(D.C. No. 2:11-CV-01078-DAK) (D. Utah)
Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
ORDER AND JUDGMENT [*]
Faced with a budget crunch, the city council in Salt Lake City tentatively decided to eliminate various employee positions, including Susi Kontgis's. The Mayor's Chief of Staff informed her of the development and advised her that the council was likely to make a final call at an upcoming public meeting. Ms. Kontgis knew that if she wanted to try to save her job she was free to attend the meeting, free to address the council, and free to submit written materials. She chose the final option and submitted a four page letter. In the end, though, her efforts proved unpersuasive and the council's final action followed its tentative course.
Since then Ms. Kontgis has tried repeatedly but unsuccessfully to undo the city's decision. She tried an administrative appeal to the city's Employee Appeals Board (EAB). She tried to appeal that decision to a state court. And when neither of those efforts proved fruitful she tried a federal lawsuit. Before the district court she alleged (among other things) that her layoff and its aftermath violated the Utah and United States Constitutions. The court found these arguments unavailing and granted summary judgment to the defendants. We are now asked to reverse this judgment on appeal, but we don't see how we might.
Take first Ms. Kontgis's claim under the Utah Constitution. As relevant to our dispute, a municipal law violates the Utah Constitution when it directly or "expressly" conflicts with Utah statutory law - an indirect or "implicit" conflict between municipal code and state statute will not do. Salt Lake City v. Newman, 148 P.3d 931, 934 (Utah 2006). At the time of Ms. Kontgis's dismissal, state statutory law afforded a municipal employee "discharged . . . for any reason" the right to appeal to a review board like the EAB. Utah Code Ann. § 10-3-1106 (2008). And as best we can tell from the papers before us, Ms. Kontgis suggests that Salt Lake City flouted this state statutory mandate by limiting the EAB's function as a matter of ordinance to the task of deciding whether the city followed its own internal procedures when discharging an employee. Salt Lake City, Utah, Code § 2.24.060 (2009). In Ms. Kontgis's view, state law required Salt Lake and its EAB to afford her a more searching and substantive review than this.
But we just don't see the conflict Ms. Kontgis claims. To be sure, in § 2.24.060 Salt Lake City said that the EAB's "standard of review" should be limited to the task of determining whether the city followed its own discharge procedures. But Ms. Kontgis's briefs direct us to nothing in Utah state law expressly or directly stating that a city's appellate review board must provide anything more or different than this. If a direct or express conflict does exist, some other litigant in some other case will have to identify it for we haven't been pointed to it in this one.
Admittedly, Salt Lake City asks us to go a step further still. It asks us to hold that its limitation on the scope of the EAB's power is surely consistent with state law. But this step may be a step too far. State law does leave it up to cities to specify the appropriate "standard of review" for their employment appeals boards. Utah Code Ann. § 10-3-1106(7)(a) (2012). But in the name of defining the standard of review, Salt Lake's ordinance seems instead to constrain the EAB's scope of review - specifying what the EAB may consider rather than merely how much deference it should provide. Franklin Sav. Ass'n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1136 (10th Cir. 1991). Even so, little turns on the point. For the dispositive question we face in this case isn't whether the city can show state law expressly permits the city's innovation, but whether Ms. Kontgis has shown state law expressly prohibits it. And that much she has not done.
Turning to the U.S. Constitution, Ms. Kontgis contends that the city failed to provide her with constitutionally adequate due process before her layoff. By way of support, she points out that the Supreme Court has held that when a public employee enjoys a "property" interest in her employment, the government often must provide "some kind of a hearing" before dismissing her for disciplinary reasons. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43 (1985).
Here again, though, it seems plain to us that Ms. Kontgis received all the process she was due by law. Indeed, because the city council eliminated her position for budgetary reasons rather than individualized disciplinary reasons it's unclear whether Loudermill and the procedures it demands even apply here. Cf. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (holding that individual land owners were not entitled to a hearing challenging a city's legislative enactment raising property taxes). But even assuming (without granting) Ms. Kontgis was entitled to the process Loudermill guarantees, she admits she had actual notice that the city council might eliminate her position. She admits that she knew she could argue against her layoff by attending the meeting. And she admits she ...