City of Pine Bluff, Arkansas v. Southern States Police Benevolent Association, Inc., and Robert Henderson
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SUPREME COURT OF ARKANSAS
No.
07-811
CITY OF PINE BLUFF, ARKANSAS,
APPELLANT,
VS.
SOUTHERN STATES POLICE
BENEVOLENT ASSOCIATION, INC.,
AND ROBERT HENDERSON,
APPELLEES,
Opinion Delivered
May 29, 2008
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
NO. CV-2007-354-2,
HON. ROBERT HOLDEN WYATT,
JR., JUDGE,
REVERSED AND REMANDED.
ANNABELLE CLINTON IMBER, Associate Justice
The City of Pine Bluff appeals from an order of the Jefferson County Circuit Court
granting a permanent injunction in favor of Appellees, the Southern States Police Benevolent
Association, Inc., and Robert Henderson. The circuit court found that the Pine Bluff City
Council had passed an ordinance removing all members of the civil service commission by
less than a two-thirds vote and without cause, in violation of Ark. Code Ann. § 14-50-210
(Repl. 1998).1 The city alleges that the circuit court’s ruling was in error for three reasons:
1) Arkansas law allows a city to abolish its civil service commission by majority vote; 2) the
Section 14-50-210, which provides that a city council, by a two-thirds vote, may remove
a civil service commissioner during his or her term of office for cause, is part of the chapter
governing civil service systems for nonuniformed employees of cities with populations between
20,000 and 75,000. See Ark. Code Ann. § 14-50-101 (Repl. 1998). Section 14-51-210, which is
part of the chapter governing civil service systems for police and fire departments, and which is
actually at issue here, is essentially identical to section 14-50-210. See Ark. Code Ann. §§ 14-51101–14-51-102 (Repl. 1998) and Ark. Code Ann. § 14-51-210 (Repl. 1998).
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city council’s abolishment of the civil service commission complies with the due-process
requirements of the United States Constitution; 3) Appellees’ claim of a contractual right in
the conditions of employment is irrelevant to the city’s ability to abolish its civil service
commission. Because this appeal involves a substantial question of law concerning the
interpretation of an act of the General Assembly and an ordinance of a municipality, our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(6) (2007). We agree with the city’s
argument as to the first point; accordingly, we reverse and remand for decision on the
remaining points.
On August 16, 1949, the Pine Bluff City Council passed Ordinance No. 2994 by
majority vote. The ordinance established the city’s civil service commission and was deemed
“necessary for the preservation of the public health, peace and safety and for the proper
administration of the Police and Fire Departments” of the city. At that time, Act 28 of 1933
required the city council or other governing body of all cities having an organized fire
department and all cities of the first class having a police department to establish a civil service
commission for the police and fire departments.
1933 Ark. Acts 28.
Civil service
commissions were to “prescribe, amend and enforce rules and regulations governing the fire
and police departments of their respective cities[.]” 1933 Ark. Acts 28. The “Rules and
Regulations” ultimately adopted by the Pine Bluff Civil Service Commission defined the
purpose of the commission and its rules as follows:
It is the purpose of these rules to establish procedures for handling
personnel activities and transactions provided for in the Civil Service Law and
in such manner as to insure that the primary and controlling factor in making
appointments and dismissals, in determining promotions and demotions, and
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in doing all other things which may in any way affect any employee or
prospective employee coming within the purview of the Act will always be the
merit and fitness of the individual concerned without regard to race, color,
national origin, religion, sex, political opinions or affiliations.
Act 166 of 1971 removed the requirement of the establishment of a civil service
commission, stating instead that cities of the first class “may establish a Board of Civil Service
Commissioners for the Police and Fire Departments of such cities.” 1971 Ark. Acts 166
(emphasis added).2 Act 166 is currently codified in part at Ark. Code Ann. § 14-51-102
(Repl. 1998). In accordance with section 14-51-102, the Pine Bluff City Council enacted
Ordinance No. 6221 by majority vote on April 16, 2007. Ordinance No. 6221 purports to
repeal Ordinance No. 2994 and abolish the civil service commission and the entire civil
service system for uniformed employees of the city. The ordinance passed with five votes in
favor and three against.
On April 17, 2007, the Southern States Police Benevolent Association and Henderson,
as a representative of a class consisting of Pine Bluff police officers, filed a complaint against
the city in the circuit court. The complaint alleged that the city council acted contrary to
Arkansas law in passing the ordinance by less than the required two-thirds vote, that the civil
service statutes do not provide for the abolishment of a civil service commission, that the
council’s actions deprived class members of property and contract rights in violation of the
Fifth and Fourteenth Amendments to the United States Constitution, and that the council
acted in bad faith by passing Ordinance No. 6221 for personal reasons. Accordingly, the
The parties in the case at bar agreed that Pine Bluff is a city of the first class.
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Association and Henderson requested a declaratory judgment declaring Ordinance No. 6221
null and void, ordering that it have no effect, and reinstating the civil service commission.
They also requested that the court temporarily and permanently enjoin the city from
abolishing the civil service commission.
The circuit court issued a temporary restraining order on the same date, enjoining the
enforcement of Ordinance No. 6221 until the matter could be heard. The city filed an
answer as well as a counterclaim for declaratory judgment, seeking a declaration that the
enactment of Ordinance No. 6221 was lawful and effective and that the city had the right to
abolish and had in fact abolished the civil service commission. Following a hearing on the
complaint and counterclaim, the circuit court entered an order making permanent the
previously entered temporary restraining order. Specifically, the court found that the city
council had removed all members of the civil service commission by less than a two-thirds
vote and without cause, in violation of Ark. Code Ann. § 14-50-210 (Repl. 1998). Thus,
the court declared Ordinance No. 6221 to be “null, void, and of no effect.” The city filed
a timely notice of appeal.
The first issue before us involves the interpretation of Ark. Code Ann. § 14-51-210.
We review issues of statutory interpretation de novo. Maddox v. City of Fort Smith, 369 Ark.
143, ___ S.W.3d ___ (2007). It is for this court to decide what a statute means. Id. In this
respect, we are not bound by the trial court’s decision; however, in the absence of a showing
that the trial court erred, its interpretation will be accepted as correct on appeal. Id. When
reviewing issues of statutory interpretation, we are mindful that the first rule in considering
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the meaning and effect of a statute is to construe it just as it reads, giving the words their
ordinary and usually accepted meaning in common language. Id. When the language of a
statute is plain and unambiguous, there is no need to resort to rules of statutory construction.
Id. A statute is ambiguous only where it is open to two or more constructions, or where it
is of such obscure and doubtful meaning that reasonable minds might disagree or be uncertain
as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and we
will not search for legislative intent; rather, that intent must be gathered from the plain
meaning of the language used. Id. We are very hesitant to interpret a legislative act in a
manner contrary to its express language, unless it is clear that a drafting error or omission has
circumvented legislative intent. Id.
Section 14-51-210, titled “Removal of commissioner,” reads as follows, in its entirety:
(a) The city council or governing body of the city, by a two-thirds (2/3) vote,
may remove any of the commissioners during their term of office for cause.
(b) In the event of the removal of one (1) or more of the commissioners, the
council or governing body shall fill the vacancy created by the removal.
Ark. Code Ann. § 14-51-210 (Repl. 1998). We have interpreted this language, as it
originally appeared in Act 28 of 1933, and stated that “the meaning here is plain that the city
council, by a two-thirds vote, could remove for cause one, or all, of the civil service
commissioners by the resolution . . . and that it had the right to determine what would be a
sufficient cause, the statute being silent as to the method of removal or the specific cause for
which the commissioners may be removed.” McAllister et al. v. McAllister et al., 200 Ark. 171,
178, 138 S.W.2d 1040, 1044 (1940). However, as the City of Pine Bluff notes, the resolution
at issue in McAllister attempted to remove individual commissioners from office; it did not
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attempt to abolish the commission altogether. We agree that McAllister is inapposite.
We have, more recently, addressed the abolishment of commissions by city councils.
In City of Ward v. Ward Water and Sewer System by Pehosh, 280 Ark. 177, 655 S.W.2d 454
(1983), the Ward City Council, by majority vote, enacted an ordinance providing for the
abolishment of the Ward Water and Sewer Commission, which the council had previously
created by ordinance. At issue was the predecessor to Ark. Code Ann. § 14-234-305 (Repl.
1998), which provides that any commissioner on a waterworks commission may be removed
for cause upon a two-thirds vote of the duly elected and qualified members of the city
council. Id. In addressing the argument that the Water and Sewer Commission could only
be abolished by a two-thirds vote and with cause, we held that “[t]he removal of one or more
commissioners for cause cannot be equated with the abolishment of the commission itself,
although it has the obvious effect of separating the commissioner from the office he holds.
But he has not been removed, the office itself has been terminated.” Id. at 178, 655 S.W.2d
at 455. We observed that no statute expressly permitted the abolishment of the commission
but also that no statute restricted the power of the city to do so. Id. We held that the city
council thus had the power to abolish the water and sewer commission, noting that the
question of whether the abolishment would be in the city’s best interest was not before us.
Id.
In accordance with this precedent and with our standard of review for statutory
interpretation, we hold that the circuit court erred in determining that Ark. Code Ann. § 1451-210 is applicable to the abolishment of a civil service commission. Under the plain
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language of the statute, it applies only to the removal of individual commissioners, and not
to the abolishment of a commission altogether. Pursuant to subsection b of section 14-51210, which provides that the council shall fill a vacancy created by the removal of one or
more commissioners, replacement of commissioners subject to removal is mandatory; thus,
the commission could never be abolished pursuant to the terms of this statute, by a two-thirds
vote or otherwise.
Moreover, as we stated in City of Ward, supra, the removal of
commissioners cannot be equated with the abolishment of a commission. City of Ward, like
the instant case, involved a commission created by the city council, the establishment of
which was not legislatively required. See Ark. Code Ann. § 14-234-303 (Supp. 2007). The
removal statute for waterworks commissions imposes the same requirements as the statute at
issue here. See Ark. Code Ann. § 14-234-305 and § 14-51-210. It is well settled that any
interpretation of a statute by this court becomes a part of the statute itself. Combs v. City of
Springdale, 366 Ark. 31, 233 S.W.3d 130 (2006). Since our 1983 decision in City of Ward,
wherein we held that the city was not deprived of the power to abolish its water and sewer
commission, the legislature has not chosen to apply the removal requirements to the
abolishment of waterworks commissions.
Accordingly, we hold that the removal
requirements of Ark. Code Ann. § 14-51-210 do not apply in the case of abolishment of a
commission. The Pine Bluff City Council was free to abolish its civil service commission by
majority vote.
The Association and Henderson argue that the legislature’s intent to insulate civil
service commissions from political influence requires that the bar to abolishment be higher.
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We hold that the statute is unambiguous, meaning there is no need to infer legislative intent.
We also note, however, that we disposed of the same concern in City of Ward:
The requirement . . . that a commissioner can be removed only for cause by
a two-thirds vote is doubtless intended to promote the autonomy of the
commission and to insure its independence, but the provision cannot be
construed by implication to curtail the power of a legislative body to undo by
majority vote what it is empowered to do by majority vote.
City of Ward, 280 Ark. at 178-179, 655 S.W.2d at 455. The wisdom of the city council’s
decision to abolish the civil service commission is not for us to decide. We merely hold that
it is within its authority to do so.
In City of Ward, we reversed the lower court’s ruling that the city council had not
legally abolished the commission on the basis of “the settled rule of law that whatever a
municipal government may do by a majority vote, it may undo by majority vote, absent
constitutional or statutory restrictions.” Id. at 179, 655 S.W.2d at 456. The general rule is
similarly operable in the instant case. Because Ark. Code Ann. § 14-51-210 is not applicable
in this situation, and because the Pine Bluff City Council was free to establish its civil service
commission by majority vote, it is free to abolish its civil service commission by majority vote
as well.
Other arguments for reversal are propounded by the city, namely, that the due-process
and contractual-rights claims alleged by the Association and Henderson below are without
merit. In addition, the Association and Henderson assert that the actions of the city council
were taken in bad faith, thus precluding their right to repeal Ordinance No. 2994. These
arguments were not properly preserved for our review, as the circuit court did not provide
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a ruling on them. It is well settled that to preserve arguments for appeal, even constitutional
ones, the party making the argument must obtain a ruling below. City of Barling v. Fort
Chaffee Redevelopment Authority, 347 Ark. 105, 60 S.W.3d 443 (2001). Therefore, we remand
for decision on these points.
Reversed and remanded.
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