The Smithville Board of Aldermen will convene Friday morning to conduct the long awaited due process hearing for Randy Caplinger, who wants his job back as Police Chief.
Mayor Jimmy Poss fired Caplinger on March 19 citing eight reasons for the termination
The hearing begins at 10:00 a.m. at city hall and WJLE will have LIVE coverage.
At the end of the hearing, the five member board of aldermen is expected to take a vote on whether to confirm the mayor's termination of Caplinger.
Under the City of Smithville's Personnel Policies regarding "New Hires, Promotions, Demotions, and Transfers", Section IV subsection J regarding Employment states that "Pursuant to the City Charter, the Mayor has the authority to hire, promote, demote, transfer, suspend, and remove all officers and employees of the City of Smithville with proper Board of Mayor and Aldermen approval. The City of Smithville is an at-will employer and may terminate the employment relationship at any time with or without cause. Employees may be disciplined up to and including termination of employment at any time."
"The point I want to make is the hiring and removal of employees can be initiated and done by the mayor but only with the approval of our board of aldermen. It says "proper" approval which I think is terribly important," said Sarah Cripps, attorney for Caplinger.
While some apparently believe a simple majority vote (three out of five) is all that is necessary to confirm the mayor's action to terminate Caplinger, Cripps told WJLE Thursday that the city charter is the controlling legal authority for the city, taking precedence over the personnel policy if there is a conflict, and the charter requires a two thirds majority vote which would be four out of five aldermen voting in the affirmative. Cripps bases her opinion on Article III of the Smithville City Charter regarding Organization and Personnel. Section 3.01, subsection (2) which states that "All officers and employees of the city, except as otherwise specifically provided by ordinance, shall be appointed and removed by the Mayor but only with the approval of at least two-thirds (2/3) majority vote of the Council present voting upon the appointment or removal, and the employees shall be under the direction and control of the Mayor."
"Apparently there have been a lot of discussions in our community about what is required to confirm the mayor's decision. It's simple. This is true at every level of our nation's government. At the federal level. At the state level. And most applicable to our case at the local level. The presiding executive can appoint certain officials who are department heads. Those officials must be confirmed by the legislative body with not a simple majority but a two thirds majority. It's called a super majority. It's there to protect the people from the whims of our government. That's why its special. A super majority is sixty six and two thirds percent of the members of that body. In the U.S. Senate, a simple majority is 51%. In Smithville, a simple majority is three members out of the five serving. Is that enough to terminate the chief? To confirm the mayor's decision? Absolutely not. How do I know that?. The charter tells me so in Section 3.01 because sixty six and two thirds percent is four (aldermen) out of the five. That is why the question that should be called Friday is will the board affirm or confirm the mayor's recommendation that our chief be terminated? If so, they must have four persons out of the five to confirm that decision," said Cripps.
No one knows for certain how any of the aldermen will vote Friday but Cripps said should the aldermen fail to affirm the mayor's termination of Caplinger, the mayor does not have the authority to cast a veto. According to Cripps, the city charter states that mayoral vetoes are reserved only for legislative actions by the aldermen. Cripps cites Article II of the charter regarding the Mayor as Presiding Officer. In Section 2.04 subsection (1) the charter states that "The Mayor shall preside at meetings of the Board and shall not have a vote on any matter except in case of a tie vote". In subsection (2), the charter explains that "The Mayor shall have veto power over any legislative action of the Board of Mayor and Aldermen."
"The important point here is the term "legislative action". What is a legislative action? This section (2.04 subsection 2) tells us. It says upon passage of a legislative ordinance or resolution, the mayor shall notify the board in writing of a veto within ten days. A legislative action is very clear. It is a resolution. It is an ordinance. That is what legislative bodies do. They make law on whatever level of government they happen to be serving. In other words, our board of mayor and aldermen promulgate laws that affect the city. Those are ordinances. Those are resolutions where they desire to make their wishes known. Section 2.09 of the charter talks about what legislative action means. What is not defined in Section 2.09 as a legislative act under which the mayor has veto power, is the board's decision to hire or remove an employee. The mayor cannot exercise a veto in this case because it is not provided for in our city's charter. This is clear. It is not open for legitimate debate. If there is a veto, it is patently illegal. It's contrary to the provisions of the charter, which is the law under which our city operates because the vote being taken by the board Friday is not a legislative act. It is not a lawmaking act" said Cripps.