|Legal Opinion: |
Text of Document: Memorandum
Re: Mayor and Vice Mayor
You and the City have additional questions related to the mayor and vice mayor of the city.
However, let me clear up one question that has arisen on the part of your City Attorney. You can color me embarrassed on part of the answer I gave with respect to how the mayor is selected. Because the mayor is selected by the board of commissioners rather than elected (which I knew), your City Attorney’s answer is so obvious and sensible that somehow I missed it. There can be no way for Section 6-20-110(b), which provides that if a mayor is not selected in 90 days, an election shall be called to fill that office, can apply to a mayor who is appointed by the board of commissioners.
Possible effect of the vacancy in the office of mayor
But there appears to be no provision in the charter that furnishes the city with a mayor where, as in your case, the office of mayor is vacant, the mayor’s term of office as mayor and of commissioner both having ended at the same time. Section 6-20-201(c) provides that, “During the absence or disability of the mayor, the board shall designate some properly qualified person to perform the duties of the mayor.” Section 6-20-202 provides that “After the first meeting of the board and thereafter at the first meeting after a general city election, the board shall choose from its membership a member to act in the absence, or failure to act of the mayor.” Section 6-20-203 then says this about the duties of the vice mayor: “[He] shall act as mayor during any temporary absence, inability, or failure to act of the mayor, and whenever a vacancy occurs in the office of mayor, such member shall become mayor and shall hold office as such for the unexpired term.” Read together, or even separately, Sections 6-20-202 and 203 make it clear that while there is a mayor in office, they are triggered only for temporary absences, inability to act or failure to act of the mayor. The same thing is true of the person designated under Section 6-20-201(c): his designation operates only during the absence or disability of the mayor.
As far as I can determine, there has been only a tiny number of cases in which the question of whether the vice mayor can function as the mayor when the office of mayor is vacant. In Babbage v. City of Astoria, 36 P. 291 (1894) the mayor resigned and his office became vacant. The city’s charter provided that:
It is manifest from the language of these [city charter] provisions that it is a temporary absence or disability, only, which authorizes the president of the council to act in the place of the mayor, and perform his duties. He is not authorized to approve ordinances, or perform the duties pertaining to the office of mayor, when such office is vacant and without an incumbent. It is “in the absence of such mayor,” or “in the absence of the mayor from the city,” or “during any absence of the mayor from the city, or if he be unwell or unable to attend,” that the president of the council shall perform the duties of mayor, “approve and sign all ordinances,” or have the right and power to approve such ordinances as may be passed during such absence.” Within the purview of the charter, the office of mayor is an important branch of the city government, the duties of which can only be performed by an incumbent, or someone acting in his stead, when he is absent or disabled. The charter contemplates that a mayor is in esse [in being, actually existing—Black’s Law Dictionary, 6th ed. , 1990] and that the office shall not be without an incumbent in the case of death or resignation, for it provides that it must be “filled” by the city council. So that, when a vacancy occurred by the resignation of Crosby, it was the duty of the council to appoint a mayor…. [At 292.]
The Court continued that the charter contemplated that the city not conduct any important business until a mayor was selected. The ordinances signed by the president of the council when the office of mayor was vacant were invalid, held the court.
The same case was cited and followed in State ex rel. Dyer v. Kirkpatrick, 148 P. 51 (1915), and Nolan v. Representative Council of City of Newport, 57 A.2d 730 (1948). In the latter case, the Court declared that “We have found no case which holds that a vacancy caused by death is governed by a provision relating to the mere absence of the incumbent or his inability to serve.” Petitioner has, however, has cited a case almost on all fours to the contrary. Babbage v. City of Astoria, 25 Or. 417, 36 P.291, 42 Am.St.Rep. 796. As far as we are aware that case is the current of authority.” [At 732]
I am not sure whether the Tennessee courts would follow those cases. Arguably, they could lead to a city having difficulty appointing a mayor being brought to a standstill in at least some of its business. While the city’s charter does say that the commission “shall” appoint a mayor at the first regular meeting after each biennial election, and that generally “shall” is mandatory, there is often a gap between a mandatory provision and a remedy for its violation. Many cities go long periods before they fill a vacant office because they cannot agree on someone to fill it. As is typical of city manager forms of government, your mayor has few prescribed duties under the charter. He presides over meetings of the board of commissioners [Section 6-20-209 and 213] and “perform[s] other duties consistent with the mayor’s office as may be imposed by it,” [Section 6-20-213] and, “The mayor has the power and it is hereby made [his] duty to perform all acts that may be required of the mayor by ordinance enacted by the board …., not in conflict with any provision of this charter.” [Section 6-20-219] He “shall” also “sign the journal of the board and all ordinances on their final passage, execute all deeds, bonds and contracts made in the name of the city….” [Section 6-20-213] Some of those other duties could be performed by some officer other than the mayor. I find no duties prescribed in the Municipal Code for the mayor except those duties prescribed by Section 6-20-213 of the charter. But when the mayor’s office is vacant, the mayor’s authority to “sign the journal of the board and all ordinances on their final passage,” and other legal instruments, and to make certain appointments that the mayor has the authority by statute to make, may certainly cause the city some problems. For that reason, delay in filling the vacancy in the office of mayor might not be a wise choice on the part of the city commission.
Does the mayor (assuming a mayor has been appointed by the commission) have a second vote to break a tie?
Some municipal charters provide the mayor with a second vote to break ties, especially where the tie vote is in the filling of vacancies in office, but the general law manager-commission charter contains no such provision. Section 6-20-213 of that charter provides that, “The mayor shall preside at all meetings of the board of commissioners and perform such other duties consistent with the mayor’s office as may be imposed by it, and the mayor shall have a seat, a voice and a vote, but no veto….”
Does the mayor fill positions on the city planning commission?
The answer is yes. That question is governed by Tennessee Code Annotated, section 13-4-101 (which prescribes an organization that is reflected in the Municipal Code, Title 14, and Chapter 4.). One person is the mayor or a person appointed by the mayor, and one person is a member of the city’s governing body appointed by that body. The remaining members of the planning commission are appointed by, and serve at the pleasure of, the mayor.
Under the Municipal Code, Title 14, Chapter 1, the city has a seven member planning commission, one member of which is the mayor, and one member of which is a member of the city council appointed by the city council.
As pointed out above, the mayor appears to be the only person who can fill those vacancies in office.