FROM: Sid Hemsley, Senior Law Consultant
DATE: May 9, 2007
RE: Property Rights of Department Heads In Their Employment, And Their Appointment And Removal
The City has the following questions:
1. Who has the authority to appoint and terminate department heads?
Under § 16(11) of the City Charter, the mayor, “shall select a person to fill the department head vacancy and ask the board for approval to hire the same as a full-time regular employee at will with a one (1) year probation period.” Generally, when a statute is silent on who has the right to terminate a government officer or employee, the power to appoint the officer or employee includes the power to remove him. For that reason, the mayor probably has the power to terminate department heads. However, the board can abolish positions of employment under § 15 of the charter; in that sense it can “terminate” department heads. It may be that the department heads have a property right in their employment under § 16(11) and cannot be removed by the mayor without a due process hearing. The same thing might also be true where the removal of department heads is done by the board under § 15..
2. If department heads have a property right in their employment under the present charter, do they retain those property rights even if the charter is changed to revoke those rights?
Municipal employees derive their property rights in employment under state law; although those rights can be enforced under the U.S. Constitution. But when the state law gives government employees a property right in their employment it does not perform a sacramental act that cannot be withdrawn; What the state giveth, the state can taketh away.
The City’s Charter
The City is chartered under Private Acts 1999, Chapter 7. Section 16 of that charter outlines the administrative duties of the mayor. Among those duties are the following appointive powers:
(3) May make temporary appointments to the offices of Recorder, Attorney, or Judge in cases of sickness, absence or other temporary disability. Temporary appointment shall be effective until such time as they are confirmed or rejected by the Board.
(4) Shall make appointment to boards and commissions as authorized by law.
(8) Shall, at the first meeting in January, appoint a Vice-Mayor, Treasurer, City Attorney, and, if necessary, an assistant City Attorney and City Accountant.
(11) The Mayor shall select a person to fill the department head vacancy and ask the board for approval to hire the same as a full- time regular employee at will with a one (1) year probation period.
Section 15 also gives the board of mayor and aldermen the broad authority to:
... establish , abolish, merge, or consolidate offices, positions of employments and departments; may provide that the same person shall fill any number of offices and positions of employment; and may transfer or change the functions and duties of officers, positions of employment and departments.
Threshold Question–Do Department Heads Have
A Property Right In Their Employment?
The first breath of § 16(11) of the City Charter indicates that department heads are hired as “regular full-time employees at will,” but the second breath indicates they are subject to a one year probation period. What happens after the one year probationary period for department heads expire? §16(11) can be read to mean that department heads are simply hired as employees at will, who have a one year probationary period. But generally, at will employees are always probationary employees; they are subject to removal at will at any time (with some exceptions made in federal and state statutes and cases). For that reason, § 16(11) can be read to imply
that at the end of the probationary period department heads achieve some other employment status that gives them a property right in their employment. We will take up this problem further below.
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 case of McLemore v. City of Adamsville, 1990 WL 30478 (6th cir. 1990) (unreported, except that is listed in Table of Cases, 914 F.2d 257 (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 pretermination 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 sports 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]
Important here is that in Tennessee, as in Michigan, charter provisions are mandatory; where the charter creates at will employment, “no viable means exist for circumventing the termination at will language [in the charter].”
That 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 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 a municipal 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. But none of those cases expressly answers the question of whether department heads in the City are at will employees after the expiration of their probationary period, or whether at that time they achieve a property right in their employment. of the City. As pointed out above the only language in the City Charter that implies that they may have a property right in their employment at the end of their probationary is contained in § 16(11), which says that the mayor is authorized to hire department heads only as “full-time regular employees at will with a one (1) year probation period.”
But § 15, of the City Charter also provides that:
... the Board may establish, abolish, merge, or consolidate offices, positions of employment and departments; may provide that the same person shall fill any number of offices and positions of employment; and may transfer or change the functions and duties of officers, positions of employment and departments.
The operative phrase of the broad powers the board of mayor and aldermen have over departments of the city under § 15 is the one declaring that the board can “abolish....positions of employment.” In light of that provision, it requires a considerable leap to conclude that under § 16(11) department heads obtain an implied property right in their employment at the end of the probationary period contained in that provision. I am not sure that the U.S. Sixth Circuit case of Chilingrinian, above, allows that leap.
If we momentarily assume that § 16(11) gives department heads a property right in their employment after they complete the probationary period contained in that provision, I am equally unsure how the courts would reconcile §§ 16(11) and (15) of the charter. Under § 16(11) apparently the mayor would have the right to terminate a department head after affording him an appropriate due process hearing, and under § 15, the board would have a right to effectively “terminate” a department head by abolishing his position of employment. But under § 15, the department head might not have a property right in his employment entitling him to a due process hearing before his termination, unless he derived that property right from § 16(11)
Absent a challenge by any department head of his dismissal without a hearing, it is probably good policy for the city to assume that the end of the probationary period gives department heads some property right in their employment, particularly because, as will be seen, it is within the authority of the General Assembly to amend the city’s charter by private act to revoke whatever property rights may be reflected from §§ 16(11) and 15, or to make those property rights clear.
Analysis of Question 1
A mayor in Tennessee has only those legislative and administrative powers granted to him, is a part of the municipal governing body to the extent and only for the purposes outlined, and can vote only to the extent expressly provided, in the municipal charter and the general law. [See Weil, Roth & Co., v. Mayor and Aldermen of Newbern, 126 Tenn. 223, 148 S.W. 680 (1912); Reeder v. Trotter, 142 Tenn. 37, 215 S.W. 400 (1919); Anderson v. Town of Gainesboro, 1992 WL 33893 (Tenn. App., unreported).] It is said of the mayor in Reeder and Town of Gainesboro, that:
In the absence of a statute necessarily implying that he has the same standing in the council as any other member and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council sub moto, and to the extent of the powers specially committed to him.
The same cases further say that:
He [the mayor] is not a member of either branch of the city councils unless expressly made such by law; ...and when this is the case, it is to the extent of such powers as are specially committed
to him, and no further, that he is a part of the city council...He is not one of its own members in the sense in which an alderman is.....
The mayor does not have the express authority to terminate department heads under the City Charter. But other cases also say that unless a statute or charter provides otherwise, the power to appoint an officer includes the power to remove the officer. [Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990); Gillespie v. Rhea County, 325 S.W.2d 314 (1950); Brock v. Foree, 778 S.W.3d 314 (1934).] In Gillespie, above, it is said that:
...the implied power to remove cannot be contracted away so as to bind the appointing authority to retain a minor officer or employee for a definite, fixed term. This is a universally accepted rule where the tenure of office is not prescribed by Statute or the Constitution. Under such circumstances the power to remove is an incident to the power to appoint. [Citations omitted.] [At 7]
Section § 16(11) of the City Charter gives the mayor the express power to fill department head vacancies, subject to board approval, and unlike the mayor’s other appointive powers, his power to fill such vacancies is not temporary. For those reasons, the mayor probably has the implied power to terminate department heads.
Analysis of Question 2
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, cited in the analysis of Question 1, the police chief made the argument that he had been a classified employee as 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 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 which revoked a property right given to the police chief under a previous law; he was a classified employee when 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, substantial state and federal case law 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 are 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 argument 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, agreeing 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 othercases], but 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 has 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 S.Ct. 1577, 103 L.Ed.2d 943 (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 in an earlier law. 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. For that reason, where, as in the case of your City, the city’s charter may have granted its department heads a property right in their employment, it is within the authority of the General Assembly, to amend the city’s charter, and return those employees to an at will status, or to make it clear that those employees have a property right in their employment.