Freeman v. Smith

Decision Date20 November 1981
PartiesH. Conrad FREEMAN, et al. v. John H. SMITH, et al. 80-451.
CourtAlabama Supreme Court

Mylan R. Engel of Engel & Smith, Mobile, for appellants.

Michael A. Figures and Samuel F. Irby, Jr. of Crawford, Figures & Irby, Mobile, for appellees.


The personnel board for Mobile County filed a petition for writ of mandamus in the circuit court of Mobile County against the mayor and the members of the city council of the City of Prichard. The petition alleged that the City of Prichard was employing three people, Paul Whiteurs, Marshall Hunt, and Angela Lee, outside the civil service system, and that these three people were being paid illegally from public funds of the city contrary to the laws and rules of the personnel board. The board asked the court to order the removal of these three from the payroll. The board contended that these people were employees of the city and, as such, are subject to the Mobile County merit system, established by local act number 470 (Local Acts of Alabama 1939, as amended).

The mayor and city council answered saying that the three individuals were consultants to the Planning Commission of the City of Prichard and, therefore, the mayor and city council had the authority under § 11-52-5, Code of Alabama 1975, to employ them outside the merit system.

The case was tried for two days, and the trial judge subsequently entered an order denying the petition. The personnel board appealed. We affirm.

Authority of the planning commission to hire is governed by § 11-52-5, Code, which provides as here pertinent:

(a) The commission may appoint such employees as it may deem necessary for its work, whose appointment, promotion, demotion and removal shall be subject to the same provisions of law as govern other corresponding civil employees of the municipality.

The commission may also contract with city planners, engineers, architects, and other consultants for such services as it may require.

This case turns on a factual determination of whether these three people are "employees" or "consultants." Neither term is defined in the statute. The trial court found that the personnel board

wholly failed to introduce any evidence which would indicate that these three individuals are actually employees and not "consultants". Evidence was presented that these individuals are political allies of the Mayor of the City of Prichard. However, this Court can find no authorities, nor has it been cited to any, that would prevent the Mayor and Council from employing such persons as consultants. Counsel for the Plaintiffs (board) apparently contends that only physicians, attorneys, engineers, architects and the like can be employed as consultants. This Court rejects that notion.

The Defendants' evidence established that the three individuals (Whiteurs, Hunt and Lee) are learned in their fields; that they are employed as "consultants" at a specified rate for twelve month periods by written contracts between the...

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2 cases
  • Florence v. Williams
    • United States
    • Alabama Supreme Court
    • September 30, 1983 a circuit judge in a mandamus proceeding where the judge actually hears the evidence upon which its findings are based. Freeman v. Smith, 409 So.2d 770 (Ala.1982); Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856 (1968); Southern Railway Co. v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); C......
  • Huffstutler v. Reese
    • United States
    • Alabama Court of Civil Appeals
    • June 24, 1987 the Personnel Board's administration of the merit system. "Consultant" is not defined in any relevant statute, but in Freeman v. Smith, 409 So.2d 770 (Ala.1981), the supreme court affirmed the lower court's conclusion that the following characteristics are indicative of a consulting " 'T......

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