|Legal Opinion: |
Text of Document: MTAS has asked us to provide to you some of the authority used in reaching the conclusion that an alderman currently serving on the Board of Mayor and Aldermen for your city (for which he receives a salary) may not hold a paid position with the County at the same time.
First, please refer to page 5 of your charter. Toward the bottom of the page, it states:
That all persons who are qualified voters in corporation elections in the your town are eligible to hold the offices of Mayor, Alderman, or Recorder; provided, such voter is not the holder of any other lucrative public office.
If both the positions your Alderman holds are lucrative, then the dual offices are prohibited by your charter. "Lucrative office" is defined in Black's Law Dictionary as
1. A position that produces fee revenue or a salary to the office holder.
2. A position that yields a salary adequate to the services rendered and exceeding incidental expenses; a position whose pay is tied to the performance of the office's duties.
Some factual inquiry must be made into the issue at hand to determine if both offices are "lucrative." If they are not, then the person holding both offices is all right. If both are "lucrative," then the person has a problem. At common-law, an office holder who accepts a "second office incompatible with one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind." State v. Thompson , 246 S.W.2d 59 (Tenn. 1952); State v. Slagle , 89 S.W.326 (Tenn. 1905). In your city’s case, it is not necessary to address any incompatibility of the two offices, because the charter expressly prohibits an alderman from holding any other lucrative public office. The power of the state or a city to enact legislation that prohibits an individual from holding two public offices which would create a conflict of interest was upheld in Lay v. City of Kingsport, 454 F.2d 345 (6th Circ. 1972), cert. den. 409 U.S. 846. In the Lay case, an alderman accepted the position of assistant superintendent of schools. The appellate court found there was a conflict of interest because one of the functions of the assistant superintendent was initial preparation of the annual school budget, including his own salary, and as alderman of the city he would then have to vote on approval of the budget.
A county resolution similar to your city’s charter provision prohibiting the holding of two lucrative offices was discussed by the Attorney General of Tennessee, where one individual wanted to serve as Mayor of a city and as County Executive at the same time. He found that improper because a county resolution prohibited a County Executive from holding public office at the same time that he held another public office for profit. Tenn. Op. Atty . Gen. # 98-054.
The Constitution of Tennessee says " . . .nor shall any person in this State hold more than one lucrative office at the same time . . ." Article II, ' 26, Tennessee Constitution, but this limitation has been held to prohibit only an employee of the state from holding two lucrative offices. The Attorney General of Tennessee has opined that the provision does not apply to either municipal or county offices. Tenn. Op. Atty. Gen. # 99-095.
While the holding of the two positions in your situation does not violate the state constitution, your Charter is unambiguous about the prohibition against holding two lucrative offices, and the person holding the two offices no longer can do so. He or she may have already given up the first position by taking the second (see discussion above) or your Board of Mayor and Aldermen may allow the person to resign from the county position and keep the aldermanic seat. If the person attempts to continue in both offices, then your Board could bring a quo warranto legal action to have the position declared vacant. Your charter does not contain any specific provisions for the filling of a vacancy in this circumstance.
Let me know if I can help you further.