I did a lot of traveling for most of December to some pretty awesome places (hello, Rome!). Because of that, I am just now going back to listen to the December city council meeting, or I would have commented much sooner than this.
I want to say – as loudly and as explicitly as I can – that my interactions with our new city clerk have been great.
My commentary today is solely limited to the actions of the city manager, who once again exceeded his authority under the city charter and suffered zero consequences. Since our city charter is the supreme law of the city and represents the limits of the authority that Clarkston voters gave to our city government, it really ticks me off when the city manager does whatever he pleases, and the city council refuses to do anything about it. This is a slap in the face to the voters, and it’s clearly an insubordinate act as far as the council is concerned. Yet every May, no matter how often the city manager goes off the rails and ignores our charter (or our ordinances), the city council unquestionably rubber stamps whatever salary increase he wants to give to himself, resulting in a very nice salary progression over the years.
As you know, our former city clerk left to take a new position working for the township. She agreed to stay until after the November election, and she gave the city plenty of notice that she was leaving. At the December 12th city council meeting, the city manager announced that he had perused the experience details of 130 people on Indeed.com, reviewed 31 resumes in greater detail, conducted Zoom interviews with twelve people, and invited five of the twelve into the office for an in-person interview.
So far, so good. All things the city manager ought to do.
And then the city manager went off the rails.
On December 12th, the city manager announced that not only had he selected a candidate, but he had also decided how much the salary would be and extended an offer of employment – the day of a city council meeting. The offer was accepted, and the city manager notified the other candidates on December 12th, the day of the city council meeting, that they would not be selected for the position. At the time they were informed that a new administrative officer had been hired, council members had no idea who the new person was (or even how to spell her name). The city manager said that he would send the new clerk’s resume to the city council members because they hadn’t even seen it yet.
In explaining his actions, the city manager told the city council that, as they were aware, he “has the authority to hire,” and then he proceeded to read the section of our Charter that specifically does not give him the authority to hire a city clerk:
City Charter, Chapter V, “Administrative Officers,” Section 5.1(c) (underscores mine):
All administrative officers of the City, except the City Manager and the City Attorney shall be appointed by the Council after consultation with the City Manager. Such officers may be discharged for cause by the Council after consultation with the City Manager. Such officers shall have their compensation fixed by the Council.
To recap, the city manager was clearly aware of the charter section that expressly gives appointment authority to the city council for the clerk’s position (because she’s an administrative officer under section 5.1(a) of the charter), since he read this section at the December 12th meeting. The city council decides compensation, not the city manager, yet the city manager inexplicably decided to withhold $5,000 in annual compensation until our new clerk completes her probationary period, which he told the council was 60 or 90 days. That wasn’t his decision either. The charter is crystal clear – the city manager’s role is limited to consulting with the city council, but the decision on which administrative officer to hire and how much to pay that person belongs to the council.
Rather than expressly calling him out, it seemed to me that our mayor gently tried to cover for the city manager at the December 12th meeting while still reminding him that the hiring decision is for council to approve. The city attorney correctly stated that the clerk is an administrative officer, which further emphasizes who decides to hire in this circumstance. The mayor said that the council looked forward to meeting the new person, and the council ended up approving our new clerk’s hire at the January 9th city council meeting – after she started working for the city.
Do I assume that the city council would have blessed the clerk candidate he brought forward? Of course. Even though our new clerk has a helpful background for the position, the city council also has a history of unquestionably going along with everything that the city manager wants. That means there was zero reason for the city manager to go behind the council’s back and extend an unauthorized offer of employment, yet that’s exactly what he did. He admitted that he made his decision in the city manager’s report submitted for the December 12th city council meeting (that was dated on December 8th), stating that he planned to extend an offer of employment on December 12th. He could have made an offer of employment contingent on council approval, brought the person he wanted to hire to the city council meeting that evening, and he would have undoubtedly received approval. It’s also entirely possible that the city council would have disagreed with the city manager’s decision to withhold $5,000 in annual compensation, choosing instead to pay our new clerk her the full salary immediately. We’ll never know, because the city manager inappropriately took that decision away from the council.
This is not just a case of the city manager overstepping his authority once again. Our new clerk’s resume indicates that she had a job before accepting this one. Without getting too deep into the legal terminology weeds, the city manager had “apparent authority” to extend an offer to her, but he didn’t have “actual authority.” In the private sector, apparent authority is usually enough to allow a person to sue on a contract theory if things don’t work out. When dealing with governments, the only thing that is important is whether the person making an offer actually has the authority to make it – and the city manager clearly did not have that authority.
Most employers are nonunion, “at will” employers, meaning that employees can be fired at any time, for any reason, with or without cause, as long as the employer doesn’t violate any laws (such impermissibly making an employment decision based on race, disability, age, etc.) when letting someone go. When your employer accepts your notice of resignation, they aren’t required to take you back if you change your mind for some reason – even if your new job falls through – because you’ve just telegraphed that you don’t want to work there anymore. (That’s why most people insist on an offer of employment in writing before they resign, and why many employers will immediately reply with an acceptance of a resignation.) Even if your employer allows you to rescind your resignation, you may possibly have blown your chances for a future promotion, and you might even wind up on a future layoff list, all because your immediate supervisor or manager now believes that you aren’t sufficiently loyal to the company (and they don’t usually tell you how they feel). Before I became a lawyer, I spent a lot of years working in human resources, which included arguing with supervisors and managers about employment decisions, so I know that these issues can happen. In his haste to “hire” someone and avoid talking to the council, our city manager potentially put our new clerk’s financial interests at risk because she started working for the city before her employment was actually approved by the only entity that could approve it – the Clarkston city council.
It’s hard to sue the government. The idea of “governmental immunity” has its roots in the British common law doctrine that the king can do no wrong. That idea survives today, because governments are immune from lawsuits unless they have consented to them – through an authorized exception to governmental immunity or some other law allowing for a lawsuit (such as the FOIA). Though city-manager-exceeding-his-charter-authority-and-hiring-someone is not an exception to governmental immunity that would allow someone to sue Clarkston itself, Michigan’s governmental immunity law does permit an individual government employee to be sued when that employee has been grossly negligent.
MCL 691.1407(2) provides limited immunity to officers, employees, and others for the injuries they cause in the course of their employment, but only if all of the following requirements are also met:
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- The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
- The governmental agency is engaged in the exercise or discharge of a governmental function.
- The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
Was the city manager acting within the scope of his employment when he made the officer of employment? I think so. The clerk’s position reports to the city manager, and he claimed he had the authority to hire the clerk at the December 12th city council meeting.
Did the city manager reasonably believe that he was acting within the scope of his authority? I don’t think so, because the city manager told the city council that as they know, “the city manager has the authority to hire” – while demonstrating his awareness of the charter section that expressly didn’t allow him to hire in this circumstance by quoting it to the council and using it to support his actions.
Was Clarkston engaged in the exercise or discharge of a government function? Of course. Clarkston had to replace an administrative officer who resigned from the city.
Did the city manager’s conduct amount to gross negligence that caused an injury? MCL 691.1407(8)(a) defines “gross negligence” to mean “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Definitely a question for the jury, but if you know that you don’t have the authority to hire someone, you do it anyway, and then that person is hurt if your boss (the city council) doesn’t go along with what you want, I personally think that is an example of reckless conduct. It certainly demonstrates a substantial lack of concern for any financial injury that might be caused to the person who relies on your offer before resigning and then can’t rescind their resignation and get that job back. Hello, unemployment!
Setting aside whether a jury could find that the city manager’s conduct was grossly negligent if things didn’t work out as planned, I think his actions were, at a minimum, grossly unfair to our new clerk. There was at least a possibility that the majority of city council might not have agreed with the city manager’s selection and decided that the clerk shouldn’t be hired. (Or maybe they might have wanted to consider some of the other applicants or conduct public interviews.) If the city council had not retroactively approved the city manager’s decision, the city could have found itself in the middle of more unavoidable litigation if the person not hired had suffered a financial injury, because they would undoubtedly try to defend the city manager’s actions, as they always try to do. And, what if the city council didn’t think it was prudent to offer our new clerk less than the old clerk made? Well, too bad for her, because the city manager thinks she should wait to get the full clerk’s salary – while admitting that he believes that the full clerk’s salary is too low – apparently because he wants to appear magnanimous after her probationary period is complete. And it’s not a 60- or 90-day probationary period as the city manager claimed at the December 12th meeting. Section 10 of Clarkston’s Policy and Procedures Manual (found at the bottom of page 6) states that the probationary period is six months, no raises will be given during that time, and raises aren’t retroactive.
If the city manager wants to make this right, then he should go back to the city council and expressly ask for the increase after 60 or 90 days. He should not compound the problem with a salary increase cleverly slipped into the treasurer’s report because he doesn’t have the authority to violate Clarkston policies, which were approved by the city council. Personally, I think he should ask the city council for the authority to bring the clerk’s salary up to the fully approved level at the next council meeting because working at a salary that is less than the rate approved by council for the position is unfair.
The city manager is required to abide by the restrictions in the city charter and city ordinances. Our city clerk is an administrative officer, not a secretary, and the city manager should have sufficiently respected the clerk’s position in the city government hierarchy and followed the charter requirements. It’s time that the city council do its job and insist that the city manager do his – which includes obeying our local laws – not just because it’s a legal obligation, but because it’s the right thing to do.