January 13, 1998
You have the following question: Can the city attorney hold the position of sessions judge, which in your county is a part-time position?
The answer is probably no. An argument can be made that a general sessions judge’s holding of the office of city attorney is a violation of Article VI, Section 7, of the Tennessee Constitution. While that argument does not appear to me particularly strong, the Rules of the Tennessee Supreme Court, Rule 10, Cannon 4, probably prohibits a judge from serving as a city attorney, even if both positions are part-time positions.
Article VI, Section 7
Article VI, Section 7, of the Tennessee Constitution provides that:
The judges of the Supreme or Inferior Courts, shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office nor hold any other office of trust or profit under this State or the United States.
Tennessee Attorney General’s Opinion 78-348, specifically opined that the city attorney of the City of Lewisburg could not be the general session, juvenile and probate judge for Marshall County because the office of city attorney is an office of trust and profit under this state within the meaning of Article VI, Section 7, of the Tennessee Constitution.
That opinion cites for support Frazier v. Elmore, 173 S.W.2d 563 (Tenn. 1943). There the judge of the Knox County General Sessions Court was inducted into the military during WWII. His office was temporarily filled under a state statute passed in 1943 that preserved the offices of various office holders inducted into the military, that provided for the temporary filling of such offices, and that gave the salaries of the office to the temporary office holders. The judge sued for his salary, arguing that under Article VI, Section 7, of the Tennessee Constitution, the salary of a judge of an Inferior Court could not be diminished during his term of office.
The Court rejected the judge’s argument, reasoning that to accept it would put the judge in the untenable position of violating the same provision of the Tennessee Constitution. Not only did that provision prohibit the diminution of an Inferior Court judge’s salary, it also declared that, “They [judges] shall not be allowed any fees or perquisites of office, nor hold any office of trust or profit under this State or the United States. [The Court’s emphasis.]
The Court noted that the facts of the case did not indicate whether he was in service as an officer or as an enlisted man. If did not matter if the judge was an officer or “a private” in the military, concluded the Court:
The bill does not disclose the precise character of the duties, the nature of the military service he is rending to “the United States,” nor the compensation he is receiving, but however this may be, he is in the position of high “trust” and receives at least some financial compensation, some “profit.” The term “office” in its context, must be given its broad meaning, so as to effectuate the apparent intent of the constitutional prohibition against a diversion or division of the time and labor, energies and abilities of judges of our courts, which might destroy or diminish their capacity to discharge the exacting duties of their responsible positions; and also to limit them to one source of compensation.... Whatever may be the post or station in the military service of the United States which complainant is occupying, he is in a place of trust and honor and is receiving compensation therefrom. And if not technically holding another “office,” within the letter of the prohibition, he is certainly within its spirit. The letter killeth, the spirit maketh alive. [At 563, 566.]
In subsequent cases, it has been held that general sessions judges are county, not state, officers, but that Article VI, Section 7, of the Tennessee Constitution applies to them. In Durham v. Dismukes, 333 S.W.2d 935 (Tenn. 1960), it is said that:
Because a Sessions Judge is subject to Article 6, Section 7 of the Constitution wherein his salary cannot be increased during his term does not make him a State officer--he is still a county officer. A county official is likewise subject to the mandates of the constitution. [At 937.]
The same thing is said in Franks v. State, 772 S.W.2d 428 (Tenn. 1989).
Presumably, then, the second, as well as the first, part of Article VI, Section 7, of the Tennessee Constitution applies to general sessions judges.
But those cases do not answer the question of whether a city attorney is an “officer” and the office of city attorney a “State” office within the meaning of Article VI, Section 7.
The Frazier Court painted the term “office” in extremely broad strokes:
Webster defines “office” as an “assigned duty or function.” Synonyms are post, appointment, situation, place, position; and “office commonly suggests a position of (especially public) trust or authority.” Bouvier defines “office” as a right to exercise a public function or employment, and to take the fees and emoluments belonging to it”; again, “a public charge or employment.” 2 Bouv. Law Dict., Rawles Third Revision, p. 2401. The opinion of this Court in Jones, Purvis & Co. v. Hobbs, 63 Tenn. 113, at page 120, quotes Blackstone’s definition of office as “a right to exercise a public or private employment, and to take the fees and emoluments thereto belonging. [At 563.]
The Court went on to point out that those whose duties it is to preserve the peace, without regard to rank, are commonly referred to as peace or law enforcement “officers.”
The Courts have painted the same broad picture of the term “officer” in other cases. Indeed, it is easy to be an officer in Tennessee. In Sitton v. Fulton, 566 S.W.2d 995 (Tenn. Ct. App. 1978), it is said that:
“Public Officer” has been defined as an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given to him by law, and who exercises the functions concerning the public assigned to him by law. 67 C.J.S. Officers, Sec. 2.
Also, as pointed out at 63 Am.Jur.2d, Public Offices and Employees, Sec. 10 “a public office embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent.’’
The Director of Law of the Nashville-Davidson County Metropolitan Government was held to be an officer in that case.
In Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. Ct. App. 1990), the city recorder was held to be an officer. There the recorder argued that he was an “employee,” entitled to the protection of the town’s personnel policies regarding termination. In rejecting that claim, the Court simply pointed to a provision of the charter under which the board of mayor and aldermen appointed the recorder and which prescribed his duties: “Section 3.04. Town recorder--appointment and duties. The board shall appoint a town recorder who shall have the following powers and duties as may be provided by ordinance not inconsistent with this Charter: ...” On the meager ground, the Court concluded that:
Plaintiff argues that he is an employee and therefore entitled to the benefit of the town’s employee personnel policies established by ordinance. We cannot agree with this argument. The Bruceton Charter plainly provides for the appointment of the town recorder by the Board of Aldermen. In Sitton v. Fulton, 566 S.W.2d 887 (Tenn. App. 1978), this Court, quoting from 67 C.J.S. Officers, Section 2, said:
“Public officer” has been defined as an incumbent of a public office; an individual who has been appointed in a manner prescribed by law, and who has a designation of title given him by law, and who exercises the functions concerning the public assigned to him by law. 566 S.W.2d at 889. It is clear that Gamblin is a public officer and not an employee. [At 693.]
The city charter, Section 5, provides that, “All employees or appointed officials of the City, including, but not limited to, the Chief of Police, the City Bookkeeper, the City Attorney, the Judicial Commissioner of the City, and the Secretary -Treasurer of the City shall be employed by a majority vote of the Aldermen of said City....” The same section of the Charter also provides that certain named aldermen of the city take an oath, then, provides that, “ and all subsequent elected or employed officials shall take the same oath...” An oath of office is one of the indices for determining whether a person is an employee or an officer. [Ross v. Fleming, 364 S.W.2d 892 (1963).]
The city charter, Section 16, also provides:
That the City Attorney shall possess the following qualifications and his duties shall be as follows: [There follows a list of one qualification (licensed attorney) and three groups of duties: to represent the city in all suits in which the city is involved; to give legal advice and opinions, and attend meetings of the board upon request; draft, examine and pass upon the legality of ordinances, and perform such other duties consistent with his “office.”
It appears highly probable, if not certain, that the city attorney is an officer.
However, it is questionable that a city attorney is a “State” officer within the meaning of Article VI, Section 7, of the Tennessee Constitution, notwithstanding Tennessee Attorney General’s Opinion 78-348. There are no cases directly on that question, but the question of whether municipal officers are lucrative “State” officers under Article II, Section 26, of the Tennessee Constitution, has arisen several times. Article II, Section 26, provides that:
No Judge of any Court of law or equity, Secretary of State, Attorney General, Register, Clerk of any court of Record, or person holding any office under authority of the United States, shall have a seat in the General Assembly; nor shall any person in this State hold more than one lucrative office at the same time....
Both county officers and municipal offices have been held not to be “State” offices within the meaning of that provision. [Boswell v. Powell, 43 S.W.2d 495 (Tenn. 1931); Phillips v. West, 213 S.W.2d 3 (Tenn. 1948); Wallace v. Grubb, 289 S.W. 530 (Tenn. 1926).] A constable who held the office of deputy sheriff is an exception. [State ex rel. v. Slagle, 115 Tenn. 336 1905).]
In Phillips, the Court said:
The office of Superintendent of County Schools is a county office, while that of a State Senator is a State office. The question stated is, therefore, foreclosed by the decision of this Court in Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495, wherein it is held:
“The constitutional provision above quoted is against any person holding more than one lucrative office ‘in this state.’ It has not been supposed in this jurisdiction that a municipal office was reached by the provision so as to render the tenure of such an office incompatible with the tenure of a State office.” [At 6.]
It remains to be seen whether the Court would see things differently where the constitutional provision is Article VI, Section 7, and the offices in question are general sessions judge and city attorney, but it seems to me to stretch that provision too much to argue that the latter is an office of trust under the “State” within its meaning.
Rule 10, Cannon 4
Rules of the Supreme Court, Rule 10, Cannon 4C(2), says that:
A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge may, however, represent a county, state or locality on ceremonial occasions or in connection with historical, educational, or cultural activities.
The Commentary on Section 4C(2) says that:
Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system, or administration of justice as authorized by Section 4C(3). The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.
A city attorney is concerned with the issues of fact and policy in matters that involve his city, and those matters do not involve the improvement of the law, the legal system or the administration of justice; they involve the direct legal interest of his city.
Both Section 4C(2) and its Commentary suggest that a judge is prohibited from accepting any governmental position, except a position authorized by Section 4C(3), even if the judge is a part-time judge, and the governmental position is a part-time position. The policy considerations cited in the Commentary--“demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial”--appear to apply to the positions a judge is authorized to accept under 4C(3). Moreover, Section 4C(2) declares the limit on the representation of a state or local government: “on ceremonial occasions or in connection with historical, educational, or cultural activities.” The prohibition on a judge functioning in a governmental office, except an office authorized under Section 4C(3), appears to be total, even if those policy considerations do not come into play in that office.
Section 4C(3) provides that:
A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice or an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.
The Commentary to Section 4C(3) declares that, “Section 4C(3) does not apply to a judge’s service in a governmental position unconnected with the improvement of the law, the legal system, or the administration of justice; see Section 4C(2). For that reason, Section 4C(3) offers no ground for a part-time general sessions judge to be even a part-time city attorney.
In my opinion:
1. Article VI, Section 7, of the Tennessee Constitution does not appear to prohibit a part-time city attorney from serving as a part-time sessions judge.
2. Rule 10, Cannon 4, of the Rules of the Supreme Court, does appear to prohibit a part time city attorney from serving as a part-time sessions judge.
Sidney D. Hemsley
Senior Law Consultant