dissenting.
I must respectfully dissent from the views of my distinguished colleagues in this matter.
At the outset, I believe it is unfortunate that the charter of Metropolitan Nashville and Davidson County does not allow the mayor to hire and fire all of his department heads at will.1 This limitation places a difficult burden upon him in the performance of his executive duties. However, the framers of that charter in their wisdom saw fit to protect department heads coming under civil service from mayoral preference alone. This being the case, I believe that the proof in this record is insufficient to sustain a finding by the Civil Service Commission that Mr. England failed “to administer the department” by “keeping up with the times” and “increasing the building permit costs, which denied the Metropolitan Government funds.” As I see it, from the time the appellant was appointed the Director of Codes Administration in 1974 until his demotion, he acted with reasonable prudence on the question of raising fees for building permits.
The proof disclosed that at most some eighteen months transpired after the appointment of the appellant before he began discussing with contractors the reasonableness of the existing policy of issuing building permits on the basis of a construction cost of ten dollars per square foot and before he began espousing the view that such charges were unrealistically low. If the appellant is to be demoted, in my view, it must be by his failure to promulgate new regulations during this eighteen month period in 1975 and 1976. This is because in early 1977 he sought the advice of an assistant metropolitan attorney as to what he should do about the matter of raising the fees. He was advised by that attorney of the previous “veto” by the mayor of a regulation proposed by the then department head, Robert Walker, appellant’s predecessor, which attempted to increase the fees during the former Mayor Beverly Briley’s *145administration. It was suggested to him by this attorney that he should ask Mayor Fulton’s office for advice on how to proceed. In my view, it does not matter whether this advice could be classified as “political” or “legal.” It was advice upon which he was entitled to rely and which, I believe, shielded appellant as to the actions he subsequently took.
Following the advice of counsel the appellant wrote the mayor in the spring of 1977 expressing his belief that there was a need for a fee increase and requesting the mayor’s guidance in the matter. Obviously, the decision was made in the mayor’s office that the matter was too “politically” sensitive for final determination in that forum. Thus, Mr. England was told to take the matter up with the Metropolitan Council of Nashville and Davidson County.
Significantly, after being apprised by the appellant on May 6,1977, that in his opinion the rates were too low, the mayor did not instruct Mr. England to immediately raise the rates by regulation. Rather, his office suggested that the “political football” be passed on to the council.
Ordinances — as opposed to regulations— were prepared raising the rates after it was determined that “it was not in the best interest of the mayor to make the decision.” The question lingered before the council for six months until the council requested the mayor to form a “study committee.” The first such committee was formed in December, 1977. On February 7, 1978, nine months after Mr. England had first sought to get a rate increase with the assistance of Mayor Fulton, the mayor appointed a second study committee “to investigate underestimation of construction costs in obtaining permits.” As a result of the report of that committee, the mayor then notified Mr. England that he was being demoted one grade and laterally transferred, which produced the instant action testing that demotion and transfer.
Though it is unfortunate that the mayor as of right could not have made this move with the department head, I do not believe that appellant should suffer, especially in the critical human areas of loss of self esteem and reputation, by what I find to be the unwillingness of the executive or legislative branch of the metropolitan government to support Mr. England’s initial request for an increase — or to use his inaction as an excuse for avoiding the mandate of the metropolitan charter. I believe Mr. England was no more derelict in the performance of his duties in this matter than was the mayor, or, for that matter, the council. The eighteen month time period between his becoming director and his starting to take active steps to increase the fees favorably compares with the time period taken to go through the various processes of “passing the political buck,” so to speak, by the office of the mayor and council. Thus, I cannot find cause for the punishment of Mr. England, regardless of how modest, by any inaction early in his tenure as Director of Codes Administration.
I agree with my learned brethren that the appellant did receive due process throughout the administrative hearing procedures. Further, I agree that the appellant’s claim that he could not be used as a witness in a civil proceeding is without merit. However, for the reasons before stated, I agree with the appellant’s contention that the actions of the mayor in demoting and laterally transferring Mr. England are not justified by the evidence in this record. Whether the legal niceties be couched in terms of estoppel, or executive condonation of, or acquiescence in, his actions, I do not believe Mr. England was treated fairly in view of the mandate of the charter.
I would overturn the action of the trial court and require appellant’s reinstatement with all the entitlements attendant thereto.
. Charter of the Metropolitan Government of Nashville and Davidson County, Tennessee, Art. 5, § 5.03.
Except as otherwise provided in this Charter, the mayor shall appoint all directors of departments, subject to limitations of civil service provided by this Charter, if any. All departmental directors not under civil service limitations appointed by the mayor shall be confirmed by the council and may be removed by the mayor as provided herein or in the creating ordinance.
The director of codes administration is a civil service employee and is not covered by the above quoted section.