Original Author: Hemsley, Sid
Date of Material: 08/21/1996
MTAS was asked whether the mayor can temporarily appoint a city attorney.
You have the following question: Can the mayor temporarily appoint a city attorney? The answer is yes.
Unfortunately, I told one of the members of the board of mayor and aldermen that he could not do so. I gave him that answer because I forgot that a provision of the city's general law mayor-aldermanic charter contains definitions of various words used in the charter, including the word "officer."
The definition of the word "officer" is important because Section 6-3-106(a)(3)(A) of the charter gives the mayor the authority to "make temporary appointments of any officer or department head in the case of sickness, absence or other temporary disability." Ordinarily, the city attorney is not an officer or a department head, unless the city's charter expressly or impliedly makes him so. Nothing in the city's charter makes him an officer, except the definition of "officer, " which, as I said, I forgot was there. Section 6-1-101 (the first section in the charter) says, "'Officer' means the mayor, aldermen, city attorney and city judge...." [Emphasis is mine.]
Note that Section 6-3-106(a)(3)(A) provides that the mayor’s temporary power of appointment extends only to cases of "sickness, absence or other temporary disability" of officers and department heads. On first glance, that provision is not triggered if an officer or department head has been fired, resigned, died or has otherwise permanently left office or employment. However, note also that Section 6-3-106(a)(3)(B) provides that, "The board may confirm the mayor’s appointment or otherwise appoint a person to fill the vacant office, unless this duty has been delegated as authorized in this charter." [Emphasis is mine.] Read together, Sections 6-3-106(a)(3)(A) and 6-3-106(a)(3)(B) apparently contemplate that the phrase "sickness, absence or other temporary disability" in Section 6-3-106(a)(3)(A) includes vacancies produced by those events.
I am certainly sorry for whatever trouble my first interpretation of the charter may have caused you and the alderman in question.
Sidney D. Hemsley
Senior Law Consultant