For second month, city discusses personnel matters.
The city of Cumby is unable to determine how municipal officers are dismissed from their position, per a discussion at the regular September city council meeting on Tuesday evening.
During the previous August regular meeting and again during the September, “deliberations regarding… duties, discipline or dismissal of a public officer or employee” appeared under executive session for the council.
Cumby city attorney Jay Garrett told council members and citizens he believes only the mayor has the ultimate authority to fire public officers of the city.
"The mayor is the chief executive officer of the city," Garrett stated.
Garrett based this opinion on local government code section 22.010 subchapters B and C, which state: “If a vacancy exists in a governing body, the mayor or acting mayor shall appoint a person to fill the vacancy, subject to confirmation by the governing body.”
In Garrett’s opinion, he said, this means the city council need only confirm a mayor’s appointment, yet the council plays no role in the dismissal of an employee. In the terms of an “elected marshal,” such as a police officer, said Garrett, section 22.076(b) provides that the officer “may not be removed from office.”
However, citizen Sheryl Lackey argued that the city council had the power to dismiss an employee such as a police officer. Lackey cited local government code 22.071 subsection B, which states “if the governing body lacks confidence in a municipal officer, appointed by a governing body, the governing body may remove the municipal officer at any time… if two thirds of the elected aldermen vote in favor of a resolution declaring lack of confidence.”
Lackey also city local government code 22.077, which states that government officials can be removed in cases of “incompetency, corruption, misconduct, or malfeasance in office after providing an officer due notice and an opportunity to be heard.”
Lackey cited a 1991 opinion given by former attorney general Dan Morales, which states, “A Type-A city council has final hiring authority for all officers and employees, even if the city has delegated initial hiring authority to an individual under Chapter 22 of the Local Government Code.” This was the same chapter Garrett had cited earlier.
“I’m not understanding how I’m not understanding, because to me it’s pretty black and white,” Lackey stated.
“We’ve moved beyond that,” Garrett replied. “That’s just an opinion by the attorney general, that is not law and is not enforceable in a court.”
“So if I do an open records request and you give me an attorney general’s opinion, I can fight that because it’s just an opinion?” Lackey asked. Garrett answered yes.
Mayor Doug Simmerman declined to disclose the person or persons the city was considering dismissing.
After undergoing an executive session from 7:57 to 8:34 p.m., the council did not take any action regarding the duties, discipline or dismissal of a public officer or employee.