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ELECTRONICALLY FILED
10/19/2017 1:37 PM
38-CV-2017-900393.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK
IN THE CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA

JONATHAN GRECU, individually )

and as Mayor of the City of )
Ashford, )
)
Plaintiff, )
)
v. ) Case No. 38-CV-2017-900393.00
)
GARY GIBSON, individually and )
as a member of Ashford City )
Council, et al., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants Gary Gibson, Carole Barfield, Denise Herndon, and the City

of Ashford (collectively Defendants) submit this Memorandum in support of

their motion for summary judgment.

I. INTRODUCTION

This action arises from a dispute over the Ashford city councils authority

to appoint certain officers of the City. (Compl. at 2, 4.) The plaintiff is

current Ashford mayor Jonathan Grecu. (Compl. at 1, 1.) The defendants

are the City of Ashford and council members Gary Gibson, Carole Barfield, and

Denise Herndon. (Compl. at 1.) This Memorandum explains why the authority

to appoint the officers in question properly lies with the Ashford city council.

The defendants ask the Court to declare Ordinance 2017-004 valid and to

enter a final judgment in their favor.

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II. NARRATIVE SUMMARY OF THE UNDISPUTED FACTS

In recent history, five actions by the Ashford city council led to the

ordinance in question. (Exs. 1, 2, 3, 4, 5.) On February 5, 2001, the council

enacted Ordinance 01-001. (Ex. 1 at 5-7.) Ordinance 01-001 granted the

council the authority to appoint all officers and employees whose appointment

was not otherwise provided for by law. (Ex. 1 at 5.)

On November 19, 2012, the council repealed Ordinance 01-001 and, at

the time, did not replace it with a substitute ordinance. (Ex. 2 at 3.)

On September 19, 2016, the council adopted Ordinance 2016-004. (Ex.

3 at 4.) Ordinance 2016-004 granted the council the authority to appoint the

following officers: POLICE CHIEF, FIRE CHIEF. (Ex. 3 at 6.)

On June 19, 2017, the council adopted Ordinance 2017-003. (Ex. 4 at

3.) Ordinance 2017-003 replaced Ordinance 2016-004 and granted the council

the authority to appoint the following officers: POLICE CHIEF, FIRE CHIEF,

RECREATION DIRECTOR, UTILITIES SUPERINTENDENT. (Ex. 4 at 6.)

On July 11, 2017, the council adopted Ordinance 2017-004. (Ex. 5 at 4.)

Ordinance 2017-004 replaced Ordinance 2017-003 and granted the council the

authority to appoint the following officers: POLICE CHIEF, FIRE CHIEF,

SENIOR CENTER DIRECTOR, RECREATION DIRECTOR, UTILITIES

SUPERINTENDENT. (Ex. 5 at 8.)

In this declaratory judgment action, Mayor Grecu purports to challenge

Ordinances 003, 004, 006, and 009. (Compl. at 2, 4-5.) However, the

documents that the Complaint identifies as Ordinances 006 and 009 were

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actually Resolution 2017-006, (Ex. 4 at 5), and Resolution 2017-009, (Ex. 5 at

7). These resolutions merely authorized the council to undertake immediate

consideration of Ordinances 2017-003 and 2017-004, respectively. (Ex. 4 at 2,

3, 5; Ex. 5 at 2, 4, 7.)

Moreover, Ordinance 2017-004 replaced Ordinance 2017-003. (Ex. 5 at

8.) Therefore, Ordinance 2017-04 is the only ordinance that is operative at this

time. (Ex. 5 at 4, 8.) Ordinance 2017-004 is the ordinance of which this Court

must determine the validity. (Ex. 5 at 8.)

The parties stipulate that the population of the City of Ashford is less

than 6,000. (Ex. 6 at 2.)

III. ISSUE

Does Alabama Code 11-43-4 authorize the Ashford city council to adopt

Ordinance 2017-004, which empowers the council to appoint the following

officers: POLICE CHIEF, FIRE CHIEF, SENIOR CENTER DIRECTOR,

RECREATION DIRECTOR, UTILITIES SUPERINTENDENT? (Ex. 5 at 8.)

IV. ANALYSIS

A. The Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to a judgment as a matter of law.

See Ala. R. Civ. P. 56; Young v. Serra Volkswagen, Inc., 579 So. 2d 1337 (Ala.

1988). Once the movant shows that there is no genuine issue of material fact,

the burden shifts to the opposing party to produce evidence to the contrary.

See Richardson v. Kroger Co., 521 So. 2d 934, 936 (Ala. 1988).

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The opposing party may not rest on mere denials, but must submit

contrary facts. See id. To defeat a properly supported motion for summary

judgment, an opposing party must present substantial evidence, which is

evidence of such weight and quality that fair-minded persons in the exercise of

impartial judgment can reasonably infer the existence of the fact sought to be

proved. See West v. Founders Life Assurance Co. of Fla., 547 So. 2d 870, 871

(Ala. 1989); see also Ala. Code 12-21-12 (1975).

The use of summary judgment promotes the expeditious disposition of

cases and avoids unnecessary trials when no genuine issues of fact are

present. See Donald v. City Natl Bank, 329 So. 2d 92, 94 (Ala. 1976). The

defendants are entitled to a summary judgment declaring that Ordinance

2017-004 is valid.

B. Alabama Code 11-43-4 Empowers a Council to Invest Itself with

the Authority to Appoint Officers of the City

Alabama Code 11-43-4 empowers a city council to invest itself with the

authority to appoint officers of the city. See Ala. Code 11-43-4 (1975)

(declaring council may determine by ordinance the . . . officers of the city [and]

the manner of their election). Alabama Code 11-43-81 assigns the authority

to appoint municipal officers to the mayor only when the appointment

authority is not otherwise provided for by law:

The mayor shall be the chief executive officer, and shall have
general supervision and control of all other officers and the affairs
of the city or town, except as otherwise provided in this title. He
shall have the power to appoint all officers whose appointment
is not otherwise provided for by law. He may remove any officer
for good cause, except those elected by the people, and fill the
vacancy caused thereby, permanently, if the appointment of such

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officer is made by the mayor, and temporarily, if such officer was

elected by the council or appointed with its consent, in either of
which last two cases he must report such removal and his reasons
therefor to the council at its next regular meeting, when, if the
council shall sustain the act of removal by the mayor by a majority
vote of those elected to the council, the vacancy shall be filled as
provided in this title.

Ala. Code 11-43-81 (1975) (emphasis added).

By law, the council must elect the municipal clerk. See Ala. Code 11-

43-4 (1975) (the council shall elect a clerk). Additionally, Alabama Code 11-

43-4 authorizes a city council to adopt an ordinance that empowers the council

to elect the other officers of the city:

In cities having a population of less than 6,000 and in towns, the

council shall elect a clerk and fix the salary and term of office,
and may determine by ordinance the other officers of the city
or town, their salary, the manner of their election and the terms
of office, and shall fill all vacancies in the council by a majority
vote of the council; and all members of the council may vote to fill
vacancies any provision of law to the contrary notwithstanding.
The clerk and such other officers elected by the council shall
serve until their successor or successors are elected and qualified.

Ala. Code 11-43-4 (1975) (emphasis added).

An Attorney Generals opinion explains the councils power to invest itself

with the authority to elect the other officers of the city:

The following discussion regarding the hiring and appointment of

municipal employees is found in Selected Readings for the
Municipal Official, Duties of the Mayor and the Council, p. 25, as
published by the Alabama League of Municipalities, 1992:

Section 11-43-81, Code of Alabama, 1975, states that

the mayor has the power to appoint all officers whose
appointment is not otherwise provided for by law. The
Attorney General of Alabama has ruled that if the
council has exercised its powers to appoint
officers of the city or town, then the appointment
would be otherwise provided for by law, thus

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removing the mayors power to make

appointments. Opinion to Hon. John W. Maples,
April 17, 1957 . . . .

Where the Code of Alabama specifies that the council

has exclusive appointing power, the council cannot
delegate its appointing power. If an appointment is left
to the discretion of the council, then the council may
delegate its authority by a properly-drafted
ordinance.[]

If the Code is silent as to who makes an appointment,

then the mayor has the authority unless the council
has provided differently in a properly-drafted
ordinance.

Ala. Op. Atty Gen. No. 95-00315 (Sept. 7, 1995) (emphasis added).

A city council is authorized to adopt ordinances, but only to the extent

that those ordinances are not inconsistent with existing state law. Scott v.

Coachman, 73 So. 3d 607, 609 (Ala. 2011). Ordinance 2017-004 is not

inconsistent with existing state law because Alabama Code 11-43-4

specifically authorizes a council to determine by ordinance the other officers of

the city [and] the manner of their election. Ala. Code 11-43-4 (1975).

Section 11-43-4 gives the City Council the power to determine the Citys

officers, their salary, the manner of their election, and their terms of office.

City of Brighton v. Gibson, 501 So. 2d 1239, 1241 (Ala. Civ. App. 1987)

(emphasis added).

The most recent version of the Alabama League of Municipalitiess

Selected Readings for the Municipal Official explains that Alabama Code 11-

43-4 gives the council, in municipalities of under 6,000 population, the

authority to identify officers of the city by ordinance and to elect those officers

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or provide for another manner of appointment by ordinance. Selected

Readings for the Municipal Official at 46 (2016 ed.) (emphasis added). Indeed,

the council, in providing for these officers could, by ordinance, provide for

their manner of appointment, including appointment by the council rather than

the mayor. Id. (emphasis added). State law . . . allows the council to create

offices by ordinance and, therefore, fill those positions. Id. at 47.

In construing Alabama Code 11-43-3, which is the version of 11-43-4

that applies to cities with populations of 6,000 or more, the Attorney General

recently declared that an ordinance which assigns the city council the

authority to appoint city officers is not inconsistent with Alabama Code 11-

43-81:

[I]t is the opinion of this Office that because this statute authorizes
the council to create, via ordinance, an officer position, any
position so created would be as otherwise provided, and such
ordinance would not be outside the authority delegated to the
council by law. See Ala. Code 11-43-81 (2008). Thus, the
Legislature, through section 11-43-3 of the Code, has created
a mechanism for the city council to create or appoint persons
as municipal officers as these positions may be necessary.

Ala. Op. Atty Gen. No. 2012-039 (Feb. 28, 2012) (emphasis added).

Indeed, the Alabama Supreme Court has declared:

The appointing authority of the mayor, although broad, is not

absolute and all encompassing. Indeed, the very language in
11-43-81 extends the mayors power only as far as not
otherwise provided by law and contemplates situations where
the council, rather than the mayor, is the appointing
authority.

Scott v. Coachman, 73 So. 3d 607, 609 (Ala. 2011) (emphasis added).

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Because Alabama Code 11-43-4 empowers a city council to determine

by ordinance the other officers of the city [and] the manner of their election,

Ordinance 2017-004 is a valid exercise of the Ashford city councils authority

to invest itself with the power to elect certain officers of the City.

V. CONCLUSION

For the foregoing reasons, Gary Gibson, Carole Barfield, Denise Herndon,

and the City of Ashford ask the Court to declare that Ordinance 2017-004, (Ex.

5 at 8), is valid and to grant summary judgment in their favor.

s/ James H. Pike
James H. Pike (PIK003)
SHEALY, CRUM & PIKE, P.C.
P.O. Box 6346
Dothan, Alabama 36302-6346
Tel. (334) 677-3000
Fax (334) 677-0030
Email: jpike@scplaw.us

Attorney for Defendants

Gary Gibson, Carole Barfield, Denise
Herndon, and the City of Ashford

CERTIFICATE OF SERVICE

I, James H. Pike, certify that on October 19, 2017, I electronically served

this document, via the AlaFile system, upon:

Stephen G. McGowan
207 West Troy Street
Dothan, Alabama 36303
Attorney for Jonathan Grecu

s/ James H. Pike
James H. Pike