|Legal Opinion: |
Text of Document: April 5, 2001
You have the following question: Can an alderman who the board of mayor and aldermen intends to appoint the mayor, vote for himself for that position? The facts indicate that the mayor resigned, and the vice-mayor chooses not to assume the office of mayor.
The law in Tennessee is generally that a member of a governing body cannot vote for himself for a position to which the governing body has the power of appointment. However, none of the Tennessee cases on that question deal with the self-vote of a member of a governing body to a position that by statute must be filled with a member from that body. For that reason, the prospective mayor is advised not to vote for himself.
The City operates under the general law mayor-aldermanic charter. With respect to filling vacancies in office, Section 6-3-107 of that charter provides that:
(a) The board shall elect an alderman to the office of vice-mayor, who shall serve as mayor when the mayor is absent or unable to discharge the duties of the mayor’s office, and, in case of a vacancy in the office of mayor, until the next regular municipal election.
(b)(1) By affirmative vote of a majority of the remaining members, the board shall fill a vacancy in the office of alderman for the unexpired term, but any portion of an unexpired four-year term for alderman or mayor that remains beyond the next regular municipal election shall be filled by the voters at that election, if the vacancy occurs at least twenty (20) days before the latest time for filing nominating petitions for candidates in that election....
An argument can be made that it is the intent of that provision of the city’s charter that the vice-mayor is automatically elevated to the office of mayor upon the sitting mayor’s resignation. However, I have never been able to find any Tennessee cases or cases from other jurisdictions that indicate what happens when the vice-mayor under a similar charter provision elects not to accept the office of mayor. For that reason I assume that because an alderman is elected to a certain term of office under Section 6-3-101 or 6-3-102 of the general law mayor-aldermanic charter, he continues to hold office for that term even if he elects not to accept the office of mayor.
With respect to the question of whether the alderman who is the prospective mayoral appointee can vote for himself for that office, State ex rel. v. Thompson, 246 S.W.2d 59 (Tenn. 1952), the city commission (actually the city council) of Paris, Tennessee, appointed one of its members the city manager. The member of the city council appointed the city manager voted for himself. The main questions in that case were whether the city council had the authority to appoint one of its own members the city manager, and whether the city councilman appointed city manager vacated the former office by accepting the latter office. However, in addressing those questions, the Court also addressed the question of whether it was legal for the city councilman to have voted for himself as city manager. Citing 42 Am.Jur., page 955, section 97 (presently 63 Am.Jur.2d, Public Officers and Employees, § 100, the Court said:
So, it is contrary to the public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members. [Emphasis is mine]
The Court followed that up with a similar citation from McQuillin on Municipal Corporations, revised Volume 2, page 159, § 477 (presently 3 McQuillin, Municipal Corporations, 3d Revised Ed., § 12.75):
Pursuant to the general rule, a council, although possessed of the power of appointment may not select one of its own members as clerk of the council, or as a member of the board of assessors. For a like reason, a member cannot vote to confirm his own appointment to office. [Emphasis is mine]
It was subsequently held in Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986), that the above rule reflected the common law rule, and that the common law could be overturned by statute.
There are a significant number of cases from other jurisdictions on your question. In virtually all of them, the courts have held that a member of a governing body cannot vote for himself with respect to positions over which the board has appointing power. [See State ex rel. Bergin v. Goodrich, 84 A. 99 (Conn. 1912); State ex rel. Kenny v. Ranslow, 154 A.2d 526 (Super Ct. Conn. 1959); Commonwealth ex rel. McCreary v. Major, 22 A.2d 696 (Penn. 1941); Coltar v. Warminister Township, 302 A.2d 859 (Pa. Cmnwlth. 1973); Hornug v. State ex rel. Gamble, 19 N.E. 151 (Ind. 1888); Kuberski v. Haussermann, 172 A. 738 (N.J. 19324); Grimes v. Miller, 175 A. 152 (N.J. 1934); Hazlet Township Committee v. Morales, 289 A,2d 563 (N.J. Law Div. 1972).]
The New Jersey courts have made an important exception to the general rule, and that exception comports with logic and common sense: Where the appointment of the person in question must come from the board itself. In Skarbnik v. Spina, 308 A.2d 390 (N.J. Law. Div. 1973), at a meeting of city council, Bonnet, voting for himself was elected council president, and Spina, voting for himself, was elected the city council representative to the joint sewer authority. Without their self-votes neither Bonnet nor Spina would have been elected. The Court held their appointment valid for the main reason that the statute governing the election to the office of council president, and that statute governing the election to the joint sewer authority both required the election to those offices be made from the membership of the city council.
Section 6-3-107 of the general law mayor-aldermanic charter requires the appointment of the mayor and of the vice-mayor from the membership of the city’s governing body. The city and the prospective mayoral appointee can take a chance that the Tennessee courts would adopt the New Jersey rule, but I am not sure the Tennessee courts would do so. The New Jersey rule may reflect logic and common sense, but logic and common sense also supports the general prohibition against self-votes even where the position in question must be filled by a member of the board.
Sidney D. Hemsley
Senior Law Consultant