|Legal Opinion: |
Text of Document:
December 20, 2004
You have the following questions with respect to your City, which is established under the general law manager-commission charter found in T.C.A. § 6-18-101 et seq:
1. If no city manager has been appointed or is currently serving, what person or body has the authority to hire, fire, supervise and direct city employees?
2. [When there is no city manager] what person or body has the authority on behalf of the city to engage, terminate, assign projects, and receive reports from independent contractors with the city, such as engineers, surveyors, consultants and attorneys?
3. Can the commission appoint an “interim” city manager to serve less than the twelve month term contemplated by T.C.A., § 6-21-101(b)?
As you have already discovered, the general law manager-commission charter does not directly address those questions. I have previously been asked the same question several times and have never been able to find any other statutory or case law that directly resolves them.
Over the past couple of days, I have updated my research on those questions, but had no more success in finding a solid answer than I had previously. There are a large number of cases in the United States involving interim appointments to governmental offices and positions of employment, but virtually all of them involve the interpretation of statutes or constitutional provisions providing for the filling of vacancies by interim or otherwise temporary appointments. I can find no cases that address the question of whether interim appointments can be made where there is not statutory or constitutional authority for such action.
As I have made clear when this question has arisen in the past, the general law manager-commission charter clearly contemplates that a city established under that charter is supposed to have a city manager. Indeed, § 6-21-101 of the charter provides that, “The board of commissioners shall appoint and fix the salary of the city manager....”
However, based on the general law manager-commission charter itself, my opinion is that the answers to the above questions are:
Questions 1 and 2: The board of commissioners.
Question 3: Yes.
Analysis of Questions 1 and 2.
Section 6-20–205 of the general law manager-commission charter provides that:
The legislative and all other powers except as otherwise provided by this charter are delegated to and vested in the board of commissioners. The board may by ordinance or resolution not inconsistent with this charter prescribe the manner in which any powers of the city be exercised, provide all means necessary or proper therefor, and do all things needful within or without the city or state to protect the rights of the city.
The general law manager-commission charter is clear on the point that most of the administrative powers of the city belong to the city manager. But logic dictates that there will be occasions in a city’s history when, due to deaths, resignations, terminations, etc. there will be no city manager.
Some cities even have difficulty finding someone to fill the position of acting or interim city manager until a new city manager can be appointed. It cannot have been the intent of the General Assembly in adopting the general law manager-commission charter that when there is no city manager, or interim city manager, in cities that have adopted that charter that the administrative business of the city comes to a screeching halt. Indeed, § 6-20-205, above, has given the board of commissioners authority by ordinance or resolution to “do all things needful within or without the city or state to protect the rights of the city.”
In addition, § 6-20-101 of the charter contains the broad enumerated powers of the city. Those powers belong to the city and not to the city manager, nor to any other particular officer or employee of the city. Surely, when there is no city manager the board of commissioners as the trustees of the city, have the power to exercise all those powers, including those administrative powers that give them life.
But once again, it was the intent of the general law manager-commission charter that a city manager be in charge of the day-to-day operation of the city, and that when a vacancy occurs in that position, an acting or interim city manager be appointed as soon as possible.
Analysis of Question 3.
The general law manager-commission charter makes no provision for the interim appointment of a city manager.
Section 6-21-101 of the charter provides that:
(a) The board of commissioners shall appoint and fix the salary of the city manager, who shall serve at the will of the board.
(b)(1) The city manager may not be removed during the twelve (12) months from the date on which the city manager assumed the duties of the city manager for incompetence, malfeasance, or neglect of duty.
(b)(2) In case of the city manager’s removal within that period, the city manager may demand written charges and a public hearing thereon before the board prior to the date on which final removal shall take effect. The decision and action of the board on such hearing shall be final, and pending such hearing, the board may suspend the city manager from duty.
But it also defies logic to argue that a city established under the general law manager-commission charter cannot appoint an interim city manager. It has become common for cities all over the United States, including Tennessee, to make nationwide searches for city managers, which consumes months, or even more than a year, during which prospective city managers are run through an exhaustive process to insure that the city manager and the city are compatible with each other. Even in cities that do not go to that length to find a new city manager, the search for a city manager can take considerable time. Under the rules of statutory construction, the courts will not interpret statutes to reach an absurd result. It would produce an absurd result to declare that T.C.A. § 6-21-101 requires a city to appoint a city manager almost overnight when a vacancy occurs in that position, and that the city would have no option but to give such a city manager the 12 months protection afforded by that statute. Most interim city managers are current city employees and such protection would be inconsistent with their temporary function as city managers. But it is difficult to understand why the same thing would not apply to a person brought from the outside to fill that position until a permanent replacement could be found.
The Supreme Court of Indiana in Stanek v. Marion County Election Commission, 316 N.E.2d 830 (1974), made a temporary appointment of a juvenile court judge, apparently without any statutory authority, where no statute controlled how a vacancy in that office should be filled following the death of the judge, declaring that:
In order to preserve the continuity in the office of the Marion County Juvenile Judge, this court, pursuant to its supervisory jurisdiction, appointed a judge pro tempore on May 28, 1974. Such temporary appointment was deemed necessary to insure the smooth administration of juvenile justice pending ‘gubernatorial appointment.’ [At 832]
The policy for temporarily filling the office of juvenile court judge seems to be equally applicable to a city manager. There is no doubt that the city commission has some “supervisory jurisdiction” over the city and of the city manager.
Sidney D. Hemsley
Senior Law Consultant