November 6, 2007
Dear City Manager:
You have the following question: Can the city manager appoint a member of the board of commissioners to the position of police officer in the city?
In my opinion, the answer is no, because the two positions are incompatible.
In State ex rel. v. Thompson, 246 S.W.2d 59 (Tenn. 1952), the city commission (which was actually a city council) of Paris, Tennessee, appointed one of its members the city manager. The court declared the appointment illegal. One of the grounds on which the appointment was illegal was that the offices of city commissioner and city manager were incompatible. The Court in Thompson said this about the incompatibility of the offices of city council member and city manager:
Of course, it was not the intention of the Legislature to permit the City Manager to be one of the five members of the Board which determines whether or not he shall be discharged for cause, or without cause, after twelve months, or a member of the Board, to accept or reject or modify his own recommendations made as City Manager, or, as a member of the Board, to direct and supervise himself as City Manager in the administration of the affairs of the City. This statement of the situation seems conclusive of the fact that the two offices are completely incompatible. [At 61]
It is true that under the facts of the City’s question, it is the city manager that makes appointments of police officers. The City is a home rule city that operates under the general law manager-commission charter as it existed in 1958. Under that charter it is the city manager who holds virtually all the personnel power. However, under § 6-2032 of that charter, the board of commissioners does have some significant personnel powers:
The mayor or any commissioner or any employee may be removed from office by the board of commissioners for crime or misdemeanor in office, for grave misconduct showing unfitness for public duty, or for permanent disability, by a majority vote of the other members of the board voting for said removal...
For that reason, what Thompson said about incompatible offices applies to a city commissioner who is a police officer, even if he is appointed to the position of police officer by the city manager rather than by the city commission.
Indeed, cases from other jurisdictions have expressly held that the positions of city council member and police officer are incompatible offices and cannot be held by the same person. In Dunn v. Froelich, 382 A.2d 686 (N.J. Super. 1978). The Court looked at the city council form of government under which the city was organized, and reasoned that:
Thus, the council is empowered to investigate municipal departments and officers and to remove any municipal officer, other than the mayor or a member of the council, [statutory citation omitted]. As a councilman and a policeman defendant would be statutorily charged with detecting and punishing misconduct within the police department and would in effect sit in judgment of his superior within the department. Such a conflict renders the offices incompatible.... [Citations omitted.] [At 687-88]
In Schloer v. Moran, 482 N.E.2d 460 (Ind. 1985), it was held that if the plaintiff, who was a police officer and a candidate for the city council, were to be elected to the city council, he could not serve in both positions because the two officers were incompatible. The Court even acknowledged that under an Indiana statute:
Members of the safety board and members of the police or fire department may be candidates for elective office and may, as long as they are not in uniform and not on duty, solicit votes and campaign funds and challenge voters for the office for which they are candidates. [At 464]
Under that statute, the police officer could run for office, said the Court, but if elected he could not serve in both positions. The court would cross that bridge if he were elected.
It was held in Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986) that the common law could be “overturned” by statute. There Roberts, a member of the Roane County Commission, was elected by the Commission to the office of trustee under a statute that provided that any member of a county commission who accepted the nomination to that (and other) offices “automatically” lost his office as commissioner. Quoting Thompson for the proposition that, “it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members,” [At 606], the Court declared that the effect of the statute:
.... permits county legislative bodies to nominate one of their own members for a vacancy in office, but prevents the nominee from voting for himself by divesting him of his commission seat upon his acceptance of the nomination. [At 607.]
There is no statute that applies to your City Commission with respect to one of its members serving as a police officer.
Sidney D. Hemsley
Senior Law Consultant