|Legal Opinion: |
Text of Document: June 15, 1995
You have two questions related to the mayor's authority relative to the authority of the board of mayor and aldermen.
1. Can the board appoint supervisors over various departments and provide that they are responsible solely to the board?
2. Does the mayor have supervisory authority over the police department?
I will try to answer these questions by presenting an outline governing the administrative and legislative powers of mayors in Tennessee and of the provisions of the charter governing the relationship between the mayor and aldermen. Finally, I will apply the law and the charter to the mayor's administrative and legislative power in the particular administrative cases at issue.
Tennessee Law Generally Governing the Relationship Between Members of Municipal Governing Bodies
A mayor in Tennessee has only those legislative and administrative powers granted to him, is a part of the municipal governing body only to the extent and only for the purposes outlined, and can vote only to the extent expressly provided, in the municipal charter and general law. [See Weil, Roth & Co. v. Mayor and Aldermen of Newbern, 126 Tenn. 223, 148 S.W. 680 (1912), Reeder v. Trotter, 142 Tenn. 37, 215 S.W. 400 (1919), and Anderson v. Town of Gainesboro, 17 TAM 12-27 (1992).]
Under the City Charter, the city has what is commonly called a "weak mayor form of government." The charter gives the mayor very few express administrative or legislative powers.
Mayor's General Powers under Charter
Under section 3 of the charter the powers and duties of the mayor are generally described:
"....may fill all vacancies occurring in offices except that of Alderman until the same shall be filled in the manner provided by this Act...."
"....unless relieved by the Board of Aldermen, to preside at all meetings of the Board and he shall be allowed to vote on all issues that come before the Board....
"....see that all ordinances and laws of the town are duly observed, obeyed and impartially enforced...."
"....shall, on application, instruct officers in their duties...."
Under other provisions of the charter the mayor has the power in common with the aldermen to perform numerous enumerated administrative and legislative functions. However, it must be emphasized that these powers with respect to the mayor must be exercised by the board acting as a unit.
Mayor's Administrative Powers
With specific reference to the relationship between the mayor and the board of aldermen regarding personnel powers, section 4 of the charter provides that:
The board of alderman shall have full power and authority to elect and appoint all officers, servants and agents of the corporation within the restrictions of this Act and pay the compensation of the same; and they shall have the power for sufficient cause to dismiss and discharge any officer, servant or agent that may have been appointed by a majority vote of the aldermen and mayor;....
Section 7 of the charter provides, "That the Board of Aldermen shall have the power and authority to elect and appoint a Recorder, Town Clerk, and City Judge...." Section 5 also speaks of the power of the of the board of mayor and aldermen "to appoint a City or Town Marshal and any necessary police force, a City Attorney, a Recorder, in case the Mayor declines to serve as Recorder, A Treasurer, a Secretary...and fix compensation for such officer."
Clearly, then, under the Town Charter the mayor has only the power to make temporary appointment to fill vacant offices; the authority to hire officers and permanent employees and to dismiss officers and employees, and to set the compensation of officers and employees resides entirely in the board of mayor and aldermen. That fact is even reflected in section 1-107 of the Municipal Code.
The mayor does have the power to instruct officers in their duties, "on application." I am not sure what the phrase "on application" means, but given the mayor's extremely limited power over officers under the charter the logical interpretation means on the application of the officer. In any event, the charter does not empower the mayor to take personnel actions of any kind against either officers or employees, even suspensions.
Mayor's Legislative Powers
In Reeder and Town of Gainesboro, above, the Court said of a mayor in Tennessee:
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 he council, sub moto, and to the extent of the powers specially committed to him.
The same cases further say that:
He [the mayor] is not a member of either branch of the city councils unless expressly made such by 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 in which an alderman is'....
In Anderson, the Gainesboro Charter even frequently spoke of the "Board of Mayor and Aldermen" and the powers of the board as unit. However, that was not enough for the court to find that the mayor in that case was a member of the body of aldermen with respect to the legislative powers of the aldermen. The language giving the mayor legislative [or administrative] power had to be express language, consistent with Reeder.
Under the Town Charter the mayor is a member of the board of alderman only for limited purposes. Under section 3 of the charter he is the presiding officer of the board. But even that power can be clipped by the board. As noted above, the same section of the charter provides that he has that power "unless relieved by the Board of Aldermen...."
Section 3 of the charter gives the mayor the right to vote on all issues that come before the board. Under the same section of the charter he can also make recommendations to the board, call special meetings "whenever he deems it expedient and necessary...."
The remaining provisions of the charter [especially Section 5] speak of the "Board of Mayor and Aldermen" in terms of its general powers to levy taxes and carry out all its enumerated legislative functions. Notably, section 4 of the charter, which outlines the board's power over the hiring and firing of officers and employees, speaks of the "The board of aldermen..."
The mayor certainly has no authority to adjourn meetings without the approval of the board. 4 McQuillen, Municipal Corporations, section 13.38 says:
[A] regular meeting of the governing body continues until terminated by an order of final adjournment or by operation of law. The presiding officer cannot arbitrarily adjourn the meeting. If an attempted adjournment ineffectual, the meeting remains in session, and action thereafter taken by members, who are sufficient to constitute a quorum, is valid.
In short, the board can, if it chooses to do so, continue to meet after an improper adjournment, provided there is a quorum. Whatever such a board does that is otherwise within its lawful capacity, is legal.
The mayor and aldermen must follow the procedures for their meetings which are dictated by their charter or rules they have adopted pursuant to their charter. These rules of procedure, if any, amy also be waived with the consent of all the aldermen present, because such rules are adopted for the convenience of the governing body. [Bradford v. Jellico, 1 Tenn. Ch. App. 700 (1901)]
If the mayor will not recognize members of the board who wish to speak or refuses to put an issue before the board under Section 3 of the charter can relieve the mayor of his power to preside. Under case law from other jurisdictions the board also has the power to take matters into its own hands. [Hicks v. Long Branch Commission, 55 A.2d 250 (1903), Rudd v. Sarallo, 249 N.W.2d 327 (1968)]. In addition, with respect to motions attempted to be made and ignored by the presiding officer, Section 60 of Roberts Rules of Order Newly Revised, which the town adopted in Section 1-105 of the Municipal Code, says:
If the chair at a meeting ignores a motion made and seconded in good faith, and neither states the question on the motion nor rules it out of order, the maker of the motion should raise a Point of Order (23) covering the case, and from the chair's decision he can Appeal (24). If the chair also ignores the point of order, the member can repeat the motion; and if it is seconded and the chair still ignores it, the maker of the motion can himself put it to a vote standing in his place.
The order of business is set by the board in section 1-104 of the Municipal Code. Under Bradford above, the board can change that order of business around at its will, and agree to take up items that are not on the agenda, unless the meeting is a special called meeting.
Many mayors in Tennessee are shocked to learn that they have few powers. Some of them run for office assuming that the title "Mayor" must include broad range of powers to influence the direction of a city. Unfortunately, that is not true in Tennessee, where under a municipal charter a mayor can find himself neither fish nor fowl, and only pretty much of a figurehead. With respect to the Town, virtually all of the administrative and legislative power of the town resides in the board of mayor and aldermen. The extent to which the board wants to exercise its power depends upon the political will of the board.
Sidney D. Hemsley
Senior Law Consultant