July 30, 2001
You have several questions related to the appointment of the mayor to the position of city administrator, all of which essentially center around this question: Can the mayor assume, or be appointed to, the office of city administrator? Under the facts, the office of city administrator is presently vacant.
Under the common law a public officer cannot hold incompatible offices, and a local government’s governing body cannot appoint one of its members to an incompatible office. [State ex rel. v. Thompson, 246 S.W.2d 59 (Tenn. 1952) (Disapproving the appointment of a member of the Paris, Tennessee, city commission to the office of city manager)]. There is no question but that under Thompson, above, the offices of mayor and city administrator are incompatible. However, the common law can be “overturned” by statute. [Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986) (Approving the appointment by the county commission of a county commissioner to the office of trustee, under a statute that permitted county legislative bodies to appoint one of their own members to vacancies in office, but prohibited the nominee from voting for himself)].
Under Section 14 of your City Charter, “In the event of the sickness or absence of the Administrator, Treasurer or Recorder, the Mayor shall temporarily assume the duties of the Administrator, Treasurer or Recorder.” For that reason, Section 14 “overturns” the common law with respect to the extent of the mayor’s obligation to temporarily assume the office of administrator under two limited circumstances: sickness or absence of the city administrator.
It is unnecessary to consider the question of whether a city administrator whose office is vacant qualifies as sick within the meaning of Section 14. However, the question of whether a city administrator whose office is vacant is absentwithin the meaning of Section 14, is closer. For that reason, I researched that specific question and found only two cases in the United States, but both are precisely on point: Nolan v. Representative Council of City of Newport, 57 A.2d 730 (1948) (Rhode Island); and Babbidge v. City of Astoria, 37 P. 291 (1894) (Oregon). Both those cases hold that a municipal charter provision that gives a certain officer the right to perform the mayor’s functions in his absence, does not apply to a vacancy in the office of mayor (by death in Nolan, and by resignation in Babbidge). There is no reason whatever that those cases would not apply with equal force to the offices of the city administrator and the mayor.
Because the mayor cannot even temporarily “assume” the office of city administrator under Section 14, the city administrator being neither sick nor absent, under Thompson, the common law applies. Therefore, your City’s governing body cannot appoint him to the office of city administrator, either temporarily or permanently.
Sidney D. Hemsley
Senior Law Consultant