November 13, 2009
Page 1
November 13, 2009
Dear Alderman:
You have the following question: Can the mayor temporarily move personnel from the parks and
recreation department to the public works department without the prior approval of the board of
mayor and aldermen?
Under the City Charter, the mayor has the power of “general supervision of all officers of the
municipality and see that all laws and ordinances are enforced.” The question of what constitutes
the power of “general supervision” in that context has never been litigated in Tennessee, but it
has been litigated in a number of other states. While the cases on that question are not entirely
consistent, most of them support the conclusion that the mayor does not appear to have any
authority to move, temporarily or otherwise, employees in question, unless she has been
delegated that authority by the city’s governing body. An argument can be made that the mayor
has been delegated that authority under Section 2-101 of the Municipal Code, but I think that
argument reaches too far.
The City is chartered under Private Acts 1903, Chapter 563, as amended. Under that charter, the
city has a “weak mayor” form or government. It is sometimes difficult to determine what
administrative powers the mayor has under a weak mayor form of government. Your city is no
exception.
Mayors’ Powers in Tennessee
In Tennessee, a mayor is a part of the legislative and 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.] Speaking of the Tennessee mayor’s
legislative and administrative powers, 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, declare that a mayor 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:
November 13, 2009
Page 2
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 any 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]
As indicated above, the Cate v. Martin position appears to be stricter than the one contained in
Dillard on Municipal Corporations. Cate v. Martin stands for the proposition that even if the
legislature makes the mayor a member of the board of mayor and aldermen, it does so only to the
extent of the legislative functions expressly assigned to him by statute; he derives no implied
power to vote by virtue of being a member of the board.
I can find only one case subsequent to Reeder v. Trotter that has addressed the question of
whether the mayor has a right to vote where the charter did not expressly give him that right. In
the unreported case of Anderson v. Town of Gainesboro, 1992 WL 33893 (Tenn. Ct. App.), the
November 13, 2009
Page 3
chancellor held that the mayor derived an implied right to vote for all purposes from the fact that:
the charter provided that: there should be a mayor and three aldermen; the charter referred to the
governing body as the mayor and board of aldermen or as the board of mayor and aldermen; and
the charter made twelve references to the mayor and board of aldermen, and five references to the
board of mayor and aldermen. But the chancellor ordered a rehearing in which he reversed
himself. Relying on Reeder v. Trotter (which had initially escaped him), he held that the mayor
did not have the right to vote, reasoning “that the charter did not expressly authorize the mayor to
vote on any matters except in the case of a tie in the election of Mayor or Alderman.” [At 2] The
Tennessee Court of Appeals upheld the chancellor, declaring Reeder v. Trotter the controlling
case, and quoting the provisions of Dillard on Municipal Corporations and of the New
Hampshire case of Cate v. Martin. That case does not indicate whether the mayor was the
presiding officer, but that appears not to have made any difference. The Court simply reasoned
that:
If the mayor of a city is to be allowed to vote as a member of the board of mayor and aldermen,
he must be given that authority expressly and not by implication. There is nothing in the charter
of the Town of Gainesboro or any amendment thereto which expressly gives the mayor the
authority to vote. [At 3]
In theory, unreported cases bind only the parties to those cases, but the Tennessee courts have
still called those cases “persuasive.” For that reason, Anderson v. Town of Gainesboro is still an
important case.
Mayor’s Powers Under City Charter and Municipal Code
City Charter
From both a legislative and administrative standpoint, most of the powers of the mayor are
contained in Section 4 of the city’s charter:
[T]he duties of the mayor are to wit: He shall by written communication, lay before the board any
information needed, and recommend such measures as he may deem expedient. He shall have a
general supervision of all officers of the municipality and see that all laws and ordinances be
enforced. He may make pro tem. appointments by and with the consent and approval of the
board, to supply the place of ministerial city officers, in case of sickness, absence or other
temporary disability, under such restrictions as the board may direct. He may call special
meetings of the board, and when called he shall state the reason for convening them by message,
and the action of the board shall be limited to said matter and that only. He shall lay before the
board statements of the financial condition of the municipality every three months, which shall
November 13, 2009
Page 4
be published, and special statements, when required by the board. He shall have power to
suspend any city officer for misconduct or dereliction of duty in office, reporting such action,
with his reasons thereof, in writing, to an immediate special meeting of the board. He shall have
all powers of a Justice of the Peace within the municipality for the purpose of keeping the peace
and trying offenses against any ordinance or laws of the state. He shall countersign all warrants
drawn upon the Treasurer by the Recorder or Secretary, and shall sign all contracts to which the
municipality is a party. He shall have veto power over any action of the board, giving his reasons
therefor in writing, but the board may, by a three-fifths of the entire board, pass the same over his
veto; or if he fail to return the same on or before the next regular meeting of the board, he shall
be deemed to have approved the same, and the same shall become a law without further action of
the board, and every law, ordinance, resolution or vote, except on question of adjournment, shall
require the approval of the Mayor before it shall have effect, except as above provided.
Section 10 of the charter also gives the city the power to issue tax anticipation notes, “signed by
the mayor and countersigned by the recorder ....”
There are both legislative and administrative functions assigned to the mayor under Sections 4
and 10, above, but your question concerns only the authority of the mayor to temporarily move
employees of the parks department to the public works department. For that reason, we shall
consider only the administrative powers of the mayor. An analysis of the administrative powers
of the mayor contained in Section 4 of the city charter indicates that the power to temporarily
transfer employees from the parks department to the public works department must rest on the
mayor’s power of “general supervision of all officers of the city....” But note that the mayor’s
power of “general supervising” might be restrained by a reading of all the language contained in
that particular grant of power: “He shall have a general supervision of all the officers of the
municipality and see that all laws and ordinances be enforced.” It may be that the mayor’s power
of general supervision must be connected to the mayor’s seeing that all laws and ordinances be
enforced. If that is so, her power in that respect may be quite narrow. We will look at some cases
that come to that conclusion. But even those that do not make that connection do not generally
support the proposition that a mayor who has the power of “general supervision” can involve
himself in the day-to-day operations of his city.
Municipal Code
The Municipal Code, Title 1, Chapter 2, Section 1, also provides that:
The mayor shall be the chief executive officer of the town, shall have general supervision of all
town affairs, and may require such reports from the officers and employees of the town as he may
reasonably deem necessary to carry out his executive responsibilities.
November 13, 2009
Page 5
On first glance, the authority granted to the mayor in Section 4 of the charter, and in Section 1201 of the city’s municipal code, appear to differ in a significant respects: In Section 4 of the
charter the mayor has “a general supervision of all officers of the municipality and see that all
lows and ordinances be enforced,” while in Section 1-201 of the municipal code he is the “chief
executive officer of the town, [and] shall have general supervision of all town affairs...” But as
will be seen below, most of the cases dealing with mayors and grants of power similar to the
grants in both Section 4 of the City Charter, and Section 2-201 of the Municipal Code are
generally treated the same way.
The City’s Board’s Administrative Powers Can Be
Delegated to Mayor; Doubtful That Has Been Done
It would be simple to end your inquiry here by pointing to the law in Tennessee that municipal
charter provisions prevail over municipal ordinances. But it is also the law in Tennessee that a
municipal governing body can delegate its administrative powers. [See Mayor of Chattanooga v.
Geiger, 81 Tenn. 611 (1884); Whyte v. Mayor of Nashville, 32 Tenn. 364 (1852); City of
Memphis v. Adams, 56 Tenn. 518 (1872); Nashville v. Fisher, 1 Tenn. Cas. 345 (1874);
Rockwood v. C.N.O. & T.P. Ry., 160 Tenn. 32, 22 S.W.2d 237 (1929); Lotspeich v. Morristown,
141 Tenn. 113, 207 S.W.719 (1918).]
It is said in Lotspeich, above, that:
The law has always recognized and emphasized the distinction between instances in which a
discretion must be exercised by the officer or department or governing body in which the
discretion is vested and the performance of merely ministerial duties by subordinates and agents.
Therefore the appointment of agents to carry out the authority of the council is entirely competent
and does not violate the rule ‘delegatus non protest delegare.’ Thus, the council may create
committees or other bodies to investigate given matters, to procure information, to make reports
and recommendations, and not exceed its powers in the matter under consideration, but the
council alone must finally determine the subject committed to its discretion and judgment. [At
721]
It is also said in City of Rockwood, above, citing Geiger, above, that:
It cannot be supposed that the Legislature in giving the Mayor and Aldermen the power
enumerated in their charter intended that they should be held to the personal performance of
every duty imposed. From necessity a municipal, as well as other corporations, must discharge
many of its functions and duties by officers and agents. [At 240] .
November 13, 2009
Page 6
The same case also said that, “The general rule against delegation by municipal bodies does not
forbid the delegation of ministerial, executive, or administrative functions to subordinate
officials.” [At 240]
I can think of no reason that the city’s governing body could not delegate to the mayor its
administrative authority to temporarily move the city’s employees between city departments.
However, I doubt that Section 1-201 of the city’s municipal code accomplishes that delegation. A
Department of Parks and Recreation is established under Title 1, Chapter 11 of the Municipal
Code. That chapter gives the board of mayor and aldermen the authority to “appoint or designate
a properly trained and qualified person to act as director of the department, along with such other
personnel as it deems proper to execute the functions of the department.” [Section 1-1101] It is
the director who is given the authority to “develop and manage recreation programs and
facilities....” [Section 1-1102] It is difficult to see how the mayor’s power of “general supervision
of all officers of the city....” under Section 4 of the city charter, or the mayor’s power to be the
“chief executive officer of the town,” [and] “shall have general supervision of all town affairs...”
intercepts the power given to the parks and recreation director under Title 1, Chapter 11 of the
municipal code to run those functions “along with such other personnel as it deems proper to
execute the functions of the department.”
It has been held many times that an administrative agency is a creature of statute and can
exercise only those powers conferred expressly or impliedly upon it by statute, and that the
exercise of power beyond statutory authority is null and void. [General Portland v. ChattanoogaHamilton County, 560 S.W.2d 910 (1976); Madison Loan & Thrift v. Neff, 648 S.W.2d 655
(Tenn. Ct. App. 1982); Holiday Inns, Inc. v. Olsen, 692 S.W.2d 850 (Tenn. 1985); Southern Ry.
v. Taylor, 812 S.W.2d 577 (Tenn. 1991).]
It is further said in Department of Mental Health v. Allison, 833 S.W.2d 82 (Tenn. App. 1992),
that:
A department or agency of the State created by the legislature cannot by the adoption of rules be
permitted to thwart the will of the legislature. The legislature is elected by the citizens of
Tennessee and as an elected body it speaks for the people on matters of public policy of the state.
Unelected officers of a department or agency cannot adopt rules to circumvent statutes passed by
the legislature. The powers to make the laws of the state are vested in the general assembly and
not in administrative agencies of the state, even when the administrative agency properly
promulgates rules and regulations. [At 85]
Although that case applied to the state, there is no doubt that the same rules apply to subordinate
political subdivisions of the state. It stands for the proposition that in the interpretation and
November 13, 2009
Page 7
application of legislation, the administrative agency cannot make rules and regulations that are
not supported by, or are contrary to, legislation.
Moreover, most of the cases below involving mayor having the “general power of supervision,”
and being the “chief executive officer” does not give the mayor in question the implied power to
step into the operation of city departments, especially where, as in the Municipal Code, the
legislative body of the city has expressly given the director of the parks and recreation department
the power to run that department
What is Meant By Power of “General Supervision”
Threshold Question: Who is an “Officer” Under The City Charter?
Section 4 of the city’s charter gives the mayor “general supervision of all officers of the
municipality....” In the next sentence the mayor is given the power to “make pro tem
appointments by and with the consent and approval of the board, to supply the place of
ministerial city officers.” In the same section the mayor has the “power to suspend any city
officer for misconduct or dereliction of duty in office.....” Section 5(24) provides that the board
can “dismiss at its discretion any officer or agent by them appointed, a two-thirds majority of the
board concurring.” Section 6 of the charter also provides that the board of mayor and aldermen
“shall elect a Recorder and a City Judge, whose terms shall be for two years...... and an
“Assistant City Recorder whose term, duties, compensation, method of employment shall be in
accordance with the provisions of law applicable to the position of recorder”.
Various private acts also establish a Water and Light Commission, an elected (by the board of
mayor and aldermen) Tax Assessor, and a Civil Service Commission governing the police and
fire departments and the Recorder and his office.
It can be argued that the use of the term “officers” in at least some of the above contexts
indicates that it includes employees. But the charter itself appears to distinguish between
employees and officers, and even between kinds of officers (as in “officers” and “ministerial
officers”), indicating the legislature understood the difference between officers and employees. In
the next breath the charter says that “The City of is authorized to have such clerical and
administrative assistance in the Recorder’s Office as may be deeded necessary by the Board of
Mayor and Aldermen....” Section 8 then provides that “the compensation of all officers and
employees shall be fixed by ordinance approved by a majority of the Board of Mayor and
Aldermen.” Here the charter distinguished between those positions .
November 13, 2009
Page 8
A number of provisions of the Municipal Code also recognize a distinction between officers and
employees, although I have been unable to point to what that distinction is anywhere in that code.
It is not always easy to distinguish between an “officer” and an “employee.” A county attorney
in Ross v. Fleming, 364 S.W.2d 892 (1963) and the director of law for the Nashville-Davidson
County Metropolitan Government in Sitton v. Fulton, 566 S.W.2d 887 (1978) were declared to
be officers. In the former case, the Tennessee Supreme Court, citing Glass v. Sloan, 282 S.W.2d
397, said:
In deciding whether a particular employment is an office within the meaning of the Constitution
or statutory provisions, it is necessary that each case be determined by a consideration of the
particular facts and circumstances involved; the intention and subject matter of the enactment,
the nature of the duties, the method by which they are to be executed, the end to be obtained, etc.
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 this Act under consideration creates
an office or employment it is not necessary that all the 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 along with many other things. [At 894]
In the latter case, the Tennessee Court of Appeals, citing 67 C.J.S., § 2 Officers, defined "public
officer" as:
...an incumbent to a public office; an individual who has been appointed to or elected in a manner
prescribed by law, who has a designation or title given him by law, and who exercises functions
concerning the public assigned to him by law. [At 889]
Then citing 63 Am. Jur.2d Public Officers and Employees, § 10, the same Court said: "A public
office embraces the idea of tenure, duration and continuity, and the duties connected therewith
are generally continuing and permanent." [At 889]
It was not necessary that the charter specifically declare the law director to be an “officer,” said
the Court. The charter established the position of law director, prescribed the performance of
certain duties on behalf of the public for a fixed period of time, set salary, etc.
The county attorney and the law director in Ross and Sitton were elected or appointed for a
November 13, 2009
Page 9
definite term. Those cases also involved the question of whether those positions were public
officials within the meaning of Art. 11, § 9 of the Tennessee Constitution prohibiting shortening
of the term of office, or alteration of the salary, of a local government officer by private act.
In Wise v. City of Knoxville, 250 S.W.2d 29 (Tenn. 1952), the Tennessee Supreme Court
considered the question of whether a policeman was an officer or an employee. The policeman
was suspended and terminated, and subsequently reinstated to the position of police officer. He
sued for full back salary as a police officer, claiming that the city was not entitled to deduct the
money he had earned during the period of his suspension and termination. The Court held that
while a public officer would have been entitled to his full salary for the period he had been
wrongfully excluded from office, that rule did not apply to the plaintiff because a policeman was
not a public officer. The Court reasoned that:
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 definite duration, definite emoluments and definite duties which are fixed
by statute. [Citations omitted.]
The charter of the City of Knoxville from beginning to end refers to policemen as employees.
Charter, secs 121, 123 and 124. In these charter provisions, policemen and firemen are referred to
together. Certainly it cannot be said that a fireman is an officer.
If a policeman is injured in the line of duty, he receives employee benefits as a railroad employee
would. If the mayor, who is an officer, is injured in the line of duty, he does not receive employee
benefits in such a manner.
A City Director, under the charter of Knoxville can retire a policeman or any other employee but
cannot retire an official.
The city policeman is paid a salary like a railroad engineer or a brakeman. He must report at a
certain hour and goes off duty at a certain hour. He does the work assigned to him like a secretary
or a nurse at a municipal hospital.
A policeman is not an officer, but a mayor, a sheriff or a judge is an officer. [At 31]
However, in Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990), the Court,
citing the first paragraph of Sitton quoted above, held that an appointed recorder who did not
have a definite term was an officer under the charter. That case indicates that the threshold for
being an officer under a municipal charter is quite low in Tennessee. There the recorder argued
he was an employee covered by the city's personnel policies regulating termination. Citing its
November 13, 2009
Page 10
definition of “officer” in Sitton v. Fulton, the Court rejected that claim, pointing to Section 3.04
of the Bruceton City Charter, which provided that:
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:.... [At 692]
Without even outlining those powers and duties, the Court pointed to Gamblin’s appointment by
the board of mayor and aldermen and declared that, "It is clear that Gamblin is a public officer or
official and not an employee." [At 693]
Although the Court did not outline them, the Bruceton City Charter prescribed the following
duties for the recorder in Gamblin:
(a) To keep and preserve the town seal and all official records not required by law or ordinance to
be filled [filed?] elsewhere.
(b) To attend all meetings of the council and to maintain a journal showing the proceedings of all
such meetings, the councilmen present and absent, each motion considered, the title of each
resolution and ordinance considered, and the vote of each councilman on each question. This
journal shall be open to the public during regular office hours of the town subject to reasonable
restrictions exercised by the town recorder.
(c) To prepare and certify copies of official records in his office....
(d) To serve as head of the Department of Finance.
(e) To serve as town judge if appointed by the council.
(f) To coordinate under the supervision of the mayor, the activities of all administrative divisions
or line departments, serve as special liaison between the Mayor and divisions, departments,
boards,
commissions and other bodies, and perform such administrative and executive duties as may
from time to time be assigned to him by the mayor.
Needless to say, in the City, the mayor and aldermen are officers, as are the city judge and
recorder, and apparently even the assistant recorder, and police chief; all have duties prescribed
by the charter, and most have terms of office. Likewise, the members of the light commission,
civil service commission, and the elected (by the board) are probably officers (although I am not
sure the light commission and the tax assessor still exist). However, I have not undertaken to
determine to what extent, if any, the private act establishing the civil service board changes the
status of the recorder, assistant recorder and police chief.
November 13, 2009
Page 11
The question of who is a “ministerial officer” causes some problems. Section 4 of the City
Charter provides that the mayor “may make pro tem. appointments by and with the consent of the
board, to supply the place of ministerial officers in cases of sickness, absence or other temporary
disability, under such restrictions as the board may direct.”
In City of Memphis v. Shelby County Election Commission, 146 S.W.3d 532 (Tenn. 2004), the
Tennessee Supreme Court held that the county election coordinator and the commission were
“ministerial officers,” on the ground that they had “limited discretion,” and said this about
“ministerial officers:
Black’s Law Dictionary defines a “ministerial officer” as “[o]ne who performs specified legal
duties when the appropriate conditions have been met, but who does not exercise personal
judgment or discretion in performing those duties.” Black’s Law Dictionary 1113 (7th ed. 1999).
A strictly “ministerial duty” is defined as “A duty that is absolute and imperative, requiring
neither the exercise of official discretion or judgement.” Id at 522. [At 535]
But even limited experience in municipal or any government informs one that many
governmental officers perform both ministerial and discretionary duties, and that it is the act in
question that is ministerial or discretionary. That fact appears to be recognized in City of
Memphis v. Shelby County Election Commission, in its reference to the election commission
having “limited discretion,” rather than no discretion. The same point is recognized in Lamb v.
State ex rel. Kisabeth, 338 S.W.2d 854 (1960), in which the Tennessee Supreme Court held that
after a school bond referendum had passed, the county court had a ministerial duty to issue the
bonds, but declared that, “It is a universally recognized rule that mandamus will lie to enforce a
ministerial act or duty and will not lie to control a legislative or discretionary duty.” [At 586]
[Citation omitted by me.] The county court undoubtedly had many legislative and discretionary
duties, and for that reason it would have been misleading to describe the members of that body as
“ministerial officers,” even though their issuance of bonds in that case was a ministerial duty.
The last sentence of 63 Am.Jur.2d Public Officers and Employees, § 21 seems to help clear up
the “mystery” of who are “ministerial officers. “The word ‘ministerial’ is frequently used as
synonymous with ‘administrative,’ and therefore an administrative officer may be classified as a
ministerial officer and vice versa.” It cites for support State v. Ohio, 184 N.E.2d 921 (Ohio App.
2nd Dist. 1961). There it is said that:
The powers of government are divided among three departments, the legislative, the executive
and the judicial. The officers who exercise such powers are classified as executive, legislative
and judicial officers. 42 American Jurisprudence, 898, Section 24; 44 Ohio Jurisprudence (2d),
November 13, 2009
Page 12
508, Section 20. In addition to these three classes of public officers, the law recognizes a fourth
classification known as ministerial officers.
* * * They are sometimes called executive officers, sometimes administrative and sometimes
ministerial, and with slight shades of distinction. What characterizes a ministerial officer is that
he has no power to judge the matter to be done, and usually must obey some superior. His duties,
in other words are of a ministerial character. And a ministerial act may be defined to be one
which a person performs in a given state of facts, in a prescribed manner, in obedience to the
mandate or legal authority, without regard to or the exercise of his own judgment upon the
propriety of the act being done. There is scarcely a ministerial officer who does not, in the
performance of some act required to be done, exercise a discretion quasi-judicial in nature,
regarding which the act itself cannot rightly be called ministerial. There is a marked distinction
between a ministerial act or function when considered as an independent transaction, and the
general nature of the office and the functions to be performed therein, which, when considered
together make the incumbent a ministerial officer. Whether, therefore, a person is or is not a
ministerial officer depends not so much on the character of the particular act which he may be
called upon to perform, or whether he exercises a judgement or discretion with reference to such
act, as upon the general nature and scope of the duties devolving upon him. If these are of a
ministerial character, then the person charged is undoubtedly a ministerial officer. [At 923]
The court then declared that:
‘An administrative officer is sometimes classed as a ministerial officer and vice versa. The world
‘ministerial’ is not infrequently used as anonymous with ‘administrative,’ and it seems that the
two words are so closely allied in meaning that they may be employed interchangeably [sic.]
Administrative officers may be regarded as in the nature of a subdivision of that class of officers
which in a general way belongs to the executive branch of the government.’ 42 American
Jurisprudence, 900, Section 29. [At 923]
By that standard, it seems likely that most, if not all, the city’s administrative officers fall within
the “ministerial officer” category. There are few, if any, such officers who are not required to
respond to a superior and few, if any, who, when their positions are looked at closely, are not
bound by a generally elaborate set of rules and regulations in statutes and case law, that bind
them to certain conduct similar to the way the members of the election commission were bound
in City of Memphis v. Shelby County Election Commission, above. Of course, it is clear that the
question of whether a particular act of a ministerial officer is a ministerial or discretionary act
depends upon the character of the act itself.
One purpose of having gone through the exercise of determining who is an officer under the City
November 13, 2009
Page 13
Charter is to help come to a conclusion on which persons in the city government of the City are
the officers over which the mayor has “general supervision....” It is arguable that the director of
the parks and recreation department is not an officer over whom the mayor has the power of
general supervision. He may qualify as a “ministerial officer, “ over whom the mayor has the
right of temporary appointment, but I doubt that makes him an “officer for the purposes of
general supervision.
There is another reason for having gone through that exercise: it seems equally clear that the
aldermen of the city are in a special category of officers, they being the legislative body. There is
obviously no way the mayor can “supervise” the board, except as some of the cases below
declare, to point out problems in the administration of the city.
To State Boards
As I indicated above, the cases interpreting the meaning of the power of “general supervision”
with respect to public officers and entities are not entirely consistent. Some of them involving the
grant of general supervision to boards and similar entities interpret that phrase more broadly than
do the cases involving such grants of power to mayors. Great Northern Ry. Co. v. Snohomish
County, 93 P. 924 (Wash. 1908), the Court asked and answered the question of what powers
were contemplated in the state board of tax commissioner’s powers of “general supervision” over
assessors and county boards of equalization:
What is meant by “general supervision”? Counsel for respondents contend that it means to confer
with, to advise, and that the board acts in an advisory capacity only. We cannot believe that the
Legislature went through the idle formality of creating a board thus impotent. Defining the term
“general supervision” in Vantongeren v. Hefferman, 5 Dak. 180, 38 N.W. 52, the Court said:
“The Secretary of the Interior, and under his direction, the Commissioner of the General Land
Office, has a general ‘supervision over all public business relating to the public lands.’ What is
meant by ‘supervision’? Webster says supervision means ‘to oversee for direction; to
superintend; to inspect; as to supervise the press for correction.’ And, used in its general and
accepted meaning, the Secretary has the power to oversee all the acts of the local officers for
their direction, or, as illustrated by Mr. Webster, he has the power to supervise their acts for the
purpose of correcting the same; and the same power is exercised by the Commissioner under the
Secretary of the Interior.” It is clear, then, that a fair construction of the statute gives the
Secretary of the Interior, and, under his direction, the Commissioner of the General Land Office,
the power to review all the acts of the local officers, and to correct, or direct a correction of, any
errors committed by them. Any less power than this would make the ‘supervision’ an idle act–a
mere overlooking without power of correction or suggestion. Defining the like term in State v.
November 13, 2009
Page 14
F.E. & M. V.R.R. Co., 22 Neb. 313, 35 N.W. 118, the court said: “Webster defines the word
‘supervision’ to be the ‘act of overseeing; inspection, superintending.’ The board therefore is
clothed with the power of overseeing, inspecting, and superintending the railways within the
state, for the purpose of carrying into effect the provisions of this act, and they are clothed with
the power to prevent unjust discrimination against either persons or places.” It seems to us that
the term “general supervision” is correctly defined in these cases. Certainly a person or officer
who can only advise or suggest to another has no general supervision over him, his acts or his
conduct....[At 927.]
The Kansas Supreme Court in State ex rel. Miller v. Board of Ed. of U. Sch. D. No. 398, 511
P.2d 705 (Kan. 1973) puzzled over the meaning of a Kansas statute that gave the state board of
education the power of “general supervision” over local school boards. First, it declared:
We find little legal authority to assist us in determining what is comprised within the term
“supervision.” In common parlance we suppose the term would mean to oversee, to direct, to
inspect the performance of, to superintend. (See Webster’s International Dictionary, Third
Edition; American Heritage Dictionary.) It is difficult to be exact as to the legal meaning of the
term, for much depends on the context in which it is set out.
In Continental Casualty Company v. Borthwick, 177 So.2d 687, 689 (Fla. App.), the court stated:
“A reference to recognized lexicographies reveals that the word ‘supervision’ is capable of
definition–that is, by the use of general comprehensive words. For example, in Webster’s
Collegiate Dictionary, the definition of supervision is two-fold: namely, as ‘Act of supervising’
and as ‘The direction and critical evaluation of instruction, esp. in public schools.’”
In Commonwealth of Pennsylvania v. Brown, 260 F. Supp. 323, 348, the federal court speaks of
supervision as importing regulation. [At 712-13.]
Here the Court turns to, and cites in full, the definition of “general supervision” in Great
Northern, above, declaring that case “Perhaps the most helpful in getting at the problem.” [At
713.] Applying those definitions, the Court makes an important conclusion about the relative
authority of the state board of education and local boards of education:
Considering the frame of reference in which the term [general supervision] appears both in the
constitution and the statutes, we believe “supervision” means something more than to advise but
something less than to control. The board of regents has such control over institutions of higher
learning as the legislature shall ordain, but not so the board of education over public schools; its
authority is to supervise. While the line of demarcation lies somewhere between advise and
control, we cannot draw the line with fine precision at this point; we merely conclude that the
November 13, 2009
Page 15
regulation which is the one of contention between the state and district boards in this case falls
within the supervisory power of the state board of education. [At 713]
A provision of the Utah Constitution provides that “The general control and supervising of
public education system shall be vested in the State Board of Education....” In Utah School
Boards Association v. Utah State Board of Education, 17 P.2d 1125 (2001), the School Boards
Association argued that it meant that the State Board of Education could be granted authority by
the Utah Legislature to “manage the public education system uniformly and universally as a
whole.” [At 1130] The courts disagreed, declaring that:
.... the term “general control and supervising” is commonly understood to mean the direction and
management of all aspects of an operation or business....In addition, this court clearly understood
general control and supervision to apply to all aspects of an operation when it held the term is
“plenary.” [Citation omitted by me.’....Analogously, because general control applies to all aspects
of an operation or business, a manager or supervisor exercising general control assumes liability
for the actions of an employee. [Citations omitted by me.] [At 1130]
To Mayors
But the heavy weight of authority seems to be that a statute denominating the mayor the “chief
executive of the city,” or granting him the power of “general supervision” over officers or
employees will be more narrowly construed, and generally does not bestow upon the mayor the
power to run the day-to-day operations of the city. Note that in the Kansas case of Miller, above,
the court concluded that in connection with the state board of educations power of general
Supervision over local school meant “something more than to advise but something less than to
control.” That was about the best the court could do. But we will see that in the Kansas case of
State v. McCombs, 262 P. 579 (Kan. 1928), below, which involved the question of a mayor’s
power of “general supervision over the affairs of the city,” the court even more narrowly
construed that power of the mayor. Indeed, the outcome of the cases involving the definitions of
the mayor’s power of “general supervision,” “chief executive officer of the city” and similar
terms are lopsided. Virtually all of them declare that a mayor who has those powers does not
have the authority to interfere in the day-to-day operations of the municipality or to otherwise
intercept the city governing body’s power.
A significant exception to that general rule is seen in Fredrickson v. Albertsen, 161 N.W.2d 712
(Neb. 1968). In that case, a statute provided that the mayor had “the superintendency and control
of all the officers and affairs of the city,” and the chief of police had “the immediate
superintendency of the police.” [At 713] The mayor ordered the chief of police to assign a
lieutenant to the midnight shift to insure that there were ranking police officers on duty on each
shift. The chief of police refused to obey the order and the mayor “ordered” him fired for
November 13, 2009
Page 16
insubordination. The civil service commission affirmed the discharge. The question was whether
the mayor exceeded his authority in making the order the chief of police refused to obey.
The Court held that the mayor was impliedly within his authority to issue the order, reasoning
that, “The city’s civil service commission possesses broad discretion in ruling on orders of
discharge by appointing powers.” The only issue, said the Court was whether the commission’s
order was made in good faith for cause, and concluded that it was because, “Assignments of
policemen with officer rank to scheduled periods of duty in a department that numbers only three
officers may express major policy.” [At 713]
In this case, the mayor had more than the power of general supervision over the affairs of the
city; the statute in question expressly gave him the power of “the superintendency and control of
all the officers and affairs of the city.”
Similarly, in City of Brighton v. Gibson , 501 So.2d 1239 (Ala. Civ. App. 1987), held that the
mayor has the authority to hire a personal secretary without the approval of city council, citing
Alabama Statute 11-43-81, of which the pertinent part, said the court, was the provision that
“The mayor shall have general supervision and control of all other officers and affairs of the city
or town....” However, in the next paragraph the court declared that:
In our opinion § 11-43-81, in the absence of any contrary statute or other contrary appropriate
authority, gave the mayor the authority to hire the employee as her personal secretary without
obtaining the consent of the City Council. Such authority is implicit in and merely part of the
broad authority granted to the mayor by § 11-43-81 to supervise and control the affairs of the
city.
The addition by the court of that italicized language is significant, for Alabama Statute 11-43-81
actually read: “The mayor shall be the chief executive officer, and shall have general supervision
and control of all other officers and affairs of the city or town, except as otherwise provided by
this title. He shall have the power to appoint all officers whose appointment is not otherwise
provided in this title....” The major problem the city had in this case was that it could not point to
any other statute in that title that put the appointment power over the mayor’s personal secretary
in the city council’s hands. For that reason, that case can be confusing and
misleading. Still, the cases can be read for the proposition that board authority can be implied
from the mayor’s power of “general supervision of all other officers and affairs of the city or
town....”
The remaining cases that have struggled with those definitions have been far less generous to
mayors on questions about their powers of general supervising and their powers as the chief
executive of the city.
November 13, 2009
Page 17
In Hawkins v. City of Fayette, 604 S.W.2d 716 (Mo. Ct. App. 1980), the mayor, seeking
additional compensation for extra duties, testified that “his duties included supervising all city
employees (except the city collector), and being at the city power plant 3 to 7 times daily during
the installation of a new engine which [duties] went on for 6 or 7 months.” [At 721] A statute
also provided that the mayor “shall exercise a general supervision over all the offices and affairs
of the city.” [At 721]
But the court rejected his claim to extra compensation, reasoning that the mayors power of
“general supervising” does not extend to detailed supervision.” The court relied on the
definition of “general supervision” in an earlier case involving an insurance policy
In which it was held that the words meant a supervision of an independent contractor’s work only
to the extent necessary to see that the work was done in accordance with the contract and
specifications to cut and trim trees in the area of transmission lines, which work was done by the
insured employees, which then could have been excluded from the policy coverage. Analogously,
here the words of s 79.12 mean only that the mayor shall exercise a general supervision over all
offices and affairs of the city only to the extent to see that the state laws and city ordinances are
complied with, these being the further words of the statute. [At 722]
The court did not discuss the question of whether the city had a weak mayor form of
government, but it did point out that apparently the city manager resigned the day the mayor
became mayor, which was the reason the mayor was supervising the city employees. Presumably,
the city manager, had there been one, would have been responsible for the detailed management
of the city.
Chief of Police of Chelsea v. Mayor of Chelsea, 488 N.E.2d 424 (Appeals Ct. Mass. 2986),
appears particularly instructive on the question of what grants of executive and general
supervisory powers to mayors means in municipal charters and statutes. It is also based on facts
similar to the facts that generated your question. There the question was which of the mayor or
police chief had the authority to designate police officers to specific shifts, days off and job
assignments. [At 424] The contest, said the court was whether ordinances and regulations based
on them, or the city charter prevailed. “If a conflict exists,” continued the court, “the charter
controls.” [At 425]
Section 3 of the charter, said the court, provided that:
to the extent pertinent, that the government of the city and the general management and control
of all its affairs shall be vested in a single officer, to be called the mayor, and in a legislative
body, to be called the board of aldermen.” The powers of the mayor relevant to this controversy
November 13, 2009
Page 18
are set out in §§ 50 and 51. Section 50 describes the mayor as the “chief executive officer of the
city” and “except as otherwise provided herein,” vests in the mayor “executive powers” which
“shall be exercised by him, either personally or through the several officers and boards in their
respective departments under his general supervision and control.” The chief of police is
appointed by the mayor, subject to the approval of the aldermen, and holds office until a
successor is appointed. See § 51. Ordinances are established by the board of aldermen, and once
approved by the mayor or under § 42 (continue in force until amended or repealed.”) § 40. [At
425]
As to the ordinances governing the police department, the court pointed out that:
Section 12-4 of the revised ordinances declares that the “chief of police shall ... have entire
control of the [police] department, its officers and members .... subject however, to the
provisions of section [50] of the city charter.” The chief is required by § 13-7 to enforce the
ordinances and “orders of the mayor and board of aldermen.” By 13-9, power was conferred
upon the chief to make “such rules and regulations for the conduct and control of the police
department as he deems advisable, the same being subject to the approval of the mayor and board
of aldermen. [At 425-26]
Under those ordinances, the aldermen and mayor approved rules and regulations “which define
the chief’s responsibilities and power, including among those therein set out are designations of
police officers to specific shifts, days off and job assignments, or as characterized by the chief
(and fairly, we think), the authority to “make daily operational decisions.” [At 426]
The court then narrowly interpreted the powers of the mayor:
Pointing to § 50, the mayor contends that the city’s executive powers were intended to vest
exclusively in the mayor, as the “chief executive officer of the city.” We think, however, that any
notion of exclusivity is dispelled by that part of § 50 which provides that the executive powers
vest in the mayor “except as is provided otherwise herein.” Section 57 of the charter, for
example, confers upon the board of aldermen executive power similar to that granted the mayor
under § 50, the power to make appointments. [Citation omitted by me] Additionally, the most
common use of the term “executive power” is in contradistinction to legislative and judicial
power. [Citations omitted by me.] In this sense, executive power indicates the authority to
formulate general policy and to make decisions in furtherance of that policy.
Moreover, construing the term “executive powers” as meaning managerial powers in general
rather than in every detail is consistent with § 3 of the charter, which, as earlier noted, places the
“government of the city and the general management and control of its affairs ” in the mayor
“and in a legislative body,” the board of aldermen. (Emphasis supplied [by court]) The only
November 13, 2009
Page 19
specific power granted to the mayor by the charter in respect to the chief of police is that found
in § 51; the chief is appointed by the mayor (subject to the approval of the board of aldermen)
who may also remove him, “for such cause as he shall deem sufficient....” The remaining charter
sections which speak to the powers of the mayor may be described as relating to the efficient and
economical administration of the affairs of Chelsea. [At 426-27]
The court also declared in Footnote 3, that:
“We find it of no particular significance that the mayor is described in § 50 as the “chief
executive officer of the city.” See 3 McQuillin, Municipal Corporations § 12.41 (3d ed. 1982)
(“The chief officer as executive and administrative head of a municipal corporation is commonly
styled the mayor”). [ At 426]
In the City Charter, the administrative power is not expressly divided between the city governing
body, but in Tennessee that is the effect of the silence on the part of the charter on the division of
power. Where the charter is silent on where either a legislative or administrative power lies, that
power defaults to the city’s governing body. Moreover, the only “specific” administrative powers
granted to the mayor under the City Charter, is the power to make temporary appointments (with
the consent of the board), the right to temporarily suspend employees, lay financial statements
and communications before the board, countersign all warrants, ad sign contracts to which the
city is a party, and, as pointed out repeatedly above, to “have general supervision of all officers of
the municipality and see that all laws and ordinances be enforced.” We need not be expressly told
by the city’s charter that the city’s governing body has all other personnel power, including the
power to appoint and remove the city’s employees.
The court in Chelsea, above, appears to have made it quite clear that a statutory provision
making the mayor the “chief executive officer” of the city means management power in general
rather than in any specific way.
Chelsea also points to an earlier case for support: Chief of Police of Medford v. City Manager of
Medford, 416 N.E.2d 985 (App. Ct. Mass.1981). In that case, the city manager proposed a
reorganization of the police department, to which the chief of police objected. The city manager
argued that he had the authority to make the reorganizations under the charter, which provided
the city manager with broad administrative powers, including the power to:
.... act as chief conservator of the peace within the city; to supervise the administration of the
affairs of the city; to see that within the city the laws of the commonwealth and the ordinances,
resolutions, and regulations of the city council are faithfully executed; and to make such
recommendations to the city council concerning the affairs of the city as may seem to him
desirable.... [At 987]
November 13, 2009
Page 20
Under the same statute the city manager also had the power to appoint and remove most
employees of the city. [At 987]
The court acknowledged the broad powers of the city manager and that there was a conflict
between the charter and the ordinances of the city under which the police department was
organized and a police chief placed at its head.
The court resolved the conflict between the charter and the city’s ordinances:
by appropriate recognition of the broad authority of the city manager to set general policy to be
carried out by the chief and to supervise and control his actions, but without going so far as to
empower the city manager to exclude the chief entirely from the chain of command from the city
manager to the department. The trial judge correctly concluded that the reorganization plan
proposed by the city manager “isolates and severs the control of the (c)hief from the
department.... [At 988]
In Tennessee’s sister state of Georgia, Mayor & Council of City of Athens v. Wansely, 78
S.E.2d 478 (Ga. 1953) also deals with the question of a mayor’s power, in this case compared to
the civil service commission. Under the city charter, “the Mayor of the city became its chief
executive officer.” [At 480] A subsequent statute provided for a civil service commission for the
police department. The civil service commission ultimately took control of the police
department. The question was which of the mayor and the police department had the authority to
control the police department. The court held that the answer was the mayor, but the language by
which the court reached that conclusion is extremely important.
The act of 1872, as we have pointed out, confers exclusive power on the Mayor and Council of
the City of Athens to prescribe the duties of its police officers, and this provision of the 1872 act
is not altered, expressly or by implication, by the provisions of the Civil Service Act of 1918.
And, as we read and construe it, the latter act contains no provision which divests the mayor of
his official duty to execute faithfully the ordinances of the city and see that its officers properly
perform their respective duties. Hence, we hold that the mayor of Athens, and not the members of
the Athens Civil Service Commission, has jurisdiction and authority to direct and control the
city’s police officers in the performance of those official duties which the mayor and council are
required to prescribe. And strength is added to this ruling by the legislature’s act of 1946, which
in part provides: ‘The mayor of the City of Athens, is hereby declared to be and is hereby made
the Chief Executive Officer of the City of Athens.’ Ga.L.12946, p. 313. [At 481]
At first glance this case appears to hold that the mayor had carte blanche to issue orders and
directions to the police department, but that conclusion does not survive a second glance. The
November 13, 2009
Page 21
charter provisions to which the Court pointed in supporting its decision “confers exclusive
authority on the Mayor and Council of the City of Athens to prescribe the duties of its police
officers....” They made the mayor the chief executive officer of the city, and gave him the
“authority to direct and control the city’s police officers....” However, the mayor’s authority to
direct and control the city’s police officers was “in the performance of those official duties [of
the police officers] which the mayor and council are required to prescribe.” This case also
clearly connects the mayor’s executive powers to regulations adopted by the city’s governing
body; he had no independent powers as the chief executive officer of the city to create
regulations.
In Kayfield Construction Corp. v. Morris, 225 N.Y.2d 507 (S.C. App. Div. First Dept. 1962), the
New York City Mayor, by executive memoranda, directed all mayoral agencies not to award
contracts to certain named firms from whom city employees had illegally accepted gifts in
violation of a provision of the city’s charter. The same provision of the city’s charter also
authorized the comptroller to void such contracts after work had begun. The Copies of the
memoranda were sent to both mayoral and non-mayoral agencies, including the Board of
Estimates, a non–mayoral agency which had the authority to let the bids at issue in this case.
Under the New York City Charter, the mayor as the “chief executive officer” of the city, was
“responsible for its guidance and the welfare of its people,” had the duty “To keep himself
informed of the doings of the several agencies of the city and to see to the proper administration
of its affairs and the efficient conduct of its business,” and “To be vigilant and acting in causing
all provisions of law to be executed and enforced.” The Court declared that:
Under and by virtue of such powers he may properly call the attention of the city officials, and
the departments of the City, to any situation which he deems actually or potentially inimical to
the City’s well-being. This he did. In doing so the Mayor did not deprive the board or the
Commissioner of their freedom of action or usurp their functions. [At 513.]
In addition, reasoned the Court:
Obviously, if the Comptroller may void a contract for a violation where work has been
undertaken, he may certainly recommend a denial of the contract at its inception where a
violation is
discovered prior to the letting. Clearly the Mayor, acting through his Budget Director, has
analogous powers in this respect. [At 513.]
In this case the mayor’s executive memoranda directed to all “mayoral agencies,” was based on
a policy contained in the city’s charter governing the award of city contracts; in that respect he
had attempted to insure that the law was executed as he was empowered to do under the charter.
November 13, 2009
Page 22
But the Court took care to point out that while the mayor could point out problems, his power
did not authorize him to reject the contract, declaring that, “It must be recognized that it was the
Board [of Estimates] which had the power to act and give weight to or reject the
recommendation.” [At 514.] The mayor was bound by the provisions of the charter distributing
power among the various branches and agencies of the government.
A statute in State v. McCombs, 262 P. 579 (Kan. 1928), gave the mayor “a general supervision
and control over all the officers, departments and affairs of the city....” He refused to sign a
contract for the purchase of coal, even though the contract was approved by the city commission,
relying on the argument that those powers gave the mayor the right to control the actions of the
city commission, and on the additional argument that the bid for the coal accepted by the city
commission did not reflect the lowest and best bid.
Pointing to various statutes giving the commissioners collective and individual authority over
city departments, the Court rejected the mayor’s argument, reasoning that:
From these it will be readily seen that it was the undoubted intention of the Legislature, as well
as the people who by their votes placed themselves under the provisions of this act, that the
board of commissioners should be the governing body, and have the general control of the
affairs and business, of the city, and that the general supervision given to the mayor does not
imply a superior right on his part to negative or undo the things that have been done or enacted
by the board of commissioners of which he is a member. Kansas is not without precedent in this
connection and a construction placed upon similar provisions under the old act of city
government by the mayor and council. The old act provided that the mayor “shall have the
superintending control of all the officers and affairs of the city,” and “shall be active and vigilant
in enforcing all laws and ordinances for the government of the city.” [Citation omitted.] A
construction was placed upon these provisions by this court in the case of Metsker v. Neally, 41
Kan. 122, 21 P. 206, 13 Am. St. Rep. 269, in which the closing paragraph of the opinion is as
follows:
“We are of the opinion that the power to amove [Writer’s note: The word “amove,” according to
Webster’s Third International Dictionary, Unabridged, means to remove an officer or employee.]
is lodged in the corporation itself, and must be exercised by it at large, unless such power has
been delegated to some officer or officers thereof by statute or ordinance. The governing and
controlling power of a city is lodged in the mayor and council ordinarily, and therefore the power
to amove rests with them jointly, there being no such authority given to the mayor in express
terms, inferentially even, as we understand and interpret the statute. Dill. Mun. Corp. sections
241-243, and authorities there cited. In the absence of such provision, the mayor alone, being
only a part of the governing body of the city, could neither remove nor suspend the city engineer;
therefore his order suspending the plaintiff on the 3rd of July from the office of city engineer was
void.” [At 582.]
November 13, 2009
Page 23
The statute in this case specifically gave the mayor the power of control as well as general
supervision over “all the officers, departments and affairs of the city....” But the court still
refused to read that statute broadly enough to permit him to override the decisions of the city
council even if he thought their decisions had been unwise or illegal. The Court’s reliance on an
earlier case in coming to that conclusion also pointed to the same principle with respect to city
officers and employees: the power to remove them rested in the city council, unless the mayor
had been given the express power to make such removals. The same thing would undoubtedly
have been true in regard to any kind of discipline of city officers or employees.
In a left-handed manner Kearns v. Nute, 50 A.2d 426 (N.H. 1946) defines what is meant by the
mayor’s power of “general supervision.” There the question was whether the finance commission
of the city has the authority to review the grant of pensions by the board of registers. A statute
provided that, “The finance commission shall have general supervision and control over the
expenditure of money appropriated by said city, and shall make such rules and regulations to
govern purchases, sales, payments, fixing of salaries and wages, the letting of contracts by all city
departments, committees, boards, trustees, officials or agents as they may deem necessary to
insure economy and efficiency.” But the statute authorizing the board of registers gave the board
the power to “grant” pensions, and did not provide for a review of such grants by the finance
commission.
Conceding that the line of demarcation with respect to the powers of the board of registers and
of the finance commission’s power of general supervision was not clear cut, the Court pointed
out that the finance commission’s general supervisory powers over the city’s finances were the
same as formerly belonged to the mayor, and turned to Eaton v. Burke, 66 N.H. 306, 313, 22 A.
452, “which relates to the City of Nashua, [and] shows how the phrase ‘general supervision’ has
been construed”:
The duties of the mayor as chief executive officer of the city [charter citation omitted.], in their
relation to the city, are similar to those of the governor in relation to the state....His power of
supervision over the conduct of subordinate officers does not include the right to dictate to the
city clerk what he shall record; to the inspectors of elections what names they shall place upon
the lists, to the overseers of the poor what persons shall be relieved; to the school committee
what teachers shall be employed or studies pursued; or, generally, to officers whose duties are
defined by law, how they shall perform them. The supervision which he is required to exercise is
performed by causing the laws and regulations to be executed by the several city officers
performing their respective duties, and, in case of their willful neglect of duty, by his setting on
foot the proper proceedings for their punishment. [Citation omitted.] 90At 428.] [Emphasis is
mine.]
November 13, 2009
Page 24
Here the Court made several important points: first, the mayor could not give instruction to city
officers and employees with respect to their duties that were prescribed by law; second, the
mayor’s power of supervision was limited to seeing that laws and regulations (passed by
legislative bodies) were enforced; third, where an officer or employee neglected his duties such
power was limited to “his setting on foot the proper proceedings for their punishment.” The
mayor had no independent power to punish; his power to punish was limited to invoking the
“proper proceedings” prescribed by law.
Alsop v. Pierce, 19 So.2d 799 (Fla. 1944), is one of the most instructive cases on the question of
the meaning of the power of general supervision. There the court considered whether the mayor
or the city commission had the power to make personnel assignments in the police department.
The city commission promulgated the following rules:
Rule 69: “The Chief of Police shall be the chief executive officer of the police department. He
shall, as the Chief Executive Officer of the Police Department, enforce the directions of the
Mayor under such rules and regulations as the City Commission may prescribe... It shall be the
sole duty and responsibility of the Chief of Police to assign the various officers of the Police
Department, and prescribe and fix their particular places of duty....”
Rule 71: “The Mayor, in directing and controlling the Police Department, enforcing laws, and
preserving the peace within the City, shall issue his order to the Chief of Police * * * and in
accordance with the rules and regulations for the government of the Department as prescribed by
the City Commission.”
Rule 73: “The mayor may suspend any member of the Police Force * * * [but that in the event of
such action he] shall submit such suspension to the City Commission for approval or disapproval
within 3 days after such suspension, and at the same time submit to the City Commission in
writing the reason or reasons for such suspension. In acting upon such suspension the City
Commission may approve the same and fix the time of suspension, whether with or without pay,
or may reduce such officer in work or rank, if in the opinion of the City Commission the Charges
are of sufficient gravity, may try him for removal from office in the manner provided by the city
charter.”
The mayor’s powers under the charter included:
The Mayor shall have the power [1] to preserve the peace within the city * * * [2]direct and
control the police force under such rules and regulations as the City Commission may prescribe;
* * * [3] to suspend any city officer for misconduct in office or neglect of duty, reporting his
action with reasons therefor in writing to the next meeting of the City Council for its approval or
rejection; but he shall not have the power to suspend a member of the City Commission or of the
November 13, 2009
Page 25
City Council, or any officers under them, except members of the police department * * * [4] He
shall take care that all laws and ordinances concerning the city are duly respected. [At 803.]
The mayor, relying upon those charter provisions, directed the chief of police to increase the
number of police officers on the vice squad and to replace a certain member of the homicide
squad with another member. The chief of police refused to comply with the mayor’s order, and
the mayor suspended him from office for 30 days without pay on the charges of insubordination,
misconduct in office and neglect of duty. At a subsequent hearing on the charges, the city
commission found the police chief not guilty of the charges and returned him to duty.
The question, said the Court, “is whether the rules [69, 71 and 73] as framed transcend the city
commission’s power to make them under the city charter; for only from such law do the
municipal officers of the city derive their power and authority.” [Emphasis is mine.]
The city commission had such power, held the Court, pointing to several powers given the city
council under the charter: (1) power to organize a police force; (2) regulate and control the
organization, number and compensation of members of the police office; (3) appointment and
confirmation of members of the police force; (4) establish general provisions and requirements
for the control and suspension of members of the police department; (5) prescribe rules and
regulations under which the mayor shall “direct and control the police force.”
The Court reasoned that:
We cannot believe that in conferring the general power upon the mayor “to direct and control the
police force” the Legislature intended that the power should be exercised in complete
subservience or subordination to the city commission, for if such had been the legislative intent
there would have been no reason in conferring the power upon the mayor at all. On the other
hand, it manifestly was not the intent of the Legislature that the mayor’s power to direct and
control the police force was to be unfettered and uncontrollable. If such had been the intent the
Legislature would not have curtailed the power–as undoubtedly it has–by subjecting it to the
elimination that it should be exercised only under rules and regulations prescribed by the city
commission. [Emphasis is mine.]
The charter of the City of Jacksonville has placed in the mayor the power “to preserve the peace
within the city” and to “take care that all laws and ordinances concerning the city are duly
respected.” It is our considered opinion that when the Legislature conferred upon the mayor the
power of direction and control over the police force it did so with the one end in view, that as
chief executive of the city the mayor should have at hand the means by which to preserve the
peace to demand from the public obedience to the law. But we hardly think that by conferring
such power upon him it was the intent of the Legislature that the power conferred should extend
November 13, 2009
Page 26
to every small detail of operation within the department, or that it should, in general, be exercised
directly upon the individual members of the police force, as distinguished from the department as
a whole. Such exercise of authority would hardly be necessary for the broader purposes of the
general power conferred, and, if pursued too far, could undoubtedly breed such confusion and
disorder as to ultimately destroy the efficiency of the department, and, perhaps, defeat the very
purpose for which the department was established by the Legislature. It is our conclusion,
therefore, that by the power conferred upon the mayor “to direct and control the police force
under such rules and regulations as the city commission may prescribe,” is meant a general
supervisory direction and control by the mayor to be subject to such reasonable rules and
regulations for the governance of the department as the rule-making body in its considered
judgement may lay down, in recognition of the general power conferred upon the mayor.
[Emphasis is mine.]
Under such construction of the city charter neither the mayor’s office nor the city commission is
wholly superior or subordinate to the other; each has its lawful sphere of operation. On the one
hand, the mayor, as chief executive officer of the city, has the authority by virtue of the grant of
executive power to him to “take care that all laws and ordinances concerning the city are duly
respected”, to guide the police department in the construction to be placed upon the statutes and
ordinances of the city pertaining to the exercise of the police power conferred upon the city by
the Legislature, in order to secure uniform execution of the laws. By virtue of his executive
power the mayor has the power of direction and control over the activities of the police force, as
such, in preserving the peace and enforcing the laws. As chief executive officer of the city the
mayor may require of the department and the members thereof full, faithful, honest and diligent
execution of the laws in the exercise of the police power of the city; being ever vigilant, himself,
to observe the manner in which the members of the department discharge their proper duties. If
an officer, or member of the police force, fails to act, or acts improperly, in the performance of
his official duties, the mayor has authority to suspend him, prefer charges for his removal, or
pursue such other disciplinary course as the prevailing law may permit or require. [At 803-04]
[Emphasis is mine.]
Specifically addressing the mayor’s objections to Rules 69, 71 and 73, the Court declared that it
could not agree that Rules 69 and 71 usurped his power under the charter:
The city commission, by the formulation and adoption of Rules 69 and 71, has placed the chief of
police at the head of the police department as its executive officer. The rules have vested him
with some responsibility and authority for the internal management of the department. They have
reposed in some measure of discretion in disciplining members of the police force and assigning
them to places of duty. In full recognition of the charter power vested in the mayor to preserve
the peace and enforce the laws, the rules require that orders given to the police department for
that purpose shall pass through the office of the chief of police. These rules seem to be entirely
November 13, 2009
Page 27
consistent with the charter power conferred on the city commission to make rules and regulations
subject to which the mayor may exercise his discretion and control over the police force.... [At
805.]
However, the Court did agree with the mayor that Rule 73 was illegal. Rule 73 provided that the
city commission would hear appeals from suspensions of police officers. However, under the
charter, that power was vested in the city council.
The main principle in this case is the same as in the other cases above, but the court made it with
considerably more elaboration: the mayor as chief executive officer had a general power of
oversight to see that the laws were faithfully executed, but his specific executive powers
depended upon, and were limited by, the policies and procedures prescribed by the city council.
The mayor lost on Rules 69 and 71, because under the charter it was within the power of the city
council to prescribe what officer would directly administer the police department and give orders
to subordinate police officers. The mayor won on Rule 73 for the same reason he lost on Rules
69 and 71: under the charter the city council heard appeals from suspensions of police officers,
but Rule 69 had given that power to the city commission.
Conclusions
I am not sure which line of cases the Tennessee courts would follow if it fell on them to
determine whether the mayor had the authority to move personnel (temporarily or otherwise)
from the parks department to the public works department, but I assume that they would follow
the majority of them, which hold that the mayor’s power of general supervising and the mayor’s
power as the chief executive of the city do not give her active operational control of the city.
Such a position seems to me consistent with the weak mayor form of government, and more
particularly the law in Tennessee that the mayor has no legislative or administrative powers that
are not expressly given to him or necessarily implied from express powers.
The mayor has the power of “general supervision of all officers of the municipality,” but that
power is coupled to additional language: “general supervision of all officers of the municipality
and shall see that all laws or ordinances be enforced.” A strong argument can be made that the
mayor’s power of general supervision is the general supervision to see that all laws and
ordinances are enforced, and if no such connection can be made, the mayor has no power of
general supervision. But even if that reading of that provision is not correct, the heavy weight of
cases still stand for the proposition that the mayor has no power to intervene in the detailed
operation of the city.
The city’s governing body has the authority to delegate its administrative powers to the mayor.
But it appears to me extremely difficult for the mayor to show that any administrative powers
November 13, 2009
Page 28
have been delegated to her under Section 1-201 of the Municipal Code than those administrative
powers the mayor already holds under Section 4 of the City Charter. There is certainly nothing
either Section 4 of the charter or Section 1-201 that indicates that the mayor has any more power
than she had under Section 4 of the charter, which does not likely include the right to transfer,
temporarily or otherwise, employees from one city department to another, absent a delegation of
authority by the city’s governing body for her to do so.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/