The Payson town manager and town attorney have both lost a little job protection on a split vote of the council.
The council voted 5-2 on Thursday to revoke an existing right to appeal a firing from the positions now held by town manager Debra Galbraith and attorney Sam Streichman.
Councilor Su Connell pulled the approval of revisions in the personnel manual off the consent agenda to discuss the procedures for firing town officials — prompting a brief discussion and a split vote.
“I have concerns about the dismissal procedures for officials,” she said, noting differences between the language in the town code and the more detailed personnel manual.
The town recently overhauled its personnel manual. The amended provisions gives fired employees the right to a hearing before a third party hearing officer if they want to get their job back.
For some positions, a firing requires a majority vote of the town council. But under the new provisions that extend the right of an appeal to those same positions, the hearing officer could effectively overrule the council. It would then require six votes from the seven-member council to overrule the hearing officer.
Several council members objected to extending that extra protection to the positions directly filled by action of the council — the town manager and the town attorney.
“Generally speaking,” said Vice Mayor Mike Vogel, “the two we’re talking about are at-will people,” which means the council doesn’t have to specifically show cause for the firing so long as the action isn’t based on things like race, sex or age bias.
“I personally think there should be an appeals process — but that process should go to the courts,” Vogel added.
Assistant Town Attorney Tim Wright replied to Connell’s objection by saying the personnel manual and the more general town code does not have to match exactly. He also noted reaffirming the firing would only take six votes if the council was overruling the hearing officer.
The town code “gives the big picture, for the exact details you go to the personnel manual,” said Wright. “And it may take six votes, if it goes to the hearing officer and the decision of the personnel officer is in conflict with the council — then it does take six votes.”
“I’m not going to sit here and argue with an attorney, but in other towns when it comes to at-will employees, when the council says they’re gone, they’re gone. The appeal process is for everyone else,” said Vogel.
Streichman, observed carefully, that past court rulings have held that “a public employee has a property right to his job and the right to due process in his termination.”
Vogel then moved to approve the changes, but to exclude the “at will” positions from the right to an appeal to a hearing officer.
“Define ‘at will,’” said Connell.
“These two,” said Vogel, pointing to the staff table where Galbraith and Streichman sat side by side.
“I’m not sure what this hearing officer is, but it seems like a less expensive step before going to court,” said Councilor Ed Blair.
In the end, only Blair and Councilor John Wilson voted to let the manager and attorney appeal a termination to a hearing officer. They lost on a 5-2 vote.