|Legal Opinion: |
Text of Document: May 20, 1993
You have asked whether the Commissioners of the City may enter into an "employment agreement" with the Chief of Police. In my opinion the Commission does not have the authority to enter into such an agreement.
The City operates under the general law Manager-Commission Charter found in Tennessee Code Annotated, § 6-18-101 et seq. Section 6-20-205 governs the power of the Commissioners and provides:
(a) 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 shall 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.
Section 6-21-101 provides that the commissioners:
shall appoint and fix the salary of the city manager, who shall serve at the will of the board.
Section 6-21-102 governs "subordinate officers and employees" and specifies:
The city manager may appoint, promote, suspend, transfer and remove any officer or employee of the city responsible to the city manager;...The city manager shall appoint such heads of administrative offices or organizational units as the city manager deems necessary....
(b) 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 commissioners.
Section 6-21-108 details the powers and duties of the city manager and provides:
(2) Except as in this charter provided, appoint and remove all heads of departments and all subordinate officers and employees, all appointments to be made upon merit and fitness alone;
(3) Supervise and control the work of the...chief of police...and of all departments and divisions created by this charter....
Finally, Section 6-21-601 repeats what is stated in Section 6-21-108 by specifying that the city manager "shall appoint a chief of police".
Obviously, all of these sections have one main thrust: THE CITY MANAGER HIRES AND FIRES, SUPERVISES AND CONTROLS ALL DEPARTMENT HEADS INCLUDING THE CHIEF OF POLICE. The Commission simply does not have any authority over the subordinate department heads or employees except through and with the cooperation of the city manager. The Commission may exercise only legislative powers under the manager-commission charter. Even if the city manager wanted to give up this authority regarding the hiring and firing of department heads, he couldn't delegate it to the city commissioners. They would be exercising an administrative function they have not been given under their municipal charter.
As you know, employment contracts with government employees, other than a city manager or city administrator, are rare in Tennessee. Most cities have provided only limited property rights to employees and, absent personnel policies to the contrary, retain their at-will employment status. Employment contracts, of course, drastically alter this at- will status; providing a property right to continued employment and setting a precedent that the city may not want to set.
There is nothing in your charter that authorizes the city manager to enter into an employment contract with a department head or subordinate employee. In fact, even the city manager is considered an "at will employee" after he has worked for the city for twelve months. (See Section 6-21-101 above.) An employment contract guaranteeing the Chief of Police a position for a specific term would grant the Chief greater property rights in his position than the city manager has in his.
An employment contract between the Commission and the Chief of Police or any other department head would undermine the structure of the city-manager form of government. Any such agreement could potentially render meaningless the supervisory control the city manager must have and be able to exercise at all times. Of course, most managers will want to act with the approval of the Commissioners and will not make employment decisions without the approval of the Commission. But, the Commission may not go over or around the city manager by directly contracting with a department head or employee that, by charter, is under the city manager's supervision and control.
In fact, even if the Commission were given the administrative authority to hire and fire department heads (like the board of mayor and aldermen could do under the general law mayor-alderman charter) employment contracts that attempt to bind future commissions may be unenforceable as against public policy. In McQuillen, Municipal Corporations, 3d Ed., Vol.10A, §29.101, it is said that:
...where the nature of an office or employment is such that it requires a municipal board or officer to exercise supervisory control over the appointee or employee, together with the power of removal, such employment or contract of employment constitutes exercise of a governmental function, and such contracts must not be extended beyond the life of the board.
I would argue this rule applies not only to the current board of commissioners but to the current city manager; any agreement that attempts to bind the city manager regarding the supervision and control of the police department and his or her ability to hire and fire the police chief would not be enforceable.