|Legal Opinion: |
Text of Document: March 18, 1993
Your questions are:
1. Can the city secretary keep city payroll records secret?
2. Does the city have to accept the resignation of an aldermen before it is effective?
The answer to the first question is no. The answer to the second question is generally, yes. However, if the city does not accept the resignation and the alderman does not at some point begin to resume the duties of his office, the alderman might be considered to have abandoned his office.
The answer to the first question is controlled by the Tennessee Public Records Act (TPRA) [Tennessee Code Annotated, § 10-7-501 et seq.]. Under that law virtually all city records are open to public inspection by any citizen of Tennessee. In other words even a resident to the City of Knoxville can come to the your City and look at the latter's municipal records. Under Cleveland Newspapers, Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. App. 1981), payroll records are unquestionably included in the records subject to inspection.
In connection with this question, you also asked whether city payroll records could be published in a newspaper. The answer to that question is also yes. I know of no law that requires the municipality itself to publish such records in a newspaper, but the press is certainly free to publish them, and you are free to ask a newspaper to publish them.
With respect to question 2, a member of a municipal governing body can "resign" by officially submitting a written resignation, or by orally declaring his or her resignation. A member of a municipal governing body can also simply abandon his or her office. Obviously, if the resignation is oral, it is better that it be given in the presence of the governing body so that it can be heard by the entire body and can be recorded in the minutes of that body.
If a written or an oral resignation is submitted to the board of mayor and aldermen, the board can accept it and appoint a person to fill the vacancy in office. The Tennessee Supreme Court said in State ex re. Wilson et al. v. Nick P. Bush, Sheriff, 141 Tenn. 229 (1918) that "It is well settled that a resignation is not complete until accepted by the competent authority." In that case the Court suggested that the "competent authority" is the body authorized to appoint a successor to the office.
State ex rel. Wm. Bergshicher v. Edward F. Grace, 113 Tenn. 9 (1904) makes the effect of a resignation clear: once unconditionally given and accepted, it cannot be withdrawn. In other words, a resignation tendered and accepted creates a vacancy in office that must be filled in the manner prescribed for the filling of vacancies in office. (Presumably, the governing body could appoint the person who resigned to the office as long as the appointment was made in the manner prescribed for the filling of vacancies). In that respect a resignation departs from the usual rule that a municipal governing body has the liberal right to reconsider its actions.
Determining and proving that an office has been abandoned can be a difficult problem; therefore, if an aldermen no longer wishes to serve, it is best for the city to obtain from him a written resignation, and if that is not possible, an oral resignation.
Sidney D. Hemsley
Senior Law Consultant