|Legal Opinion: |
Text of Document: May 7, 2003
Your Management Consultant has informed me of a few questions which have arisen in your City. These questions include: whether the city may, by ordinance or resolution, provide that the mayor may only vote in the case of a tie; whether a city official may be prohibited from running for office until after resigning from their current office; and, whether the city may adopt an ordinance which prohibits family members from holding office simultaneously.
The Charter provides, in section 6-3-106, that the mayor “as a member of the board, may make motions and shall have a vote on all matters coming before the board.” In light of this charter provision, the city may not pass an ordinance to limit the voting powers of the mayor. Ordinances of a city are subordinate to the charter provisions. The Supreme Court declared in Marshall & Bruce Co. v. City of Nashville, 71 S.W. 815, 819 (Tenn. 1903):
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.
The Board of Mayor and Aldermen therefore may not take any action, through either an ordinance or resolution, to place limits on the mayor’s voting rights when sitting as a member of the board.
The charter contains no provision concerning the ability of city officers to seek another office and campaign for that position while holding a seat on the board. The Code contains the following language in section 4-110:
Municipal officers and employees shall enjoy the same rights of other citizens of Tennessee to be a candidate for any state or political office, the right to participate in political activities by supporting or opposing political parties, political candidates, and petitions to governmental entities; provided the city is not required to pay the employee’s salary for work not performed for the city. Provided, however, municipal employees shall not be qualified to run for elected office in the board of mayor and aldermen. The restriction against running for office in the board of mayor and aldermen shall not apply to elective officials.
Under current code provisions, no elected official may be required to resign from their elected position before running for another position with the city. There is no state law provision which requires a candidate for office to resign from an elected position, and there are no cases directly on point with this question.
The Tennessee Attorney General has opined that a private act charter may contain provisions prohibiting officers from running for other positions. Tenn. Op. Atty. Gen. 80-257. This opinion only applies to private act charters, however, as “it is within the discretion of the legislature to determine the qualifications for particular candidates. See 29 C.J.S. Elections § 128; Silides v. Thomas, 559 P. 2d 80 (Ala. 1977); State ex rel. Bible v. Board of Elections of Hamilton County, 22 Ohio St. 2d 57, 258 N.E.2d 57 (1970).”
Since this is an area of law that has been reserved to the legislature, the city may not by ordinance seek to impose greater restrictions on the abilities of officers to run for another office. As a general law charter city, your City may not amend the charter to include such a prohibition.
This same reasoning applies to the question concerning whether the city may pass an ordinance forbidding family members from holding office on the same board. The city has no power to place restrictions on who may hold office, beyond those provisions which already appear in your general law charter.
The city does have authority to restrict nepotism in city employment, however. I found no anti-nepotism ordinance in your code, so there is currently no prohibition against family members having supervisory authority over related parties. Those cities which have enacted anti-nepotism ordinances do not forbid the employment of family members outright, but only forbid family members from having direct supervision over other family members.
I hope this information is helpful. Thank you for consulting with MTAS.
Melissa A. Ashburn