|Legal Opinion: |
Text of Document: May 12, 1992
First, let me apologize for the delay in responding to your request as I have been doing a great deal of traveling and teaching around the state. Your letter is somewhat unclear as to the precise question you want answered. Therefore, I will respond to the two different questions that I see: May the Board of Mayor and Aldermen compensate aldermen appointed to committees for their service as committee members? May the Board of Mayor and Aldermen compensate other persons who are appointed to serve on committees for their service as committee members. The answer to the first question appears to be a qualified yes. The answer to the second question depends on the type of committee, and the nature of the appointment.
It has consistently been held that absent specific statutory or charter authority, a municipal officer may not receive compensation for public service. The officer must point to some legislative provision, be it in your charter or general law, to support a right to compensation. According to 4 McQuillen, Municipal Corporations, Sec. 12.174:
Where the common law imposed a duty upon an officer, he could not claim a remuneration for fulfilling it unless the law had expressly conferred such a right. Unless the law provides a salary or compensation to the public officer none can be recovered. This sound rule is of general application, and steadily enforced by the courts. Any sort of claim against the public as salary, compensation, emolument, wage, fee or expense must be authorized by law or contract, either express or implied.
Similar language is found in 62 C.J.S., Municipal Corporations, Sec 523: "A municipal officer rightfully holding an office is entitled to such compensation, and only such compensation, as is provided by law as an incident to the office." Tennessee follows this same rule. In Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815 (1928), the Tennessee Supreme Court ruled that
Compensation attached to the office, whether 'salary' or 'per diem' [citation omitted] is not given to the incumbent because of any supposed legal duty resting upon the public to pay for the service [citation omitted] and a law creating an office without any provision for compensation carries with it the implication that the services are to be rendered gratuitously.
[See also, Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955)]
Your municipal charter contain specific provisions governing compensation of the Mayor and the Aldermen, one of which is buried in a section dealing with the City Attorney. Section 18 of the City Charter provides:
Sec. 18. Be it further enacted, that the Board of Mayor and Aldermen shall have the right to appoint a City Attorney, to fix his compensation or salary and also to fix their own compensation. (as amended)
This language is unusually broad; no specific salary is mentioned so there is no need for a private act amending the charter to change compensation and, there is no prohibition on increasing or decreasing the salary during a mayor alderman's term of office. This flexibility would allow the Board of Mayor and Aldermen to compensate the Board for any of their duties including the duty to sit as a board or committee appointees.
The Charter contains another provision governing the compensation of municipal officers that is pertinent to this discussion. Section 9(18) provides that an additional power of the Board of Mayor and Aldermen is:
(18) To appoint a Recorder, Treasurer, a Tax Assessor, Health Officer, and all such other officers and agents as the necessities of the corporation may require, and as the Board of Mayor and Aldermen shall determine are needed; and to appoint or elect a Board of Street Commissioners and a Board of School Commissioners, each of said Boards or Committees to consist of three members, who may be members of the Board of Aldermen, and fix and determine their pay and compensation;
Thus, if the alderman or the mayor sits as a member of the Board of Street Commissioners or the Board of School Commissioners there is specific authority to receive compensation as a board member in addition to any salary they receive as aldermen or mayor. If the alderman or mayor is sitting as a member of a different committee or board, the general authority to establish and increase the boards' compensation, in Section 18, would allow the board to provide additional compensation for committee duties. In the later case, however, the salary set for the Board of Mayor and Aldermen would have to apply to all aldermen.
What about other persons appointed to sit as committee members? Again, the charter allows for compensation for members of the Street Commission and the School Commission. Outside of these two committees, there is no specific authority to compensate people appointed to committees. In fact, if they are officers of the municipality, the charter, with some exception, specifically prohibits compensation being awarded. Section 9(18), the beginning of which is quoted above, goes on to state:
...provided, that no officer of this corporation shall receive pay or compensation for his services, except the Marshall or police officers, the Recorder and Tax Assessor, who shall receive such compensation for their services as may be fixed and determined by the Board of Mayor and Aldermen;
"Officer" has definite legal meaning and is defined by the Tennessee Supreme Court as follows:
An "officer" when used in the sense of one who holds an "office" which entitles him to the salary for the entire term carries with it the idea of tenure for a definite duration, definite emoluments and definite duties which are fixed by statute. Wise v. Knoxville, 194 Tenn. 90, 250 S.W.2d 29 (Tenn. 1952).
67 C.J.S. Officers, sec.2, defines public officer:
...as an incumbent of a public office; an individual who has been appointed or elected in an manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law.
67 C.J.S. Officers, sec. 10, states, further:
...a public office embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent.
Boards and committees that are created by state statute or municipal charter, that provide for a specific tenure and set forth specific and continuing duties, such as a planning commission or board of zoning appeals or, in the city charter, the School and Street Commissions, would fall within the definition of "office" and unless the state law that creates these boards and committees provides for compensation of these "officers" they are not entitled to any payment for their services.
However, if the board or committee is established by local ordinance, and not state statute or municipal charter, this same rule may not be applicable. Task forces and advisory or study committees, for example, that are created to assist the Board of Mayor and Aldermen are not "officers" of the public corporation and may be compensated in whatever fashion the Board of Mayor and Aldermen may provide by ordinance. These committees have recommendation powers only and are not administrative agencies of the municipality. They do not conduct municipal business on behalf of the municipality. They have no tenure and no continuity, in that they last only as long as they are needed to advise and make recommendations to the Board. Thus, to the extent these boards and committee members are not "officers," they may receive compensation.
Your final question remains: If the board or committee member may be compensated can compensation be awarded retroactively to include meetings held prior to the resolution or ordinance authorizing such compensation. Again, the answer depends on the board or committee:
1.) For members of the Board of Mayor and Aldermen, their compensation can be set at any time and if the Board chooses to include past meeting time, it may;
2.) For members of the Street Commission and the School Commission, their compensation may be set at any time and if the Board chooses to compensate for past meeting time and has not already done so, it may;
3.) For members of boards and committees established by state statute or municipal charter (other than Street and School Commission) no compensation may be awarded unless specifically authorized;
4.) For members of boards and committees established by resolution or municipal ordinance, compensation may be set at any time by amending the ordinance or enacting a new resolution and may include past meeting time if the Board so chooses.
If you have any questions or comments regarding this or any other matter of municipal concern please do not hesitate to call. You may also want to consult your city attorney or other private counsel on these questions. This opinion is based on information which may be subject to other legal interpretations and perspectives.