By Scott Harvey
Commerce – The City of Commerce has responded to Mayor Quay Throgmorton's inquiry regarding the legitimacy of Dion Miller's suspension.
Throgmorton's argument looks at the language in both Section 30 (Removal of city manager) of the City's Charter, and Section 3 (Suspension) of City Manager Miller's employment contract, claiming the contract is inconsistent with and in violation of the City Charter.
According to a March 8 statement to council, Throgmorton said it is his belief that the Charter is the prevailing document upon which all other documents governing the City should be drafted.
But in a March 26 letter to Interim City Manager Marc Clayton, City Attorney Jim McLeroy stated, "The assertion that this provision [Section 3 of the employment contract] violates Section 30 of the City Charter is misguided. A charter is the enabling document of a Home Rule City and defines the outside limits of the city's authority. It does not, in any situation that I am aware of, define all powers of a city or an acting city council."
Both sections are as follows:
Section 3. Suspension (Employment Agreement)
Employer may suspend the Employee with full pay and benefits at any time during the term of agreement, but only if
(1) A majority of Council and employee agree, or
(2) After a public hearing, a majority of Council votes to suspend Employee for just cause provided, however, that Employee shall have been given written notice setting forth any charges at least ten days prior to such hearing by the Council members bringing such charges.
Section 30. Removal of city manager. (City Charter)
The city manager may be removed by a resolution passed by a four-fifths (4/5) vote of the city council members. The city manager shall be notified, in writing, of the passage of such resolution of removal, and shall be suspended from further performing any duties in connection with the office from and after the date of the passage of such resolution. Final removal of the city manager may not become effective until thirty (30) days after the passage of such resolution and notification in writing to the city manager of the city council's intention to remove said city manager, and until after a public hearing on the question of the city manager's removal shall have been held, if such hearing is requested of the council in writing by the city manager. Such request for a hearing by the city manager shall be made not later than ten (10) days from the date of the passage of the resolution of removal, and such hearing shall be held not later than twenty (20) days after the passage of the resolution of removal. Such hearing shall be an open meeting, unless an executive session is requested by the city manager.(Res. No. 293, 4-17-79; Ord. No. 95-7b (Exhibit A), 5-16-95)
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"A majority of the voting city council, once a quorum is established, may adopt an ordinance or resolution unless a provision of the Charter or of state law requires a different vote," according to McLeroy. "In the City of Commerce, the City Charter provides that in order to remove a City Manager, a super majority of the City Council is required."
McLeroy continued, "In the instant case, the City Council is entitled to set and determine all of the conditions of the City Manager's employment by majority vote. This includes the right to suspend the City Manager pursuant to the Employment Agreement Suspension pursuant to the Employment Agreement is not removal."
Miller remains suspended with full pay and benefits, as set forth in his employment agreement. The suspension came on the heels of a 3-2 vote on March 4, with Billie Biggerstaff, Tony Henry and Richard Hill voting for the suspension and Mayor Throgmorton and Bob Monday voting against.
McLeroy also refuted Throgmorton's argument that referenced the case of Barnett v. City of Plainview.
In that case, according to the Mayor, the court found that, "Where removal is expressly provided for in the City Charter, it is a part of the contract." Based on that information, Throgmorton concluded the employment agreement with Mr. Miller should have contained the same wording as the Charter.
According to McLeroy, the Mayor's interpretation of the case, as provided to KETR on March 24, supports the proposition that somehow the City Council had exceeded its authority in entering into the contract or in action under Section 3 of the employment contract. McLeroy says that assertion "Fundamentally mistakes the legal proposition set forth in that case," and that Throgmorton's reasoning parallels the reasoning of the losing argument in Barnett v. City of Plainview.
McLeroy also eluded to the Mayor's argument that cites Texas Attorney General Opinion JM-389 for the proposition that because the Commerce City Charter has only the provision at Sec. 30 of the Charter providing for the removal of the City Manager by a 4/5 vote, then the suspension with benefits as provided for at Sec. 3 of the employment agreement is invalid.
"Again, I believe that the reliance on Attorney General Mattox's 1985 opinion is misplaced," said McLeroy.
He concluded by stating, "Only by tortured interpretation of either AGO JM-389 or Barnett v. City of Plainview can any argument be made that action of the City of Commerce in suspending the City Manager in accordance with the terms of that employment agreement was void or even voidable.