|Legal Opinion: |
Text of Document: January 12, 2007
You have the following question: Can the present chief of police be dismissed or demoted only for cause?
The chief of police can be dismissed only for cause.
The chief of police can be demoted without cause.
The City is chartered under Private Acts 2005, Chapter 76. Section 12 of the charter creates a civil service system for police officers. Section 12(e), provides that:
All persons holding positions in the Police Department, including the Chief of Police who, upon the effective date of this Section, have served in such position for a period of at least six (6) months previous thereto, shall be included in the system of Civil Service in the office, position or employment in which such persons held at the time the Section was enacted. Such persons shall be subject, however, to removal, demotion, suspension upon the same terms as any other persons inducted permanently into Civil Service following the effective date of this Act. [Emphasis is mine.]
The police chief was appointed to the position of chief on January 4, 2004; he has, therefore, served three years, or 36 months, in that position. Section 12, along with the rest of the charter, was enacted by the Tennessee General Assembly on May 26, 2005, signed by the Governor on June 22, 2005, and passed by a two-thirds vote of the City Council on June 28, 2005. For that reason, no matter what the effective date of the charter in general, and Section 12 in particular, the chief of police generally stands on the same civil service footing as a person permanently inducted into the classified service after the effective date of Section 12. Under Section 12(e) he can be dismissed only for cause.
In the section on Demotions or Reductions in Rank, below, I will discuss the conflict between Section 12(e) and Section 12(f)(2) with respect to the demotion of the chief of police, and the impact that conflict has upon the question of whether the police chief can be demoted without cause.
Section 12(f)(1) of the charter also contains the grounds for “removal, demotion and suspension” for cause: [NOTE; There is an error in the charter. It contains two sections 12(f)(1). This section 12(f)(1) is the second one. The first one deals with applications and standards for civil service status]:
The tenure of everyone holding office, place, position or employment under the provisions of this Section, shall be for and only during good behavior. Any such person may be removed or discharged, suspended without pay, demoted or reduced in rank, or deprived of vacation privileges for any of the following reasons only:
(A) Dishonesty, intemperance, immoral conduct, insubordination, or any other act of omission or commission tending to injure the public service; or any other willful failure on the part of an employee to conduct themselves properly; or any willful violation of the provisions of this Section or the rules and regulations to be adopted thereunder.
(B) Conviction of a felony, or a misdemeanor involving moral turpitude or a misdemeanor reflecting upon the ability to perform public service.
(C) Any other act or failure to act which, in the judgment of the Board is sufficient to show the offender to be an unsuitable and unfit person to be employed in the Classified Service.
Section 12(g)(1) also provides that:
No person in the classified service who shall have been permanently appointed or inducted into Civil Service under the provisions of this Section shall be removed, suspended or discharged except for cause, and only upon the written accusation of the appointing power.
As pointed out above, Sections 12(e) and (f)(1), read together, provide that police officers (including the chief of police) protected by those sections cannot be terminated, demoted, suspended without pay, or deprived of vacation privileges except for cause. Even Section 12(g)(1), which omits the mention of demotions, probably does not change that result. But Section 12(f)(2) is a different matter.
Demotions or reductions in rank
Section 12(f)(2) provides that:
Any person who shall have served for a period of four (4) years as Chief of Police or assistant Chief of Police or a combination of both shall not be demoted from rank except on changes (sic) as provided in this Section.” [Emphasis is mine.]
Section 12(f)(2) expressly provides that a person who has served as police chief or assistant police chief, or a combination of both, cannot be “demoted from rank” except on “changes” [undoubtedly “charges”].
Section 12(f)(2) appears to apply to a specific personnel action, a specific class of persons in the classified service, and to a specific time in service trigger. The specific personnel action is reduction in rank, the specific positions in the classified service are the police chief and assistant police chief, and the specific time in service trigger is four years. Section 12(f)(2) cannot be reconciled by reading it together with Section 12(e), (f)(1) and even (g)(1), or any other provisions of the charter.
Under the rules of statutory construction, when there is an irreconcilable conflict between statutes, the specific controls the general. [See Trotter v. City of Maryville, 235 S.W.2d 13 (1950); Netherlands v. Hunter, 133 S.W.2d 614 (Tenn. Ct. App. 3002); Grundy County v. Dyer, 546 S.W.2d 577 (Tenn. 1977); Manner v. Leech, 588 S.W.2d 534 (Tenn. 1979).] One of the best statements on this point appears in State v. Nelson, 577 S.W.2d 465 (Tenn. Crim.App. 1978.).]
Where there are two provisions, one of which is special and particular and certainly includes the matter in question, and the other general which, if standing alone, would include the same matter and thus conflict with the special provision, the special must be taken as intended to be an exception to the general provision, especially where the two provisions are contemporaneous, as the Legislature is not to be presumed to have intended a conflict. [At 703.]
That rule of statutory construction appears to apply right down the line to Section 12(F)(2). For that reason, it appears that where only a demotion in rank of the chief of police is contemplated, Section 12(f)(2) applies to that demotion. The corollary is that if the chief of police has less than four years in service in that position, he or she is not protected by Section 12 from demotion.
Such an outcome is even logical from a policy standpoint. A police chief, whether the person who holds that office comes into it vertically or laterally, may not function well in that position, but may not have committed any offense that constitutes grounds for removal for cause. For example, his leadership or public relations skills may be deficient, but he may otherwise be a solid officer in a lesser rank where those deficiencies are not as critical. Section 12(f)(2) gives the city four years to make that determination without the necessity of bringing “charges” against the police chief, and permits the city during that period to demote the police chief to a rank in which he can adequately perform his duties.
Sidney D. Hemsley
Senior Law Consultant