|Legal Opinion: |
Text of Document: August 3, 1994
Your question is, can the city provide health insurance to the city attorney? In my opinion, the answer is yes, although the insurance would have to be provided under Tennessee Code Annotated, section 8-27-601 et seq.
There Is No Constitutional Limitation On Providing Insurance.
Under Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815 (1928) public legislative bodies, including municipal governing bodies, have broad authority to modify the salaries and other forms of compensation of elected officers, as well as other officers and employees to the extent not limited by the Tennessee Constitution. In that case, the Tennessee Supreme Court declared that the General Assembly could authorized 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 proscription was a "salary" limitation and not a limitation upon the authority of the General Assembly to compensate its members for the expense of office. Blackwell v. Quartery County Court, 622 SW.W.2d 538 (1981) goes even further. In upholding the right of a county to modify a pension plan, the Tennessee Supreme Court in sweeping language in effect declared that within constitutional limitations governments at both state and local levels have broad authority relative to salary and compensation adjustments of their elected and appointed officers. There are no constitutional limitations on either officers' or employees' salary or other forms of compensation with respect to general law chartered cities.
There Is A Statutory (Charter) Limitation on Providing Insurance.
While there is no constitutional limitation on the city providing the city attorney compensation in the form of health insurance, there is a statutory limitation. The City is chartered under the General Law Manager-Commission Charter found at Tennessee Code Annotated, Section 6-18-101 et seq. Section 6-19-105 of the charter provides that the board of commissioners can make available to the city's full-time nonelective officers and employees, "any group, life, hospital, health or accident insurance, either independently of, or as a supplement to, any retirement or other employee welfare benefits otherwise provided by law." That provision obviously does not apply to the city attorney who, if he is an officer or employee at all, is neither a full time officer nor a full time employee.
Section 6-21-102(b) of the charter further says that:
Except as otherwise provided in this charter, the compensation of all officers and employees of the city shall be fixed by the city manager within the limits of the appropriations ordinance and in accordance with a comprehensive pay plan adopted by the board of commission.
Section 6-21-202(b) of the charter "otherwise provid[es]" for the compensation of the city attorney, saying that, "The city attorney shall receive a salary to be fixed by the board." That provision limits the city attorney to a salary, particularly in light of Section 6-19-105 which specifically authorizes the city to provide insurance for full time officers and employees of the city, a class that does not include the city attorney.
A Possible Statutory Alternative For Providing Insurance.
If the city is to provide the city attorney health insurance, it must find authority to do so under another statute.
Tennessee Code Annotated, section 8-27-601 permits municipalities to provide various forms of insurance for their officers and employees and their dependents. There are certain hoops prescribed for the city to jump through under that statute before it adopts an insurance plan for its officers and employees. [See Tennessee Code Annotated, section 8-27-602] Such plans are not limited to full time officers and employees under that statute. However, the city attorney would have to qualify as either an officer or employee of the city within the meaning of that statute.
The city attorney is not clearly denominated an officer under the general law manager-commission charter. However, Section 6-21-108 of the Charter provides that the among the powers and duties of the city manager is the power and duty to "Supervise and control the work of the recorder, the chief of police, the city attorney, treasurer, and all other officers...." That provision at least implies that the city the recorder, chief of police, the treasurer and the city attorney are officers of the city.
A number of tests for determining whether a particular person is an officer were set out in Sitton v. Fulton, 566 S.W.2d 887 (Tenn. App. 1978). [Also see Ross v. Fleming, 211 Tenn. 255, 364 S.W.2d 892 (1968), Glass v. Sloan, 198 Tenn. 558, 281 S.W.2d 397 (1955), and Gamblin v. Town of Bruceton, 803 S.W.2d 690 (1990)] In that case the Court said that it was not necessary that the charter specifically declare a county law director an officer, and turned to the legal encyclopedias for the definition of a public officer:
"Public officer" has been defined as an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given to him by law, and who exercises the functions concerning the public assigned to him by law. 67 C.J.S., Officers, sec. 2.
Also, as pointed out at 63 Am.Jur.2d., Public Officers and Employees, Sec. 10 '(a) public office embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent.'
Declaring that because the charter established the office of law director, prescribed the performance of certain duties on behalf of the public for a fixed period of time, and set salary, etc., "The office is one of duration, and the duties connected therewith are continuing and permanent."
The city attorney under the general law manager-commission charter meets some, but probably not the most important, of those tests. He is appointed, has a designation or title given to him, and has functions assigned to him, all under the charter. 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, they are not continuing and permanent with respect to any certain city attorney for a particular period. In Sitton the law director had tenure; the city attorney under the general law manager-commission serves at the pleasure of the city manager. [Section 6-21-102 and 6-21-108(2)]
However, the implication in the charter that the city attorney is an officer, coupled with the provisions in the charter establishing a city attorney and providing for his appointment and duties probably qualifies him as an officer under the General Law Manager-Commission Charter.
Even if the city attorney were not an officer, he may be an employee. Although Tennessee Attorney General Opinions are not the law, OAG U93-46 opines that a non-elected city judge is an employee of the city. It cites 10 Tenn. Juris., Employer and Employee, section 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 without responsibility to the other party as to time or manner of doing the work.
"Clearly," declares that opinion, "the 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."
In my opinion it stretches that definition of "employee" to opine that a city judge is an employee (apparently as opposed to an independent contractor), but if that definition does cover a city judge, it certainly offers the city and the city attorney an argument that the city attorney is, if not an officer, an employee. Although under the charter the city attorney has prescribed duties, he is subordinate to the "supervision and control" of the city manager. [Section 6-21-102 and 6-21-108] In that respect he is a "servant," similar, if not exactly like other officers of the city.
Sidney D. Hemsley
Senior Law Consultant