Opinion
Ashen & Fogel, Stephen B. Schuyler, Robert P. Koehler, Denver, for plaintiff-appellant.
Max P. Zall, City Atty., Brian H. Goral, Asst. City Atty., Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
Thomas Slaby, plaintiff-appellant, having been dismissed from his position as a probationary member of the Denver Fire Department, initiated this action under C.R.C.P. 106(a)(4) to obtain reinstatement. Named as defendants were the City and County of Denver (The City), The Civil Service Commission (Commission), the Manager of Safety and Excise (Manager) and the Chief of the Fire Department of the City.
Pursuant to the rule, a citation to show cause was issued. Defendants filed their answer and a motion for summary judgment. A hearing on the motion was held, after which the trial court entered its findings of fact and conclusions of law, granted the motion, and entered judgment in favor of defendants. Slaby appeals from that judgment. We affirm.
The undisputed facts are that Slaby was a probationary member of the Fire Department, having been so employed for more than three but less than six months when he was dismissed from the service. The pertinent section of the Charter of the City and County of Denver, Sec. C 5.69, provides that every original appointment in the classified service shall be for twelve months, after which the person appointed, if his performance is satisfactory 'shall be permanently appointed; otherwise he shall be out of the service.' The section then states:
'The Manager of Safety and Excise may summarily dismiss, without cause, any probationary member of the classified service during the first three months from the date of original appointment. Any member of the classified service who has served more than three months but less than six months following the date of his original appointment, may be summarily dismissed by the Manager of Safety and Excise, provided, that in all such cases the Manager shall promptly report to the commission any dismissal action, stating the reasons therefore. . . . A probationary member of the classified service in the Police and Fire Departments shall not be entitled to appeal a dismissal action taken under the provisions of this Section by the appointing authority within the twelve month probationary period following his original appointment.'
The charter provisions are a part of the contract of employment, and the above quoted provision was complied with here. Slaby was summarily dismissed by the Manager, who promptly reported to the Commission, stating the reasons for the dismissal.
As in the trial court, Slaby contends that a probationary member of the classified service cannot be dismissed except upon valid grounds and then only after a hearing. We do not agree with this contention.
Slaby was a probationary member of the service without tenure. Charter of the City and County of Denver, Sec. C 5.68. The provisions of the Charter set forth the terms of the employment. One of such terms was that a member in Slaby's status could be summarily dismissed. As was stated in Jones v. Hopper, 10 Cir., 410 F.2d 1323, a case which upheld the dismissal of a non-tenured professor in a Colorado colege without the filing of disciplinary charges, and without a hearing.
'The Supreme Court has consistently held, 'the interest of a government employee in retaining his job, can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.'' (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230.)
The whole purpose of a probationary period is to determine whether the probationer has the character and qualifications required for the job, and to separate expeditiously those who are deemed to be unqualified. Orr v. Trinter, 6 Cir., 444 F.2d 128. To require a hearing would defeat this fundamental purpose of the probationary system. Thaw v. Board of Public Instruction, 5 Cir., 432 F.2d 98.
The cases relied on by Slaby all involved tenured personnel and are, therefore, not applicable here.
Judgment affirmed.
DWYER and SMITH, JJ., concur.