Knowledgebase-Mayor Pro Tem to Hire Consulting Attorney
Re: Ordinance regarding hiring of consulting attorney
You have asked me to review the proposed ordinance referenced above which is currently pending before the City Council. In my opinion, the ordinance is in conflict with the City Charter and should not be adopted.
Section 4 of the proposed ordinance provides that the Mayor Pro Tem will direct the City Attorney to hire an attorney, and that the attorney hired “will communicate with the Mayor Pro Tem regarding the issue(s) in question.” This is in conflict with the City Charter, which only vests power in the Mayor Pro Tem in the case of an absence of the Mayor. The City Charter states that the Mayor Pro Tem “shall act as Mayor during any temporary absence or inability of the Mayor to act, and whenever a vacancy occurs in the office of Mayor, the Mayor pro tem shall become Mayor and hold office as such for the unexpired term...” Article III, Section 10 (emphasis added). It is clear from the Charter that an absence of the Mayor must occur before the Mayor Pro Tem may act.
Although there are no Tennessee case opinions addressing what constitutes an absence of a mayor necessary before a mayor pro tem may assume power and take action, there are many cases from other states which are instructive. In an old but still cited Kentucky case, Watkins v. Mooney, 71 S.W. 623 (KY 1903), the mayor pro tem called a special meeting and made an appointment while the mayor of Lexington was in Frankfort for one day. The Court invalidated the appointment, stating:
We think that the soundest reasoning, under the authorities cited and examined, gives the word “absence” the meaning of that absence which would make it impossible for the official to perform the act in question.
Watkins at 623. The term absence must be “construed reasonably,” and the right of a mayor pro tem to act hinges upon the “effective” absence of the mayor. State ex rel Olson v. Lahiff, 131 N.W. 824 (Wis. 1911). Whether there is an effective absence depends upon the circumstances.
This is the rule of law followed in the vast majority of states, and I believe the Tennessee courts will apply this rule should the issue of the absence of a mayor ever come before the court.
Based on the plain language of the City Charter, the Mayor Pro Tem has no power to take any action unless there is an absence of the Mayor or a vacancy in the office of Mayor. As such, the proposed ordinance is in conflict with the Charter. Ordinances of a city are subordinate to the charter provisions. The Supreme Court declared in Marshall & Bruce Co. v. City of Nashville, 71 S.W. 815, 819 (Tenn. 1903):
The provisions of the charter are mandatory, and must be obeyed by the city and its agents; and, if in conflict with an ordinance, the charter must prevail. (Emphasis added)
In my opinion, the proposed ordinance is clearly in conflict with the City Charter, and may not take effect if it is passed by the City Council.
I hope this information is helpful. Please feel free to contact me should you have any questions or need further assistance with this or any other matter.
Than you for consulting with MTAS.
Melissa A. Ashburn