July 21, 2009
Dear Charter Commission Members:
Two questions arose during and after the most recent Charter Commission:
1. Is the city manager entitled to appoint committees to assist him in making investigations and decisions on issues in which the city has an interest?
2. Are such committees subject to Tennessee's Open Meetings Law?
As I pointed out to the charter commission, a Tennessee case involving the University of Tennessee might support the proposition that the city manager could appoint a committee to gather information useful to him in making decisions on certain issues. The committee the charter commission had in mind was one the city manager appointed to investigate options for the future of the city marina. I knew nothing about the marina, so I was reluctant to address the question of whether the Tennessee Open Meetings Law applied to that committee. Subsequent to the meeting, I learned that the question of whether the city manager even had the authority to appoint such a committee had arisen. I have since done some " homework" on the issues surrounding the marina, learning that the City has strong financial and other interests in the future of the marina.
With respect to the first question, I have been unable to find any Tennessee statute or case that expressly authorizes the city manager to appoint committees for the purpose of helping him make investigations and decisions on various issues. However, it is my opinion that, given the express executive functions of the city manager's position under the city's charter, he probably has the discretion to seek advice from any reasonable source, including persons and committees, the implied authority arising from those express executive functions to appoint committees for that purpose. Indeed, given the fact that a city manager of a city the size and complexity of your city is the chief administrator of what, in the private economy would be a business of significant size and financial impact, it would be illogical to argue that he could not seek advice on issues of interest to the city from individuals and committees of his selection.
With respect to the second question, Tennessee case law, and at least one Michigan Supreme Court case, which arose from facts similar to the question of whether the city manager could appoint an independent committee to investigate and advise him on an issue of interest to the city, suggest that such a committee is not subject to the Tennessee Open Meetings Law.
I have a habit of quoting at length from cases in an attempt to illustrate their points. That practice makes my opinions lengthy, but in at least some cases, I hope useful.
Analysis of Question 1
Article II, '14 of the City Charter gives the city council the authority to appoint a personnel advisory board, and by ordinance to appoint other advisory boards. It also provides that, " The council may direct the city manager to appoint a non-voting staff representative to any advisory board."
Article V contains several provisions related to the powers and duties of the city manager. Section 3 provides that, " The manager shall be responsible to the council for the administration of all units of the city government under his or her jurisdiction and for carrying out the policies adopted by the council." Section 4 provides that, " The manager shall supervise the administrative affairs of the city. The manager shall be charged with the...development and utilization of the city's resources. The manager shall make such reports and recommendations as may be deemed desirable... The manager shall have the right to take part in the discussion of all matters coming before the council, but not the right to vote." Section 8 provides that, " The city manager... shall have charge of the administration of the financial affairs of the city." Sections 10 and 11 give the city manager the power and duty to make a regular and capital budget, both of which are to be preceded by one or more council meetings " devoted to guidance to the city manager" with respect to each budget. Section 18 provides that:
The management of all city property and equipment shall be the responsibility of the city manager who shall prepare for the approval of the council regulations governing the acquisition, custody, use and disposal of all such property and equipment....The management of all city real property, except school real property shall be the responsibility of the city manager.
All of those powers of the city manager are express powers; none of them give the city manager the right to appoint committees to give him advice on city issues in which the city has an interest, and in which he has an interest as the city manager.
It has long been clear that Dillon's Rule applies to municipal governing bodies in Tennessee. Dillon's Rule derives from Merriam v. Moody's Executor, 25 Iowa 163 (1868), which declares that:
It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporationBnot simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied. [At 170]
The threshold question is whether Dillon's Rule applies only to a city's legislate body, or to its administrative officers? In Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009), the Tennessee Supreme Court applied Dillon's Rule to determine that a sheriff had no duty to calculate the sentences of Tennessee Department of Corrections prisoners serving their sentences in county jails. In the unreported case of City of Clarksville v. Dixon, 2005 WL 3504589 (Tenn. Ct. App. 2005), the court applied Dillon's Rule to determine that a city judge had the implied authority to require the payment of fines in chronological order, because:
In this case, Tennessee law and the City's code expressly authorize a city court judge to collect judgments. Incident to a city court judge's expressly conferred power to collect judgements is the ability to make rules governing such collections. As such a city court may also adopt rules establishing how to attribute payments by municipal offenders in satisfaction of fines. [At 7]
Those two cases support the proposition that Dillon's Rule applies to municipal officials as well as municipal legislative bodies.
The Tennessee Supreme Court declared in Southern Contractors v. Loudon County Board of Education, 58 S.W.2d (Tenn. 2001) that while Dillon's Rule has been abolished in some states, it still lives in Tennessee, but that it is only a rule of statutory construction that applies when a statute is ambiguous. The rules of statutory construction apply on where a statute is ambiguous. I assume that anyone looking at question of whether the city manager can appoint a committee to advise him on issues that fall within the scope of his job would probably concede that the provisions in the City Charter dealing with the powers of the city manager are ambiguous on the point of whether he has that implied power.
The modern city manager undoubtedly has the duty to both anticipate and intercept future problems that have an impact on the wants and needs of city residents and how to pay for them.
That policy reason seems adequate to support the proposition that it can be fairly implied from the city manager's express power and duty under Section 18 for, " The management of all city property and equipment....," to appoint individuals or a committee to advise him on serious issues that affect the future of the marina. Similarly, the city manager's duty for the " development and utilization of the city's resources," for the " administration of the financial affairs of the city," and to make a regular and capital budget, under ''4, 8, 10 and 11. Even the city manager's power and duty to make reports and recommendations to the city council, and to have a voice in city council meetings, implies the authority to prepare himself, as any good manager in public or private business would do, to make intelligent and informed reports, and to have an intelligent and informed voice in regard to issues in which the city has an interest.
Analysis of Question 2
Fain v. Faculty of the College of Law of the University of Tennessee, 525 S.W.2d 752 (Tenn. Ct. App. 1977), held that committees appointed by the dean of the UT law school to obtain " input" from the faculty and law students, were not subject to the open meetings law. The committees served wholly at the pleasure of the dean, and had only the power to make recommendations to him on various issues. The plaintiff had pointed to the case of Dorrier v. Dark, 537 S.W.2d 888 (1976), in which the Tennessee Supreme Court, declared that " It is clear for the purpose of this Act [The Open Records Law]" that:
the Legislature intended to include any board, commission, committee, agency, authority, or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental section. [At 755]
The Chancellor had held that:
Since the University of Tennessee was created by action of the state legislature and the Board of Trustees was created by the state legislature to govern the university, the meetings of the faculty and committees of the College of Law were " traceable" to state legislative action through the Boards delegation of authority to various individuals and groups of individuals in the structure of the University to administer its policies, thereby bringing such meetings within the Act.
The Court of Appeals disagreed with the Chancellor's interpretation of Dorrier, reasoning that:
While it is true that the existence of the University and the Board of Trustees is traceable to an Act of the legislature this does not mean that when the Dean of the College of Law asks a given number of faculty members to serve on a committee to assist him in decision making, the committee has its genesis in the legislature....The committees exist by virtue of having been created by the Dean. They derive their authority from the Dean. Their authority is to make recommendations to the Dean. The Dean is not a public body, he is an administrative officer. Consequently, the faculty meetings and committee meetings of the College of Law are not subject to the provisions of the Act. [At 755]
Moreover, declared the Court, it was not the faculty that governed the College of Law. For that reason, " Since neither the meetings of the Dean's advisory committees nor the meetings of the faculty of the College of Law meet the criteria of a 'governing body,'within the meaning of the [Open Meetings] Act, the plaintiff lost. [At 756] The Court distinguished between the Washington Supreme Court case of Cathcart v. Anderson, 530 P.2d 313 (1975) upon which the plaintiff relied, and this case by concluding that in Washington, by statute, the faculty of each college or school was empowered, as agent of the board of regents, to govern the immediate affairs of the respective college or school." [At 756]
Citing Fain, the Court of Appeals, Western Section, held in Hastings v. South Central Human Resource Agency, 829 S.W.2d 679, that the South Central Human Resource Agency's grievance committee was not a " governing body" within the meaning of the Open Meeting Law, because:
Under the by laws [of the SCHRA] the chairman of the policy council is directed to appoint a Grievance Committee. The sole function of the committee is to hear and dispose of personnel complaints in accordance with the policies and procedures formulated by the governing board. Although the Grievance Committee's actions are subject to review and ratification by the policy council, the Grievance Committee does not make decisions for or recommendations to the governing body on matters of policy or administration. The Grievance Committee is merely responsible for following the policy and procedures dictated by the board. In accordance with the personnel procedures, the committee then makes recommendations to the executive director of the agency. The director, who oversees daily administration of agency programs and personnel matters, is not a member of the policy council or governing body....In sum, it does not appear the Grievance Committee is in a position to formulate the public policy and decisions referred to in the Sunshine Law's purpose, and we fail to see how the committee can be viewed as a " governing body." [At 686].
The case of Metropolitan Air Research Testing Authority v. Metropolitan Government of Nashville and Davidson County, 842 S.W.2d 611 (Tenn. Ct. App. 1992), also appears instructive on the question of whether a committee formed by the city manager to investigate and give advice to the city manager on issues pertinent to his duties. There an unsuccessful bidder on a city contract argued that the award of the contract violated the Open Meetings Law. Under the Metropolitan Government Charter, said the Court:
The responsibility for procuring goods and services for most of the city's departments rests on the purchasing agent....After the bid openings, Metro Ord. '15-1-19-(d), the purchasing agent requests the requisitioning agency to review the bids. Metro Ord. '15-1- 19(e), and obtains a certification from the finance director that funds for the contract are available. Metro Ord. '15-1-18-(b) Thereafter, the purchasing agent, " with the approval of the mayor" makes all determinations with regard to the award of contract. Metro Ord. '15-1-19(e) [At 618]
Under the process at issue, it is the mayor who awarded the purchasing contracts at the bid award meeting. Here is what the Court said about that meeting with respect to the Open Meetings Law:
The Sunshine Law applies to meetings of public bodies " for which a quorum is required in order to make a decision or to deliberate toward making a decision on any matter." Tenn. Code Ann. '8- 44-102(c) It has never been interpreted to apply to meetings pertaining to decisions made by single public officials. Fain v. Faculty of College of Law, 552 S.W.2d 752, 754 (Tenn. Ct. App. 1977) (meeting of an advisory committee to law school dean were not required to be open ); see also Mid-South Publishing Co. v. Tennessee State University & Community College Sys., App. No 01-A-01-9002-CH-00074, slip op. At 11, 16 T.A.M. 5-8, 1990 WL 207410 (Tenn. Ct. App. 1990) (meeting of the chancellor's advisory committee was not required to be open because the
decision was the chancellor's alone); Memphis Publishing Co. v. City of Memphis, Shelby Eq. Slip op. At 4, 3 T.A.M. 36-19 (Tenn. Ct. App. Aug. 7, 1978) (labor negotiations conducted by mayor).
The June 22, 1990 meeting was not a meeting of a governing body. The group assembled in the mayor's office consisted of various city officials with separate roles in the procurement process, but the group was neither created or recognized by the Metropolitan Charter, the city ordinances, or the rules and regulations of the Division of Purchases. The group was not required to have a quorum or to deliberate, or even to make recommendations to a public body.
The decision on whether to award the contract rested with the purchasing agent. At most, the officials attending the meeting were providing the purchasing agent with their opinions concerning whether he should award the contract to the company that submitted the lowest bid. The purchasing agent could have made a decision without the meeting. Accordingly, we find that the Sunshine Law did not require this meeting to be open to the public. [At 619]
Those Tennessee cases suggest that where the advisory committee is appointed by the city manager, is not appointed under a statute, charter, ordinance, or regulation of the city, and provides advice only to the city manager, the committee is not subject to the Tennessee Open Meetings Law.
The Michigan Supreme Court case of Herald Company v. City of Bay City, 614 N.W.2d 873 (2000), supports that conclusion. There the city commission had the authority to hire a fire chief, " upon the recommendation of the city manager." The city manager appointed a committee to help him screen applications for the position of fire chief. The plaintiff argued that the city manager alone, and the city manager and the city commission together, was a " public body" within Michigan's Open Meetings Law. The definition of " public body" under that law was:
any state or local legislative governing body, including a board, commission, committee, subcommittee, authority, or council which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function.... [At 882]
That definition, declared the Court, contained two requirements: First, that " the entity at issue must be a state or local legislative governing body, including a board, commission, committee, subcommittee, authority, or council" ; Second, " the entity must be 'empowered'... to exercise...or perform a governmental or proprietary function,'and that power must derive from 'state constitution, statute, charter, ordinance, resolution or rule." [At 882]
The Michigan Court said in response to the plaintiff's argument that the city manager was a " public body," that:
the term " public body" denotes a collective entity. The statutory terms used illustratively to define " public body" - " legislative body" and " governing body" -do not encompass individuals. .... We draw additional comfort in our construction of the OMA because the Legislature is certainly free to define, and has, in fact, defined elsewhere, the term " public body" in such a way to encompass individuals. However, it would be awkward to say the least, to apply the OMA to an individual. Perhaps the strongest common- sense basis for concluding that an individual was not contemplated by the Legislature as a " public body" is to consider how odd a concept it would be to require an individual to " deliberate" in an open meeting....
That conclusion was bolstered, continued the Court, by the dictionary definition of " body," which referred to groups.
Turning to the relationship of the city manager to the committee he appointed, the Court declared that:
We disagree with the proposition that individual executive making a recommendation to a deciding body constitutes a delegation of authority. The city commission did not delegate to the city manager the responsibility to make a recommendation; that authority is given directly to the city manager by the charter. Further, the fact that the charter requires the city commission to act only on the recommendation of the city manager in no way constitutes a delegation of the commission's right to make the final determination regarding whether a recommended individual should be appointed to the position under the Bay City Charter.[At 883]
The Court goes on in footnote 15 to say that,
we disagree with any construction of the city charter as requiring the city commission to appoint as fire chief a particular candidate who is recommended by the city manager. The only reasonable interpretation of the pertinent charter provision is that the city manager must recommend a candidate for fire chief who then may (or may not) be appointed by the city commission. The city commission retains the exclusive right to reject recommended candidates until the one it finds satisfactory is presented by the city manager. [At 883]
The Michigan Court, said in response to the plaintiff's argument that the city manager and the city commission together constitute a " public body" , that:
We see no merit to the plaintiff's contention that the city manager and city commission constitute a public body. Certainly the city commission constitutes a public body when it appoints a fire chief, but the city manager remains an individual executive. We see no basis in the OMA to combine for the purposes of this statute two separate entities where each entity is performing its own independent function as designated in the city charter. The cases plaintiff relies on for this proposition are inapposite. [At 883]
The " inapposite cases" cited involved groups who were clearly members of collective " public bodies" who had voting rights as members of those bodies, rather than members of a separate committee who had no rights beyond making recommendations to the manager, who in turn made his recommendations to the city commission.
In Footnote 19, the Court did concede that:
Finally, we acknowledge that the committee formed by the city manager was a multi member entity of the kind recognized in the OMA, and that the committee arguably " exercise[d] governmental or proprietary authority or performe[d] a governmental or proprietary function." However, the committee, as the creation of the city manager, did not derive its power from " state constitution, statute, charter, ordinance, resolution or rule...." Therefore, the committee does not meet the second requirement of the OMA's definition of " public body." and it was not subject to that Act. [At 885]
The definitions of " governing body" by the Tennessee Supreme Court, and the definition of " public body" by the Michigan Supreme Court, appear to be similar; both apply to committees, but both exclude in the definition of " committee" single persons, committees that have not been appointed under a statute, charter, or municipal ordinance or regulation, and committees that can only make recommendations. The city manager and the City Council are two separate entities, and the marina committee appointed by the city manager was not appointed under any statute, charter, or municipal ordinance or regulation. It advised the city manager and not the city council The Michigan Supreme Court also refused to marry the city manager and the city's governing body to make it a committee encompassed by the Michigan Open Records Law. Under the Tennessee cases above, the same result appears to be the logical outcome if the Tennessee courts were presented with the question of whether the city manager could appoint a committee to provide him with advice in matters in which the city had an interest.
Sidney D. Hemsley
Senior Law Consultant