CITY OF DURANT v. CICIO

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CITY OF DURANT v. CICIO
2002 OK 52
50 P.3d 218
Case Number: 94498
Decided: 06/18/2002
Mandate Issued: 07/11/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

In the Matter of the Appeal of the City of Durant, a municipal corporation, CITY OF DURANT, Plaintiff/Appellant
v.
CHRIS CICIO, Defendant/Appellee

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I

¶0 City of Durant brought action for Declaratory Judgment and Appeal from hearing held pursuant to

CERTIORARI PREVIOUSLY GRANTED;
OPINION OF THE COURT OF APPEALS VACATED;
JUDGMENT OF THE DISTRICT COURT AFFIRMED.

P.L.Pat Phelps, City Attorney, Durant, Oklahoma, Attorney for Appellant
James Patrick Hunt, James R. Moore & Associates, Oklahoma City, Oklahoma, for Appellee.

SUMMERS, J.

¶1 A statute,

¶2 We previously granted certiorari to Officer Cicio's petition to consider issues regarding the construction of § 50-123, in particular its reach, and to determine whether its provisions conflict with those of

¶3 Section 50-123 appears in Title 11, Article L. Police Pension and Retirement System, Part 1, Municipal Police Pension and Retirement System, and provides in pertinent part as follows:

A. The governing body of every participating municipality, except municipalities which have provided for a civil service board of review or merit board, or have negotiated a contract covering discharge with their members to hear such appeals, shall establish a board of review to hear appeals concerning the discharge of members. The board of review shall consist of the mayor, ex officio, who shall be a voting member, and four members to be appointed by the governing body of the participating municipality, as follows:1. Two police officers retired or active from the police department of the municipality; and 2. One attorney and one licensed physician residing in the municipality. . . .

B. No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided. Appeals from decisions of said board of review may be taken in the manner provided for in this article, provided the provisions of this section relating to the board of review and discharge shall not apply to any municipality which has heretofore or hereinafter established by its charter civil service or merit system pertaining to the appointment and discharge of members and an independent board or commission having authority to hear actions involving the discharge of members. (emphasis added)

¶4 The pertinent portion of

"The city manager shall be the chief executive officer and head of the administrative branch of the city government. He shall execute the laws and administer the government of the city, and shall be responsible therefor to the council. He shall:

1. Appoint, and when necessary for the good of the service, remove, demote, lay off or suspend all heads of administrative departments and other administrative officers and employees of the city except as otherwise provided by law. The manager or the council by ordinance may authorize the head of a department, office or agency to appoint and remove the subordinates in such department, office or agency;" (emphasis added)

¶5 Title 11 § 50-120 provides:

Appointments and promotions in the service of a statutory council-manager city shall be made solely on the basis of merit and fitness; and removals, demotions, suspensions, and layoffs shall be made solely for the good of the service. The council by ordinance may establish a merit system and provide for its organization and functioning, and provide for personnel administration and regulation of personnel matters. (emphasis added)

¶6 The facts are not in dispute. Officer Cicio was employed as a police officer by the City of Durant, and in 1998 he was fired from that position by the city manager for "the good of the service." He was a participant in the police pension system. Relying on the provisions of § 50-123, Cicio demanded the City convene a "board of review" to hear an appeal of his discharge, which he asserted was expressly required to determine whether he was fired "for cause."

¶7 The City at first refused to grant his request because it did not agree that the statute could be interpreted to apply to issues beyond an officer's pension and retirement benefits. Later, Officer Cicio did assert that the termination had resulted in the loss of his ability to participate in the state police pension program. Ultimately the City of Durant empaneled a board of review, and although the City contended the scope of the board's authority to review was limited to pension issues, the board nonetheless undertook consideration of the merits of the city manager's decision to discharge Officer Cicio, and directed that he be reinstated to employment with the police force.

¶8 The City of Durant then brought this declaratory judgment action in the trial court [50 P.3d 220] seeking to establish the parties' rights under § 50-123, and a declaration that the city was not required to follow the procedures set forth therein to review decisions to discharge a police officer. Durant titled its action "Declaratory Judgment and Appeal from Board of Review" but did not pursue an appeal of issues concerning the correctness of the decision which the Board reached as to Cicio's dismissal. The City contended it challenged only the interpretation and application of § 10-123 regarding the power of the Board to review employment decisions which were made by the city manager pursuant to statutory authority set forth in § 10-113 and § 10-120.

¶9 The trial court ruled against the City. It agreed with Officer Cicio, found that § 50-123 did apply to this case, and imposed an obligation on the City to provide a "for cause" review of the discharge of a police officer who is a participant in the pension and retirement system. The trial court denied City's prayer for relief and refused to overturn the Board's ruling in favor of Cicio's reinstatement to the police force.

¶10 The City of Durant appealed the trial court's order, asserting that § 10-113 and § 10-120 vest the city manager with the absolute discretion to hire and fire all "at-will" municipal employees, which, City argues, includes a police officer such as Officer Cicio. It contends that § 50-123 imposes no obligation on the City to provide review of that termination decision. Relying primarily on Rains v. City of Stillwater,

¶11 Officer Cicio argues that § 50-123 is applicable to this matter, and that the statute's provisions entitled him to a review by the Board of the decision to terminate his employment. That would be true, he submits, even if § 10-113 did not contain the "except as otherwise provided by law" caveat. He argues this is so because it is well settled that the specific statute will control where a general statute and a specific statute conflict with other. Duncan v. Nichols Hills,

¶12 Section 50-123 is specifically directed at the members of the police pension and retirement system, prohibiting their discharge "except for cause" and granting an appeal to a board of review, whereas § 10-113 applies generally to municipal administration, authorizing the city manager to exercise discretion in appointing and removing officers and employees, when necessary for the good of the service, except as otherwise provided by law. In Hall v. O'Keefe,

¶13 The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be accorded meaning as expressed by the language employed. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City,

¶14 Section 50-123 is not ambiguous, and it is clearly intended to protect policemen who are members of the state pension and retirement system from arbitrary discharge from employment. Contrary to the City's assertions that these members are at-will [50 P.3d 221] employees, the statute restricts the reason for their discharge to "for cause" and ensures that all members will have a right to appeal the discharge from employment. This accords members a legitimate expectation of continued employment until "cause" for discharge is shown. The statute requires that unless an appeal process is already in place in a municipality (by means of a civil service or merit board or a negotiated contract covering discharge of their members to hear appeal), the municipality must appoint a board of review to hear appeals from a discharge from employment. § 50-123(B).

¶15 The City of Durant relies on the reasoning and holding of Rains v. City of Stillwater, 1991OK. CIV.APP. 87,

¶16 We are not persuaded by Durant's arguments. First, we note that its reliance on Rains and the " home rule" line of argument is not well taken, since Durant concedes that it is not a charter city, but rather is a statutory council-manager city. See, 11 O.S.1991, § 10-101. Also unconvincing is Durant's contention that we should uphold its position even though it is not a charter city because the "good of the service"provision of § 10-113 is identical to the terms of the city charters placed at issue in Goodwin and Rains. The City contends that the absence of a charter should not be controlling, because issues regarding the prerogative of the city manager to act in accord with his statutory authority are no less important local concerns in cities relying on § 10-113 exclusively, than they are in cities relying on charters.

¶17 The protection of employment rights of policemen is not an issue of merely local municipal concern, however, and § 10-113 is not controlling here. By its own terms § 10-113 expressly provides that the discretionary power of a city manager to lay off employees "when necessary for the good of the service" is limited to situations which are not "otherwise provided by law, "and we find that the law controlling the issues presented here regarding Officer Cicio's termination is "otherwise provided" by § 50-123. We agree with Officer Cicio's argument that the home rule supremacy analysis on which Goodwin and Rains are based is no longer good law, as this Court has since determined that police and fire protection is unquestionably a matter of statewide interest.

¶18 In Tulsa v. Public Employees Relations Board,

¶19 Issues concerning the constitutionality of the provision of the Fire and Police Arbitration Act for binding interest arbitration in light of the home rule doctrine were before us in Fraternal Order of Police, Lodge No. 165 v. City of Choctaw,

¶20 In keeping with these decisions, in Bethany v. Public Employees Relations Board,

¶21 The statewide interest in the protection of the employment rights of member policemen from arbitrary discharge is reflected in the provisions of § 50-123, which prohibit discharge "except for cause" and assure all members of the System a right to appeal their discharge. A plain reading of the statute shows that this protection to members is not just a matter of local concern, since all members, even those such as Officer Cicio who are not covered by an existing civil service or merit system or a negotiated contract, are entitled to a review of their discharge. All aspects of the administration and operation of the statewide Oklahoma Police Pension and Retirement System, set forth in

¶22 Title

¶23 We hold that section 50-123 protects a member's right to continue in his employment in the absence of a showing of cause, and the board of review has the authority to pass on the merits of the discharge decision. Today's ruling finds support in Ruddell v. City of Jenks,

¶24 The trial court correctly found that

¶25 HARGRAVE, C.J., LAVENDER, OPALA, KAUGER, SUMMERS, BOUDREAU, JJ. - Concur

¶26 WATT, V.C.J. - Concurs in Result