|Legal Opinion: |
Text of Document: Document Text:
January 7, 1997
Your question is: What is the earliest date the city can terminate the city manager?
Section 5-K of your City Charter provides that:
The City Manager shall not be removed from office, other than for misconduct in office, during or within a period of ninety (90) days next succeeding any general municipal election held in the city at which election a new member of the City Council is elected, or when a new member is appointed. [Emphasis is mine.] The purpose of this provision is to allow any newly elected or appointed member of the City Council to observe the actions and ability of the City Manager in the performance of the powers and duties of his office. After the expiration of the ninety (90) day period, the city manager may be removed only by a majority of the City Council as then constituted.
That provision of the charter makes it clear that the city manager can be removed without cause beginning 90 days after the last city election which, I understand, was held in November, 1996.
Tennessee Code Annotated, section 1-3-102, provides that:
The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.
That statute should be used in computing the beginning and the end of the 90 days.
The city has also entered into a contract with the city manager that contains certain provisions related to both the termination of the contract and of the city manager. Section 5 provides for a contract expiration date of December 26, 1994, but further provides that:
At the expiration date of December 26, 1994, this agreement shall be considered renewed for regular periods of one year, provided neither party submits a notice of termination, and further provided that, pursuant to and in conformity with Section 5 of the Charter of _____, “no notice of termination may be given by the City Council of the City of _____ within ninety (90) days of any general election held in the City at which election a new member of the City Council is elected, or when a new member is appointed.”
The contract apparently renews automatically each December 26, unless the city manager quits or is fired by the city. The “notice of termination” spoken of in Section 5 of the contract can only refer to the notice provisions contained in Sections 20 and 26 of the contract. Under Section 20, the city manager is entitled to terminate the contract by giving 60 days written notice. However, the notice by which the city terminates the contract is the notice of the city manager’s termination:
Pursuant to and in conformity with Section 5 or [sic] the charter of the City of ______, [the city manager] may be discharged at any time, except as provided in Section 5-K of the Charter of the City of _____ (ninety day period after general election or appointment of new Council member).
Section 26 provides that:
Any notice provided for or concerning this agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to [the city manager at city hall], and if to the City, to [the mayor at city hall].
The contract does not specify who gives the city manager notice of termination. If he is present when the termination vote is taken, he has actual notice of the termination. However, it is advisable to follow the letter of the contract; immediate written notice of termination should be given in accordance with Section 20 of the contract. That could be done by simply mailing (by certified or registered mail) the city manager a copy of the minutes of the meeting at which the termination vote was taken along with a cover letter briefly explaining that he had been terminated by a majority vote of the city council on X date as reflected in the attached minutes of the council.
Sidney D. Hemsley
Senior Law Consultant