|Legal Opinion: |
Text of Document: January 10, 1997
Your letter of January 7, 1997, raises two questions the mayor has also raised:
1. Can an alderman nominated to the position of vice-mayor vote for himself? The answer is probably no. However, I can easily see the Tennessee courts going the other way on this question.
2. Can the board of mayor and aldermen appoint its members to act as department heads? The answer is no if the members actually function as department heads. However, as I understand the facts, the mayor and aldermen are not actually appointed, and do not function as, "department heads," in an operational sense, but serve only oversight and liaison functions. If that is true, the answer is probably yes.
The city operates under the general law mayor-aldermanic form of government. [Tennessee Code Annotated, section 6-1-101 et seq.] Under that charter the vice-mayor is appointed as follows:
The board shall elect an alderman to the office of vice mayor, who shall serve as mayor when the mayor is absent or unable to discharge the duties of the mayor's office, and, in case of a vacancy in the office of mayor, until the next regular municipal election. [Tennessee Code Annotated, section 6-3-107.]
That charter provision is obviously silent on the question of whether an alderman nominated to the office of vice-mayor can vote for himself. However, in State ex rel. v. Thompson, 246 S.W.2d 59 (Tenn. 1952), the city commission (which was actually a city council) of Paris, Tennessee, appointed one of its members the city manager. The member of the council appointed city manager voted for himself. The main questions in that case were whether the city council had the authority to appoint one of its own members the city manager, and whether the city councilman appointed city manager vacated the former office by accepting the latter office, but in addressing those questions the Court incidentally looked at the question of whether the member of the city council could vote for himself to become city manager. Citing 42 Am Jur, page 955, section 97 (presently found at 63A Am Jur 2d, Public Officers and Employees, section 100), the Court said:
So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members. [Emphasis is mine.]
The Court followed that up with a similar citation from McQuillin on Municipal Corporations revised Volume 2, page 159, section 477 (presently found in 3 McQuillin, Municipal Corporations, 3rd Revised ed., sec. 12.75):
Pursuant to the general rule, a council, although possessed of the power of appointment may not select one if its own members as clerk of the council, or as a member of the board of assessors. For a like reason, a member cannot vote to confirm his own appointment to office. [Emphasis is mine.]
It was subsequently held in Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986) that the common law could be "overturned" by statute. There Roberts, a member of the Roane County Commission, was elected by the Commission to the office of trustee under a statute that provided that any member of a county commission who accepted the nomination to that (and other) offices "automatically" lost his office as commissioner. Quoting Thompson for the proposition that, "it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members," [At 606.] the Court declared that the effect of the statute:
.... permits county legislative bodies to nominate one of their own members for a vacancy in office, but prevents the nominee from voting for himself by divesting him of his commission seat upon his acceptance of the nomination. [At 607.]
Thus, it is clear from Thompson and Jackson that the general rule is that members of governing bodies cannot vote for themselves to fill an office over which they have the power of appointment. That same issue has arisen in Connecticut, Pennsylvania, Indiana, and New Jersey. The Courts in those states follow the same general rule. However, the New Jersey courts make an important exception: Where the statute in question requires the appointment to be made from among the members of the governing body. That exception might catch the eye of the Tennessee courts, particularly in light of the fact that both Thompson and Jackson, and all but one of the offices in the cases from other jurisdictions (city council president), were offices outside the governing body itself.
In State ex rel. Bergin v. Goodrich, 84 A. 99 (Conn. 1912), Bergin was a member of the city board of education. The board elected him to the office of clerk of the board, and Bergin voted for himself. The mayor, who was the presiding officer of the board refused to declare Bergin elected, arguing that the city charter prohibited the employment by any board of any of its members, and required that all officers of the city serve without pay. In holding Bergin's election illegal, the Court declared that whether or not Bergin was eligible under the city's charter to serve as school board clerk was irrelevant:
It matters not whether he was eligible or ineligible. He was one of the seven members of the board; he voted for himself; and without his vote there was no election. He could not be elected by his own vote, and was not elected. [Citations omitted.] [At 99. ]
In State ex rel. Kenney v. Ranslow, 154 A.2d 526 (Super Ct. Conn. 1959), the Court declared that the chairman of the board of police commissioners could not vote for himself to become the chief of police. [However, his election was valid because even without his vote, he had the requisite majority under Connecticut law.]
Members of a town board of supervisors could not vote to appoint themselves members of a Board of Municipal Authorities on the ground that such votes were against public policy in Commonwealth ex rel. McCreary v. Major, 22 A.2d 696 (Penn. 1941). Said the Court:
We have no difficulty reaching our conclusion, and are of the opinion that well-established public policy prohibits respondent and his colleagues from using their official appointing power as councilmen of the City of Beaver Falls to appoint themselves members of the Board of Authority. This court said, as early as 1803, in Commonwealth v. Douglass, 1 Bin. 77, 84: "One having a discretionary authority to appoint a fit person to a public office appointing himself seems a solecism in terms; and it cannot be deemed the fulfilment of his duty." [At 688.]
In Coltar v. Warminister Township, 302 A.2d 859 (Pa. Cmnwlth. 1973), members of the board of town supervisor could not vote for themselves to become directors of various town functions, principally because there was a township manager, and the office of township manager and township supervisor were incompatible offices under statute. But the Court, citing Major, added an additional reason: "It is against public policy, in the absence of specific legislative authorization, for a public official to appoint himself to another public office." [At 862.]
The trustees of several county townships elected one of the trustees the superintendent of schools, and the trustee voted for himself in Hornung v. State ex rel. Gamble, 19 N.E. 151 (Ind. 1888). In holding the election illegal, the Court declared, that:
A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence, and primarily for the benefit of the public. It is also the duty of the public officer having the appointing power to make the best available appointment, and, in such a case, the right of appointment is not in any sense the property of the officer possessing appointing power. It is the duty of the law to secure the utmost freedom from personal interest or undue influence in the section of public officers, whether elective or appointive. [At 153.]
The Court then pointed out that the Oregon Supreme Court in an earlier case had concluded that a city council member could not vote for himself to become city marshal because the vote violated the council's procedures, and "Also that it is contrary to the policy of the law to permit a public officer having an appointing power to use such power as a means of conferring an office upon himself," and declared that, "We concur in both of the conclusions reached as above by the Supreme Court of Oregon, and consequently feel constrained to hold that Hornung’s vote for himself for the office of county superintendent was contrary to public policy, and for that reason an utterly illegal vote." [At 154.]
A member of a city council could not vote to accept his own resignation in Steven ex rel. Kuberski v. Haussermann, 172 A. 738 (N.J. 1934), because:
Generally, public policy forbids the participation of a member of a municipal governing body in any matter before it which directly or immediately affects him individually. Considerations of public police require the acceptance of a resignation to make it effective. This requirement is designed to safeguard the public interest, and it follows, as a necessary consequence, that the officer tendering his resignation cannot participate in the proceedings or action taken thereon. In the clash of interests--those of the public and the officer who seeks to resign his post--the action to be taken must be determined by a disinterested body. [At 741.] .
Citing Haussermann and a number of other New Jersey cases, the New Jersey Supreme Court held that the mayor could not vote for himself to become a member of the city’s water commission in Grimes v. Miller, 175 A. 152 (N.J. 1934), on the ground that the mayor was "disqualified from participation in his own election because of his self-interest." That was true, said the Court, even in the absence of a statutory prohibition on self-voting.
A member of a city council could not vote for himself to become a member of a joint sewer commission [of which several cities were a part] in Hazlet Township Committee v. Morales, 289 A.2d 563 (N.J. Law Div. 1972). Under New Jersey law the member of the city council was authorized to be appointed a member of the joint sewer commission; however, he could not vote to appoint himself to that position. The Court reasoned that a municipal official in such a situation was not likely to act purely out of undivided loyalty to the public.
But a New Jersey court created an exception in Skarbnik v. Spina, 308 A.2d 390 (N.J. Law Div. 1973). At a meeting of the city council in that case, two self-votes occurred:
- Bonnet, voting for himself, was elected council president. [Emphasis is mine.]
- Spina, voting for himself, was elected the city council representative to the joint sewer authority.
Without their self-votes, Bonnet and Spina would not have been elected to their respective offices. However, their votes were valid for three reasons, held the Court:
1. In Hazlet the statute permitted rather than required the appointment to the sewer authority to be made from among the members of the city council. However, the statute governing election to the office of council president, and the statute governing the election to the joint sewer authority both required the election to those offices be made from the members of the city council.
2. Disallowing their vote would produce a result not within the letter or spirit of the law governing the council's voting procedure. The city had a five person council consisting of a mayor and four council members. Under the city council's rules of procedure, three council members constituted a quorum, and appointments to the council required a majority vote. However, if Bonnet and Spina were not permitted to vote, their:
.... election in either situation [would require] the affirmative vote of not the majority, as legislated, but rather of at least three of the four councilmen remaining. In effect this could mean that for any such nominee to be elected or appointed, at least four of the five councilmen (three in addition to the nominee) would have to favor the election or appointment. This suggested requirement is not within the letter or spirit of the applicable statute [citation omitted] and the local rules of procedure adopted thereto. [At 395.]
3. There was no showing that either of the defendant councilmen was at the time of voting subject to any direct or indirect private interest at variance with the impartial performance of his public duty." [Emphasis is the court's.] The Court reached that conclusion by looking at Robert's Rules of Order, Newly Revised (RRONR). Under RRONR, Section 44:
ABSTAINING FROM VOTING ON A QUESTION OF DIRECT PERSONAL INTEREST. No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion.
VOTING ON QUESTIONS AFFECTING ONESELF. The rule on abstaining from voting on a question of direct personal interest does not mean that a member is prevented from voting for himself for an office or position to which members generally are eligible, nor from voting when other members are included with him in a motion. If a member could never vote on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them. [At RRONR 345.] [At 396.]
With respect to those provisions, concluded the Court:
Each of the councilmen is eligible to either office. Accordingly, the interest of any one of them in either office is 'common to other members' of the council, and any one of them is no more disqualified thereby from voting for himself than are the others from voting against him. [At 396.]
In Kurz v. Genova, 343 A.2d 775 (Super. Ct. N.J. A.D. 1975) the Court followed the same logic to uphold the election to a joint sewer authority of a member of the city council who voted for himself.
Finally, the Court reiterated the basic rule prohibiting self-votes on the part of members of governing bodies, and the exception to that rule, in Gayder v. Spiotta, 503 A.2d 348 (N.J. Super. A.D. 1985)
We are in full agreement with the trial judge's initial premise that a public official may not exercise his office to confer a personal benefit upon himself. Nor can there be any doubt as to the corollary principle that a member of a municipal governing body may not, therefore, vote to appoint himself to another office or position. [Citations omitted.] There is, however, a well-settled exception to this rule, namely, that a member of the governing body may vote for his own appointment to an office or position which a statute requires to be filled from among that membership. [Citations omitted.] [Emphasis is mine.] [At 351-52.]
That exception may be "well-settled" in New Jersey; it is neither well-settled in Tennessee, nor can I find that exception in any other state. However, the self-voting issues contained in Skarbnik, and resolved by the Court in favor of the self-votes, are reflected in your city:
1. The statutes in that case required the appointments to the office of village president and to the office of member of the joint sewer authority be made from among the members of the city council. Tennessee Code Annotated, section 6-3-107, requires that the appointment to the office of vice-mayor be made from among the members of the board of mayor and aldermen. In addition, the office of council president and of vice-mayor are both offices within the board itself.
2. Both the city in that case and your city have five member boards and the procedural consequences of disallowing the members of the governing bodies to vote for themselves with respect to the office of vice-mayor are similar.
3. Most Tennessee cities have adopted Robert's Rules of Order Newly Revised (RRONR) to govern their council procedure; I do not know if your city has done so. But even if it has not, it does not appear that any of the aldermen have any direct, or even indirect, pecuniary interest in the office of vice-mayor within the meaning of the Tennessee Conflicts of Interest Law found at Tennessee Code Annotated, section 12-4-101 et seq. Each of the aldermen of your city is eligible for election to the office of vice-mayor; for that reason the interest of each of them is common to the interest of all of them.
In addition, as pointed out above, both of the Tennessee cases of Thompson and of Jackson, and all but one of the cases from other jurisdictions (Skarbnik, self-vote for city council president) involved self-votes for offices outside the board itself, and the offices in all of the cases involved additional compensation. The cases are unanimous that the rule against local government governing bodies voting for themselves to fill offices was designed to prevent self-interest from governing appointments to fill those offices, and most of the cases speak of self-interest at least partly in pecuniary terms. However, it is also clear from those cases that a pecuniary interest is not the only self-interest that rule is designed to prevent; even if the offices involved in those cases had not been paid offices, the public policy would have operated to deny self-votes to fill them. With respect to Thompson, it is difficult to argue that it would have gone any other way even had not the office of city manager involved additional compensation.
But Skarbnik makes sense to me. Whether it would make sense to the Tennessee Courts remains to be seen. Presently, it is probably not the law in Tennessee.
Your city is chartered under the general law mayor aldermanic form of government. It seems clear to me that neither the charter nor Thompson, contemplate that individual aldermen actually serve as department heads as they do under the commission form of government. [In Thompson, the City of Paris was chartered under the general law manager-commission charter. However, the title of that charter and of the members of the governing body are misnomers. The charter provides for a manager-council form of government, and for "commissioners" who are actually council members, rather than a commission form of government in which the commissioners are true department heads.] As pointed out above, in Thompson the city commission (council) appointed one of its members to the position of city manager. With respect to the relationship of those offices, the Court said:
Of course, it was not the intention of Legislature to permit the City Manager to be one of the five members of the Board which determines whether or not he shall be discharged for cause, or without cause after twelve months, or, as a member of the Board, to accept or reject to modify his own recommendations made as City Manager, or, as a member of the Board, to direct and supervise himself as City Manager in the administration of the affairs of the City. This statement of the situation seems conclusive of the fact that the two offices are completely incompatible.
As heretofore stated, the statute (the Charter of Paris) expressly provided that "the board of commissioners shall appoint and fix the salary of the city manager." The Legislature, in enacting this statute, knew that each commissioner is a trustee charged with utmost fidelity to his cestui que trust, the City of Paris, and that each commissioner could not with due fidelity mingle his personal interests and affairs with his duties as such trustee, human nature being what it is. Therefore, when this statute provided that the commissioners should fix the salary of the City Manager it did by necessary implication forbid the board from appointing one of its own members to that office. No other effect can logically be given this provision of the statute. [At 61.]
Similarly, it was not the intention of the Legislature that aldermen be department heads, at least in the respect that the aldermen supplant the department heads. A "department head" within the meaning of the general law mayor-aldermanic charter is "the city administrator, city recorder, treasurer, police chief and any other department heads appointed by the board of mayor," and an "officer" is "the mayor, aldermen, city attorney and city judge." [Tennessee Code Annotated, section 6-1-101.] The charter clearly distinguishes between "officers" and "department heads." As the city councilman appointed city manager could not maintain his fidelity to the office of city councilman in Thompson, so aldermen of your city appointed to the position of department heads could not maintain fidelity to the office of aldermen, for most of the same reasons. [Tennessee Code Annotated, section 6-3-106. Also see Tennessee Code Annotated, section 6-3-108.]
At this point, what the board of mayor and aldermen has actually done with respect to its self-appointments is important. As I understand those facts (I have checked them and hope they are accurate.), the self-appointments in question are not actually appointments to the positions of department heads within the meaning of the general law mayor-aldermanic charter; there is no displacement of a city administrator, city recorder, treasurer, police chief, or any other department head. In other words, when the aldermen are appointed "department heads," there is still a city recorder, police chief, and other department heads, who actually perform the operations functions of those positions. The aldermen appointed “department heads” actually perform only a general supervisory oversight function and as a liaison with the entire board of mayor and aldermen. In addition, the self-appointments involve no extra compensation.
The Thompson Court's holding that the positions of city commissioner (councilman) and city manager were incompatible offices was certainly broad enough to cover a variety of offices and even employments, both paid and unpaid. I think it is clear that both the general law mayor-aldermanic charter and Thompson would prohibit the board's self-appointment to the actual positions of city administrator, city recorder, treasurer, police chief, and probably other offices and employments, both paid and unpaid, or even self-appointment over the actual administration of any departments. However, if I have my facts straight, such self-appointments are not an issue with respect to your question. For that reason, I do not think they are illegal.
Sidney D. Hemsley
Senior Law Consultant