|Legal Opinion: |
Text of Document: December 8, 1993
Your main question is, can the city commission overturn the decision of the city manager in demoting the police chief. That question and several other related ones were generated by the fact that you promoted the chief of police on a trial basis, and demoted him to patrolman during his trial period for several reasons:
- Ordering equipment without the city manager's authorization.
- Transporting his wife in a city patrol car.
- Failure to get certain keys made for city officials and the city manager.
- Bad-mouthing city personnel in public, specifically in one instance, calling city manager and other city officials sons-a-bitches.
- Attempting investigations instead of utilizing his investigator.
The officer has demanded a full-blown appeal before the city commission.
In my opinion, the board of commissioners is not entitled under the city charter to second guess the city manager's decision to demote the police chief to patrolman.
The City is chartered under the general law manager-commission charter. Under that charter the city manager:
... may appoint, promote, suspend, transfer and remove any officer or employee of the city responsible to the city manager. [Tennessee Code Annotated, section 6-21-102]
The police chief is clearly responsible to the city manager. The charter provides that "The city manager shall appoint a chief of police and such patrol officers and other members of the police force as may be provided by ordinance [Tennessee Code Annotated, section 6-21-601]. In addition, among the powers and duties prescribed by the charter for the city manager are these: "Except as in this charter provided, appoint and remove all heads of departments and all subordinate officers and employees, all appointments to be made upon merit and fitness alone" [Tennessee Code Annotated, section 6-21-108(2)]; and to "Supervise and control the work of the recorder, the chief of police..." [Tennessee Code Annotated, section 6-21-108(3)].
Arguably, the board of commissioners is within its authority to establish rules and regulations governing the appointment and removal of all officers and employees of the city. The city charter provision gives the city manager the authority to "Except as in this chapter provided, to appoint and remove all heads of departments and all subordinate officers and employees, all appointments to be made upon merit and fitness alone." [Emphasis is mine] [Tennessee Code Annotated, section 6-21-108(2)]. Presumably, the board of commissioners could prescribe what constitutes merit and fitness.
Even if that is so, such rules and regulations cannot supersede the city charter because the charter represents state law. In State ex rel. Lewis v. Bowman, 814 S.W.2 369 (Tenn. App. 1991) the director of public works claimed he was terminated in violation of the city's personnel policies, which gave him certain procedural rights. However, the rights granted to him under the city's personnel policy were in conflict with the city's charter provisions, which made department heads employees at will. The Court said,
It has long been the law in this state, as in many other states, that ordinances of the city are subordinate to the charter provisions. This was pointed out in the case of Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495, 512, 71 S.W.815, 819 (1903), wherein it was said, "The provisions of the charter are mandatory and must be obeyed by the city and its agents; and if in conflict with an ordinance, the charter must prevail."
A similar result was reached in Dingham v. Harvell, 814 S.W.2d 362 (Tenn. App. 1991) in which the police chief contested his firing by Millington board of mayor and aldermen. (Actually, the chief of police was merely not "reappointed" by the board.) The Court rejected the police chief's argument that he was an employee of the city for the purposes of the city's personnel policies that applied to city employees and which gave them certain job protection. The police chief under the city's charter served at the pleasure of the board of mayor and aldermen (an employee at will). In a contest between the city's personnel policy and the city charter, the latter wins, said the Court.
In a case almost square with the facts behind your question (except that it involved a termination rather than a demotion), the Gatlinburg city manager terminated a city employee for misconduct under a private act city charter provision that said
The Recorder, Chief of Police, City Attorney, and all other officers, agents, and employees shall be appointed by the City Manager and removed by him at any time.
Another provision of the charter said that "The Mayor or any commissioner or any employee may be removed from office by the Board of Commissioners." The board of commissioners had passed an ordinance which provided for a hearing and appeal process before the city manager, which the city manager followed prior to terminating the employee. In Watson v. City of Gatlinburg, 699 S.W.2d 171 (Tenn. App. 1985), the Court pointed out that the Gatlinburg city charter "vests the city manager with full authority to appoint and remove city employees at his discretion, and charter provisions are mandatory." [Citation omitted.] The power granted to the board of commissioners to remove city employees was not mandatory, said the Court,
... thus, the charter language establishes that the termination of the appellant, instigated by the city manager, is a proper exercise of the manager's power under the charter. The authority to remove public officers and employees may be vested in a designated officer and he alone may conclude whether or not removal is appropriate. [Emphasis is mine.] [Citation omitted.]
The general law manager-commission charter designates to the city manager the power to demote a city officer or employee. [Tennessee Code Annotated, secions 6-21-102 and 6-21-108(2)]
The board of commissioners has purported to adopt personnel polices and procedures related to the city manager's personnel authority. That policy, reflected on page 30 of an unnamed document (of which I have only page 30) you sent to me declares that
Pursuant to the Town Charter, the Town Manager has the authority to appoint, promote, demote, transfer, suspend and remove all officers and employees of the Town subject to City Commission Approval.
Apparently there is no record the policy has ever been adopted by the city. Of course, if that is true, it is not effective. But even if the policy has been adopted, it attempts to condition the city manager's charter authority over personnel actions upon approval of the board. There the policy exceeds the authority of the board of commissioners.
Under Loudermill v. Cleveland Board of Education, 105 S. Ct. 1487 (1985), the U.S. Supreme Court held that a government employee who has a property right in his employment is entitled before being terminated to a brief pre-termination hearing, provided he is afforded a full-blown post-termination hearing. In your case the employee in question was only demoted. However, even had you terminated him, under the charter he would be entitled to both a pre-termination hearing and a post-termination hearing (they may be rolled into one pre-termination hearing) before the city manager. His appeal from that point would be to courts and not to the board of commissioners. Because the police chief was only demoted and not terminated, we do not need to get into the question of whether he has a property right in his job.
Your bill of charges against the police chief, whether the charges are viewed individually or collectively, supports his demotion. Obviously, the charges have to be viewed collectively because your notice to him of his demotion gave as the "reasons" for the demotion the five indicated charges.
It is certainly within the city manager's authority under the city charter to give the police chief directives related to his duties, and to insist that he obey them.
Apparently, a particular question has arisen over the charge that he called you and other city officials and employees sons-a-bitches. It is claimed that he has a First Amendment right to do so. That claim is not well-founded. A government employee's free speech rights are limited under the Pickering-Connick test. That test reflects two United States Supreme Court cases, Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 10 L.Ed.2d 811 (1967) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) in which the Court outlined a two prong test to determine whether a public employee's speech was entitled to First Amendment protection:
- Is the speech a matter of public concern?
- If the speech is a matter of public concern, does the public employee's interest in making the speech outweigh the state's interest against him or her making it?
With respect to the question of whether a public employee's speech touches a matter of public concern, the Court said in Connick,
When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior ... Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement as revealed by the whole record.
The courts have been generous in protecting public officials who have publicly criticized their superiors on a broad range of issues regarding government management and administration, but they have drawn a firm line at offensive, abusive, disrespectful, and derogatory language, including profanity and name-calling, directed by subordinates toward superior officers, whether such language is used within the government agency or in public. [See 109 ALR Fed 9; 106 ALR Fed 396]
McMurphy v. Flushing, 802 F.2d 191 (6th Cir. 1986) is particularly important on this point because it is a U.S. Sixth Circuit Court of Appeals case, the U.S. Circuit that includes Tennessee. In that case a police officer made various statements both within and without the police department, including to city council members, making "abusive, ridiculing and derogatory statements about the city manager and chief of police." Those statements included telling the chief of police "the whole world is going to come down around you when a court of law get [sic] this, for your siding with that back-stabbing son-of-a bitch City Manager." Many of the police officer's statements involved accusations of misconduct on the part of his superiors in the police department and in city government, including the city manager.
Applying the Pickering-Connick test, the Court held that most of the police officer's speech, including his abusive speech, did not touch on a matter of public concern, but had all the earmarks of a "personal vendetta;" therefore that speech was not protected under the First Amendment. With respect to the police officer's statements involving accusations of misconduct on the part of his superiors in the police department and in city government, the Court believed a sincere effort to expose public corruption would relate to a matter of public concern. Although it thought the police officer's claim of sincerity was "dubious," the Court applied the second prong of the Pickering-Connick test to his speech in that area.
The Court resolved that test in favor of the city because, "McMurphy ridiculed and challenged the authority of the two top officers in a very small police department where close working relationships were required." The Court pointed out that in Connick the U.S. Supreme Court had said
Where close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.
Of course the Court in McMurphy was talking about the smallness of the police department and the impact the police officer's obnoxious speech had on it. However, small offices under Connick are not limited to police departments. In fact, Connick itself involved disruptive speech on the part of an attorney in the office of the district attorney. In a small city in which the city manager exercises considerable direct oversight and control over a small police department, he is the head of a small office with respect to the chief of police and police officers in the same manner that the chief of police is the head of a small office with respect to the police officers. There is no meaningful distinction.
As Connick makes clear, the head of a small office in which close working relationships are essential to the efficient operation of the office, does not have to wait until a subordinate starts a fire with his speech; he can take his verbal matches away from him.
I suggested to you that if the board of commissioners insists on having the hearing (Obviously, there is not much you can do about it if it does) it should simply listen to the former police chief, refrain from making comments about what it hears, and without elaborating its reasons, make its decision whether to uphold your demotion of the police chief. The reason for that advice was that it sounded like the former police chief was sliding down the slippery slope to termination. You did not tell me that or even say anything that suggested such a conclusion; I made that deduction based on the information you gave me about the demotion. The documents you sent to me reflecting the charges against him only reinforces that deduction.
Public employees have a liberty interest in their employment. An employee's liberty interest is affected where false or defamatory information about the employee is made public in connection with his or her termination that affects the employee's standing in the community or his ability to obtain future employment. A person whose liberty interest is affected is entitled to a name clearing hearing. [See Bishop v. Wood, 426 U.S. 624, 96 S. Ct. 2074, 48 L.Ed.2d 684 (19767); Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977)] It is extremely easy for public officials to be accused of making false or defamatory statements about employee's during termination procedures even when there is no intention of making such statements on the part of the officials accused of making them. For that reason many attorneys advise public bodies to be extremely careful about what they publicly say about employees, sometimes to refrain from saying anything at all, during termination proceedings. I think that advice is good for all disciplinary proceedings; it prevents the employee from accumulating a record that can come back to haunt the employer when and if termination proceedings occur.
Sidney D. Hemsley
Senior Law Consultant