Nearhood v. City of Altoona
| Decision Date | 14 January 1998 |
| Citation | 705 A.2d 1363 |
| Parties | Ray A. NEARHOOD, Appellant, v. CITY OF ALTOONA; the Council of the City of Altoona and the Councilmen and Councilwomen of the City of Altoona; individually, and as members of the City Council; Raphael Voltz, II, Mayor; Regina Reighard, Vice-Mayor; Mark Geis; Robert Mitchell; Dennis Hallinan and Herbert Wilson. |
| Court | Pennsylvania Commonwealth Court |
George R. Hludzik, Drums, for appellant.
David P. Andrews, Altoona, for appellees.
Before FRIEDMAN and LEADBETTER, JJ., and NARICK, Senior Judge.
Ray A. Nearhood appeals a Blair County Common Pleas Court order dismissing his appeal with respect to the procedural actions of the City Council of Altoona (Council) in terminating his employment as city manager.
This case arises from the following circumstances. Nearhood was hired as city manager in March 1995 pursuant to an employment contract. The contract provided that "[n]othing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City to terminate the services of the Manager any time, subject to the provisions of the Optional Plans Law...." See, e.g., Section 822 of the Home Rule Charter and Optional Plans Law, Act of April 13, 1972, No. 62, 53 P.S. § 1-822 (Section 822). 1 The parties also agreed that any dispute with respect to the contract would be referred to arbitration.
In July 1996, the Council considered removing Nearhood from his position based on certain alleged violations of law. After Nearhood was denied injunctive relief, 2 the Council held a hearing on September 24, 1996. The Council informed him several days later that it had terminated his employment following a vote of 6 to 1.
Nearhood subsequently filed a notice of appeal with the trial court, claiming that he had not been afforded procedural rights and a proper adjudication under the Local Agency Law, 2 Pa.C.S. §§ 551-555, 751-754. He sought to invalidate the termination, to have the case remanded to the Council for findings and conclusions of law, and to be made whole as to his wages and benefits.
The Council filed preliminary objections, asserting lack of subject matter jurisdiction in that the Local Agency Law was not applicable because Nearhood was an at-will employee, without a property interest in continued employment, and thus there was no appealable "adjudication" under that statute. In opposition, claiming he was not an at-will employee and so did have the requisite property interest, Nearhood pointed to Section 822, which provides in relevant part:
The municipal manager shall be appointed for an indefinite term, and may be removed by a majority vote of the council. At least thirty days before such removal shall become effective, the council shall notify the municipal manager of its decision to remove him from office, by a majority vote of its members, stating the reasons for his removal. The municipal manager may reply in writing and may request a public hearing, which shall be held not earlier than twenty days nor later than thirty days after the filing of such request. After such public hearing, if one be requested, and after full consideration, the council by majority vote of its members may adopt a final resolution of removal....
53 P.S. § 1-822 (recodified at 53 Pa.C.S. § 3060).
The trial court reviewed the language of this section and determined it did not support Nearhood's appeal. The court said that, as is practically and politically sensible, Section 822 permits a majority of a municipal council to terminate a municipal manager's employment at will, without just cause, and that the guarantees in the section are meant only to allow the manager an opportunity to publicize the council's intention to terminate his or her employment. For these reasons, the court agreed with the Council that Nearhood was an at-will employee and stated his claims of procedural impropriety should instead be addressed in arbitration. Nearhood now appeals to this Court.
Nearhood contends here that the trial court erred in not considering his allegations of procedural due process violations as to his termination. He reasons that his employment termination was an adjudication, subject to protections due under the Local Agency Law, because he was a public employee with statutory guarantees of procedural due process. He does not dispute that there generally is no "adjudication" when an at-will employee is fired, but argues that Section 822 by its very terms shows he was not an at-will employee, and thus confers upon him a property right invoking the protections of the Local Agency Law. Nearhood acknowledges that many public employees are at-will and, therefore, under well settled law, do not have property rights in their positions, but claims he is not such a "typical" employee given the language of Section 822 and the public nature of his removal. He asserts that it would be absurd if a municipality could terminate a municipal manager's employment for no reason. According to Nearhood, Section 822 ensures a city manager can be removed from office only if a city council makes a preliminary, private vote to remove him; if it gives him notice of the decision and the reasons for the removal; if the manager is afforded the opportunity to demand a public hearing; if the council holds such a hearing; and if the council then fully considers the evidence and takes a final vote on removing him. Nearhood concludes it was for the trial court, not an arbitrator, to decide his claim that four of these procedural requirements were not met.
The Council replies that Nearhood's removal was not an adjudication and thus was not appealable to the trial court under the Local Agency Law. It notes that the Local Agency Law defines an adjudication as a final order affecting personal or property rights, and maintains that Nearhood has no such rights here. The Council submits that Section 822 clearly does not provide a legitimate expectation of continued employment sufficient to trigger the provisions of the Local Agency Law. It reiterates the trial court's conclusion that the express terms of Section 822 confirm a manager can be removed whenever a majority of council wishes, and contain no support for Nearhood's position that a manager is entitled to continue in employment indefinitely unless discharged for good cause or reason. The Council also says that there is no legislative intent supporting Nearhood's position; indeed, the Council states, it would be absurd and contrary to political common sense if a council elected for four years could bind future councils to a particular manager. Last the Council refers us to a number of cases showing a lack of property interest in public employment and notes the corresponding lack of pertinent authority cited by Nearhood.
We agree with the Council that the trial court did not err. Nearhood's interpretation of Section 822 does not comport with the plain language of that section, which simply does not guarantee a municipal manager's tenure. Section 822 essentially permits a termination of a manager's employment whenever a majority of a municipal council chooses. It does not, as the trial court pointed out, restrict a termination to one based only on "good" reasons or just cause. 3 Although Section 822 provides the right to a public hearing, it does not guarantee the right to or create the expectation of continued employment. Moreover, Nearhood has failed to address the trial court's refutation of his position as one that is not pragmatically or politically logical.
Nearhood therefore has not shown that he had a clear statutory right to continued employment, rendering his dismissal an appealable adjudication. He has not demonstrated that the following well established propositions, which he recognizes, are inapplicable to his case or otherwise permit us to sustain his appeal:
Under the Local Agency Law, "[n]o adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and opportunity to be heard." 2 Pa.C.S. § 553. An adjudication is defined in relevant part as, "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceedings in which the adjudication is made." 2 Pa.C.S. § 101. Thus, a local agency employee only has the right to a hearing pursuant to Local Agency Law where she can establish that her dismissal affected a personal or property right.
A local agency employee has a personal or property right in her employment where she can establish a...
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DeLuca v. Hazleton Police Dep't, 2401 C.D. 2015
...903 A.2d 110 (Pa.Cmwlth.2006) ]; [Nitterhouse v. Department of Public Services, 706 A.2d 381 (Pa.Cmwlth.1998) ]; and [Nearhood v. City of Altoona, 705 A.2d 1363 (Pa.Cmwlth.1998) ].Both the holdings and tenor of the referenced decisions require, in our judgment, an interpretation of an asser......