Attorneys for former Smithville Police Chief Randy Caplinger have filed a lawsuit against the City of Smithville in DeKalb County Circuit Court.
Sarah Cripps and Brandon Cox filed the suit on June 4, asking the court to "construe the charter for the City of Smithville and to determine which provision controls and governs the number of votes required by the Board of Aldermen to ratify or confirm the mayor's decision to remove an employee of the city."
The suit claims that "…the failure of the mayor and board of aldermen to convene a meeting for the purpose of voting upon whether or not to ratify the mayor’s unilateral decision to suspend the plaintiff without pay is in direct violation and contravention of section 3.08 of the charter of the City of Smithville," and asks that the court "hold and declare that Caplinger's suspension without pay effective March 13, 2015 is invalid, and hence, a nullity," and that Caplinger should "receive all accrued back pay from March 13, 2015 until the date of the hearing in this cause."
The suit also questions the validity of seven-hour due process hearing in May, in which city aldermen upheld the chief’s termination by a 3-2 vote. Aldermen Jason Murphy, Gayla Hendrix and Danny Washer voted in favor of the firing, while Josh Miller and Shawn Jacobs voted against the action, and told the rest of the board that they had spoken with representatives of the Municipal Technical Advisory Service (MTAS), who told them that the charter, according to section 3.08, required four out of five votes to approve the mayor’s action.
City Attorney Vester Parsley, however, cited another part of the charter, section 3.08, which requires "a majority of the board," or three out of five votes, to approve the mayor’s removal of an employee, and recommended that the aldermen follow that section.
Section 3.01, subsection (2) of the charter reads: "All officers and employees of the city, except as otherwise specifically provided by ordinance, shall be appointed and removed by the Mayor but only with the approval of at least two-thirds (2/3) majority vote of the Council present voting upon the appointment or removal, and the employees shall be under the direction and control of the Mayor."
Section 3.08 reads: "The Mayor, or the City Administrator, if established by the Board, may, with the approval of a majority of the Board, make appointments, promotions, transfers, demotions, suspensions, and removal of all employees."
The suit reads: "It is patently obvious to even the most casual reader that Section 3.01(2) and Section 3.08 are in direct conflict with one another. It is equally obvious that Section 3.01(2) of the charter is the more specific provision as compared with Section 3.08 for the following reasons. First, Section 3.01(2) is narrow in its scope. Indeed, Section 3.01 specifically delimits and restricts it application only to appointment and removal of officers and employees of the City of Smithville. Second, Section 3.01 specifically enumerates that for these ultimate decisions affecting employment, the mayor’s action must be ratified or confirmed by a supermajority of two-thirds (2/3) of the board members present and voting upon the question.
"By contrast, Section 3.08 is broad and expansive in its scope, and by its plain language governs a wide array of employee actions including the appointment, promotion, transfer, demotion, suspension or removal of "all employees," permits all of the foregoing employment actions to be undertaken unilaterally either by the mayor or city administrator, and requires that the mayor or city administrator’s action be confirmed by a simple majority of the board."
The suit also contends that section 3.08 of the charter was violated when the aldermen were not assembled for a vote to ratify the mayor's unilateral suspension of Caplinger before the hearing on his termination.