|Legal Opinion: |
Text of Document: July 27, 1994
I have been asked by a number of people, including the mayor and city attorney and another attorney contacted by the mayor, whether the mayor could receive a salary increase during his present term of office. The answer I have given to each is that it is a violation of Article XI, Section 9 of the Tennessee Constitution for the city governing body to increase the mayor's salary during his term of office. I concede to you here, as I conceded to each of the above persons, that there are no cases or Tennessee Attorney General's Opinions on the express question of whether Article XI, Section 9 of the Tennessee Constitution permits the General Assembly to authorize a municipality to pass an ordinance permitting a local governing body to alter the salary of an incumbent municipal officer. My answer is based on my reading of Article XI, Section 9 and the cases and opinions in this area, and on the rules of statutory construction.
The pertinent provision of Article XI, Section 9 provides that
The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected, and any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or it proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected. [Emphasis is mine]
Several arguments have been made that the above provision does not apply to a private act that gives the governing body of a city the right to alter the salary of a public officer during his term in office. The private act of that kind with respect to the mayor is Article II, Section 2.02 of the City Charter. It provides that,
The mayor shall be compensated at not less than one hundred dollars ($100) per month and shall be reimbursed for actual and necessary expenses incurred in the conduct of official duties. The compensation for the mayor shall not decrease during a term of office, but may be increased by passage of an ordinance by a majority of the board. [Private Acts 19__, Chapter __, Section 1]
One argument is that under that provision it is the ordinance passed by the city rather than the private act that increases the salary of the mayor. However that argument holds little water because the cited provision of Article XI, Section 9 prohibits the General Assembly from passing a "special, local or private act "having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term..." The framers of that provision could easily have left out the term "having the effect of...." Had it done so the provision would only have prohibited the General Assembly from passing a "special, local or private act removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term...," and the prohibition would not have included ordinances passed under the authority of a private act and that altered the salary [or term] of the incumbent.
I am not going to run through, or cite the law for, the rules of statutory construction here, but they include the rule, and ample supporting law, that the courts will give meaning to every word and phrase in a constitutional or legislative provision. In my opinion, the courts would find that the term "having the effect of...." prohibits the General Assembly from passing any private act that permits the local governing body to do through the back door what the General Assembly cannot do through the front door. I think one gets a sense that would be the result from a reading of Shelby County v. Hale, 292 S.W.2d 745 (1956).
The corollary of the argument that under Article XI, Section 9 the General Assembly cannot pass a private act altering the salary of a municipal incumbent officer but can pass a private act permitting the municipal governing body to alter the salary of the officer, is that the General Assembly cannot pass a private act abridging the term of an incumbent municipal officer, but can pass a private act permitting the municipal governing body to abridge the term of office of the officer. In my opinion the courts would never put their imprimatur on the latter argument; therefore, they cannot put their imprimatur on the first argument.
Another argument goes that as long as the municipal governing body approves the act by one of the two means stated in Article XI, Section 11 for the local approval of private acts, the act is constitutional. That argument depends upon an interpretation of Article XI, Section 11 that was expressly rejected in Shelby County. In that case the Tennessee Supreme Court held there were two kinds of private acts contemplated, and set apart, by the two separate clauses of that provision. The first clause contemplated private acts the General Assembly had no power to pass and that were void and of no effect even if approved by the local governing body, and the second clause contemplated private acts the General Assembly had the power to pass, but which required the approval of the local governing body. In my opinion, Article II, Section 2.02 with respect to altering the mayor's salary falls into the first category, at least during his present term of office. The municipal governing body could raise his salary, but the salary increase would not take effect until his [or his successor's] next term of office.
The next argument is that my reading of Article XI, Section 9 is not logical because of the result it produces: the salary of present municipal officials is always dependent upon the past municipal governing body. However, some county officers stand in exactly that position by statute (and presumably by Article XI, Section 9 of the Tennessee Constitution.) [See AG Opinion U91-05, enclosed.] In any event, I fail to see why that result puts the municipal officers in any worse situation than they are in with respect to salary alterations authorized by private acts passed by the General Assembly itself and approved by the local governing body. But the question is not whether Article XI, Section 9 produces a result unfavorable to an incumbent municipal officer, but whether the result is envisioned by that provision.
Finally, it has been argued that the general law mayor-aldermanic charter permits the governing body of the city to raise the salaries of municipal officers. That is true, [See Tennessee Code Annotated, section 6-3-109] but the general law mayor-aldermanic charter is a general law charter that applies to all of the cities charter under that law. That charter has nothing whatever to do with your city which is chartered under private act. The language at issue in Article XI, Section 9 applies only to private act cities.
Sidney D. Hemsley
Senior Law Consultant