TO: Gary West, MTAS Fire Management Consultant
FROM: Sid Hemsley, MTAS Legal Consultant
DATE: November 30, 2007
RE: Who appoints the fire chief and fire-fighters?
You have the following question: What city official or officials have the legal authority to appoint the fire chief and the fire-fighters in the City?
Surprisingly, your question is a difficult one to answer. I have previously addressed the question of whether a volunteer is an employee for the purposes of Tennessee Code Annotated, '7-51-1501, which, among other things, prohibits employees from running for office on a local government governing body, absent a statute or ordinance that provides otherwise. I have attached my memorandum on that subject because it applies to the question of whether a person is an employee or volunteer in many contexts. Generally, a volunteer is not an employee in most contexts. However, I have concluded that in the case of a volunteer fire chief and volunteer fire-fighters under the general law manager-commission charter under which the City operates, it does not matter whether such persons are employees or volunteers because it is the intention of that charter that the city manager have personnel authority over " members" of the fire department.
This question is generated by competing provisions of the City Charter and of the Municipal Code, Chapter 7. The City is established under the general law manager- commission charter. Section 6-21-701 of that charter provides that:
The city manager shall appoint a chief of the fire department and such other members of the department as may be provided by ordinance.
In addition, '6-21-102 of the City Charter, which deals with the authority of the city manager, provides that:
The city manager may appoint, promote, suspend, transfer and remove any officer or employee of the city responsible to him; or he may, at his discretion, authorize the head of a department or office responsible to him to take such actions regarding subordinates in such department or office. The manager shall appoint such heads of administrative offices or organizations as he deems necessary. The manager may combine, or personally hold, any such administrative offices herein or otherwise established, or may delegate parts of the duties of the manager's office to designated subordinates.
Section 7-301 of the Municipal Code provides that:
There is hereby established a volunteer fire department to be supported and equipped by appropriations by the board of commissioners by donations form the citizens of the community, and by fundraisers conducted by the department. The volunteer fire department shall be composed of a chief elected by fire department members and approved by the board of commissioners, and such number of subordinate officers and fire personnel as elected by the membership of the fire department.
If the "volunteer" chief of the fire department, and the "volunteer" members of the fire department are not within the category of city personnel over which the city manager has personnel authority under the general law manager-commission charter, then the Municipal Code is not in conflict with that charter. But if they are in conflict, there is no question but that in conflicts between municipal charters and municipal ordinances, municipal charters " win." Municipal charters reflect state law and are superior to municipal ordinances. [See State rex rel. Lewis v Bowman, 814 S.W.2d 369 (Tenn. Ct. App. 1991). Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13 (Tenn. Ct. App. 1982); City of Bartett v. Hoover, 574 S.W.2d 291 (Tenn. 1978).]
Personnel Authority of the City Manager
The general law manager-commission charter provides as follows with respect to the city manager's personnel authority:
- "The city manager may appoint, promote, suspend, transfer and remove any officer or employee of the city responsible to the city manager...." [6-21-101(a)]
- "In addition to all other powers conferred upon the city manager, the city manager shall be the administrative head of the municipal government under the direction and supervision of the board of commissioners...." ['
The powers and duties of the city manager are to:
- "(2) Except as provided otherwise in this charter, appoint, promote, demote, suspend, transfer, remove and otherwise discipline all department heads and subordinate employees at any time subject only to any personnel rule and regulations adopted by ordinance or resolution b the commission...." ['6-21-108(2)]
- "(3) Supervise and control the work of the recorder, the chief of police, the city attorney, treasurer, and all other offices and of all departments and divisions created by this charter or that hereafter may be created by the board of commissioners." ['6-21-108(3)]
- "The city manager shall supervise and control all departments now or hereafter created, except as otherwise provided by this charter." ['6-21-303]
- "The city manager shall appoint a city recorder, who also may be appointed to the position of finance director or treasurer or both." ['6-21-401] May also appoint recorder pro tempore. ['6-21-402]
- "The city manager shall appoint a chief of police and such other members of the police force as may be prescribed by ordinance." ['6-21-601]
- "The city manager shall appoint a chief of the fire department and such other members of the department as may be provided by ordinance." ['6-21-701]
- "The city manager shall appoint, prescribe the duties and powers of, and fix the salary of the director of schools of the city, and have the power to remove all other officers and all teachers, agents and employees of the department of education." ['6-21-802]
- "The city manager or an officer appointed by the city manager shall serve as the finance director..." ['6-22-101]
- "The city manager shall appoint a treasurer." ['6-22-119]
Personnel Authority of the City Commission
"The city commission has the power to appoint and remove the city manager." ['67-21- 101]
"The Board of Commissioners may appoint a city judge who shall serve at the will of the board." ['6-21-501(a)]
The personnel authority in the general law manager-commission charter is so heavily weighted toward the city manager that it is a foregone conclusion that it was the intention of the General Assembly in that charter to bestow all but the narrowest personnel authority over appointive municipal officers and employees on the city manager. Indeed, the city judge appears to be the only officer or employee under the general law manager-commission charter who is expressly appointed by the city commission. But we have seen in '6-21-102 of the city charter that the city manager's personnel power extends to " any officer or employee of the city responsible to the city manager..." The statutory and case law outlined in my attached memorandum points to the general proposition that volunteers are not employees.
But is that true with respect to the city manager's personnel power under the general law manager-commission charter? Section 6-21-701 of that charter provides that, " The city manager shall appoint a chief of the fire department and such other members of the department as may be provided by ordinance." That provision makes no distinction between a paid fire chief and a volunteer fire chief, and it speaks of " members" of the fire department rather than employees of that department. In addition, under that section the city manager has the authority to appoint a fire marshal. Presumably that is true whether the fire marshal is a paid or voluntary one. However, one can certainly argue that" members" in '6-21-701 refers and relates back to " any officer or employee of the city responsible to the city manager," and that unless the volunteer fire chief and volunteer fire-fighters fall in that category, the city manager has no personnel authority over them.
My conclusion is that the city charter being ambiguous on the question of whether the city manager's personnel authority includes the volunteer fire chief and volunteer fire-fighters. When a statute is ambiguous, resort must be had to the rules of statutory construction. Under those rules, the intention of the General Assembly is the cardinal rule.
Another rule of statutory construction is that all the statutes on the ambiguity at issue need be read together and reconciled. Sections 6-21-102 and 6-21-108 both generally give the city manager personnel authority over all subordinate officers and employees of the city. The one express exception in the city charter is the city judge, who is appointed by, and serves at the will of, the board of commissioners.
But the specific provisions of the charter granting the city manager personnel power with respect to both the police and fire departments do not speak of " officers and employees." Under '6-21-602, " The city manager shall appoint a chief of police and such patrol officers and other members of the police force as may be provided by ordinance." That provision does not distinguish between a paid police chief and a volunteer fire chief, or between paid " members" and unpaid " members" of the police department. I have already pointed out above that the same is true of the fire department under '6-21-701. Under that provision, " The city manager shall appoint a chief of the fire department and such other members of the department as may be provided by ordinance." That provision likewise makes no distinction between a fire chief who is paid employee of the fire department and a volunteer fire chief, and it makes no distinction between members of the fire department who are employees of that department or volunteers.
Under the rules of statutory construction, specific statutes control general statutes. If that rule is applied to ''6-21-102 and 6-21-108 on one hand, and ''6-21-602 and 6-21-701 on the other, the former two statutes are general applying to all officers and employees of the city over which the city manager is responsible, and the later two statutes, dealing specifically with appointment by the city manager in the police and fire departments are specific statutes, and would control the two general statutes.
It is also important that, as pointed out in the attached letter containing the discussion of the difference between employees and volunteers, the general law of the State of Tennessee makes volunteers employees for the purposes of the Tennessee Governmental Tort Liability Act (TGTLA), and the Tennessee Workers'Compensation Law. The TGTLA provides that " members of a volunteer or auxiliary firefighting, police or emergency organization...shall be considered to be an employee of that Governmental entity for the purpose of this chapter..." without regard to the strict definitions contained in that statute for who is an employee. [Tennessee Code Annotated, '29-20-107(d)] The Workers'Compensation Law requires that workers compensation carriers " shall be required to offer medical benefits coverage for paid-on-call and volunteer firefighters." [Tennessee Code Annotated, '50-6-102(11)] Those two statutes do not make either voluntary police officers or volunteer fire-fighters employees for all purposes, but they add weight to the proposition that the general law manager-commission charter sees their employment status differently than other classes of volunteers.
It seems difficult to escape the conclusion that the General Assembly intended to include volunteer fire chiefs and fire-fighters " members" of the fire department that the city manager had the authority to appoint under '6-21-107 of the city manager-commission charter. That conclusion is supported by the fact that in addition to the city manager's broad personnel powers under the city manager-commission charter, he is also given the authority in '6-21-107 to be the administrative head of the city under the direction and supervision of the board of commissioners, and that under '6-21-108(3) he has the authority to " Supervise and control the work of the recorder, the chief of police, the city attorney, treasurer, and all other offices and of all departments and divisions created by this charter or that hereafter may be created by the board of commissioners." In short, the city manager has oversight over all the administrative affairs of the city, and is responsible for what all the officers and employees of the city do or do not do, and is likewise responsible for what all the " members" of the police and fire departments do or do not do. Under the rules of statutory construction, the courts can also consider the policy implications of their decisions. To omit the volunteer fire chief and volunteer firefighters, who make decisions involving the life and death of the city's citizens, and decisions involving the property of the city and of its citizens, from the list of persons he has the authority to appoint under the general law manager-commission charter seems contrary to policy reflected in the city's charter.
That proposition finds support in Miller v. town of Batesburg, 257 S.E.2d 159 (S.C. 1979). There the city had a volunteer fire department, and the mayor fired one of the volunteer fire-fighters. The fire-fighter argued that the mayor did not have the power to remove volunteer fire-fighters. The Court disagreed, pointing out that the city had the mayor-council form of government, which under state law vested the mayor with the personnel powers to " appoint and when he deems it necessary for the good of the municipality, suspend or remove all municipal employees and appointive administrative officers..." The Court reasoned that:
The Batesburg Fire Department is an agency of the Town of Batesburg. The buildings, equipment, supplies and all expenses of the fire department are paid for by the town of Batesburg. The law would be remiss indeed if the Town of Batesburg was without the authority to determine the manner in which this equipment is used and whose hands the safety of the citizens of Batesburg is placed. It follows by force of reason that the Town of Bastesburg possesses the necessary authority to determine who may serve as a member of the municipal fire department, and under the mayor-council form of municipal government this authority is exercised by the mayor. The designation of a municipal fireman as a " volunteer" does not insulate him from the authority of the mayor under Section 5-9-39(1) [which gave him the power to appoint and remove municipal employees and administrative officers.] [At 159]
The Court's reasoning was based on common sense. Under the mayor-council form of government, the mayor had personnel power only over employees, but the technical distinction between employees and volunteers could not intercept the mayor's personnel authority over volunteers because operationally, such an outcome didn't make sense.
If the logic of that case is applied to the general law manager-commission charter, it would give the city manager personnel authority over the volunteer fire chief and volunteer fire- fighters, notwithstanding the technical distinction between volunteers and employees. and to remove them.
I repeat here that the question of whether the city manager or the board of commissioners has the personnel authority over the volunteer fire chief and the volunteer fire- fighters is a difficult one, although the Batesburg Court, above, didn't agonize over a similar question long. But I cannot say with comfortable certainty what the courts would do with your question in Tennessee. The best way to resolve this question is probably to ask the General Assembly to amend the general law manager-commission charter to make it clear where the personnel powers reside with respect to volunteers.