United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
Kando was the Executive Director of the Rhode Island Board of
Elections ("Board"). That position was expressly
designated as unclassified by statute. R.I. Gen. Laws §
36-4-2(12). As an unclassified employee, Mr. Kando served at
the pleasure of his appointing authority, who could terminate
him without cause or process. For the last few years, Mr.
Kando's tenure was fraught with controversy and
eventually the Board terminated his employment. The Board had
a brief change of heart, offering him a chance to have his
termination reconsidered if he met several conditions.
According to his complaint, Mr. Kando made efforts to comply
with the terms, but the Board ultimately decided again to
terminate his employment. It is this termination, and the
process that surrounded it, that forms the basis for Mr.
Kando brings four claims - one federal claim and three state
law claims: (1) violation of Due Process under 42 U.S.C.
§ 1983; (2) violation of the Rhode Island Open Meetings
Act; (3) violation of due process under the Rhode Island
Constitution; and (4) violation of the Rhode Island
Whistleblower Protection Act. The Board filed a motion for
judgment on the pleadings, arguing that Mr. Kando's
complaint fails to allege plausible entitlement to relief.
Kando began his tenure as Executive Director of the Board in
August of 2005. His tenure for his first eight years was
"largely uneventful" wherein he provided
"loyal, dedicated, and effective service" to the
Board. ECF No. 12 at ¶ 18. However, "changes to the
Board [membership] and personality conflicts lead to [him]
becoming the focal point of Board dissatisfaction relative to
numerous matters, often ones [Mr. Kando] had little, if
anything, to do with or control over." Id. The
relationship between the staff and the Board members became
so volatile that in December 2015, Mr. Kando and another
employee asserted a complaint alleging violence in the
workplace against Vice-Chair of the Board, Defendant Stephen
P. Erickson. Id. at ¶ 19. Sometime prior to
January 2016, the Board fired Mr. Kando.Id. at
Kando does not challenge this previous termination. Rather he
alleges that on January 11, 2016, the Board voted that his
"previous termination was null and void and mandated
that Plaintiff 'enroll in the next three semesters of
management courses at an education facility of his choice . .
. and [that] there will be a review at the end of the third
semester of Plaintiffs working relationship with the Board
and that of his role as Executive Director for the
[Board].'" Id. By this compromise, Mr.
Kando alleges that there was an agreement that he "would
be reevaluated after three semesters and that so long as he
enrolled in, studied, and took management courses, any prior
controversy or issue would not impact his continued
employment, at least until said revaluation."
Id. at ¶ 22. It is this agreement made at the
January 11, 2016 Board meeting that Mr. Kando asserts
established a property interest in his employment thereby
affording him constitutional due process protection.
January 11th meeting, the Board did not set a deadline for
Mr. Kando to complete the management courses or a date for
his revaluation. However, Mr. Kando received a letter from
the Board on January 19, 2016 indicating that he had to start
classes in January. Id. at ¶¶ 23-24. This
deadline, he alleges, was set through a series of emails
among Board members, a private exchange that Mr. Kando
alleges was in violation of the Open Meetings Act.
Id. at ¶¶ 25-27.
next Board meeting on March 16, 2016, Mr. Kando conceded that
he had not enrolled in classes by the January 31st deadline -
although at the time of the March 16th meeting, he had
enrolled. Id. at 4, ¶¶ 28-29. He alleges
that the Board set a deadline that was impossible to meet
because the semester had already started at the time of the
January 11th meeting. Id. at ¶¶ 30-32.
Because of his failure to timely enroll in the management
classes, the Board suspended him for six weeks without pay.
Id. at ¶ 33. The Board then convened a special
meeting on August 31, 2016, to which it gave Mr. Kando two
days' notice and no opportunity to effectively prepare
for the meeting. Id. at ¶¶ 36, 38-40. The
Board voted to terminate Mr. Kando, even though he was
enrolled in management classes and performing his job duties.
Id. at ¶ 43. Mr. Kando alleges that throughout
this process, the Board defamed and tarnished his reputation
and acted with willful indifference to his rights.
Id. at ¶¶ 46-49. Because of his
termination and treatment by the Board, Mr. Kando filed this
suit. The Defendants move to dismiss the complaint. ECF No.
Court reviews a motion for judgment on the pleadings under a
similar standard as a Rule 12(b)(6) motion. Downing v.
Globe Direct LLC, 682 F.3d 18, 22 (1st Cir. 2012).
"[A] 'court may not grant a defendant's Rule
12(c) motion unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief" Curran v.
Cousins, 509 F.3d 36, 43 (1st Cir. 2007) (quoting
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Due Process Violation Under § 1983
is the only federal claim in Mr. Kando's complaint, the
Court will first address his due process claim under 42
U.S.C. § 1983. "In order for [a] plaintiff to
have procedural due process rights in [his or her]
employment, each plaintiff must have had a reasonable
expectation, based on a statute, policy, rule, or contract,
that he or she would continue to be employed."
Concepcion Chaparro v. Ruiz-Hernandez,607 F.3d 261,
264 (1st Cir. 2010) (citing Wojcik v. Mass. State Lottery
Comm'n,300 F.3d 92, 101 (1st Cir. 2002)). A review
of the facts alleged ...