FAIRHOPE, Alabama (UPDATE)—The City Council voted unanimously tonight to end appeals to the Personnel Board from hearing officer decisions in police disciplinary cases, as proposed by Mayor Tim Kant.

But the reasons given by Kant prior to tonight for the proposed change were not the case, as explained to the council by Paul Myrick at the meeting, which started at 6 p.m., April 22.

Myrick, the longtime counsel to the city in personnel matters and a private attorney whose firm focuses on the representation of management in employment cases, provided advice to the mayor on the proposed policy change.

Although Kant and Police Chief Joe Petties had said earlier that the policy change was needed to comply with state law, that turned out not to be true, according to Myrick.

Myrick’s explanation—which revealed that the proposed policy change was not required by state law, as Kant and Petties had said—came in response to statements by The Courier during public participation and prior to the vote, that Alabama law did permit such appeals.

Editor’s Note: See the April 26 issue of The Courier for additional coverage on this issue. The deadline for the article that will appear in the April 23 issue came before tonight’s action by the council.

Filed online before tonight’s council meeting (tomorrow’s print version does not include the citation to state law found below):

Unlike other Fairhope employees who have a right by ordinance to appeal their suspensions and terminations to that board, the same right should not have been available to sworn police officers, whose disciplinary process is governed by state law, Kant said Friday.

“According to state law, if you have a hearing officer, the hearing officer has to be the final say,” Kant said. “And so, if you’re going to have a hearing officer, then he or she has to be the final decision.  The mayor can’t override it, (nor can) the Personnel Board or anybody else.”

The proposed elimination of the appeal language from the city’s current ordinance is to comply with long-standing state law, with which the city has been out of compliance for years, Kant said.

“It’s just for the sworn police officers, because they have to have due process, Kant said.” And that’s what we’re trying to make sure—that that (hearing officer) has that full authority, and that it’s stated. I wanted it stated in the handbook and not just (be written in) some procedure.”

Kant said putting it in the personnel handbook would ensure that new employees would be able to learn about all such procedures when they are hired.

The proposed change in the ordinance came after consultation with Paul Myrick, the city’s longtime personnel attorney, Kant said.

It’s unclear what statutory provisions Kant has rested his argument upon, but Council President Jack Burrell has reportedly been researching the proposal and is expected to outline the issues involved tonight.

Two statutory provisions of the Alabama Code indicate that such appeals to the Personnel Board, instead of being prohibited, are explicitly contemplated and allowed.

Section 11-43-230 (e) states that “a municipality may also hold a separate postdisciplinary hearing on the suspension or termination of the law enforcement officer,” following the decision by a hearing officer.

And Section 11-43-230 (f) states that “Nothing shall prohibit a municipality from allowing due process which exceeds the requirements in this section.”

The process by which police disciplinary cases are handled underwent close scrutiny in the fall of 2011, after former Police Chief Bill recommended the firings of several officers.

A change was made in the process then for the council to appoint a neutral hearing officer, after consultation with Myrick.

After the new council took office in November, that hearing officer was changed from a top Mobile police officer to a retired Baldwin County Sheriff’s sergeant.

“If I wanted to be the (hearing officer), I could,” Kant said. “Since I’m making the recommendation to the chief that (the disciplinary case) can go forward (to the hearing officer), I can’t very well make the decision (when) I’ve already in my mind looked at the evidence. Once I say you can go forward then it’s out of my hand.”

The proposed ordinance to eliminate police appeals to the personnel board was introduced by Councilman Rich Mueller at the April 8 council meeting. At that meeting Police Chief Joe Petties explained why he thought the change was necessary.

“Basically with the old ordinance, the way they had it set up was you had your hearing officer, and then they would go to a personnel board, and it would be a long drawn-out thing,” Petties told the council, as reported by The Fairhope Times blog. “But by state law now, the hearing officer he has the final decision. So that’s what we’re trying to do, just abide by the state law.”

Kant said another proposed change would address situations where there was a conflict of interest between the current hearing officer and the police officer.

“And the other thing we wanted to change, how in the event there is a conflict of interest that instead of going back to the council, that I could appoint a department head that is neutral (to serve as hearing officer),” Kant said.