MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
October 25, 2005
RE:
Reorganization of Electric System
You asked me to review a proposed city ordinance in which the city’s governing body
assumes control of the electric system. As I understand the facts (very late in the game), the
city’s board of aldermen (as opposed to the city’s board of mayor and aldermen) has since State
ex rel. Patton v. Mayor of “City A,” 626 S.W.2d 5 (Tenn. 1981), run the city’s electric system.
[See Municipal Code, ' 2-101] In addition, since 1987, the city’s board of aldermen (again, as
opposed to the city’s board of mayor and aldermen) has separately run, as a unit, the city’s water
and gas systems. [See Municipal Code, ' 2-201]
I have the following comments about the ordinance:
1. Title 2, Chapter 1, Electric Board
These amendments lead to the question of what is the city’s governing body within the
meaning of the Municipal Electric Plant Law? Tennessee Code Annotated, ' 7-52-102 defines
“Governing Body,” as “the county legislative body, board, body or commission having general
charge of the municipality.” Tennessee Code Annotated, ' 7-52-114(1)(1) provides that the
“supervisory body” of the electric plant shall be “(A) The board; or if there be no board, then
(B)The governing body of the municipality.” The difficulty with that language is figuring out
whether the “governing body” of the city is the board of mayor and aldermen, or the board of
aldermen. In Patton, above, in 1971, the “Board of Mayor and Aldermen” created an
independent board of public utilities. In 1972, the Board of Mayor and Aldermen abolished the
[independent] board of public utilities “and plac[ed] the supervision and control of the city’s
electrical plant in the Board of Aldermen.” [At 6] [Emphases all mine.]
There is language in Patton I had never noticed before indicating that the mayor and an
alderman were probably aware of the potential impact on the mayor in turning the operation of
the electric plant back over to the board of aldermen as opposed to the board of mayor and
aldermen. The Court notes that:
We note that two appellees, the mayor and an alderman, insist the
chancellor erred in failing “to define the duties of the mayor in
connection with [the] Resolution of July 11, 1972.” We find
nothing in the pleading nor the transcript to indicate the chancellor
was ever asked to declare the duties of the mayor. Furthermore,
the stipulation filed in this cause does not include sections of the
City Code necessary to such a declaration.
However, problems defining the mayor’s duties have nothing to do with the city code, but
with the law governing the powers of the mayor, and the vague language in the Electric Plant
Law with respect to what the term the city’s “governing body” means.
In Tennessee, a mayor is a part of the legislative or 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 (Unreported).]
Specifically with respect to the mayor’s membership on the board of mayor and
aldermen, it has been held in 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, that a mayor in Tennessee 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:
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 another 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]
It is true that many places in the City Charter speak of the mayor in the context of the
“board of mayor and aldermen” But as the cases cited above indicate, his legislative functions
must find some positive expression in a charter or statute.
The Electric Plant Law contains no such positive expressions with respect to the mayor’s
status where the governing body of the city runs the electric plant. If he has legislative and/or
administrative powers with respect to that function, it is not clear what they are. It appears to me
that this is the answer: Because under the City Charter he is denominated a member of the city’s
governing body, that he holds the same status when that body functions as the “supervisory
body” of the electric system, but that status does not translate into any powers in that function
that he does not have in his other functions. For that reason, it seems to me improper to exclude
him as a member of the city’s governing body with regard to its functions in running the electric
system. However, from a practical standpoint, his inclusion as a member of that body has no
practical consequences.
The mayor is what is commonly known as a “weak mayor” under the city’s charter. He
has virtually no legislative, and only limited administrative powers, under the city’s charter.
With respect to the former, he presides at meetings of the city council. [' 6] I have been told that
the mayor votes in cases of ties, but it says in ' 6 that “any form of board action shall be passed
by a majority of the members present, if there is quorum. A quorum shall consist of four (4)
aldermen.” Section 18 provides that “Any form of Board action shall be passed by a majority of
members present, if there is a quorum.” The mayor does not even count toward the calculation
of a quorum or vote under those sections. I can find no other provision in the charter authorizing
the mayor to vote under any circumstances.
There is no question but that the General Assembly can authorize mayors who are
members of governing bodies that run electric systems under the Municipal Electric Plant Law to
vote and take part in the proceedings of the plant’s operation. I find nothing in that law that does
so. It has been held that a municipal electric system created under that law is not a separate legal
entity, but a department of the city. [See Keeble v. Loudon Utilities, 370 S.W.2d 5312 (1963). If
that is the case, arguably there is no reason that a mayor’s powers as a member of a municipal
governing body that operates an electric system under that law would be any more or less than
they would be with regard to other city functions, except where the Municipal Electric Plant Law
provides otherwise. Under Tennessee Code Annotated, ' 7-52-110, “A majority of the board
shall constitute a quorum and the board shall act by a majority vote of those present at any
meeting attended by a quorum.... If the mayor’s powers are no more than they are under the city
charter, his presence would not go towards the calculation of a quorum, and he could not vote in
any matter.”
Here my logic breaks down somewhat because provisions in the Municipal Electric Plant
Law provide for the appointment of a chair (which would impinge upon the right of the mayor to
preside at meetings of the power board), and provide for the removal of members for cause
(which arguably do not apply when the city’s governing body is the “supervisory body” of the
electric system). Because of time restraints, I must leave the analysis in this area to a later day.
2. Section 2-103 (203?): I have reasoned above that the mayor is already a member of
the electric system’s “supervisory body” by virtue of being a member of the board of mayor and
aldermen, even though that status does not mean very much.
But if we assume that is not true, that the mayor is not a member of that body, can the
city’s governing body appoint the mayor the ex officio member of the Electric System Board, and
give him the all the powers that members of electric boards have under that statute?
It has repeatedly been said that an ex officio member of a board is a member of the board
by virtue of his title to a certain office without further warrant or appointment. [For example,
see State ex rel. Hennipin County v. Brandt, 31 N.W.2d 5 (Minn. 1948); Foote v. Lake County,
69 N.E.47 (Ill. 1903); Lobrano v. Police Jury of Parish of Plaquemines, 90 So. 423 (1921);
Barber Pure Milk Co. v. Alabama State Milk Control Board, 156 S.W.2d 351 (Ala. 1963); cases
cited in those cases]. The language “without further warrant or appointment” appears to refer to
the absence of the necessity for the ex officio member to be elected or appointed to the office; he
holds the ex officio office by virtue of his holding of his “regular” office.
But I have been unable to find a single case in the United States where an ex officio office
was not created by a state statute. That is, in every case a statute made an officer an ex officio
officer, or authorized the appointment of an ex officio officer. Here, the city by ordinance simply
makes the mayor an ex officio member of the electric board without any authority to do so. As
far as I can determine, neither the Electric Plant Law nor any other general statute, nor even the
city charterBmakes the mayor an ex officio member of the electric board. In that action, the
ordinance may go beyond the city’s authority.
But note that Reeder, above, points to the mayor in that case as a constituent member of
the board for some special purposes. He does not sit on the board as an aldermen, but as an ex
officio presiding officer. That language leads one to believe that a weak mayor is already an ex
officio member of the board and that he exercises those administrative functions specially
committed to him, without any additional warrant or appointment. But if that is true, I am not
sure at this point where that status takes the Mayor with regard to the city’s operation of the
electric system. He has certain administrative powers under the city charter, but I am not clear on
whether those translate to powers in the operation of the electric system.
In addition, the Municipal Electric Plant Law clearly prescribes who has the authority to
appoint employees of the electric board: Tennessee Code Annotated, section 7-52-114 provides
that the general supervision, control, etc. shall be in the hands of a “supervisory body,” which is
the board, or if there is no board, the city’s governing body. If the governing body of the city is
the “supervisory body,” it can by resolution delegate all of its powers to a city manager, if there is
one. In any case, the “supervisory body” [the city’s governing body] “shall” appoint an electric
plant superintendent. The superintendent has the power to appoint employees under that statute.
Unless a statute or charter provides otherwise, the power to appoint an officer includes the
power to remove the officer. [Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App.
1990); Gillespie v. Rhea County, 325 S.W.2d 314 (1950); Brock v. Foree, 778 S.W.3d 314
(1934).]
Arguably, the power to suspend is not the same as the power to remove, but it seems to
me that there is a strong implication that one who has the power to remove has the power to
suspend. The mayor has the authority under Section 10 the city charter to suspend city
employees, but I am not sure whether the Municipal Electric Plant Law contemplates that kind of
individual action on the part of any member of the power board.
Again, this is another area in which I need to do more research and work. The same is
true with respect to similar questions involving the city’ operation of the water and gas systems.
This is the best I can do up to this point.