FROM: Sid Hemsley, Senior Law Consultant
DATE: August 13, 2003
RE: Beer Board Compensation
The city manager has the following question: Where the beer board consists of three members of the city commission, can they be paid, in addition to their salary as members of the city commission, a salary or per diem for their service on the beer board?
I assume for the purposes of the question that the three commissioners constitute the entire beer board.
In my opinion, the answer is probably no.
The City operates under the general law manager-commission charter. Section 6-20-204 of that charter provides that the salaries of the members of the commission shall be set by the commission, and sets out the maximum amounts of those salaries. There is little said about beer boards in the beer laws of the state, and nothing about the salaries or other compensation of beer board members. Tennessee Code Annotated, § 57-5-106(a) provides that “All incorporated cities, towns, and Class B counties in the state of Tennessee are authorized to....provide a board of persons before whom such [beer permit] application shall be made....” In addition, Tennessee Code Annotated, § 57-8-108 provides that “Any permits or licenses issued under this chapter by the governmental body of any incorporated city, or by any committee or board created by such governmental body, may be revoked or suspended by such governmental body, committee or board.” That is about it.
It is the law generally that in order for a public officer to make a claim for salary, he must point to some statute that supports the claim. Absent such a statute the public officer serves gratuitously.
It was held in Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815 (1928), and Blackwell v. Quarterly County Court, 622 S.W.2d 535 (1981), that absent constitutional limitations, public bodies have a broad right to regulate the salary and other compensation of their elected and appointed officials. They also point to a difference in “salary” and “compensation,” declaring that constitutional limitations on salaries do not apply to compensation. However, both those cases also stand for the proposition that any claim to salary or to compensation on the part of a public official must be based on legislative authority, and that “A municipal officer rightfully holding an office is entitled to such compensation and only such compensation as is provided by law as an incident to the office.” In Peay, it is said that:
Compensation attached to the office, whether ‘salary’ or ‘per diem’ [citation omitted] is not given to the incumbent because of any supposed legal duty resting upon the public to pay for the service,[citation omitted] and a law creating an office without any provision for compensation carries with it the implication that the services are to be rendered gratuitously.
Even more emphatic on that point is Bayless v. Knox County, 286 S.W.2d 579 (1955). There it was argued that even in the absence of statutory authority for the county to pay certain expenses of the county judge and county commissioners related to official county business the county had authority to pay those expenses. The Court rejected that argument, saying:
Considered on principle, the decisions of this State are directly contrary, as this Court views it, to that assertion. In State ex. Rel Vance v. Dixie Portland Cement Company, 151 Tenn. 53, 60, 267 S.W. 595, 597, it is said: ‘It is well settled policy of the state, determined by statute and judicable decree, that public officers can receive no fees or costs except as expressly authorized by law. To the same effect is [there follows a list of several cases.] There are no decisions to the contrary. [At 587]
It appears to me that when the governing body of the city elects to itself become the beer board or elects to appoint a committee of that body to serve as the beer board, the service of the members of the commission on the beer board is part of their duties as members of the governing body of the city. But even if that is not so, that in both those cases the members of the beer board are not serving in the capacity of members of the city’s governing body, there is still no statutory authority for a salary to be paid to members of the beer board.
Here let me mention Tennessee Code Annotated, § 6-54-9091, which provides that:
Notwithstanding the provisions of any public or private act to the contrary, in all municipalities of the state, any mayor and any member of the local governing body, and any board or committee member elected or appointed by the mayor or local governing body, and any official or employees of the municipality whose salary is set by charter or general law, may be reimbursed from municipal funds for actual expenses which such municipal officer may incur as an incident to holding such office. [Emphasis is mine.]
That statute appears to limit non-salary reimbursements of the members of governing bodies to actual expenses in those cities to which it applies. But § 6-20-204 of the general law manager-commission charter under which the City operates contains only parameters of the salaries that can be paid to the members; it does not contain the salaries. For that reason, at first glance, it can be argued that if the salaries of the members of the board of commissioners are not already at the maximum, the city could pay the members of the board of commissioners who serve on the beer board an additional measure of salary (within the parameters of the salary set in § 6-20-204). However, a close reading of that section suggests a strong implication that the salaries of the individual commissioners must be equal. In fact, if they are already at the maximum, there is no way to unequalize them except by reducing the salaries of non-beer board commission members.
But in any case, there is no statutory authority for the payment of salaries to beer board members.