|Legal Opinion: |
Text of Document: February 11, 1993
You have asked whether the Mayor can refuse to sign a contract that the Board of Aldermen have voted to approve.
The answer is no.
As I understand the situation, the contract which the mayor is refusing to sign has to do with a grant being approved by the Tennessee Department of Environment and Conservation. After being considered by the Board, the Aldermen voted unanimously to approve the agreement and complete the grant process.
The city's Municipal Charter provides, in SECTION 4, the Aldermen shall have authority:
(5) To confirm by three affirmative votes,...to approve contracts.
SECTION 6 of the Municipal Charter lists as a municipal power the ability to "make contracts for the carrying on or execution of any public improvement...".
SECTION 9 of the Municipal Charter, which provides for the mayoral duties, specifies that the mayor:
...shall have the duties and powers of a business manager; he shall have supervision and control of all of the administrative affairs of the municipality and be its chief executive.
That section further provides:
All contracts of the Town , shall be executed in the name of the Town, signed by the Mayor, with the seal of the municipality attached thereto, and attested by the Recorder.
The Charter also provides that the mayor has no right to vote except to break ties. SECTION 4.
Put together, these charter provisions indicate that the mayor is not a full member of the board and votes only when the aldermen are deadlocked. Essentially, unless there is a tie, the aldermen set the policy and the mayor, as "business manager," carries out that policy.
The mayor does not appear to have any discretion whether to sign a contract that has been approved by the aldermen. This is consistent with the general law that signing contracts that have been "duly authorized" is a "ministerial duty." McQuillen, Municipal Corporations, 3d Ed. Vol. 17, § 51.51, p.548. Black's Law Dictionary defines a "ministerial duty" as:
One regarding which nothing is left to discretion--a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.
A "ministerial duty" is:
...one as to which nothing is left to discretion. State v. Wimberly, 184 Tenn 132, 196 S.W.2d 561 (1946). McQuillen, Municipal Corporations, 3d Ed. Vol.2, §10.38, p.1111.
Further, an elected official that refuses to exercise a ministerial act may be compelled to do so through a writ of mandamus. A writ of mandamus is:
a remedy through which a public officer charged by law with a ministerial duty may be compelled to perform it. State v. Clark, 173 Tenn. 81, 114 S.W.2d 800 (1938).
Looking at the Charter and in light of the general law that considers the signing of authorized contracts to be ministerial functions, I think there is no doubt that the Mayor must sign this contract. If he continues to refuse, he may be compelled to sign the agreement through a writ of mandamus.