|Legal Opinion: |
Text of Document:
FROM: Sid Hemsley, Senior Law Consultant
DATE: April 22, 2010
RE: Commission Form of Government
You have the following questions:
1. What is the function of individual aldermen appointed commissioners to supervise departments of the city?
2. Can the secretary-treasurer of the city give pay raises to employees?
Answer to, and analysis of, Question 1
The City is incorporated under Private Acts 1941, Chapter 486. It is a peculiar charter to the extent that the city is governed by a board of mayor and aldermen, but under Private Acts 1986, Chapter 145, Section 2, that charter was amended to provide that the individual aldermen are appointed commissioners over departments of the city. [Section 5]. Here it seems important to note that for the life of the charter, including since 1986, the mayor of the city has had the power of “general supervision of all officers of the Municipality and see that all laws and ordinances are enforced ....”
But the City Charter does not say what powers the aldermen have in their capacities as “commissioners” of the city departments. Section 6 of the charter says simply that: “... and the Mayor shall proceed to appoint each member of the Board as a commissioner of the various city departments.” Not another word in the charter speaks of what an alderman is to do in his or her capacity as a commissioner of a city department. However, Section 1-102 of the
Municipal Code provides that, “Each department of the city government shall be under the immediate supervision of an alderman who shall be designated by the board to supervise that department.” That is true.
Your concern that aldermen appointed to be commissioners to supervise city departments reflect incompatible offices might be a valid one if the City Charter did not provide for aldermen serving as commissioners. The common law doctrine of incompatible offices can be overturned by statute. But where, as in your city’s case, the charter does not prescribe what power aldermen who function as commissioners have with respect to city departments, we are left to try to supply an answer. It also concerns me with respect to the power of commissioners that under Section 6 of the charter, the mayor has the power of “general supervision of all officers of the Municipality and see that all laws and ordinances are enforced....” The question of whether the mayors power of general supervision conflicts with the commissioner’s power of immediate supervision under Section 1-102 of the Municipal Code arises.
Tennessee does not by statute provide for a commission form of government. Tennessee Code Annotated, 6-18-101 et seq., contains a general law manager-commission charter, but it would be more accurate to call the commissioners in that charter aldermen; they no individual power or control over departments. It is said in 2A McQuillin, Municipal Corporations, 9.20 (3rd Ed.) that:
The commission plan has been in operation in some of the cities of the United States for a long period of time. In many cities the electors by vote name the commissioner to take charge of a specified department; in others the commissioners as a body assign the commissioners to departments. The work of administration is appointed among the commissioners, each being the head of a department for which he or she is responsible. In some cities the mayor exercises general supervision only, while in others the mayor has charge of one or more particular departments.... The making of divisions and apportionment of powers and functions among the several commissioners and among the various departments in accordance with general policies outlined in the governing laws ordinarily is deemed a legislative function with the discretion of the commission, and the courts will not interfere with the exercise of this discretionary power unless it is clearly beyond the scope of lawful authority, i.e., unless it is an abuse of discretion.
That language points out that there are various kinds of commission forms of government. Under the City Charter the mayor appoints the individual aldermen commissioners over departments, but appears to otherwise preserve the mayor-aldermanic form of the city's government. But that language also points out that under whatever form of commission form of government the particular city has, what power the commissioners exercise is generally a legislative function. There being no state law under which the City’s “commissioners” are appointed, and that dictates what powers they have, it appears a legislative function for the Board of Mayor and Aldermen to prescribe what powers they have. That board has prescribed that the commissioners shall have the power of “immediate supervision” over the affairs of the department over which they individually have been appointed.
Such a delegation of power by the city's governing body appears to be consistent with Tennessee law, which allows a municipal governing body to delegate its administrative powers. [See Mayor of Chattanooga v. Geiger, 81 Tenn. 611 (1884); Whyte v. Mayor of Nashville, 32 Tenn. 364 (1852); City of Memphis v. Adams, 56 Tenn. 518 (1872); Nashville v. Fisher, 1 Tenn. Cas. 345 (1874); Rockwood v. C.N.O. & T.P. Ry., 160 Tenn. 32, 22 S.W.2d 237 (1929); Lotspeich v. Morristown, 141 Tenn. 113, 207 S.W.719 (1918).]
It is said in Lotspeich, above, that:
The law has always recognized and emphasized the distinction between instances in which a discretion must be exercised by the officer or department or governing body in which the discretion is vested and the performance of merely ministerial duties by subordinates and agents. Therefore the appointment of agents to carry out the authority of the council is entirely competent and does not violate the rule ‘delegatus non protest delegare.’ Thus, the council may create committees or other bodies to investigate given matters, to procure information, to make reports and recommendations, and not exceed its powers in the matter under consideration, but the council alone must finally determine the subject committed to its discretion and judgment. [At 721]
It is also said in City of Rockwood, above, citing Geiger, above, that:
It cannot be supposed that the Legislature in giving the Mayor and Aldermen the power enumerated in their charter intended that they should be held to the personal performance of every duty imposed. From necessity a municipal, as well as other corporations, must discharge many of its functions and duties by officers and agents. [At 240].
The same case also said that, “The general rule against delegation by municipal bodies does not forbid the delegation of ministerial, executive, or administrative functions to subordinate officials.” [At 240]
I can think of no reason that your city's governing body, could not delegate to the commissioners over departments the mayor is empowered under the charter to appoint, its administrative authority to “immediately supervise” the city departments. The city’s governing body always retains the power to legislate with respect to those departments. For that reason, the governing body always retains the power to expand and limit the scope of “immediate supervision,” as long as it does not abuse its discretion in doing so. It has been held many times that an administrative agency is a creature of statute and can exercise only those powers conferred expressly or impliedly upon it by statute, and that the exercise of power beyond statutory authority is null and void. [General Portland v. Chattanooga-Hamilton County, 560 S.W.2d 910 (1976); Madison Loan & Thrift v. Neff, 648 S.W.2d 655 (Tenn. Ct. App. 1982); Holiday Inns, Inc. v. Olsen, 692 S.W.2d 850 (Tenn. 1985); Southern Ry. v. Taylor, 812 S.W.2d 577 (Tenn. 1991).]
That brings us to the question of resolving the conflict between the mayor’s power of “general supervision” and the aldermen’s power (acting as commissioners) of immediate supervision of the officers of the city.
Although the cases go both ways, the heavy weight of authority is that a statute denominating the mayor the “chief executive of the city,” or granting him the power of general supervision over officers or employees will be narrowly construed, and generally does not bestow upon the mayor the power to run the day-to-day operations of the city. Indeed, the outcome of the cases involving the definitions of the mayors power of “general supervision,” chief executive officer of the city and similar terms are lopsided. Virtually all of them declare that a mayor who has those powers does not have the authority to interfere in the day-to-day operations of the municipality or to otherwise intercept the city governing body's power.
A significant exception to that general rule is seen in Fredrickson v. Albertsen, 161 N.W.2d 712 (Neb. 1968). In that case, a statute provided that the mayor had “the superintendency and control of all the officers and affairs of the city,” and the chief of police had “the immediate superintendency of the police.” [At 713] The mayor ordered the chief of police to assign a lieutenant to the midnight shift to insure that there were ranking police officers on duty on each shift. The chief of police refused to obey the order and the mayor ordered him fired for insubordination. The civil service commission affirmed the discharge. The question was whether the mayor exceeded his authority in making the order the chief of police refused to obey.
The Court held that the mayor was impliedly within his authority to issue the order, reasoning that, “The city’s civil service commission possesses broad discretion in ruling on orders of discharge by appointing powers.” The only issue, said the Court was whether the commissions order was made in good faith for cause, and concluded that it was because, “Assignments of policemen with officer rank to scheduled periods of duty in a department that numbers only three officers may express major policy.” [At 713]
In this case, the mayor had more than the power of general supervision over the affairs of the city; the statute in question expressly gave him the power of “the superintendency and control of all the officers and affairs of the city.”
Similarly, in City of Brighton v. Gibson, 501 So.2d 1239 (Ala. Civ. App. 1987), held that the mayor has the authority to hire a personal secretary without the approval of city council, citing Alabama Statute 11-43-81, of which the pertinent part, said the court, was the provision that “The mayor shall have general supervision and control of all other officers and affairs of the city or town....” However, in the next paragraph the court declared that:
In our opinion 11-43-81, in the absence of any contrary statute or other contrary appropriate authority, gave the mayor the authority to hire the employee as her personal secretary without obtaining the consent of the City Council. Such authority is implicit in and merely part of the broad authority granted to the mayor by 11-43-81 to supervise and control the affairs of the city.
The addition by the court of that italicized language is significant, for Alabama Statute 11-43-81 actually read: “The mayor shall be the chief executive officer, and shall have general supervision and control of all other officers and affairs of the city or town, except as otherwise provided by this title. He shall have the power to appoint all officers whose appointment is not otherwise provided in this title....” The major problem the city had in this case was that it could not point to any other statute in that title that put the appointment power over the mayors personal secretary in the city councils hands. For that reason, that case can be confusing and
misleading. Still, the cases can be read for the proposition that board authority can be implied from the mayors power of “general supervision of all other officers and affairs of the city or town....”
The remaining cases that have struggled with those definitions have been far less generous to mayors on questions about their powers of general supervising and their powers as the chief executive of the city.
In Hawkins v. City of Fayette, 604 S.W.2d 716 (Mo. Ct. App. 1980), the mayor, seeking additional compensation for extra duties, testified that “his duties included supervising all city employees (except the city collector), and being at the city power plant 3 to 7 times daily during the installation of a new engine which [duties] went on for 6 or 7 months.” [At 721] A statute also provided that the mayor “shall exercise a general supervision over all the offices and affairs of the city.” [At 721]
But the court rejected his claim to extra compensation, reasoning that “the mayor’s power of “general supervising” does not extend to detailed supervision.” The court relied on the definition of “general supervision” in an earlier case involving an insurance policy
In which it was held that the words meant a supervision of an independent contractors work only to the extent necessary to see that the work was done in accordance with the contract and specifications to cut and trim trees in the area of transmission lines, which work was done by the insured employees, which then could have been excluded from the policy coverage. Analogously, here the words of s 79.12 mean only that the mayor shall exercise a general supervision over all offices and affairs of the city only to the extent to see that the state laws and city ordinances are complied with, these being the further words of the statute. [At 722]
The court did not discuss the question of whether the city had a weak mayor form of government, but it did point out that apparently the city manager resigned the day the mayor became mayor, which was the reason the mayor was supervising the city employees. Presumably, the city manager, had there been one, would have been responsible for the detailed management of the city.
Chief of Police of Chelsea v. Mayor of Chelsea, 488 N.E.2d 424 (Appeals Ct. Mass. 2986), appears particularly instructive on the question of what grants of executive and general supervisory powers to mayors means in municipal charters and statutes. There the question was which of the mayor or police chief had the authority to designate police officers to specific shifts, days off and job assignments. [At 424] The contest, said the court was whether ordinances and regulations based on them, or the city charter prevailed. “If a conflict exists,” continued the court, “the charter controls.” [At 425]
Section 3 of the charter, said the court, provided that:
to the extent pertinent, that the government of the city and the “general management and control of all its affairs shall be vested in a single officer, to be called the mayor, and in a legislative body, to be called the board of aldermen.” The powers of the mayor relevant to this controversy are set out in 50 and 51. Section 50 describes the mayor as the “chief executive officer of the city” and “except as otherwise provided herein,” vests in the mayor “executive powers” which “shall be exercised by him, either personally or through the several officers and boards in their respective departments under his general supervision and control.” The chief of police is appointed by the mayor, subject to the approval of the aldermen, and holds office until a successor is appointed. See 51. Ordinances are established by the board of aldermen, and once approved by the mayor or under 42 (continue in force until amended or repealed.) 40. [At 425]
As to the ordinances governing the police department, the court pointed out that:
Section 12-4 of the revised ordinances declares that the “chief of police shall ... have entire control of the [police] department, its officers and members .... subject however, to the provisions of section  of the city charter.” The chief is required by 13-7 to enforce the ordinances and “orders of the mayor and board of aldermen.” By 13-9, power was conferred upon the chief to make “such rules and regulations for the conduct and control of the police department as he deems advisable, the same being subject to the approval of the mayor and board of aldermen.” [At 425-26]
Under those ordinances, the aldermen and mayor approved rules and regulations “which define the chiefs responsibilities and power, including among those therein set out are designations of police officers to specific shifts, days off and job assignments, or as characterized by the chief (and fairly, we think), the authority to “make daily operational decisions.” [At 426]
The court then narrowly interpreted the powers of the mayor:
Pointing to 50, the mayor contends that the city's executive powers were intended to vest exclusively in the mayor, as the “chief executive officer of the city.” We think, however, that any notion of exclusivity is dispelled by that part of 50 which provides that the executive powers vest in the mayor except as is provided otherwise herein.” Section 57 of the charter, for example, confers upon the board of aldermen executive power similar to that granted the mayor under 50, the power to make appointments. [Citation omitted by me] Additionally, the most common use of the term “executive power” is in contradistinction to legislative and judicial power. [Citations omitted by me.] In this sense, executive power indicates the authority to formulate general policy and to make decisions in furtherance of that policy.
Moreover, construing the term executive powers as meaning managerial powers in general rather than in every detail is consistent with 3 of the charter, which, as earlier noted, places the government of the city and the general management and control of its affairs in the mayor “and in a legislative body,” the board of aldermen. (Emphasis supplied [by court]) The only specific power granted to the mayor by the charter in respect to the chief of police is that found in 51; the chief is appointed by the mayor (subject to the approval of the board of aldermen) who may also remove him, for such cause as he shall deem sufficient....” The remaining charter sections which speak to the powers of the mayor may be described as relating to the efficient and economical administration of the affairs of Chelsea. [At 426-27]
The court also declared in Footnote 3, that:
“We find it of no particular significance that the mayor is described in 50 as the “chief executive officer of the city.” See 3 McQuillin, Municipal Corporations 12.41 (3d ed. 1982) (“The chief officer as executive and administrative head of a municipal corporation is commonly styled the mayor”). [ At 426]
Chelsea also points to an earlier case for support: Chief of Police of Medford v. City Manager of Medford, 416 N.E.2d 985 (App. Ct. Mass.1981). In that case, the city manager proposed a reorganization of the police department, to which the chief of police objected. The city manager argued that he had the authority to make the reorganizations under the charter, which provided the city manager with broad administrative powers, including the power to:
.... act as chief conservator of the peace within the city; to supervise the administration of the affairs of the city; to see that within the city the laws of the commonwealth and the ordinances, resolutions, and regulations of the city council are faithfully executed; and to make such recommendations to the city council concerning the affairs of the city as may seem to him desirable.... [At 987]
Under the same statute the city manager also had the power to appoint and remove most employees of the city. [At 987]
The court acknowledged the broad powers of the city manager and that there was a conflict between the charter and the ordinances of the city under which the police department was organized and a police chief placed at its head.
The court resolved the conflict between the charter and the city's ordinances:
by appropriate recognition of the broad authority of the city manager to set general policy to be carried out by the chief and to supervise and control his actions, but without going so far as to empower the city manager to exclude the chief entirely from the chain of command from the city manager to the department. The trial judge correctly concluded that the reorganization plan proposed by the city manager “isolates and severs the control of the (c)hief from the department.... [At 988]
In Tennessee's sister state of Georgia, Mayor & Council of City of Athens v. Wansely, 78 S.E.2d 478 (Ga. 1953) also deals with the question of a mayor’s power, in this case compared to the civil service commission. Under the city charter, “the Mayor of the city became its chief executive officer.” [At 480] A subsequent statute provided for a civil service commission for the
police department. The civil service commission ultimately took control of the police department. The question was which of the mayor and the police department had the authority to control the police department. The court held that the answer was the mayor, but the language by which the court reached that conclusion is extremely important.
The act of 1872, as we have pointed out, confers exclusive power on the Mayor and Council of the City of Athens to prescribe the duties of its police officers, and this provision of the 1872 act is not altered, expressly or by implication, by the provisions of the Civil Service Act of 1918. And, as we read and construe it, the latter act contains no provision which divests the mayor of his official duty to execute faithfully the ordinances of the city and see that its officers properly perform their respective duties. Hence, we hold that the mayor of Athens, and not the members of the Athens Civil Service Commission, has jurisdiction and authority to direct and control the city's police officers in the performance of those official duties which the mayor and council are required to prescribe. And strength is added to this ruling by the legislatures act of 1946, which in part provides: ‘The mayor of the City of Athens, is hereby declared to be and is hereby made the Chief Executive Officer of the City of Athens.’ Ga.L.12946, p. 313. [At 481]
At first glance this case appears to hold that the mayor had carte blanche to issue orders and directions to the police department, but that conclusion does not survive a second glance. The charter provisions to which the Court pointed in supporting its decision “confers exclusive authority on the Mayor and Council of the City of Athens to prescribe the duties of its police officers....” They made the mayor the chief executive officer of the city, and gave him the “authority to direct and control the city's police officers....” However, the mayors authority to direct and control the city's police officers was “in the performance of those official duties [of the police officers] which the mayor and council are required to prescribe.” This case also clearly connects the mayors executive powers to regulations adopted by the city's governing body; he had no independent powers as the chief executive officer of the city to create regulations.
Also see State v. McCombs, 262 P. 579 (Kan.1928); Kayfield Construction Corp. v. Morris, 225 N.Y.2d 507 (S.C. App. Div. First Dept. 1962); Kearns v. Nute, 50 A.2d 426 (N.H. 1946); Alsop v. Pierce, 19 So.2d 799 (Fla. 1944).]
It seems logical that the power of “immediate supervision” of city departments by the aldermen who are the commissioners of departments means detailed supervision of those departments. Of course, the above cases dealing with the delegation of administrative power by governing bodies stand for the proposition that the city's governing body can adopt rules limiting what “immediate supervision” of departments means, including the adoption of rules that apply to particular departments.
Two other things need to be said here:
First, commissioners’ power of “immediate supervision” is not unlimited. For example, all city departments are bound to follow state and federal rules and regulations, including those that derive from statutes and case law, in carrying out their functions. Where a commissioners exercise of immediate supervision would violate those rules and regulations, the commissioner would be guilty of an abuse of discretion.
Second, there is nothing in the City Charter that provides for a term for the commissioners appointed from the aldermen. Ample case law also supports the proposition that the power to hire also includes the power to dismiss, unless a statute provides otherwise. In Gambling v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990), the town recorder argued that he was an employee, hoping to obtain the protection provided to employees under the towns personnel policies. Holding the recorder to be an officer, the Court declared that with respect to officers, “The right of removal from office is an incident to the right of appointment unless the term of the official is fixed by law for a definite period. See Brock v. Foree, 168 Tenn. 129, 778 S.W.2d 314 (1934).” [At 693]
Similarly, the Tennessee Supreme Court in Gillespie v. Rhea County, 235 S.W.2d 4 (1950), said with respect to an officer appointed by the county governing body and for whose office no term was prescribed by statute or the constitution, that:
The Statute authorizing the appointment of Service Officers did not specify that they could or should be elected for a specified term of office. It is perfectly obvious to us that these officers were appointed at the will of the County Court or the governing body of the City who appointed them as was the chief Service Officer who was appointed by the Governor under whom these County and City Service Officers serviced. The Chief Executive Officer of the State having the power to appoint the Chief Service Officer and the Statute not providing any term for which he should be appointed it necessarily follows that the Governor has the right to fire this officer at his pleasure and that he would have no power to appoint such officer for a term beyond the term of the Chief Executive appointing such officer...[T]he implied power to remove cannot be contracted away so as to bind the appointing authority to retain a minor officer or employee for a fixed, definite term. This is a universally accepted rule where the tenure of office is not prescribed by Statute or the Constitution. Under such circumstances the power to remove is an incident to the power to appoint. [At 7]
Gillespie is cited for the same proposition in Hamblen County v. Reed, 468 F. Supp. 2 (E.D. Tenn.).
For that reason, the mayor can remove a commissioner he has appointed and replace him or her with another alderman. That also gives the mayor some check on commissioners.
Answer to, and analysis of, question 2
The treasurer of the city has no authority to give pay raises to individual employees of the city. The duties of the secretary and treasurer of the city are prescribed in Section 15 of the City Charter. They do not include the granting of pay raises. Indeed, Section 5 of that charter provides that, “It shall also become the duty of said Board [of mayor and aldermen] to fix by ordinance the salaries of all employees and officials employed by the City.” For that reason, pay raises could not be approved by individual members of the board, whether acting as aldermen or as commissioners, unless the board of mayor and aldermen approved (by ordinance) such pay raises.