Opinion
No. 87-343
Opinion delivered February 1, 1988
1. MUNICIPAL CORPORATIONS — PERSONNEL POLICY PROVISION DID NOT CONSTITUTE AN EXPRESS PROVISION AGAINST TERMINATION EXCEPT FOR CAUSE. — The written city personnel policy providing that "[a]n employee who gives unsatisfactory service is subject to dismissal by the Mayor with the approval of the City Council," does not constitute an express provision against termination except for cause. 2. MUNICIPAL CORPORATIONS — RECORD DID NOT ESTABLISH AN EXPRESS PROVISION AGAINST TERMINATION EXCEPT FOR CAUSE. — Although three council members testified that the three-reprimand policy was in effect at the time of appellant's discharge, neither of the personnel policies which were introduced at trial contained such a policy; the record simply did not establish that there was an express provision against termination except for cause, either in the personnel policy or in the minutes. 3. MUNICIPAL CORPORATIONS — MARSHAL WAS EMPLOYEE AT WILL AND MAY BE DISCHARGED BY MAYOR SUBJECT TO TWO-THIRDS OVERRIDE BY CITY COUNCIL. — Where even if the personnel policy had provided for discharge only with cause or even if the minutes had clearly reflected that the council had voted for a policy of no discharge until after three reprimands, the appellant would not prevail in this case because state law provides that a city marshal may be discharged by the mayor, subject only to an override by a two-thirds vote of the city council, and the appellee neither pled nor argued that the city should be estopped from applying the controlling state statute; the appellant was an employee at will and his discharge was not wrongful. 4. MUNICIPAL CORPORATIONS — REHIRING IS NOT A STATUTORY OVERRIDING OF THE MAYOR'S FIRING. — Where appellant was fired by the mayor, the council refused to override the discharge, the mayor appointed a temporary marshal, the city later took applications for the job, appellant and others submitted applications, and appellant was ultimately re-hired to fill the vacancy, the city council's actions did not constitute a statutory override.
Appeal from Pope Circuit Court; John S. Patterson, Judge; affirmed.
Robert E. Irwin, for appellant.
Bullock McCormick, by: David H. McCormick, for appellee.
Appellant Bill Robbins was appointed Marshal of the City of Dover pursuant to an ordinance making the marshal's office appointive rather than elective. See Ark. Code Ann. 14-44-111 (1987) [Ark. Stat. Ann. 19-1103.2 (Repl. 1980)]. He was later discharged by the Mayor, and the City Council failed to override the Mayor's action by a two-thirds majority. The appellant contends he was wrongfully discharged. The trial court held that the marshal was an employee at will who could be discharged at will by the mayor, subject to an override by a two-thirds majority of the city council. The Court of Appeals certified the case to this court. We affirm the trial court.
Appellant argues that he was not subject to termination at will because of a written city personnel policy and the minutes of a city council meeting. In Gladden v. Arkansas Children's Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987), we wrote:
We do, however, believe that a modification of the at will rule is appropriate in two respects: where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine.
. . .
We have come to the conclusion that an implied provision against the right to discharge is not enough.
The written city personnel policy introduced by appellant provides that "[a]n employee who gives unsatisfactory service is subject to dismissal by the Mayor with the approval of the City Council." That does not constitute an express provision against termination except for cause.
The minutes of a meeting of the city council likewise do not afford any relief to appellant. Two different versions of the minutes of the same council meeting were introduced, and both were signed by the recorder-treasurer. One version, which is certified as the true and correct copy, recites that a councilman stated a reprimand policy. It does not set out the policy, nor does it reflect adoption by the council. The other form of the minutes, which is not certified, recites that "[t]he City would amend it[s] personnel policy to accept reprimands, there will be a minimum of 3 reprimands and at that time a dismissal, this would be for all City employees." Although three council members testified that the three reprimand policy was in effect at the time of appellant's discharge, neither of the personnel policies which were introduced at trial contained the policy. The record simply does not establish that there was an express provision against termination except for cause, either in the personnel policy or in the minutes.
Even if the personnel policy provided for discharge only with cause or even if the minutes clearly reflected that the council voted for a policy of no discharge until after three reprimands, the appellant would not prevail in this case because state law provides that a city marshal may be discharged by the mayor, subject only to an override by a two-thirds vote of the city council. Ark. Code Ann. 14-44-111 (1987) [Ark. Stat. Ann. 19-1103.2 (Repl. 1980)]. The appellee has neither pleaded nor argued that the city should be estopped from applying the controlling state statute and therefore, we do not consider the issue. See Foote's Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). See also, Annot. 21 A.L.R. 4th 565 (1983). Therefore, the appellant was an employee at will and his discharge was not wrongful.
Appellant next argues that the city council later overrode the mayor's action. The argument is without merit. The city council refused to override the discharge, and the mayor appointed a temporary marshal. The city later took applications for the job, and appellant, along with others, submitted his application. He was ultimately rehired to fill the vacancy. This was not a statutory override.
Affirmed.
GLAZE, J., concurs.