Of course they can!
They can, in the inimitable words of Mayor Elam, “do anything they want until a judge tells them otherwise.”
Can the City Commission adopt an ordinance that violates the City Charter?
Well, they can… but that won’t make it a valid ordinance.
It appears they have, and the interesting question is why Mayor Elam (who is a licensed, practicing attorney) and the City Attorney, Jason Holleman (who is likewise, a licensed, practicing attorney) don’t seem to be able to read and understand the City Chater (which is, after all, written in English).
Here’s what the charter says about the Powers and Duties of the City Manager with respect to personnel decisions: Section 6-21-108 (2)
Except as otherwise provided in this charter, appoint, promote, demote, suspend, transfer, remove, and otherwise discipline all department heads and subordinate employees at any time, subject only to any personnel rules and regulations adopted by ordinance or resolution by the commission. Any hearings on, or appeals from, the city manager’s personnel decisions provided for in the personnel rules and regulations shall be exclusively before the city manager or a hearing officer designated by the city manager;
According to a story in this week’s Chronicle of Mt. Juliet, Dennis Buchanan has appealed his termination as parks director. It then goes on to say:
City Attorney Jason Holleman, citing the City personnel policy manual, said that the city commission will convene in administrative session within 30 days of receiving notification of the appeal request from the human resources department, and the commission may reverse the final decision of the city manager (to terminate Buchanan) and/or whatever action the commission deems appropriate under the circumstances, including but not limited to amending the decision of the city manager.
With all due respect to City Attorney, Jason Holleman, NO THEY CAN’T.
A) There is no exception in the Tennessee Open Meetings Law for a City Commission to meet in “administrative session” to consider a personnel matter. Mayor Elam, City Commissioners, Citizens and even the City Attorney may think that the City Commission SHOULD be able to meet behind closed doors, but until the State Legislature amends the law, it’s illegal for them to do so (unless they are meeting to be briefed on a pending lawsuit – and even then, they can take no action and cannot engage in debate).
B) Whether you agree or disagree with the City Manager’s decision and like or dislike Dennis Buchanan, under the Mt. Juliet City Charter, personnel decisions of the City Manager can only be appealed to the City Manager or a hearing officer designated by the City Manager. Mayor Elam, City Commissioners, Citizens, and even the City Attorney may think that’s a bad idea, but until the City Charter is amended, the City Manager’s decision is final. The City Commission can fire the City Manager, but they can’t “amend his decision.”
Doesn’t matter what the 2009 Personnel Policy Manual says. Ordinances that violate the City Charter are invalid. It would be just as crazy as the US Congress passing a law stating that decisions of the US Supreme Court could be appealed to a joint session of Congress. The only way to make that change would be to amend the Constitution.
There’s a way to amend the City Charter if the Mayor and the City Commission want to do that. Propose a change, and submit it to the voters. If they approve the change, it will take effect. There’s a reason why amending the City Charter takes a few extra steps and requires the approval of the voters. Because it’s a big deal! It’s the city-level equivalent of amending the constitution. It’s not supposed to be as easy as just passing an ordinance. The City Charter is supposed to set the boundaries as to what ordinances the City Commission can adopt. But Mayor Elam, and this City Commission recognize no boundaries. They won’t obey the boundaries. It’s questionable as to whether they know where the boundaries are!
Mayor Elam and this commission have demonstrated their arrogant disregard for the City Charter over and over again. They took an oath to uphold the City Charter. And then they ignore it. If you want to amend the Charter, do it the right way. Shame on all of you for thinking you could do it by ordinance. Shame on the Mayor for not knowing any better. Shame on the City Attorney for not knowing any better.