|Legal Opinion: |
Text of Document: October 4, 1996
You have the following question: Does the city council have the authority to require the city manager to “hire back” a fireman who resigned, ostensibly on the ground that the city manager refused to permit him to “moonlight” as a building inspector for a city when he was already moonlighting as a building inspector for the county?
The answer is clearly no. Under your City Charter the city manager has sole power over personnel administration, subject to the charter and ordinances of the city. Nothing in the charter or the personnel regulations of the city govern the city manager with respect to the re-hiring of an employee who has resigned. In fact, I would be surprised to find any such regulations in any personnel policy of any city.
As far as I can determine, there are no Tennessee cases governing the relationship between the city manager and the city council. However, such cases can be found in other jurisdictions, and they appear unanimous in preserving the city manager’s statutory and charter authority to govern personnel in the face of incursions in that area by city councils.
It has been said generally that:
It is basic to the city manager form of government that the council shall be the policy-making body, and the manager the chief administrator. Unless otherwise provided for by statute or charter, the council does not and should not attempt to dictate or confirm appointments of city officers and employees, nor importune the manager on appointments, or indeed on any other administrative matter. [56 Am. Jur. 2d, Municipal Corporations, sec. 186.] [Emphasis is mine.]
In Webb v. City of Beloit, 281 N.W. 622 (S. Ct. Wis. 1938) a statute gave the city manager the power to appoint all heads of departments, subordinates, city officials, and all city employees, and to remove them at any time their services or the conduct of their offices became unsatisfactory to him. Another statute established a board of police and fire commissioners appointed by the mayor, which hired the police and fire chiefs, and which gave the police and fire chiefs the authority to hire subordinates, subject to the approval of the board. The same statute empowered the city to abolish the board. Declaring that the effect of the abolishment of the board was to vest the personnel authority over police and fire personnel in the city manager, the Court spoke of both the broad personnel powers granted the city manager under the city manager statute and of the nature of city manager government:
By the express terms of sec. 64.11 the city manager is given the power to appoint all heads of departments, all subordinates, city officials and all employees, and to remove such appointees at any time their services or the conduct of their offices become unsatisfactory to him. This unqualified power in the city manager to hire and fire is one of the principal attributes of a city manager plan of city government. The theory is that he himself is to be appointed on merit only, and he is to have full control of the city and full responsibility corresponding with that control. [At 664-65.]
One of the questions in that case was whether the city could reduce the salaries of the police officers and firemen absent a recommendation of the city manager. The statute establishing the board of police and fire commissioners provided that salaries of fire and police chiefs and of the police officers and firemen could not be reduced by the city without a recommendation of the board. After the city abolished the board, it reduced the pay of personnel without a recommendation of the city manager. [Apparently in response to the financial weakness of the city during the Great Depression.]
Yes, answered the Court, reasoning that under the city manager statute the administrative powers of the board devolved upon the city manager, the legislative powers of the board upon the city council:
The power to recommend a decrease is certainly a legislative power, when the recommendation is made a condition precedent to legislative action of the council. It is as much so as a power to veto. The purpose of vesting this power in the police and fire commissioners was to set up a check upon the power of the council and to prevent the latter from interfering with the discipline of departments by reducing the pay of firemen and policemen. The retention of this power is inconsistent with the basic theory of the city manager plan, which is to abolish the elaborate system of checks and balances theretofore existing in the city government, to turn over the legislative powers to the city council as heretofore, and to run over the executive and administrative powers to a hired manager. [At 665.]
That case contains several themes that are carried through later cases on the question of the relationship between the city manager and the city council:
1. It is the characteristic in the city manager form of government for the city manager to have broad administrative powers, and the city council to have legislative powers, within the limits prescribed by applicable statutes and charters.
2. It is also characteristic in the city manager form of government that one of the city manager’s administrative powers is the management of the city’s personnel system, within the personnel rules and regulations adopted by the municipal governing body (legislative authority), which themselves must be within the limits prescribed by applicable statutes and charters.
3. The courts will protect the city manager’s statutory and charter authority.
Two recent New Jersey cases echo those themes: Clifton v. Zwier, 177 A.2d 545 (N.J. Sup. Ct. 1962), and Visone v. Reilly, 194 A.2d 248 (N.J. Sup. Ct. App. Div. 1963). In Clifton, a statute provided that the city manager was:
the chief executive and administrative officer of the municipality [Citation omitted.] with particular power to ‘[a]ppoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this subtitle.’ [Citations omitted.] This accords with the fundamental theory of the manager form of government--a distinct separation of policy determination and legislative power, which resides in the elected municipal council [Citations omitted.] from administrative and executive functions, which repose in the professional manager. [Citations omitted.] [At 547.]
Visone considered the question of whether the city manager had the authority to appoint an employee without the confirmation of the city council. Under a New Jersey statute that covered the city in question, the city manager had the authority to:
Appoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided for in this subtitle [Statutory citation omitted.], supervise and control his appointees, and report all appointments or removals at the next meeting thereafter of the municipal council. [At 249.]
A contradictory provision of the same statute provided that, “The municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council.” [At 249.] Other statutes gave the city council the power to appoint various municipal officers, including a city manager, who were to serve at the pleasure of the council.
Finally, another statute provided that:
It is the intention of this subtitle that the municipal council shall act in all matters as a body, and it is against the spirit of this subtitle for any of its members to seek to influence the official acts of the municipal manager, or any other officer, or to interfere in any way with the performance by such officers of their duties. [At 250.]
The Court resolved the statutory conflicts in favor of the city manager, holding that the city council had no power of confirmation of the city manager’s appointment. Furthermore, continued the Court, the city council had no power over the removal of employees appointed by the city manager. It reasoned that:
Basic to the municipal manager form of government is that the council shall be the policy-making body, and the manager the chief administrator. The council does not and should not attempt to dictate or confirm anointments, nor importune the manager on appointments, or indeed on any other administrative matter. [Citing Ridely and Nolting, The City Manager Profession, page 30 (1934).] Had the Legislature desired to depart from this basic principle of municipal manager government, it could have so provided in [the New Jersey Statute governing the city manager] by requiring council approval of appointments....Thus the municipal manager is given complete charge of personnel administration under the municipal manager form of government. If council approval were required in the case of an appointment, then with equal logic the council would have to approve any removal as well as the manager’s supervision and control of every employee. This would completely destroy the form of government; administration would stagnate and become practically inoperative. [At 251.] [Emphasis is mine.]
The Visone Court also pointed to an earlier New Jersey case for support. In Ware v. Cape, 197 A.726 (N.J. S. Ct.), a fireman challenged his dismissal by the city manager, arguing that he had been appointed by the city council. The Court, weighing essentially the same statutes at issue in Visone, rejected that challenge, declaring that:
Councilmanic interference with the exclusive functions of the city manager is violative of the very essence of this statutory system of government. The basic policy is expressed in terms that admit of no doubt as to the legislative purpose. All municipal servants shall be selected ‘with reference to their qualifications and fitness for the public service required of them without reference to their political faith or affiliations....’ The legislature has, with certain exceptions, entrusted the administration of this policy to the manager. That is one of the outstanding features of this modern system of local government. [At 251.]
Finally, the court concluded, “Our highest court has only recently pointed out that our cases have been strict in protecting the appointment authority of the manager [under the statutes governing city managers.]” [At 251.] [Emphasis is mine.]
A Wichita, Kansas, fire lieutenant challenged his dismissal by the city manager in Piper v. City of Wichita, 258 P.2d 253 (S. Ct. Kan. 1953), arguing that he was protected by a certain civil service statute. Not so, held the Court, declaring that the City of Wichita had adopted a statutory city manager form of government under which the city manager was responsible for the administration of all affairs of the city, and had the power to appoint and remove all heads of departments and all subordinate officers and employees of the city.
This case is significant because the Court introduced another theme important in the relationship between the city council and the city manager: The city manager himself cannot surrender to the city council power and responsibility he has under a statute or charter. The fire lieutenant had also argued that the city manager failed to follow his own written policies governing the discipline of employees. The Court quickly dismissed that argument on the ground that the city manager had the statutory responsibility for appointing and removing all department heads and employees, concluding that “The city manager cannot by publication and issuance of a booklet such as Exhibit “A” relieve himself of that responsibility.” [At 261.]
The same result is seen in Taylor v. Crane. et al., 140 Cal. Rptr. 468 (App. 1977). There the Berkeley, California, city manager discharged Crane, a police officer who, while off duty, fired two shots at fleeing burglary suspects, hitting a 13 years old suspect. The city and the Berkeley Police Association had earlier entered into a memorandum establishing a grievance procedure, a provision of which called for arbitration of disputes, the arbitrator to be designated by mutual agreement of the Association and the city manager. Apparently the city and the city manager also entered into a supplemental agreement specifically submitting Crane’s termination grievance to binding arbitration. The arbitrator restored the police officer to his job with back pay. The city and the city manager challenged the arbitrator’s award on the grounds that it was not binding on the city.
The Berkeley City Charter provided that:
The City Manager shall be responsible to the Council for the efficient administration of all the affairs of the City. He shall have the power and it shall be his duty : ....
(b) Except as otherwise provided in this Charter, to appoint, discipline or remove all heads or directors of departments, chief officials, and all subordinate officers and employees of the City, subject to the Civil Service provisions of this Charter. Neither the Council nor any of its committees or members shall dictate, either directly or indirectly, the appointment of any person to the office or employment by the City Manager or in any manner interfere with the City manager or prevent him from exercising his own judgment in the appointment of officers and employees in the administrative service. Except for the purpose of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager and neither the Council nor any member thereof shall give orders to any subordinate of the City Manager either publicly or privately.
(c) To exercise control over all departments, divisions and bureaus of the City Government and overall appointive officers and employees thereof. [Emphasis the court’s.]
The statute governing memorandums between cities and employee associations provided that the memorandums were not binding, and that “Nothing contained herein shall be deemed to supersede the provisions of existing state law and charters, ordinances, and rules of local public agencies which establish and regulate a merit or civil service system.” The city had such a system, supervised by the city manager.
Which statute prevailed? The statute investing the personnel power of the city in the city manager, answered the Court. In fact, the city manager himself could not surrender that power:
As a general rule, powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates, in the absence of statutory authority.... Likewise, there can be no doubt that the City Manager, in the absence of higher authority, was without power to surrender his charter-imposed duties to discipline and remove Crane. The approval of the supplemental memorandum by him and the other City officials was without legal effect in view of City charter section 28(b), quoted above.... the City charter expressly confines the duty of disciplining and removing Crane to the City Manager. Patently, the City council, whose authority is derived from the charter, does not, as a matter of law, have authority to do an act, or make an agreement, in derogation of the charter. It follows that neither the City Manager nor the City council had authority to approve the provisions of the supplemental memorandum for the final and binding arbitration of Crane’s grievances concerning his termination. [At 474.]
A year earlier, the same Court in Brown v. City of Berkeley, 129 Cal. Rptr.1 (App. 1976), applying the same city manager charter provisions at issue in Taylor, above, struck down several provisions of a city ordinance (adopted by initiative) establishing a police review commission because they interfered with the city manager’s charter-imposed personnel powers.
The Court recognized that the city council clearly had the legislative authority to:
have an ongoing involvement in the formation of the policies, practices and procedures of the police department. This clearly includes the power to investigate the same and make pertinent recommendations. The fundamental nature of the ordinance is directly aimed at inquiring into and investigating the policies, practices and procedures of the police department. Under the charter sections [giving the city council authority over the police department], it is clearly within the council’s power to inquire into said police department practices, procedures and policies and make recommendations concerning same.
But the Court drew the line where the ordinance intruded into the administrative powers of the city manager. Some of the provisions of the ordinance permitted the police commission to receive, hear and investigate complaints against individual police officers, and to make recommendations and give advice including on disciplinary actions and departmental policies and procedures with respect to such complaints. Citing the provisions of the Berkeley City Charter governing the city manager, the Court declared that, “However, as to intrusions into individual disciplinary hearings of police department employees and officers, which the ordinance also attempts, such does conflict with the charter grant of powers to the city manager, as the trial court properly determined.” [At 6.] [Emphasis is mine.] For that reason, continued the Court:
.... while it would appear that the Commission could properly hear and investigate complaints against specific police department officers and employees, it is beyond the council or Commission’s power to recommend specific action and/or disciplinary action as to individuals. To do so would usurp the powers and functions of the city manager. [At 6.]
Another of the provisions of the ordinance required the office, staff and employees of the city clerk to supply clerical and secretarial assistance to the Police Commission and to “define the duties of said secretarial and clerical assistance.” [At 4.] That provision illegally conflicted with the city charter provisions providing that, “Except for the purposes of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager.” [At 6.]
Two other provisions of the ordinance required that all departments, officers and officials of the city cooperate with the police commission and provide it virtually any written information, documents and materials it deemed necessary to its duties, and that the chief of police or his subordinate, and any other police department or city officials attend the commission’s meetings upon its demand. Those provisions, declared the Court, violated the city charter provision that administrative services go solely through the city manager.
Read together, the above cases represent solid authority for the proposition that the your City Council would exceed its power in ordering the city manager to re-hire the employee in question.
The administrative powers given to the city manager under your City Charter are similar, if briefer, to the powers given to the city manager in each of the above cases. Article IV, sec. 1, provides that the city council shall appoint a “chief administrative officer of the City who shall be entitled City Manager, and who shall serve at the will and pleasure of the City Council.” The relationship between the city manager and the city council is set out in art. IV, sec. 3:
The City Manager shall be responsible to the City Council for the administration of all units of the city government under the City Manager’s jurisdiction and for carrying out all policies adopted by the City Council. Except for the purpose of inquiry, the City Council and its members shall deal with the employees of the City solely though the City Manager. [Emphasis is mine.]
The city manager derives his general personnel power from art. VI, sec.1:
The City Manager shall develop and manage the City’s personnel system so as to employ those persons best qualified to perform the functions of the City. The City manager shall have the power to hire, train, supervise, transfer, promote, demote, suspend, or terminate any city employee consistent with the provisions of this charter and with the ordinances of the City.
Those provisions seem quite clearly to delineate the legislative powers of the city council with respect to city employees, and the administrative powers of the city manager with respect to those employees. The city council has the power to make policies governing the administration of the city and its units of government, including the passage of ordinances governing personnel policies and procedures. The city manager develops and manages the city’s personnel system, and under that system has the power to “hire, train, supervise, transfer, promote, demote, suspend, or terminate any city employee” consistent with the charter and ordinances of the city.
There is no doubt that the city council can investigate the handling of general personnel matters and individual personnel matters. For that reason it can undoubtedly investigate the resignation of the fireman in question and even adopt legislation governing the ostensible issues over which the fireman resigned. However, those legislative powers do not translate into the power, either directly or indirectly, to order or influence the city manager to “hire back” the former employee. The hiring of employees--any personnel action involving an employee--is an administrative power that belongs to the city manager under your City Charter.
Visone pointed out that to permit the city council to approve the city manager’s appointments would require that his termination of employees and other personnel actions also be approved by the city council. That would be true with respect to every personnel action the city manager has the power to make under the charter. If your city council could order him to re-hire an employee who has resigned, it could order him to hire other employees, to terminate employees, to promote or demote employees. Such interference with the city manager’s personnel powers violates the theory of the city manager form of government, and is inconsistent with the city's Charter.
Indeed, the City Manager cannot even voluntarily surrender his personnel powers to the city council, either generally or with respect to individual employees; those powers derive from the city’s charter. The city council can legislate personnel policies, but even those are required to be consistent with the city manager’s powers under the City Charter.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant