|Legal Opinion: |
Text of Document: July 25, 1996
You have the following question: What is a “full board” within the meaning of the personnel regulation of the city that entitles an employee to appeal a personnel action to the “full board”?
The answer to that question is not clear. As far as I can determine, only two cases in the United States address the question of what constitutes a “full board.” Neither of those cases directly answers your question. [National Labor Relations Board v. Ohio Calcium Co., 133 F.2d 721 (6th Cir. 1943); Louisville Gas & Electric Co., Inc. v. Duncan, 31 S.W.2d (Ky. Ct. App. 1929.)] However, it is unnecessary to analyze those cases because the question of what constitutes a “full board” is not even pertinent to your question.
If that term is read to mean that appeals from personnel decisions be heard by the entire membership of the board, it is void because it is in conflict with your City Charter. Under that charter (the common law, too) a quorum is a majority of the board, and if there is a quorum present, the board is entitled to act with respect to any measure in which it has authority to act. Charter provisions are mandatory and supersede personnel policies (and any other policies ) in conflict with them. For that reason, the personnel regulations of the city cannot impose a greater quorum requirement than is mandated under the charter.
In State ex rel. Lewis v. Bowman, 814 S.W.2d 369 (Tenn. App. 1991), the director of public works claimed he was terminated in violation of the city’s personnel policies, which gave him certain procedural rights. However, the rights granted to him under the city’s personnel policy were in conflict with the city’s charter provisions, which made department heads employees at will. The Court rejected the public work director’s claim, saying:
It has long been the law in this state, as in many other states, that ordinances of the city are subordinate to the charter provisions. This was pointed out in the case of Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495, 512, 71 S.W. 815, 819 (1903), wherein it was said, ‘The provisions of the charter are mandatory and must be obeyed by the city and its agents; and if in conflict with an ordinance, the charter must prevail.’
A similar result was reached in Dingham v. Harvell, 814 S.W.2d 362 (Tenn. App. 1991) in which the police chief contested his firing by the Millington Board of Mayor and Aldermen. The Court rejected his argument that he was an employee of the city for the purposes of the city’s personnel policies that gave all city employees certain job protection. Under the city’s charter the police chief served at the will of the board of mayor and aldermen. In a contest between the city’s personnel policy and the city charter, the latter prevails, held the Court.
Under the common law a quorum is a majority; however, where a statute or charter establishes a quorum, the statute supersedes the common law. [See Collins v. Janey, 147 Tenn. 478, 249 S.W. 801 (Tenn. 1922); State v. Torrence, 310 S.W.2d 425 (Tenn. 1958).]
Article II, Section 4 of the City Charter provides that:
A majority of said city council shall be kept by the recorder hereinafter of business, but a smaller number may adjourn from time to time and compel the attendance of absent members, under such penalties and in such manner as the said city council may determine by ordinance.
In spite of its terrible grammar, that provision establishes the quorum requirement for the city: a majority of the council.
It is said in 4 McQuillin, Municipal Corporations, section 13.27, that:
The quorum of a body may be defined to be that number of members of the body which when legally assembled in their proper places will enable the body to transact its proper business, or, in other words, that number which makes a lawful body and gives it power to pass a law or ordinance or do any other valid corporate act.
It is also said in 4 McQuillin, Municipal Corporations, section 13.27.10 that, “Where the statute or charter prescribes the number that shall constitute a quorum, it cannot be changed by the body.”
Article II, Section 5 of the City Charter provides that, “All votes of the city council shall be by “Aye” and “No,” and no ordinance shall be binding unless the record of the vote on the same shall show that a majority of the votes cast were for same.” Although that rule expressly applies only to ordinances, by implication it probably applies to all actions of the City Council.
I do not know whether the personnel policy at issue was passed by ordinance. However, if we assume for the purposes of argument that it was not, and that the voting threshold for ordinances contained in Article II, Section 5 does not by implication apply to other measures passed by the board, the law in Tennessee is clear that where a statute or charter does not prescribe the number of votes required to pass measures by public bodies, the number required is a majority of those present and voting. [Collins v. Janey.]
It is also said in 4 McQuillin, Municipal Corporations, section 13.27, that:
Following the rule of the common law, in the absence of applicable charter or statutory provision to the contrary, a majority of a definite body, or of the governing body of the corporation, as the board of directors, the board of council members, the council, etc. consisting of a definite number, when duly met, constitute a quorum for the transaction of business, and the vote of a majority of those present (there being a quorum) is all that is requisite for the passage of an ordinance or bylaw or motion, or the doing of any other act which the body has the power to do. This rule applies to the commission form of municipal government. Where the law is silent on the subject the common law rule will prevail and cannot be changed by the council, as by fixing the quorum necessary for the transaction of its business at two-thirds of the members elected. Neither can it be changed by a municipal board by rule. [Emphasis is mine.]
The above citations make three salient points:
1. Where there is a conflict between a city’s charter and its personnel regulations, the charter prevails.
2. Under the City Charter (the common law, too), a majority of the board constitutes a quorum for the transaction of business.
3. Under the City Charter ordinances are expressly passed by a majority of the votes cast. Arguably, that same rule applies to other measures passed by the city council. However, even if that is not true, the common law governs those other measures, and under the common law those measures pass by a majority of the votes cast.
For those reasons, the term “full board” cannot mean the entire membership of the board; it can mean only a quorum. If there is a quorum, the board can take whatever action it is entitled to take under its charter and any personnel policies consistent with the charter.
Sidney D. Hemsley
Senior Law Consultant