Justices hear arguments in Lawrence wrongful-firing suit

October 20, 2016

After the newly elected mayor of the city of Lawrence fired him from his position as superintendent of the city Utility Services Board, counsel for Carlton Curry told the Indiana Supreme Court Thursday that the mayor had no legal right to terminate the former superintendent without actual cause.

But if city executives have no legal right to appoint and remove department heads without cause when they begin a new administration, counsel for Mayor Dean Jessup argued, then city executives would have no personnel power at all.

In the case of City of Lawrence Utilities Service Board, City of Lawrence, Indiana and Mayor Dean Jessup individual and in his official capacity v. Carlton E. Curry, 49A02-1506-CT-00699, a trial court granted summary judgment in favor of Curry after finding that the case surrounding his termination could prevail on wrongful-discharge grounds. But a divided Indiana Court of Appeals reversed summary judgment in June, writing that Jessup did have the legal right to fire Curry and, further, that Curry could not recover under the Wage Payment Statute.

When the case went before the Supreme Court for oral arguments Thursday, Curry’s counsel, George Pendygraft, argued that Indiana Code section 8-1.5-3-4(a) calls for the board, not the mayor, to appoint its superintendent, subject to section 36-4-9-2, which allows the mayor to appoint department heads.

Although the board’s appointment authority is subject to the mayor’s, Pendygraft argued that section 36-4-9-2 could not apply in this situation because Curry was not a department head and because the city does not have a specific utilities department. Therefore, he said the authority of appointing Curry or another person to the superintendent rests only with the board and is not subject to the political changes associated with a new mayoral administration.

But Rosemary Borek, counsel for Jessup, argued that if the mayor had no authority to appoint the superintendent of the board, then the position could essentially become a lifetime position, regardless of who is in executive power.

Borek told the justices that there has to be a balance of power between the mayor’s statutory right to appoint or remove an employee at will and the board’s statutory right to remove its superintendent for cause.

“If cause were the only way to remove a superintendent, the result would be untenable,” Borek told the court. “The city executive would never be able to make a change in management to the city utility.”

Justice Geoffrey Slaughter said it appeared that Borek was improperly equating the appointment authority, which is given to the mayor, and the removal authority, which is given to the board. But Borek said not endowing an appointing party with removal powers would violate Article 15 Section 2 of the Indiana Constitution, which allows an appointing authority to set the duration of a position if the duration is not defined by state law.

However, even if Jessup did have the statutory authority to terminate Curry, Chief Justice Loretta Rush pointed out that there were other statutory violations in the termination process, specifically the fact that Jessup did not send a written explanation of Curry’s termination to the Lawrence City Council. That lack of notice was a central part of Pendygraft’s argument for the wrongful termination charges.

Borek acknowledged that the written notice part of the state statute was not carried out. However, while she said that portion of the statute is not necessarily superfluous, Borek also said it has no bearing on this case because the city council would not have had the authority to overrule Jessup’s personnel decision.

Further, Borek rejected Pendygraft’s claim that a Lawrence city utilities department does not exist, saying that the city does have in place a division of municipal utilities within its department of public works.

Much of the discussion surrounding Pendygraft’s argument focused on the definition of the term “for cause.” Both Rush and Justice Robert Rucker pointed to statements made by judges on the Indiana Court of Appeals and 7th Circuit Court of Appeals that implied that “for cause” could be a low threshold, even as low as the simple fact that a newly elected official could remove an employee due to concerns about political loyalty.

Pendygraft said he believed that the “for cause” threshold should be higher than that, but also pointed out that there was not yet a case that provided a legal definition of “for cause” that the justices could refer to.

During her rebuttal, Borek argued that the “for cause” issue should have no place in the case at all because requiring a cause for termination would lend itself to lifelong appointments absent any serious misconduct.

Oral arguments in the case may be viewed here.


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