One month after being sued over the termination of Randy Caplinger as Chief of Police, the City of Smithville has filed an answer in DeKalb County Circuit Court.
In the answer, Filed Monday, July 6, city attorney Vester Parsley and Nashville lawyer Mark E. McGrady of Farrar & Bates, LLP claim that Caplinger was validly suspended and terminated by the Board of Mayor and Aldermen and that he is not entitled to back pay from the City.
In the lawsuit, attorneys for Caplinger, Sarah Cripps and Brandon Cox are asking for a declaratory judgment "to construe the charter for the City of Smithville and to determine which provision controls and governs the number of votes required by the Board of Aldermen to ratify or confirm the mayor's decision to remove an employee of the city". Cripps and Cox are also urging the court to find that the Board of Aldermen violated a section of the charter by not convening a meeting to ratify the mayor's suspension of Caplinger without pay prior to the due process hearing. They are further asking that the court "hold and declare that Caplinger's suspension without pay effective March 13, 2015 is invalid, and hence, a nullity" and that Caplinger be allowed to "receive all accrued back pay from March 13, 2015 until the date of the hearing in this cause.
"We are seeking to have Chief Caplinger restored to his rightful position as chief. We are also asserting that he is entitled to receive all accrued back pay and every other benefit to which he would be entitled had this unlawful suspension and termination never occurred," Cripps told WJLE last month.
Attorneys for the city contend that the issues the court must determine are:
"Whether the mayor's decision to terminate Caplinger received the approval of the requisite (required) number of members of the Board of Mayor and Aldermen under the applicable provisions of the charter and ordinances of the City?"
"Whether the vote of a majority of the Board of Mayor and Aldermen on May 8, 2015 in favor of the mayor's decision to terminate the employment of Caplinger was a valid ratification of the mayor's suspension of Caplinger's employment without pay effective March 13, 2015 under Section 3.08 of the City's charter?"
"If Caplinger's termination of employment was not approved by the requisite (required) majority of the Board of Mayor and Aldermen under the applicable charter and ordinance provisions, whether Caplinger is entitled to back pay from the City since March 13, 2015?".
After a seven hour due process hearing Friday, May 8 the aldermen voted 3-2 to uphold Mayor Jimmy Poss' termination of Caplinger. Aldermen Gayla Hendrix, Danny Washer, and Jason Murphy voted in favor of the mayor's action. Aldermen Shawn Jacobs and Josh Miller voted against it.
But the vote itself became an issue and is one of the key components of the lawsuit.
Cripps and Cox insist that the city's charter requires a two thirds majority vote (four out of five) to confirm a mayoral termination. And Aldermen Jacobs and Miller said at the due process hearing that they had spoken with a legal representative of the Municipal Technical Advisory Service (MTAS) who told them that according to the city's charter, four votes were required to approve the action of the mayor.
Article III of the Smithville City Charter regarding Organization and Personnel. Section 3.01, subsection (2) 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."
But during the due process hearing City Attorney Vester Parsley cited another section in the charter, which seems to conflict with Section 3.01 in that it allows for only " a majority of the board" to approve removal of employees by the mayor. Parsley recommended that the aldermen follow this section of the charter.
The section of the charter to which Parsley referred is Section 3.08 in Article III which states that "The appointment and promotion of employees of the city shall be on a basis of merit, considering technical knowledge and education required to perform satisfactorily the work, experience in the particular or similar line of work and administrative or supervisory qualifications. The Mayor, or the City Administrator, if established by the Board, may, with the approval of a majority of the Board, make appointments, promotions, transfers, demotions, suspensions, and removal of all employees".
In the lawsuit, Cripps and Cox are asking the court to preserve both sections of the charter but to find that Section 3.01 (requiring a 2/3 super majority vote) controls because it is more specific than Section 3.08.
The city claims in its defense that the super majority requirement in Section 3.01 of the city charter to uphold the mayor's removal of an employee is not applicable when "otherwise specifically provided by ordinance".
Along that line, the city claims that the personnel policies adopted as an ordinance in March 2014 provides that the "mayor's termination decision will be reviewed by a review panel which will consist of the Mayor and City Council". And that "four of the six members of this review panel (including the mayor) approved the mayor's termination decision, supplying both a majority vote and two thirds vote in favor of termination".
The city goes on to argue that the new personnel policies require only that "the board" decide whether a termination is appropriate and that the board acts through a "majority" of its aldermen, who voted in favor of sustaining the mayor's decision to terminate Caplinger.
As for a legal representative of the Municipal Technical Advisory Service (MTAS) advising Aldermen Jacobs and Miller that according to the city's charter, four votes were required to approve the action of the mayor, the city denies that the MTAS official provided an opinion as to whether Section 3.01 of the city charter (providing for a super majority vote) controlled over the conflicting provisions in Section 3.08 of the city charter or the city's 2014 personnel ordinance.
According to attorneys for the city, Section 3.08 of the charter requires only a majority of the Board to approve the mayor's suspension or removal of all employees. Section 3.01(2) requires a two thirds majority vote of the "Council" to approve removals, but this section does not apply to suspensions. Smithville's governing body is made up of a Board of Mayor and Aldermen, not a "Council" and that Section 1.02(c) of the City charter defines the "Board" as including the mayor and five aldermen elected under the charter. This Section defines "Aldermen" and "Board Member" to include the Mayor. Therefore, a two-thirds vote of the "Council" can reasonably be construed to require the vote of a majority of the aldermen (three) plus the mayor, which would harmonize Section 3.01(2) of the charter in removals with Section 3.08 of the charter which applies to both suspensions and removals," according to the city.
"Section 3.08 of the charter permits a majority of the Board of Aldermen to approve a mayor's suspension of an employee. If Section 3.01 (2) (super majority vote) is the controlling provision for removal of an employee and it is construed to require that four of the five aldermen approve the removal of an employee, a majority of the aldermen and the mayor would be able to suspend an employee indefinitely but would not be able to terminate that employee," attorneys for the city continued.
"A super majority vote requirement is contrary to the principle of majority rule, and should not be enforced unless the super majority provision is unambiguous. The best argument "Caplinger" can make is that the charter is ambiguous, so the super majority provisions must give way to the majority rule provision".
"A majority of the aldermen at the conclusion of the May 8, 2015 hearing voted to uphold the mayor's decision to terminate "Caplinger", which vote was sufficient to uphold the mayor's decision to suspend "Caplinger" indefinitely effective on March 13, 2015."
The city also argues that Caplinger is not entitled to back pay because the personnel policy relating to such only applies if the board "determines the employee should be reinstated. A majority of the Board voted against Caplinger's reinstatement, so he is not entitled to receive any back pay".
Attorneys for the city are asking the court to enter a declaratory judgment finding that the mayor's decision to terminate Caplinger received the requisite (required) approval of the Board of Mayor and Aldermen under the applicable provisions of the charter and ordinances of the City; that the court find that the vote of a majority of the Board of Mayor and Aldermen on May 8, 2015 in favor of the mayor's decision to terminate the employment of Caplinger was a valid ratification of the mayor's suspension of Caplinger's employment without pay effective March 13, 2015 under Section 3.08 of the City's charter; and that the court find that Caplinger is not entitled to either reinstatement as Chief of Police or the award of back pay".