|Legal Opinion: |
Text of Document: You have two questions:
Question 1: Is it possible for the city treasurer to receive a pay raise during her term of office?
The city treasurer is an elected officer under the your City Charter , Article IV, Section 1,and Article III, Section 10, and "...shall receive such salary as shall be fixed by the city council by ordinance," under Article III, Section 30. That officer is undoubtedly a "public officer" within the meaning of the Tennessee Constitution, Article XI, Section 9, which 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...
For that reason, the salary of the city treasurer cannot be altered during her current term of office.
But the inquiry does not end there. The restriction in Article XI, Section 9, of the Tennessee Constitution, applies to "salary." It does not proscribe other forms of compensation in the form of benefits. In Peay v. Nolan , 7 S.W.2d 815 (1928), the Tennessee Supreme Court held that the General Assembly could authorize the payment of expenses of its members without violating Article II, Section 23, of the Tennessee Constitution , which prescribes the compensation of members of the General Assembly. The Court reasoned that the constitutional prescription was a "salary" limitation and not a limitation upon the authority of the General Assembly to provide for the compensation of its members. Blackwell v. Quarterly County Court , 622 S.W.2d 535 (1981), goes even further with respect to local government officers. In upholding the right of a county to modify its pension plan, the Tennessee Supreme Court, in that case declared that within constitutional limitations, governments at both the state and local levels have broad authority relative to salary and compensation adjustments of their elected and appointed officers.
But the right of a public officer to any salary or compensation (even a salary that cannot be altered under Article XI, Section 9, of the Tennessee Constitution) must be found in a statute. While Pea y recognized a distinction between salary and compensation, the same case declared that the authority to reimburse members of the General Assembly for expenses must be ...found in a provision of the constitution or a statute conferring it either directly or by necessary implication, and the officer cannot recover compensation additional to the compensation fixed by statute for such expenses. [Citing Bayless v. Knox County, 288 S.W.2d 579 Tenn. 1956), quoting 67 C.J.S. Officers, Sec. 91, p. 329.]
In both Peay and Blackwell there was Legislative authority supporting the expenses and the pension plan changes in question. The city treasurer must also cite some statute to support compensation in addition to the salary authorized to be paid the city treasurer in your Municipal Charter , Article III, Section 30. In her case, the statute would be the city's charter.
If you are interested in pursuing this matter further, please contact me, and we will discuss what possible forms of compensation might be acceptable under Article XI, Section 1,of the Tennessee Constitution. If it sniffs of "salary" it probably won ' t pass muster.
Question 2: Can the offices of city treasurer and purchasing agent be combined?
It appears to me that under the your City Charter they are already combined.
Article III of that charter prescribes the executive duties of various officers. Article III, Section 13, prescribes one of the duties of the treasurer: "...purchase all furniture, books, stationery, tools, materials, and supplies and all things necessary for the use of the several departments, offices, and employees of the city." Article III, Section 30, also contains an elaborate set of prescriptions pertaining to the treasurer ' s purchases of supplies, equipment, etc., for the city.