Knowledgebase-Does the Mayor Have the Right to Vote?


Information Product

Title:Does the Mayor Have the Right to Vote?
Summary:MTAS was asked whether a mayor, as a member of a legislative body, can vote.
Original Author:Hemsley, Sid
Co-Author:
Product Create Date:01/09/2006
Last Reviewed on::06/12/2017
Subject:Mayor; City council--Procedure
Type:Legal Opinion
Legal Opinion: Does the Mayor Have the Right to Vote public.doc

Reference Documents:

Text of Document: January 9, 2006

Dear City Recorder:

The city council of the City has the following question: Does the mayor generally have the right to vote?

In my opinion, the answer is no, except in case of a tie between candidates for the office of alderman. However, upon a review of the law on this question, and a close review of the City Charter, the question appears to me to be a much closer one than I had previously thought. As I understand the facts, the city attorney has given the city an opinion that the mayor has a general right to vote. Given certain language in the charter, I think a strong argument can be made to support that proposition. The courts could go either way on the question. For that reason, I recommend that the city clear up this question by amending the charter to make it clear whether the mayor has the general right to vote.

In Tennessee, a mayor is a member of the legislative and administrative bodies of the city only to the extent expressly provided in the charter or statute. [See Reeder v. Trotter, 142 Tenn. 37, 215 S.W. 400 (1919) and Anderson v. Town of Gainesboro, 1992 WL 33893 (unreported)].
The actual question in Reeder was whether the county judge of the Knox County Court could vote. No, held the Court, reasoning that the county judge was not a member of the county court. It was conceded in that case that A none of the legislative enactments, pertaining to the office of county judge, expressly constitute him as a justice of the peace, or a member of the county court, or authorize him to vote upon any measure coming before said court. @ [At 400]

The first thing the Court did was state the rule governing voting on the part of a presiding officer of a governing body, based on his membership of that body:

Where the presiding officer is a member of the body, and, as such member, permitted to vote with the other members, the fact that he was chosen to act as presiding officer would not deprive him of that privilege. For example, in a county where the county court is presided over by a county chairman, he, being a member of said court, clearly has the right to vote. In our state Legislature each body chooses one of its members as speaker. The Constitution is silent as to their right to vote, but being members they unquestionably have the right, and have always voted as other members. The same is true as to the speaker of the House of Representatives in the National Congress. The Constitution of the United States expressly provides that the Vice President shall be President of the Senate, but shall have no vote unless they be equally divided. Not a single case has been brought to our attention in which it has been held that a presiding officer of any organization, in the absence of express authority, has a right to vote where he is not a member of such organization.

Important with respect to the City ' s question is that in support of its holding, the Court turned to various treatises and cases dealing with the voting rights of municipal mayors. Closely read, those treatises and cases indicate that a mayor ' s right to vote involves two questions:

1. Is a mayor a member of the city ' s legislative body?

2. If the mayor is a member of the city ' s legislative body, does he have the same legislative powers as other members of the city ' s legislative body?

I will quote at length what the Court said on both those questions:

Dillard on Municipal Corporations, vole 2, ' 513, says: " The question of whether the mayor of a city shall be regarded as a member of the council is one of legislative intent. It is within the power of the legislature to confer upon him the functions of a member of the council in every respect, and if the legislation on that subject calls for that construction he will be so regarded. But in American Jurisprudence the mayor is not necessarily a constituent part of the legislative power of the municipality. His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute . In this view, in the absence of a statute necessarily implying that he has the same standing in the council, as any other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council sub moto, and to the extent of the powers specially committed to him ." [At 401] [Emphasis is mine.]

In Jacobs v. San Francisco, 1001 Cal. 121, 34 Pac. 630, the Supreme Court said: "The mayor is not...necessarily a constituent part of the legislative power of the municipality. His functions are of an executive or administrative character....Whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute."

In Cate v. Martin, 70 N.H. 135, 47 Atl. 54, 48 L.R.A, 613, Judge Blodgett for the Supreme Court of that sate said: "The mayor of a city is not an alderman or councilman of the city in a general or proper sense of those terms...He is not a member of either branch [legislative or administrative] of the city council unless expressly made by such law;...and when this is the case, it is to the extent of such powers as are specially committed to him, and no further that he is a part of the city council. He is not one of its own members in the sense of which an alderman is; ... nor has it been understood that he is to be counted in determining the presence of a quorum ... Applying the principles of these authorities (and none have been found to the contrary) to the statutory provisions relating to the mayor and aldermen cited in behalf of the defendants, the result is indubitably to establish the proposition that while the mayor is a constituent part of the...board for some special purposes, he sits and acts in the board not in the capacity of an alderman, but in the capacity of an ex officio presiding officer, and exercises those powers only which have been specially committed to him as the chief executive officer of the city." [At 401]

If the mayor, who presides at the council meeting, is not a member thereof, nor entitled to vote in the absence of express legislative authority, then by the same parity of reasoning, it seems to us that, in the absence of such express authority, the county judge cannot be held to be a member of the county court and clothed with authority to vote as a member thereof, or vote in case of a tie. [At 402] [Emphasis is mine]

In Gainesboro v. Anderson , above, the question was whether the mayor had the right to vote on all matters that came before the board. The trial court held that the answer was yes, but reversed itself upon rehearing. The Tennessee Court of Appeals upheld the trial court, which, quoting Reeder v. Trotter at length, said that:

If the mayor of a city is to be allowed to vote as a member of the board of mayor and aldermen, he must be given that authority expressly and not by implication. There is nothing in the charter of the Town of Gainesboro or any amendment thereto which expressly gives the mayor the authority to vote . [At 4.] [Emphasis is mine.]

I am exquisitely familiar with this case because on October 10, 1990, I gave the City of Gainesboro an opinion that under its charter the mayor of the City of Gainesboro had the right to vote. Nowhere in the charter was there any express language giving the mayor the right to vote, but I pointed to all the places in the charter that gave the " Mayor and Board of Aldermen" of the City legislative powers, and concluded that by implication they gave the mayor the general right to vote. A declaratory judgment action by the mayor resulted in the trial court holding that the mayor had the general right to vote on all matters. My opinion turned out to be wrong; I was not aware of Reeder v. Trotter at the time and neither was the trial court. Subsequently, on a rehearing of the case at which that case was brought to its attention, the trial court reversed itself.
I have attached that opinion and the references in the charter to the legislative powers of the mayor and board of aldermen that are found in the Gainesboro City Charter. Note that one reference is to ' 9, in which even provides that; the Mayor and Board of Aldermen shall elect a Town Recorder, a Town Treasurer, and a Town Marshal, and that :they shall also...elect three qualified voters [to become school directors], that annually thereafter, they shall elect one member of said board for a term of three years....," and that "They shall...appoint all necessary committees to carry out the provisions of the charter, and all ordinances passed by them hereunder, and shall fill all vacancies [in the above offices]." I was certain that the references in the charter to the legislative powers of the "Board of Mayor and Aldermen," especially those spoken of in terms of "they" and "them" was convincing evidence that the intension of the charter was to give the mayor the same right to vote as the aldermen. But those provisions were not enough to give the mayor the right to vote, said the Court .

It must be said that the vesting of those legislative powers in the Gainesboro City Charter were to the "Mayor and the Board of Aldermen" rather than to the "Board of Mayor and Aldermen." However, Anderson v. Town of Gainesboro interpreted Reeder v. Trotter to mean that the mayor' s claim to a right to vote as a "member of the board of mayor and aldermen" must rest upon an express provision in the charter that gave him the right to vote. For that reason, the distinction between a charter that vests legislative power in a "Board of Mayor and Aldermen" as opposed to a "Mayor and Board of Aldermen" appears to me to be a distinction without a difference. Had that Gainesboro City Charter vested the legislative power in the "Board of Mayor and Alderman," the result would have been exactly the same.

It must also be said here that Anderson v. Town of Gainesboro is an unreported case. That is significant because unreported cases do not have the precedential value of reported cases. However, they are still weighty; other courts are not likely to ignore it as they determine the law on similar questions.
It appears to me that the application of Reeder v. Trotter, and of Anderson v. City of Gainesboro to the question of whether the mayor can vote requires us to ask and answer two questions:

First, is the mayor a member of the Board of Mayor and Aldermen?
There is no question that the mayor of the City is a member of the board of mayor and aldermen. In fact, ' 2(3) of the charter defines "Board" as "the legislative body of the city, which shall be composed of the mayor and seven (7) aldermen.... " In addition, ' 2(1) of the charter defines "Alderman" as "a person elected to the board as provided in this charter." Finally, numerous other provisions of the charter speak of the "Board of Mayor and Aldermen," such as:

- Section (4)(b): Gives the "[t]he Board of Mayor and Aldermen" the authority to establish and operate a cable television service.

- Section 6:

The legislative powers of the city shall be vested in and exercised by a Board of Mayor and Aldermen elected under the provisions of this act, over whose meeting the Mayor shall preside. Any form of board action shall be passed by a majority of the members present, if there is a quorum. A quorum shall consist of our (sic) Aldermen.

Other provisions of that section require the "Board of Mayor and Aldermen" to hold meetings, "appoint, promote, suspend, transfer and remove from office any officer or employee of the city," and appoint heads of, and combine, administrative offices or organizational units.

- Section 9: "Any vacancies occurring either of the Mayor or the Aldermen, whether by death, resignation or otherwise, shall be filled by the remaining members of the Board...."

The same section also provides that "Whenever, in the opinion of the Mayor or three (3) Aldermen, the welfare of the City requires it, the Mayor or the Recorder shall call, and it shall be their respective duties to do so, special meetings of the Board of Mayor and Aldermen...."

- Section 11: "The Board of Mayor and Aldermen shall at the regular meeting in October next following the City election an Aldermen to the office of Vice-Mayor...."

- Section 12: "The Board of Mayor and Aldermen shall at the regular meeting in October next following the City election elect the Mayor or an Alderman to the office of City Judge...."

Section 13: "The Board of Mayor and Aldermen shall appoint a City Recorder...."

Section 14: "The Board of Mayor and Aldermen shall appoint a Chief of Police [who] shall work under the immediate direction of the Mayor and Board of Aldermen."

The same section provides "The Chief of Police may be removed from office by the Board of Mayor and Aldermen at any time for cause."

Section 17: The "Board of Mayor and Aldermen" settles tie votes among candidates for the board of education "by a majority vote at their first meeting."

Section 18: With respect to ordinances, "Any form of Board action shall be passed by a majority vote of members present, if there is a quorum."

Second, if the mayor is a member of the Board of Mayor and Aldermen, does he have the same legislative powers as other members of the board? In the case of the City, the particular question is whether he has the right to vote .

Section 10 of the City Charter denominates the mayor the chief executive officer of the city and gives him certain administrative and disciplinary powers of city employees, and authorizes the board by ordinance to give him additional functions and duties not incontinent with the charter. Section 6 of the charter vests the legislative powers of the city in the "Board of Mayor and Aldermen...over whose meetings the Mayor shall preside." The same provision declares that "Any form of board action shall be passed by a majority of the members present, if there is a quorum. A quorum shall consist of four Aldermen." Section 7 apparently gives the mayor the right to vote in cases of ties between candidates for aldermen: "If two or more candidates for Aldermen from the same ward receive the same number of votes...then the Mayor and Aldermen elected, between whom there is no tie, shall settle such controversy by a majority vote at their first meeting." If there were nothing else in the charter to indicate otherwise, arguably the mayor fits right into the box that Reeder v. Trotter and Anderson v. Town of Gainesboro drew for a mayor who is a member of the board of mayor and aldermen for the limited legislative power to preside, but who cannot vote because the charter does not expressly give him that legislative power, except in the case of a tie:

"His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. In this view, in the absence of a statute necessarily implying that he has the same standing in the council, as any other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council sub moto, and to the extent of the powers specially committed to him."

But what makes the answer to your city ' s question a much closer one than it was in Anderson v. Town of Gainesboro , is that, as was pointed out above. ' ' (2)(1) and (2)(3) respectively define the "Board" as the legislative body of the city, which shall be composed of the "mayor and seven (7) aldermen," and "Alderman" as "a person elected to the board as provided in this charter." The first definition tells us what we have already concluded that the mayor is a member of the board of mayor and aldermen, a status that does not in and of itself give him the right to vote. But the second definition, that of "Alderman," seems important for this reason: both the aldermen and the mayor are elected under this charter; there is no separate definition of " mayor" in ' 2 of the charter. If the mayor is expressly defined as a member of the board of mayor and alderman under the charter, and the charter also declares that an "Alderman" is "any person" elected under the charter, it is arguably the intention of the charter that he have the status of an alderman. If the mayor has the status of an alderman, how can it be argued that he does not have the same right to vote as does any alderman?

The mayor' s status as an alderman: if indeed, that is what ' (2)(1) of the charter confers on him--permits an interpretation of ' 6 of the charter (which vests the "legislative powers of the City" in the (Board of Mayor and Aldermen) that permits the mayor to be counted toward a quorum under that section and to be counted as a part of the "majority of members present" entitled to pass measures. [Also see ' 18 of the charter on the same point.]

In my opinion, the language in both Reeder v. Trotter and Anderson v. Town of Gainesboro is strong for the proposition that even if the mayor is a member of the board of mayor and aldermen, his claim to a general right to vote must still rest upon some express authority found in the charter or other statute; the definition of "Alderman" in the charter is not enough to bestow the status of aldermen on the mayor. The only express authority for the mayor to vote in the City Charter is in connection with tie votes for mayor and aldermen.

But as I indicated at the beginning of this letter, I also think that a strong argument can be made that because the City Charter expressly makes the mayor a member of the board of mayor and aldermen, and defines the term "Alderman" in a way that could easily include the mayor, the mayor might have the same general right to vote as any alderman even if the charter does not expressly give him that right. It is said in both Reeder v. Trotter and Anderson v. Town of Gainesboro, that:

The question whether the mayor of a city shall be regarded as a member of the council is one of legislative intent. It is within the power of the Legislature to confer upon him the functions of a member of the council in every respect, and if the legislation on the subject calls for the construction he will be so regarded.[At 401 in Reeder, and at 4 in Anderson.]

The same language goes on to say that the mayor has limited legislative powers "in the absence of a statute necessarily implying that he has the same standing in the council as any other member...." The provision of the charter that defines an "Alderman" as "a person elected to this
board as provided in this charter" may have supplied the statute "necessarily implying" that the mayor has the same power to vote as any other "alderman."


Sincerely,

Sidney D. Hemsley
Senior Law Consultant

SDH/

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