|Legal Opinion: |
Text of Document: I have researched your recent question as to whether you, in your official capacity, have the singular authority to suspend or fire the present city attorney. As a caveat I am basing this opinion on the facts you conveyed to me; mainly, that your city has not at this time adopted a personnel policy. As you know, under your form of government, the general law Mayor-Aldermanic, T.C.A. § § 6-1-101 et seq., the city attorney is included in types of individuals described of an “officer.” While a city attorney is not an elected official for definite term of years as are the Board of Mayor and Alderman, he is appointed, has a designation or title given to him, and has certain functions assigned to him. However, he does not have an office that "embraces the idea of tenure, duration and continuity," and although the duties of the office of city attorney are generally continuing and permanent, typically they are not continuing and permanent with respect to any certain city attorney for a particular time period . See Op. Tenn Atty. Gen. No. 78-382.
Pursuant to T.C.A. § 6-3-106 (b)(2)(A), the mayor has the authority to “ employ, promote, discipline, suspend and discharge all employees and department heads.” He also may make temporary appointments of officers and department heads when such individuals are not present due to absence, sickness or disability. T.C.A. § 6-3-106(a)(3)(A). It is noteworthy that those temporary appointments may be overruled by the Board of Mayor and Aldermen. And., there is no provision in this statute addressing Mayor’s authority with respect to “officers” of the city.
Even if the city attorney were an officer, he may also be an employee. Although Tennessee Attorney General Opinions are not the law, Op. Tenn. Atty. Gen. U93-46 opined that a non-elected city judge is an employee of the city. It cites 10 Tenn. Juris., Employer and Employee, § 2 (1983) for the proposition that :
An "employee" is one who is employed by another and works for wages or salary without regard to whether the employment is legal or illegal. An employee is a servant, and not a contractor bound only to produce or cause to be produced a certain result of labor, and free to dispose of his own time and personal efforts according to his pleasure with responsibility to the other party as to time or manner of doing the work.
That opinion goes on to state: "[t]he City Judge meets the above-quoted definition. He was employed though appointment by the Board of Mayor and Aldermen and is paid a 'salary' set by the Board of Mayor and Alderman." That definition of "employee" concludes that a city judge is an employee (apparently as opposed to an independent contractor). However, if that definition does apply to a city judge, it would seem that the same logic could be extended to a city attorney. But adhering to the language of the statutes, the Board shall make appointments to fill vacancies of officers.
Finally, Section 6-3-106(b) of the general law charter provides that:
Unless otherwise designated by the board by ordinance, the mayor shall perform the following duties or may designate a department head or department heads to perform any of the following duties:
(2)(A) Employ, promote, discipline, suspend and discharge all employees and department heads, in accordance with personnel policies and procedures, if any, adopted by the board;
Once again, T.C.A. Sections 6-3-106(a)(3)(A) and 6-1-101, give the Mayor the authority to make temporary appointments of both officers (city attorney, city judge, but not aldermen) and department heads (city administrator, city recorder, treasurer, police chief and any other department heads appointed by the board or mayor) when the officer or department head is absent, sick or disabled, but the office or position is not vacant. However, in the case of both officers and department heads, the mayor must report the temporary appointment at the next regular meeting of the board. The board can either confirm or reject the temporary appointment, and, if it chooses to do so, can make its own temporary appointment. However, if there is a vacancy in an office (city attorney, city judge)–that is, where the occupant of the office is not merely absent, sick or disabled, but has, for whatever reason vacated the office--the Board, not the mayor, fills that vacancy.
Unless set forth in a contract between the city and the city attorney, the city attorney has no specific term of office. Instead of a specific term of office, this officer instead serves at the pleasure of the mayor and city council . Thus, it is clear that the city attorney does not have a specific term of office and may be dismissed at any time; however, under your charter it would appear that dismissal or removal requires the joint action of the Mayor and the Board.
Finally I should mention that the code provision you referred to in our telephone conversation which stated that the Mayor had the authority to suspend an officer was repealed by the General Assembly in 1991, by Public Chapter 154. It therefore is not valid.