Tulsa Order of Police Lodge v. Tulsa

• Decision Date: 12 June 2001
• Docket Number: No. 95,044.,95,044.
• Citation: 2001 OK CIV APP 153,39 P.3d 152
• Parties: TULSA ORDER OF POLICE LODGE NO. 93, on behalf of Officers Dan TEDRICK, Kevin Staats, and Corporal Dan Fuller, Plaintiffs/Appellees, v. CITY OF TULSA, Oklahoma, a municipal corporation, and Mayor Susan Savage, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

39 P.3d 152

2001 OK CIV APP 153

TULSA ORDER OF POLICE LODGE NO. 93, on behalf of Officers Dan TEDRICK, Kevin Staats, and Corporal Dan Fuller, Plaintiffs/Appellees, v. CITY OF TULSA, Oklahoma, a municipal corporation, and Mayor Susan Savage, Defendants/Appellants.

No. 95,044.

Court of Civil Appeals of Oklahoma, Division No. 2.

June 12, 2001.

Rehearing Denied September 4, 2001.

Certiorari Denied November 20, 2001.

Thomas D. Robertson, S.M. Fallis, Jr., John E. Harper, Jr., Nichols, Wolfe, Stamper, Nally, Fallis & Robertson, Inc., Tulsa, OK, for Appellants.

Loren Gibson, McCaffrey & Tawwater, Oklahoma City, OK, for Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. COLBERT, Judge.

¶ 1 Appellants, the City of Tulsa (City) and Mayor Susan Savage, appeal an order of the trial court enjoining the Mayor from conducting pre-termination hearings for Officers Dan Tedrick and Kevin Staats and Corporal Dan Fuller.¹ The two issues to be determined on appeal are whether the district court erred in (1) asserting jurisdiction in the matter and (2) granting the injunction. Based upon our review of the record and the applicable law, we find no error and affirm.

BACKGROUND

¶ 2 This case arises out of the arrest of an individual by Officers Tedrick and Staats on February 19, 2000. The arrest occurred outside Tulsa City limits, and Tedrick, Staats, and Corporal Fuller were disciplined for falsifying the police reports concerning the arrest. Additionally, Tedrick and Staats were disciplined for making an unlawful arrest and using excessive force.

¶ 3 In April 2000, Tulsa Police Chief Ronald Palmer informed the Mayor of an internal affairs investigation involving the officers. At that time, however, Chief Palmer did not know which type of discipline would be imposed upon them. On May 1, 2000, the Chief notified the three officers that, beginning May 7, 2000, they would be placed on a forty-five day suspension without pay. This punishment was imposed after the officers had been given the opportunity to participate in a pre-action hearing, which they refused.²

¶ 4 Chief Palmer presented the Mayor with a copy of the disciplinary decision, and the Mayor instructed him to contact U.S. Attorney Stephen Lewis and Tulsa County District Attorney Tim Harris concerning the effect the imposed discipline would have on the officers' credibility in future prosecutions. The Mayor contacted Tulsa City Attorney Martha Rupp Carter and solicited her opinion on the same issue.

¶ 5 Stephen Lewis responded to the Mayor's inquiry on June 1, 2000. He advised:

It goes without saying that the material is highly damaging to the officers' credibility. I would say any defense attorney willing to properly prepare and make the effort could conduct a cross examination using this material which would severely damage, if not destroy, the officers' credibility. This is true because of the nature of the misconduct involved, which goes directly to the officers' honesty in the line of duty in an actual case.

Martha Rupp Carter had previously written the Mayor on May 11, 2000. She stated that she had talked with Stephen Lewis, and that he had explained that he already had problems with the credibility of one of the officers. Carter expressed the same concerns relayed by Lewis, and added that participation by the officers in future prosecutions would "call into question law enforcement credibility in general," and, that if the officers' testimony was used in future prosecutions, it would need to be corroborated. Tim Harris had previously responded on May 9, 2000, expressing the same concerns shared by Lewis and Carter.³

¶ 6 On June 16, 2000, before the officers' suspensions had been fully served, the Mayor sent them notice that, based on the "new" information she had received from Lewis, Carter, and Harris concerning the officers' future credibility, she was planning to terminate them from their employment with the City. She further informed them that she would conduct pre-termination hearings on June 21, 2000.

¶ 7 The Tulsa Fraternal Order of Police (FOP), Lodge No. 93, filed a motion for a temporary restraining order and temporary injunction. The FOP argued that terminating the officers would constitute double jeopardy, as they had already been disciplined by Chief Palmer, and that the Mayor had no authority to conduct pre-termination hearings or to fire the officers. The FOP further argued that the Mayor's attempt to terminate the officers violated the Oklahoma Constitution, Tulsa City Charter, Tulsa City Ordinances, City of Tulsa Personnel Policies, and the collective bargaining agreement between the City and the FOP. The FOP placed particular reliance upon Article X, section 8.2 of the Tulsa City Charter, which provides in relevant part:

Persons in the classified service who are suspended without pay, removed, or demoted shall be notified in writing of the specific cause thereof within five (5) days following such action. A copy of such statement of cause shall be filed with the Personnel Director. Within ten (10) days from the receipt of such notice, the person affected may file a written request with the Personnel Director for a hearing before the Civil Service Commission. If such person shall fail to request a hearing before the Civil Service Commission as provided herein, the suspension without pay, removal, or demotion shall be final.

The FOP argued that, because the officers did not request a hearing within the ten-day period provided by section 8.2, their suspension became final and the Mayor could not impose further punishment.

¶ 8 The City filed a motion to dismiss for lack of subject matter jurisdiction. It argued that, because there was a collective bargaining agreement between the City and the FOP, the FOP was required to proceed through the administrative channels, and it failed to exhaust its administrative remedies before proceeding in district court.⁴ The City further argued that arbitration, rather than injunctive relief, was the appropriate forum.

¶ 9 The district court issued a temporary restraining order on June 20, 2000, which was to remain in force and effect until a hearing could be conducted regarding a temporary injunction. A hearing on the injunction was conducted on June 27, 2000. The court determined that it could assert jurisdiction over the matter, explaining:

[T]he issue of the mayor's authority to act in the first instance is before the court and a requirement of exhaustion of administrative remedies, through arbitration, would not afford the plaintiffs the relief they request: a finding that the mayor's actions are without authority and thus not a matter for arbitration. It is for this reason that the court assumes jurisdiction of the parties and the subject matter and overrules the City's Motion to Dismiss.

¶ 10 The court also explained that the Mayor had taken no action to terminate the officers during the ten-day period set out in section 8.2 of the Tulsa City Charter. Additionally, the parties had stipulated that the Mayor could seek termination only if new facts had been uncovered after the ten-day period had expired. The new facts which the City and the Mayor alleged were the opinions expressed by the U.S. Attorney, Tulsa County District Attorney, and Tulsa City Attorney regarding the officers' credibility in future prosecutions.

¶ 11 However, the court determined that these facts were not new at all. The letter from Tulsa City Attorney Martha Rupp Carter, dated May 11, 2000 (which was within the ten-day period during which a hearing could have been sought) referred to a discussion between Carter and Chief Palmer on May 8, in which Carter explained that she had discussed the matter with U.S. Attorney Stephen Lewis, who shared her opinion that the officers' credibility had been severely damaged. Moreover, the letter from District Attorney Tim Harris, dated May 9, also fell within the ten-day period.⁵ The court concluded that, because the facts relied upon by the City and the Mayor were not new, the Mayor was without authority to convene the pre-termination hearings, and, therefore, an injunction was appropriate. The City appeals.

DISCUSSION

I.

A. The Trial Court's Assumption of Jurisdiction was Proper

¶ 12 The question of subject matter jurisdiction presents a question of law. Issues of law are reviewed de novo, and an appellate court has plenary, non-deferential authority to re-examine the trial court's legal rulings. Neil Acquisition v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5 n. 1, 932 P.2d 1100, 1103 n. 1.

¶ 13 The City argues on appeal, as it did below, that the district court lacked jurisdiction to hear the case and issue an injunction because arbitration was the only appropriate forum, and the FOP had a duty to exhaust administrative remedies before proceeding to district court. The City cites provisions of the Tulsa City Charter and Tulsa Revised Ordinances, which grant the Mayor the right to appoint, supervise, and remove City employees.⁶ ¶ 14 The City also cites various provisions of the Fire and Police Arbitration Act, 11 O.S.1991 and Supp.2000 §§ 51-101 through 51-113, as well as case law, in support of its argument that arbitration was required. The provision of the Fire and Police Arbitration Act upon which the City specifically relies is section 51-111, which reads in relevant part:

Any agreement actually negotiated between the bargaining agent and the corporate authorities either before or within thirty (30) days after arbitration shall constitute the collective bargaining contract governing fire fighters or police officers in the municipality for the period stated therein; provided that such period shall not exceed one (1) year. Any collective bargaining agreement negotiated under the terms and provisions of this article shall specifically provide that the fire fighters or police officers who are subject to its terms shall have no

...