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Original Author: Hemsley, Sid
Date of Material: 05/20/1999

City attorney
City council--Procedure

Several Questions about City Council Procedures

Reviewed Date: 07/30/2021
MTAS was asked several questions about city council procedures.

1. Can the mayor have a lawsuit filed without the knowledge of the city council?

The answer is no for two reasons, unless the board has made a prior delegation to the mayor of its authority to authorize the filing of a lawsuit.

A. The city attorney has no independent authority to file lawsuits in the city’s name.

B. The mayor has no independent authority to direct the city attorney to file lawsuits in the city’s name. However, the city council could delegate to the mayor its authority to direct the city attorney to file such lawsuits.

It is said in 3 McQuillin, Municipal Corporations, section 12.52, that:

The scope and precise nature of a city attorney’s duties must be determined by the local laws applicable. Sometimes the city attorney must be directed or requested to handle the matter in question by the mayor or by the city council, or another officer or a head of a department, and sometimes the legal officer is vested with discretionary powers. Although the power to control litigation on behalf of or in the interest of a municipal corporation rests solely with the governing body, the latter need not act when the activity involved is a duty imposed upon the city attorney by legislative enactment. Thus, where he is authorized to conduct all law business in which the city or any of its departments shall be interested, it has been said that he or she has the same powers with regard to the city as a private attorney has with regard to a private client. As a matter of law, a city attorney does not have the independent authority to enter into any type of consent judgment or settlement without prior approval of the appropriate city authorities. [Emphasis is mine]

It is said in Ryne, Charles S., Municipal Attorney Law, 44-45, that, "The city attorney of a municipality generally has the power to institute court actions and to defend the municipality against adverse legal proceedings." However, all the cases cited in support of that generalization make it clear that it applies only to the extent that there is a statute or charter provision giving such authority to the city attorney.

The question of whether the city attorney could settle a lawsuit without the permission of the city council arose in City of Atlanta v. Black, 457 S.E.2d 551 (Ga. 1995). There an ordinance gave the city attorney authority to settle claims and lawsuits up to $500, and required the approval of the city council for claims and suits in excess of that amount. The Court held that the city attorney had no authority to bind the city to a settlement that violated the ordinance, but it did so in language that applies to the authority of the city attorney in general:

Powers of all public offices are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any public officer done in the exercise of an unconferred power. [citation omitted.].... This Court has applied that principle for over a century. Penitentiary Co. v. Gordon, 85 Ga. 159, 171, 11 S.W. 584 (1890). See, e.g., City of Warner Robbins v. Rushing, 259 Ga. 348, 381 S.W.2d 38 (1969) (city not bound by utility rate structure set by mayor); City of Atlanta v. Bull, 161 Ga. App. 648, 288 S.W.3d 335 (1982) (City of Atlanta not bound by court reporting services contract approved by assistant city solicitor who was chairman of committee formed to investigate the City’s use of such services). [Citations omitted]

Public sector attorneys, such as the assistant city attorneys in this case, are public officers. [Citations omitted] ‘All persons dealing with a public officer must at their peril ascertain the extent of his authority.’ [Emphasis the court’s] [Citation omitted] It is the duty of any person dealing with [a] municipality in a contractual relations to see that there has been a compliance with the mandatory provisions of the law limiting and prescribing its powers [,] [At 552]

The Court distinguished between the authority of private attorneys to negotiate settlements for their clients, and the power of public attorneys to negotiate settlements for their governments. The former’s authority was plenary, the latter’s authority was limited, said the Court. What could a public sector attorney do without the permission of his government?

This Court is not called upon in this case to draw a sharp distinction between incidental matters which a municipality, as other clients, in the handling of a lawsuit must [necessarily] leave to the discretion of its attorney, guided by such informal counsel as personal contact may supply, and matters more importantly affecting the rights of the client and the objectives of the suit. [Citation omitted] However, to the extent the authority of an attorney conflicts with the defined authority of the attorney-as-public-officer, the authority of the public officer must prevail. Hence, we conclude that the law remains that the authority of public sector attorneys, as with all other public officers, must be deemed limited by the laws that define and prescribe their authority and that it is the duty of parties dealing with those public officers who are public sector attorneys to determine that there has been compliance with all laws limiting and prescribing their powers. [At 553]

The law is similar with respect to all public officers in Tennessee; they derive their powers from charter or statute, and they are limited to that power. [Knox County ex rel. Kessel v. Knox County Personnel Board, 753 S.W.2d 357 (Tenn. Ct. App. 1988); In re Kelley, 352 S.W.2d 709 (1961); State v. First State Bank, 124 S.W.2d 726 (1938).]

There is no general statute in Tennessee governing the duties of city attorneys. The City Charter is also unusual in that it does not mention a city attorney, let alone define his duties and powers. Indeed, it is quite likely that the position of city attorney does not even rise to the level of a public officer. In Wise v. Knoxville, 250 S.W.2d 29 (1952), a police officer was held not to be a public officer. In reaching that conclusion, the Court defined the term "officer":

An ‘officer’ when used in the sense of one who holds an ‘office’ which entitles him to the salary for the entire term carries with it the idea of tenure for a definite duration, definite emoluments and definite duties which are fixed by statute.

Ross v. Fleming, 364 S.W.2d 892 (1963), citing Glass, held that a county attorney was an officer. That case also drew from the Court the definition of an "officer":

The line between the public office and public employment is sometimes not too clearly marked by judicial decisions. One of the criteria of public office is the right of the officer to claim the emolument of said office attached to it by law. Another one of the criteria of public office is the oath required by law of the public officials, ... another the bond required by law of certain public officials. But in determining the question of whether or not his Act under consideration creates an office or employment it is not necessary that all criteria be present, however, it has been held on good authority that tenure, oath, bond, official designation, compensation and dignity of position may be considered with many other things.

Sitton v. Fulton, 566 S.W.2d 885 (1978), also held that the Director of Law in Nashville-Davidson County was an officer, reasoning that:

‘Public officer’ has been defined as an incumbent to 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 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 Officers and Employees, Sec. 10 ‘[a] public office embraces the idea of tenure, duration and continuity, and the duties therewith are generally continuing and permanent.’

Sitton appeared in Gamblin v. Town of Bruceton, 803 S.W.2d 690 (1990). There the town recorder claimed that he was an "employee," and was entitled to the protection of the town’s personnel policies restricting termination. In rejecting that claim, the Court simply pointed to a provision of the charter which provided for the appointment of the recorder by the board of mayor and aldermen, and which prescribed his duties, and 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... [Here the Court sites the first paragraph of the Sitton definition of a "public officer," cited above.]

That was enough to make the recorder an officer.

But the position of your city attorney meets none of the standards for an "officer" within the meaning of Wise, Glass, Ross, Sitton, Gamblin, and other cases. As pointed out above, that position is not even mentioned in the charter. If your city attorney is an employee rather than an officer, it can be safely said that he has even less authority than most city attorneys to exercise his discretion in filing and managing lawsuits. For that reason, the right of your city attorney to file a lawsuit in the city’s name depends entirely upon the permission of the city council.

Nothing in the City Charter gives the mayor the authority to authorize the filing of a lawsuit in the city’s name. It is the law in Tennessee that the mayor has those powers, and only those powers expressly granted to him in the city charter or in other statutes. [Weil, Roth & Co. v. Mayor and Aldermen of Newbern, 148 S.W. 680 (1912); Reeder v. Trotter, 215 S.W. 400 (1919); Anderson v. Town of Gainesboro, 17 TAM 12-27 (1992)] In fact, under Section 20 of that charter, the mayor’s power is limited to presiding at meetings of the council, voting for "elections" of officers of the town and in cases of tie votes, approving and signing ordinances and resolutions, vetoing ordinances and resolutions, "taking care that all the ordinances of the town are enforced, respected and observed within town limits, "calling special meetings, and performing other duties the city council imposes on him. The mayor is what is commonly called a "weak" mayor; he has few legislative powers, and virtually no administrative powers.

But there is probably no reason the city council could not delegate to the mayor its authority to authorize the city attorney to file a lawsuit in the city’s name. Section 20 of the charter gives the mayor the duty to "perform all such other duties as the Town Council may by ordinance or other wise impose upon him."

2. Did the city legally hire a certain police officer, and if it did not, are his arrests and other actions as a police officer legal?

If the city has treated the officer as an employee in general, and as a police officer in particular, he is undoubtedly an employee for the purposes of the legitimacy of his arrests and other actions as a police officer. I suspect there is no question but what the city considered, and treated, him as an employee.

It is possible that the city did not take the formal action required by the city’s personnel policies to "hire" him. The minutes of the city council meeting reflect that, "The Chief recommended, and motion by a councilmember and second by a councilmember to hire the Patrolman on a full time basis for the next 90 days." However, that language indicates that he was already a patrolman at that time, and may have been a probationary employee as provided in Section 4-201(12) of the Municipal Code. But whatever his status on November 4, 1997, he had served far beyond the 90 day probationary period by the time he was promoted on May 6, 1999. It may be true that the city council took no formal action to officially hire him as a full time employee either after his initial hiring as a police officer, or after his hiring on November 4, 1997, for the "next 90 days," but if that is so, that failing on the part of the city council, however lamentable, would not affect his employment status or his promotion. But the failure of a city to follow its own personnel policies can come back to haunt it when such policies are applied to future employees and employee actions.

3. Are the elected members of the city council public officials, employees, or both?

The elected members of the city council are clearly public officers. The cases to which I pointed in the analysis of Question 1 entirely support that conclusion.

4. How should city council deal with verbal interjections by the recorder without being asked?

Robert’s Rules of Order, Revised (RROR) prescribes the procedure for the operation of city council meetings, and the city has adopted RROR to govern such meetings. If the city council has a problem with unwanted or unasked interjections, the presiding officer can stop such interjections. If the presiding officer will not act, there is a procedure for a council member to ask the city council to override the presiding officer, but it is cumbersome and never works where the council member asking the city council to override the presiding officer does not have the support of most of the city council.

5. May some public officials censure what another public official wants to discuss in an open public meeting when it concerns taxpayers and their money?

One of the purposes of public meetings is to permit each public official to "censure" what other public officials say. Some city councils have adopted rules of procedure limiting the kinds of verbal attacks that are permitted by and upon city council members both by other council members and by the publ ic. However, such rules are extremely difficult to enforce and are themselves subject to abuse.

6. I have referred this question to the MTAS general consultant for your territory.

7. Under the charter if the mayor or chief of police fails or refuses to follow any ordinance or motion made by the city council, what should be done?

I cannot answer this question because I do not know the facts behind it. There are various legal remedies for the failure of the mayor or police chief, or other public officers, to follow the city council’s policies. Those remedies may be collective or individual depending upon the issue in question.

8. If a public official is verbally attacked and/or threatened by a department head, what action should be taken by the other public officials?

I cannot answer this question because I do not know the facts behind it. Generally, public employees have broad rights of free speech. Those rights are limited under certain circumstances, but what particular circumstances limit them are extremely fact-dependent.

9. Does the mayor have the power to authorize city employees to have benefits, such as cellular phones at the town’s expense?

The mayor has virtually no administrative authority; he cannot independently authorize the expenditure of municipal funds for any purpose. However, it is within the authority of the city council to delegate to the mayor its administrative authority. If the delegation covers the expenditure at issue, the expenditure is probably legal. Such delegations should be reflected in formal action of the city council.

10. If "they" allow a city employee who is not considered a police officer to drive a police car and pull over citizens, what liability could the town face?

I am not sure who "they" is, and I do not know the facts behind the question. Generally, city employees who are not police officers should not drive police cars, except for vehicle maintenance and management purposes. Likewise, it would be extremely foolish for any city to allow employees who are not police officers to make traffic stops of any kind. The liability problems inherent in such conduct are so well-known that it is not necessary to outline it.

11. May elected town council members delegate any of their power to the mayor or any department head?

The answer to that question is generally yes, and is reflected in the answers to several of the above questions.

12. What action does a public official take if there is evidence the charter and the municipal code are being violated?

Once again, such a question is intensely fact-dependent. What remedies a public official has in such cases may be individual or collective, and depend upon the circumstances.
13. Is a public official covered under the new Whistle Blower law?

The so-called "Whistle-blower law" is located at Tennessee Code Annotated, section 50-1-304. It protects both private and public employees from dismissal for refusing to participate in, or for refusing to remain silent about, illegal activities. Because elected officials are not "employees" within the meaning of that statute, they do not fall within its protection. However, the absence of protection for elected public officers under that law has little or no impact upon them because they are elected to a term of office and are not subject to removal for whistle-blowing activities in any event.

14. What action should we take if the mayor and/or chief of police give city employees directives against the vote of the town council?

The answer depends upon what directives the mayor and/or chief of police are giving against the policies of the city council. Generally, when such events occur, the city council must act in concert to vindicate its policies. What remedies it elects to exercise to vindicate its policies depends upon the seriousness with which it views the directives at issue.