August 19, 2003
You have the following question: Can the city appoint a city manager pending the passage of a private act that authorizes the city to hire a city manager, but which requires the private act to be passed by referendum?
That is a surprisingly difficult question to answer. In my opinion, the answer is probably no for the reason that a city manager is likely an officer rather than an employee. The significance of that distinction is that there is no provision for the office of city manager in the City Charter, and only the General Assembly can authorize the creation of public offices.
Under the city manager form of government, all or most of the administrative functions of the city are vested in a city manager, and they cannot be taken away from him by the governing body of the city. If a city adopts that form of government in its charter, it continues through a succession of city managers. The Tennessee courts have never addressed the question of whether a city manager in Tennessee is an officer or an employee. However, it has been held by courts in Kentucky, Arkansas, and New York, where that question has arisen, that the city manager is an officer. [See City of Lexington v. Thompson, 61 S.W.2d 1092 (Ky. App. 1933) (Ky.); McClendon v. Board of Health, 216 S.W.2d 289 (1919) (Ark.); Hansell v. City of Long Beach, 401 N.Y.S.2d 271 (Sup.Ct. App.) (NY.)] The cases which have addressed that question have held him to be an officer.
It appears relatively easy to be denominated an officer in Tennessee. I have written extensively in the past on this topic, and will be glad to provide those writing on your request. I will not go into detail on that issue here, except to point to Gamblin v. Town of Bruceton, 803 S.W.2d 690 (1990). There it was held that the city recorder was an officer because the city’s charter prescribed the duties of the recorder’s office and provided that the board of mayor and aldermen appoint the recorder.
The City is a private act city, established under Private Acts 1905, Chapter 26. There is no provision in that charter that expressly, or even impliedly, authorizes the city to appoint a city manager. Many municipal charters in Tennessee, in varying language, authorize the appointment of various employees and officers by position, and such other officers and employees as the city deems necessary. If the City Charter contained such language, the city could create the office or position of city manager. But that charter speaks expressly only of the “election” of a city recorder, marshal, treasurer, and speaks indirectly about the employment of police officers and firefighters. It is said in 3 McQuillin, Municipal Corporations, §12.37, that
....in the absence of constitutional or legislative authority, a municipal corporation cannot create an office, select an incumbent, clothe him or her with the power of a municipal officer, and pay him or her a salary. However, the power is frequently delegated to municipal corporations, either by charter or general law. The charters often confer express authority in general terms to regulate and provide for the appointment of city officers, and sometimes such power is implied. Thus, where municipal charters contemplate official assistants or deputies and other subordinates and employees, they usually commit to the council or governing legislative body the exclusive authority to provide them as, in its legislative discretion, the demands of the several officers or departments may require....Without authority, express or implied, usually new bureaus in municipal departments cannot be created. And where all offices of the city or town are prescribed by charter, none can be created by ordinance, and holders of positions so created are considered employees, not officers.... [Emphasis is mine]
The City Charter clearly and expressly prescribes all the offices of the city, and, as pointed out above, does not even speak of the power of the city to appoint additional officers.
But the difficulty with your question stems from the fact that the Tennessee courts in many old but still good cases have expressed the rule that while municipal governing bodies cannot delegate their legislative functions, they can delegate their administrative functions. [See Mayor of Chattanooga v. Geiler, 81 Tenn. 611 (1884); Whyte v. Mayor of Nashville, 32 Tenn. 364 (1852); City of Memphis v. Adams, 56 Tenn. 518 (1872); Nashville v. Fisher, 1 Tenn. Cas. 345 (1874); Rockwood v. C.N.O. & T.P. Ry., 160 Tenn. 32, 22 S.W.2d 237 (1929); Lotspeich v. Morristown, 141 Tenn. 113, 207 S.W. 719 (1918).] It is said in City of Rockwood, above, that, “The general rule against delegation by municipal bodies does not forbid the delegation of ministerial, executive, or administrative functions to subordinate officials.” The same case, citing Gelier, above, says that:
It cannot be supposed that the Legislature in giving the Mayor and Aldermen the power enumerated in their charter intended that they should be held to the personal performance of every duty imposed. From necessity a municipal, as well as other corporations, must discharge many of its functions and duties by officers and agents.
An argument can be made that those cases support the proposition that even if the City cannot adopt the city manager form of government, it can hire an employee to be a city manager, and delegate to him all or part of its administrative authority, for as long as it wishes to do so. But there is also authority for the proposition that the authority of a municipal body to delegate its administrative functions must be expressly or impliedly found in the charter or other statute. It is said in 2 Am. Jur.2d, Administrative Law, § 71, that:
The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions. Statutes often expressly provide for such delegation by the persons in whom the powers of the agency are directly vested....The authority to subdelegate need not be expressed in statute but may be implied if there is a reasonable basis for such implication.
Likewise it is said in 2 Am. Jur.2d. Administrative Law, § 73, that:
The authority to subdelegate need not be expressed in the statute but may be implied if there is a reasonable basis for such implication....Where Congress confers power upon the President of the United States, even if there is no express authority to act by deputies, such authority is implied. Powers bestowed by the President must, of necessity, be exercised though the various executive departments....
In Tennessee, it is said in Pack v. Royal-Globe Insurance Co., 457 S.W.2d 19 (Tenn. 1970), that where a statute permits the appointment of deputies, those deputies may discharge all duties of office..
There is certainly no express authority in the City Charter for the board of mayor and aldermen to delegate all or a part of its administrative powers to a city manager, and it is difficult even to point to any implied authority or reasonable basis in the charter for such a delegation. There is no doubt that the board could make such a delegation to the mayor, or to the city recorder. Sections 10 and 11 of the city’s charter respectively provide that among the mayor’s and recorder’s powers and duties are the powers and duties as the board may direct. There is no hint of authority for the board to appoint any other kind of deputies to perform such duties.
The problem with that logic is, as I pointed out above, that the only mention of officers and employees in the charter is (directly) a city recorder, marshal and treasurer, and (indirectly) police officers and firefighters. If for that reason the city were limited to the appointment of such officers and employees, the board could not appoint or hire, say, a street superintendent and delegate any of its administrative authority to him. I suspect that the city has hired a number of people to perform various city functions, but whose positions are neither expressly nor impliedly mentioned in the charter. The employment of such people seems consistent with a view that where a city by statute and charter has been given a list of functions that it must and can perform, that list of duties itself represents implied authority on the part of the city to hire at least employees, if not officers, to perform those functions.
Even so, a city manager’s position, whether he is denominated an officer or an employee, is unique: he does not simply perform one or two functions, or run one or two departments; he runs the city’s entire business. Any delegation of administrative powers on the part of the board of mayor and aldermen to the city manager must necessarily be an extremely broad one. For that reason, absent language stronger than that found in the City Charter either expressly or impliedly authorizing the city to hire a city manager, or other officers, I suspect the courts would be reluctant to find that the board of mayor and aldermen had the authority to make such a delegation of delegation of administrative powers to a “city manager.”
Sidney D. Hemsley
Senior Law Consultant