|Legal Opinion: |
Text of Document: May 13, 1998
You have two questions:
1. Can a proposed ordinance be amended between readings, so that the board does not have to start over on the ordinance?
Yes, provided that the amendment is germane to the ordinance as passed on first reading.
2. Is the secretary of the planning commission a public officer?
No. However, the recorder is the secretary of the planning commission, and the recorder is an officer.
I have closely examined your city charter and find no prohibition on the amendment of ordinances between readings, or otherwise requiring that an amendment to an ordinance requires the ordinance to “start over again.”
Absent such a prohibition, even major amendments to ordinances between readings will pass judicial muster as long as they are germane to and within the scope of the subject of the ordinance. In Metro Government of Nashville , etc. v. Mitchell, 539 S.W.2d 20 (Tenn. 1976), the Court agreed that a massage parlor ordinance had been “materially and substantially altered” between first and second readings. On first reading the ordinance prohibited the operation of massage parlors or the giving of massages. On second reading the ordinance was amended to prohibit any person from paying or receiving a fee to touch or offer to touch the sexual parts of another person for the purpose of arousing or gratifying the sexual desires of either party, and to prohibit any business from allowing such conduct. However, held the Court, the ordinance was valid notwithstanding the material and substantial amendment, because the amendment was “germane and within the scope of the original subject of the ordinance.” [Also see Wilgus v. City of Murfreesboro, 532 S.W.2d 50 (Tenn. Ct. App. 1975).]
Under Section 6 of your municipal charter, the city recorder is clearly an officer. [See Wise v. City of Knoxville, 250 S.W.2d 29 (Tenn. 1952); Ross v. Fleming, 364 S.W.2d 892 (Tenn. 1963); Shelby County v. Hale, 292 S.W.2d 745 (Tenn. 1957); Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Ct. App. 1990).] In Sitton, it is said that:
“Public officer” has been defined as an incumbent to a public officer; an individual who has been appointed or elected in a manner prescribed by law; who has a designation or title given to him by law, and who exercises the functions concerning the public assigned to him by law. 67 C.J.S. Officers, sec. 2.
Also, as pointed out in 62 Am.Jur. 2d, Public Officers and Employees, Sec. 10, “(a) public office embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent.”
Sitton appeared again in Gamblin. There the town recorder, Gamblin, argued that he was an “employee” entitled to the town’s personnel policies against termination. In rejecting that claim, the Court simply pointed to a provision of the charter under which the board of mayor and aldermen appointed the recorder and that prescribed the recorder’s duties. It reasoned that:
Plaintiff argues that he is an employee and therefore entitled to the benefit of the town’s employee personnel policies established by ordinance. We cannot agree with this argument. The Bruceton Charter plainly provides for the appointment of the town recorder by the Board of Aldermen....
In the next sentence, the Court supports that reasoning by citing the first paragraph of Sitton’s definition of a “public officer” cited above. The recorder fit that category; that made him a public officer.
Private Acts ____, Chapter ___, as amended [which is also part of the city charter], makes the recorder a member of the classified service under the civil service system established by that Act. However, under that Act the recorder is still an officer. She has various protections provided officers and employees under that Act, but she is still appointed by the board of mayor and aldermen, which has the authority by a majority vote to ignore seniority or membership in the classified service in making appointments to that office. [Section 3.] In addition, the recorder still has a term of office and prescribed duties under the charter. In fact, the Act which made the recorder a member of the classified service did not change those duties, but prescribed additional ones.
The above cases make it equally clear that the secretary of the city's planning commission is not an officer. Municipal planning commissions are created under Tennessee Code Annotated, section 13-4-101 et seq. Nothing in that statute even mentions the secretary of the planning commission, let alone prescribes a term of office and duties for the secretary. Tennessee Code Annotated, section 13-4-102, authorized the planning commission to “appoint such employees and staff as it may deem necessary for its work, and may contract with city planners and other consultants for such services as it will require.” Section 14-103 of the municipal code tracks the exact language of that statute. The secretary of the planning commission is undoubtedly appointed under Tennessee Code Annotated, section 13-4-102 and the municipal code, section 14-103. It is obvious that no such employees, staff, consultants, etc. rise to the level of officers. The city recorder may perform duties as the secretary of the planning commission, but she derives her status as an officer from the city charter.
Sidney D. Hemsley
Senior Law Consultant