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Justices hold mayor lacked authority to fire utilities superintendent

February 8, 2017

A divided Indiana Supreme Court held Wednesday that a mayor did not have statutory authority to terminate his city’s utilities superintendent, writing in an opinion that “may well offend sound public policy” that only the utilities board can terminate the superintendent with cause, notice and a hearing.

When Dean Jessup was elected mayor of Lawrence, Carlton Curry, who had been appointed superintendent of the Lawrence Utilities by the City of Lawrence Utility Board with the recommendation of the former mayor, expressed an interest in continuing his municipal service. However, after policy differences between the two men became apparent, the chairman of Jessup’s transition team informed Curry that he was terminated.

In response, Curry filed a complaint alleging state and federal claims against the city. While the federal court awarded summary judgment in the city’s favor, the Marion Superior Court granted summary judgment in Curry’s favor on his wrongful discharge claim, but found in the city’s favor as to back pay under the Wage Payment Statute. Additionally, the trial court denied summary judgment on an intentional interference claim.

On appeal, a divided Indiana Court of Appeals affirmed summary judgment for the city on the Wage Payment Statute issue, but reversed the denial of judgment for the city on the intentional interference and wrongful discharge claims. The case went before the Indiana Supreme Court in October, and in an opinion handed down Wednesday, the majority affirmed the Marion Superior Court’s original decisions.

Justice Mark Massa, writing for four of the five justices, first noted that although Lawrence Utilities is municipally owned, it is overseen by the board and operated by a board-appointed superintendent. The board was created under Indiana Code to control the city’s municipal utilities, so a “department of utilities” does not exist in Lawrence, Massa wrote. The lack of such a department removes the mayor’s statutory power to appoint or remove the superintendent, the justice wrote.

Further, Indiana Code 8-1.5-3-5(d) holds that “the superintendent may be removed by the board for cause at any time after notice and hearing.” Such clear and unambiguous statutory language means that only the board could have removed Curry from his position, and its members could only do so after notice and hearing, Massa said.

“While this outcome may well offend sound public policy, the Court has long noted and again recently reiterated that our job ‘is to interpret, not legislate, the statutes before (us),’” Massa wrote.

However, because Curry has not actually worked for the city since his termination, all justices, including dissenting Justice Steve David, found that he is not entitled to back payment under the Wage Payment Statute.

Finally, Massa wrote that there still exists a genuine issue of material fact as to whether the city intentionally interfered with Curry’s employment without a legitimate business purpose. Thus, the denial of summary judge in favor of the city on Curry’s tortious interference claim was proper.

In a dissenting opinion, David said he does not “believe there’s any indication that the legislature intended that a utility superintendent may only be removed by the board for cause and only after notice and a hearing.” Further, because he believes Curry was not wrongfully discharged, David wrote that the intentional interference claim must also fail.

“Here, because I believe the mayor had the authority to terminate Curry at will, it cannot be said that he acted without a legitimate business purpose,” David wrote.  

“More than that, even assuming arguendo that the mayor terminated Curry without proper authority pursuant to the statute, the record reflects he had legitimate business reasons for terminating Curry,” David continued, referencing the two men’s policy differences.

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, 49S02-1609-CT-481.
 

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