Hardesty v. City of Buffalo

• Decision Date: 07 December 2004
• Docket Number: No. 26036.,26036.
• Parties: Jerry D. HARDESTY, Plaintiff-Appellant, v. CITY OF BUFFALO, a Municipal Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

155 S.W.3d 69

Jerry D. HARDESTY, Plaintiff-Appellant, v. CITY OF BUFFALO, a Municipal Corporation, Defendant-Respondent.

No. 26036.

Missouri Court of Appeals, Southern District, Division Two.

December 7, 2004.

Motion for Rehearing and Transfer Denied December 28, 2004.

Application for Transfer Denied March 1, 2005.

James M. Kelly, Republic, MO, for Appellant.

M. Douglas Harpool, Kristoffer R. Barefield, Springfield, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Jerry Hardesty ("Hardesty") appeals from an adverse judgment entered in a declaratory judgment action he brought against the City of Buffalo ("the City") after he was removed as Chief of Police. In Hardesty's lawsuit, he sought a judgment declaring that his removal from this appointed office was invalid because the City failed to comply with § 79.240.¹ The trial court concluded the City's action was authorized by § 79.120, so Hardesty's lawsuit was dismissed with prejudice. Hardesty challenges this ruling as erroneous. We affirm.

I. Facts and Procedural History

The facts in this case are straightforward and undisputed. The City is located in Dallas County, Missouri, and is subject to all state statutes governing cities of the fourth class, including those set forth in Chapter 79, RSMo. One of the appointive offices established by the City, pursuant to § 79.050 and § 79.230, is Chief of Police. Hardesty was the duly-appointed and acting Chief until October 13, 2003, when he was removed from office. On that date, the six elected members of the City's board of aldermen were evenly divided on the issue of whether Hardesty should continue as Chief. Three aldermen voted against Hardesty's removal, and three aldermen voted for his removal. The Mayor cast the tie-breaking vote to remove Hardesty from office.

On October 28, 2003, Hardesty filed a declaratory judgment action against the City. In the lawsuit, Hardesty alleged his removal from office violated § 79.240 because it had not been done "with the consent of a majority of all the members elected to the board of aldermen...." Hardesty claimed he could not be removed from office in compliance with § 79.240 unless four of the six persons elected as aldermen voted to remove him. The City's answer admitted that the factual allegations in the petition were true, but denied that Hardesty had been improperly removed from office.

In November 2003, the City filed a motion for judgment on the pleadings. This motion was granted by the trial court on December 31, 2003. The reasons for the court's ruling were contained in a docket entry stating, in pertinent part, as follows:

The legal issue and factual setting of the instant case are identical with [the] Eastern District Court of Appeals decision in State ex rel. Ciaramitaro v. City of Charlack, 679 S.W.2d 405 (1984).... After considerable thought this court holds that section 79.120 RSMo controls, and agrees that this statute effectively makes the mayor a member of the Board of Aldermen for the exclusive purpose of casting tie breaking votes. This tie breaking authority is not limited to only certain types of actions of the Board of Aldermen as advocated by Plaintiff's counsel.

After entry of a judgment dismissing Hardesty's case with prejudice, he filed a timely notice of appeal.

II. Standard of Review

Because the trial court granted the City's motion for judgment on the pleadings, we review the allegations of Hardesty's petition to determine whether the facts pled therein are insufficient as a matter of law. RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 422 (Mo.App.2003); Green v. Lebanon R-III School Dist., 87 S.W.3d 365, 367 (Mo.App.2002). For the purposes of such a motion, the moving party admits the truth of all well-pleaded facts in the opposing party's pleadings. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 134 (Mo. banc 2000). A trial court properly grants a motion for judgment on the pleadings if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law. Craig v. Missouri Dept. of Health, 80 S.W.3d 457, 459 (Mo. banc 2002).

III. Discussion and Decision

Hardesty's appeal presents a single issue for our determination. He argues that his removal from the appointive office of Chief of Police was invalid because the City did not comply with the requirements of § 79.240, which states:

The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office, for cause shown, any elective officer of the city, such officer being first given opportunity, together with his witnesses, to be heard before the board of aldermen sitting as a board of impeachment. Any elective officer, including the mayor, may in like manner, for cause shown, be removed from office by a two-thirds vote of all members elected to the board of aldermen, independently of the mayor's approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will, and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor's approval or recommendation. The board of aldermen may pass ordinances regulating the manner of impeachments and removals.

(Italics added.) As previously noted, the City has six elected aldermen. Hardesty interprets the phrase, "with the consent of a majority of all the members elected to the board of aldermen" to mean that four of the six elected aldermen had to vote in favor of his removal as Chief of Police for that decision to comply with § 79.240.

The trial court, however, concluded that Hardesty was properly removed from office because there was a tie vote among the elected aldermen on this question, which permitted the Mayor to cast the deciding vote. The trial court based its decision on § 79.120, which states:

The mayor shall have a seat in and preside over the board of aldermen, but shall not vote on any question except in case of a tie, nor shall he preside or vote in cases when he is an interested party. He shall exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such city, are complied with.

(Italics added.) As the trial court noted in its docket entry, State ex rel. Ciaramitaro v. City of Charlack, 679 S.W.2d 405 (Mo.App.1984) does support the conclusion that § 79.120 authorized the mayor to break the tie vote concerning whether to retain or remove Hardesty. In Charlack, Ciaramitaro was dismissed as the Chief of Police for the City of Charlack after the mayor recommended her dismissal to the four-member board of aldermen. Two aldermen voted in favor of dismissal, and two aldermen voted against dismissal. The mayor broke the tie by voting in favor of Ciaramitaro's dismissal. Ciaramitaro sought a writ of mandamus to compel the City of Charlack to reinstate her as Chief of Police. The trial court granted the writ. Charlack, 679 S.W.2d at 406. The City of Charlack appealed, arguing that § 79.120 authorized the mayor to break a tie among the aldermen even though the question to be decided concerned the removal of an officer pursuant to § 79.240. The Eastern District of this Court agreed and reversed the trial court's judgment:

Although we have found no Missouri cases addressing whether a mayor is considered one of the "members elected to the board of aldermen" under § 79.240, substantially the same language appears in § 79.130, which requires a majority of the members elected to the board to approve an ordinance before it becomes law. In Mound City ex rel. Reinert Bros. Const. Co. v. Shields, 220 Mo.App. 798, 278 S.W. 798 (1925), the court held that § 8404 RSMo 1919, now § 79.120, gives the mayor the right to cast the tie-breaking vote when the question before the board of aldermen concerns the passage of an ordinance. 278 S.W. at 801[4]; see also Grant City v. Salmon, 221 Mo.App. 853, 288 S.W. 88, 90 (1926). If § 79.120 effectively makes the mayor a member of the board of aldermen for purposes of resolving a tie among the aldermen under § 79.130, then under § 79.120 the mayor has the right to break a tie vote when the question before the board arises under § 79.240.

....

Section 79.120 gives the mayor the authority to break a tie vote on any question before the board. Thus, the mayor may cast a tie-breaking vote regardless of whether the board is considering the passage of an ordinance, the removal of an officer, or some other proposed action. The phrase "members elected to the board of aldermen," within the context of §§ 79.130 and 79.240, simply reinforces the idea that the questions of approval of an ordinance or of removal of an officer are questions to be answered by the board of aldermen; the question of how tie votes are resolved is not answered by either § 79.130 or § 79.240.

Id. at 407.

Hardesty acknowledges that the trial court correctly applied Charlack in the instant case, but he complains that "the holding in Charlack is fundamentally and logically flawed, disregards the plain wording of the applicable statute, and disregards rules of statutory construction." We disagree.

The statutes now codified as § 79.120, § 79.130 and § 79.240 were originally enacted by the General Assembly in 1895 as part of one act regulating cities of the fourth class. See 1895 Mo. Laws 67, 68 and 77. Section 7 of the Act, which is now § 79.120, stated:

The mayor shall have a seat in and preside over (over) the board of aldermen, but shall not vote on any question except in case of a tie, nor shall he preside or vote in cases when he is an interested party. He shall exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such...