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Text of Document: October 4, 1990
I apologize for the delay in this letter. After speaking with the special attorney for the civil service board (herein board), I wanted to research the origin and effect of a recently enacted amendment to the statutes governing hearings before municipal boards and commissions. This letter responds to your inquiry regarding who may be appointed to act as an administrative judge or hearing officer in contested cases before the board.
The board was created in the private act charter, and is required to conduct hearings "...upon the specification of charges against a Civil Service employee..." City Charter, Section 6.17. T.C.A. Section 27-9-114 specifically provides that the Uniform Administrative Procedures Act (herein UAPA) is to govern contested case hearings by civil service boards of a municipality. This recent amendment overruled the exception that previously existed in the UAPA (T.C.A. section 4-5-106 specifically exempts municipal boards or commissions from the provisions of the UAPA).
You asked whether the Board could appoint an attorney designated by the City to sit as administrative judge. Under the UAPA, the Board must request an administrative judge from the Secretary of State, if it does not have explicit legislative authority to choose either a member of the Board or the attorney appointed by the City to advise the Board. T.C.A. Section 4-5-301(e) provides:
Any agency not authorized by law to have a contested case conducted by an administrative judge, hearing officer or similar officer, from the agency shall direct that the proceedings or any part thereof be conducted by an administrative judge or hearing officer employed in the office of the secretary of state.
An examination of the Charter for the City revealed no provision that specifically authorizes the Board to appoint one of its members, employees or agents to act as administrative judge. Therefore, an administrative judge from the office of the Secretary of State must be appointed.
A recent case in the Court of Appeals of Tennessee, Western Section at Jackson, confirmed that without specific legislative authorization to appoint a member of the Board to sit as administrative judge, the board must look to the Secretary of State. In Cavallo v. Hunt, the Court held that the University of Tennessee had to look to the Secretary of State for administrative judges and hearing officers despite broad language in the legislative charter creating the University and a rule, adopted by the University, that allowed the Chancellor to appoint a hearing officer, which rule was approved by the Attorney General and acknowledged by the Legislature. I have enclosed a copy of this opinion as well as another recent opinion that 1. determined the Cavallo decision was not to be applied retroactively, and 2. that any objection to the appointment of the administrative officer must be made at the hearing.
Your other two questions; (1) can a chairman, acting as a hearing officer, participate in the proceedings and (2) can an attorney hired by the council to advise the Board act as administrative judge are moot by virtue of the above answer. However, if your charter had provided that a member of the Board could act as administrative judge or hearing officer, that member may also participate in the proceedings except in the following situations:
1. Where the administrative judge is subject to disqualification for bias, prejudice, interest or any other cause T.C.A. Section 4-5-302(a);or
2. Generally, where the person served as an investigator, prosecutor or advocate or participated in the determination of probable cause. T.C.A. Section 4-5-303.
I hope this adequately responds to your question. Again, I apologize for the delay. If we can provide additional assistance please do not hesitate to contact us.
Sincerely,
Leslie Shechter
Legal Consultant |