the expeditious removal of undesirable employees. In his concurring opinion in Arnett v. Kennedy, Justice Powell wrote:

“In the present case, the Government’s interest, and hence the public’s interest, is the maintenance of employee efficiency and discipline. Such factors are essential if the Government is to perform its responsibilities effectively and economically. To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency. Moreover, a requirement of a prior evidentiary hearing would impose additional administrative costs, create delay, and deter warranted discharges. Thus, the Government’s interest in being able to act expeditiously to remove an unsatisfactory employee is substantial.” Arnett v. Kennedy, 416 U.S. at 168, 94 S.Ct. at 1651.

In the balancing of interests the deprivation which occurs to the employee must be considered. In this case as in Ar-nett v. Kennedy, the primary detriment is the temporary interruption of appellant’s income until the contest is heard. This detriment must be considered in light of the fact that an evidentiary hearing under the Tucson Civil Service Rules and Regulations must be held within thirty calendar days after discharge of the appeal (Rule XII, Section 4(a)), and, if the discharge is not sustained, the employee is entitled to his back pay. Weighing the respective interests in the context of the Tucson procedures, we believe that the temporary deprivation suffered by appellant is not sufficiently substantial to require a pre-termination hearing. See Jacobs v. Kunes, 541 F.2d 222 (9th Cir., 1976).

The other issues raised on appeal by the appellant were decided by the Court of Appeals, (Roberts v. City of Tucson, 122 Ariz. 125, 593 P.2d 679 (App.1978)), and we approve and adopt their opinion on those issues. The portion of the opinion of the Court of Appeals dealing with the issue of pre-termination hearings is vacated. The judgment of the superior court is affirmed.

STRUCKMEYER, Y. C. J., and HAYS, J., concur.