|Legal Opinion: |
Text of Document: June 7, 1993
You have asked whether the mayor has any discretion to refuse to countersign payroll checks. In my opinion the mayor is obligated to countersign payroll checks drawn by the treasurer for municipal employees until they are terminated by the official responsible. The Mayor has no discretion regarding the signing of payroll checks, and if she refuses, she may be compelled, through a writ of mandamus, to do so.
Apparently, the Mayor is refusing to sign the paycheck of a police officer whom she considers not to be an employee of the City. However, you indicated that this officer has not been terminated by the city administrator and that the city continues to accept his services. Until such a termination occurs, the employee is entitled to his wages.
The City's Municipal Charter gives the Mayor certain duties which are spelled out in Tennessee Code Annotated, §6-3-106. Subsection(a)(5) provides that the mayor:
shall countersign checks and drafts drawn upon the treasury by the treasurer...
The mayor does not appear to have any discretion whether to sign a payroll check that has been issued by the treasurer. This is consistent with the general rule that the signing of payroll checks that have been "duly authorized" is a "ministerial duty." McQuillen, Municipal Corporations, 3d Ed. Vol. 17, § 51.35, p.548. Blacks Law Dictionary defines a "ministerial duty" as:
One regarding which nothing is left to discretion--a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.
A "ministerial duty" is:
...one as to which nothing is left to discretion. State v. Wimberly, 184 Tenn 132, 196 S.W.2d 561 (1946). McQuillen, Municipal Corporations, 3d Ed. Vol.2, §10.38, p.1111.
Further, an elected official that refuses to exercise a ministerial act may be compelled to do so through a writ of mandamus. A writ of mandamus is:
a remedy through which a public officer charged by law with a ministerial duty may be compelled to perform it. State v. Clark, 173 Tenn. 81, 114 S.W.2d 800(1938).
Looking at the Municipal Charter and in light of the general law that considers the signing of authorized payroll checks to be ministerial functions, I think there is no doubt that the Mayor must sign this check. Until this police officer is terminated and the city no longer accepts his services, if she continues to refuse to sign his paychecks she may be compelled, through a writ of mandamus, to do so.
You also asked whether the aldermen could sign blank payroll checks for the one time when all three aldermen and the vice-mayor are to be on vacation. Given the fact that your ordinances require you to have the signature of the mayor, or in her absence, the vice-mayor and an alderman, I do not see much alternative to the, otherwise, unwise practice of signing blank, post-dated checks.
As long as this is not a regular practice and is one that must be done due to the absence of the board of mayor and alderman at the same time, I think it is the only practical way to handle the situation. You may want to date the checks and fill them in ahead of time even though you do not have the final figures. However, this will involve a good deal of your time in correcting the payroll next month, since almost all of your employees are hourly and you will not have the final figures until Wednesday.
Please call if you have any more questions about this or any other matter.
With kind regards,