Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

MEMORANDUM^* 

Appellant Graves appeals the grant of summary judgment against his claim under 42 U.S.C. § 1983 for damages sustained when appellee Arnado, the newly elected sheriff, revoked Graves' appointment as deputy sheriff. We affirm.

The district court certified two questions to the Oregon Supreme Court, whose opinion sets out the facts and frames the remaining issues. Graves v. Arnado, 768 P.2d 910 (1989). The Court held the county commissioners may impose conditions of due process or cause on the sheriff's authority to terminate the employment of deputies, but did not decide whether Josephine County did impose such conditions in this case. Id. at 912.

Graves argues we should consider the 1986 personnel rules (Rules) a contract and apply rules of contract interpretation in determining whether the county imposed conditions of due process or cause. We agree with the district court the Rules "were a legislative enactment by the Commissioners, and therefore rules of statutory construction apply." See id. at 913 (characterizing personnel rules as "county civil service law"). Accordingly, we examine the meaning of the Rules de novo. McGraw v. City of Huntington Beach, 882 F.2d 384, 387-88 (9th Cir. 1989).

We agree with the district court the most reasonable interpretation of the crucial language of Section 1.5--the Rules "shall be ... individually agreed to by elected officials"--"is that the individual elected officials have the option to accept or reject the 1986 Rules." Reading the word "shall" to mean "elected officials have no choice but to agree to the rules," as appellant proposes, would effectively eliminate this language from Section 1.5. The district court's interpretation is also supported by past practice: a prior version of the Rules containing identical language was approved in writing by each of the elected officials.

Graves argues the second sentence of Section 1.5 is inconsistent with our reading of the first. He reads the phrase "effective upon adoption" in the second sentence to mean the Rules apply to all employees immediately upon adoption by the Board, whether or not the elected officials agree. The words are as readily interpreted, and all are given meaning, by reading them to provide that the Rules are effective once adopted by the commissioners, but become applicable as to particular employees only when agreed to by the elected official under whom those employees work. In sum, unless the elected official agrees to the Rules, employees in that official's department continue to serve at the pleasure of the elected official.

Even if the Rules applied to Graves, however, they would not support his position. Under Section 1.8 of the Rules, Graves would still serve "at the pleasure of" Arnado.

The 1988 revisions do not cut in Graves' favor. Under the 1986 Rules deputy sheriffs are not covered unless the sheriff individually agrees; under the 1988 rules, deputy sheriffs are simply not covered at all; the sheriff is not given the option to agree.

We conclude unless the sheriff agrees to the Rules, those Rules do not limit the sheriff's authority under Or.Rev.Stat. Secs. 204.601 and 204.635 to revoke the appointment of deputy sheriffs at his "pleasure." Sheriff Arnado did not agree to the Rules. Adoption of the Rules could not be implied from Arnado's course of conduct since Arnado terminated Graves on his first day in office. Any course of conduct by prior sheriffs applying the Rules could not limit sheriff Arnado's authority to revoke Graves' appointment. 768 P.2d at 913. Moreover, the Rules themselves allowed termination of employees at the pleasure of the appointing official. Graves has no property interest in an expectation of continued employment.

Nor did the district court err in granting summary judgment for the defendants on Graves' state breach of contract claim. The only asserted basis for Graves' state contract claim is the Rules. Because the Rules do not cover Graves, and, if they do, make Graves' employment terminable at the pleasure of the sheriff, any contract with Graves was not breached by his termination.

AFFIRMED.