Court Cases Court Cases
View Case Details
David A. KINDEM Plaintiff
CITY OF ALAMEDA a municipal corporation Defendant
No. C-78-2982 SW
November 11, 1980
Kenneth Hecht Penny Nakatsu Chris Redburn San Francisco Cal. Bernice Lapow Legal Aid Society of Alameda County Oakland Cal. for plaintiff.
Carter Stroud City Atty. Alameda Cal. for defendant City of Alameda.
The Hon. Justice Williams


In 1968 plaintiff David A. Kindem was convicted as a minor under the Federal Youth Corrections Act 18 U.S.C. SEC.(S) 5001-37 of felony violation of the now repealed federal marijuana importation tax laws formerly codified at 26 U.S.C. SEC. 4755. One decade later plaintiff was fired from his job as a janitor with defendant City of Alameda ("the City") when his ten-year-old conviction was brought to the attention of his superiors. Plaintiff brought the present action under the Civil Rights Act of 1871 42 U.S.C. SEC. 1983 to challenge the constitutionality of the City's long-standing written ban against municipal employment of ex-felons. He claims the dismissal violated due process and equal protection rights secured to him by the United States Constitution. *fn1

After the initial pleadings were filed the parties filed cross-motions for summary judgment. Following oral argument on the matter Court determined no material issues of fact were in dispute and summary judgment in favor of plaintiff was granted. The City was ordered to reinstate plaintiff and was enjoined from enforcing the offending portion of the City Charter. Court reserved for later decision the question of plaintiff's entitlement to back pay but now rules he is entitled to such compensation in the amount of $9,433.90. Finally pursuant to 42 U.S.C. SEC. 1988 Court awards plaintiff's Counsel a reasonable Counsel's fee in the amount of $7541.00.

By this Memorandum of Decision and Order Court expresses the reasons for granting plaintiff's motion for summary judgment and the reasons for awarding back pay and for setting Counsel's fees at $7541.00 and reduces to written form the rulings on back pay and Counsel's fees.



A. Factual Background

The facts may be stated quite briefly. In September 1977 plaintiff began work as a janitor for the City of Alameda under its CETA employment program. Shortly after the job began plaintiff was requested to undergo a standard security check. At that time plaintiff informed his immediate superiors about his 1968 felony conviction. *fn2 Section 22-4 of the City Charter provides: "No person who shall have been convicted of a felony shall ever hold any office or position of employment in the service of the City." Plaintiff's CETA director therefore contacted the City Counsel for an opinion on whether this section applied to plaintiff. Five and a half month later plaintiff was told the policy applied to all felony convictions and all jobs.

On March 2 1978 plaintiff received a letter from the City Manager informing him his employment would terminate in one week. The letter stressed the fact the dismissal was no reflection on plaintiff or the work he had performed. In fact the City Manager made it clear the City had been very pleased with plaintiff's work and attitude towards his job and even reported receipt of several unsolicited calls from citizens commending plaintiff's work. The sole reason given for plaintiff's dismissal was the City's absolute prohibition against hiring ex-felons.

B. Legal Analysis

The issue on the merits presented by plaintiff's action is not the wisdom of the City's policy though many undoubtedly would find serious fault with it. Rather the issue is whether the policy violates equal protection and due process rights protected by the Constitution. For although the court is sensitive to the need of local governments to fashion and implement employment policies without the fear of constant judicial intermeddling Court also recognizes that local administrators and lawmakers as well as the local electorate sometimes do enact and implement policies which may transgress individual constitutional rights.

Thus although the City has a legitimate interest in securing a competent trustworthy workforce and ordinarily may do so by discriminating among applicants in a manner calculated to ensure only the most qualified are hired it is subject to the same constitutional limitations applicable to governmental action at other levels.

The Supreme Court has rejected the idea that public employment is a "privilege" and therefore exempted from constitutional limitations. When the decisions or policies made regarding public employment involve impermissible discrimination or impair or deny certain protected rights an individual applicant or employee properly may appeal to Court for redress. Plaintiff's complaint raises important questions meriting review of the City's policy.

1. Equal Protection

The City does not dispute plaintiff's claim that the questioned practice operates to the severe detriment of a distinct class of individuals. The policy is not directed at all applicants equally. Instead the Charter provision singles out a particular group and totally bars them from municipal employment. Such classifications are subject to examination under the limitations imposed on local governments by the Equal Protection Clause of the fourteenth amendment. *fn3

Analysis must begin with a determination of the applicable standard of review. A challenged classification is subjected to strict scrutiny only when a fundamental right is impaired or a suspect class is disadvantaged. *fn4 Public employment is not considered a fundamental right *fn5 and ex-felons are not thought to constitute a suspect class. *fn6 Therefore the City's policy must be tested according to a standard less rigorous than that employed when strictly scrutinizing a classification.

The rational basis test is a highly deferential standard of review. Under it a court will not intercede on behalf of a discriminated class member unless it finds that the questioned classification is not rationally related to a legitimate state interest. Despite this low threshold Court finds enforcement of the challenged City Charter section violated plaintiff's rights to equal protection of the laws. Court is unconvinced that the across-the-board ban on hiring ex-felons is reasonably related to any legitimate state goal. Because of this conclusion it is not necessary to consider the possible application of some intermediate level of review.

The City unquestionably has a legitimate interest in hiring qualified competent and trustworthy employees and in employing persons who will inspire the public's confidence. But it has not been demonstrated that the sole fact of a single prior felony conviction renders an individual unfit for public employment regardless of the type of crime committed or the type of job sought. This is not to say that a prior felony conviction can never be a factor in public employment decisions. It is reasonable to assume for example that a prior conviction might be highly relevant or properly determinative with respect to hiring decisions involving certain sensitive jobs.

*fn7 It may also be reasonable to assume that convictions for certain crimes may indicate that an individual is unfit for any future municipal employment. But the City's policy is not tailored along any lines to conform to what might be considered legitimate government interests. *fn8

Plaintiff's case illustrates but one way in which the City's policy is arbitrary and unreasonable. Clearly plaintiff's ten-year-old youth conviction has little if any bearing on his ability to perform as a janitor for the City and the City admits as much in its dismissal letter. Individual examples of inequitable hardships are rarely adequate to support the overturning of a classification on grounds of arbitrariness but plaintiff's situation can hardly be considered a unique result of the full enforcement of the City's policy.

Employment is denied to individuals like plaintiff who were convicted of felonies bearing no relationship whatsoever to the individual's honesty or his ability to work. Thus whereas a felony tax evader is denied a janitorship a person with a known proclivity for violence or thievery even a person actually convicted of misdemeanor assault or theft is not automatically precluded from the job although his personal traits and even his previous misdemeanor convictions might reasonably be considered related to the opportunities and temptations presented by a janitorship. The distinction thus drawn between ex-felons and non-felons is not rationally related to any legitimate state interests.

Similar bans on employment of distinct groups have been overturned by courts in numerous other instances. *fn9 Even statutes which have tried to relate ex-felon status to a particular job have on occasion been struck down. *fn10 Cases cited by the City in defense of the Charter's classification scheme each involved a close nexus between the felony involved and the particular job sought and are therefore inapposite.

*fn11 The recent Supreme Court decision in New York City Transit Authority v. Beazer 440 U.S. 568 99 S. Ct. 1355 59 L. Ed. 2d 587 (1979) also cited by the City is distinguishable on a number of grounds: (1) the regulation in Beazer which prohibited employment of all drug addicts by the Transit Authority was not itself under attack just its application to individuals who had successfully undergone a year of methadone treatment and Court was thus faced with nothing more than a request to fine tune the regulatory classification; (2) the regulation itself was based on a legitimate concern for public safety and efficient operation of the system; and (3) the classification only covered current users of methadone so that a person was not necessarily forever barred from employment with the System since eligibility returned once he was no longer using methadone.

The permanent and automatic disability which the City Charter makes out of a felony conviction without any attempt to fit the classification to the legitimate governmental interests implicated in municipal employment decisions amounts to a violation of the Equal Protection Clause.

2. Due Process

Plaintiff's contention under the Due Process Clause of the fourteenth amendment is that he has been denied substantive due process. In response the City has argued plaintiff had no liberty or property interest impaired and therefore could suffer no deprivation of substantive due process.

The substantive aspect of due process protects individuals from arbitrary or irrational action on the part of the state. Whether one must plead deprivation or impairment of a property interest to have standing to challenge governmental action as arbitrary remains an unsettled question. The First and Fifth Circuits have decided the fourteenth amendment provides an independent right to demand that government act in a non-arbitrary manner at all times regardless of the presence or absence of a property or liberty interest.

*fn12 The majority of appellate courts which have considered the question have however agreed with then Circuit Court and now Justice John Paul Stevens who concluded the "absence of any claim by the plaintiff that an interest in property or liberty has been impaired is a fatal defect in (a) substantive due process argument." *fn13 It is not necessary for this court to express an opinion on this difficult legal question though for plaintiff's termination did involve impairment of a constitutionally recognized liberty interest.

Plaintiff was not fired because of incompetence or an inability to get along with coworkers. *fn14 The sole reason given for the termination was plaintiff's earlier conviction. In spite of the praise given plaintiff's performance in the termination letter the circumstances of plaintiff's firing and the reason given for the action call into question plaintiff's fitness for employment particularly with respect to the important traits of honesty loyalty and morality. Coupled with the stigma is plaintiff's absolute foreclosure from working for the City in which he resides. In these circumstances a liberty interest has been impaired. *fn15

When a liberty interest is impaired by the arbitrary action of government the constitutional guarantee of due process has been violated. As discussed above during consideration of plaintiff's equal protection claim the classification which resulted in his termination is legally irrational as it is not sufficiently keyed to any legitimate state interests. The impairment of plaintiff's liberty interest pursuant to such a policy violated his substantive due process rights.

Before leaving the subject of substantive due process brief treatment should be given another of plaintiff's arguments. Is it an unconstitutional deprivation of substantive due process for the City to erect an irrebuttable presumption against a person's fitness for employment on the basis of a past felony conviction especially where the fact of the felony conviction may not reflect at all upon any of the qualifications the person would need to perform satisfactorily on the job? A long line of Supreme Court cases has invalidated irrebuttable presumptions denying persons important interests *fn16 but the doctrine has been called into question and its current status is unclear.

*fn17 The fear is that the irrebuttable presumption analysis has the potential for riding roughshod over a tremendous number of state classifications. On the other hand it may be that properly employed the irrebuttable presumption analysis does not represent an ever-expanding universe for the Supreme Court has applied it only where the private interests are very important and the governmental interests can be promoted without much difficulty in an individualized evaluation process.

If such a limited irrebuttable presumption analysis survives a strong argument can be made that its application to this case would be another route to a finding that substantive due process has been denied. *fn18 Since such a finding is already reached by examination of the absence of a rational connection between the classification scheme and the legitimate state interests Court declines plaintiff's invitation to measure Section 22-4 against any irrebuttable presumption test.

C. Remedy

In order to remedy the constitutional violations suffered by plaintiff the City was ordered to reinstate him with full seniority rights and benefits. In addition the City was ordered to make plaintiff whole for lost compensation but upon reconsideration Court decided an important issue requiring further briefing and study existed with respect to the City's possible limited immunity from damages awards under 42 U.S.C. 1983. *fn19

Because the offending Charter provision was found unconstitutional on its face as well as applied Court prohibited the City from making employment decisions based on Section 22-4. Subsequently though the City requested Court to narrow its ruling. The first sentence of Section 22-4 provides "Any person convicted of a felony or misconduct in office shall forfeit his office or position of employment." Upon the City's representation that this sentence refers only to wrongful conduct after the person has assumed municipal employment Court removed it from the case. Plaintiff's conduct subjecting him to the ban on employment occurred many years before he was hired so the first sentence has no application to his situation. Whether commission of a felony while employed by the City justifies automatic dismissal is a different question which need not be answered in the context of this case.

The second sentence of Section 22-4 applies not only to persons "convicted of a felony " but also to persons guilty of "misconduct in office." *fn20 Neither party addressed the propriety of invalidating the second sentence with respect to persons guilty of misconduct in office but Court has determined that its order shall not encompass this language.

Plaintiff himself was not guilty of any misconduct in office and although many of the same questions regarding imposition of an automatic disqualification based on past conduct which were relevant in this case might also be important considerations when judging the constitutionality of the "misconduct in office" portion of the section there may be other reasons why such a prohibition might be justified which were not relevant to the ban on hiring ex-felons. Court therefore expresses no opinion on the constitutionality of the policy with respect to persons guilty of past misconduct in office.



Defendant opposed plaintiff's request for an award of back pay by arguing it was entitled to immunity under 42 U.S.C. SEC. 1983. The exact contours of such an immunity and even the existence of any immunity at all were considered by Court to be important and complicated questions with possibly far-reaching implications.

While plaintiff's request was pending before this court the Supreme Court issued its opinion in Owen v. City of Independence 445 U.S. 622 100 S. Ct. 1398 63 L. Ed. 2d 673 (1980) in which it held municipalities enjoyed no immunity from damages awarded pursuant to section 1983. Owen provides a definitive answer to the questions presented by plaintiff's request in the instant action. Inasmuch as Court has previously established that the proper amount of any back-pay award in this case would be $9 433.90 that sum shall be paid to plaintiff.


Counsel'S FEES

The Civil Rights Counsel's Fees Awards Act of 1976 42 U.S.C. SEC. 1988 permits Court to award Counsel's fees to the prevailing party in a civil rights case such as this one. There is no question who prevailed in this action and the City does not contest plaintiff's right to an Counsel's fees award. The appropriate size of a reasonable Counsel's fee in this case however is a very hotly contested matter. Plaintiff has requested compensation for 183.15 hours of Counsel time and seeks an award equal to $22 452.00. Defendant though not suggesting any specific dollar amount has vigorously objected to the award plaintiff requests and goes so far as to suggest that an award of $5 000.00 might be excessive.

In setting a reasonable Counsel's fee under section 1988 Court is guided by the criteria enumerated in the well known case of Johnson v. Georgia Highway Express Inc. 488 F.2d 714 (5th Cir. 1974). *fn21 In applying those criteria Court first considers the hours worked establishes an appropriate hourly wage calculates a base or "lodestar" Counsel's fee and then adjusts the fee if adjustment is called for either up or down to reach the ultimate award.

A. Hours Worked

Plaintiff reports three Counsels worked on his case Penny Nakatsu the lead Counsel Kenneth Hecht the director of the Employment Law Center and Bernice Lapow. Plaintiff claims 125.8 hours for Nakatsu 15.8 hours for Hecht and 41.55 hours for Lapow. Court has decided certain hours claimed will not be allowed and has found the appropriateness of certain other hours claimed to be questionable.

Plaintiff seeks compensation for 41.2 hours of time allegedly spent by Counsel Nakatsu between March 21 and May 25 1978 processing his claim at the administrative level with the Department of Labor. The nature of these proceedings has not been made clear to Court. In fact Court is aware of no reference to administrative hearings being made in this case prior to the filing of plaintiff's motion for Counsel's fees.

It does not appear why administrative remedies were pursued what was accomplished at that stage or why Counsel time spent in that endeavor should be compensated. The breakdown of time spent in pre-litigation efforts is anything but detailed and Court has no way of judging whether time was spent on unnecessary frivolous or duplicative activity which should not be compensated at normal rates for Counsels.

The failure to be more specific is of particular concern regarding administrative proceedings which unlike the actual litigation of this case took place outside the direct observation and participation of this court. Therefore without reaching the question of plaintiff's legal right to any fees award for pre-litigation administrative proceedings Court has determined not to award compensation for the 41.2 hours claimed for Nakatsu's work on plaintiff's behalf at that level.

Plaintiff claims .5 hour of compensable time was expended by Counsel Lapow preparing the affidavit she filed in connection with the fees motion itself. Plaintiff has not cited any law justifying such an award and Court is not aware of any authority which would persuade it to do so. Therefore .5 hour of the time claimed for Counsel Lapow shall be disallowed.

Nakatsu's affidavit alleges two hours of compensable time for a court appearance on August 23 1979 and two more hours on August 24 1979. There were however no court appearances on either of those days and the four hours claimed are disallowed accordingly.

In addition to the hours Court has decided to disallow Court must raise questions about the necessity for many of the other hours claimed. For example Hecht's affidavit shows one hour devoted to preparing Nakatsu an Counsel with five and a half years' experience for a status conference. Nakatsu's affidavit also lists that hour of consultation and Nakatsu and Lapow each list an hour to attend the conference. Yet the only matters discussed at the conference were the possible need for narrowing Court's original order invalidating Section 22-4 and selection of a further hearing date. It is surprising to say the least that three Counsels "bring(ing) almost three decades of legal experience in civil rights litigation to bear on this case" *fn22 [were required to expend four hours on such relatively routine affairs.

Plaintiff however would have the court compensate his Counsels with fees in excess of $500.00 for these efforts.

As another example plaintiff claims 2.3 hours for Nakatsu and 2.0 hours for Hecht in preparing his Memorandum in Opposition to Defendant's Motion to Set Aside Order and in Support of an Award of Back Pay. That Memorandum is no more than four and a half pages long including the half-page caption is partially devoted to simple procedural arguments under the Local Rules of this court discusses but two cases in opposition to defendant's motion and devotes only one page to the complex issue of possible municipal immunity from damages under section 1983 which eventually became the subject of the lengthy Supreme Court decision in Owen. Due to the inadequacy of the treatment of the issue of municipal immunity Court had to request further briefing and conduct a further hearing. Yet plaintiff seeks to have his Counsels awarded $576.00 for preparing this short simple and insufficient document.

There are other instances of claimed hours which indicate considerable inefficiency and likely duplication of effort but it would serve no useful purpose to detail them here. Though Court has the power to disallow compensation for time spent unnecessarily by plaintiff's Counsels the better way to handle the matter in this case is to accept the total number of hours claimed but consider the apparent inefficiency when determining a possible multiplier.

B. Lodestar Fee

Based on fees allegedly commanded by other Counsels of equivalent experience expertise and reputation in this community in cases of similar difficulty and contingency plaintiff seeks compensation for Hecht at $100.00 per hour and for Nakatsu and Lapow at $80.00 per hour. Court is willing to accept these figures as comparable to hourly rates charged and allowed in similar cases in this district.

C. Multiplier

Plaintiff argues the difficulty of the legal issues presented by this case the risk of this litigation the dispatch with which the case was brought to a successful resolution and the quality of his Counsels' work justifies applying a multiplier of 1.5 to the lodestar fee. Court agrees a multiplier should be applied but concludes it should be a reverse multiplier reducing the amount actually awarded from the lodestar figure.

It is true the constitutional issues involved in this case were not particularly easy or straightforward. Plaintiff's lawyers though are specialists in this area of the law and it would be inappropriate to apply a multiplier based on any but unusually difficult legal questions. The only issue of such complexity was the question of possible municipal immunity from damages awards under 42 U.S.C. SEC. 1983. As discussed above plaintiff's Counsels' initial treatment of this issue was wholly inadequate. Subsequent filings on the point were considerably more helpful but not sufficiently so that Court is persuaded to extend special credit for having to tackle this novel and at the time unsettled question.

The risk of litigation cannot be considered exceedingly great. The Charter provision was plainly unconstitutional and additionally plaintiff's case presented one of the most sympathetic set of facts imaginable: a janitor so good the City actually received unsolicited letters of praise but fired him anyway because its Charter left no choice even though his felony conviction was ten years old and had resulted from his prosecution as a minor under a now-repealed federal tax statute.

The completeness of plaintiff's victory does not merit a multiplier. Once Section 22-4 was found unconstitutional plaintiff's reinstatement became the obvious remedy. As for the eventual award of back pay the Supreme Court in Owen and not plaintiff's briefing was responsible. This case was indeed handled with relative speed by the Counsels but as there were no material facts at issue an early resolution was not unusual. In fact defendant's motion to dismiss or for summary judgment was on file before plaintiff moved for any immediate relief. The speed with which the municipal immunity issue was resolved might have been increased had plaintiff's Counsels prepared briefs more commensurate with the importance of the issue involved.

Finally the most compelling factor is the quality of the work done by plaintiff's Counsels. The level of skill necessary to prosecute this action did not in this court's opinion require $100.00 and $80.00 per hour lawyers to spend over 138 hours. *fn23 The only conclusion Court is able to draw is that plaintiff's Counsels were either seriously inefficient or simply enjoyed working on the rather interesting constitutional questions raised by this action. Either way it would be unfair to tax defendant with the cost at the prevailing rate for all the hours spent on this case.

Court has scrutinized plaintiff's supporting papers very carefully. With the relevant factors set forth by Johnson in mind Court has concluded that application of a reverse multiplier of one third would result in an Counsel's fee that is fair and reasonable.

D. Calculation of the Award

Total hours allowed at the lodestar rate of $100.00 amount to 15.8 the hours claimed for Hecht. Total hours allowed at the lodestar rate of $80.00 per hour amount to 121.65 80.6 for Nakatsu and 41.05 for Lapow. The lodestar fee equals $11 632.00. The award rounded to the nearest dollar shall therefore be $7541.00. *fn24


*fn1. Plaintiff also claims rights under the California Constitution were violated. Since federal law principles prove dispositive the state constitutional issues need not be reached. They were in any event largely ignored by the parties.

*fn2. There is in fact some dispute about the timing and propriety of the manner in which plaintiff informed his employers that he had been convicted of a felony. Plaintiff claims he was told when applying for the job that he need not list his youth offense conviction on the application form. Defendant points out that the job application form did not disclose the conviction and has argued falsification as a possible alternate grounds for dismissal. This dispute is not relevant however because all are agreed the reason plaintiff was fired was the rule set forth in the Charter and that plaintiff's failure to list his conviction on his initial application was not considered when he was terminated.

*fn3. New York Transit Authority v. Beazer 440 U.S. 568 587-88 99 S. Ct. 1355 1366 59 L. Ed. 2d 587 (1979); Monell v. New York City Dep't of Social Services 436 U.S. 658 690 98 S. Ct. 2018 2035 56 L. Ed. 2d 611 (1978).

*fn4. Massachusetts Bd. of Retirement v. Murgia 427 U.S. 307 312 96 S. Ct. 2562 2566 49 L. Ed. 2d 520 (1976).

*fn5. Massachusetts Bd. of Retirement v. Murgia 427 U.S. 307 313 96 S. Ct. 2562 2566-67 49 L. Ed. 2d 520 (1976).

*fn6. Miller v. Carter 547 F.2d 1314 1321 (7th Cir. 1977) aff'd 434 U.S. 356 98 S. Ct. 786 54 L. Ed. 2d 603 (1977) (per curiam); Upshaw v. McNamara 435 F.2d 1188 1190 (1st Cir. 1970).

*fn7. See e.g. Upshaw v. McNamara 435 F.2d 1188 1190 (1st Cir. 1970) (state law prohibiting appointment of felons to police force); Carlyle v. Sitterson 438 F. Supp. 956 963 (D.N.C.1975) (dismissal of fireman based on previous arson conviction).

*fn8. Cf. Butts v. Nichols 381 F. Supp. 573 580-82 (S.D.Ia.1974) (three-Court district court) (discussing a similar across-the-board "felon ban").

*fn9. E. g. Thompson v. Gallagher 489 F.2d 443 (5th Cir. 1973) (veterans with less than an honorable discharge); Scott v. Macy 121 U.S. App. D.C. 205 349 F.2d 182 (D.C.Cir.1965) (homosexuals); Davis v. Bucher 451 F. Supp. 791 (E.D.Penn.1978) (ex-drug addicts); Duran v. City of Tampa 430 F. Supp. 75 (N.D.Fla.1977) (epileptics); Butts v. Nichols 381 F. Supp. 573 (S.D.Ia.1974) (three-Court district court) (felons).

*fn10. Miller v. Carter 547 F.2d 1314 (7th Cir. 1977) aff'd 434 U.S. 356 98 S. Ct. 786 54 L. Ed. 2d 603 (1977) (per curiam) (invalidating Chicago ordinance barring individuals convicted of certain offenses from obtaining public chauffeur's licenses); Smith v. Fussenich 440 F. Supp. 1077 (D.Conn.1977) (invalidating a state statute which barred ex-felons from registering to work as private detectives or security guards).

*fn11. Upshaw v. McNamara 435 F.2d 1188 1190 (1st Cir. 1970); Carlyle v. Sitterson 438 F. Supp. 956 (D.N.C.1975); Olson v. Murphy 428 F. Supp. 1057 (W.D.Penn.1977).

*fn12. Thompson v. Gallagher 489 F.2d 443 446-47 (5th Cir. 1974); Drown v. Portsmouth School Dist. 451 F.2d 1106 1108 (1st Cir. 1971).

*fn13. Jefferies v. Turkey Run Consolidated School Dist. 492 F.2d 1 4 (7th Cir. 1974). Accord Clark v. Whiting 607 F.2d 634 641 n. 17 (4th Cir. 1976); Sullivan v. Brown 544 F.2d 279 282 (6th Cir. 1976); Weathers v. West Yuma County School Dist. R-J-I 530 F.2d 1335 1340-41 (10th Cir. 1976); Buhr v. Buffalo Public School Dist. No. 38 509 F.2d 1196 1202-03 (8th Cir. 1974).

*fn14. See Stretten v. Wadsworth Hospital 537 F.2d 361 365-66 (9th Cir. 1976).

*fn15. In reaching this legal conclusion Court has considered and been guided by among others the following important or well reasoned due process cases: Paul v. Davis 424 U.S. 693 96 S. Ct. 1155 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth 408 U.S. 564 92 S. Ct. 2701 33 L. Ed. 2d 548 (1972); Larry v. Lawler 605 F.2d 954 (7th Cir. 1979); Stretten v. Wadsworth Hospital 537 F.2d 361 (9th Cir. 1976).

*fn16. Turner v. Department of Employment Security 423 U.S. 44 96 S. Ct. 249 46 L. Ed. 2d 181 (1975); Cleveland Bd. of Education v. LaFleur 414 U.S. 632 94 S. Ct. 791 39 L. Ed. 2d 52 (1974); Vlandis v. Kline 412 U.S. 441 93 S. Ct. 2230 37 L. Ed. 2d 63 (1973); Stanley v. Illinois 405 U.S. 645 92 S. Ct. 1208 31 L. Ed. 2d 551 (1972); Bell v. Burson 402 U.S. 535 91 S. Ct. 1586 29 L. Ed. 2d 90 (1971).

*fn17. See deLaurier v. San Diego Unified School Dist. 588 F.2d 674 683 n. 16 (9th Cir. 1978).

*fn18. Cf. Miller v. Carter 547 F.2d 1314 1327-28 (7th Cir. 1977) (Campbell J. concurring).

*fn19. See section II of this opinion.

*fn20. The City's interpretation of the phrase "in office" is that it modifies only "misconduct" and not "felony." Thus any felony conviction would disqualify a person from employment with the City of Alameda not just felonies connected with a person's government employment.

*fn21. See Kerr v. Screen Extras Guild Inc. 526 F.2d 67 69-70 (9th Cir. 1975).

*fn22. Plaintiff's Memorandum in Support of Motion for Counsel's Fees at 6 lines 17-18.

*fn23. Of the 183.15 hours claimed Court has disallowed 45.7 in section III(A) above.

*fn24. At a hearing held in this matter September 24 1980 Court announced the award of Counsel's fees would be $7755.00. This figure was the product of an erroneous calculation and should be disregarded.