Thus, a plaintiff might be able to show from the circumstances of his or her employment that there may be an "unwritten common law" in a particular agency. Id.
Plaintiffs contend that such a procedure applicable to promotions does exist in the Allentown Police Department. This procedure included notice of the availability of a position, the right of all employees to apply for that position by submitting resumes, and the administration of a series of oral tests and interviews. The plaintiffs argue that if such a right to be heard exists relative to promotions, then a right to be heard must exist relative to demotions. They conclude that this established procedure created a "common law" within the department which they came to rely on, conferring on them an entitlement to the position of detective and the right to a hearing prior to any demotion from that position. Plaintiffs also point to the regulations promulgated by defendant Gable which took effect on July 21, 1982, as evidence that the putative former procedure existed. They claim that the new guidelines essentially codified prior practice and explicitly provided for hearings in the case of demotions.
I cannot accept plaintiffs' theory for several reasons. First, the procedure referred to in Perry that created a "common law" entitling the plaintiff therein to public employment consisted of a series of written guidelines promulgated by the state and contained in a set of printed handbooks. While the Perry opinion does not limit the creation of an entitlement through an implied procedure to a situation involving printed guidelines, I conclude that Perry should not be extended to situations like the one presented here where the implied procedure consisted of an informal loosely structured system governing only promotions. The plaintiffs have failed to demonstrate that any implied procedure relative to demotions exists.
Plaintiffs also argue that certain provisions of the governing labor contract provide an express written entitlement beyond the implied common law procedure. They assert that the inclusion of a grievance procedure in the contract implies that conflicts will be resolved through arbitration and that dismissals and demotions will be evaluated based upon considerations of "just cause." They allege that if the grievance arbitration provisions are to have any meaning, demotions may only be made for just cause. This, they allege, is the equivalent of a formal understanding which creates a claim of entitlement.
I cannot accept this argument. Nowhere in the contract is it specifically stated that issues involving demotions are subject to the grievance and arbitration machinery. Only disputes "arising under this contract" or "involving the interpretation or application of this agreement" are subject to arbitration. Demotions of police officers are not governed by the labor contract but by statute, and are therefore not subject to the grievance machinery of the contract. Thus, no express written entitlement has been created through the inclusion of grievance and arbitration provisions in the collective bargaining agreement.
To accept plaintiffs' line of reasoning would mean that by entering into a collective bargaining agreement containing a grievance-arbitration provision, a local government entity would effectively repeal that aspect of the Third Class City Code vesting the mayor with the authority to promote or demote police officers. I find that this result flies in the face of logic and would result in localities being able to repeal acts of the Pennsylvania legislature at their whim. I refuse to accept this result.
Plaintiffs' final argument -- that "attacks" on their reputation and integrity entitle them to the protection of the due process clause -- must also be rejected. They assert that public announcements that they "deserved" demotion because of their participation in a "clique" that was undermining morale and efficiency in the department put the "good name, reputation, honor and integrity" of each of them in jeopardy, and entitled them to a hearing on the allegations.
See Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Plaintiffs have thus attempted to implicate the liberty interest protected by the fourteenth amendment. If they are correct and liberty interests protected by the fourteenth amendment are implicated, "the right to some kind of prior hearing is paramount." Id. at 569-570.
The Supreme Court has often emphasized that the concept of liberty for due process purposes should be given a broad interpretation. Roth at 570; See also Bolling v. Sharpe, 347 U.S. 497, 499-500, 98 L. Ed. 884, 74 S. Ct. 693 (1954); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). In Roth, however, the Court refused to find that the state's failure to rehire the plaintiff implicated his liberty interests. Id. 408 U.S. at 573. The Court recognized that liberty interests might be implicated in some termination cases, but found that the state's failure to rehire the plaintiff, a professor of political science at a state university, did not involve charges that might "seriously damage his standing and association in the community" nor impose on him a "stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Id. "Stigma to reputation alone, absent some accompanying deprivation of present or future employment is not a liberty interest protected by the Fourteenth Amendment." Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984) citing Roth, 408 U.S. at 574.
Plaintiffs' attempt to implicate the liberty interest protected by the due process clause must fail because they cannot demonstrate that they have been deprived of present or future employment or that the charges leveled against them have seriously damaged their standing in the community. Plaintiffs were demoted, not fired, and are not foreclosed from taking advantage of other employment opportunities. Allegations that they were demoted for being part of a "clique" that undermined morale and efficiency are not equivalent to a charge of "dishonesty or immorality" that would justify the right to a hearing. Roth, 408 U.S. at 574.
I therefore find that no liberty interest was implicated by the demotions of the plaintiffs under the fourteenth amendment and they are not entitled to a hearing on this ground.
To summarize, plaintiffs have failed to establish that a genuine issue of material fact exists with regard to their due process claims. Since they have failed to demonstrate that they had a protectable property or liberty interest in the rank of detective under the fourteenth amendment, they had no right to a pre-demotion hearing. I therefore grant defendants' motion for summary judgment on this issue.
FIRST AMENDMENT CLAIM
Plaintiffs assert that they were demoted for political reasons in violation of the first amendment rights. It is well settled that a state may not condition "hiring or discharge of an employee in a way which infringes on his right of political association." Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Defendants, however, argue that there is no authority holding that a demotion for political reasons, unlike a dismissal, rises to the level of a first amendment violation. Secondly, defendants assert that they have articulated legitimate reasons for the demotion of each plaintiff thereby justifying the demotions under the applicable standard.
For the reasons which follow, I will reject defendants' first argument as a matter of law. I also find that a genuine issue of material fact exists as to whether plaintiffs were demoted for political reasons. Defendants' motion is therefore denied.
The defendants argue that violations of the first amendment violations should be found only in situations in which a party has been discharged because of his or her political belief or association. Such a narrow interpretation of first amendment protection is not acceptable. "Political belief and association constitute the core of the activities protected by the First Amendment." Elrod v. Burns, 427 U.S. 347, 356, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). As Justice Brennan emphasized in Elrod, "Regardless of the nature of the inducement, whether it be by denial of public employment or, as in Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943), by the influence of a teacher over students . . ." these beliefs should be protected. Id. 427 U.S. at 356. The Elrod opinion also discusses the impact of patronage dismissals on first amendment rights, noting that these had the effect of imposing an "unconstitutional condition on the receipt of a public benefit" thereby implicating the rule of cases like Perry v. Sindermann, Id. at 358-59.
In Perry, the Supreme Court emphasized that even though a person had no right to a valuable governmental benefit, the government could not deny a benefit to a person because of his constitutionally protected interests, especially his interest in freedom of speech. Perry, 408 U.S. at 593. The Court explained its position as follows:
For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not produce directly." Speiser v. Randall, 357 U.S. 513, 526 [2 L. Ed. 2d 1460, 78 S. Ct. 1332]. Such interference with constitutional rights is impermissible. Id. at 593.