Mellor v. Leidman
| Decision Date | 24 June 1965 |
| Docket Number | No. 1699,1699 |
| Citation | 211 A.2d 633,100 R.I. 80 |
| Parties | Daniel M. MELLOR v. Astrid D. LEIDMAN. M. P. |
| Court | Rhode Island Supreme Court |
Gallogly, Beals, Tiernan & Sweeney, David F. Sweeney, Providence, for petitioner.
James L. Taft, Jr., Providence, for respondent.
This is a petition in equity in the nature of quo warranto brought pursuant to G.L. 1956, § 10-14-1. The petitioner seeks the ouster of the respondent from the office of city clerk of the city of Cranston and the confirmation of his own title to that office. After the respondent joint issue by the filing of an answer, the parties filed a stipulation containing an agreed statement of facts.
It appears that on January 4, 1965 the city council elected petitioner to the office of city clerk. Upon advice of the city solicitor that it had no authority so to do without having first removed respondent, the council thereafter at a special meeting held on January 18, 1965 adopted two resolutions, one providing that respondent's term of office as city clerk should expire on January 29, 1965 and the other reading as follows:
'Mr. President: I move that a written notice of the intention of the City Council to remove her from the office of City Clerk be served on Astrid Leidman as follows:
'City Council
City Hall
Cranston, Rhode Island
'To: Mrs. Astrid Leidman
223 Scituate Avenue
Cranston, Rhode Island
'Dear Madam:
'Please take notice that at Midnight on Friday, January 29, 1965, your term of office as City Clerk will expire.
'You are hereby notified that you will not be reappointed to this office.
'It is the intention of the City Council of the City of Cranston to remove you from the office of City Clerk for the reason that it is no longer the pleasure of the majority of the City Council that you serve in that office.
'You are further notified that the City Council of the City of Cranston will meet at 8:00 p. m. on Friday, January 29, 1965, in the Council Chamber, Third Floor, City Hall, Cranston for the purpose of giving you the opportunity to be heard if you so desire and present any reason why you should not be removed from the office. The hearing shall be public at your option and you may be represented by counsel.
'In accordance with Section 3.18 of the Charter, from the time of service of this notice upon you, you are suspended from the performance of any duty or function for the City.
'/s/ Anthony Antonucci
Anthony Antonucci
'This 18 day of January, 1965' The respondent was served with notice as required by the foregoing resolution and appeared with counsel at the hearing and testified. Although admittedly the performance of her official duties had been satisfactory and according to law, a majority of the council voted to remove her from and to elect petitioner to the office of city clerk. This petition was filed upon her refusal to surrender the office notwithstanding the vote of ouster.
Initially we inquire whether the city clerk, a council-appointed official who, under sec. 4.01 of the charter, serves 'for an indefinite term,' is entitled to the benefits and protections afforded by sec. 3.18 which in pertinent part provides that:
The petitioner contends that because the city clerk serves for an indefinite rather than for a fixed term, compliance with sec. 3.18 is not a precedent to an ouster from that office, and he concludes that his appointment by the council on January 4, 1965 constituted a termination of respondent's term of office.
Although his contention raises a question of statutory construction relating to whether one who holds office for an indefinite term is embraced within the terms of sec. 3.18, he points to nothing therein nor to any other provision in the charter, nor have we been able to discover any, which indicates a contemplation that the application thereof either should be limited to officials such as the judge of the probate court to members of the zoning board of review who are appointed by the council for fixed terms or should not be extended to an officer like the city clerk who has no fixed tenure. Indeed, the contrary is true, for by its plain language sec. 3.18 includes 'any officer or member of a board or commission.' That language is not reasonably susceptible of a construction either restricting application of the section to those appointed for definite terms or excluding therefrom one holding office for an indefinite term. It is indicative of a clearly-expressed purpose to include all council-appointed officials, irrespective of the term of office.
Moreover, had the charter framers intended that the city council should be free from the restrainst of sec. 3.18 when the removal sought was that of the city clerk, they would have followed the pattern fixed in sec. 5.02. In the first paragraph of that section it is provided that the heads of certain municipal departments shall be appointed by and serve at the pleasure of the mayor; and in the second paragraph those department heads are not included within the enumeration of such of the mayor's appointees as are entitled to the protections of the removal procedures therein established. Both the failure to use sec. 5.02 language, or wording of like import, in sec. 3.18 and the phrasing used in the latter section, including as it does any officer or member of a board or commission, compel the conclusion that the city clerk, notwithstanding his indefinite term, was not intended to be excepted from its removal provisions.
Having determined that sec. 3.18 permits of no exception, and that observance of its provisions is a prerequisite to the removal of any official appointed by the council pursuant thereto, we now focus our attention on whether the city council complied with its directives when it attempted to oust respondent. Since the parties are in agreement as to the council's observance of the procedural requirements therein established, the only question is whether under sec. 3.18 a removal may be effected for the sole reason that it is no longer the pleasure of a majority of the city council that an incumbent continue to serve in the office to which he has been appointed. We refer advisedly to an incumbent for, as we have already indicated, the restraints established in sec. 3.18 on the power of the council to remove apply to all council-appointed officers and board or commission members including the city clerk.
It has long been settled in this state that removal proceedings acquire quasijudicial status when the law vesting the power to remove in a local body indicates that it shall be for cause and requires notice of charges, a hearing and an opportunity for the person sought to be removed to present evidence in his own behalf. Davis v. Cousineau, R.I., 196 A.2d 153; Narragansett Racing Ass'n v. Kierman, 59 R.I. 79, 194 A. 49; Hanna v. Board of Aldermen, 54 R.I. 392, 173 A. 358; Garvin v. McCarthy, 39 R.I. 365, 97 A. 881; McCarthy v. Board of Aldermen, 38 R.I. 385, 95 A. 921. The petitioner, however, argues that in those cases the controlling legislation provided that removal should be for misconduct or disqualifying incapacity, or for the good of the service, or for cause and he concludes that they are without precedential value in this case where under sec. 3.18 removal may be 'for any reason.'
That contention whatever its merits might be in other circumstances has...
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