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Todd v. Kelley3/10/2000
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"....
"Q. What gives the mayor authority to discharge an employee of the police department?
"....
"A. The mayor is over myself. The mayor makes the decisions to hire and fire. I can recommend."
Chief Bradley further testified:
"Q. Was there anything that you could have done to have reversed the mayor's decision to terminate Officer Todd?
"A. No, sir, I don't think so.
"Q. Is there anything that anybody else could have done to reverse the mayor's decision to terminate Officer Todd?
"A. I don't think so."
Praprotnik held that, to pinpoint where "final policymaking authority" lies, a municipality's organic law is critical, but not controlling. Praprotnik left open the possibility that a municipal official could delegate the authority given to him by the city's organic law to a subordinate (who is not empowered by the organic law) in such a way as to make the subordinate the final policymaker. See Praprotnik, 485 U.S. at 130. It appears to us that, although he is not the mayor's subordinate, Chief Bradley delegated (or abdicated)to Mayor Kelley the authority given to him by § 5.01 of the Police Manual to terminate police officers in his department, and that the delegation of authority, "although not authorized by written law or express municipal policy, `so ... well settled as to constitute a "custom or usage" with the force of law.'" Praprotnik, 485 U.S. at 127 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). We, therefore, hold that Mayor Kelley had final policymaking authority with respect to the firing of Officer Todd, and, therefore, in firing Todd, could subject the City of Millbrook to § 1983 liability.
Our conclusion as to the mayor's authority is bolstered by, although not dependent upon, the fact that Todd's termination was not subject to meaningful administrative review. Chapter VIII, Section 2.D., of the Personnel Rules states that " ny employee who is demoted, reduced in compensation, suspended without pay, or dismissed, has the right to appear before Arbitration Panel as hereinafter outlined." The arbitration panel is composed of three city employees who are "to hear employee grievances and to make recommendations thereon." The panel, which must convene within five working days of the employee's request, is empowered to hear the employee's grievance (which may include his dismissal), gather pertinent documents, and interview witnesses. The employee has the right to appear before the panel with a representative. Within two days of meeting, the panel must submit a written statement of its findings and a "recommendation for action to the Mayor and [City] Council." The mayor and the city council then have five days to meet and consider the recommendation of the arbitration panel. The employee has the right to attend that meeting with a representative.
Chapter VIII, Section E.3., of the Personnel Rules states:
"The Mayor and Council may investigate the grievance in any manner they shall deem appropriate. They may accept the recommendation made to them, reject that recommendation entirely and substitute their own, or modify the recommendation as they see fit (subject to the policy that they may not increase the initially imposed punishment)." Section E.4. requires the City Council to render its decision within five days, failing which the recommendation of the arbitration panel is to take effect. Section E.4. states that decisions of the Council are final.
The United States Court of Appeals for the Eleventh Circuit recently stated:
"This Court's post-Praprotnik decisions have consistentl
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