Gary Kulak v. City of Birmingham

*The Hon. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0607n.06
Filed: July 19, 2005
04-1510
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GARY KULAK,
Plaintiff-Appellant,
v.
CITY OF BIRMINGHAM et al.,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: NORRIS and DAUGHTREY, Circuit Judges, and JORDAN, * District Judge.
PER CURIAM. The plaintiff, Gary Kulak, was removed from his position on the
planning board of the city of Birmingham, Michigan, by a vote of the city commission. He
sued the city and several of the members of the commission, charging violation of his due
process rights under the federal and state constitutions and seeking an injunction restoring
him to his position. The district court dismissed the complaint after finding that Kulak had
no property rights in his position on the board and that he had not alleged a liberty interest.
Because the district court’s order was based on a thorough and accurate reading of the
law, we affirm the lower court’s judgment.

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Kulak v. City of Birmingham
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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was appointed by the Birmingham city commission to serve a second three-
year term on the Birmingham city planning board in March 2003. The function of the
planning board is to “advise the city commission in regard to the proper development of the
city.” Ordinance 82-33.
According to the plaintiff, there was a growing political division within the city over
the direction of development. One side “supported free development, guided solely by the
latest whimsical desires of developers,” and the other “sought a more balanced approach.”
The former group created an internet publication called “Buzz,” in which, according to the
plaintiff, he came into criticism for his “adherence to, and upholding of” city zoning
regulations. The group published articles calling for the plaintiff’s and other planning board
members’ removal.
The defendants, conversely, submit that during the time leading up to the plaintiff’s
second appointment and continuing afterward, there was a growing number of complaints
regarding his behavior. These included claims that he had created a hostile work
environment for municipal clerical workers, derided and berated people who appeared
before the board, and aggravated other board members. The City Planner eventually
questioned whether the plaintiff’s conduct met the standards of the board’s code of ethics.

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In November 2003, four new city commissioners were elected, and on November
24, the city commission voted to schedule a hearing on the plaintiff’s removal from the
board under a city ordinance that provided for such action. The commission sent copies
of all complaints regarding the plaintiff to him and requested his response by January 7,
2004. The hearing was set for January 12. On January 5, the commission amended the
board-member removal ordinance. According to the defendants, “[c]oncerns had been
raised about the definition of ‘cause,’ the lack of a definition and the lack of a process of
how any public hearing would be conducted by the City Commission.” The plaintiff argues,
however, that the amendment “inserted an illusory definition of ‘cause,’ which effectively
eliminated the cause requirement needed to remove . . . members” and was passed “for
the express purpose of removing [the plaintiff].”
After passage of the amendment, the plaintiff’s hearing was rescheduled to January
26, 2004. He was advised of his choice to conduct it in private or public, and he elected
the latter. The plaintiff submitted a one-page response to the complaints that had been
forwarded to him, denying any wrongdoing or failure to perform his duties as a board
member. At the hearing, the plaintiff’s attorney challenged the amendment as well as the
complaints regarding the plaintiff. The commission voted 5-2 to remove him.
The plaintiff filed suit two days later, on January 28, 2004, naming as defendants the
City and five commission members. He charged them with violating his Fifth and
Fourteenth amendment rights under 42 U.S.C. § 1983 and his rights under the Michigan

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Kulak v. City of Birmingham
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state constitution; requested a declaratory injunction that the amendment to the removal
ordinance violated the Michigan Home Rule Act; and requested an order prohibiting
destruction of any city commission communications pertaining to his removal, expedited
discovery, and a hearing on whether he should be restored to the board until the resolution
of the suit.
The district court granted an ex parte restraining order and scheduled a hearing to
determine whether to continue it. On February 11 the court continued the ex parte order,
denied a temporary restraining order, and issued an order to both sides to brief the
question of “whether Plaintiff’s allegations implicate a constitutionally protected liberty or
property interest. The district court later issued an opinion and order that dismissed with
prejudice all of the plaintiff’s federal claims and requests for declaratory and injunctive relief
and dismissed without prejudice the state law claims.
The court determined, based on Michigan Supreme Court case law that the plaintiff
did not have a property interest in his position on the planning board that was subject to
due process protections. Though the plaintiff had not asserted in his complaint that he had
been deprived of a liberty interest, he did make this argument in his response to the court’s
order to show cause. The court rejected this claim based on its determination that the
plaintiff did not allege any of the five elements necessary to show the deprivation of a liberty
interest or the denial of a name-clearing hearing as outlined by this Court in Quinn v.

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Kulak v. City of Birmingham
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Shirey, 293 F.3d 315 (6th Cir. 2002). Having dismissed the plaintiff’s federal claims, the
court declined to exercise supplemental jurisdiction over the state law claims.
DISCUSSION
The plaintiff claims that the district court erred in finding that the board position did
not confer a property interest. But the district court based its finding on uncontroverted
case law from the Michigan Supreme Court. In Attorney General ex rel Rich v. Jochim, 58
N.W. 611 (Mich. 1894), the court considered a challenge brought by three Michigan state
officers to their removal by the governor. The court upheld the removal and ruled that “[a]
public office cannot be called ‘property’ within the meaning of . . . constitutional [due
process] provisions.” 58 N.W. at 613. This case was cited by the Supreme Court in Taylor
v. Beckham, 178 U.S. 548 (1900), when it announced “public offices are mere agencies or
trusts, and not property as such. . . . In short, generally speaking, the nature of the relation
of a public officer to the public is inconsistent with either a property or a contract right.” 178
U.S. at 577, n.4. The Michigan Supreme Court has affirmed its holding in Jochim in
subsequent decisions. See Robbins v. Wayne County Bd. of Auditors, 99 N.W.2d 591, 593
(Mich. 1959) (“the incumbent of a public office has no vested property interest therein”);
Jeffries v. Election Comm’n. of Wayne County, 239 N.W. 546, 548 (Mich. 1940).
According to the plaintiff, Michigan law grants him the right not to be removed
without cause. The Michigan Home Rule Act, M.C.L.A. 117.1 et seq, provides, in relevant
part, “[t]he term of a public official shall not be shortened . . . beyond the period for which

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Kulak v. City of Birmingham
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he is elected or appointed, unless he or she resigns or is removed for cause, if the office
is held for a fixed term.” M.C.L.A. § 117.5(d). However, the opinion in Rich v. Jochim
states clearly that “cases [to the effect] that removals from office cannot, in some instances,
be made except upon cause shown, upon notice, specific charges, and after a hearing in
its nature judicial . . . simply hold that removals are limited by the power of the people or
legislature, through the constitution or statute, not that a vested property right is involved
in the holding of office. . . .” 58 N.W. at 614 (emphasis added). Furthermore, the city
commission conducted a hearing during which at least 15 complaints regarding the
plaintiff’s conduct were introduced, supporting a finding of cause to terminate.
The plaintiff next claims that the district court erred in determining that he did not
have a liberty interest betrays a misreading of the law as well as the court’s opinion. We
ruled in Quinn that a stigmatizing statement must satisfy five criteria to give rise to a
deprivation of a liberty interest: being made in conjunction with termination from
employment; addressing more than merely improper or inadequate performance,
incompetence, neglect of duty or malfeasance; publication that is voluntary; and falsity.
293 F.3d at 320. If all of these elements exist, a person is entitled to a name-clearing
hearing. “It is the denial of the name-clearing hearing that causes the deprivation of the
liberty interest without due process.” Id.

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As the district court observed, the plaintiff neither alleged that he had a liberty
interest nor requested a name-clearing hearing. Therefore, the district court properly
dismissed the claim.
CONCLUSION
For the reasons set out above, we AFFIRM the district court’s judgment.

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