February 5, 2002
Re: Authority of Interim City Manager to Appoint Police Chief
Your question is whether an interim city manager appointed only to serve until the regular city manager takes office would have the authority to appoint the police chief. The position of police chief was vacant before the manager’s job became vacant.
Since there are no specific provisions in your City’s charter dealing with the authority of an interim manager, the interim manager would have the same appointing authority as the regular manager unless the City Council chose to circumscribe those powers through direction to the interim manager. This “direction” may be as informal or formal as the Council wants to make it. It could take the form of an understanding or agreement between the Council and the prospective interim manager that he/she would either appoint or not appoint the new chief, as the Council wishes, on pain, of course, of being replaced. Or it could take a more formal tone as an order or condition of appointment. One solution, of course, would be for the Council to direct the interim manager to appoint only an interim chief.
Your City’s charter (Chapter No.380, Private Acts of 1972, as amended) provides in § 4.01 as compiled in the MTAS code that:
The council shall appoint and fix the salary of the City Manager, who shall serve at the will and pleasure of the Council.
§ 4.03 provides that:
The City Manager shall be empowered, subject to the direction of the Council, and it shall be his responsibility, in the name of and on behalf of the City:
(a) To appoint on the basis of merit and fitness alone, and when necessary to remove or discipline all officers and employees of the City except as otherwise provided by this Charter.
* * *
§ 17.01 provides that “The City Manager shall appoint a Chief of Police....”
Nowhere does the Charter provide that a city manager who is appointed to serve only temporarily while the Council searches for a replacement would have fewer or a lesser degree of appointment powers than any other person serving as city manager.
The only case I have been able to find that was decided by a court with jurisdiction over this state interprets federal regulations but supports the proposition that an interim officer exercises the same powers as the “regular” official or board. In Nationwide Building Maintenance, Inc. v. Reich, 14 F.3d 1102 (6th Cir. 1994), the Secretary of the Department of Labor was supposed to appoint a Board of Service Contract Appeals. As an interim measure, however, a deputy secretary was authorized to hear and decide appeals. The Secretary failed for eight (8) years to appoint the Board and the argument was made that the Secretary’s violation of the law and excessive delay caused the interim authority to lose jurisdiction. The Sixth Circuit disagreed and explained its understanding of “interim” :
[W]e are not persuaded by the proposition that an officer who is “interim” in 1984 stops being “interim” in 1986. “Interim” has been defined as “in the meantime: MEANWHILE ... TEMPORARY, PROVISIONAL.” Webster’s Third New International Dictionary 1179 (1986). An “interim officer” is one “appointed to fill the office during a temporary vacancy or during an interval caused by the absence or incapacity of the regular incumbent.” Black’s Law Dictionary 731 (5th ed. 1979). The Secretary of Labor, in accordance with her published regulation, designated the Under Secretary to “perform” the functions of the Board “[d]uring the interim period prior to the appointment of a duly constituted Board ....” 29 C.F.R. § 8.0. (emphasis added). That “interim period” continued until July 10, 1992, the day on which the Secretary finally appointed the Board of Service Contract Appeals. 57 Fed. Reg. 33,414. During the eight-year period that transpired “in the meantime,” the Under Secretary-- later the Deputy Secretary-- was legally authorized by the published regulation to “perform” the “functions of the Board.” (Emphasis, punctuation, and note in original). 14 F.3d at1106.
If there is nothing circumscribing the power or authority of the interim city manager, then he/she would have the same power and authority as the regular manager. A person’s status as an interim officer would have a constraining influence on some people and might have the opposite effect on others. Therefore, if the Council wants the interim manager to exercise powers in a certain way, it will have to designate those restrictions.
Under § 4.03 of your City’s charter, the city manager exercises his/her powers, including the power to appoint officers and employees, “subject to the direction of the Council ....” The City Council, of course, is the policy-making body, and the manager is the executor of that policy. The word “direction” in this portion of the charter, therefore, should be construed as general direction so the Council does not get bogged down with the day-to-day operations of the city. A direction to an interim manager that the “permanent” police chief is not to be appointed , for example, until the “permanent” city manager takes office would not violate the word or spirit of this charter provision. Such a restriction could ensure unity and harmony of purpose and make it more likely the policies of the Council are carried out.
I hope this is helpful. If you have further questions, please call.