Original Author: Hemsley, Sid
Date of Material: 07/06/2010
Reviewed Date: 07/23/2010
MTAS was asked whether the mayor may make motions and speak on matters on issues on which he has the right to vote.
You have the following question: Can the mayor make motions and speak on matters before the City Council?
The answer is no.
The City Charter is silent on the question of whether the mayor can make motions and speak on issues on which he has the right to vote. But the charter says this about the legislative and administrative powers and duties of the mayor:
Article II, Section 1:
All corporate power, legislative and other powers of the City shall be vested in the City Council except as otherwise provided in this charter. The City Council shall be composed of the Mayor and Councilmembers.
Article II, Section 2:
A simple majority of the members of the City Council, then in office shall be a quorum for transacting business at meetings.
Article III, Section 4:
The Mayor shall preside at all meetings of the City Council, shall have a vote on all matters but no veto power, shall be the ceremonial head of the City, shall sign ordinances and resolutions on their final passage, shall sign deeds, bonds and contracts when authorized by the City Council to do so, shall be the officer to accept process against the City, but shall perform on such duties as are specifically conferred or required by law and this charter and shall not have any regular administrative duties. Whenever the term “City Council” is used in this charter, it shall be construed to include the Mayor as a voting member and the presiding officer.
A Tennessee mayor’s right to vote, or to perform other legislative functions, including making motions and speaking on them, is governed by Reeder v. Trotter, 215 S.W. 400 (1919). In that case, the Tennessee Supreme Court, citing two different authorities, said the following:
Dillard on Municipal Corporations, Vol. 2, section 513:
The question of whether the mayor of a city shall be regarded as a member of the council is one of legislative intent. It is within the power of the legislature to confer upon him the functions of a member of the council in every respect, and if the legislation on that subject calls for that construction he will be so regarded. But in American Jurisprudence the mayor is not necessarily a constituent part of the legislative power of the municipality. His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. [Emphasis is mine.] In this view, in the absence of a statute necessarily implying that he has the same standing in the council, as any other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council sub modo, and to the extent of the powers specially committed to him. [Emphasis is mine.] [At 401]
The New Hampshire Supreme Court case of Cate v. Martin, 70 N.H. 135, 46 Atl 54 (1900):
The mayor of a city is not an alderman or councilman of the city in a general or proper sense of those terms...He is not a member of either branch [legislative or administrative] of the city council unless expressly made by such law;...and when this is the case, it is to the extent of such powers as are specially committed to him, and no further that he is a part of the city council. He is not one of its own members in the sense of which an alderman is; ...nor has it been understood that he is to be counted in determining the presence of a quorum... Applying the principles of these authorities (and none have been found to the contrary) to the statutory provisions relating to the mayor and aldermen cited in behalf of the defendants, the result is indubitably to establish the proposition that while the mayor is a constituent part of the...board for some special purposes, he sits and acts in the board not in the capacity of an alderman, but in the capacity of an ex officio presiding officer, and exercises those powers only which have been specially committed to him as the chief executive officer of the city. [At 402]
Reeder v. Trotter must be carefully read, especially the two quotes from Dillard on Municipal Corporations, and the New Hampshire case of Cate v. Martin because they are subtly different. Under the City Charter, the mayor of the City is not generally a member of the city council; he has only certain express legislative powers which under either authority cited by Reeder v. Trotter, do not permit him to make motions or speak on issues upon which the City Charter gives him the right to vote: he counts toward the calculation of a quorum, he is the presiding officer, has the right to vote on all matters, and, “Whenever the term “City Council” is used in this charter, it shall be construed to include the Mayor as a voting member and the presiding officer” that last sentence, found in Article II, Section 4, of the City Charter appears to make it clear that the Mayor is a member of the city council for the purposes of voting and being the presiding officer.
Under Dillard on Municipal Corporations, the question of whether the mayor is a member of the city council is one of legislative intent, and if the legislature intended to make him a member of the city council for all purposes, he will be treated as such, the corollary of which is that the legislature can make him a member of the city council only for some purposes. That quote provides no hard fast rules for determining whether the legislature intended to make a mayor a member of the city council for all purposes, but it does give us some strong hints about when the mayor is not a member of the city council. It tells us that the mayor is generally an executive, and that “[W]hatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. “ In this view, in the absence of a statute necessarily implying that he has the same standing in the council as any other member, and if he has the express powers to (1) preside at meetings, and (2) vote to break ties, he is probably not a member of the city council, except to the extent of the powers given to him in the charter.
The New Hampshire case of Cate v. Martin, seems to draw an even firmer line on the powers of the mayor. He is not a member of the city council unless a law expressly so provides. But even where a law provides that he is a member of the city council, “it is to the extent of such powers as are specially committed to him, and no further that he is part of the city council”. In fact, the Reeder v. Trotter Court supports that case with the case of Jacobs v. San Francisco, 100 Cal. 121, 34 Pac. 630, in which the California Supreme Court said:
The mayor is not ***necessarily a constituent part of the legislative power of the municipality. His functions are of an executive or administrative character.*** Whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. [At 401]
It does not appear to me that Reeder v. Trotter tries to reconcile the two different positions of Dillard on Municipal Corporations and of Cate v. Martin. But it does appear to me that it adopts the Dillard on Municipal Corporations position, declaring:
Where the presiding officer is a member of the body, and, as such member, permitted to vote with the other members, the fact that he was chosen to act as presiding officer would not deprive him of that privilege. For example, in a county where the county court is presided over by a county chairman, he, being a member of said court, clearly has the right to vote.... In our state legislature, each body chooses one of its members as speaker. The Constitution is silent as to their right to vote, but being members they unquestionably have the right, and have always voted as other members....Not a single case has been brought to our attention in which it has been held that a presiding officer of any organization, in the absence of express authority, has a right to vote where he is not a member of such organization. [At 215 S.W. 401]
We have seen where the Mayor of stands with respect to what extent he is a member of the City Council. In Reeder v. Trotter the county judge voted to break a tie on a vote by the justices of the peace to issue bonds. The Court held that the county judge did not have the authority to vote because the office of county judge was created by
Chapter 148 of the Acts of 1887, and:
It is conceded that none of the legislative enactments, pertaining to the office of the county judge, expressly constitute him a justice of the peace, or a member of the county court, or authorize him to vote upon any measure coming before the said court. [At 400]
I have looked at Chapter 148 of the Acts of 1887, and it is interesting that § 4 of that Act provides:
That all the powers and jurisdictions now vested in and belonging to the Chairmen of the County Courts of this state, be and the same are hereby, conferred upon the County Judge of Knox County, that is hereafter to be elected by the qualified voters of Knox County, and the office of Chairman of Knox County Court is hereby abolished from and after the first Monday in September, 1888.
Apparently, the fact that under Chapter 148, Acts of 1887 vested all the powers and jurisdiction of the chairmen of the county courts (who apparently were members of the county court and as such members had the right to vote) in the Knox County Judge, did not make the county judge a member of the county court, or otherwise authorize him to vote on the county court. That Act certainly did not expressly constitute him a justice of the peace. But if the Act had made him a member of the county court, he could have voted, even in the absence of a statute that expressly gave him the right to vote.
The mayor’s right to vote to vote in all cases does not enable him to make motions or speak on issues before the city council, because his legislative powers are expressly limited to presiding over meetings of the city council and voting on all matters before the city council. In the unreported case of Anderson v. Town of Gainesboro, 1992 WL 33893 (Tenn. Ct. App.), the chancellor held that the mayor derived an implied right to vote for all purposes from the fact that: the charter provided that: there should be a mayor and three aldermen; the charter referred to the governing body as the mayor and board of aldermen or as the board of mayor and aldermen; and the charter made twelve references to the mayor and board of aldermen, and five references to the board of mayor and aldermen. But the chancellor ordered a rehearing in which he reversed himself. Relying on Reeder v. Trotter (which had initially escaped him), he held that the mayor did not have the right to vote, reasoning “that the charter did not expressly authorize the mayor to vote on any matters except in the case of a tie in the election of Mayor or Alderman.” [At 2] The Tennessee Court of Appeals upheld the chancellor, declaring Reeder v. Trotter the controlling case, and quoting the provisions of Dillard on Municipal Corporations and of the New Hampshire case of Cate v. Martin. That case does not indicate whether the mayor was the presiding officer, but that appears not to have made any difference. The Court simply reasoned that:
If the mayor of a city is to be allowed to vote as a member of the board of mayor and aldermen, he must be given that authority expressly and not by implication. There is nothing in the charter of the Town of Gainesboro or any amendment thereto which expressly gives the mayor the authority to vote. [At 3]
In theory, unreported cases bind only the parties to those cases, but the Tennessee courts have still called those cases “persuasive.” For that reason, Anderson v. Town of Gainesboro is still an important case. But even absent that case, Reeder v. Trotter is still the law in Tennessee, and under that case the mayor of the City has a vote in all matters, but no voice on those matters.
The City Charter gives the mayor the express power to preside over meetings of the city council, and gives him the right to vote on all matters. But those express legislative powers allow no implication that he can make motions or speak on issues on which he has the right to vote.
Let me know if I can help you further with this or any other matter.
Sidney D. Hemsley
Senior Law Consultant