O'Keefe v. Raley, et.al.

                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 14 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PAUL D. O’KEEFE,

                Plaintiff-Appellant,

    v.                                                    No. 97-7106
                                                    (D.C. No. 96-CV-593-P)
    DONNY RALEY, Mayor; TERRY                             (E.D. Okla.)
    RUSHING, Vice-Mayor; WANDA
    GIBSON; CHARLES SYKES; BRIAN
    PARRISH, all members of the City
    Council of Madill, Oklahoma; CITY
    OF MADILL, OKLAHOMA, a
    municipal corporation,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff commenced a 42 U.S.C. § 1983 action alleging violation of his

Fifth Amendment due process rights with respect to the termination of his

employment as city manager of the defendant City of Madill, Oklahoma. 1 The

district court granted defendants’ motion for summary judgment. Plaintiff

appeals from that decision, and we affirm.

      At a meeting held on May 14, 1996, the city council voted to terminate

plaintiff. Shortly thereafter, plaintiff, based on his more than one-year tenure as

city manager, requested reinstatement and notice of the reasons for his proposed

removal and an opportunity for a public hearing before termination pursuant to

the city charter and personnel policy manual. In response, the city council

reinstated plaintiff, paid him back wages, suspended him without pay, and

scheduled a public hearing for June 13, 1996, to consider his continued

employment. Subsequently, the city counsel gave plaintiff written notice of its

concerns about his employment. At the June 13 hearing, the city council heard

evidence submitted by the city attorney. Plaintiff objected to the hearing, refused

to participate alleging bias by the city council members, and left the hearing



1
       Plaintiff also alleged his privacy was invaded. He abandoned this claim in
district court, and does not assert it on appeal.

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before its completion. At the end of the meeting, the city council again voted to

terminate plaintiff.

      Plaintiff then filed this civil rights action in district court. The district

court determined that although the termination at the May 14, 1996, meeting

violated the provisions of the Oklahoma Open Meeting Act, see Okla. Stat. tit. 25,

§§ 301-314, the city council properly treated the May 14 termination as invalid,

see id. § 313. Also, the court decided that plaintiff suffered no adverse

consequences by the violation because he was reinstated and given back wages.

With respect to plaintiff’s claim of denial of due process at the June 13, 1996,

hearing, the district court determined that although plaintiff had no entitlement to

future employment, the city council complied with the procedural requirements of

the city charter, the only authority granting plaintiff procedural rights, by

providing written notice and an opportunity for a public hearing. Furthermore,

the court determined that the city council was the only body empowered by both

city charter and statute, see Okla. Stat. tit. 11, § 10-106, to terminate a city

manager, regardless of any possible bias on its part.

      On appeal, plaintiff argues the district court erred in granting summary

judgment because (1) the city council violated Oklahoma’s Open Meeting Act, its

city charter, and its personnel policy manual when it first terminated plaintiff on

May 14, 1996; (2) plaintiff had a property interest in the city manager position


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which entitled him to due process prior to termination; and (3) the city counsel

failed to give plaintiff the due process to which he was entitled under the city

charter and personnel policy manual at the June 13, 1996, hearing.

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party. See Seymore v.

Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir.), cert. denied, 118 S. Ct. 342

(1997). Summary judgment is appropriate only if there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. See id.

      After examining the briefs on appeal, plaintiff’s appendix and the relevant

case law in light of this standard, we see no reversible error. Accordingly, we

affirm the grant of summary judgment for substantially the reasons stated by the

district court in its order of August 20, 1997.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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