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Kando v. Rhode Island State Board of Elections

United States District Court, D. Rhode Island

June 5, 2017

ROBERT KANDO, Plaintiff,


          JOHN J. MCCONNELL, JR., United States District Judge.

         Robert 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's suit.

         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.


          Mr. 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.[2]Id. at ¶ 20.

         Mr. 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.

         At the 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.

         At the 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. 28.


         The 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 Cir. 1988)).


         A. Due Process Violation Under § 1983

         As it 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 ...

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