 | Legal Opinion: 
Reference Documents:
Text of Document: FROM: Donna Leydorf, Legal Consultant
DATE: November 22, 2000
RE: Absent Alderman
You asked me yesterday about how the board of aldermen in a city could fill the position of an alderman who has been absent from several meetings, with no apparent excuse. Section 6 of the city’s charter says that “in the case of a vacancy in the office of Mayor and Aldermen, the same shall be filled by the remaining members of the board of aldermen and mayor to fill a vacancy.” Section 7(a)(3)(A) states that one of the duties of the Mayor is that he/she “[s}hall make temporary appointments of any officer or department head in case of sickness, absence or other temporary disability.” Section 7(a)(3)(B) says that “the board may confirm the Mayor’s appointment or otherwise appoint a person to fill the vacant office, unless this duty has been delegated as authorized in this charter.” I could not find any definition of the word “vacancy” in the city’s charter. An Opinion of the Tennessee Attorney General states that, at least under the mayor-aldermanic charter, “vacancy” in the office of mayor occurs when the mayor moves out of the municipality and the position is declared vacant, or by resignation. The Attorney General stated that unless one of those two contingencies has occurred, there is no vacancy in the office of the mayor. The city has a private acts’ charter, so this Opinion is not dispositive.
The city’s charter has language providing for the board to appoint one of their own members “to preside at all the meetings of the Board during absence, incompetency, or illness of said mayor.” (Section 10.) There is no provision, however, dealing directly with filling the position of an alderman who has merely been “absent.” The facts as you have given them to me indicate a mere absence, for which a temporary appointment could be made to fill the alderman’s position. Unless there is clear evidence that the absence constitutes either dereliction of duty, for which a remedy might exist under §§8-47-101 – 8-47-126, Tennessee Code Annotated, or if the alderman has “abandoned” his/her office, which would require a detailed investigation into the particular facts [See Kelly v. Woodlee, 133 S.W.2d 473 (Tenn. 1939)] there is not a vacancy in the position. Please let me know if you learn other facts which might help us to determine the proper action in this situation. |