|Legal Opinion: |
Text of Document: March 3, 1997
You have the following question: Can the city by ordinance provide a means by which department heads under certain conditions can elect to not be at will employees if those department heads are at will employees under your city charter? The Tennessee courts have addressed that precise question, and have declared that the answer is no.
Your question arises from at least three provisions of the proposed civil service ordinance:
- Section 2 provides that department heads are members of the exempt service, "except that department heads and the recorder who have been employed for a period of five years may be covered provided that the department head shall notify the board in writing if he desires to be covered...."
- Section 7 provides that:
The tenure of everyone holding office, place, position or employment under the provisions of this ordinance 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 or other special privileges for any of the following reasons, but for no other reasons: [There follows a list of reasons.] [Emphasis is mine.]
- Section 8 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 ordinance shall be removed, suspended or discharged except for cause...." [Emphasis is mine.]
However, Section 2 of your city charter expressly provides that "All offices and positions of employment at the level of department head or above...shall serve at the will of the Council." [Emphasis is mine.]
If a municipal charter makes an employee/employees at will, a municipal ordinance cannot make the employee/employees non-at will. In State ex. Rel. Lewis v. Bowman, 814 S.W.2d 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 procedural rights granted to him were in conflict with the city's charter, which made department heads employees at will. In holding the charter superseded the personnel policies, the Court said: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 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 it 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 the Millington Board of Mayor and Aldermen. The Court rejected the chief's argument that he was an employee of the city for the purposes of the city's personnel policies that applied to the city employees and which gave them certain job protection. The police chief under the city's charter served at the will and pleasure of the board of mayor and aldermen (employee at will.). In a contest between the city's charter and the city's personnel policies, the former wins, said the Court.
Under Bowman and Dinghan the provisions of the proposed ordinance that permit the department heads to become covered by the civil service system and to be protected from removal at will are void. Those provisions are not binding on either the present or future boards. If the city wishes to eliminate the at will status of department heads, it must do so through a charter change.
Sidney D. Hemsley
Senior Law Consultant