July 17, 2016
Memorandum
From: Sid Hemsley, Senior Law Consultant
Date: 9/28/11
Re:
Tenure of planning commission members and other issues
As I understand the facts reflected in Ms. A’s two letters of September 23,
2011, to the City’s Planning Commission, the mayor removed the members of the
planning commission, and it is her opinion that the mayor did not have the
authority to take that action except in cases of a vacancy occurring on the planning
commission, that their removal violated Tennessee’s Open Meetings Law, that
their removal was not done in accordance with the reconsideration provisions of
Robert’s Rules of Order (RRO), and that the vote for the approval of the landfill by
the newly appointed members of the planning commission was clouded by
conflicts of interest or appearances of conflicts of interest.
I will address each allegation below.
The Removal of the Planning Commission Members
With respect to the first issue, Ms. A’s reasoning seems to be that when the
city adopted the ordinance establishing a planning commission, it omitted the part
of the state statute providing that that members of the planning commission serve
at the pleasure of the mayor.
Tennessee Code Annotated, § 13-4-101 says in full on the appointment and
removal of planning commission members:
The chief legislative body of any municipality, whether
designated board of aldermen, board of commissioners or by
any other title, may create and establish a municipal planning
commission. Such planning commission shall consist of not
less than five (5) members and not more than ten (10) members
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within the limits to be determined by the chief legislative body.
One (1) of the members shall be the mayor of the municipality
or a person designated by the mayor and one (1) of the
members shall be a member of the chief legislative body of the
municipality selected by that body. All other members shall be
appointed by such mayor, except as otherwise provided in
subsection (b). In making such appointments, the mayor shall
strive to ensure that the racial composition of the planning
commission is at least proportional reflective of the
municipality’s minority population….the terms of appointive
members shall be of such length as specified by the chief
legislative body; provided that they shall be so arranged that the
term of one (1) member shall expire each year. Any vacancy in
an appointed membership shall be filled for the unexpired term
by the mayor of the municipality, who shall also have the
authority to remove any appointed member at the mayor’s
pleasure. [My emphasis]
Ms. A correctly points out that § 13-4-101 of the city’s municipal code,
which contains the ordinance establishing the city’s planning commission, omits
the last sentence of that state law. However, that last sentence was found in Public
Acts 1935, Chapter 34, the law that originally authorized municipalities to
establish planning commissions, and has been found in that law, as amended, to the
present date (except that until the passage of Public Acts 1987, Chapter 406, the
power to appoint and remove members of the planning commission belonged not
to the mayor but the “chief executive officer” of cities, some of whom were city
managers).
That provision and language supports the proposition that the members of
the planning commission to whom it pertains serve at the will of the mayor. The at
will doctrine is still alive in Tennessee. The blunt meaning of the at will doctrine
is that, notwithstanding Ms. A’s allegation that the removal of planning
commission members by the mayor was “arbitrary and capricious” and that such
members cannot be removed without cause, is that the mayor can indeed remove
those members with or without cause. He need not give them a reason for their
removal, or even have a reason. The federal and state courts have hewn out some
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exceptions to the at will doctrine, but none that apply to the members of the
planning commission. It is noteworthy that when Public Acts 1935, Chapter 234
was passed, the Tennessee General Assembly undoubtedly knew exactly what the
at will doctrine was and meant.
In the U.S. Sixth Circuit Court of Appeals (which includes Tennessee), if a
municipal charter makes city employees at will, and authorizes no other options, a
municipal ordinance, resolution or policy that gives employees a property right in
their jobs gives way to the charter. In Chilingirian v. Boris, 882 F.2d 200 (6th Cir.
1989), a city attorney fired by the city argued that he had a property right in his
employment, the basis of which was an implied contract with the city. The Court
rejected his argument, reasoning that:
This argument is devitalized by the fact that the city
charter governs the terms of the city attorney’s
employment and provides for his termination at will.
Moreover, the city was not authorized to enter into any
contract in contravention of its charter. See Niles v.
Michigan Gas and Elec. Co., 273 Mich., 255, 262 N.W.
900 (1935) (under Michigan law, a municipality cannot
exceed its charter powers). Accordingly, notwithstanding
Chilingirians’ protestations to the contrary, no viable
means exist for circumventing the termination-at-will
language implicit in the charters section 4.6 provision
that the city attorney serves at the pleasure of the
council. [Citation omitted.] [My emphasis.] [At 205]
In the unreported case of McLemore v. City of Adamsville, 1990 WL 30478
(6 Cir. 1990), the chief of police of the City of Adamsville, Tennessee, was fired.
Under the city’s charter department heads, including the chief of police “shall be
appointed for indefinite terms and .... shall serve at the pleasure of the
commission.” [Court’s emphasis.] [At 2] The former chief of police made several
related arguments against his dismissal: That he had a property right in his
employment, that his due process rights had been violated because the city had not
given him the preterm nation hearing required by Cleveland Board of Education v.
Loudermill, 470 U.S. 539 (1985); that the city charter did not govern the
th
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“contours” of his employment because he had been a member of the “classified
service,” before he became police chief, and retained that status after he became
police chief, and that the city fired him in violation of Tennessee state law.
The Court rejected all his arguments. His claim that he was entitled to a
Loudermill hearing failed, said the Court, citing Chilingirian, above, because he
did not have a property right in his employment. In Tennessee, city charter
provisions and ordinances may give rise to property rights for continued
employment. Huddleston v. City of Murfreesboro, 635 S.W.2d 694 (Tenn. 1982).
However, a review of the Adamsville’s city charter reveals that, by its specific
terms, the chief of police “shall serve at the pleasure of the commission.” Sixth
Circuit precedent dictates that an employee does not have a protected property
interest in his continued employment “when his position is held at the will and
pleasure of his superiors.” [Citing Chilingirian, above.] [At 2]
His claim of being a permanent member of the classified service failed, said
the Court, because “[T]he city charter exclusively controls McLemore’s
employment relationship with Adamsville. Nothing in the city charter or
elsewhere supports McLemore’s conclusion that “once a classified city employee
always a classified city employee.” [At 3] Finally, his claim that the city violated
state law in firing him failed because, said the Court:
...[U]nder Tennessee law, an individual is an at-will
employee, as long as the city charter or other city
regulations do not provide otherwise. Whittaker v. CareMore, Inc., 621 S.W.2d 395 (Tenn. App. 181) As
previously stated, the Adamsville’s city charter clearly
provides that McLemore was an at-will employee. [At 3]
That municipal charter language is mandatory in Tennessee, with specific
respect to at will provisions in the city charter, is seen in Lewis v. Bowman, 814
S.W.2d 369 (Tenn. App. 1991). There the director of public works claimed he was
terminated in violation of the city’s personnel policies, which gave him certain
procedural rights. However the procedural rights granted to him were in conflict
with the city’s charter, which made department heads employees at will. In
holding the charter superseded the personnel policies, the Court said:
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It has long been the law in this state, as in many other
states, that ordinances of the city are subordinate to
charter provisions. This was pointed out in the case of
Marshall & Bruce Co. v. City of Nashville, 109 Tenn.
495, 512, 71 S.W. 815, 819 (1903), wherein it was said,
“The provisions of the charter are mandatory and must be
obeyed by the city and its agents; and if in conflict with
an ordinance, the charter must prevail.”
A similar result was reached in Dingham v. Harvell, 814 S.W.2d 362 (Tenn.
App. 1991), in which the police chief contested his firing by the Millington Board
of Mayor and Aldermen. The Court rejected the chief’s argument that he was an
employee of the city for the purposes of the city’s personnel policies which gave
city employees certain job protection. Under the city’s charter, the police chief
served at the will and pleasure of the board of mayor and aldermen. In a contest
between the city’s charter and the city’s personnel policies, the charter wins, said
the Court. [In accord are Gay v. City of Somerville, 878 S.W.2d 124 (Tenn. App.
1994); Mille v. City of Murfreesboro, 122 S.W.3d 766 (Tenn. Ct. App. 2003);
Trusant v. City of Memphis, 56 S.W.3d 10 (Tenn. Ct. App. 2001); Summers v.
Thompson, 764 S.W.2d 182 (Tenn. 1988); Brown v. City of Niota, 214 F.2d 718
(6th Cir. 2000) (unreported).]
Those cases tell us that Tennessee is an at-will state, that a municipal
employee or officer claiming a property right in his employment must be able to
support his claim with a statute, and that if he makes such a claim in the face of a
statute that paints him at-will, his claim will fail. They also tell us that if the
statute in question is silent on a municipal officer or employee’s employment
status, the municipality might have some discretion to adopt an ordinance or other
written policy that gives him a property right in his employment.
Tennessee Code Annotated, § 13-4-401 is not silent on the “employment”
status of members of the planning commission. Indeed it expressly provides that
members of the planning commission appointed by the mayor serve at the pleasure
of the mayor. The state law supersedes the city’s ordinance on that subject.
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Open Meetings Law Violation
Apparently, the mayor removed the planning commission members at issue
at a public meeting on August 16, 2011, for which notice was given. Ms. A
contests the adequacy of the notice. Interesting in that connection is that the mayor
could have removed those members without holding a public hearing, he being the
only person who has the authority to appoint and remove the members of the
planning commission; no deliberation of the city’s governing body or its making of
a decision is required. Ms. A strongly argues that even in such a case, if the mayor
chose to remove the members at a public meeting, adequate notice of the meeting
was required to be given, and that the notice was inadequate because the agenda
for the meeting contained only this notice: “[U]nder Item C Mayoral and/or other
appointments.” Furthermore, alleges Ms. A, “the August 16 agenda was not
published in the [local newspaper] according to the newspaper records, which is
normal practice for the commissioner’s notice to be delivered to the citizens.”
At first glance that sounds like an attractive argument, but it ignores the fact
that the mayor did have the right to remove the members of the planning
commission “at his pleasure,” which presumably includes in a public meeting. The
Open Meetings Law itself appears to support that presumption. A “governing
body” is defined in the Open Meetings Records Law as “The members of any
public body which consists of two (2) or more members with the authority to make
decisions for or recommendations to a public body on policy or administration…”
(Tennessee Code Annotated, § 8-44-1012(b)(1)(A)) The City Council had no
authority to make decisions with respect to the removal of the members of the
planning commission, or recommendations to any other public body on that issue.
The mayor is the sole decision-maker on the issue of their removal.
The case of Metropolitan Air Research Testing Authority v. Metropolitan
Government of Nashville and Davidson County, 842 S.W.2d 611 (Tenn. Ct. App.
1992), is instructive on the question of whether the mayor’s decisions, when he is
the position of a sole decision-maker, are subject to the Open Meetings Law.
There the city manager formed a committee to investigate and give advice to him
on issues pertinent to his duties. An unsuccessful bidder on a city contract argued
that the award of the contract violated the Open Meetings Law. Under the
Metropolitan Government Charter, said the Court:
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The responsibility for procuring goods and services for
most of the city’s departments rests on the purchasing
agent....After the bid openings, Metro Ord. § 15-1-19-(d),
the purchasing agent requests the requisitioning agency
to review the bids. Metro Ord. § 15-1-19(e), and obtains
a certification from the finance director that funds for the
contract are available. Metro Ord. § 15-1-18-(b)
Thereafter, the purchasing agent, “with the approval of
the mayor” makes all determinations with regard to the
award of contract. Metro Ord. § 15-1-19(e) [At 618]
[Emphasis is mine.]
Under that purchasing policy, it was the mayor who, under the city’s charter,
approved the award of the purchasing contracts at the bid award meeting. Here is
what the Court said about that meeting with respect to the Open Meetings Law:
The Sunshine Law applies to meetings of public bodies
“for which a quorum is required in order to make a
decision or to deliberate toward making a decision on any
matter.” Tenn. Code Ann. § 8-44-102(c). It has never
been interpreted to apply to meetings pertaining to
decisions made by single public officials. Fain v.
Faculty of College of Law, 552 S.W.2d 752, 754 (Tenn.
Ct. App. 1977) (meeting of an advisory committee to law
school dean were not required to be open ); see also MidSouth Publishing Co. v. Tennessee State University &
Community College Sys., App. No 01-A-01-9002-CH00074, slip op. At 11, 16 T.A.M. 5-8, 1990 WL 207410
(Tenn. Ct. App. 1990) (meeting of the chancellor’s
advisory committee was not required to be open because
the decision was the chancellor’s alone); Memphis
Publishing Co. v. City of Memphis, Shelby Eq. Slip op.
At 4, 3 T.A.M. 36-19 (Tenn. Ct. App. Aug. 7, 1978)
(labor negotiations conducted by mayor).
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The June 22, 1990 meeting was not a meeting of a
governing body. The group assembled in the mayor’s
office consisted of various city officials with separate
roles in the procurement process, but the group was
neither created nor recognized by the Metropolitan
Charter, the city ordinances, or the rules and regulations
of the Division of Purchases. The group was not required
to have a quorum or to deliberate, or even to make
recommendations to a public body.
The decision on whether to award the contract rested
with the purchasing agent. At most, the officials
attending the meeting were providing the purchasing
agent with their opinions concerning whether he should
award the contract to the company that submitted the
lowest bid. The purchasing agent could have made a
decision without the meeting. Accordingly, we find that
the Sunshine Law did not require this meeting to be open
to the public. [At 619]
The only difference between the mayor in Metropolitan Air Research
Testing Authority and in your City, was that the in the latter case the mayor took
his action to remove the planning commission members in a public meeting, and
in the former the mayor did not take that action in a public meeting. But it
escapes me how there was a violation of the Open Meetings Law in either case
when the Open Meetings Law is not even triggered when a sole decision-maker
takes action that only he can take on an issue. Your mayor chose to make a
decision only he could make in a public meeting, but it is a decision by the
governing body of the city, or deliberation toward a decision by the governing
body of the city, which the governing body of the city has the authority to make
that triggers the Open Meetings Law.
In addition, a violation of the Open Meetings Law can be cured by a
substantial consideration of the issue from which the violation arose (Neese v.
Paris Special School District 813 S.W.2d 432 (Tenn. Ct. App. 1990), essentially
doing over what the city’s governing body previously did in violation of that Law.
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What does a city council do over with respect to the removal of members of the
planning commission? The right of removal of those members belongs solely to
the mayor; the city council has nothing to do over. It is probably unfortunate that
the mayor chose to remove the members of the planning commission in a public
meeting, which I suspect reflected more of his belief that action had to be done at
such meeting, rather than a choice. In any case, his action does not appear to me
to have been a violation of the Open Meetings Law.
Defective Reconsideration
Ms. A correctly states Roberts’ Rules of Order on Reconsideration. I will
not restate that rule, which is found in her opinion. However, I think her analysis
holds the planning commission (and any other municipal governing body) to a too
high standard in the use of Robert’s Rules of Order. It cannot be the law that a
municipal body is forever prohibited from “reconsidering” what it did at a previous
meeting simply because it failed to follow the strict rule of Reconsideration under
RRO. In Tennessee, the rules of parliamentary procedure are adopted for the
guidance and convenience of the board. It is said in Bradford v. City of Jellico, 1
Tenn. Chan. App. 700 (1901), that:
...these rules of order for the government of the
city council are mere rules of procedure adopted
by itself for its guidance and convenience. They
are no part of its legislative or legal charter, and
rest upon no positive prescription of the statutes of
the state. Being rules of procedure adopted by the
council for its own convenience and government in
the enactment of ordinances, it is competent for the
council to waive them, and certainly this is so with
the consent of all the council present. This consent
is assuredly sufficient, if it be expressly given, and
such consent, in our opinion, may be implied. If
an ordinance be legally passed on two readings at
the meeting at which it is introduced, and at the
next meeting it is put upon its passage on its third
and final reading without objection by any member
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of the council present, based upon its nonreference
to a committee, this is, in legal effect, equivalent to
a waiver of the rule requiring a reference to a
committee except by unanimous consent of the
council. [At 719.]
Under Bradford, it appears that if the city council has adopted rules of
procedure governing the agenda or any other meeting issue, it could, simply by
implied unanimous consent (or by any other means prescribed by the rules),
suspend those rules.
That case does not indicate whether the city council adopted its rules of
procedure by ordinance or motion. However, its language supports a good
argument that unless the charter or other statute prescribes a procedure, the
council can formally or informally suspend its rules to bring a question to a vote
whether it adopted those rules by motion or ordinance, and that if the question got
before the city council without objection, and received the number of votes
prescribed for passage, the question passed. In other words, unless a governing
body violated the city charter or a statute, the council can expressly or impliedly
remove its own procedural impediments to a vote on a question.
That conclusion is supported by Saylors v. City of Jackson, 575 S.W.2d 264
(1978). There the mayor, as presiding officer, moved for the adoption of an
annexation ordinance. Not receiving a second within a period of about four
seconds, he declared the motion to have died for lack of a second. A council
member protested to the mayor that he had acted too quickly, declaring that he had
intended to second the motion. The motion was restated by the mayor, seconded
by the protesting council member, and unanimously approved by the board.
Rejecting a challenge to that procedure on the ground that it violated Robert’s
Rules of Order, the Court said:
Even if this irregularity violates Robert’s Rules of Order,
that tome specifically provides that where action is
unanimous, a violation of the rules is without
consequence. Robert’s Rules of Order, section 48, at
202-03 (rev. Ed. 1971) states, ‘By general, or unanimous,
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or silent [emphasis is mine] consent the assembly can do
business with little regard for the rules of procedure, as
they are made for the protection of the minority, and
where there is no minority to protect, there is little use for
the restraint of the rules, except as such to protect the
rights of absent members, or the right of secret vote.’ [At
267] t is also said in Rutherford v. Nashville, 79
S.W.2d 581 (1935), that it is uniformly held that it is
within the power of all deliberative bodies to abolish,
modify, or waive their own rules of procedure.
The same rule is also supported by 4 McQuillin, Municipal Corporations,
Section 13.42:
In the absence of legal provisions or restrictions,
municipal legislative body may, from time to time, adopt
and change its own rules or parliamentary usage as to
procedure. The charter or a statute applicable may
prescribe rules for the government of the proceedings of
councils, municipal boards, etc., and often times the
organic law provides that the council or representative
body may adopt its own rules of action. The council may
abolish, suspend, modify or waive its own rules. This
also may be done by implication, when action in hand is
not in accordance therewith. Of course, it cannot
disregard mandatory charter or statutory provisions.
[Emphasis is mine.]
Those cases and authorities support the proposition that if a question comes
to the board, under its own rules, even in procedurally defective form, if there is no
immediate protest made on procedural grounds, and the board votes on the
question, the vote will not be disturbed because of any procedural irregularities;
provided that the city’s charter or general statutes governing procedure are not
violated.
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In addition, although I do not know what procedure was followed to get the
question of approving the landfill on the planning commission agenda, I suggest
that the so-called Motion to Reconsider could be treated as a Motion to Rescind the
action of the board in rejecting the landfill. (RRO, Rule 35). That possibility
should be considered. Likewise, Renewal of a Motion is a possibility. (RRO, Rule
38).
The argument that a hyper technical application of Robert’s Rules of Order
is required by city councils, most of which are not remotely expert on
parliamentary law would, after they had made a parliamentary mistake, grip them
in parliamentary devices from which they could never escape. That reality is a
good reason for Tennessee’s rules that a city council’s procedural rules are for the
convenience of the city council, and that the council can change them even by
implication.
Conflicts of Interest
Ms. A’s opinion does not allege that any of the planning commission
members had a conflict of interest that arose to a state law violation. She does cite
the city’s ethics ordinance found in the Municipal Code, Title 1, Chapter 4, for the
proposition that under §§ 1-403 and 1-404 of that ordinance, personal interests are
defined. I will not repeat those definitions; they can be found in her opinion.
However, she did not note that while § 1-403 of that ordinance provides that
personal interests must be disclosed, but adds this sentence: “In addition, the
official may recuse himself from voting on the measure.” [Emphasis is mine.] In
short, the official is not required to recuse himself from voting, only to disclose his
interest. That provision is typical of many ethics ordinances in Tennessee cities. I
cannot speak with any knowledge what disclosures were made at the meeting of
the planning commission on September 6, 2011, but Ms. A’s opinion suggests that
there were a number of them.
I do not have a copy of the by-laws of the planning commission, but the
copy of Section 7 reflected in Ms. A’s opinion not only is vague, those by-laws
have probably been superseded by the city’s ethics ordinance adopted in 2006. As
I pointed out above, that ordinance does not require abstinence from voting on
matters which a city official has a personal interest, only that such official “may”
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recuse himself from voting on the measure.” Section 7 of the planning
commission’s by-laws, quoted in Ms. A’s opinion, reads, “Should any
commissioner consider his or her personal interest involved in any matter before
the commission for a vote, it shall be his /her duty to disclose such conflict of
interest and to abstain from voting on the articular matter.” I have no idea what a
“personal interest” is under those by-laws, and repeat again ad nauseum that they
have probably been superseded by the city’s ethics ordinance, which applies to “all
full-time and part-time elected or appointed officials and employees, whether
compensated or not, including those of any separate board, commission,
committee, authority, corporation or other instrumentality appointed or created by
the municipality.” It is clear that language encompasses the planning commission.
Ms. A’s opinion lists several members of the planning commission, one of
whom she determines had a conflict of interest, and whom she declares should not
have voted. Other members, she says, have an “appearance” of a conflict of
interest, which she declares should be investigated before they are allowed to vote.
Her opinion that Ms. B had a personal interest and that she should not have voted
appears to be probably half right and half wrong: right in the respect that she
probably had a personal interest, but wrong in the respect that she shouldn’t have
voted. She was under no obligation to recuse herself from voting under the city’s
ethics ordinance.
It also appears to me that without more, it would probably very difficult to
turn Ms. A’s bare allegations of the appearance of possible conflicts of interest
into “personal interests” as that term is defined in several contexts in § 1-402 of the
Municipal Code.
In all events, complaints of ethics violations are investigated as prescribed
by § 1-410 of the city’s ethics ordinance, and violations are handled under § 1-411
of that ordinance, not as contemplated by Ms. A’s opinion. Were Ms. A’s
insistence that the planning commission, and presumably every other public body
that votes, investigate every member to insure that they have no conflicts of
interest or appearances of conflicts of interest before they are allowed to vote on
certain issues would also put those public bodies in procedural vices. In the case
of the City, it has an ordinance that addresses how conflicts of interest complaints
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(that do not rise to the level of violations of the state’s Conflicts of Interest Law)
are investigated and addressed.
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