Greg Reeves v. City of Georgetown, Kentucky

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0826n.06

No. 12-6227

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 12, 2013
DEBORAH S. HUNT, Clerk
GREG REEVES )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CITY OF GEORGETOWN, KENTUCKY; ) COURT FOR THE EASTERN
EVERETTE VARNEY, individually, and in his ) DISTRICT OF KENTUCKY
official capacity as Mayor, City of Georgetown, )
Kentucky )

Defendants-Appellees.

Before: KEITH, WHITE, and STRANCH, Circuit Judges.

DAMON J. KEITH, Circuit Judge. Appellant Greg Reeves was formerly the police chief

of the City of Georgetown in Kentucky. On February 2, 2012, he was removed from his position by

the Mayor of the City of Georgetown, Everette Varney. Reeves brought this action under 42 U.S.C.

§ 1983, alleging a violation of his due process rights and a breach of contract claim. Reeves alleges

that Appellees the City of Georgetown and Mayor Varney in his individual and official

capacity terminated his employment without cause in violation of a City of Georgetown ordinance.

he district court dismissed Reeves’ claims and he filed a timely appeal. Upon de novo review, we

affirm the district court’s judgment.

From March 2004 until February 2, 2012, Reeves served as the police chief of the City of

Georgetown. His employment was terminated by Mayor Varney without notice or a hearing. Reeves
Reeves v. City of Georgetown,
No. 12-6227

alleges that his termination violated a City of Georgetown ordinance as well as his constitutional

rights.

The City of Georgetown ordinance Reeves relies on states that:
The police force of the city shall consist of the following officers: chief of police,
who is appointed by the mayor with approval of the city council and is subject to
removal at any time for cause by the city council[.]

Ch. 2, Art. V, Div. 3, § 2-147 (“§ 2-147”). Section 2-147 was originally enacted in 1966 and has

continuously been republished into the city’s code of ordinances as recently as February 23, 2009.

Reeves filed this suit in state court alleging that § 2-147 granted him a right to his employment and

that pursuant to § 2-147, his employment could only be terminated by the Georgetown City Council

for cause. Reeves sought reinstatement with full back pay and benefits, compensatory and punitive

damages, and attorney’s fees and costs. The Appellees removed the case to federal court and moved

to dismiss under Rule 12(b)(6).

The district court dismissed Reeves’ action, holding that § 2-147 was void because it

conflicted with Kentucky’s Home Rule Statutes, including KRS § 83A.130. The Home Rule

Statutes set forth the powers and duties of the mayor and the city council in cities such as

Georgetown that have adopted a mayor-council plan. Under the mayor-council plan, the executive

authority is “vested in and exercised by the elected council of the city.” KRS § 83A.130(3) & (11).

The Home Rule Statutes provides that the mayor “shall be the appointing authority with power to

appoint and remove all city employees, including police officers, except as tenure and terms of

employment are protected by statute, ordinance or contract and except for employees of the council.”

§ 83A.130(9).

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Reeves v. City of Georgetown,
No. 12-6227

The district court determined that § 2-147 did not simply “limit the mayor’s removal power”

as permitted by § 83A.130(9), but rather, transferred the mayor’s removal power to the city council.

Because the city council may perform executive functions only when those functions are “assigned

to it by statute,” § 83A.130(11), the court found that § 2-147 conflicted with § 83A.130(11) and was

thus void under KRS § 83A.020 (“All ordinances and resolutions presently in force in each city not

in conflict with the provisions of KRS [§] 83A.010 to [§] 83A.170 shall remain in force until

changed.”). Based on the conclusion that § 2-147 was void, the court determined that Reeves could

not show that he had a protected property interest in his public employment and thus could not state

a claim for violation of his substantive due process rights or breach of contract. This timely appeal

followed.

We review a district court’s Rule 12(b)(6) dismissal of a complaint for failure to state a

claim de novo. Brown v. Cassens Transp. Co., 675 F.3d 946, 953 (6th Cir. 2012). Conclusions of

law are also subject to de novo review. Dicicco v. U.S. Dep’t. of Justice INS, 873 F.2d 910, 913 (6th

Cir. 1989).

This case involves an interpretation of Kentucky state law. On questions of state law, this

Court is bound by the rulings of the state supreme court. Bradley v. Gen. Motors Corp., 512 F.2d

602, 604 05 (6th Cir. 1975). “When there is no state law construing a state statute, a federal court

must predict how the state’s highest court would interpret the statute.” United States v. Simpson, 520

F.3d 531, 535 (6th Cir. 2008). In the absence of any state supreme court precedent, a state’s

appellate court decisions are the best authority. Id. at 536.

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Reeves v. City of Georgetown,
No. 12-6227

Reeves’s claims must be dismissed if Mayor Varney had the authority to terminate him under

the Kentucky Home Rule Statute, KRS § 83A.080. The parties agree that the Kentucky Home Rule

Statute is valid. It states that the mayor of a municipality, like the City of Georgetown, “shall be the

appointing authority with power to appoint and remove all city employees, including police officers,

except as tenure and terms of employment are protected by statute, ordinance or contract and except

for employees of the council.” § 83A.130(9). Reeves argues that § 2-147 sets forth a term of

employment that is “protected by . . . ordinance” within the meaning of KRS § 83A.130(9), and that

under § 2-147, which states that “[the] chief of police, who is appointed by the mayor with approval

of the city council and is subject to removal at any time for cause by the city council,” he can only

be terminated for cause by the city council. Reeves argues that the local ordinance controls his case

and that his termination was unlawful.

Appellees, on the other hand, argue that there is a conflict between the two statutes, and that

§ 2147 is void. The district court adopted Appellees’ argument and dismissed the claims. We agree

that the claims were properly dismissed, but do not find the statute and ordinance in conflict. See

Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002)

(“[W]e may affirm on any grounds supported by the record even if different from the reasons of the

district court.”).

“We must begin by analyzing the plain language of statute.” Commonwealth v. Derringer,

386 S.W.3d 123, 127 (Ky. 2012). When considering the plain language of the Home Rule Statutes

and the local ordinance, there is no conflict that this panel must address. The Home Rule Statutes

gives the mayor authority to appoint and remove all city employees, although the statute does not

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Reeves v. City of Georgetown,
No. 12-6227

state that such power is solely left to the mayor. Section 2-147 simply states that the chief of police

is “subject to removal at any time for cause by the city council.” The Home Rule Statutes does not

strip the mayor of his or her authority to appoint and remove the chief of police; rather, a plain

reading of § 2-147 indicates that the city ordinance simply sets forth another option for a valid

termination of the chief of police by the city council for cause. Section 2-147 does not state that

the mayor is stripped of his or her removal authority, nor that the city council has the sole authority

to terminate the police chief. Because Reeves was terminated by the mayor, which is authorized,

his claims were properly dismissed.

Reeves relies on no authority other than § 2-147 for the proposition that he could only be

fired for cause. Because he provides no other authority, there is no basis for which this court can

consider his claims. Reeves was terminated by the mayor under the authority properly vested in the

mayor under the Kentucky Home Rule Statutes.

Accordingly, we AFFIRM the district court’s dismissal of the case in its entirety.

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Reeves v. City of Georgetown,
No. 12-6227

JANE B. STRANCH, Circuit Judge, concurring in the judgment. I agree this case was

properly dismissed, but I would affirm the analysis of the district court. The ordinance, § 2-147, is

substantively preempted under KRS § 83A.020 because it conflicts with the division of executive

and legislative authority specified in the applicable statute, KRS § 83A.130 (3) & (11). All

executive authority of the city is vested in the mayor, not the city council. Id. By contrast, § 2-147

gives executive power to the city council to remove the police chief for cause even though the statute

forbids the city council from performing “any executive functions except those functions assigned

to it by statute.” KRS § 83A.130(11). Because the ordinance conflicts with the statute, the

ordinance is preempted under KRS § 83A.020. Reeves served in the position of chief of police as

an at-will employee who did not have a property interest in employment. See Williams v. London

Util. Comm’n, 375 F.3d 424, 426 28 (6th Cir. 2004).

Any doubt about Reeves’s status at the time his employment was terminated is resolved by

two City of Georgetown ordinances enacted in 2009, Ordinance Nos. 09-010 and 09-014. Both

ordinances provide that all full-time city officers, department heads, and employees serve at will in

their positions as of July 1, 2011. R. 5 Page ID 47 51. At the time the mayor terminated Reeves’s

employment in February 2012, these two city ordinances clearly provided that he was an at-will

employee.

For these reasons, I would affirm the district court’s dismissal of the case.