COA majority: Mayor has power to terminate utility superintendent

The Indiana Court of Appeals reversed summary judgment in a split decision Wednesday for former city of Lawrence Utilities Board Superintendent Carlton Curry, finding the newly elected mayor had authority to terminate Curry’s employment and therefore Curry can't prevail on a wrongful discharge claim.

The COA also affirmed the trial court that Curry has no right to recover under the Wage Payment Statute.

Curry was named superintendent of the city of Lawrence Utilities Service Board in 2009 and stayed in that position until January 20, 2012, when new mayor Dean Jessup terminated his employment. Jessup and Curry had disagreements about whether a new wastewater treatment plant should be built in Lawrence, and Jessup wanted a superintendent who would implement his own objectives.

At the end of 2012, Curry filed a complaint against the city, the utility services board and Jessup, alleging federal and state claims, which was moved to federal court. The District Court granted summary judgment on Curry’s federal claims in 2014 and remanded the case to state court for consideration of his state law claims. Those claims are wrongful discharge, defamation, intentional interference with employment relationship and the Wage Payment Statute Claim.

The trial court granted summary judgment for Curry on the wrongful discharge claim, granted summary judgment for the government on the defamation and Wage Payment Statute claims, and denied summary judgment on the intentional interference claim. The government filed an interlocutory appeal on the wrongful discharge and intentional interference claims. Curry cross-appealed on the Wage Payment Statute claim.

In the decision written by Judge John Baker, the COA ruled that the mayor has the ability to remove the utility superintendent without cause because the statute regarding that position, I.C. 8-1.5-3-5, doesn’t mention the mayor does not have power to remove him. “We infer from the legislature’s silence that the authority to terminate a superintendent without cause is not vested solely in the USB; similarly, we infer from the legislature’s silence that the superintendent is not entitled to notice or a hearing when he is terminated without cause,” Baker wrote.

Baker wrote that if this weren’t the case, the position of utility superintendent would be a lifetime position, which the COA did not think was the Legislature’s intent. One purpose of the statute could be to act as a check on the mayor’s power; if they mayor hired someone who deserved to be fired, but the mayor did not want to fire him, the utility board could do it for cause. However, the statute did not limit the mayor’s power to terminate the position.

Also, the utility board exercised its approval of the mayor’s actions by unanimously appointing the mayor’s replacement, so even if the mayor didn’t have authority, the board approved his action.

The COA also ruled Curry is not entitled to any wages under the Wage Payment Statute. Curry has not been working at his job since he was terminated, so it doesn’t matter whether he was effectively discharged. If he were to receive payment for work he had not performed, it would be an undeserved windfall.

Judge Elaine Brown agreed on the Wage Payment Statute ruling, but dissented on the majority’s reversal of summary judgment for Curry. Brown disagreed that by granting summary judgment for Curry it creates essentially a lifetime appointment. She thought that there could still be circumstances the board could remove the superintendent for cause and the majority interpreted “for cause” too narrowly.

She also thought Curry’s intentional interference claim contained determinations of fact that could not be resolved on summary judgment.

The case is City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in His Official Capacity v. Carlton E. Curry, 49A02-1506-CT-699.

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