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Ramsey v. Sand Point (4/11/97), 936 P 2d 126
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, telephone (907)
264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHARLES R. RAMSEY, )
) Supreme Court No. S-7344
Appellant, )
) Superior Court No.
) 3AN-94-1913 CI
v. )
) O P I N I O N
CITY OF SAND POINT, )
) [No. 4802 - April 11, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski, Judge.
Appearances: John C. Dittman, Law Offices of
John C. Dittman, P.C., and Terry A.
Venneberg, Law Offices of Terry A. Venneberg,
Anchorage, for Appellant. Thomas M. Daniel
and Gordon J. Tans, Perkins Coie, Anchorage,
for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
FABE, Justice.
I. INTRODUCTION
Charles R. Ramsey brought suit against the City of Sand
Point, alleging that his employment as police chief had been
wrongfully terminated. The superior court granted summary
judgment in favor of the City of Sand Point on all of Ramsey's
claims, including his claims for breach of contract, breach of
the implied covenant of good faith and fair dealing, violation of
the Open Meetings Act, and violation of his due process rights
under the Alaska Constitution. Ramsey appeals the superior
court's decision granting summary judgment and its denial of a
motion to compel discovery. We affirm the superior court.
II. FACTS
The City of Sand Point (City) hired Charles Ramsey as
its police chief in May 1991 under a two-year employment
contract. In early 1993, as the expiration of this first contract
approached, Ramsey and the City, through its attorney Tim Troll,
began negotiating a new contract. The parties executed a three-
year employment contract for Ramsey to begin in May 1993. During
the negotiation of the new contract, Ramsey consulted with his
sister, who is an attorney, about the wording of the contract.
Ramsey sent his sister copies of his first contract, as well as
his rough drafts of a second contract. She sent back her
suggestions.
Ramsey proposed the addition of a section authorizing
the City to terminate his contract without cause in exchange for
six months' severance pay. At the time, Ramsey was aware of the
municipal ordinance stating that the police chief "may be removed
only for just cause."(EN1) The section proposed by Ramsey
defined "cause"to encompass a narrower range of behavior than
"just cause"as provided in the ordinance and required thirty
days' written notice before termination. The City accepted this
proposal and incorporated it into the contract. This section
provided:
SECTION III. TERMINATION
A. In the event Chief is terminated by
the City Council for any reason besides cause
as defined below during such times as he is
willing and able to perform the duties of
Chief of Police, the City agrees to pay Chief
a severance of six month's [sic] pay.
However, if Chief is terminated for cause,
which shall be willful misconduct or gross
negligence in the performance of duties[,] or
fails to maintain and/or qualify for
certification by the Alaska Police Standards
Council, the severance pay provisions of this
paragraph shall not apply. City shall
provide Chief with thirty (30) days advance
written notice of termination or termination
shall be deemed ineffective.
In August 1993 the police responded to a call from the
manager of the Sand Point Tavern concerning an intoxicated
person. Two officers were escorting an intoxicated patron out of
the bar when they apparently were accosted by other patrons,
resulting in a brawl. Chief Ramsey arrived at the tavern and
assisted his officers in arresting a number of the citizens
present. Following this incident, a group of citizens, including
those arrested at the Sand Point Tavern, circulated a petition in
the community calling for the dismissal of Ramsey and another
officer. The petition was signed by approximately 120 residents
and alleged that Ramsey should be removed from office due to the
use of excessive force in making arrests at the Sand Point
Tavern. The petition also stated that Ramsey had "created a
situation where people will not call the police for help because
they are afraid of the police."
The petition was presented to the city council at the
end of its regularly scheduled meeting on October 18, 1993. In
conjunction with the presentation of the petition, numerous
citizens testified that Ramsey should be removed from office.
Ramsey knew that this petition for his dismissal would be
presented at the city council meeting. However, as he later
explained in his deposition, he did not attend the meeting
because he did not think it was the proper forum in which to
defend himself against the allegations. After the comments were
finished, the city council adjourned to executive session to
discuss the petition. Later that night the city council meeting
was recessed, to re-adjourn the next afternoon at 3:30 p.m. The
next morning the City Attorney, Timothy Troll, met with both
Ramsey and another officer, seeking their resignations. Although
the other officer tendered his resignation, Ramsey refused to do
so. (EN2) Troll informed Ramsey that he had a right to be
present at the executive session that afternoon and that he could
talk to the council. Ramsey declined.
The city council reconvened in executive session that
afternoon and, after approximately an hour and a half of
discussion, went back into public session. During the public
meeting, the council voted to terminate Ramsey pursuant to
Section II.A of his contract. The council agreed to pay Ramsey
one additional month's pay and to provide one additional month's
free housing in lieu of giving the thirty-day notice of
termination required in the contract. The City also paid Ramsey
the additional six months' salary required by Section III.A of
his employment contract, and he accepted this payment.
Ramsey filed suit against the City alleging five
claims: (1) breach of his employment contract by discharging him
without cause; (2) breach of his employment contract by not
providing 30 days' notice of termination; (3) breach of the
implied covenant of good faith and fair dealing; (4) violation of
the Open Meetings Act; and (5) violation of his due process
rights under the Alaska Constitution.
The superior court granted the City's motions for
summary judgment on all five claims. On the breach of contract
claim, the court held that Ramsey had waived the protection of
SPMO 03.70.020 requiring "just cause"for dismissal because, with
full knowledge of the ordinance's protection, he proposed the
language that was inserted in his contract permitting dismissal
without cause upon payment of six months' severance pay. The
trial court also held that the City's failure to give thirty
days' notice of termination was cured by its payment of thirty
days' salary and provision of thirty days of housing in lieu of
notice. The superior court concluded that the City had not
breached the implied covenant of good faith and fair dealing in
Ramsey's contract because the City did not try to deprive him of
the benefits of his contract in bad faith or act unfairly. The
court also held that the covenant could not be read to vary the
express terms of a contract. Because Ramsey's contract expressly
authorized termination without cause if the severance payment was
made, the court found that the covenant was not violated.
On the Open Meetings Act claim, the trial court held
that the city council meeting was properly noticed. The court
found that the council's discussion of Ramsey's employment in
executive session was proper under AS 44.62.310(c)(2) and that
Ramsey waived his right to request a discussion in public by
failing to appear at the meeting. Finally, the superior court
determined that Ramsey's only property interest was in the
thirty-day notice period required before termination and in six
months' severance pay if the City terminated him without cause.
The superior court reasoned that the City's payment of seven
months' severance pay removed any prejudice Ramsey may have
suffered from the alleged denial of due process. Ramsey appeals.
III. DISCUSSION
A. Standard of Review
Summary judgment will be affirmed if there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. In re Estate of Evans, 901 P.2d
1138, 1140 (Alaska 1995). All reasonable inferences are drawn in
favor of the non-moving party. R.E. v. State, 878 P.2d 1341,
1345 (Alaska 1994). This court reviews a grant of summary
judgment de novo. Tongass Sport Fishing Ass'n v. State, 866 P.2d
1314, 1317 n.7 (Alaska 1994).
B. Did Ramsey's Employment Contract Authorize the City to
Terminate Him without Just Cause?
The superior court found that when Ramsey negotiated
the provision in his contract giving the City the right to
terminate him without cause in exchange for six months' severance
pay, he waived the protection of SPMO 03.70.020, which allowed
removal of the police chief only for just cause. The court found
that
[w]hen Ramsey was negotiating his contract
with the City he was aware that the ordinance
existed. Nonetheless, he negotiated for and
wrote the above quoted provision, which gave
the City the right to terminate him without
cause. In exchange, he received the right to
receive six months severance pay if he was
terminated without cause. This amounts to
the intentional relinquishment of a known
right.
Ramsey contends that the superior court erred in
finding waiver. He concedes the existence of the contractual
provision allowing termination without "cause"but contends that
the provision in SPMO 03.70.020 requiring "just cause"for
termination governs. Ramsey maintains that the City did not have
the authority to enter into a contract inconsistent with its
ordinance, reasoning that the prohibition against removal of the
police chief without "just cause"contained in SPMO 03.70.020 is
for the protection and benefit of the community and can not be
waived. Alternatively, Ramsey maintains that even if SPMO
03.70.020 could be waived, he did not manifest the intent to do
so, nor did he engage in any conduct sufficient to abandon or
waive the protections of the ordinance.
1. Did Ramsey waive the protection of the "just
cause"requirement in SPMO 03.70.020?
The superior court relied on Milne v. Anderson, 576
P.2d 109 (Alaska 1978), in finding that Ramsey had waived the
protection of the "just cause"requirement in the ordinance. In
Milne, we described the principle of waiver as "the intentional
relinquishment of a known right"and explained that an implied
waiver "arises where the course of conduct pursued evidences an
intention to waive a right, or is inconsistent with any other
intention than a waiver." Id. at 112. Ramsey was aware of the
provision in SPMO 03.70.020 allowing the City to terminate the
police chief only for "just cause"at the time he negotiated his
second contract with the City. Despite the protection of the
ordinance, Ramsey negotiated for a contract which specifically
permitted the City to terminate him without cause as long as it
paid a severance of six months' salary. Ramsey's contract with
the City also defined "cause"as "willful misconduct or gross
negligence in the performance of duties,"a narrower definition
of the term than that contained in SPMO 03.70.020. This
definition thus increased Ramsey's opportunity to receive the six
months' severance pay upon termination. (EN3) Ramsey, with the
assistance of an attorney, proposed the language contained in
Section III.A allowing the City to terminate him without cause.
That language is inconsistent with retention of the protection of
the "just cause"requirement in the ordinance. Ramsey was paid
and accepted the six months' severance pay. Therefore, the
superior court was correct in finding that Ramsey waived the
protection of SPMO 03.70.020.
2. Does public policy dictate that a waiver of SPMO
03.70.020 cannot be recognized?
Ramsey contends that public policy prevents the waiver
of the protection of SPMO 03.70.020. He argues that the
ordinance reflects a public policy of the City "that the police
chief would not be subject to dismissal on a whim by the City
Council,"and therefore could not be waived by the contract
between Ramsey and the City. The City responds that SPMO
03.70.020 benefitted only the police chief and was not enacted to
promote any important public interest.
Under the well-established rule, "parties may agree to
waive statutory rights unless a question of public policy is
involved, or where rights of third parties, which the statute was
intended to protect, are involved." 17A Am. Jur. 2d Contracts
sec. 256, at 259-60 (1991). Thus, a statute is waivable if it
was designed for the protection of the individuals who are
parties to the contract, but is not waivable if it was enacted
for the protection of the public generally. Id.; see, e.g.,
McAlpine v. McAlpine, 679 So.2d 85, 93 (La. 1996) (waiving
permanent alimony after divorce); Sanitary Commercial Servs.,
Inc. v. Shank, 566 N.E.2d 1215, 1218 (Ohio 1991) (waiving right
to appeal); State ex rel. Bd. of County Comm'rs v. Board of
Directors, 665 N.E.2d 202, 208 (Ohio 1996) (waiving a statutory
claim to equitable division of assets); and Francam Bldg. Corp.
v. Fail, 646 P.2d 345, 348 (Colo. 1982) (waiving statutory
requirement that a landlord give a tenant three days' notice to
pay rent or quit the premises). This test arises from the rule
that "[w]here no principle of public policy is violated, parties
are at liberty to forego the protection of law. . . . Where,
however, the object of a statute is to promote great public
interests, liberty, or morals, it cannot be defeated by any
private stipulation." Griffith v. New York Life Ins. Co., 36 P.
113, 117 (Cal. 1894) (citations omitted).
In a case similar to the present one, the Wisconsin
Supreme Court held that the terms of a contract between the City
of Madison and its police officers prevailed over a city
ordinance. The Wisconsin Supreme Court stated:
While it is true . . . that parties cannot
contract to violate a law or ordinance, that
rationale is a general statement which has no
bearing where, as here, the ordinance is a
specific one and is targeted at the exact
audience with whom the contract negotiations
are undertaken. Instead, that restriction
must be limited to situations where the law
or ordinance which arguably controls is one
which targets a general group, so that it
would be against public policy to allow one
sub-group, and one sub-group only, to escape
the operation of the law by means of a
contract.
City of Madison v. Madison Professional Police Officers Ass'n,
425 N.W.2d 8, 14 (Wis. 1988).
The provision in SPMO 03.70.020 that the police chief
may only be terminated for "just cause"is for the benefit of the
parties to the contract at issue in this case and does not affect
the rights of third parties or the public generally. Thus,
Ramsey's waiver of the "just cause"provision in the ordinance is
valid. We affirm the superior court's grant of summary judgment
to the City on this issue.
C. Did the City's Termination of Ramsey Violate His Due
Process Rights?
Ramsey claims that the City violated his right to due
process under article I, section 7 of the Alaska Constitution by
terminating him without notice and without a hearing.
The superior court granted summary judgment to the City
on this issue, stating:
The first step in analyzing a due
process claim is to determine whether the
plaintiff has been deprived of life, liberty
or property as defined under the Due Process
Clause. Breeden v. City of Nome, 628 P.2d
924, 926 (Alaska 1981).
In the present case, Ramsey had a
property interest in continued employment for
the thirty day notice period provided for in
the contract. Ramsey also had a property
interest in six months severance pay if the
City terminated him without cause.
Upon terminating Ramsey, the City paid
him seven months severance pay. By making
this payment, the City removed any prejudice
Ramsey may have suffered from the alleged
denial of due process. See Breeden, 628 P.2d
at 927. Consequently, Ramsey's due process
is extinguished, and the City is entitled to
summary judgment on this issue.
1. Property interest
Ramsey contends that the property interest he held in
his continued employment with the City went beyond the thirty-day
notice period set out in his contract. Ramsey argues that the
City deprived him of this property interest when he was
terminated without notice and a pre-termination hearing.
The City responds that Ramsey's contract provided that
he could be discharged without cause upon thirty days' notice,
and thus he had no property interest in continued employment past
the thirty-day period.
A public employee who serves at the pleasure of his
employer can have no expectation of continued employment and
therefore does not have a property interest in his job. Bishop
v. Wood, 426 U.S. 341, 344-347 (1976); Breeden v. City of Nome,
628 P.2d 924, 926 (Alaska 1981). In Breeden the plaintiff had an
employment contract terminable at will upon thirty days' notice.
We held that Breeden's property interest in continued employment
was limited to the thirty-day notice period. Breeden, 628 P.2d
at 927; see also Bishop, 426 U.S. at 344-47 (holding that public
employee who serves at pleasure of employer has no expectation of
continued employment, and therefore no property interest in job);
Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988), cert.
denied, 489 U.S. 1100 (1989); Roley v. Pierce County Fire
Protection Dist. No. 4, 869 F.2d 491, 494 (9th Cir. 1989).
Ramsey's contract was at will. Therefore, we hold that Ramsey
had a property interest only in the thirty-day notice period
required under his contract.
Ramsey was deprived of this property interest without
due process when he was terminated without notice. However, in
Breeden we held that the city could "remove any prejudice
resulting from its denial of due process by . . . allowing
Breeden the compensation which he would have been due for that
time." Breeden, 628 P.2d at 927. In this case, the City
compensated Ramsey for the entire thirty-day period, thus
removing any prejudice resulting from the lack of notice.
Therefore, we affirm the superior court's decision granting
summary judgment on this issue. (EN4)
2. Liberty interest
Ramsey also contends that the City deprived him of his
liberty interest because he was terminated under "a cloud of
allegations concerning use of excessive force, and was not
afforded an opportunity to address the charges at a pre-
termination hearing." Ramsey, relying on Revelle v. Marston, 898
P.2d 917 (Alaska 1995), argues that the circumstances surrounding
his termination implicate his liberty interest under the Alaska
Constitution.
In Revelle, this court affirmed the superior court's
determination that an employer's negative job evaluation did not
infringe upon a liberty interest because it did not impugn the
employee's honesty, integrity or morality. Id. at 926. This
court reasoned:
The Ninth Circuit has stated that in order to
infringe upon an employee's liberty interest,
an employer's negative remarks must belittle
the employee's "worth and dignity as an
individual,"so as to have "severe
repercussions outside of professional life."
Stretten v. Wadsworth Veterans Hosp., 537
F.2d 361, 366 (9th Cir. 1976). For example,
remarks that impose a stigma of moral
turpitude, such as charges of immorality or
dishonesty, intrude upon the liberty
interest. Negative remarks about an
employee's job performance primarily affect
the employee's professional life alone, and
generally are not considered so stigmatizing
as to harm reputation or foreclose future
employment.
Id.
In the present case, a group of Sand Point citizens
accused Ramsey of using excessive force. This accusation does
not implicate Ramsey's liberty interest because the accusation
directly concerns his professional performance and does not
impugn his honesty, integrity or morality. Further, the charge
of excessive force was made by private citizens, not the City.
See Fleisher v. City of Signal Hill, 829 F.2d 1491, 1495 (9th
Cir. 1987) (holding that liberty interest implicated only if the
employer creates and disseminates a false and defamatory
impression about the employee in connection with termination),
cert. denied, 485 U.S. 961 (1988). The city council cited no
official reason for Ramsey's termination. The council simply
voted to exercise its right to terminate Ramsey's contract
pursuant to the no-cause provision. We thus affirm the superior
court's decision granting the City summary judgment on Ramsey's
due process claim.
D. Did the City Breach the Implied Covenant of Good Faith
and Fair Dealing in Ramsey's Employment Contract When
It Terminated Him?
An implied covenant of good faith and fair dealing
exists in all at-will contracts. Revelle v. Marston, 898 P.2d
917, 926 (Alaska 1995). The covenant has both subjective and
objective elements. Luedtke v. Nabors Alaska Drilling, Inc., 834
P.2d 1220, 1224 (Alaska 1992). An employer engages in subjective
bad faith when it discharges an employee for the purpose of
depriving him or her of one of the benefits of the contract. An
illustration of this principle is found in Mitford v. de LaSala,
666 P.2d 1000, 1007 (Alaska 1983), where this court held that the
termination of an at-will employee for the purpose of preventing
him from receiving a promised share of future profits violated
the covenant.
Ramsey's employment contract authorized the City to
terminate him without cause, so long as it gave him thirty days'
notice of the termination. This was an at-will contract and as
such, contained an implied covenant of good faith and fair
dealing. Ramsey has not claimed that the City discharged him for
the purpose of depriving him of the benefits of his employment
contract, as was the case in Mitford. The only relevant benefits
guaranteed to Ramsey -- thirty days' notice and six months'
severance pay -- were realized by Ramsey when the City paid him
seven months' additional salary upon termination. The superior
court found that the subjective element of the covenant was not
implicated in this case. We agree that no genuine issue of
material fact has been raised on this issue.
The covenant of good faith and fair dealing also
includes an objective standard, under which the employer must
"act in a manner which a reasonable person would regard as fair."
Luedtke, 834 P.2d at 1224. The superior court found that
Ramsey's contract expressly provided that he could be terminated
without cause, and therefore it was not a violation of the
covenant of good faith and fair dealing to terminate Ramsey
without investigating the allegations in the petition. Ramsey
contends that the superior court erred when it granted summary
judgment on his good faith and fair dealing claim because a jury
could find that he was treated unfairly by the City.
The covenant of good faith and fair dealing is implied
in every contract in order to effectuate the reasonable
expectations of the parties to the agreement, not to alter those
expectations. See Mitford, 666 P.2d at 1007. The covenant of
good faith cannot be interpreted to prohibit what is expressly
permitted by Ramsey's contract with the City. See Carma
Developers v. Marathon Dev. California, 826 P.2d 710, 728 (Cal.
1992). This conclusion is consistent with our decision in Jones
v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989).
There, the plaintiff argued that it was a violation of the
implied covenant of good faith and fair dealing for her employer
to deny her a grievance hearing. We rejected that contention
because the employee manual expressly provided that supervisors
were not entitled to the benefits of the grievance procedure.
Id.
Ramsey's employment contract authorized the City to
terminate him for any reason whatsoever, so long as it paid him
an additional six months' salary as severance pay. As a matter
of law, a jury could not find the City's termination without an
investigation violated the implied covenant. Therefore, we
affirm the superior court's grant of summary judgment on this
issue.
E. Did the Superior Court Err in Failing to Find
Violations of the Open Meetings Act?
For bodies such as the city council, the Open Meetings
Act requires: "Reasonable public notice shall be given for all
meetings required to be open under this section. The notice must
include the date, time, and place of the meeting . . . ." AS
44.62.310(e). The Open Meetings Act provides that certain
excepted subjects may be discussed in an executive session that
is not open to the public, including "subjects that tend to
prejudice the reputation and character of any person, provided
the person may request a public discussion." AS 44.62.310(c)(2).
The superior court determined that the city council
meeting held on October 18 was properly noticed with the "date,
time, and place of the meeting,"as required by AS 44.62.310(e).
The court further found that the city council's decision to meet
in executive session to discuss the citizens' petition was proper
under AS 44.62.310(c)(2) and that Ramsey's decision not to appear
at the meeting constituted a waiver of his right to request that
the council discuss the petition publicly. In granting the
City's motion for summary judgment on this issue, the court
emphasized that the council decided to terminate Ramsey during
the public session of the meeting on October 19, 1993.
Ramsey argues that the superior court's conclusion was
error. Relying on University of Alaska v. Geistauts, 666 P.2d
424 (Alaska 1983), Ramsey maintains that the city council had a
duty to notify him that his employment would be discussed during
the council's executive session. In Geistauts we held that the
"sole purpose of a notice requirement under AS 44.62.310(c)(2) is
to afford the employee with an opportunity to request a public
discussion." Geistauts, 666 P.2d at 429. Thus, the employer in
that case was under "the implied statutory obligation to inform
Geistauts of the time and place of all meetings in which his
application [for tenure] would be considered and to inform him
that he had the right to request that the meetings be open to the
public." Id. at 429. Ramsey argues that the City failed to
provide him with this notice and thus violated the Open Meetings
Act. Ramsey's case is easily distinguishable from Geistauts.
Geistauts was not notified about any of the meetings regarding
his tenure, and there is no evidence that he would not have
attended had he been notified. Ramsey, on the other hand, knew
that the petition would be presented at the October 18th meeting
and chose not to attend. The City also informed him that his
employment would be discussed during executive session on October
19, and it extended an invitation to Ramsey to attend that
discussion in order to present his point of view. Again, he
chose not to go. (EN5)
While the council did not inform Ramsey that he could
request a public discussion of his employment, Ramsey chose not
to attend the meeting, in part because he did not want the
subject discussed publicly.
Q So you didn't go to the council meeting
because you thought this group of people
was going to get up and make bad
statements about the police department?
A In effect, yes. And I also probably in
the back of my mind thought "Well, if
they say things that are either untrue
or something that makes me angry, I
might say something that's
unprofessional", so I would avoid that
by not even going.
Any inadequacy of notice to Ramsey was thus harmless since, as
his testimony made clear, he chose not to exercise his right to a
public discussion of the issues relating to his employment. See
Hammond v. North Slope Borough, 645 P.2d 750, 765-66 (Alaska
1982). We also note that actual notice cures any defect in
formal notice given under the Open Meetings Act. North Star Tel.
Co. v. Alaska Pub. Utils. Comm'n, 522 P.2d 711, 714 (Alaska 1974)
(stating that "defects in administrative notice may be cured by
other evidence that the parties knew what the proceedings would
entail)."(EN6)
F. Was the Superior Court's Denial of Ramsey's Motion to Compel
Discovery an Abuse of Discretion?
The superior court denied Ramsey's motion to compel
discovery of all documents concerning the arrest or other police
contact of the council members, the mayor, and the people who
signed the petition to oust him as police chief on March 24,
1995. Ramsey argues that the superior court erred when it refused
to compel discovery of these documents. Ramsey contends that
these records were discoverable under Civil Rule 26(b)(1), which
provides that "[p]arties may obtain discovery regarding any
matter, not privileged which is relevant to the subject matter
involved in the pending action." Ramsey maintains that these
records were relevant, and therefore discoverable, because they
would have illustrated the bias of both those who sought to have
him removed from office and those who decided to remove him from
office.
The City maintains that the superior court was correct
in denying discovery of these documents because they are
irrelevant to the issues in this case. We agree. If cause were
required under Ramsey's contract with the City to terminate his
employment, then he might be entitled to such discovery.
However, since Ramsey's employment contract gave the City the
right to fire Ramsey for any reason at all, the requested
documents are irrelevant. To hold otherwise would be to
resurrect the requirement of "just cause"for termination which
Ramsey bargained away.
Ramsey also claims that he is entitled to inspect the
requested documents pursuant to the Public Records Act. The
Public Records Act provides in relevant part:
(a) Every person has a right to inspect
a public record in the state . . . except
. . . .
(6) records or information compiled for
law enforcement purposes, but only to the
extent that the production of the law
enforcement records or information
. . . .
(C) could reasonably be expected to
constitute an unwarranted invasion of the
personal privacy of a suspect, defendant,
victim, or witness . . . .
AS 09.25.120(a). The citizens of Sand Point have a reasonable
expectation that their contacts with the police department will
not be publicly disclosed simply because they signed a petition.
The superior court did not abuse its discretion in denying
discovery of the requested documents, and we therefore affirm the
superior court's denial of Ramsey's motion to compel discovery.
IV. CONCLUSION
For the foregoing reasons we AFFIRM the superior
court's grant of summary judgment in favor of the City, disposing
of all of Ramsey's claims against the City. We also AFFIRM the
superior court's order denying Ramsey's motion to compel
discovery.
ENDNOTES:
1. Sand Point Municipal Ordinance (SPMO) 03.70.020 provides:
The police chief shall be appointed by the
mayor subject to confirmation of the council.
His appointment shall be for an indefinite
period of time, depending on his good conduct
and efficiency. He shall be technically
qualified through training and experience and
shall have the ability to command men. He
may be removed only for just cause.
2. Ramsey apparently declined to resign because if he waited to
be fired he would receive six months' severance pay under his
employment contract.
3. When asked why, with knowledge of SPMO 03.70.020, he
proposed the section of his contract allowing termination without
cause if the City paid him six months' severance pay, Ramsey
answered that he did not believe that the ordinance would protect
him because he would not have the resources to fight a
termination in violation of the ordinance. Instead, he bargained
for severance pay as a form of liquidated damages for any
termination without cause. This contractual exchange of benefits
evidences both parties' intent for Ramsey to waive the protection
of the ordinance.
4. Ramsey also claims that the City breached his employment
contract when it failed to give him thirty days' written notice
of his termination. He maintains that by failing to give the
required notice, the City's attempt to terminate him was
ineffective as a matter of law. The superior court was correct
in its finding that the City's breach of the thirty-day notice
provision in Ramsey's employment contract was cured by the City's
payment to Ramsey of thirty additional days of salary.
5. Ramsey's testimony clearly demonstrates that he was aware
that his employment as police chief was scheduled to be a topic
of discussion at the council meetings on October 18 and 19.
A I didn't go to that meeting because I
heard there was going to be all these
people stand up and do whatever they
were going to do at the end regarding
this petition, and in my opinion that
was not the forum to defend myself or
the police department. So I wasn't
going to sit there and listen to all the
hogwash that I was expecting.
. . . .
Q And then the next morning, who did you
hear from that the city council was, in
fact, concerning [sic] terminating your
employment?
A Mr. Troll came in at some time in the
morning. I had been there a while so it
was after I normally go there. . . . As
I recall, I said to him, "Well, I hear
you had a late meeting last night". . .
and his response was . . . "Well, I
think it's time that we work out an
agreeable separation". . . .
. . . .
Q When you met with Tim Troll that morning
of October 19, did he tell you or invite
you to come appear before the council?
A I believe he informed me that I had a
right, and asked me did I want to go
talk to the city council, and I said no.
6. Ramsey also maintains that AS 44.62.310(b) was violated.
This section of the Open Meetings Act provides that "action may
not be taken at the executive session." There is conflicting
testimony as to whether the council instructed the city attorney,
Timothy Troll, to seek the resignation of Chief Ramsey during the
executive session on the evening of October 18, 1993. It is
undisputed that Troll did seek the resignation of Ramsey after
the executive session was recessed on the evening of October 18,
and before the executive session was reconvened in the afternoon
on October 19, suggesting that such an instruction was given.
However Ramsey challenges the City's decision to terminate his
employment, which was done during public session, not the
decision to request his resignation. Therefore, that violation
is not relevant to this appeal.
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