Gay v. City of Somerville

• Decision Date: 26 January 1994
• Citation: 878 S.W.2d 124
• Parties: Donald L. GAY, Plaintiff/Appellant, v. CITY OF SOMERVILLE, Tennessee, Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 124

878 S.W.2d 124

Donald L. GAY, Plaintiff/Appellant, v. CITY OF SOMERVILLE, Tennessee, Defendant/Appellee.

Court of Appeals of Tennessee Western Section, at Jackson.

Jan. 26, 1994.

Application for Permission to Appeal

Denied by Supreme Court

May 9, 1994.

Russell X. Thompson, Alan Chambers, Bolivar, for plaintiff/appellant.

Charles Sevier, David McLaughlin, Wilson, McRae, Ivy, Sevier, McTyier and Strain, Charles V. Holmes, Memphis, for defendant/appellee.

FARMER, Judge.

Donald Gay (Gay) was terminated as Chief of Police for the City of Somerville (City) on July 2, 1991 by the City Administrator, Michael French (French). ¹ This appeal is from the lower court's dismissal of Gay's petition for writ of certiorari after the Board of Mayor and Aldermen (Board) affirmed the action taken by French.

Gay raises the following issues on appeal:

1. Whether the Court erred in concluding that the Petitioner was an at will as opposed to civil service employee.

2. Whether the Court correctly construed Sections 4(b) and 6 of the Charter of the City of Somerville, Tennessee to authorize the City Administrator to discharge the Police Chief.

3. Whether Petitioner was entitled to a [pretermination] hearing under Section 6 of the Charter of the City of Somerville, Tennessee.

4. Whether the Board of Mayor and Aldermen were impartial decision-makers; and whether they should have recused themselves from hearing the Petitioner's termination case.

5. Whether Petitioner was given legally sufficient notice that the city relied upon prior and progressive discipline as a basis for termination.

6. Whether there is any evidence in the record to sustain a finding that Petitioner was guilty of cause for discharge under Section 6 of the City Charter; and whether the Board's decision was arbitrary, capricious, and in excess of jurisdiction.

In dismissing the petition, the trial judge stated that "at the time of [Gay's] termination, [he] was an at will employee, ² subject only to the requirements of the city charter for his termination." Provisions of the charter pertinent to this appeal are as follows:

Section 4. City Administrator.... The city administrator shall have the following powers and duties:

....

(b) To recommend to Board of Mayor and Aldermen the appointment of all heads of departments. The City Administrator has full power and authority to hire all city employees to vacancies as they occur, to suspend, or to dismiss and remove any city employee for incompetency, or any violation, neglect, or disregard of the duties imposed upon them by said corporation. The power to hire or to suspend or to dismiss and remove may be delegated by the City Administrator to any department head regarding any employee of their department.

....

BOARD TO APPOINT AND REMOVE OFFICERS, ETC.

Section 6. Be it further enacted. That the Board of Mayor and Aldermen of said town shall have full power and authority to appoint all officers and agents of the corporation, such as they may deem necessary, and may provide by ordinances. The Board shall have full power and authority to dismiss and remove any officer or agent appointed or elected by them, including the Recorder and Town Marshal, for incompetency, or any violation, neglect or disregard of the duties imposed upon them by the by-laws or ordinances of said corporation; provided, that two-thirds of the Board of Mayor and Aldermen concur in the removal or dismissal.

The trial judge interpreted these provisions as follows:

The Court finds that a reading of the sections of the charter together establishes that the City Administrator may not hire a department head, but can recommend to the Board of Mayor and Aldermen the appointment of a department head. However, once hired, a department head becomes an "employee", and that the City Administrator has the lawful authority to suspend or dismiss any employee for incompetency, or any violation, neglect or disregard of the duties imposed upon them by the City.

Gay contends that, pursuant to the charter, the City Administrator is without authority to terminate a department head which includes the Chief of Police. Thus, the administrator's termination of Gay is void ab initio. We are inclined to agree. Section 6 of the charter unequivocally states that the Board shall have "full power" to appoint all officers and agents and to remove any officer or agent appointed or elected by them, including the town marshal. "The office of city marshal is political in character; and he has been regarded as occupying the same office as a chief of police. Authorities differ as to whether he is an officer or an employee." 62 C.J.S. Municipal Corporations § 566(a)(1949). It is clear that the city charter designates the town marshal an officer. In Dingman v. Harvell, 814 S.W.2d 362, 365 (Tenn.App.1991), this Court held that a chief of police is a public officer. Dingman additionally stated:

The primary rule of statutory construction is that the intention of the legislative body must prevail. The legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in the context of the entire statute, and without any forced or subtle construction to limit or extend the import of the language. City of Caryville v. Campbell County, 660 S.W.2d 510 (Tenn.App.1983), and cases cited therein. It is the Court's duty to reconcile inconsistent or repugnant provisions of a statute to construe a statute so that no part will be inoperative superfluous, void or insignificant. Effect must be given to every word, phrase, clause and sentence of the act in order to achieve the legislative intent and the statute should be construed so that no section will destroy another. 660 S.W.2d at 512.

Dingman, 814 S.W.2d at 366. In order to give effect to each and every word of the charter provisions, we hold that only the Board of Mayor and Aldermen has the authority to remove the Chief of Police. Any other construction would render the language in Section 6 granting "full power" to hire or remove officers or agents to the Board superfluous and insignificant as Section 4(b) grants "full power" to the City Administrator to hire and remove all city employees. The charter clearly distinguishes between "city employees" and "officers and agents." The City contends that it is within the Board's province to interpret the provisions of its charter. We agree that considerable deference will be granted to an administrative agency's interpretation of its own regulation unless the interpretation is inconsistent with the terms of the regulation. See General Care Corp. v. Mid-South Found. for Medical Care, Inc., 778 F.Supp. 405, 409 (W.D.Tenn.1991).

We find, however, that the City Administrator's unauthorized act was ratified by the subsequent actions of the Board. "Ratification is the express or implied adoption and confirmation by one person of an act or contract performed or entered into in his behalf by another who assumed to act as his agent without authority so to do. Ratification is confirmation after conduct." Bagley & Co. v. Union-Buffalo Mills Co., 9 Tenn.App. 63, 68 (1928). The specific acts of the Board which lead us to this conclusion are discussed through this opinion.

Gay next contends that Section 6 of the City Charter entitles him to a pretermination hearing. The record reveals that the administrator's actions were ratified by the Board, by unanimous decision, only after an original hearing in which Gay was allowed to testify and present witnesses as to the charges against him. We find the hearing conducted before the Board to be timely.

Gay next questions the impartiality of the Board and argues that they should have recused themselves. At the hearing, counsel for Gay made a motion that the Mayor and Board recuse themselves because of their prejudgment of the case. Specifically, counsel stated that the Board had advised French to accept applications for the position of chief of police and that the Mayor had made certain statements to which witnesses would testify that Gay would never be chief regardless of the hearing conducted. ³ The Mayor denied the motion in the absence of "[a motion] by the Board, by some Board member, for the entire Board to recuse itself,...."

"It is axiomatic that due process requires the opportunity of the party charged to be heard at a meaningful time and in a meaningful manner, before an impartial tribunal." Cooper v. Williamson County Bd. of Educ., 803 S.W.2d 200, 202 (Tenn.1990). There is a presumption of honesty and integrity in those functioning as administrative decision makers, Cooper, 803 S.W.2d at 203, and the party claiming bias bears the burden of proof. Hadges v. Corbisiero, 760 F.Supp. 388, 391 (S.D.N.Y 1991).

We find the prior acceptance of applications, ⁴ Gailey's testimony and the fact that the Board believed Gay's employment to be terminated at the time of the hearing to constitute sufficient evidence of bias on behalf of the Board. Under the circumstances of this case, however, the only administrative agency authorized to render a determination was the Board of Mayor and Aldermen. In fact, Gay argues that "[t]he only authority to dismiss the Chief of Police was vested in the Board...." Consequently, we find it appropriate to apply the Rule of Necessity as pronounced by the United States Supreme Court in United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980).

In Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52 (Mo.Ct.App.1990), the city mayor appealed his impeachment by the city council. The mayor argued, inter alia, that he was deprived of procedural due process because several of the councilmen who sat on the Board of Impeachment were not impartial. Fitzgerald, 796 S.W.2d at 58. The statute authorizing impeachment provided: "Any elective officer may ... for cause shown, be removed from office by a two-thirds vote of all the members elected to the...