Hudlow v. City of Rogers, Arkansas et al
MEMORANDUM OPINION granting in part and denying in part 32 Motion for Partial Summary Judgment and granting in part and denying in part 36 Motion for Partial Summary Judgment. Signed by Honorable Jimm Larry Hendren on October 21, 2013. (tg) Modified on 10/21/2013 to correct text(tg).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 12-5168
CITY OF ROGERS, ARKANSAS; and
C. GREG HINES, Individually
and in his Official Capacity
consideration Plaintiff's Corrected Motion for Partial Summary
Judgment (document #32) and Defendant's Cross Motion for Partial
sufficiently advised, finds and orders as follows with respect
Plaintiff Jerry Hudlow filed this action against the
City of Rogers and Mayor C. Greg Hines, alleging that they
(deprivation of rights) and Ark. Code Ann. § 21-1-601 et seq.
(Arkansas Whistleblower Act) when they terminated him from his
position as City Treasurer.
On August 19, 2013, Mr. Hudlow filed his motion for
partial summary judgment as to the claims brought under 42 U.S.C.
§ 1983 and Ark. Code Ann. § 16-123-105. Specifically, he argues
that he had a constitutionally protected property interest in his
continued employment as City Treasurer, of which the defendants
deprived him without due process.
On August 30, 2013, the defendants brought a cross-
motion for partial summary judgment in which they argue that Mr.
Hudlow cannot recover punitive damages against the City of Rogers
or Mayor Hines in his official capacity. They also argue that
Mayor Hines is entitled to qualified immunity from the claims
brought against him in his individual capacity.
In response to the cross motion, Mr. Hudlow concedes
that he is not entitled to recover punitive damages against the
City of Rogers or Mayor Hines in his official capacity. He
contests the remaining arguments.
These are the undisputed material facts relevant to both
The City of Rogers is a city of the first class,
organized and existing by virtue of the laws of the State of
Defendant C. Greg Hines is the Mayor of the City of
Rogers. In all of his actions related in these facts, Mayor Hines
acted for himself and as an agent for and on behalf of the City of
Arkansas law, specifically Ark. Code Ann. § 14-43-
405(a)(1), allows all cities of the first class having a mayorcouncil form of government to provide, by ordinance, for the
election or appointment of their city treasurer.
The City of Rogers enacted ordinances in 1982 and 1997
that provide for the appointment of a City Treasurer by the Mayor
and confirmation of the appointment by a two-thirds vote of the
ordinances are codified at Rogers Code § 2-227.
Mr. Hudlow was appointed City Treasurer for the City of
Rogers by its then-Mayor on August 27, 2002. His appointment was
confirmed on the same date by a 7-1 vote of the City Council.
Mayor Hines, then a member of the City Council, cast the one vote
against Mr. Hudlow's appointment. Mr. Hudlow's appointment was
effective October 1, 2002.
Mayor Hines was familiar with § 2-227 when Mr. Hudlow
was City Treasurer.
Mr. Hudlow took an oath of office as City Treasurer in
January 2003 pursuant to Ark. Const. art. 19, § 20, Ark. Code Ann.
§ 14-42-106, and Rogers Code § 2-228.
Mr. Hudlow was never reappointed as City Treasurer for
the City of Rogers but took oaths of office in January 2007 and
On May 14, 2012, Mr. Hudlow was called to Mayor Hines'
office at approximately 8:00 a.m., where Mr. Hudlow met with Mayor
Hines and City Attorney Ben Lipscomb. Mayor Hines told Mr. Hudlow
that he had the option of either resigning or being fired.
Mr. Hudlow refused to resign, protesting that he had
done nothing wrong.
Mayor Hines then produced and delivered to Mr. Hudlow a
letter dated May 14, 2012, which read:
Please accept this letter as official notification of
immediate termination. The City of Rogers is no longer
in need of your services. Any and all city owned
property in your possession should be returned
immediately. Your final paycheck will include the payout
of any accrued vacation time.
Mr. Hudlow told Mayor Hines and Attorney Lipscomb that
they were violating the City of Rogers' ordinances by attempting
to remove him from office in this manner.
Attorney Lipscomb responded that he would not debate the
question with Mr. Hudlow.
Mayor Hines then accompanied Mr. Hudlow to Mr. Hudlow's
office, where he demanded that Mr. Hudlow give him the City's
access reader fob and the key to Mr. Hudlow's office. Mayor Hines
threatened to call the police if Mr. Hudlow did not leave the
building. Mayor Hines told Mr. Hudlow to "get the f*** out of my
Report," which described the reasons for Mr. Hudlow's termination,
to members of the City Council and invited them to contact him.
Mayor Hines subsequently directed Mr. Hudlow to the
post-deprivation relief afforded a terminated department head, as
provided by Ark. Code Ann. § 14-42-110.
Mr. Hudlow did not appeal his termination to the City
Council pursuant to Ark. Code Ann. § 14-42-110.
The City Council was advised to refrain from discussing
the termination with Mr. Hudlow without the City's attorney
The City of Rogers, through Attorney Lipscomb, justified
Mr. Hudlow's termination under Ark. Code Ann. § 14-42-110(a)(1),
which reads in pertinent part as follows:
Mayors in cities of the first class and second class and
incorporated towns shall have the power to appoint and
remove all department heads....
Mayor Hines testified in a deposition that he fired Mr.
Hudlow "[u]nder the executive authority invested in me by the
voters of Rogers as the chief executive officer of the city" and
"that department heads serve at the pleasure of the mayor."
There is no writing promulgated by the City of Rogers
which identifies its City Treasurer as being a "department head."
The defendants have identified nineteen "department
heads" within the City of Rogers, including the position held by
Mayor Hines testified that the City Council confirmed
the Mayor's appointments of Treasurer, Police Chief, and Fire
However, there are no minutes of the City Council that
document the confirmation of the appointments of Police Chief and
There was in effect on May 14, 2012, an Arkansas statute
that provides a procedure for removing appointed city officers.
This statute, Ark. Code Ann. § 14-42-109(a)(2), reads
The council of any city or incorporated town may
provide, by proper ordinance, for the removal of any
appointive officer upon a majority vote of the council.
(aa) There was in effect on May 14, 2012, an ordinance of the
City of Rogers, which reads
The city treasurer may be removed from office for cause
upon a two-thirds vote of the elected and qualified
members of the city council.
The ordinance is codified at Rogers Code § 2-234.
(bb) Mayor Hines was aware of § 2-234 when he fired Mr.
(cc) Mr. Hudlow was not removed from office by a vote of the
(dd) On May 29, 2012, Mr. Hudlow -- by letter to Mayor Hines
-- requested a "name clearing" hearing.
(ee) Richard McComas was hired as Mr. Hudlow's replacement as
position, and the appointment was confirmed by the City Council.
(ff) The City Council approved Ordinance 13-06 on January 8,
2013. This Ordinance created the position of Director of Finance,
which reports directly to the mayor. Ordinance 13-06 replaces "any
previously adopted ordinance." Mayor Hines appointed Casey Wilhelm
to this position, as Mr. McComas retired as Treasurer in March
2013. The City of Rogers currently operates without an elected or
Summary judgment is appropriate only where there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.56(a).
affidavits which demonstrate the absence of a genuine issue of
material fact, the nonmoving party must go beyond the pleadings
and, by its own affidavits or discovery, set out specific facts
showing a genuine issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the nonmoving party fails to do so, the
moving party is entitled to judgment as a matter of law. Id.
Mr. Hudlow's Motion
The arguments in each motion essentially raise the same
whether, as a matter of law, Rogers Code § 2-234
provides the sole procedure for properly terminating a person in
the position of City Treasurer. If so, Mr. Hudlow could only be
protected property interest in continued employment. See Bennett
v. Watters, 260 F.3d 925, 927 (8th Cir. 2001) ("A public employee
has a property interest when there are 'contractual or statutory
limitations on the employer's ability to terminate an employee,'
such as a contractual right to be terminated only for cause.") But
if not, Mr. Hudlow could properly be terminated without cause
pursuant to Ark. Code Ann. § 14-42-110(a)(1).
To answer this question, the Court looks first to the
Arkansas Code. See Bishop v. Wood, 426 U.S. 341, 344 (1976)
(whether a property interest in employment exists must be decided
by reference to state law). Arkansas law allows a city of the
first class with a mayor-council form of government (like the City
appointment of its City Treasurer. Ark. Code Ann. § 14-43-405(2).
It further allows the council of any such city to provide, by
ordinance, for the removal of any appointive officer upon a
majority vote of the council. Ark. Code Ann. § 14-42-109(a)(2).1
Pursuant to these statutes, the City of Rogers enacted Rogers
Code §§ 2-227 and 2-234. Section 2-227 states that the City
Treasurer shall be appointed by the mayor and confirmed by a vote
of two-thirds of the City Council. Section 2-234 states that the
The term of office for a city treasurer is four years. Ark. Code Ann. § 14-43405(b). Pursuant to Ark. Const. art. 19, § 5, all officers continue in office after the
expiration of their terms until replaced by a successor.
City Treasurer may be removed from office for cause upon a twothirds vote of the City Council. These sections are found within
Article III, Division 5 of the Rogers Code of Ordinances, which
sets out all sections specifically relevant to the position of
By stating that removal pursuant to § 2-234 must be "for
cause," it appears the City of Rogers has created a property
interest in employment for the position of City Treasurer, which
can only be deprived after due process. However, the defendants
argue that § 2-234 was not intended to be the only vehicle for
removing a City Treasurer. They contend that Ark. Code Ann. § 1442-110 provides an alternate manner of removing a City Treasurer,
Arkansas Code Annotated § 14-42-110(a)(1) provides that
a mayor of a city of the first class may appoint and remove all
department heads, unless the city council votes, by a two-thirds
majority, to override the mayor's action. That this section
(titled "Removal and appointment power") is separate from the
aforementioned § 14-42-109 (titled "Removal of officers") suggests
that the two sections are intended to apply to two different types
officers and department heads.
The defendants urge that Mr. Hudlow, as City Treasurer,
was a department head and, as such, was subject to the removal
contradicts that assertion.
Rogers Code § 2-228 requires a City Treasurer to take an oath
of office. The ordinance references Ark. Const. art. 19, § 20 -which requires all public officers to take an oath of affirmation
before entering the duties of their respective offices -- and Ark.
Code Ann. § 14-42-106 -- which provides, in part, that all
municipal officers, whether elected or appointed, must take the
oath proscribed for officers by the Arkansas Constitution.
Likewise, Rogers Code § 2-229 requires a City Treasurer to
give a good and sufficient surety bond to the city before entering
the discharge of his duties. That section also references § 14-42106, which further provides that a city council may require its
officers to post such a bond. Ark. Code Ann. § 14-42-106(c).
Clearly, the drafters of the Rogers Code perceived the City
Treasurer as an officer.
Treasurer for the City of Rogers is an officer. The Court further
finds that, since the removal of officers and department heads are
treated differently under Arkansas law, the removal provisions for
a department head in § 14-42-110 are inapplicable to the removal
of the Rogers City Treasurer. Therefore, the City Treasurer can
only be removed for cause pursuant to Rogers Code § 2-234.
As the City Treasurer, Mr. Hudlow could only be removed
from office for cause, and only upon a two-thirds vote of the City
Council. Thus, he had a legitimate expectation of continued
employment, of which he could not be deprived without due process.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985); Bennett, 260 F.3d at 927.
The "root requirement" of the Due Process Clause has been
described as being "that an individual be given an opportunity for
a hearing before he is deprived of any significant property
Connecticut, 401 U.S. 371, 379 (1971); emphasis in original).
Thus, when a public employee has a constitutionally protected
property interest in his employment, due process requires some
kind of hearing prior to the employee's termination.2 Loudermill,
470 U.S. at 542.
Mr. Hudlow was not afforded a hearing prior to his
termination. Therefore, the Court finds that he was deprived -without
Defendants' Cross Motion
As Mr. Hudlow has conceded the issue of punitive damages
against the City of Rogers and Mayor Hines in his official
capacity, the remaining issue presented in the defendants' cross
As noted in Loudermill, there are some situations in which a post-deprivation
hearing would satisfy due process. See Ewing v. Mytinger & Casselberry, 339 U.S. 594
(1950); N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908). The case does
not present one of those situations.
motion for partial summary judgment is whether Mayor Hines is
entitled to qualified immunity on the individual-capacity claims.
Qualified immunity is a doctrine that has evolved to
protect government officials from liability for civil damages
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The doctrine "gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law."
Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012). Even
where a constitutional violation has occurred, "[o]fficials are
not liable for bad guesses in gray areas; they are liable for
transgressing bright lines." Davis v. Hall, 375 F.3d 703, 712 (8th
Regarding the property-interest claim, the Court has
already determined that Mr. Hudlow's termination was a violation
of his constitutional right to due process. The Court now turns to
the question of whether that right was clearly established under
existing law. To be clearly established,
[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he
is doing violates that right. This is not to say that an
official action is protected by qualified immunity
unless the very action in question has previously been
held unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Mayor Hines contends that he reasonably believed the
City Treasurer was a department head and, thus, he possessed the
authority to terminate Mr. Hudlow without cause pursuant to Ark.
Code Ann. § 14-42-110(a)(1) -- despite the City's ordinance
providing for the removal of the City Treasurer. He argues that,
because no state court has ruled on the issue of whether a city
treasurer is a department head or an officer, the issue is
unclear, and the alleged property right in continued employment
has not been clearly established.
There is no dispute among the parties that the City of
Rogers has a separate division of its code of ordinances dedicated
to the position of City Treasurer -- the position Mr. Hudlow held.
That code division contains a specific provision for removal,
contains a "for cause" limitation on removal. The parties agree
that Mayor Hines was aware of this provision when he terminated
However, Mayor Hines argues that the wording of Rogers Code
§ 2-234 -- that the City Treasurer "may" be removed from office
for cause upon a two-thirds vote of the City Council -- indicates
that this method of removal was not intended to be exclusive.
Indeed, the drafters of the Rogers Code could have used the phrase
"may only be removed" to indicate exclusivity, but by using the
word "may," the meaning is left open to varying interpretations.
Further complicating the matter is the fact that the terms
"department head" and "officer" are not defined anywhere in the
studying the matter and, thus, has determined that the Rogers City
Treasurer is an officer, an official in Mayor Hines' position
should not, under the threat of paying damages, be required to
anticipate how a judge would apply the maxims of constitutional
law -- about which even judges sometimes disagree -- when there is
a need for prompt action. See Habiger v. City of Fargo, 80 F.3d
289, 296 n.4 (8th Cir. 1996). "Officials with a broad range of
duties and authority must often act swiftly and firmly at the risk
abdication of office." Davis v. Scherer, 468 U.S. 183, 196 (1984)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 246 (1974).
In light of the foregoing, the Court finds that whether
the Rogers City Treasurer was an officer or a department head was
unclear at the time of Mr. Hudlow's termination, and thus, whether
Mr. Hudlow had a property interest in continued employment was not
qualified immunity as to the property-interest due process claim.
In the cross motion, Mayor Hines further suggests that
satisfied any due process to which Mr. Hudlow was entitled. This
argument appears to address Mr. Hudlow's liberty-interest claim.
"An employee's liberty interest is implicated where the
employer levels accusations at the employee that are so damaging
as to make it difficult or impossible for the employee to escape
the stigma of those charges." Allen v. City of Pocahontas, Ark.,
340 F.3d 551, 556 (8th Cir. 2003) (quoting Shands v. City of
Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993)). When a government
employee is deprived of a constitutionally protected liberty
interest, he is entitled to procedural due process in the form of
a name-clearing hearing held at a meaningful time, during which
the employee can respond to the employer's accusations. Winskowski
v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006). The
Eighth Circuit has held that a government employee cannot recover
for a due process violation where he failed to avail himself of an
available post-deprivation remedy. Id. at 1110–11.
Mayor Hines makes no argument in this motion that Mr.
Hudlow was not entitled to a name-clearing hearing; he simply
asserts that, if Mr. Hudlow was so entitled, he failed to avail
himself of the process that was available. Essentially, he argues
that there was no violation of Mr. Hudlow's right to due process
as it relates to a liberty interest.
Assuming without deciding that Mr. Hudlow was entitled to a
name-clearing hearing, based on the undisputed facts, the Court
finds that such a hearing was not made available to him. Mr.
Hudlow specifically requested a hearing to address accusations
against him that were reported to the local news media. (Letter
from Hudlow to Hines dated May 29, 2012, document #32-8). In
response, he was directed to the appeal procedure provided in Ark.
termination with or without cause, not reputation. Thus, the Court
finds that Mr. Hudlow's decision not to appeal his termination
recovery for a liberty-interest due process violation.
IT IS THEREFORE ORDERED that Defendant's Cross Motion for
Partial Summary Judgment (document #36) is granted in part as to
the issues of punitive damages and qualified immunity, as it
relates to the property-interest claim. Mr. Hudlow's claim for
punitive damages against the City of Rogers and Mayor Hines in his
property-interest claim against Mayor Hines in his individual
capacity is hereby dismissed.
IT IS FURTHER ORDERED that Defendant's Cross Motion for
Partial Summary Judgment (document #36) is denied in part to the
extent it relates to the liberty-interest claim.
IT IS FURTHER ORDERED that Plaintiff's Corrected Motion for
Partial Summary Judgment (document #32) is hereby granted in part.
Mr. Hudlow is entitled to summary judgment on his propertyinterest claim against the City of Rogers and Mayor Hines in his
official capacity. The motion is denied in part to the extent it
relates to Mayor Hines in his individual capacity, as he is
shielded by qualified immunity.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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