Administrative Law Judge Kim Summers said in an order on Wednesday that the city waited too late to file a request to stay the effectiveness of her decision to put former city police officers Sean Emery and Adam Cooley back on the police force.
The city attorney's office, acting after both Mayor Andy Berke and the City Council called for an appeal, on Tuesday asked that a hold be placed on giving the officers their jobs back until the matter can be further reviewed.
The city attorney's office also asked that a final order be entered so the case can be appealed. The next step would be to go to Chancery Court.
ALJ Summers in her Wednesday order said her order of Sept. 24 was the final order in the case. She said the city should have asked for the stay by Oct. 1 - not a week later.
She also said that once the Sept. 24 order went down the case "was immediately ripe for judicial review" under state law.
Police Chief Bobby Dodd had fired the two officers after an altercation with inmate Adam Tatum at the Salvation Army halfway house on McCallie Avenue.
The incident was caught on a video that was highly publicized.
ALJ Summers said in her Wednesday order:
This contested case is before Administrative Judge Kim Summers pursuant to the Petition
for Stay of Effectiveness filed by the City of Chattanooga on October 8, 2013. In its cover letter, Chattanooga also requested that a Final Order be entered in this matter so that the decision could be appealed.
Pursuant to RESOLUTION NO. 26612 OF THE CITY COUNCIL OF THE CITY OF CHATTANOOGA, §14, any decision rendered by an Administrative Law Judge (ALJ) is the final decision of the City Council. Accordingly, the Initial Order issued on September 24, 2013, by the ALJ was the Final Order of the City Council, which was entered and effective on September 24, 2013.1 As a Final Order, the decision was immediately ripe for judicial review under Tenn. Code Ann. § 4-5-322.
Tenn. Code Ann. § 4-5-316 requires that a Petition for Stay of Effectiveness be filed within seven days of entry of an Initial or Final Order. Since the Initial and Final Order were entered on September 24, 2013, the City of Chattanooga’s Petition should have been filed on or before October 1, 2013.
Since the Petition for Stay of Effectiveness was not filed until October 8, 2013, there is no longer any jurisdiction under Tenn. Code Ann. § 4-5-316 to even entertain a request to stay the effectiveness of the Final Order. For this reason, the Petition for Stay of Effectiveness is hereby DENIED.
It is so ORDERED.
This ORDER entered and effective this the 9th day of October 2013.
ADMINISTRATIVE PROCEDURES DIVISION
OFFICE OF THE SECRETARY OF STATE
1 When the Initial Order is issued by the Administrative Procedures Division of the Secretary of State’s Office, the Parties are notified that no additional notice will be provided when the Initial Order becomes a Final Order.