|Legal Opinion: |
Text of Document:
I am writing in response to your request concerning the legality of adjusting the salary of the City Clerk/Coordinator during his term of office. I have researched this question in depth; as you probably know, the position of City Clerk/Coordinator is a unique one in Tennessee, therefore, there are no cases or statutory authorities directly on point to serve as a guideline for the correct answer. In addition, there has been a previous opinion from MTAS that addressed the position of the City Clerk/Coordinator which could be interpreted as leading to a different conclusion than the one I have reached. For these reasons, I have taken extra steps to ensure that this is a thorough answer to your inquiry.
Is there any provision in the charter or the municipal code of the Town that would prohibit an adjustment of the salary of the City Clerk/Coordinator during his/her term of office?
There are no provisions in the charter or the municipal code of the Town that would prohibit an adjustment of the salary of the City Clerk/Coordinator during his /her term of office. In addition, no constitutional provision or statute of general application prohibits the Board of Commissioners from taking such an action.
A recent Attorney General Opinion, No. 98-180 (September 8, 1998), discusses in depth the distinctions between the City Court Clerk, who is elected by popular vote, and the City Clerk/Coordinator, who is appointed by the Board of Commissioners. The opinion focuses on the duties of these two officers and points out that neither the Charter nor any state statutes address the duties of the City Clerk/Coordinator. With respect to those duties, the Attorney General stated:
The City Clerk/Coordinator is entrusted with some city court responsibilities under city ordinances, but not under the city charter nor any statute of general applicability. The Board of Commissioners could therefore amend the city ordinances to transfer these responsibilities from the City Clerk/Coordinator to the City Court Clerk. (Emphasis supplied)
I cite this portion of the Attorney General’s opinion because of its relevance to the authority of the Board over the position of City Clerk/Coordinator, specifically in that opinion, to prescribe the duties of that office.
Similarly, Section 9 of the City Charter vests in the Board of Commissioners the jurisdiction to set the compensation of the City Clerk/Coordinator. The Charter does not prohibit the Board from diminishing or increasing such compensation duirng the Clerk's term. In addition, no statute of general application addresses the compensation of the City Clerk/Coordinator. On the other hand, the Charter establishes a four-year term for this appointment and allows successive terms by the same person unless the Board names another individual to serve. At the same time, the Board is empowered to alter the term of office of a successor City Clerk/Coordinator in the event his/her predecessor ceases to serve. In sum, the General Assembly has given the Board of Commissioners very broad authority with respect to responsibilities and compensation, and under some conditions, the term of office of the City Clerk/Coordinator. Section 9 states:
SECTION 9. BE IT FURTHER ENACTED, That the Board of Commissioners of said Town is hereby authorized and empowered to elect a City Clerk/Coordinator, City Attorney, and all other necessary officers for said Town, whose terms of office and compensation shall be such as said Board may determine. With regard to the City Clerk/Coordinator, the City Clerk/Coordinator's term of office for the present City Clerk/Coordinator who is holding office as of the date of the enactment of this section by the Board of Commissioners shall commence from and after the date of the passage of this Act until the second Tuesday in September, 1993, and shall continue without further action of the Board of Commissioners for a like term each four years thereafter unless on the second Tuesday in September, 1993, or for any four-year term thereafter, the Board of Commissioners shall elect another individual to serve as City Clerk/Coordinator. In the event the present City Clerk/Coordinator serving on the date of the passage of this Act ceases to serve as City Clerk/Coordinator, then in such event any successor individual to the position of City Clerk/Coordinator shall serve such term of office as the Board of Commissioners may specify from time to time in their discretion.. (Emphasis added)
It is clear that although the word "elect" as used in the above paragraph, it is not referring to a popularly elected officer, whose compensation typically may not be adjusted either upward or downward during his/her term of office. The term is used, instead, as a synonym for "appointed by the Board." And while the Charter speaks of a four- year term, it expressly allows the Board to amend this time period, presumably by ordinance for a successor City Clerk/Coordinator.
Article XI, Section 9 of the Tennessee Constitution, provides that:
The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected....
Article XI, Section 9 accomplished the following: The legislature has no power to pass a special, local or private act which has the effect of (1) removing an incumbent from a county or municipal office, (2) abridging the term of such office, or (3) altering the salary of such office during the term thereof. Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956).
In applying this constitutional mandate to the instant analysis, the Legislature has not made any law having the effect of altering the salary of the City Clerk Coordinator. Indeed, the General Assembly, in passing your Private Act Charter, intentionally vested in the Board of Commissioners such authority. Therefore, there are no constitutional impediments to preclude the Board from adjusting such compensation.
The state Attorney General addressed this same issue in an opinion relative to the City of Dunlop and adjusting the compensation of its Board of Mayor and Commissioners. In Op. Tenn. Atty. Gen. U95-004 (January 20, 1995), the Attorney General said:
We see no problem with the Dunlap Board of Mayor and
Commissioners changing compensation of the mayor or the board members during their terms. The Tennessee Constitution, Article 11, Section 9, states that ‘the General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected,...’ This means the General Assembly cannot, by private act, change the charter of Dunlap or otherwise to alter the salary of an incumbent mayor or elected official during his or her term. However, the General assembly has not done so. Rather, the Board of Mayor and Commissioners has been consistently empowered during the terms of the current incumbents to alter the salary/compensation of the mayor and board.....The Dunlap Charter only states that the city judge’s salary cannot be altered during the judge’s term, which is a statement consistent with requirements of the Tennessee Constitution, but currently makes no prohibition against mid-term changes to the mayor’s compensation. (Emphasis in the original)
Op. Tenn. Atty. Gen. U95-004 (January 20, 1995).
As in the above factual scenario, it is my opinion that there are no constitutional, statutory or charter provisions that prohibit the Board of Commissioners from raising the salary of the City Clerk/Coordinator during his term of office. Please let me know if you have any further questions in this regard.