From: Sid Hemsley, MTAS Senior Law Consultant
Re: Tenure of planning commission members and other issues
As I understand the facts reflected in Ms. A’s two letters of September 23, 2011, to the City’s Planning Commission, the mayor removed the members of the planning commission, and it is her opinion that the mayor did not have the authority to take that action except in cases of a vacancy occurring on the planning commission, that their removal violated Tennessee’s Open Meetings Law, that their removal was not done in accordance with the reconsideration provisions of Robert’s Rules of Order (RRO), and that the vote for the approval of the landfill by the newly appointed members of the planning commission was clouded by conflicts of interest or appearances of conflicts of interest.
I will address each allegation below.
The Removal of the Planning Commission Members
With respect to the first issue, Ms. A’s reasoning seems to be that when the city adopted the ordinance establishing a planning commission, it omitted the part of the state statute providing that members of the planning commission serve at the pleasure of the mayor.
Tennessee Code Annotated, § 13-4-101 says in full on the appointment and removal of planning commission members:
The chief legislative body of any municipality, whether designated board of aldermen, board of commissioners or by any other title, may create and establish a municipal planning commission. Such planning commission shall consist of not less than five (5) members and not more than ten (10) members within the limits to be determined by the chief legislative body. One (1) of the members shall be the mayor of the municipality or a person designated by the mayor and one (1) of the members shall be a member of the chief legislative body of the municipality selected by that body. All other members shall be appointed by such mayor, except as otherwise provided in subsection (b). In making such appointments, the mayor shall strive to ensure that the racial composition of the planning commission is at least proportional reflective of the municipality’s minority population….the terms of appointive members shall be of such length as specified by the chief legislative body; provided that they shall be so arranged that the term of one (1) member shall expire each year. Any vacancy in an appointed membership shall be filled for the unexpired term by the mayor of the municipality, who shall also have the authority to remove any appointed member at the mayor’s pleasure. [My emphasis]
Ms. A correctly points out that § 13-4-101 of the city’s municipal code, which contains the ordinance establishing the city’s planning commission, omits the last sentence of that state law. However, that last sentence was found in Public Acts 1935, Chapter 34, the law that originally authorized municipalities to establish planning commissions, and has been found in that law, as amended, to the present date (except that until the passage of Public Acts 1987, Chapter 406, the power to appoint and remove members of the planning commission belonged not to the mayor but the “chief executive officer” of cities, some of whom were city managers).
That provision and language supports the proposition that the members of the planning commission to whom it pertains serve at the will of the mayor. The at will doctrine is still alive in Tennessee. The blunt meaning of the at will doctrine is that, notwithstanding Ms. A’s allegation that the removal of planning commission members by the mayor was “arbitrary and capricious” and that such members cannot be removed without cause, is that the mayor can indeed remove those members with or without cause. He need not give them a reason for their removal, or even have a reason. The federal and state courts have hewn out some exceptions to the at will doctrine, but none that apply to the members of the planning commission. It is noteworthy that when Public Acts 1935, Chapter 234 was passed, the Tennessee General Assembly undoubtedly knew exactly what the at will doctrine was and meant.
In the U.S. Sixth Circuit Court of Appeals (which includes Tennessee), if a municipal charter makes city employees at will, and authorizes no other options, a municipal ordinance, resolution or policy that gives employees a property right in their jobs gives way to the charter. In Chilingirian v. Boris, 882 F.2d 200 (6th Cir. 1989), a city attorney fired by the city argued that he had a property right in his employment, the basis of which was an implied contract with the city. The Court rejected his argument, reasoning that:
This argument is devitalized by the fact that the city charter governs the terms of the city attorney’s employment and provides for his termination at will. Moreover, the city was not authorized to enter into any contract in contravention of its charter. See Niles v. Michigan Gas and Elec. Co., 273 Mich., 255, 262 N.W. 900 (1935) (under Michigan law, a municipality cannot exceed its charter powers). Accordingly, notwithstanding Chilingirians’ protestations to the contrary, no viable means exist for circumventing the termination-at-will language implicit in the charters section 4.6 provision that the city attorney serves at the pleasure of the council. [Citation omitted.] [My emphasis.] [At 205]
In the unreported case of McLemore v. City of Adamsville, 1990 WL 30478 (6th Cir. 1990), the chief of police of the City of Adamsville, Tennessee, was fired. Under the city’s charter department heads, including the chief of police “shall be appointed for indefinite terms and .... shall serve at the pleasure of the commission.” [Court’s emphasis.] [At 2] The former chief of police made several related arguments against his dismissal: That he had a property right in his employment, that his due process rights had been violated because the city had not given him the preterm nation hearing required by Cleveland Board of Education v. Loudermill, 470 U.S. 539 (1985); that the city charter did not govern the “contours” of his employment because he had been a member of the “classified service,” before he became police chief, and retained that status after he became police chief, and that the city fired him in violation of Tennessee state law.
The Court rejected all his arguments. His claim that he was entitled to a Loudermill hearing failed, said the Court, citing Chilingirian, above, because he did not have a property right in his employment. In Tennessee, city charter provisions and ordinances may give rise to property rights for continued employment. Huddleston v. City of Murfreesboro, 635 S.W.2d 694 (Tenn. 1982). However, a review of the Adamsville’s city charter reveals that, by its specific terms, the chief of police “shall serve at the pleasure of the commission.” Sixth Circuit precedent dictates that an employee does not have a protected property interest in his continued employment “when his position is held at the will and pleasure of his superiors.” [Citing Chilingirian, above.] [At 2]
His claim of being a permanent member of the classified service failed, said the Court, because “[T]he city charter exclusively controls McLemore’s employment relationship with Adamsville. Nothing in the city charter or elsewhere supports McLemore’s conclusion that “once a classified city employee always a classified city employee.” [At 3] Finally, his claim that the city violated state law in firing him failed because, said the Court:
...[U]nder Tennessee law, an individual is an at-will employee, as long as the city charter or other city regulations do not provide otherwise. Whittaker v. Care-More, Inc., 621 S.W.2d 395 (Tenn. App. 181) As previously stated, the Adamsville’s city charter clearly provides that McLemore was an at-will employee. [At 3]
That municipal charter language is mandatory in Tennessee, with specific respect to at will provisions in the city charter, is seen in Lewis v. Bowman, 814 S.W.2d 369 (Tenn. App. 1991). There 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 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 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 which gave city employees certain job protection. Under the city’s charter, the police chief served at the will and pleasure of the board of mayor and aldermen. In a contest between the city’s charter and the city’s personnel policies, the charter wins, said the Court. [In accord are Gay v. City of Somerville, 878 S.W.2d 124 (Tenn. App. 1994); Mille v. City of Murfreesboro, 122 S.W.3d 766 (Tenn. Ct. App. 2003); Trusant v. City of Memphis, 56 S.W.3d 10 (Tenn. Ct. App. 2001); Summers v. Thompson, 764 S.W.2d 182 (Tenn. 1988); Brown v. City of Niota, 214 F.2d 718 (6th Cir. 2000) (unreported).]
Those cases tell us that Tennessee is an at-will state, that a municipal employee or officer claiming a property right in his employment must be able to support his claim with a statute, and that if he makes such a claim in the face of a statute that paints him at-will, his claim will fail. They also tell us that if the statute in question is silent on a municipal officer or employee’s employment status, the municipality might have some discretion to adopt an ordinance or other written policy that gives him a property right in his employment.
Tennessee Code Annotated, § 13-4-401 is not silent on the “employment” status of members of the planning commission. Indeed it expressly provides that members of the planning commission appointed by the mayor serve at the pleasure of the mayor. The state law supersedes the city’s ordinance on that subject.
Open Meetings Law Violation
Apparently, the mayor removed the planning commission members at issue at a public meeting on August 16, 2011, for which notice was given. Ms. A contests the adequacy of the notice. Interesting in that connection is that the mayor could have removed those members without holding a public hearing, he being the only person who has the authority to appoint and remove the members of the planning commission; no deliberation of the city’s governing body or its making of a decision is required. Ms. A strongly argues that even in such a case, if the mayor chose to remove the members at a public meeting, adequate notice of the meeting was required to be given, and that the notice was inadequate because the agenda for the meeting contained only this notice: “[U]nder Item C Mayoral and/or other appointments.” Furthermore, alleges Ms. A, “the August 16 agenda was not published in the [local newspaper] according to the newspaper records, which is normal practice for the commissioner’s notice to be delivered to the citizens.”
At first glance that sounds like an attractive argument, but it ignores the fact that the mayor did have the right to remove the members of the planning commission “at his pleasure,” which presumably includes in a public meeting. The Open Meetings Law itself appears to support that presumption. A “governing body” is defined in the Open Meetings Records Law as “The members of any public body which consists of two (2) or more members with the authority to make decisions for or recommendations to a public body on policy or administration…” (Tennessee Code Annotated, § 8-44-1012(b)(1)(A)) The City Council had no authority to make decisions with respect to the removal of the members of the planning commission, or recommendations to any other public body on that issue. The mayor is the sole decision-maker on the issue of their removal.
The case of Metropolitan Air Research Testing Authority v. Metropolitan Government of Nashville and Davidson County, 842 S.W.2d 611 (Tenn. Ct. App. 1992), is instructive on the question of whether the mayor’s decisions, when he is the position of a sole decision-maker, are subject to the Open Meetings Law. There the city manager formed a committee to investigate and give advice to him on issues pertinent to his duties. An unsuccessful bidder on a city contract argued that the award of the contract violated the Open Meetings Law. Under the Metropolitan Government Charter, said the Court:
The responsibility for procuring goods and services for most of the city’s departments rests on the purchasing agent....After the bid openings, Metro Ord. § 15-1-19-(d), the purchasing agent requests the requisitioning agency to review the bids. Metro Ord. § 15-1-19(e), and obtains a certification from the finance director that funds for the contract are available. Metro Ord. § 15-1-18-(b) Thereafter, the purchasing agent, “with the approval of the mayor” makes all determinations with regard to the award of contract. Metro Ord. § 15-1-19(e) [At 618] [Emphasis is mine.]
Under that purchasing policy, it was the mayor who, under the city’s charter, approved the award of the purchasing contracts at the bid award meeting. Here is what the Court said about that meeting with respect to the Open Meetings Law:
The Sunshine Law applies to meetings of public bodies “for which a quorum is required in order to make a decision or to deliberate toward making a decision on any matter.” Tenn. Code Ann. § 8-44-102(c). It has never been interpreted to apply to meetings pertaining to decisions made by single public officials. Fain v. Faculty of College of Law, 552 S.W.2d 752, 754 (Tenn. Ct. App. 1977) (meeting of an advisory committee to law school dean were not required to be open ); see also Mid-South Publishing Co. v. Tennessee State University & Community College Sys., App. No 01-A-01-9002-CH-00074, slip op. At 11, 16 T.A.M. 5-8, 1990 WL 207410 (Tenn. Ct. App. 1990) (meeting of the chancellor’s advisory committee was not required to be open because the decision was the chancellor’s alone); Memphis Publishing Co. v. City of Memphis, Shelby Eq. Slip op. At 4, 3 T.A.M. 36-19 (Tenn. Ct. App. Aug. 7, 1978) (labor negotiations conducted by mayor).
The June 22, 1990 meeting was not a meeting of a governing body. The group assembled in the mayor’s office consisted of various city officials with separate roles in the procurement process, but the group was neither created nor recognized by the Metropolitan Charter, the city ordinances, or the rules and regulations of the Division of Purchases. The group was not required to have a quorum or to deliberate, or even to make recommendations to a public body.
The decision on whether to award the contract rested with the purchasing agent. At most, the officials attending the meeting were providing the purchasing agent with their opinions concerning whether he should award the contract to the company that submitted the lowest bid. The purchasing agent could have made a decision without the meeting. Accordingly, we find that the Sunshine Law did not require this meeting to be open to the public. [At 619]
The only difference between the mayor in Metropolitan Air Research Testing Authority and in your City, was that the in the latter case the mayor took his action to remove the planning commission members in a public meeting, and in the former the mayor did not take that action in a public meeting. But it escapes me how there was a violation of the Open Meetings Law in either case when the Open Meetings Law is not even triggered when a sole decision-maker takes action that only he can take on an issue. Your mayor chose to make a decision only he could make in a public meeting, but it is a decision by the governing body of the city, or deliberation toward a decision by the governing body of the city, which the governing body of the city has the authority to make that triggers the Open Meetings Law.
In addition, a violation of the Open Meetings Law can be cured by a substantial consideration of the issue from which the violation arose (Neese v. Paris Special School District 813 S.W.2d 432 (Tenn. Ct. App. 1990), essentially doing over what the city’s governing body previously did in violation of that Law. What does a city council do over with respect to the removal of members of the planning commission? The right of removal of those members belongs solely to the mayor; the city council has nothing to do over. It is probably unfortunate that the mayor chose to remove the members of the planning commission in a public meeting, which I suspect reflected more of his belief that action had to be done at such meeting, rather than a choice. In any case, his action does not appear to me to have been a violation of the Open Meetings Law.
Ms. A correctly states Roberts’ Rules of Order on Reconsideration. I will not restate that rule, which is found in her opinion. However, I think her analysis holds the planning commission (and any other municipal governing body) to a too high standard in the use of Robert’s Rules of Order. It cannot be the law that a municipal body is forever prohibited from “reconsidering” what it did at a previous meeting simply because it failed to follow the strict rule of Reconsideration under RRO. In Tennessee, the rules of parliamentary procedure are adopted for the guidance and convenience of the board. It is said in Bradford v. City of Jellico, 1 Tenn. Chan. App. 700 (1901), that:
...these rules of order for the government of the city council are mere rules of procedure adopted by itself for its guidance and convenience. They are no part of its legislative or legal charter, and rest upon no positive prescription of the statutes of the state. Being rules of procedure adopted by the council for its own convenience and government in the enactment of ordinances, it is competent for the council to waive them, and certainly this is so with the consent of all the council present. This consent is assuredly sufficient, if it be expressly given, and such consent, in our opinion, may be implied. If an ordinance be legally passed on two readings at the meeting at which it is introduced, and at the next meeting it is put upon its passage on its third and final reading without objection by any member of the council present, based upon its nonreference to a committee, this is, in legal effect, equivalent to a waiver of the rule requiring a reference to a committee except by unanimous consent of the council. [At 719.]
Under Bradford, it appears that if the city council has adopted rules of procedure governing the agenda or any other meeting issue, it could, simply by implied unanimous consent (or by any other means prescribed by the rules), suspend those rules.
That case does not indicate whether the city council adopted its rules of procedure by ordinance or motion. However, its language supports a good argument that unless the charter or other statute prescribes a procedure, the council can formally or informally suspend its rules to bring a question to a vote whether it adopted those rules by motion or ordinance, and that if the question got before the city council without objection, and received the number of votes prescribed for passage, the question passed. In other words, unless a governing body violated the city charter or a statute, the council can expressly or impliedly remove its own procedural impediments to a vote on a question.
That conclusion is supported by Saylors v. City of Jackson, 575 S.W.2d 264 (1978). There the mayor, as presiding officer, moved for the adoption of an annexation ordinance. Not receiving a second within a period of about four seconds, he declared the motion to have died for lack of a second. A council member protested to the mayor that he had acted too quickly, declaring that he had intended to second the motion. The motion was restated by the mayor, seconded by the protesting council member, and unanimously approved by the board. Rejecting a challenge to that procedure on the ground that it violated Robert’s Rules of Order, the Court said:
Even if this irregularity violates Robert’s Rules of Order, that tome specifically provides that where action is unanimous, a violation of the rules is without consequence. Robert’s Rules of Order, section 48, at 202-03 (rev. Ed. 1971) states, ‘By general, or unanimous, or silent [emphasis is mine] consent the assembly can do business with little regard for the rules of procedure, as they are made for the protection of the minority, and where there is no minority to protect, there is little use for the restraint of the rules, except as such to protect the rights of absent members, or the right of secret vote.’ [At 267] t is also said in Rutherford v. Nashville, 79 S.W.2d 581 (1935), that it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure.
The same rule is also supported by 4 McQuillin, Municipal Corporations, Section 13.42:
In the absence of legal provisions or restrictions, municipal legislative body may, from time to time, adopt and change its own rules or parliamentary usage as to procedure. The charter or a statute applicable may prescribe rules for the government of the proceedings of councils, municipal boards, etc., and often times the organic law provides that the council or representative body may adopt its own rules of action. The council may abolish, suspend, modify or waive its own rules. This also may be done by implication, when action in hand is not in accordance therewith. Of course, it cannot disregard mandatory charter or statutory provisions. [Emphasis is mine.]
Those cases and authorities support the proposition that if a question comes to the board, under its own rules, even in procedurally defective form, if there is no immediate protest made on procedural grounds, and the board votes on the question, the vote will not be disturbed because of any procedural irregularities; provided that the city’s charter or general statutes governing procedure are not violated.
In addition, although I do not know what procedure was followed to get the question of approving the landfill on the planning commission agenda, I suggest that the so-called Motion to Reconsider could be treated as a Motion to Rescind the action of the board in rejecting the landfill. (RRO, Rule 35). That possibility should be considered. Likewise, Renewal of a Motion is a possibility. (RRO, Rule 38).
The argument that a hyper technical application of Robert’s Rules of Order is required by city councils, most of which are not remotely expert on parliamentary law would, after they had made a parliamentary mistake, grip them in parliamentary devices from which they could never escape. That reality is a good reason for Tennessee’s rules that a city council’s procedural rules are for the convenience of the city council, and that the council can change them even by implication.
Conflicts of Interest
Ms. A’s opinion does not allege that any of the planning commission members had a conflict of interest that arose to a state law violation. She does cite the city’s ethics ordinance found in the Municipal Code, Title 1, Chapter 4, for the proposition that under §§ 1-403 and 1-404 of that ordinance, personal interests are defined. I will not repeat those definitions; they can be found in her opinion. However, she did not note that while § 1-403 of that ordinance provides that personal interests must be disclosed, but adds this sentence: “In addition, the official may recuse himself from voting on the measure.” [Emphasis is mine.] In short, the official is not required to recuse himself from voting, only to disclose his interest. That provision is typical of many ethics ordinances in Tennessee cities. I cannot speak with any knowledge what disclosures were made at the meeting of the planning commission on September 6, 2011, but Ms. A’s opinion suggests that there were a number of them.
I do not have a copy of the by-laws of the planning commission, but the copy of Section 7 reflected in Ms. A’s opinion not only is vague, those by-laws have probably been superseded by the city’s ethics ordinance adopted in 2006. As I pointed out above, that ordinance does not require abstinence from voting on matters which a city official has a personal interest, only that such official “may” recuse himself from voting on the measure.” Section 7 of the planning commission’s by-laws, quoted in Ms. A’s opinion, reads, “Should any commissioner consider his or her personal interest involved in any matter before the commission for a vote, it shall be his /her duty to disclose such conflict of interest and to abstain from voting on the articular matter.” I have no idea what a “personal interest” is under those by-laws, and repeat again ad nauseum that they have probably been superseded by the city’s ethics ordinance, which applies to “all full-time and part-time elected or appointed officials and employees, whether compensated or not, including those of any separate board, commission, committee, authority, corporation or other instrumentality appointed or created by the municipality.” It is clear that language encompasses the planning commission.
Ms. A’s opinion lists several members of the planning commission, one of whom she determines had a conflict of interest, and whom she declares should not have voted. Other members, she says, have an “appearance” of a conflict of interest, which she declares should be investigated before they are allowed to vote. Her opinion that Ms. B had a personal interest and that she should not have voted appears to be probably half right and half wrong: right in the respect that she probably had a personal interest, but wrong in the respect that she shouldn’t have voted. She was under no obligation to recuse herself from voting under the city’s ethics ordinance.
It also appears to me that without more, it would probably very difficult to turn Ms. A’s bare allegations of the appearance of possible conflicts of interest into “personal interests” as that term is defined in several contexts in § 1-402 of the Municipal Code.
In all events, complaints of ethics violations are investigated as prescribed by § 1-410 of the city’s ethics ordinance, and violations are handled under § 1-411 of that ordinance, not as contemplated by Ms. A’s opinion. Were Ms. A’s insistence that the planning commission, and presumably every other public body that votes, investigate every member to insure that they have no conflicts of interest or appearances of conflicts of interest before they are allowed to vote on certain issues would also put those public bodies in procedural vices. In the case of the City, it has an ordinance that addresses how conflicts of interest complaints (that do not rise to the level of violations of the state’s Conflicts of Interest Law) are investigated and addressed.