|Legal Opinion: |
Text of Document:
April 3, 2002
Apparently the city has three questions with respect to the removal of the city manager:
1. Can the city’s governing body fire the chief of police?
The answer is no. The City is a home rule city, which adopted the general law manager commission charter as it stood in 1958. Under that charter, the city manager has the power to discipline department heads and employees, including the power to hire and dismiss them [§§ 6-2107, 6-2108]. Under that charter he also has the power to appoint the chief of police [§ 6-2123]. It is also the law that unless a term of an office is prescribed by charter or statute, or unless the charter or statute otherwise limits the appointing officer from removing one he has the power to appoint, the power to appoint includes the power to remove.
[Gillespie v. Rhea County, 235 S.W.2d 4 (1950); Hamblen County v. Reed, 468 F. Supp. 2 (E.D. Tenn.).]
2. Does the board of commissioners have the authority to instruct the city manager to fire the chief of police?
There is no question but that the board of commissioners has the authority to express its collective view to the city manager on any issue pertinent to the administration of the city, but it cannot “instruct” the city manager to fire a particular officer or department head in the sense that the instruction operates as a binding order on the city manager. The board can, however,
terminate the city manager at will for virtually any reason. [Gay v. City of Somerville, 878 S.W.2d 124 (Tenn. App. 1994); State ex rel. Lewis v. Bowman, 814 S.W.2d 369 (Tenn. App. 1991); Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990).] There is a limitation on that power: During the first twelve months of the city manager’s employment the board cannot do so except for cause, and after notice and a hearing [§ 6-2101].
3. Was the board member’s motion to instruct the temporary city manager to terminate the police chief properly made under the facts?
The pertinent facts related to me in your letter are that “new business was inadvertently left off the agenda,” but restored to the agenda during the meeting. I assume that the agenda was made before the meeting, and that the category “New Business” was accidently omitted. At the meeting in question, the city manager asked for a vote of confidence during the “City Manager’s Report” portion of the agenda, lost the vote and apparently left the meeting, following which the city recorder was appointed temporary city manager. At some point thereafter, “New Business” was added to the agenda, under which the commissioner made his motion?
I doubt that a mistake of leaving the category of “New Business”off the agenda before the meeting would prevent the commission from adding it to the agenda during the meeting. Indeed, under the Municipal Code, § 1-102, there is prescribed an order of business to be observed, “unless dispensed with by a majority vote of the members present...” That language is probably broad enough to allow the board to restore “New Business” to the agenda. That section provides for a change in the order of business by a majority vote of the board. However, as we shall see below, the unanimous acquiescence of the board would probably meet that requirement.
Under Municipal Code, § 1-103, the city has adopted Robert’s Rules of Order, Newly Revised (RRONR). RRONR, § 40 prescribes an agenda, one item of which is “New Business.” Under “New Business” any member of the legislative body can introduce new business.
RRONR, § 40 also provides that the agenda is adopted by majority vote, and that after it has been adopted, it can be changed only by a suspension of the rules by two-thirds vote, or by unanimous consent. [Emphasis is mine.] The distinction between the two is that the latter does not require a formal vote. The legislator who wants to introduce a proposal out of order by unanimous consent simply says something along the lines, “With the unanimous consent of the board I would like to introduce....” If there is no objection the legislator simply proceeds with his introduction. If the board can change the agenda, surely it can add to, or take away, categories of the agenda, or items on the agenda.
With respect to the effect of an agenda promulgated before a regular meeting, RRONR, § 40 also says:
In some organizations, it is customary to send each member, in advance of a meeting, an order of business or agenda, with some indication of the matters to be considered under each heading. Such an agenda is often provided for information only, with no intention or practice of submitting it for adoption. Unless a precirculated agenda is formally adopted at the session to which it applies, it is not binding as to detail or order of consideration, other than as it lists preexisting orders of the day, or conforms to the standard order of business, or an order of business prescribed by the rules of the organization. [Emphasis is mine.]
Finally, in Bradford v. City of Jellico, 1 Tenn. Chan. App. 700 (1901), an ordinance was challenged on the ground that it was passed in violation of the rules of procedure adopted by the council. The principal rule of procedure at issue required that an ordinance passed on first reading be sent to committee before being passed on second reading. Another rule permitted the rules of procedure to be suspended upon the unanimous consent of the city council and mayor.
In rejecting the challenge to the ordinance, the Court acknowledged that, “...where a municipal charter, or the law governing its legislative operations, requires a certain formality or mode of procedure to be followed in the enactment of municipal laws or ordinances, such charter requirement or law is mandatory.” [At 719.] However, said the Court, where
....these rules of order for the government of the city council are mere rules of procedure adopted by itself for its guidance and convenience. They are no part of its legislative or legal charter, and rest upon no positive prescription of the statutes of the state. Being rules of procedure adopted by the council for its own convenience and government in the enactment of ordinances, it is competent for the council to waive them, and certainly this is so with the consent of all the council present. This consent is assuredly sufficient, if it be expressly given, and such consent, in our opinion, may be implied. If an ordinance be legally passed on two readings at the meeting at which it is introduced, and at the next meeting it is put upon its passage on its third and final reading without objection by any member of the council present, based upon its nonreference to a committee, this is, in legal effect, equivalent to a waiver of the rule requiring a reference to a committee except by unanimous consent of the council. [At 719.]
Under Bradford, it appears that if the city council has adopted rules of procedure governing the agenda, it could, simply by implied unanimous consent (or by any other means prescribed by the rules), suspend those rules.
Sidney D. Hemsley
Senior Law Consultant