March 12, 2010
Dear City Attorney:
You have the following question, which I have boiled down from several that arose from a certain set of facts set out below: Who is the mayor of your City?
Fortunately, the answer to that question is fairly simple in spite of the confused facts that generated it: The resignation of the Mayor, not having been accepted by the board of mayor and aldermen remains the mayor, even if he does not realize that is so.
The facts behind that question indicate that about a week ago at a special-called meeting, the Mayor resigned, effective at the end of that special-called meeting. A couple of days later, the Vice-Mayor called a special meeting that he also conducted, and at which some city business was conducted. One of those items that apparently was on the agenda of that meeting related to the appointment of a new mayor. The Vice-Mayor, upon being told by one of the aldermen that because he had acted as the mayor during that meeting, was now the mayor, also resigned the office of mayor, and declared that he would remain an alderman.
I cannot vouch for the complete accuracy of all those facts, but there appears to be agreement on this salient fact: the resignation of the mayor at the first and subsequent meeting of the board was not accepted. That is a critical fact because there was no vacancy in the office of mayor to be filled by the vice-mayor. In addition, as will be shown below, it points to the proposition that the vice-mayor acted properly in calling and conducting the second special meeting, and that his resignation from the office of mayor (apparently on the mistaken assumption that he might be or was the mayor), was meaningless because the office of mayor was not vacant.
Tennessee follows the general rule that a resignation of a public officer is not effective until it is accepted by proper authority, and that the proper authority is the authority which has the power to fill the vacancy. In State ex. Rel. v. Bush, Sheriff, 141 Tenn. 229 (1918), it was argued that an officeholder could resign from office pending an ouster suit against him. In declaring that an officer could not resign that easily, the Court said that:
This argument is ill founded. It assumes that such officer's resignation will be accepted by the authority authorized to select his successor. We cannot suppose that a resignation would be accepted under such circumstances. It is well settled that resignation is not complete until accepted by competent authority. [Emphasis is mine] [At 236]
It seems clear from the facts related to me that no acceptance of that resignation took place at either of those meetings of the board. For that reason, the Mayor could, if he chose, withdraw the resignation and continue to serve as mayor.
That brings us to the question of the status of the Vice-Mayor with respect to his call of the special meeting, his conduct of the meeting, and his “resignation” from the office of mayor.
Article III, Section 7 of the City charter says this about the power of the vice-mayor, and of his right to reject the office of mayor:
At the first meeting in July of the board following the general town election or as soon thereafter as possible, the board shall choose from its membership a vice-Mayor to serve as Mayor in the Mayor’s absence or disability. Any vacancy in the office of Mayor shall be filled by the Vice-Mayor. However, should the Vice-Mayor decline to fill the office of Mayor, the board may select another of its members to fill the vacancy. In either case, the person appointed to fill the vacant office of Mayor shall be appointed for the unexpired portion of the Mayor’s term.
Under that provision, the vice-mayor had the power to “serve as Mayor in the Mayor’s absence or disability.” The mayor's resignation not having been accepted by the board, was “absent” for the purposes of the charter, and the vice-mayor had the right to exercise the mayor’s power to call special meetings under Article III, Section 5 of the city’s charter, and the right to preside at meetings of the board under Article V, Section 1 of the city’s charter.
It may well be that the vice-mayor was operating under the mistaken belief that there was a vacancy in the office of mayor, or even that he was the mayor, either when he called the special meeting and or at the point during the meeting when an alderman told him that because he had acted as the mayor he was the mayor. But as I have pointed out above, there was no vacancy in the office of the mayor at those times; for that reason it does not matter what the Vice-Mayor believed on that issue.
The same is true with respect to the Vice-Mayor’s “resignation.” Again, there was no vacancy in the office of mayor for him to have filled; therefore, his “resignation” from that office was legally meaningless.
As I have also pointed out above, under Article III, Section 7 of the city’s charter, the vice-mayor has the right to decline the office of mayor. At such time as there is a vacancy in the office of mayor, then, he is entitled to refuse to accept it and to keep his position as alderman. There is nothing in the City Charter, or any general state law, that remotely suggests that if the vice-mayor declines to accept the office of mayor, he also loses his office of alderman. If the vice-mayor declines to accept the office of mayor, the board has the authority to appoint another member of the board to the position of mayor for the remaining term of the former mayor.
Let me know if I can help you further with this or any other problem.
Sidney D. Hemsley
Senior Law Consultant