The recent firing of former Deputy City Fire Chief Jeff Burkhart has many pondering what the city code states on the issue of city employee discipline, termination and due process. A review of the city code due process guidelines shows the following:
PART II CODE OF ORDINANCES
TITLE 1 ADMINISTRATION, OFFICERS, AND PERSONNEL
Chapter 13 PERSONNEL
Sec. 1-1316. Disciplinary action.
(c) Minimum due process. All regular employees will be afforded the benefit of due process. Due process requires that established rules and procedures for disciplinary action are followed and that employees have an opportunity to respond to charges made against them prior to the decision on the disciplinary action to be taken. Due process consists of the following:
(1) Employees shall be notified of the charges against them. Such notification will detail times, places, and other pertinent facts.
(2) The notification will provide for the employee to have a pre-decision discussion. The employee shall be given a reasonable period of time to prepare to answer charges and present information which might influence the disciplinary decision.
(3) The person conducting the pre-decision discussion will be a department head or the senior supervisor in the employee’s work unit.
(4) The meeting outlined above shall be for the purpose of allowing the employee to present information to the manager regarding the disciplinary action under consideration.
5) The discussion shall be informal. The employee shall have the right to present written statements or witnesses or any other information with regard to the charges. Attendance and participation by persons other than the department head and the employee shall be at the discretion of the department head.
(6) If the employee declines the opportunity to have the discussion or present information, the provisions of this section are deemed to have been met.
(d) Cause. Disciplinary actions will be based on cause or sufficient reason, as outlined in section 1-1317 of the City Code.
[Here is sec. 1-1317: Sec. 1-1317. Conduct which could cause disciplinary action. )
The following actions may cause disciplinary action up to and including dismissal:
(1) Abusive and inconsiderate treatment of the public or co-workers.
(2) Conviction of a criminal charge.
(3) Willful destruction of city property.
(4) Stealing, deceit, or other dishonesty.
(5) Conduct below the standard of the department.
(6) Reporting to work under the influence of alcohol or drugs, or the use of same on duty.
(7) Disloyalty to the aims and ideals of the department.
( 8 ) Excessive tardiness, absences, or abuses of leave of absence, sick leave, etc.
(10) Insubordination or failure to carry out instructions or job assignments.
(11) Violation of rules and regulations of the department or any other failure of good behavior which reflects discredit upon an employee, the department, or the city government.
(Ord. No. 50-2005-06, 1-5-06)]
Continuation of Sec. 1-1316. Disciplinary action:
(e) Actions for which employees may not be disciplined. Actions for which employees MAY NOT BE DISCIPILINED include:
(1) Conditions controlled by equal employment opportunity law such as race, religion, national origin, sex, age, disability, or military status.
(2) Union activities as determined by law.
(3) Reporting Occupational Safety and Health Act (OSHA) violations, or cases of waste, fraud, and abuse.
(4) Refusing to perform an unusual work assignment which the employee justifiably believes to be hazardous or life-threatening.
(5) Refusing to perform an act which is clearly in violation of the law.
(f) Disciplinary process.
(1) Employees other than department heads or city officials.
a. Disciplinary action up to, and including, a written reprimand will be conducted by supervisory personnel within the city department. Written reprimands will be authenticated by the department head before they are placed in the employee’s official personnel file in the human resource department.
b. Offenses or conduct which would warrant suspension, demotion or termination will be thoroughly investigated and documented at the department level and the employee will be afforded due process as outlined in subsections (a)(1) through (6) above. If suspension, demotion, or termination is recommended, the department head will forward the results of this investigation and all supporting documentation, with a recommendation for appropriate disciplinary action, to the human resources director. The human resources director will verify that the employee was afforded due process and that the recommended disciplinary action is appropriate and consistent. The human resources director will then inform the employee in writing of the disciplinary decision and will advise the employee of his or her right to appeal. The employee will have seven (7) calendar days to appeal the decision by notifying the human resources director in writing and posting a $50.00 “appearance deposit” which will be refunded at the completion of the appeals hearing. If the employee who is appealing the disciplinary action does not appear for the hearing the $50.00 deposit will be forfeited and the recommended discipline will stand. Also, if the employee does not wish to appeal the decision, the disciplinary action will stand.
c. If an employee exercises his or her right to appeal the recommended disciplinary action, a hearing committee comprised of two (2) randomly selected city council members and one randomly selected employee of equal pay grade will be appointed by the mayor to hear the appeal. The committee will be convened within fourteen (14) calendar days of the receipt of the appeal request by the employee or as soon thereafter as possible. The employee will be advised of the time and place of the hearing and informed thathe or she may be represented by counsel of their choosing at their own expense. The employee shall have the right to appear and defend in person or by counsel and have the process of the city council to compel the attendance of witnesses in his or her behalf. The sole issue to be decided by the committee is whether there is just cause to support the disciplinary action. Upon review, the committee should determine whether the decision of the department head is supported by substantial and material evidence.If the committee determines that the decision of the department is, in fact, supported by substantial and material evidence of cause, the recommended disciplinary action shall be affirmed. Deliberation will occur openly and in public. After reaching a decision the committee will so notify the mayor and the employee in writing. The mayor may, upon his own initiative or upon the written request of either party, review the committee’s decision, and affirm, modify, or reverse it. A request for review of the committee’s decision shall be filed with the mayor within ten (10) days of the decision. If no request is filed, or if, after receiving a request, the mayor decides to take no action within ten (10) days, the committee’s decision shall stand as final. The director of human resources shall make the record of the hearing before the committee available for the mayor in each such case.
d. Anyone removed or dismissed may appeal through the courts of Montgomery County, Tennessee, by filing the customary appeal bond; but he or she shall not exercise any of the functions of their office during the time such appeal is pending and their compensation will be withheld pending final adjudication.
(2) Department heads and city officials.
a. This section applies to heads of major departments and these city officials: city attorney, city clerk, city engineer, and commissioner of finance and revenue.
b. The mayor will present the charges and provide due process, and department heads and city officials will be afforded the same process as other employees, except that they may appeal to the city council instead of a hearing committee. The final decision as to suspension, demotion, or termination will be upon a majority vote of the city council. The city council may sustain the action of the mayor or may reinstate the department head or city official without loss of compensation, or upon such other terms andconditions as the city council may prescribe. If the suspended, demoted, or terminated department head or city official is unwilling to abide by the decision of the city council, he or she will stand discharged as of that date. Department heads and city officials may appeal through the courts of Montgomery County, Tennessee, under the same terms and conditions as other employees.
(Ord. No. 50-2005-06, 1-5-06)
The question for many is, was Burkhart still just an employee of the city or was he already a Dept. head, as some have claimed?
If a dept. head, then due process was not followed because it takes the Council as a BODY to hear his case and this did not occur.
If he was a city employee, then the hearing panel appears derelict in their duties. It violated the City Code’s Due Process Procedure and denied Burkhart due process protection by sustaining his termination even though the facts showed (1) he was not qualified for the building and codes position, and to accept the position would clearly be in violation of the law (the city code) and (2) he felt the position to be hazardous or life-threatening. The hearing panel violated sections 1-1316(e)(4) and (5) of the city code cited above.