FROM: Donna Leydorf, Legal Consultant
DATE: November 29, 2000
RE: Status of City Attorney
You have asked questions about the role of City Attorney, specifically, for whom does the City Attorney work, and can the City Attorney be fired?
1. For whom does the City Attorney work? This is a complex issue, much like the question of who does a corporate attorney represent. A corporation is a separate legal entity for whom the attorney technically works, however, the corporation itself cannot communicate its needs to the attorney. It therefore speaks through its officers and directors. So does the attorney really represent them? Not really, since a corporation is owned by shareholders, who have no say in the daily operation of the corporation, yet are the legal owners.
There is a similar dilemma for tracing the obligations of a city attorney. Technically he/she represents the city, but again, the city cannot speak for itself. One could also argue that the city is simply the aggregate of its citizens, but the citizens also have no say over the daily running of the city, except by the occasional chance to vote an official in or out. In reality, the City Attorney deals primarily with the officers and employees of the city. In many Tennessee cities, the City Attorney specifically works for the Board of Aldermen or the City Council because the Board or Council generally has most of the power in Tennessee cities.
Your charter has fashioned a somewhat different relationship for the City Attorney because it designates an appointment by the mayor, with the confirmation of the Board. Section 3.04 of the Charter discusses the City Attorney:
The mayor, at the first meeting after each election, shall appoint, and the Board shall confirm, a city attorney, and such assistant city attorneys as may be authorized by ordinance. The city attorney, or an assistant city attorney designated by the board, shall be responsible for representing and defending the city in all litigation in which the city is a party; prosecuting cases in the city court; attending meetings of the Board as required by the Board, advising the Board and other officers and employees of the city concerning legal aspects of their duties and responsibilities; approving as to form and legality all contracts, deeds, bonds, ordinances, resolutions, motions, and other official documents; and performing such other duties as may be prescribed by the Board.
2. Can the City Attorney be fired?
Section 3.07 of the Charter discusses the terms of employment for city employees:
The Board shall be entitled to adopt personnel rules and regulations governing the appointment, promotion, term and other employment conditions of the employees of the city. However, in the absence of such personnel rules and regulations all city employees shall be employees at will, except the police and fire chiefs . . .
Generally speaking, then, the City Attorney is an employee at will as much as any other city employee. However, Tennessee courts have recognized and adopted the principle that “the right of removal from office is an incident to the right of appointment, unless the term of the official is fixed by law for a definite period.” Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990). Since your Charter gives the mayor the right to appoint the city attorney, only the mayor can remove him/her.
The Board cannot directly fire the City Attorney, but if 2/3's of the Board agree, the Charter could be amended to have the Board appoint and supervise the City Attorney. The Constitution of Tennessee, Art. XI, Sec. 9 provides:
The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected . . .unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.
If 2/3's of a Board or Council agree that an amendment is appropriate, the proposed changes can be sent to the General Assembly through your local delegation. I believe the next session will convene in January. MTAS has published a booklet that might be helpful to your Board in making such a change, called Getting to Know and Maybe Love Your Municipal Charter, by Sidney D. Hemsley, Rev. Ed. 1996.
If the board decides to amend the charter, upon completion of the process, the Board could then fire the City Attorney and name a new City Attorney. I am not recommending any particular action for your city, but MTAS stands ready to assist with such action as seems appropriate to your Board. Let me know if I can help you further.