concurring and dissenting.
I agree with the result of the majority opinion with respect to the claim against the State of Wyoming. That aspect of the summary judgment should be reversed and the case remanded for trial on that claim. I would, however, articulate the rationale for that reversal differently in some respects. With respect to the summary judgment in favor of Roger W. Dewey, I would give him the benefit of the doctrine of qualified immunity and, in disagreement with the majority of the court, I would affirm that aspect of the summary judgment.
I agree with the majority that the State of Wyoming Personnel Rules should be considered as equivalent to an employee handbook or manual. I am reluctant, however, to suggest that the Personnel Rules create a property interest in a probationary employee in the context of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The injustice that I am concerned with in this case is not the deprivation of Linda Abell’s property right in her State employment. I am concerned with the possibility that the reasonable cause of which she was notified in the termination letter was a reason that she had been told would not be invoked. I would perceive a felony conviction as a reasonable cause for termination in most instances, even though it is not specifically included in the reasons for discipline found in the personnel manual. The same Personnel Rules specifically disavow any right of review and require nothing more than a statement of reasonable cause in the termination letter. Recognition of a general property right in favor of a probationary employee would mean that those provisions are inconsistent with the due process rights articulated in Loudermill.
The difficulty in this instance, as I perceive the facts, is that a special condition of employment was attached to Abell’s contract. That condition, in effect, was that the State would not discharge her for the felony conviction. After the State learned of the conviction, Abell was reassured that it was not a problem, and the conviction would not be invoked for termination. It seems to me that this feature did create a property right by virtue of the contract that would foreclose that ground for discharge. Any letter of termination would have to articulate some other reasonable cause.
I believe that the State recognized this inherent barrier because the termination letter, while it referenced the felony conviction based upon a plea of nolo contendere and asserted that reason for discharge, articulated other reasons. Dewey also stated that Abell could not adjust to the auditor *44position; her record did not meet State standards; and her criminal record would have an adverse effect on the credibility of audits performed by the State. The record does not support the charge that Abell could not adjust to the auditor position, nor does it support the claim that she .failed to meet State standards so far as work performance is concerned. The adverse effect of the criminal record on the credibility of audits, if not simply an evasion of the special condition of employment, is a highly subjective matter about which reasonable persons could disagree. Consequently, if that is the reasonable cause for termination as required by the Personnel Rules, in my judgment, the reasonableness of the termination must be tested in a factual context. These are my reasons for requiring a trial.
.With respect to the summary judgment in favor of Dewey, there is nothing in the record that would support a conclusion of malice on Dewey’s part. I am not satisfied that the contours of any right of Abell’s were sufficiently clear that a reasonable official would recognize a letter of termination like the one delivered in this 'case as violative of Abell’s property interest. This is particularly true because of the very limited contractual property right that I find present in these circumstances. I would hold that Dewey was entitled to the benefit of the doctrine of qualified immunity in the context of Park County v. Cooney, 845 P.2d 346 (Wyo.1992), and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
I would reverse the summary judgment granted to the State of Wyoming, remanding the. case for trial on the question of whether the impact of Abell’s conviction on the integrity of the State auditing process was a reasonable cause for termination. I would affirm the summary judgment in favor of Roger W. Dewey on the ground that he has demonstrated his right to the benefit of the doctrine of qualified immunity.