|Original Document: |
Text of Document: MEMORANDUM
DATE: February 29, 2012
TO: Ron Darden, et al.
FROM: Sid Hemsley, Legal Consultant
SUBJ: Addition to Model Charter
There follows a proposed provision that can either be inserted into a general law or home rule charter, or be added to a city manager model charter. It arises from a request from Steve Thompson for a sanction in a city manager charter that charter for the interference by the city’s governed with the duties of the city manager:
Except for purposes of investigation, inquiry and information, the council [commission] and committees or individual members thereof, shall deal with the city officers and employees of the city solely through the city manager, and neither the council [commission] nor its members shall give orders to such officer or employee, either publically or privately. Any such action shall constitute malfeasance, for which the member or members of the council [commission] may be subject to recall under this charter and of the general election law of the state. This provision shall in no way restrict the right of the city government in order to obtain independent information for use by the council [commission] in discharging its responsibility for formulating sound policies to hold the administration accountable to the people and to increase the efficiency and economy of city government whenever possible.
This provision derives from a Florida case I will explain below.
Tennessee’s General Law Modified City Manager Council Charter, § 6-35-203 contains a similar provision with a different sanction, as follows:
(b)(1) Except for the purpose of inquiry, the council and its members shall deal with the administrative officers and employees solely through the manager.
(2) Neither the council nor any member thereof shall give orders to the manager’s subordinates or otherwise interfere with managerial functions through such means as directing or requesting the appointment or removal of any of the manager’s subordinates, or the making of particular purchases from, or contract with, any specific organization.
(c) The office of any council member violating any provision of this section shall become vacant upon such person’s conviction in a court of competent jurisdiction
There are no cases interpreting this provision, but in my opinion, it probably contains some serious flaws:
Section (b)(1) is probably legally solid. The same is probably true of most of § (b)(2), with the exception of the language “or requesting the appointment…” That provision probably lawfully prohibits the city council or its members from “directing the appointment or removal of the city manager’s subordinates or the “directing” of the city manager with respect to certain contracting and purchasing decisions, but it undoubtedly goes too far when it prohibits the city council and its members from “requesting” such action by the city manager. Even under the city manager form of government, neither the city council nor its individual members surrender all their First Amendment rights. In Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986), it was held that were a county commissioner individually solicited other commissioners’ votes for his appointment to the office of trustee, there was no Open Meetings Law violation because the commissioner “was doing nothing more than what a private citizen—any individual-would have the right to do under the same or similar circumstances. [At 607] although this is an Open Records Law issue, the court’s language has some strong First Amendment implications in favor of the commissioner.
The office of commissioner becomes vacant upon his or her conviction by a court of a violation of this statute. Presumably, the conviction would necessarily come under Tennessee’s Ouster Law [Tennessee code Annotated, § 8-47-101 et seq. For the reason indicated above, I doubt that it would be easy to convict a commissioner under that law for merely making a “request” of the city manager under that statute.
It was argued in State v. Howse, 183 S.W. 510 (1916) that the recall provision of the Nashville City Charter was the exclusive means by which to remove public officers, the Tennessee Supreme court disagreed, declaring that the Tennessee Ouster Statute and the city charter’s recall provision were cumulative remedies. The same is apparently true of the ouster provisions in the State Ouster Law and the ouster provisions in a city charter. The Tennessee Supreme Court said this in Donald v. Brooks, 387 S.W.2d 803 (1965):
The petition filed by the citizens before the city council is an ouster suit against the mayor, the same as if it had been filed under the General Ouster States of Tennessee, as contained in Section 8-2701 et seq, T.C.A. [now 8-47-101 et seq.], and the sufficiency of the evidence must be tested by the same rules as those as a court of law… In State Ex Rel. v. Parkinson, 159 Tenn. 442 [19 S.W.2d 254], Mr. Justice Cook said: “Proceedings under the Ouster Law should not be brought except in clear cases of official dereliction. The statute was intended to remove public officials for willful misconduct and for acts involving moral turpitude.” [At 806]
In that case, the court upheld an injunction by the trial court, stopping the ouster of a public officer, the court had determined was being removed for political reasons.
Also see Roberts v. Brown, 310nS.W.2d 197 (Tenn. Ct.App. 1957).
I have two reasons for mentioning the Ouster law (and ouster provisions in a city charter):
First, ouster is not an easy process, and will be used by the courts “only in clear cases of dereliction of duty.” It has also been said, most recently in Carney v. Crosby, 255 S.W.3d 593 (Tenn. Ct. App. 2008), that “the plaintiff in an ouster suit shoulders a heightened burden of proof.” [At 597]
Second, the standards for the recall of public officials are lower than the standards for removal under the Ouster Law. I have attached an earlier letter I did on the recall process and that standards that apply to it, generally across the United States as well as Tennessee.
The only place I can find that recall as a sanction for the interference with the city manager’s duties, or at least that involves cases involving that sanction, is Florida. There in Graven v. Jerome, 721 So.2d 1224 (Fla. Dist. Ct. App. 1998), a provision of the City of Daytona Beach Shores charter read:
Except for the purposes of investigation, inquiry and information, the council and committees or individual members thereof, shall deal with the city officers and employees of the city solely through the manager, and neither the council nor its members shall give orders to such officer or employee, either publically or privately. Any such action shall constitute malfeasance within the meaning of Article IV, Section (7)(a) of the Florida Constitution. This prohibition shall in no way restrict the right of individual council members, to observe and personally scrutinize closely all aspects of city government in order to obtain independent information for use by the council in discharging its responsibilities to formulate sound policies to hold the administration accountable to the people, and to increase the efficiency and economy of city government whenever possible.
That case does not disclose the language of Article IV, Section (a) of the Florida Constitution. However, a Florida recall statute provided a number of reasons for the recall of municipal officials, among them “malfeasance.” The petition for the recall of a member of the city’s governing body contained five reasons for the recall, the first one of which was "Giving work instructions to city employees … without going through the city manager.” While the court declared that the other four reasons may be inadequate to support a recall, the recall election could proceed on the first reason.
There is no malfeasance provision in the Tennessee Constitution, but in the old, but still good, case of State v. McClellan (1905), the court defined and distinguished the words “nonfeasance,” “misfeasance,” and “malfeasance”:
(1) Nonfeasance, or neglect or refusal, without sufficient excuse, to perform an act which it was the officer’s legal duty to the individual to perform.
(2) Misfeasance or negligence, which here, as elsewhere, is a failure to use in the performance of a duty owing to the individual, that degree of care, skill, and diligence which the circumstances of the case reasonably demand.
(3) Malfeasance, or the doing, either through ignorance, inattention, or malice, of that which the officer had no legal right to do at all, as where he acts without any authority whatsoever, or exceeds, ignores, or abuses his powers. [At 268-269]
Malfeasance appears to be the correct description of the act of a member of a city council who interferes with the duties of a city manager. Also see Wolfson v. Work, 326 So.2d 90 (Fla. Dist. Ct. App. 1976).
Unlike Florida’s recall statute, the Tennessee recall statute does not prescribe the permitted reasons for recall; it simply provides that if a municipal charter contains a recall provision, certain standards therein apply to recall petitions and elections. [Tennessee Code Annotated, § 2-5-151] In addition, while Tennessee Code Annotated, title 2, is by its own language, supposed to be the entire election law of the state,, recall elections are also governed by Tennessee Code Annotated, § 6-53-108, which provides that:
(a) the charter of any municipality to the contrary notwithstanding, any petition or petitions required to be filed under a municipal charter in order to cause a recall election of whatever type or kind, whether in the nature of a new municipal election prior to the next regular election or otherwise, shall contains one (1) or more specific grounds for removal.
(b) This section shall be construed to be remedial and shall be given a liberal and retroactive effect where legally permissible.
Tennessee Attorney General’s Opinion 04-135 opines that Tennessee Code Annotated, § 6-53-108 is applicable to recall elections, and supersedes any inconsistent municipal charter provisions.