|Legal Opinion: |
Text of Document: April 5, 2004
Re: Potential removal of officer
Dear City Attorney:
You have inquired about the procedure to follow when removing an officer from the city council. It is my understanding that the officer is a sheriff’s deputy who recently refused to cite the girlfriend of a metropolitan police officer for driving under the influence. This officer believes that VIP’s should be given a pass when it comes to such offenses. Based on my research, in my opinion, such actions by the officer will not support an action for ouster under either the city charter or the general law.
The City Charter states in § 6-20-220:
Removal of Officers.–(a) The Mayor or any commissioner may be removed from office by the board of commissioners for a crime or misdemeanor in office, for grave misconduct showing unfitness for public duty, or for permanent disability, by a majority vote of the other members of the board voting for such removal. The proceedings for such removal shall be upon specific charges in writing, which, with a notice stating the time and place of the hearing shall be served upon the accused or published at least three (3) times one three (3) successive days in a daily newspaper circulated in the city.
(b) The hearing shall be public and the accused shall have the right to appear and defend in person or by counsel and have the process of the board to compel the attendance of witnesses on his behalf. Such vote shall be determined by yeas and nays, and the names of the members voting for or against such removal shall be entered in the journal.
(c) Immediately upon the vote for removal the term of the accused shall expire and his official status, power and authority shall cease without further action.
(d) Anyone removed hereunder shall have the right of appeal.
The Tennessee Supreme Court in McDonald v. Brooks, 387 S.W.2d 803 (Tenn. 1965), suggests that ouster suits brought under municipal charters are similar to ouster suits brought under the Tennessee Ouster Law, both procedurally and substantively. In the McDonald case, citizens filed a petition seeking ouster of the mayor under a charter provision that permitted the removal of officers for “grave misconduct showing unfitness for public service,” based upon the mayor’s failure to take action against the police chief. The city’s police chief abused alcohol while on and off duty, and the citizens complained that the mayor failed to report such conduct to the board and failed to take action. The city charter required that “specific charges” be stated against the officer to be removed, and the Chancery Court found that the mayor’s actions did not constitute “specific charges” sufficient to remove the mayor, and further, if all allegations of the mayor’s actions were taken as true, such conduct did not amount to “grave misconduct showing unfitness for public duty.” The Supreme Court adopted the Chancellor’s memorandum opinion in this opinion, including the following ruling:
The petition filed by the citizens before the city council is an ouster suit against the mayor, the same as if it had been filed under the General Ouster Statutes of Tennessee, as contained in Sections 8-2701, et seq, T.C.A., and the sufficiency of the petition must be tested by the same rules as those of a court of law.
McDonald, at 806. The Court cites the case State ex rel. v. Perkinson, 19 S.W.2d 254 for the following rule:
Proceedings under the Ouster Law should not be brought except in clear cases of official dereliction. The statute was intended to remove public officials for wilful misconduct and for acts involving moral turpitude.
Id. The Court found that the allegations made against the mayor failed to meet the requirements of the charter in alleging official misconduct, as the alleged conduct “must be of such a nature that the official could be indicted for a common law misdemeanor for misconduct in office.” Id.
Although the Supreme Court stopped short of stating that charter provisions providing for the removal of officers are void, it is clear that removal attempted under such provisions must conform to the Ouster Law. Such ruling is reflected in an earlier opinion, in which the Court states:
Public officials acting in good faith, who, through ignorance, error, or oversight, run counter to a charter provision or some law, do not subject themselves to indictment and removal from office at common law, and under similar circumstances could not be removed from office under the Ouster Law.
State ex rel Citizens of Lawrenceburg v. Perkinson, 19 S.W.2d 254, 255 (Tenn. 1929).
The Ouster Law states:
§ 8-47-101. Officers subject to removal - Grounds. - Every person holding any office of trust or profit, under and by virtue of any of the laws of the state, either state, county, or municipal, except such officers as are by the constitution removable only and exclusively by methods other than those provided in this chapter, who shall knowingly or willfully commit misconduct in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state, or who shall in any public place be in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such office and shall be ousted from such office in the manner hereinafter provided.
Despite such broad clauses as “misconduct in office” and “neglect to perform any duty” the officer must commit actions which would amount to a crime in order to be ousted.
To commence an ouster action, the attorney general must institute proceedings after receiving written notice that an official is guilty of acts set out in the above statute. T.C.A. §§ 8-47-102, 103. After conducting an initial investigation, the attorney general files suit in circuit, chancery or criminal court to oust the official from office. T.C.A. § 8-47-103.
Although the City Charter contains a much simpler procedure for removal by the city commission, any action to remove an officer will be weighed in court under the provisions of the Ouster Law. Absent conduct which results in an indictment for criminal activity, it is unlikely that such removal proceedings conducted by the commission will be upheld in court.
The conduct of the officer in question, in failing to charge VIP’s with DUI or other state misdemeanors, in my opinion, do not amount to actions which will support removal of the officer under the general law. It is important to note that those actions or failures to act by the officer occurred in his employment as a deputy sheriff, not in the commission of any duty prescribed to his office as city commissioner. The officer’s conduct must arise to “willful misconduct” and involve “moral turpitude” while carrying out his duties as city commissioner before an ouster action under the charter can be defended in court.
I hope this information is helpful. Please contact me should you need further assistance.
Thank you for consulting with MTAS.
Melissa A. Ashburn