November 3, 2009
Dear Sir:
You have two questions, as follows:
1. How does the city reduce the membership of the city’s planning commission?
2. Can the city administrator also hold the office of city attorney?.
The answer to question 1 is that the easiest and quickest way to reduce the membership
of the planning commission is for city to amend its ordinance under which the planning
commission is established by providing for a lower number of planning commission members.
The mayor can then remove the members of the planning commission who serve at his pleasure
under Tennessee Code Annotated, ' 13-4-101, in the number required to reduce the membership
to the lower number designated by the ordinance.
The answer to question 2 is not clear in Tennessee. It can be argued that the offices of
city administrator and city attorney are incompatible offices. But the law governing
incompatible offices is not well-developed in Tennessee. But even if those offices are not
incompatible, the New Jersey Supreme Court has held that the holding of both those offices by
the city attorney violated that state’s code of professional responsibility governing lawyers. Any
lawyer contemplated by the city to hold both the offices of city attorney and city administrator in
your City should be concerned about the possible application to that arrangement of the doctrine
of incompatible offices and the Tennessee Code of Professional Responsibility governing
attorneys.
Analysis of Question 1
Tennessee Code Annotated, section 13-4-101, authorizes municipalities to appoint a
planning commission consisting of no less than 5 and no more than 10 members, the number to
be determined by the municipal governing body. The members are appointed as follows:
- One member is the mayor or his delegate.
- One member is a member of the governing body of the city appointed by that body.
- All other members are appointed by the mayor.
The same statute provides that:
All other members shall be appointed by such mayor, except as
otherwise provided in subsection (b). All members of the
commission shall serve as such without compensation, except
membership on the board of zoning appeals. The terms of
appointive members shall be of such length as may be specified by
the chief legislative body; provided, that they shall be so arranged
that the term of one (1) member will expire each year. Any
vacancy in an appointed membership shall be filled for the
unexpired term by the mayor of the municipality, who shall also
have authority to remove any appointed member at the mayor’s
pleasure. [Emphasis is mine.]
That statute makes it clear that the mayor can remove members of the planning
commission “at the mayor’s pleasure.” For that reason, if the city wishes to reduce the
membership of the planning commission from seven to five members, the mayor would need to
remove two members. Needless to say, depending on when the terms of the two members
removed by the mayor would have otherwise have expired, the city’s governing body might need
to readjust the terms of the remaining members of the planning commission to ensure that their
terms of one member expires each year. In fact, presumably, the mayor could remove all the
appointive members of the planning commission at the same time, and reappoint the five
members who will continue as members of the planning commission, each of whose terms would
be of such length to ensure that the term of one member expires each year.
Analysis of Question 2
The common law rule of incompatible offices applies in Tennessee. [See State ex rel.
Little v. Slagle, 115 Tenn. 336, 89 S.W. 316 (1905)] The most prominent case on incompatible
offices in Tennessee with respect to municipal offices is State ex rel. v. Thompson, 246 S.W.2d
59 (Tenn. 1952). There the city commission (which was actually a city council) of Paris,
Tennessee, appointed one of its members the city manager. The court declared the appointment
illegal for two reasons, one of which was that the two offices were incompatible (the second was
the common law rule that a governing body could not appoint one of its own members to a
position over which the board had appointing authority). They were incompatible offices
because:
November 3, 2009
Page 3
Of course, it was not the intention of the Legislature to permit the
City Manager to be one of the five members of the Board which
determines whether or not he shall be discharged for cause, or
without cause, after twelve months, or a member of the Board, to
accept or reject or modify his own recommendations made as City
Manager, or, as a member of the Board, to direct and supervise
himself as City Manager in the administration of the affairs of the
City. This statement of the situation seems conclusive of the fact
that the two offices are completely incompatible. [At 61]
The first question this case raises is whether the positions of city attorney and city
administrator are both offices within the meaning of the common law doctrine of incompatibility
of offices. The second that derives from it is whether that doctrine applies to positions of
employment as well as offices.
It has been held by courts in Kentucky, Arkansas, and New York, that the city manager is
an officer. [See City of Lexington v. Thompson, 61 S.W.2d 1092 (Ky. App. 1933) (Ky.);
McClendon v. Board of Health, 216 S.W.2d 289 (1919) (Ark.); Hansell v. City of Long Beach,
401 N.Y.S.2d 271 (Sup.Ct. App.) (NY.)] It appears that State ex rel. v. Thompson also treated
the position of city manager as an officer in holding that the offices of city council member and
city manager were incompatible. It also appears relatively easy for a position in Tennessee to be
categorized an office. I have written extensively in the past on this topic, and will be glad to
provide those writings on your request. I will not go into detail on that issue here, except to point
to Gamblin v. Town of Bruceton, 803 S.W.2d 690 (1990), in which it was held that the city
recorder was an officer because the city’s charter prescribed the duties of the recorder’s office
and provided that the board of mayor and aldermen appoint the recorder.
But Section 6-1-101 (2) of the general law mayor-aldermanic charter provides “that
“Department head” means the city administrator, city recorder, treasurer and chief of police and
any other department heads appointed by the board or mayor.” In addition, as far as I can
determine, the question of whether a city administrator is an officer has never arisen. However,
as we shall see below, the duties of the city administrator under the general law mayoraldermanic charter are prescribed by statute, although whether there is to be a city administrator,
and what duties he will have, are entirely up to the city council, which can clearly remove him at
will. That is also true of the city attorney.
The charter is silent as to who appoints and supervises the city attorney, but Section 6-4101(2) of the charter provides that “Officer” means “the mayor, aldermen, city attorney and city
judge....” It is clearly the law that where the charter is silent on who has the authority to hire,
November 3, 2009
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dismiss and supervise employees and officers, that authority lies in the governing body of the
city.
Most theoretical distinctions between city managers and city administrators made by
students of local government have city managers wielding more power than city administrators,
the former being the chief administrator of his city, the latter being more akin to an advisor to his
city. That distinction generally holds true under the general law mayor-aldermanic charter under
which the City is established. Section 6-4-101 of that charter provides that the governing body of
the city has the authority to appoint a city administrator, “who is under the control and direction
of the board,” to whom he “shall report and be responsible.” The same statute declares that,
“The board may, by ordinance, require the city administrator to perform any or all of the
following duties”:
(1) “Administer the business of the municipality;”
(2) “Make recommendations to the board for improving the quality and quantity of
public services....”
(3) “Keep the board fully advised as to the conditions and needs of the municipality;”
(4) “Report to the board the condition of all property ... owned by the municipality and
recommend repairs and replacements as needed;”
(5) “Recommend to the board and suggest the priority of programs or projects involving
public works or public improvements....;”
(6) “Recommend specific personnel positions ... for the needs and operation of the city,
and propose personnel procedures for approval of the board”
(7) “Perform such other duties as may from time to time be designated or required by the
board....”
Thompson involved a member of the city council appointed to the office of city manager.
In those positions, the “city council member” was in a position to supervise and discharge
himself as the “city manager.” It seems less obvious that the offices of city attorney and city
administrator are incompatible. Unlike in Thompson, neither the office of city attorney nor the
office of city administrator hold supervisory positions over the other office. Although both the
city administrator and city attorney are appointed by the board of mayor and aldermen, they
follow separate and independent supervisory lines. Likewise, neither office has the authority to
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discharge the occupant of the other office.
But. the board can grant the city administrator broad or narrow administrative powers. It
seems logical to me that if there is to be a city administrator he would be granted all or most of
those powers. If he were granted only the reporting and recommending powers under (2), (3),
(4), (5), and perhaps (6), his administrative powers might not be significant. But he can be
granted much broader powers under (1) and (7). However, regardless of whatever powers the
city administrator is granted by the city council, the office of city administrator would still be in a
position to influence and judge the work and performance of the city attorney, and the office of
city attorney would still be in a position to influence and judge the work, reports and
recommendations of the city administrator. Moreover, the office of city attorney would have the
responsibility to handle the legal business of the city (including its litigation) in which, as city
administrator, he was intimately involved as an author and implementor.
Tennessee Attorney General’s Opinion 07-159 accurately points out, there are no
Tennessee cases on the question of whether the doctrine of incompatible offices applies to only
one office (in addressing the question of whether a person could hold both the offices of Fentress
County Deputy Sheriff and bus driver for Fentress County.), and that the cases in other
jurisdictions are not consistent on this issue. However, it appears to me that the overwhelming
weight of authorityBand logic-- supports the proposition that the doctrine does apply to
employees. [See City of Sturgis, v. Koch, 583 N.W.2d 170 (S.D. 1998), 868 P.2d 263 (Wyo.
1994), Thomas v. Dremmel, 868 P.2d 263 (Wyo. 1994), Haskins v. State ex rel. Harrington, 516
P.2d 1171 (Wyo. 1974), and the numerous cases cited therein that hold that common law
doctrine of incompatible offices applies to both officers and employees). However, while those
cases do not refer to Thompson, most of them apply the same test used by that case in holding the
offices of city council member and city manager incompatible: direct line of supervision and
right to fire.
It was held in Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986) that the common
law could be “overturned” by statute (which is the law everywhere). There is no statute that
expressly allows the city administrator to hold the office of city attorney, or the city attorney to
hold the office of city administrator. But in Marini v. Holster, 218 A.2d 887 (Super. N.J.1966),
the state’s Municipal Manager Act provided that the city manager shall “[p]erform such other
duties as may be required by the municipal council.” Another section of the same Act provided
that “The municipal manager shall in all matters act under the supervision and subject to the
approval of the municipal council.” [At 889] The Court held that “those provisions overturned
the common law against the holding of incompatible offices, and allowed the city manager to
hold the additional offices of city engineer and director of public works.” [At 889] As pointed
out above, Section 6-4-101(b)(7) of the general law mayor-aldermanic charter also provides that
November 3, 2009
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the city administrator can be given the authority by the board of mayor and aldermen to,
“Perform such other duties as may from time to time be designated or required by the board.”
Section 6-4-101(a) also provides that the city administrator “shall be under the control and
direction of the board,” and “shall report and be responsible to the board....” Marini creates an
argument that those two statutes support the proposition that they reflect a law that overturns the
common law on incompatible offices under the general law mayor-aldermanic charter; although I
cannot predict the outcome of such an argument.
But in the subsequent case of In re Advisory Committee on Professional Ethics, 745 A.2d
497 (N.J. 2000), the question of whether the same person could hold the office of city attorney
and city administrator and clerk arose in the New Jersey Supreme Court. Declaring that the two
offices were not incompatible because a New Jersey statute provided that a municipal council
could appoint “a municipal manager, assessor, an auditor, a treasurer, a clerk and an attorney.
One person may be appointed to two or more such offices, except that the offices of municipal
manager and auditor or assessor shall not be held by the same person.” [At 501]
But as the style of the case indicates, the question of whether the city
attorney could also hold the office of city administrator and clerk,
did not end there. The Court determined that:
We must therefore consider whether the holding of the two offices
would pose an impermissible conflict of interest under R.P.C.
1.7.(b). We find such an impermissible conflict because we
believe that the position of municipal administrator, as
contemplated by the inquiry, is akin to that of a chief daily
operating officer of the municipality. At one time there was no
need for such an office of local government. Municipalities could
gather once or twice a month to conduct public business. Part time
officials, a clerk, a tax collector, a treasurer could attend to the
daily operations of the municipality. Local government has grown
more complex, with increasing demands for cost efficiency on the
one hand and for more sophisticated governmental services such as
environmental or emergency management on the other. Many
municipalities have entrusted the day-to-day conduct of their
affairs to full-time municipal administrators. By a 1969
amendment to N.J./S.A. 490A:9-136, the Legislature authorized
the delegation of partial or total executive responsibility to an
administrator.... Depending on the terms of the enabling ordinance,
we would expect an administrator to arrange for the purchase of
materials, supplies and equipment, to administer contracts
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necessary for the operation and maintenance of city services, to
ensure the efficient use of all property owned by the city, to take
care that all franchises are faithfully observed, to recommend such
measures as are necessary for the health, safety or welfare of the
community, to investigate, examine or inquire into the affairs or
operation of any department, bureau, or office of the municipality,
to interpret collective negotiation agreements and to give advice to
boards, committees, agencies, departments or officials of the
municipality.
Such a person will from time to time have the need for legal
counsel concerning the propriety of actions taken in these many
diverse areas of responsibility. More importantly, the
administrator may need legal advice on actions that he or she may
have already taken. When the municipal attorney counsels the
municipal administrator, he or she is really giving legal advice to
the municipality itself.
The attorney’s client is the municipal body as represented through
its mayor, counsel and other officials. [Citations omitted by me.]
An attorney cannot reasonably be expected to give that body
candid, objective advice concerning his own conduct as
administrator. [At 501-02] [Emphasis is mine.]
The Court further said:
A municipality, unlike a private corporation, cannot consent to a
conflict of interest. [Citation omitted by me.] The question thus is
whether representation of the borough would be materially limited
by the lawyer’s own interests, specifically, the lawyer’s own
interest in vindicating his conduct as municipal administrator. We
envision many circumstances in which the conduct of the
administrator might be called into question and require legal
counsel and advice, such as in employment decisions that might
give rise to employment discrimination claims, in contract
administration that might give rise to claims of preferential
bidding, in licensing decisions that might give rise to claims of
selective enforcement of ordinances. In all such circumstances, the
borough administrator as chief operating officer of the municipality
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should have access to independent counsel and advice. The
municipality is poorly served by an attorney whose personal
interests are potentially in conflict with those of his client.
[Citations omitted by me.] [At 504]
It is interesting that the arguments that support the conflict of interest between the city
administrator and city attorney under the New Jersey Code of Professional Responsibility are
similar to the arguments that would have supported the proposition that those offices were
incompatible, absent the statute that allowed the same person to hold the office of city attorney
and city administrator.
Rule 1.7 of the New Jersey R.P.C. and Rule 1.7 of the Tennessee R.P.C. are not
identical, but they are similar. Rule 1.7 of the New Jersey C.P.R prohibits public entities from
consenting to the a lawyer’s representation where he has a conflict of interest, but Rule 1.7 of the
Tennessee R.P.C. does not; it might allow conflicts of interest in some cases. But it does not
appear to me that the New Jersey Supreme Court would have allowed the city attorney to be the
city administrator even had there not been an express prohibition on public entities from
consenting to such an arrangement. Frankly, I do not know how the Tennessee courts would
handle a Rule 1.7 issue where a city attorney is also the city administrator.
I am likewise uncertain how those courts would handle a claim that the offices of city
attorney and city administrator are incompatible offices under the common law.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/