Carlson v. Bratton
| Decision Date | 04 June 1984 |
| Docket Number | No. 83-153,83-153 |
| Citation | 681 P.2d 1333 |
| Parties | Louis W. CARLSON, individually and as Mayor of the City of Newcastle, Wyoming; and Norm Steveson, individually and as Councilman of the City of Newcastle, Wyoming, Appellants (Plaintiffs), v. Richard BRATTON, Wayne Burr, Albert Zanoni, Douglas Holwell, and Helen Weyrich, as members of the City Council of the City of Newcastle, Wyoming; and Howard Snider, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Carl L. Lathrop, Lathrop & Uchner, Cheyenne, for appellants.
Richard S. Dumbrill, Jones, Dumbrill & Hansen, Newcastle, for appellees.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
After appellant Carlson, Mayor of Newcastle, discharged appellee Snider from the position of Chief of Police, the majority of the City Council (those appellees named as Council members) directed the Mayor to specify reasons for the discharge and to reinstate appellee Snider as Chief of Police pending the hearing; they also appointed a hearing officer to conduct a hearing to determine whether or not there was cause for the discharge. Appellant Carlson refused to specify charges or reinstate appellee Snider. However, the Council continued to pay his salary.
Appellants sought a judgment declaring valid the discharge of appellee Snider by appellant Carlson. The district court refused such declaratory judgment and held "that such action of termination by the Mayor be held for naught and is void ab initio," and that by virtue of § 19-7 of the Code of Newcastle, 1 the chief of police could be removed only with the consent of the council.
We reverse.
Although the parties argue, pro and con, four or five bases for upholding or reversing the district court, the issues condense into two:
1. Did the Mayor have authority under the law to discharge appellee Snider from the position of Chief of Police without Council approval and without a hearing?
2. Is the appeal moot because of failure by appellants to consolidate the case with an administrative proceeding held to reinstate appellee Snider?
Law and ordinances concerning the authority to discharge city employees are premised on the necessity for efficient operation of a city by its executive officer, in this instance, the mayor. The chief of police is in a position of making and carrying out policy for the mayor. The legislature recognized this fact in enacting the Civil Service Act for city fire and police departments. Sections 15-5-101 et seq., W.S.1977. 2
The Civil Service Act allows for the establishment of a police department civil service commission which in turn classifies the various positions in the police department, and provides for the examination of applicants for employment.
Section 15-5-105, W.S.1977, provides for the employment and appointments of chiefs of the fire department and the police department. Section 15-5-105(c) provides:
The position of chief of police is clearly recognized as different than that of any other position in the police department for the obvious reason that the chief of police is in a position of making and carrying out policy for the mayor. The mayor is entitled to have someone in that position who concurs in the mayor's policies, and with whom the mayor can work towards the goal of implementing those policies.
To require the mayor to employ a police chief with differing philosophies could frustrate the mayor's entire program. The voters of a city elect a mayor who they believe will act in their best interests. Many political issues become involved necessarily, and to force the winner of a political election to be saddled with a member of his immediate executive staff with whom he cannot work, is to block the efficiency of that political system. The governing body itself is of course a check on the powers of the governing body itself is of course a check on the powers of the mayor's office; but the legislature recognized the necessity for the mayor to retain control over his or her policy making employees.
The pertinent statutes must be interpreted with reference to that background. The following is set forth under General Provisions relating to Cities and Towns:
The term "mayor" is defined by § 15-1-101(a)(viii), W.S.1977:
" 'Mayor' means the person elected, either by popular vote or by vote of the governing body, to exercise the powers of the office and to be presiding officer of the governing body."
"Governing body" is defined by § 15-1-101(a)(vi), W.S.1977:
" 'Governing body' means the council or commission constituting the elected legislative body of any city or town."
Section 15-1-103(a)(xxxvii), W.S.1977, provides as follows:
Under provisions relative to cities of the first class, § 15-3-204, W.S.1977, provides:
Appellees contend that the limiting phrase in § 15-3-204, "according to conditions fixed by the governing body," qualifies the power of the mayor to remove the police chief. As already noted, the meaning of the phrase cannot be taken to hamstring the mayor in controlling his executive duties.
The phrase must be read to refer to the authority of the governing body to set conditions affecting the reasonable terms of employment of the persons listed in that section, such as hours of work, rates of pay, insurance coverage and the like. The legislature did not intend to allow the governing body to abrogate the power given in the section itself for the mayor to remove the chief of police. If the clause were read as contended by appellees, the conditions fixed by the governing body could be so stringent that only it would have the power to appoint and remove these key officers. If the legislature had so intended, it would have given the power directly to the governing body and not the mayor.
The quoted provisions of § 15-1-103(a)(xxxvii), supra, authorize the governing body to appoint "other personnel" and set forth requirements for their dismissal. By implication, such requirements and the appointing power are applicable only to those other than "appointed officers and employees provided by law."
Unless modified by a statute or otherwise, the power of appointment to an office such as police chief carries with it, as an incident, the power of removal. 4 McQuillin, Municipal Corporations, § 12.229(b), p. 228 (1979); 67 C.J.S. Officers § 118(b), p. 481 (1978). The fact that the appointment of a chief of police is subject to the approval of the city council does not make that confirming body the appointing authority. LaPeters v. City of Cedar Rapids, Iowa, 263 N.W.2d 734 (Iowa 1978); 63 Am.Jur.2d Public Officers and Employers § 110, p. 697 (1972). A number of other jurisdictions have recognized that in the absence of a statutory or contractual prohibition the mayor or other executive officer having the power to appoint a chief of police can remove that official without notice, hearing or reasons. Newby v. City of Andalusia, Ala., 376 So.2d 1374 (1979); Gray v. City of Manitou Springs, 43 Colo.App. 60, 598 P.2d 527 (1979); LaPeters v. City of Cedar Rapids, supra; Zeloyle v. Bettor, 371 Pa. 546, 91 A.2d 901 (1952); Hackler v. Ward, 105 Cal.App.2d 615, 234 P.2d 170 (1951); State v. Reichert, 226 Ind. 358, 80 N.E.2d 289 (1948); and Gray v. State, 24 Ohio App. 445, 157 N.E. 905 (1927).
In this case the mayor of the City of Newcastle is possessed of the power to appoint the chief of police subject to confirmation by members of the city council. It is a necessary corollary of that power that the mayor also is vested with the power of removal of the chief of police from that office. The rule of common law was that the appointment to municipal office carried with it no vested property interest in continued employment, and such officers were subject to removal without cause, reason or hearing unless otherwise prescribed. 4 McQuillin, supra, § 12.249, p. 322. See also State ex rel. Pearson v. Hansen, Wyo., 401 P.2d 954, 956 (1965). The net result of these authorities is that there is no property right in the office of chief of police.
Appellees argue that notwithstanding the fact that the mayor had the authority to discharge the chief of police, such discharge would have to be pursuant to the Administrative Procedure Act. They point to the language in the trial court's opinion letter on this matter in support of their argument. The trial court stated:
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