Unpublished Disposition, 881 F.2d 1083 (9th Cir. 1988)

MEMORANDUM^* 

Harris was fired from his job as municipal court clerk and he brought this action challenging his dismissal on procedural due process and first amendment grounds. In separate orders, the district court granted summary judgment to all of the defendants. We affirm.

* Harris was hired in May 1969 as the Clerk and Administrative Officer of the Municipal Court, South Orange County Judicial District ("South Court"). Harris claims that, before he was hired, he was told by defendant Judge Hamilton that his position would be covered by the County's merit system of personnel administration. Harris asserts that, after he was hired, he was given a copy of the "Personnel and Salary Resolution for the County of Orange 1968-69," which outlined the County's merit system.

As Clerk and Administrative Officer of South Court, Harris had ultimate responsibility for the hiring and firing of court personnel. See Cal.Gov.Code Sec. 71181. In June 1984, the position of Legal Stenographer at South Court became vacant. The Legal Stenographer serves as the secretary for all of the judges at South Court, and, according to Judge Iles, the vacancy resulted in the judges having no full-time permanent secretarial assistance. Judge Iles asserts that Harris refused to fill the position because he believed that "the Court did not need the position." Judge Iles claims that around January 1985, a meeting was held at which Harris was directed by a majority of the judges of South Court to fill the Legal Stenographer position. By February, however, the position remained unfilled. Judge Iles, who was now the presiding judge, considered this situation intolerable, and she attempted to fill the position herself.

In late February, after conducting an interview, Judge Iles offered the Legal Stenographer job to Vivienne Ganci. Harris, however, refused to approve the appointment, insisting that only he had the authority to fill the position and that he had no intention of conducting further interviews until he had completed the process of reclassifying the position at a higher salary level. After several further discussions between Judge Iles and Harris, Judge Iles and Judge Hamilton, acting as a majority of the court, voted on June 26 to fire Harris.¹  That same day, Judge Iles sent a letter to Harris informing him that he was terminated effective August 15, 1985.

On May 5, 1986, Harris filed this action in federal district court against Judge Iles, Judge Hamilton, South Court, Orange County, Ruth Conn, and Russell Patton.²  In addition to several pendent state claims,³  Harris sought damages and declaratory relief, under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, for alleged violations of his procedural due process and free speech rights in connection with his termination. The procedural due process claim was based on the lack of a hearing, while the first amendment claim was based on the allegation that Harris was fired in retaliation for his statements that Judge Iles' attempt to hire Ganci violated state law.

On November 19, 1986, the district court granted summary judgment to the County and South Court on the grounds that, under the standards established in Monell v. Department of Soc. Servs., 436 U.S. 658 (1978), Harris had failed to articulate a theory under which the County or South Court could be held liable for the actions of Iles or Hamilton. A notice of appeal from this order was filed on December 18, 1986 (Appeal No. 86-6761). On September 30, 1987, the district court filed an order granting Iles' and Hamilton's motion for summary judgment on the grounds that Harris had no property right in his employment and that his first amendment rights were not violated. On October 29, Harris filed a timely notice of appeal with this court (Appeal No. 87-6562). On April 28, 1988, the appeals in Nos. 86-6761 & 87-6562 were consolidated.⁴ 

II

In addition to arguing that his procedural due process and first amendment rights were violated, Harris argues on appeal that South Court is not entitled to eleventh amendment immunity; that the County may be held liable for his firing; and that the judges are not entitled to qualified immunity. We need not decide these latter issues since we conclude that Harris' procedural due process and first amendment rights were not violated.

* In Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the Supreme Court defined the scope of property interests that are protected by the procedural due process limitations of the fourteenth amendment. The Court stated that, in order to have a property interest in a benefit, a person must have more than an "abstract need or desire for it" or a "unilateral expectation" of it. Id. Rather, the individual must "have a legitimate claim of entitlement to it." Id. The source of any such property interest lies not in the federal constitution, but in "independent source [s] such as state law." Id.; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Accordingly, whether Harris had a property interest in continued employment at South Court is decided by referring to California law. Although state law thus creates the property interest, "not all state-created rights rise to the level of a constitutionally protected interest." Brady v. Gebbie, 859 F.2d 1543, 1548 n. 3 (9th Cir. 1988), cert. denied, 109 S. Ct. 1577 (1989). It is an issue of federal law whether a particular state created interest rises to the level of a "legitimate claim of entitlement." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978).

In Miller v. State, 18 Cal. 3d 808, 813, 557 P.2d 970, 135 Cal. Rptr. 386, 389 (1977), the California Supreme Court emphasized the primary role that statutes play in determining whether an individual has an interest in continued public employment in California:

[I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law.

In the instant case, Cal.Gov.Code Sec. 74002 (West Supp.1989) clearly provides that the each of the clerks of the Orange County municipal courts shall "serve at the pleasure of [ ] a majority of the judges of the court." Furthermore, it is clear that, under California law, this statutory limitation prevails over any contrary claim based on contract or implied promise. See Miller, 18 Cal. 3d at 814, 135 Cal. Rptr. at 389 (" ' [t]he statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith.' ") (quoting Boren v. State Personnel Bd., 37 Cal. 2d 634, 641, 234 P.2d 981, 985 (1951)); see also Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426, 1432-33, 246 Cal. Rptr. 609, 612-13 (1988); Williams v. Los Angeles City Dep't of Water & Power, 130 Cal. App. 3d 677, 680, 181 Cal. Rptr. 868, 870 (1982). Accordingly, Harris clearly may not rely on the alleged oral promises of Judge Hamilton in order to circumvent the statute.

Harris makes three counterarguments as to why Sec. 74002 should not be considered controlling in this case. First, Harris points out that, at the time that he was first employed as court clerk in 1969, Sec. 74002 did not contain the provision stating that the clerk served "at the pleasure" of the judges. The applicable statute governing Harris' employment at that time was Cal.Gov.Code Sec. 71260, which provided that the clerks of municipal courts "shall hold office during good behavior and may be discharged ... only for the good of the service." Harris argues that this "property right" could not be altered, even by statute, without due process. Indeed, Harris argues that his asserted right to continued employment "vested" in 1969.

This contention is without merit. In Miller, the plaintiff argued that the state deprived him of a "vested" property right in continued employment when it lowered the mandatory retirement age from 70 to 67. The plaintiff pointed out that the age was lowered only after he had begun working, and argued that the change could not be applied to him without violating due process. 18 Cal. 3d at 811-12, 135 Cal. Rptr. at 387-88. The court rejected this contention, holding that the state had the power to alter the statutory provisions governing the terms and conditions of public employment. 18 Cal. 3d at 813-14, 135 Cal. Rptr. at 389.

Similarly, in Hinchliffe v. City of San Diego, 165 Cal. App. 3d 722, 724-25, 211 Cal. Rptr. 560, 560-61 (1985), a police officer argued that she was deprived of a property right when the city charter was amended to convert her from an employee who could only be fired for cause to an employee who served at will. The court rejected this argument, holding that:

The public employee ... can have no vested contractual right in the terms of his or her employment, such terms being subject to change by the proper statutory authority. [E]mployees of charter governments work subject to the amendment, revision or repeal of charter provisions affecting their employment.

165 Cal. App. 3d at 725, 211 Cal. Rptr. at 561. See also Vielehr v. State, 104 Cal. App. 3d 392, 396, 163 Cal. Rptr. 795, 797 (public employment rights are created by statute and may be modified by the legislature), cert. denied, 449 U.S. 953 (1980).

The federal procedural due process cases are to the same effect. See, e.g., Richardson v. Belcher, 404 U.S. 78, 81 (1971) (procedural due process does not "impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits"); Atkins v. Parker, 472 U.S. 115, 129 (1985) (same); Austin v. City of Bisbee, Ariz., 855 F.2d 1429, 1435-36 (9th Cir. 1988) (Congress had power to suspend employees' eligibility, under Fair Labor Standards Act, for overtime pay; property right was not vested); Jones v. Reagan, 748 F.2d 1331, 1338-39 (9th Cir. 1984) (government's termination of medical benefits for seaman did not affect vested rights; "Property rights to public benefits are defined by the statutes or customs that create the benefits. [citing Roth ] [When] the statute authorizing the benefits is amended or repealed, the property right disappears."), cert. denied, 472 U.S. 1029 (1985); Gattis v. Gravett, 806 F.2d 778, 780-81 (8th Cir. 1986) (holding that Arkansas legislature had authority to reclassify plaintiffs' employment from one that could not be terminated absent "just cause" to one that was "at will"; after reclassification, employees could then be fired without hearing). Since Miller and its progeny clearly establish that Harris had no vested right in his 1969 terms of employment, Sec. 74002 may be applied to Harris despite the fact that the relevant statutory provisions were adopted after he was hired.⁵ 

Second, Harris argues that Sec. 71260 does in fact still apply to him, and that it prevents him from being fired except for cause. This claim is also without merit. While Sec. 71260 is a general statute that, on its face, applies to all municipal court clerks in the state, Sec. 74002 is a more specific statute which establishes that the Orange County municipal court clerks are at-will employees. Under Cal.Civ.Code Sec. 3534 (West 1970), a special statute expressly dealing with a particular subject takes priority over a more general statute. According, Sec. 74002 controls over Sec. 71260 in this case.

Third, Harris argues that various California cases permit claims of a property interest in employment to be based on personnel regulations and other such sources. See, e.g., Walker v. Northern San Diego County Hosp. Dist., 135 Cal. App. 3d 896, 900-05, 185 Cal. Rptr. 617, 619-22 (1982); Figueroa v. Housing Authority, 131 Cal. App. 3d 528, 533, 182 Cal. Rptr. 497, 500 (1982); Healdsburg Police Officers Ass'n v. City of Healdsburg, 57 Cal. App. 3d 444, 450-51, 129 Cal. Rptr. 216, 219-20 (1976). The appellees respond by arguing that the lower court cases to which Harris refers are distinguishable and that, at any rate, they are inconsistent with the California Supreme Court's decision in Miller.

We need not decide whether the Municipal Court Personnel Rules could modify the "at-will" provisions of Sec. 74002 without violating Miller, because we conclude that the merit system provisions of the Rules simply do not apply to Harris in the first place.

Harris argues that Article VIII, Sec. 7(A) and Article III, Sec. 1(A) of the Municipal Court Personnel Rules establish that he may not be fired except for cause. We disagree. Although Harris correctly points out that several other provisions of the Rules expressly apply to the position of the court clerk, see, e.g., Article 1, Sec. 2(A) (establishing work period for court clerk); Article 1, Sec. 4(A) (excluding court clerk from eligibility for overtime); Article V, Sec. 2 (establishing vacation schedule for court clerk), we do not believe that Article VIII, Sec. 7(A) or Article III, Sec. 1(A) can fairly be read as applying to the position of the court clerk.

Article VIII, Sec. 7(A) and Article III, Sec. 1(A) are both broad provisions guaranteeing that employees of South Court are covered by a merit system and are subject to discharge only for cause. Construed literally, they could be taken as applying to the position of the court clerk. However, an examination of the Rules as a whole indicates that this construction is incorrect. These two broader provisions must be construed in light of the more detailed provisions of Article III and Article VIII, which describe how the merit system at South Court is to be implemented. In particular, we note that Article VIII, Sec. 1 provides that "the discipline and/or discharge of Court employees shall be determined and imposed, when necessary, by the Clerk and Administrative Officer of the Court involved." Since the merit protection system of Article VIII is placed under the exclusive control of the court clerk, it would be quite anomalous to interpret its provisions as applying to the clerk's position itself. Such a construction would lead to the absurd conclusion that the court clerk is to handle and supervise the matter of his own firing. Accordingly, it seems clear that the merit protection provisions of Article VIII are meant to apply only to court employees who are under the clerk's supervision. Similarly, the primary role assigned to the clerk in the administration of the provisions of Article III, see, e.g., Sec. 2(B) (court clerk determines selection methods for non-entry level positions); Sec. 4 (court clerk handles evaluation and rating of employees), indicates that its merit selection provisions should not be construed as applying to the court clerk's position. Furthermore, to the extent that Article III, Sec. 1(A) has anything to say about the discharge of employees, it must be construed in light of the provisions of Article VIII that specifically outline the procedures for discharge. For these reasons, we conclude that the merit system provisions of the Municipal Court Personnel Rules do not apply to the position of the court clerk.⁶ 

Because Harris has not pointed to anything that would support his contention that he had a property right in his continued employment despite the at-will provision of Cal.Gov.Code Sec. 74002, we conclude that the district court properly concluded that Harris had no such property interest and that he was therefore not entitled to a predischarge hearing.

B

Regardless of whether Harris had a property interest in continued employment, he may also prevail if he can show that he was discharged for exercising his first amendment right to free speech. Rankin v. McPherson, 483 U.S. 378, 383-84 (1987). The Supreme Court has established a two part test for determining whether a public employee's speech is protected by the first amendment. First, the court must consider whether the speech "may be 'fairly characterized as constituting speech on a matter of public concern.' " Id. at 384 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). This evaluation is made in light of the content, form, and context of the statement. Connick, 461 U.S. at 147-48. If the answer is yes, then the court must "balance [the employee's] interest in making [the] statement against 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Id. at 388 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). The question whether Harris' speech is protected by the first amendment is an issue of law that is reviewed de novo. See Allen v. Scribner, 812 F.2d 426, 430 n. 8 (9th Cir. 1987), amended, 828 F.2d 1445 (9th Cir. 1987).

In McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983), this court defined the parameters of the concept of "public concern" as follows:

Speech by public employees may be characterized as not of "public concern" when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies. On the other hand, speech that concerns issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government merits the highest degree of first amendment protection.

Applying these standards, it seems clear that Harris' statements concerned only individual personnel disputes and not matters of public concern. According to Harris' affidavit, which we take as true for purposes of summary judgment, Harris made the following statements: (1) He told Mike Harman, a Staff Analyst for the Orange County Personnel Department, that he had not agreed to the hiring of Ganci and referred Harman to various provisions of the Government Code and the Municipal Court Personnel Rules; (2) Harris wrote to Iles that he would not hire Ganci; (3) Harris told Iles that she could not sit in on interviews since by law he had the sole authority to interview and select applicants.⁷  These statements amount to little more than the complaints of a bureaucrat fighting over turf.

Harris attempts to color his comments by suggesting, quite heroically, that his statements were essentially part of an effort to thwart and expose Judge Iles' "illegal" attempt to hire a secretary. This argument is wholly unpersuasive. Although this court has repeatedly held that the reports of "whistleblowers" are matters of public concern, see, e.g., Roth v. Veteran's Admin., 856 F.2d 1401, 1406 (9th Cir. 1988), Harris' comments simply do not fall within this category. Harris can hardly be said to have been seeking to "bring to light actual or potential wrongdoing or breach of public trust." Connick, 461 U.S. at 148. Indeed, each of his statements was little more than an effort to win a bureaucratic tug of war with his immediate superior. See id. at 147 ("when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, a federal court is not the appropriate forum"); Roth, 856 F.2d at 1406 (noting that it is relevant whether the employee's point was to bring wrongdoing to light or to further some purely private interest). Since Harris' statements did not involve matters of public concern, Harris cannot establish that his first amendment rights were violated. Accordingly, we affirm the district court's grant of summary judgment to the defendants on this issue.

III

Because the district court correctly concluded that neither Harris' procedural due process rights nor his first amendment rights were violated by his termination, we affirm the grant of summary judgment as to all defendants.⁸ 

CONCLUSION

Appeal No. 86-6761 is dismissed. Reviewing, however, both summary judgment orders under appeal No. 87-6562, we hold that the judgments of the district court are

AFFIRMED.