May 17, 2007
Dear Personnel Director:
Based on your telephone call and memo yesterday, the city’s civil service board ruled that because Private Acts 1965, Chapter 253 was not locally approved, it did not apply to the chief of police. You also told me that it is being said that the city cannot appeal the civil service board’s decision to the courts because no such avenue of appeal is provided for in the city’s charter. I will address each issue below
Local Approval of Private Acts 1965, Chapter 253
The Tennessee Secretary of State’s note on Private Acts 1965, Chapter 253, indicates that it was not locally approved at the time of the printing of Private Acts For 1965. A memo you sent to me this date contains attached minutes of the meeting of the Board of Mayor and Aldermen on May 2, 1967. In those minutes is the entry, “A motion was made by Mr. A and seconded by Mr. B to go on the record as disapproving Bill # 641 Chap. # 253 of the private acts of 1965.” If there are no contrary earlier minutes indicating that the Act was approved, it must be assumed that the Act was never locally approved, although it appears in the city’s 1973 charter compilation in the city’s municipal code of the same year.
But even if Private Acts 1965, Chapter 253 was never adopted, it might be argued that if the city operated under that Act from 1965 until its legitimate inclusion in the 2005 City Charter, that it is a valid act. However, I doubt that it is necessary to attempt to build that argument. There is no question that Public Acts 2005, Chapter 76, was locally approved and it was in effect as the City Charter. The contents of Private Acts 1965, Chapter 253, are found in § 12(f)(2) in that charter, and were found in that charter when the board of mayor and aldermen demoted the chief of police, apparently without cause.
Arising from that fact comes these related questions:
- What is the effect of that charter provision on the present chief of police, he not having been the chief of police for four years following the local approval of Private Acts 2005, Chapter 76?
- More specifically, can the legislature change the law to revoke the property rights of a municipal (or other government) employee, and does that revocation apply to current city employees, in this instance, the chief of police?
I address both questions together.
As far as I can determine, there is no reported case law in Tennessee, or in the federal courts that cover Tennessee, on the question of whether the state can revoke property rights in employment that it has given municipal (or other government) employees. However, in the unreported case of McLemore v City of Adamsville, 1990 WL 30478 (listed in Table of Cases, 914 F.2d 257 (6th Cir. 1990), handed down by the U.S. Sixth Circuit Court of Appeals, a police chief in Tennessee terminated by the city, made the argument that he had been a classified employee when he was a police officer before he became the chief of police, and that once a classified employee, always a classified employee. The Court rejected that argument, which comes close to generally repudiating the argument that once an employee has a property right in his employment he forever retains that right. But McLemore does not involve a change in the state law that revoked a property right given to the police chief under a previous law; he was a classified employee during the period he was a police officer and became an unclassified employee upon his promotion to chief of police. In addition, McLemore is an unreported case, which does not have the precedential weight of reported cases.
Under the U.S. Supreme Court case of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), property rights in employment arise under state law. But that case does not answer the question of whether the state can take back property rights it has previously given to employees. However, state and federal cases from other jurisdictions, including
the 9th U.S. Circuit Court of Appeals, which is reputed to be the most liberal federal circuit in the United States, have held that because the source of property rights in employment is state law, the state can alter that law and revoke such rights.
The most recent case supporting that proposition, and the case containing the best discussion of other cases on this question, is Minella v. City of San Antonio, 368 F.Supp.2d 642 (W.D. Texas 2005). In that case an assistant city attorney had civil service protection under the city charter, but a charter change approved by the voters removed a number of positions from civil service protection, including hers. She did the legal equivalent of throwing everything but the kitchen sink into her arguments that she had an irrevocable property right in her employment and that neither the voters nor anyone else could take away that right. The Court rejected her claim. It agreed that, “As a fully vested classified civil servant in her position as an assistant city attorney with the city, plaintiff presumably had a cognizable property interest in her continued employment entitled to constitutional protection [Citing Loudermill, above, and other
cases]. But it declared that under Texas law, “This property interest was lost, however, when council took action after the voters, who had originally bestowed the right to civil service cases]. But it declared that under Texas law, “This property interest was lost, however, when council took action after the voters, who had originally bestowed the right to civil service protection in the first instance, exercised their power to remove it from the city charter.” [At 648]
The Court extensively analyzed Texas cases which the plaintiff cited to support her claim that her property right was irrevocable. The Court looked at each case and concluded that:
The [U.S.] Supreme Court has determined the existence of a protected property right is evaluated by an analysis of a relevant state law. Board of Regents of State Coll’s. V. Roth, 408 U.S. 564, 577 92 S. Ct 2701, 33 L.Ed.2d 548 (1972). Each case cited by plaintiff in support of her property interest involves some deprivation of position or employment other than elimination of its enabling provision....[At 650]
The Court also pointed to a list of federal and state cases that had reached the same conclusion. I have studied all those cases, and my analysis of them follows.
In Moulton v. City of Beaumont, 991 F.2d 227 (5th Cir. 1993), the city charter was silent on the employment status of city employees, but the city employee’s manual contained a “for cause” provision that created a property right in city employment, which was legal under Texas state law. The plaintiff, a personnel analyst for the city, had been hired under that personnel manual. However, the city subsequently removed the “for cause” provision from the employee’s manual, following which the plaintiff was fired without a hearing. He claimed that he had a property right in his employment under the personnel manual in effect when he was hired, and that the subsequent removal of the “for cause” provision in the manual did not affect that right. The U.S. Fifth Circuit Court of Appeals rejected that argument, declaring that:
Because we hold that the revised manual alone rescinded any alleged property interest in employment created by the 1977 manual, we need not address Moulton’s contention that there is a material issue of fact regarding whether or not he had notice of the adoption of the disclaimer. Additionally, in holding that the
revised manual rescinded any prior property interest, we also reject Moulton’s contention that the revised manual itself created a property interest. [At 233].
The U.S. Ninth U.S. Circuit Court of Appeals reached a similar conclusion in Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988), cert. denied, 489 U.S. 10, 109 (1989). In that case, in 1969, the plaintiff was promoted to the position of State Medical Examiner in Oregon. At that time, the position of State Medical Examiner was in the classified civil service. In 1977 that position was removed from the classified to the unclassified service by the state legislature. The plaintiff remained in the position of State Medical examiner until he was terminated without a hearing in 1985, on the grounds of dishonesty and fraud in the operation of his office. He sued for damages and reinstatement claiming his termination without a hearing deprived him of his property interest in employment.
The Court rejected both those claims, pointing out that under Oregon law, state employees are divided into classified and unclassified employees, and that:
Under this scheme, only regular employees in classified service have a property right to continued employment [Citations omitted by me.] Employees in unclassified service can be discharged for any reason and have no right to a hearing. [Citation omitted by me.] They “have no property interest” in continued employment. [Citation omitted by me.] [At 1548-49]
The Court analyzed and rejected the plaintiff’s claim that in spite of the Oregon state law governing unclassified employees, he somehow had a “property interest created outside of the statute, i.e. by an implied contract or mutually explicit understanding that he would not be fired absent such cause,” reasoning that any claim of such a right would have to arise under state law, and that there was no such state law. On the same point, the Court declared that: :
Moreover, in 1977, the state moved the State Medical Examiner position from classified to unclassified service. In doing so, it removed protections associated with classified service, including the requirement that the state discharge employees holding positions in classified service only for cause. Allowing administrators such as Debbie [the plaintiff’s supervisor] to make agreements with employees would defeat the state’s reclassification of positions. It is not plausible that the state would give Debbie implied power to enter into an understanding with Brady-as he argues-when the “understanding” would allow her to
effectively overrule the legislature....We therefore find that as a matter of Oregon law, Brady could not prevail on his claim of a property interest based on a mutual understanding or implied contract.. [At 1550]
[The plaintiff in Brady v Gebbie did prevail to the tune of $300,000 on a claim that his termination without a name-clearing hearing had violated his liberty interest in his employment. I will not go into the distinction between a property right in employment and a liberty interest in employment, but generally a liberty interest is affected when something is said by the government’s officers or employees about an employee upon his termination which impinges upon his reputation and ability to obtain future employment. In this case, the plaintiff was dismissed for fraud and dishonesty in the operation of his office.]
A California Court of Appeals also held that under California law a property interest in employment does not survive a charter change revoking that right. In Hinchliffe v. City of San Diego,165 Cal.App.3d 722 (Ct. App. 4th Dist, Div. 1985), the Court itself laid out the facts and its holding clearly and concisely in one paragraph:
Debra Hinchliffe was hired as a probationary police officer. While still on probation, she was discharged without a hearing before the Civil Service Commission (Commission). Claiming section 129 of the San Diego City Charter (Charter) on the date of her hiring granted such a hearing, she sought a writ of mandate. We hold Hinchliffe’s hearing rights created by the Charter were not vested so as to be immune from modification by the electorate. Thus, the Charter amendment eliminating commission review for probationary employees did not impinge any constitutionally protected right of previously hired probationary personnel. We affirm the denial of Hinchliffe’s petition for a writ of mandate. [At 724]
The Court reasoned that:
Under certain circumstances, a public employee, even while on probation, may acquire legally enforceable employment rights to which due process guarantees adhere. [Citations omitted by me.] Hinchliffe argues Charter section 129, as written at the time of her hiring, vests a property right to a dismissal-for-cause hearing before the commission which cannot be removed by later revision to the Charter. [At 725]
Rejecting that claim, the Court said:
Public employment, by and large, is not held by contract, but by statute. [Citations omitted by me.] The public employee, thus, can have no vested contractual right in the terms of his or her employment, such terms being subject to change by the proper statutory authority. (Ibid.) Similarly, employees of charter governments work subject to the amendment, revision or repeal of charter provisions affecting their employment.... [Citation omitted by me.] [At 726]
As far as I can determine, not a single case in the United States has held that property rights in employment survive a change in the state law under which those rights were initially granted. Property rights arise under state law, and Tennessee is an at-will employment state. Where a Tennessee city employee claims a property right in his employment he must point to a statute that gives him such a right, or by its silence allows the city to give him such a right. In the case of the City, the city’s “old” charter granted police chiefs a property right in their employment and in their rank, and the “new” city charter took away their property rights in their rank, unless they had served in that rank for four years. Under the above cases, that action was within the authority of the General Assembly, and that action applies to the present chief of police.
The only reservation I have about the application of those cases to § 12(f)(2) of 2005 City Charter to the chief of police is that § 12(f)(2) may be “tainted” in the minds of some city officials for the way it came into the charter in 2005. If that is so, and the board of mayor and aldermen still wish to demote the chief of police, it can amend the city’s charter and either clearly and cleanly take the chief of police entirely out of the classified service, or cleanly and clearly take him out of the civil service system with respect to his rank. Under the above cases, such an amendment would be legal, and its taint would not be an issue.
Appeals From Decisions of Civil Service Boards
Not every statute that establishes administrative or quasi-judicial boards provides for appeals of decisions by those boards. But Tennessee Code Annotated, § 27-9-101 et seq., which authorizes appeals by administrative and quasi-judicial boards, by common law writ of certiorari provides that:
Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of this state
may have said order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.
However, in that statutory scheme, Tennessee Code Annotated, § 27-9-114 contains a special rule for how appeals from civil service boards are handled. Until 1989, that statute provided that:
No court of record of this state shall entertain any proceedings involving the civil service status of a county or a municipal employee when such proceedings is in the nature of an appeal from a ruling of a city or county official or board which affects the employment status of a county or city employee, except such proceeding be one of common law certiorari.
But in 1989, that statute was amended to provide that:
(a)(1) Contested case hearings by civil service boards of a county or municipality which affect the employment status of a civil service employee shall be conducted in conformity with contested case procedures under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5 part 3.
(2) The provisions of this subsection pertaining to hearings by civil service boards shall not apply to municipal utilities boards or civil service boards of counties organized under a home rule charter form of government.
(b)(1) Judicial review of decisions by civil service boards of a county or municipality which affects the employment status of a county or city civil service employee shall be in conformity with the Judicial review standards under the Uniform Administrative Procedures Act, § 4-5-311.
(2) Petitions for judicial review of decisions by a city or county civil service board affecting the employment statutes of a civil service employee shall be filed in the chancery court of the county wherein the local civil service board is located....
I am sure that where the civil service board met to determine whether the demotion of the chief of police by the city’s governing body should be upheld, that hearing “affect[ed] the employment status of a civil service employee.”
Tennessee Code Annotated, §4-5-322, provides that, “A person who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter, which shall be the only available method of judicial review.” I am equally sure that under that statute, the city has the right to appeal the decision of the civil service board, notwithstanding the absence in the civil service provisions of the City Charter providing for such an appeal. The conclusion is supported by Roberts v. State Board of Equalization, 557 S.W.2d 502 (Tenn. 1977). Also see City of Brentwood v. Metropolitan Board of Zoning Appeals, 149 S.W.3d 49 (Tenn. Ct. App. 2004), (Appeal to Tenn. Supreme Court denied Sept. 13, 2004), in which the Court broadly defined who constituted an “aggrieved party” within the meaning of Tennessee Code Annotated, § 27-9-101).
I have no idea whether the Civil Service Board’s hearing was conducted in conformity with the contested procedures provision of Title 4, chapter 5, part 3 of the Administrative Procedures Act. If the answer is no, technically it is also subject to being overturned on that ground. [See Tidwell v. City of Memphis, 193 S.W.3d 555 (Tenn. 2006), which needs to be read in full on the application of the Administrative Procedures Act to civil service cases.]
Sidney D. Hemsley
Senior Law Consultant