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Thu March 25, 2010
Mayor calls for reinstatement of city manager
By Scott Harvey
Commerce – Commerce Mayor Quay Throgmorton is calling for the immediate reinstatement of City Manager Dion Miller, claiming Miller's March 4 suspension was illegal.
The council voted 3-2 that day to suspend Miller indefinitely with pay, a move Throgmorton feels doesn't fall in line with the City's Charter or governing document. According to the Charter, it takes a four-fifths majority vote to remove a city manager. But Miller's contract states only a three-fifths majority is needed to suspend him.
In the council's March 8 meeting, Throgmorton stated he believes Miller's employment agreement, particularly Section 3 titled Suspension, is inconsistent with and in violation of the City Charter. He continued by saying the employment agreement should have contained the same wording as the Charter since the Charter already addresses the removal of the city manager.
Furthermore, the Commerce Charter does not expressly allow the council to appoint an interim city manager, said Throgmorton. He went on to say he feels City Manager Miller was unjustly suspended. The Mayor left following his statement on March 8. Council then proceeded to appoint Director of Administrative Services Marc Clayton as interim city manager.
Throgmorton's complete statement issued on March 8 is available below.
As of Wednesday, March 25, two weeks following Throgmorton's remarks, he says he has still not received any documentation from either City Attorney Jim McLeroy or any of the three council members who voted to suspend Mr. Miller verifying the validity of those actions.
Throgmorton even cited the 1993 case of Barnett v. City of Plainview, 848 S.W.2d 334, Tex.App.-Amarillo, where the court found that, "Where removal is expressly provided for in the city charter, it is a part of the contract."
Throgmorton continued, "Our Charter does expressly provide for the removal of the City Manager, it must be by a four-fifth vote, and the employment agreement with Mr. Miller should have contained the same wording as the Charter since the Charter already addressed the removal of the City Manager. The employment agreement with Mr. Miller says he can be removed by a majority vote; this is in direct contradiction to the Charter."
In a conversation with KETR, the Mayor said, "My obligation is to the citizens of Commerce. If I feel things aren't done right then I'm' obligated to ask questions."
The Mayor feels some type of information needs to be brought forth by City Attorney McLeroy either in favor of or against his argument so the city can move forward.
Throgmorton still plans to move forward with an investigation he called for following the March 4 vote to suspend Miller; which names Councilmember's Billie Biggerstaff, Tony Henry and Richard Hill, claiming they violated the City Charter, city administrative policies, the open meetings act and Miller's employment agreement. Additionally, Throgmorton called for an investigation regarding possible administrative violations by the city secretary, police chief, assistant police chief, director of administrative services and the city attorney.
Council failed to adjourn into executive session to discuss the items on March 15, following a 3-2 vote. Throgmorton says, however, he's since learned a vote is not required to adjourn into executive session.
Statement from Mayor Quay Throgmorton on March 8:
Upon examination, this weekend, of the City of Commerce's Charter and Dion Miller's employment agreement, I believe the employment agreement, particularly Section 3, is inconsistent with and in violation of the City Charter. Section 3 of the employment agreement, titled Suspension is not in agreement with Section 30 of the Charter, titled Removal of City Manager. The employment agreement should have contained the same wording as the Charter since the Charter already addresses the removal of the City Manger.
It is my belief the Charter is the prevailing document upon which all other documents governing the City should be drafted. Section 30 of the Charter only allows for the removal of the city manager by a 4/5 vote. Nowhere in the Charter does it allow for the removal, through either suspension or termination, of the City Manager with less than a 4/5 vote. I also found no place the Charter where it specifically gives the City Council power to suspend the City Manager, as the Charter of other cities such as Greenville, Texas does. Furthermore, our Charter, unlike Greenville's, does not expressly allow the council to appoint an Interim City Manager. Since the Section 3 of the employment agreement is not consistent with the Charter, I believe Section 3 to be invalid.
It appears to me that the vote and action taken by the Council on March 4th, which led to the suspension of Mr. Miller by a simple majority vote is invalid and unenforceable due to the contradiction with Section 30 of the Charter.
This inconsistency between the Charter and the employment agreement is partly responsible for the current situation. These two documents should always agree, particularly on the steps to remove, or even suspend, a City Manager. The Charter should provide the guiding principles upon which the employment agreement should have been drafted.
The City Charter is the ultimate document by which the City operates. I can find no place in our Charter that allows the City to enter into any agreement that would violate and/or contradict any section thereof.
From the origination of the City's charter and through Charter Amendment Elections, I believe our Citizens understood that for the City to run efficiently and ethically, the City Manager should not be removed by the City Council unless there is substantiated evidence to do so. Also, when such evidence is so egregious, the City Manager should not be suspended but completely removed from office.
I believe Mr. Miller has been unjustly suspended. If the charges brought by Council Member Biggerstaff were so great, why was there not a call for an investigation? Why not discuss documented and supported allegations in a public hearing to remove the City Manager, as allowed for by our current Charter and then call for a vote? The charges as presented on March 4th seemed only to be a rehashing of old complaints, unsubstantiated and based on hearsay. The actions against Mr. Miller appear to only be based on personal dislike.
Under Section 30 of the Charter for the City of Commerce, I do not find the authority for the City Council to suspend the City Manager, nor does it specifically allow for the appointment of an Interim City Manager. Therefore, I believe Dion Miller should be reinstated as City Manager until the legality of the suspension action taken by this Council can be determined.
I will refrain from voting on the matter before us because I do not feel I have the right to do so.