Shaffer Termination: Legal or Not?

by | July 18, 2018 4:29 pm

Last Updated: July 18, 2018 at 5:03 pm

Manning Police Chief Blair Shaffer was terminated on July 12 by the Public Safety Committee. The newly formed committee had the power to terminate a public safety officer, so the termination was performed through proper channels. Or was it?

Manning Ordinance 2018-04 was approved after second reading on June 18 at the regular Manning City Council Meeting. This ordinance allowed for the creation of the Public Safety Committee. The Committee would evaluate public safety programs and activities; administer public safety personnel activities; and hire, supervise and discipline public safety staff.

During the Manning City Council meeting on July 16, Mayor Julia Nelson stated the first reading of this ordinance had occurred on June 5. However, the ordinance was not on the agenda for that meeting, which was stated to be a budget workshop. According to both the agenda and the meeting minutes, the only publicly discussed item was the FY 2018-19 general fund and utility fund budget. Any remaining items were discussed in executive session and were not publicly heard.

Of the two executive session items, the first stated it was “a personnel issue concerning compensation as related to the FY 2019 Budget,” and the second stated it was “a personnel matter concerning an Amendment to Chapter 2, Section 2-86, of the City of Manning Code of Ordinances.” This section deals with the duties and responsibilities of the city administrator.

The only mention of the ordinance in the officially filed meeting minutes was after the Council returned from executive session. The mention was under the heading “Possible action following Executive Session for items discussed in Executive Session.” In this section, Councilmember Clayton Pack made a motion, seconded by Councilmember Johnny Gordon, to approve the first reading of the ordinance. It states all favored the motion.

Councilmember Ervin Davis states this was not the case. He was in attendance for the June 5 budget meeting. However, he was unable to attend the June 18 Council meeting, when the second reading and final approval happened. In recent days, he was given a copy of Ordinance 2018-04, which he states he had never seen before, although he supposedly had been present for the first reading.

Additionally, in the agenda, there was no mention of the City of Manning Code of Ordinances Section 2-31, which outlines the duties of the City Council. The ordinance itself is an addendum to Section 2-31. There is a mention of Section 2-86, and if the one change is not a typo, it could be a big change with one small word.

Section 2-86, Subsection (1) states “the administrator shall be responsible to council and shall take all direction from council OR their designated committees.” However, in the ordinance, it states “Whereas, § 2-86 requires the administrator to be responsible to the council and take all direction from the council AND its designated committees.” This could require the administrator to take direction from a committee even when it contradicted the council.

According to City Administrator Scott Tanner, readings of ordinances must be held in a public meeting, which disallows any reading held in executive session. Furthermore, if the ordinance was vaguely discussed and not fully created until after the June 5 meeting, this invalidates the first reading.

What brings the ordinance into question is the South Carolina Code of Laws, Title 5 – Municipal Corporations, Chapter 7 – General Structure, Organization, Powers, Duties, Functions and Responsibilities of All Municipalities, Section 5-7-270. This section states “Every proposed ordinance shall be introduced in writing and in the form required for final adoption.” Yet at least one councilmember had never seen the ordinance, even though he was present for the alleged first reading.

Section 5-7-270 further states “No ordinance shall have force of law until it shall have been read two times on two separate days with at least six days between each reading.” If the public first reading of Ordinance 2018-04 is invalidated because it wasn’t read in public and it wasn’t in final form for the alleged first reading, it raises the question of whether or not the Public Safety Committee was legally formed, and whether it had the legal authority to fire Shaffer.

This, however, was not addressed by the Council. At the Council meeting on July 16, Davis deviated from the night’s agenda, making a motion, effective immediately, to abolish every City of Manning committee. The motion was instantly seconded by Councilman Julius Dukes.

Nelson felt the vote was out of order, as it was not on the agenda for the night. However, Davis was adamant, and he demanded for the vote to proceed, as he already had a second to the motion.

“Madam Mayor, never in the history since I’ve been on council, have I had to put something on the agenda that I thought was so important for this council to look into. The reason I made the motion is due to the recent confusion that’s been made concerning the Public Safety Committee. My, myself, I’m a little confused,” said Davis.

Davis went on to state his constituents have been regularly asking him what happened regarding the termination of Shaffer by the Public Safety Committee. However, he has had no answer to offer, as he doesn’t know either. He felt the decision should have been put before the full Council.

Although Nelson stated that Ordinance 2018-04 was given final reading and approved on June 18 during the last Council meeting and stated the first reading was during the June 5 budget workshop, Davis still felt the decision to terminate an important position such as a police chief should have been brought back to the Council.

Nelson informed the Council the Committee was strictly advised not to do so by their attorney, as there was now a grievance process in place. This process would allow a terminated employee to go before a grievance committee, and if the terminated employee’s complaint was found valid, it would then go before the full Council.

Nelson claimed they were unaware that by forming the Public Safety Committee that it would result in keeping the entire Council from having a say in such terminations. She reiterated that the city’s lawyers advised at the time of the termination that full council could not be involved due to the grievance process.

“I don’t believe we received bad advice, as this is an attorney’s office that has thoroughly informed us in the past on what we needed. So by no means was this underhanded,” said Nelson.

This raises the next question regarding the ordinance. According to Nelson, the ordinance gives the committee the power to fire the chief of police. However, the ordinance itself does not back this up. In Section 2-31 (g), the ordinance states “any suspension or removal under the policy must be made by council.” This directly contradicts the statement that the Committee was given the power to fire Shaffer.

“I feel like the grievance committee was just a loophole not to get it brought back to council,” said Davis during the Council meeting. “That’s the way I feel, that’s the way my constituents feel. It would not be fair for me to sit at this council table and not reflect my feelings about what went on, or my constituents’ feelings about what went on. I’m doing what I think is right and fair, and I’ll stand by my own convictions.”

Davis again asked for a vote on abolishing all committees. The vote was called, with an initial two-to-one vote in favor, with two councilmembers who did not yet vote. After several minutes of deliberation, the vote ended at four-to-one to abolish all committees. Voting to abolish were Davis and Dukes, as well as Gordon and Councilwoman Diane Georgia. Pack, who was a member of the Public Safety Committee along with Mayor Pro-tem Sherry Welle and Nelson, was the only dissenting vote.

The council went immediately into executive session for two hours. Upon returning, the council made no action based on what was discussed in executive session. However, the previous motion and vote was overturned.

“I would just like to say officially, based on the fact that we had a printed agenda, and the motion made concerning abolishing the committees was not on the agenda, nor was it on there at the time of the approval of the agenda, that motion will be stricken from the record, and the council will get together to further discuss that matter and how we would like to proceed in the future,” said Nelson.

Once again, a question arises. If the motion to abolish the committees was stricken from the record because it was not on the official agenda, because it is mandatory for an item to be on the agenda for it to be legally recognized, it stands to reason the first reading of Ordinance 2018-04 should also be stricken from the record, as it was also not on the agenda, neither originally nor placed there before the agenda was approved that night.

With this many questions surrounding the creation of and validity of the Public Safety Committee, not to mention it’s legal right to have terminated Shaffer, it highlights the need to investigate the termination itself.

“I am anxious to make a statement, and my statement will come soon,” said Shaffer. He has until July 25 to file a grievance, which he fully intends to do. His statement will come after he has finalized procurement of legal counsel.

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