Mark Trenier v. City of Prichard and Troy Ephriam, Mayor

REL:11/21/2014
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
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Mark Trenier
v.
City of Prichard and Troy Ephriam, Mayor
Appeal from Mobile Circuit Court
(CV-13-901796)
BOLIN, Justice.
Mark Trenier appeals from the trial court's summary
judgment in favor of the City of Prichard and its mayor, Troy
Ephriam. We affirm.
I. Facts and Procedural History
The facts in this case are undisputed. This appeal
involves a dispute over the interpretation of § 11-43C-38(a),
Ala. Code 1975, which governs the appointment and removal from
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office of fire chiefs and police chiefs in Class 5
municipalities such as the City of Prichard. Section 11-43C-
38(a) provides:
"There are hereby created three divisions of city
government: Public works, finance, and public
safety. The mayor shall appoint department heads to
the above divisions. Upon the first vacancy, of any
nature whatsoever, in the office of police chief or
fire chief, the mayor may appoint the police chief
and fire chief, respectively, from outside the said
merit system, with the approval of four members of
the council who shall serve at the pleasure of the
mayor; provided, however, such officers shall be
removed from office only upon recommendation of the
mayor with the approval of four council members."
(Emphasis added.)
On April 19, 2007, Trenier and Ronald K. Davis, then the
mayor of the City of Prichard, executed a proposed employment
agreement in which Trenier agreed to provide services as the
Prichard Fire Chief for a term of five years, commencing April
19, 2007. On this same date, the five-member Prichard City
Council unanimously approved the agreement, and Trenier became
the duly appointed fire chief for the City of Prichard in
accordance with § 11-43C-38(a). The "Time of Performance"
section of the employment agreement expressly states that
Trenier would provide services for five years:
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"The CHIEF shall commence performance of this
Agreement and the rendering of services required
hereunder for a period of five (5) years commencing
upon the execution of the Agreement by the CITY.
The services shall be undertaken in such sequence as
to assure the proper and expedient achievement of
the objectives of this Agreement for the period of
time stated herein. In no event shall the completion
dates of times stated herein, if any, be extended,
except in accordance with the provisions of the
Amendments Section."
(Capitalization in original.)
The "Compensation" section of the employment agreement
contains language confirming that the agreement was for a
limited term, subject to expiration, termination, or renewal:
"The CITY agrees to provide the CHIEF fifteen
(15) sick days per year for the duration of this
Agreement. ...
"All unused sick time and vacation time will be
paid by the City to the CHIEF at the expiration
and/or termination of this Agreement. In the event
that this Agreement is renewed or extended pursuant
to the mutual agreements of the parties, the CHIEF,
at his sole option, may continue to accumulate sick
and vacation time until such renewal period
expires."
(Capitalization in original; emphasis added.)
The mayoral election for the City of Prichard was held in
October 2012, at which time Troy Ephriam, who had served on
the city council, was elected mayor of the City of Prichard,
defeating Mayor Davis. Before the conclusion of his mayoral
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term in 2012, Mayor Davis on two separate occasions attempted
to have the city council approve subsequent employment
agreements for Trenier and to have him reappointed as the fire
chief; both attempts, however, were unsuccessful. Although
Trenier's employment agreement expired on April 19, 2012, he
continued to serve as fire chief until April 8, 2013, at which
time newly elected Mayor Ephriam notified him that his
employment was officially terminated.
On July 16, 2013, Trenier filed a complaint against Mayor
Ephriam in his official capacity, as well as against the City
of Prichard, alleging a violation of his employment rights
under § 1l-43C-38(a) and seeking damages as a result thereof.
Specifically, Trenier alleged that Mayor Ephriam had
unilaterally terminated Trenier's employment without any
"recommendation" and without the approval of four city-council
members pursuant to § 11-43C-38(a). Mayor Ephriam and the
City of Prichard filed a joint motion for a summary judgment
supported by, among other things, the affidavit of Mayor
Ephriam, who testified as follows regarding the events leading
up to Trenier's discharge:
"1. My name is Troy Ephriam, the duly elected
Mayor of the City of Prichard, and I am familiar
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with the facts and circumstances surrounding the
former employment of Mark Joseph Trenier as the Fire
Chief of the City of Prichard, as well as the events
giving rise to [Trenier's] Complaint in this matter.
"2. Prior to being elected Mayor of the City of
Prichard, I was duly elected and served as a
Prichard City Councilman, representing District
Four, from 2001 until my election as Mayor in
October 2012.
"3. Under Alabama Code § 11-43C-38(a) (1975),
the Prichard City Council is required to approve any
appointment made by the Mayor of the City of
Prichard for the position of fire chief.
"4. In making such appointments, it is an
accepted practice for the Mayor of the City of
Prichard to utilize employment contracts which
enumerate the terms under which an appointee for the
position of fire chief will serve. Additionally, it
is an accepted practice for the Mayor of the City of
Prichard, and the Prichard City Council, to utilize
employment agreements for a specific, limited term
to effectuate the appointment and removal process of
a fire and police chief under Alabama Code §
11-43C-38 (1975).
"5. On April 19, 2007, I was serving as a duly
elected member of the City Council for the City of
Prichard, representing the citizens of District
Four.
"6. On or about April 19, 2007, former Mayor Ron
Davis and Mark Joseph Trenier signed a proposed
employment agreement, in which Mark Trenier agreed
to provide services as Chief of the Prichard Fire
Department.
"7. The Agreement provided that Mark Trenier
would commence performance under the Agreement upon
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execution by the City of Prichard, for a period of
five (5) years.
"8. After the Agreement was signed by former
Mayor Davis and Mark Trenier, it was submitted to
the Prichard City Council for review and approval,
and the Prichard City Council accordingly considered
a motion to approve the proposed Agreement on April
19, 2007.
"9. As reflected in the Prichard City Council
minutes for April 19, 2007, the Prichard City
Council unanimously carried the motion, and approved
the proposed Agreement between the City of Prichard
and Mark Trenier.
"10. At the time the City Council entertained
the motion to approve the proposed 2007 Employment
Agreement between Mark Trenier and the City of
Prichard, it was my understanding that the motion
was to approve the explicit terms of the Agreement,
including its provisions limiting Mark Trenier's
employment to a term of five (5) years.
"11. I further understood that no additional
vote, motion, or other action on behalf of the
Prichard City Council was necessary to terminate the
employment of Mark Trenier after the expiration of
the Agreement's five-year term. More particularly,
I understood that the proposed Agreement was meant
to serve as the Council's approval of both the
initiation and conclusion of Mr. Trenier's
employment in the position of fire chief.
"12. Former Mayor Ron Davis made two (2)
unsuccessful attempts to have subsequent employment
contracts for Mark Trenier approved prior to the
conclusion of his mayoral term in 2012, and to have
Mark Trenier re-appointed as fire chief.
"13. On March 22, 2012, prior to former Mayor
Davis's defeat in the 2012 Prichard mayoral
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election, the Prichard City Council considered a
motion to approve a subsequent employment agreement
between Mark Trenier and the City of Prichard,
identical to the agreement previously approved on
April 19, 2007. The March 22, 2012, motion to
approve the additional employment contract of Mark
Joseph Trenier failed to carry, gaining only two (2)
of the required four (4) 'yea' votes necessary to
approve the contract.
"14. On October 25, 2012, two days after I
defeated former Mayor Davis in the 2012 Prichard
mayoral runoff, the Prichard City Council again
considered a motion to approve an identical
employment agreement, and to approve the
re-appointment of Mark Trenier as fire chief. The
October 25, 2012, motion also failed to gain the
requisite four (4) City Council votes necessary to
carry the motion.
"15. Due to my participation as a candidate in
the 2012 Prichard mayoral elections, I abstained
from both the March 22, 2012, and October 25, 2012,
votes.
"16. After I assumed the office of Mayor of the
City of Prichard, I allowed Mark Trenier to continue
carrying out the duties of Prichard Fire Chief on a
probationary and/or interim basis. On multiple
occasions, I discussed with Mark Trenier that he
remained employed solely on a probationary and/or
interim basis, pending a thorough review of the
Prichard Fire Department by my administration,
including interviews with employees and an
assessment of the department's leadership. I made it
clear to Mark Trenier that I would not submit my
recommendation to the city council for his renewal
and/or re-appointment as fire chief unless I was
satisfied with his leadership after the departmental
review. I further informed Mark Trenier that I would
not submit him as a candidate for re-appointment to
the Prichard City Council if I determined that the
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City of Prichard was [not] best served by his
continued leadership of the Fire Department.
"17. During this interim period, Mark Trenier
never raised an objection to his status as
probationary and/or interim fire chief, [to] the
position that his tenure as fire chief had expired
under the terms of his 2007 Employment Agreement as
approved by the Prichard City Council, or [to the
fact] that his re-appointment may not be submitted
to the city council for approval after a
departmental review by my administration.
"18. After a thorough review of the state of the
Prichard Fire Department, including interviews with
employees and an assessment of the department's
leadership, I determined that it was not in the best
interest of the City of Prichard that Mark Trenier
be submitted for re-appointment as fire chief. More
particularly, I determined that Mark Trenier's
leadership of the Prichard Fire Department had
become ineffective, and that his re-appointment was
not advocated."
Trenier also filed his own motion for a partial summary
judgment on the issue of liability, supported by his verified
complaint as well as documents proffered by Mayor Ephriam and
the City of Prichard in support of their jointly filed motion
for a summary judgment. The trial court conducted hearings on
January 10, 2014, and February 28, 2014, and thereafter
entered a summary judgment in favor of Mayor Ephriam and the
City of Prichard. Trenier appealed.
II. Standard of Review
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"'We review the trial court's grant or denial of
a summary judgment motion de novo.' Smith v. State
Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala.
2006) (citing Bockman v. WCH, L.L.C., 943 So. 2d 789
(Ala. 2006)). A summary judgment is proper if there
is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.
Rule 56(c)(3), Ala. R. Civ. P. If the movant meets
this initial burden, the burden then shifts to the
nonmovant to present 'substantial evidence' showing
that a genuine issue of material fact exists. Ex
parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184
(Ala. 1999). Substantial evidence 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.' West v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). In
determining whether a genuine issue of material fact
exists, this Court views the evidence in the light
most favorable to the nonmovant and resolves all
reasonable doubts in favor of the nonmovant. Jones
v. BP Oil Co., 632 So. 2d 435, 436 (Ala. 1993).
Moreover, '[t]he trial court's ruling on a question
of law carries no presumption of correctness, and
this Court reviews de novo the trial court's
conclusion as to the appropriate legal standard to
be applied.' Dunlap v. Regions Fin. Corp., 983 So.
2d 374, 377 (Ala. 2007) (citing Ex parte Graham, 702
So. 2d 1215, 1221 (Ala. 1997))."
Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919
(Ala. 2007). Because the facts are undisputed, we are
presented with a question of law, and our review is de novo.
III. Discussion
On appeal, Trenier does not dispute that his appointment
to the position of fire chief of the City of Prichard complied
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with the requirements of § 11-43C-38(a); he does not dispute
the validity of his employment agreement; and he does not
dispute that Mayor Ephriam had a right to seek his removal
from that position. Instead, he challenges Mayor Ephriam's
"unilateral" exercise of that right of removal.
Specifically, he argues that Mayor Ephriam was required to
follow the removal mandates of § 11-43C-38(a), which state
that a fire chief "shall be removed from office only upon
recommendation by the mayor with the approval of four council
members." (Emphasis added.) According to Trenier, once the
city council voted on April 19, 2007, to approve his
appointment as fire chief, the position remained his until he
either resigned or was removed from office by at least four
members of the city council based upon a recommendation of the
mayor. Trenier further asserts that the existence of an
employment agreement within the context of a statutory
appointment of a fire chief or a police chief does not alter
the fact that four votes are necessary for removal of that
chief.1 Mayor Ephriam and the City of Prichard, on the other
1
We note that neither Trenier nor Mayor Ephriam and the
City of Prichard have provided this Court with any argument
concerning whether a governing body such as the city council
or the mayor has the authority to have an appointed, at-will,
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hand, assert that it was common practice on the part of the
mayor and the city council to use employment agreements for
specific limited terms to effectuate both the appointment and
removal mandates of § 11-43C-38(a) and that once the city
council voted to approve Trenier's agreement for a limited
term, no further action was needed to remove him from office
in the event he was not reappointed.
The facts of this case are undisputed, and the issue is
a pure question of law regarding the interpretation of the §
11-43C-38(a). Specifically, the issue is whether the city
council was required to follow the removal mandates stated in
§ 11-43C-38(a) after Trenier's employment agreement had
expired. In other words, did the city council's initial
action of approving Trenier's agreement, which by its very
terms was to expire on April 19, 2012, impliedly satisfy the
removal mandates of the statute? It has been brought to this
Court's attention by the parties and the trial court that the
City of Prichard is the only Alabama municipality subject to
the provisions of Chapter 43C of Title 11 and that there are
position, such as a fire chief, made lawful through a
multiyear contract for services. We further note that the term
of Trenier's employment agreement exceeded Mayor Davis's term
of office.
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no appellate decisions discussing the application of § 11-43C-
38(a) or otherwise addressing the hiring or firing of a fire
chief under the statute. Accordingly, this Court will adhere
to the following principles of statutory construction:
"This Court has held that the fundamental rule
of statutory construction is to ascertain and give
effect to the intent of the Legislature in enacting
a statute. IMED Corp. v. Systems Engineering Assocs.
Corp., 602 So. 2d 344, 346 (Ala. 1992). If possible,
a court should gather the legislative intent from
the language of the statute itself. Advertiser Co.
v. Hobbie, 474 So. 2d 93 (Ala. 1985). If the statute
is ambiguous or uncertain, the court may consider
conditions that might arise under the provisions of
the statute and examine results that would flow from
giving the language in question one particular
meaning rather than another. Clark v. Houston County
Comm'n, 507 So. 2d 902, 903–04 (Ala. 1987). The
legislative intent may be gleaned from the language
used, the reason and necessity for the act, and the
purpose sought to be obtained by its passage.
Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n
of Tuscaloosa County, 589 So. 2d 687, 689 (Ala.
1991)(citing Ex parte Holladay, 466 So. 2d 956
(Ala. 1985))."
Norfolk Southern Ry. v. Johnson, 740 So. 2d 392, 396 (Ala.
1999).
We begin our discussion with the fact that the City of
Prichard operates under a mayor-council form of government,
which is governed by § 11-43C-1 et seq., Ala. Code 1975.
Wilson v. Dawson, 590 So. 2d 263 (Ala. 1991). The mayor's
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powers in a mayor-council form of government are defined in §
11–43C–37, which states, in pertinent part:
"All executive powers of the city shall be
vested in the mayor and the mayor shall be the head
of the executive and administrative branches of the
city government. ... The mayor shall be responsible
for the proper administration of all affairs of the
city, and, except as otherwise provided herein, he
shall have the power and shall be required to:
"(1) ....
"(2) Appoint and remove, when necessary for the
good of the service, all officers and employees of
the city except those appointed by the council.
Such appointment and removal of personnel are
subject to any merit system provisions in effect at
such time, except for those officers and employees
who are exempted from the merit system by other
section of this chapter."
(Emphasis added.) Mayor Davis appointed Trenier to the
position of fire chief of the City of Prichard pursuant to the
powers bestowed upon him by § 11-43C-37, and the appointment
complied with § 11-43C-38(a).
Although § 11-43C-38(a) makes no mention of a specific
term in office, nothing in the plain language of the statute
prohibits a city from using an employment contract with a
limiting term to satisfy the approval mandates of the statute,
which is precisely what occurred in this case. And, as
previously indicated in note 1, supra, none of the parties
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challenges the mayor's or the city council's authority to
enter into a multiyear contract with an appointed, at-will,
employee for that employee's services. In fact, Mayor Ephriam
stated in his affidavit that "it is an accepted practice for
the Mayor of the City of Prichard to utilize employment
[agreements] which enumerate the terms under which an
appointee for the position of fire chief will serve."
Accordingly, during the five-year term that Trenier served as
fire chief pursuant to his employment agreement he was
afforded the protections of § 11-43C-38(a), and his removal
from that position could be effected "only upon recommendation
of the mayor with the approval of four council members."
Moreover, "contracts of employment that ... specify a definite
period terminate by their own terms at the end of such period
.... See Northrop v. Kirby, 454 F. Supp. 698, 701 (N.D. Ala.
1978)." Shirley v. Lin, 548 So. 2d 1329, 1332 (Ala.
1989)(emphasis added). Trenier admits in his brief in
response to Mayor Ephriam and the City of Prichard's motion
for a summary judgment that his five-year term under the
employment agreement expired on April 19, 2012.
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We now address the effect of the employment agreement as
it relates to Trenier's continued employment as fire chief
after its expiration. The trial court's action in granting
Mayor Ephriam and the City of Prichard's motion for a summary
judgment was based on its conclusion2 that once Trenier's
employment agreement had expired on April 19, 2012, there was
no longer any need for the city council to ratify what it had
already established by a prior vote, i.e., the approval of an
agreement that would, by its terms, expire on April 19, 2012,
and that, upon the expiration of the agreement, Trenier became
2
We note the trial court's action in entering a summary
judgment in favor of Mayor Ephriam and the City of Prichard
was primarily based on its conclusion that the appointment of
fire chief under § 11-43C-38(a) cannot extend beyond the term
of the appointing mayor, explaining that the fire chief's
appointment and service "is inexorably linked to that of the
appointing mayor" and "[t]his appointing authority is
essential so that an incoming mayor's specific public safety
directives may be properly carried out, and that his/or
general executive, administrative, and supervisory powers may
be properly executed." However, as properly noted by Trenier,
had the legislature intended to limit the term of fire chief
to the term of the appointing mayor, the legislature could
have added language to this effect, but it did not. See
Noonan v. East-West Beltline, Inc., 487 So. 2d 237, 239 (Ala.
1986)("It is not proper for a court to read into the statute
something which the legislature did not include although it
could have easily done so."). Accordingly, although the trial
court's legal conclusion appears logical under the
circumstances, this Court cannot not read into § 11-43C-38(a)
something the legislature did not include. Id.
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an at-will employee who served at the pleasure of Mayor
Ephriam. We agree. The trial court's conclusion in this
regard was guided by an order issued by Mobile Circuit Judge
Charles A. Graddick in which Judge Graddick was presented with
an identical issue as it related to the employment status of
the chief of police for the City of Prichard. Judge
Graddick's opinion is part of the record, and it provides a
thorough analysis regarding the issue at hand:
"The essential question is whether the mayor of
a class 5 Municipality such as Prichard always needs
approval of four members of the city council to
appoint, reappoint, or remove a police chief. ...
"....
"In attempting to resolve the dispute over the
statutory interpretation, the Court was unable to
find any appellate opinions that directly address or
even cite [§ 11-43C-38(a)]. The Court is similarly
unaware of any Attorney General Opinion that sheds
light on whether a city council in a Class 5
municipality has to vote to remove a police chief
after a specific term in an employment contract has
expired. The Court accordingly is of the opinion
that the best guidance for answering this question
comes from the general principles of employment
contract law.
"It is well settled that there are two types of
employment contracts: at will employment and
employment for a specific term or undertaking. 19
Williston on Contracts § 54:39 (4th ed.). If
employment is for a specific term, the employee can
only be fired for good cause, whereas an at will
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employee can be fired for good, bad, or no cause.
Id. This rule is followed in Alabama. Under
employment at will, 'an employee may be discharged
for any reason, good or bad, or even for no reason
at all.' Johnson v. City of Marion, 743 So. 2d 481,
483 (Ala. Civ. App. 1999)(quoting Ex parte Amoco
Fabrics & Fiber Co., 729 So. 2d 336, 339 (Ala.
1998)).
"It is clear that Gardner was originally an
employee for a specific term. His contract
contained a specific two-year term. Consequently,
the Court finds that the City properly conceded that
Gardner was entitled to protections of [§ 11-43C-
38(a)] during the term of his employment. The Court
agrees with the City's position that after the
expiration of the term, the post of police chief was
effectively vacant, and the next step was for the
Mayor to appoint a new chief or reappoint Gardner
and submit the choice to the council for a vote.
However, even if Gardner's employment did continue
for the one month he retained the position, he was
at best an at will employee who served at the
pleasure of the Mayor who is the appointment
authority for the position of police chief. Under
[§ 11-43C-37(2), Ala. Code 1975], the mayor has the
power to 'appoint and remove, when necessary and for
the good of the service, all officers and employees
of the city except those appointed by the council.'
Because Gardner's employment had lapsed after
November 20, 2012, the Mayor needed to take action
on submitting a name for police chief to the city
council for the good of the city.
"Additionally, it is well settled that 'an
employment contract for a fixed period terminates by
its own terms.' Guyse v. Morgan County Bd. of
Educ., 516 So. 2d 692, 693-94 (Ala. Civ. App. 1987).
This principle makes Chief Gardner's interpretation
of [§ 11-43C-38(a)] untenable. There was no
evidence that the 2010 contract for a two-year term
was to automatically renew itself unless the city
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council voted otherwise by four votes. This
principle suggests that [§ 11-43C-38(a)] does not
contemplate or require a vote by the council to
formalize the termination of all police chief
contracts. Gardner correctly contends that if he
resigned, the city council would not need to vote
him out by four votes. Similarly, once his contract
expired on November 20, 2012, there was no need for
the council to vote retroactively to make this
result take effect. That would render a formal
express contract meaningless. It is well settled
that this principle of contract law is more
consistent with the city's position that the two-
year express contract of November 2010, approved by
the council, impliedly incorporated the four votes
needed to remove Gardner on November 20, 2012,
absent an earlier vote to the contrary. This is the
more efficient result--there is no need to ratify
what the city council had already established by a
valid vote."
City of Prichard v. Gardner, (CV. No. 2012-902834.00, January
16, 2013)(emphasis added).
Further, although § 11-43C-38(a) does require that
removal of an officer such as the fire chief be recommended
and approved by four council members, nothing in the plain
wording of the statute requires that that approval should or
can be achieved in a specific manner. Instead, the statute
requires only a recommendation of removal by the mayor and
that the recommendation be approved by four council members.
Accordingly, it is reasonable to conclude that Trenier's
removal was "approved" once the city council voted (upon Mayor
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Davis's recommendation) to approve the initial agreement,
which by its very terms expired on April 19, 2012. Although
not controlling, this conclusion is supported by Mayor
Ephriam's unchallenged affidavit testimony that "it is an
accepted practice for the Mayor of the City of Prichard, and
the Prichard City Council, to utilize employment agreements
for a specific, limited term to effectuate the appointment and
removal process of a fire and police chief under [§ 11-43C-
38(a)]." (Emphasis added.) Mayor Ephriam also testified that
it was his understanding that "no additional vote, motion, or
other action on behalf of the Prichard City Council was
necessary to terminate the employment of Mark Trenier after
the expiration of the Agreement's five-year term." In the
absence of a controlling basis provided by Trenier to the
contrary, this Court concludes that Mayor Ephriam and the City
of Prichard's interpretation of the statute is reasonable and
persuasive. Consequently, once Trenier's employment agreement
expired on April 19, 2012, without a subsequent agreement
being approved, he merely served at the pleasure of Mayor
Ephriam, and his employment could be terminated at will by
either the mayor or Trenier. See Ex parte Amoco Fabrics &
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Fiber Co., 729 So. 2d 336, 339 (Ala. 1998) ("[I]n the absence
of a contract providing otherwise, employment in this state is
at-will, terminable at the will of either party. Under this
doctrine, an employee may be discharged for any reason, good
or bad, or even for no reason at all.").
Trenier also argues that "the City, acting through its
Council and Mayor, by expressly allowing or acquiescing [to
his] services as Fire Chief for one year following the end of
the five-year term of the Agreement, should be estopped from
claiming that the appointment is not governed by the
requirements of [§ 11-43C-38(a)]." We find this argument to
be without merit based on our conclusion that once Trenier's
employment agreement expired, he merely served as fire chief
at the pleasure of Mayor Ephriam, and his employment could be
terminated at will by either him or Mayor Ephriam. Moreover,
Mayor Ephriam testified as follows regarding Trenier's
continued employment, which was clearly consensual:
"16. After I assumed the office of Mayor of the
City of Prichard, I allowed Mark Trenier to continue
carrying out the duties of Prichard Fire Chief on a
probationary and/or interim basis. On multiple
occasions, I discussed with Mark Trenier that he
remained employed solely on a probationary and/or
interim basis, pending a thorough review of the
Prichard Fire Department by my administration,
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including interviews with employees and an
assessment of the department's leadership. I made it
clear to Mark Trenier that I would not submit my
recommendation to the City Council for his renewal
and/or re-appointment as fire chief unless I was
satisfied with his leadership after the departmental
review. I further informed Mark Trenier that I would
not submit him as a candidate for re-appointment to
the Prichard City Council if I determined that the
City of Prichard was [not] best served by his
continued leadership of the Fire Department.
"17. During this interim period, Mark Trenier
never raised an objection to his status as
probationary and/or interim fire chief, [to] the
position that his tenure as fire chief had expired
under the terms of his 2007 Employment Agreement as
approved by the Prichard City Council, or [to the
fact] that his re-appointment may not be submitted
to the City Council for approval after a
departmental review by my administration.
"18. After a thorough review of the state of the
Prichard Fire Department, including interviews with
employees and an assessment of the department's
leadership, I determined that it was not in the best
interest of the City of Prichard that Mark Trenier
be submitted for re-appointment as fire chief. More
particularly, I determined that Mark Trenier's
leadership of the Prichard Fire Department had
become ineffective, and that his re-appointment was
not advocated."
(Emphasis added.) Trenier does not challenge on appeal Mayor
Ephriam's affidavit testimony before the trial court. As
further noted by Mayor Ephriam, Trenier never raised an
objection to his status as probationary and/or interim fire
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chief. Accordingly, Trenier is not entitled to any relief on
this claim.
IV. Conclusion
Trenier's employment agreement commenced on April 19,
2007, and extended for a limited term of five years; the city
council unanimously approved the agreement for this limited
term; the city council's approval complied with § 11-43C-
38(a), which requires the approval of four council members;
and once the employment agreement expired on its own terms on
April 19, 2012, with no new employment agreement in place,
Trenier continued serving as fire chief as an at-will employee
at the pleasure of Mayor Ephriam, and his employment could be
terminated by either Trenier or Mayor Ephriam. Ex parte Amoco
Fabrics & Fiber Co., supra. Because nothing in the plain
language of § 11-43C-38(a) prohibits the City of Prichard from
using an employment agreement with a limited term for the
purpose of satisfying both the approval and/or removal
mandates of the statute, the city council's initial action
approving the employment agreement that was due to expire on
April 19, 2012, impliedly satisfied the removal mandates of §
11-43C-38(a), and it was unnecessary for the city council to
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formalize what it had already approved, because requiring it
to do so would be illogical and would produce the same result.
Accordingly, the summary judgment in favor of Mayor Ephriam
and the City of Prichard is affirmed.
AFFIRMED.
Murdock, Main, and Bryan, JJ., concur.
Moore, C.J., concurs in the result.
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