October 4, 2001
Dear City Recorder:
Your MTAS consultant says that you have essentially two questions:
1. Does the presence of the mayor count towards a quorum?
The answer is no.
2. Can an ordinance be passed only by a vote of only 4 aldermen, or can the mayor break 3-3 tie votes on ordinances and resolutions?
It requires an affirmative vote of 4 aldermen to pass ordinances, and while the mayor can vote in cases of a tie on other questions, he cannot break a tie vote on ordinances.
Analysis of Question 1
The number of the members of a governing body it requires to create a quorum is determined by statute or charter. In the absence of a statute or charter, the common law prevails. Section 20 of the charter clearly says that “four members of the board of aldermen shall constitute a quorum for the transaction of business...”
In the absence of a statute or charter provision to the contrary, the mayor does not count toward the determination of the existence of a quorum. In Tennessee, a mayor is a part of the legislative or administrative bodies of the city only to the extent expressly provided in the charter or statute. [Weil v. Roth & Co. v. Town of Newbern, 148 S.W.2d 680 (1912); City of Nashville v. Fisher, 1 Tenn. Cas. 345 (1874); Boyer Fire Apparatus Co. v. Town of Bruceton, 66 S.W.2d 210, 214 (1932); Lionel Hudson, Mayor, Hollow Rock v. Town of Hollow Rock, 15 TAM 25-18.]
Specifically with respect to the mayor’s membership on the board of mayor and aldermen, it has been held in Reeder v. Trotter, 142 Tenn. 37 (1919) and Sam Anderson, Mayor and Ray Tardy, Alderman of the Town of Gainesboro v. Town of Gainesboro, (unreported), Tenn. Ct. App., MS, Sept. 26, 1988, that a mayor in Tennessee is not a member of the legislative body of the city, except to the extent provided in the city charter or other statute. In Reeder, the Court, citing Dillard on Municipal Corporations, Vol. 2, section 513, said:
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 another 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 moto, and to the extent of the powers specially committed to him. [Emphasis is mine.] [At 42]
Citing a New Hampshire Supreme Court case that spoke of the role of the mayor as follows, the Court continued:
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... [Emphasis is mine.] 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 43]
It is true that many places in the charter speak of the mayor in the context of the “board of mayor and aldermen” [For example, see Sections 3, 4,11, 11B, 14, 17, 18, 21, 22, 24, 25 and other sections]. But as the cases cited above indicate, his legislative functions must find some positive expression in a charter or statute. Section 20 of your City Charter plainly says that four members of the board of aldermen shall constitute a quorum. There is no positive expression in the charter that the mayor counts toward a quorum; therefore, he does not.
Analysis of Question 2
Section 26 of the charter says that, “the mayor shall preside at all meetings of the board of mayor and aldermen and in case of a tie vote on questions before the board, shall vote, but not otherwise.” Ordinarily under a plain reading of Section 26, a question before the board would include the adoption of ordinances and resolutions. But Section 22 of the charter says that, “No ordinance or resolution shall be adopted unless finally passed by a majority of all members of the board of aldermen.” Under the same cases and logic that apply to the question of whether the mayor counts toward a quorum, it appears that the term “questions” in Section 26 does not include “ordinances and resolutions” in Section 22. Because Section 3 of the charter provides for six aldermen, and Section 22 says that ordinances and resolutions are adopted by “a majority of all members of the board of aldermen,” the passage of ordinances and resolutions would require the affirmative vote of at least 4 aldermen, and there could never be a tie vote on an ordinance or resolution that the mayor could break.
The fact that both the answer to question 1 and question to are governed by charter provisions that speak of the power of the board of aldermen as opposed to the board of mayor and aldermen indicates that language is probably not an accident.
Sidney D. Hemsley
Senior Law Consultant