FROM: Sid Hemsley, Senior Law Consultant
DATE: October 2, 2000
RE: Personnel Authority of City Judges
You have the following question: Does the City Judge have the authority to appoint, discipline, and remove the court clerk and deputy court clerk?
In my opinion the answer is yes.
The general rule is that the power to appoint an officer or employee includes the power to remove the officer or employee. That is also the rule in Tennessee. It is said in Gillespie v. Rhea County, 235 S.W.2d 4 (1950), that,
...the implied power to remove cannot be contracted away so as to bind the appointing authority to retain a minor officer or employee for a definite, fixed term. This is a universally accepted rule where the tenure of office is not prescribed by Statute or the Constitution. Under such circumstances the power to remove is an incident to the power to appoint. [Citations omitted.] [At 7]
It is true that the city manager has broad personnel power under the City Charter, but that power is limited. Article 5-I, provides for the powers of the city manager, among which is the power to appoint and to remove city employees and administrative officers provided for under the charter, “except as otherwise provided by law, this charter or personnel rules adopted pursuant to this charter.” With respect to the court clerk and deputy court clerk, Section 6-B of the charter provides that, “In addition to the inherent authority of the County Judge to issue all warrants and other legal process coming from said court, the Clerk and Deputy Clerk as designated by the said Judge shall likewise have authority to issue all legal process.” [Emphasis is mine.]
Under Section 6-B of the charter, the city judge apparently has the power to appoint the court clerk and deputy court clerk. For that reason, and in the absence of any constitutional or statutory provision otherwise, the judge’s power includes the power to remove the court clerk and deputy court clerk.
I want to add a final point about court clerks where the court has concurrent jurisdiction: they might be required to be elected for four year terms. Article VI, Section 5, of the Tennessee Constitution, provides that:
Judges of the Supreme Court shall appoint their clerks who shall hold their offices for six years. Chancellors shall appoint their clerks and masters, who shall hold their offices for six years. Clerks of the Inferior Courts holden in the respective Counties or Districts, shall be elected by the qualified voters thereof for the term of four years. Any Clerk may be removed from office for malfeasance, incompetency or neglect of duty, in such manner as may be prescribed by law.
I have many times, beginning before Tennessee Code Annotated, 16-18-201, was adopted, pointed to the possibility that Article VI, Section 5, applies to city judges who exercise concurrent jurisdiction. Tennessee Code Annotated, section 16-18-207, permits (but does not require) the clerk of an elected court judge to be elected. So far, there has been no case on that question.