MEMORANDUM
DATE:
May 22, 2002
FROM:
Melissa A. Ashburn, Legal Consultant
RE:
Inquiry
You have forwarded an email. Several questions are listed in the email, which are addressed
individually below.
1. If an employee resigns on a specified date but without specifying a time, at what time
does the resignation take effect?
There is no real “legal” answer to this question, although it is a generally accepted rule of law
that an employee’s tender of resignation is a mere offer which is not binding on the employer
until it has been accepted. The courts view these situations in the context of contract law. Akers
v. J.B.Sedberry, Inc., 286 S.W.2d 617 (Tenn. App. 1955). That being the case, if no time is
specified by the employee, and the employer accepts the resignation, then whatever time is
reasonable should be the course of action to follow. The employer is justified in setting the
exact time on which the resignation is effective. If the employee performs any duties on that
date, then he or she should be paid for those hours actually worked.
2. Is it required that the board (or employer) accept a resignation and/or vote on it?
The answer to this question depends on the particular facts involved. As stated above, the
courts look at resignations in the context of contract law, which would mean that an acceptance
of the resignation would be required. However, there is not one reported case that I can find in
which an employee or employer complained that a resignation was not accepted.
If you are referring specifically to the position of city administrator, then we must consult the city
charter for direction. The City Charter states that the city administrator serves “at the will of the
Board.” Section 3.02. Due to that language from the Charter, a vote by a majority of the Board is
necessary for the acceptance of a resignation submitted by the city administrator.
3. Can an employee withdraw a resignation or is permission required to withdraw it?
Does the board have to vote to allow the withdrawal? If an employee can withdraw
without board approval, until what point (time)?
If the resignation has not been accepted, then the employee may withdraw the resignation
without waiting for board approval. There is no specific time on which offers to resign expire. A
court reviewing such a situation would consider what is reasonable under the circumstances,
and would examine the conduct and expectations of the parties involved.
In Akers v. J.B.Sedberry, 286 S.W.2d 617, (Tenn. App. 1955), the two plaintiff employees made
offers to resign in ninety days during a meeting with the controlling shareholder of the company
which employed them. One of the employees recalled that it was stated that if the resignations
were not accepted, then their employment would continue in its current status. The employer did
not respond to the offers during the meeting, but rather continued discussing the business of the
company. The employer sent a telegram to the employees a few days later stating that their
offers to resign had been accepted “effective immediately.” The Court determined that the offer
did not extend beyond the meeting in which it was made, and that the employees were entitled
to believe that the offer had been refused when the meeting adjourned.
The Akers case should not be read to mean that an offer to resign must be acted upon
immediately. The Court makes the following statement about such matters:
The question what is a reasonable time, where no time is fixed, is a question of
fact, depending on the nature of the contract proposed, the usages of business and
other circumstances of the case. Ordinarily, an offer made by one to another in a
face to face conversation is deemed to continue only to the close of conversation,
and cannot be accepted thereafter. Page 641.
It is important to note that in the Akers case, the employees worked in Texas, and flew to
Tennessee for the meeting discussed, so it was “reasonable” for the employees to expect a
response during the meeting.
In your City, if the Board frequently takes matters under advisement, or otherwise postpones
decisions or voting on issues until later meetings, then it may be reasonable for the employee to
expect his offer of resignation to remain open for a period of time during which the Board will
have sufficient time to consider the matter. In any event, the employee may withdraw the offer at
any time before it is acted upon by the Board.
4. Can the salary of an elected official be increased at any time during the term of office?
Is there any legal way to accomplish an increase in the salary of an elected official?
It is my understanding that this question relates specifically to the office of the city judge.
Article VI, Section 7 of the Constitution of Tennessee, states:
The Judges of the Supreme or Inferior Courts, shall, at stated times, receive
a compensation for their services, to be ascertained by law, which shall not
be increased or diminished during the time for which they are elected. They
shall not be allowed any fees or perquisites of office nor hold any other office
of trust or profit under this State or the United States. (Emphasis added)
T.C.A. ' 16-18-205(a)(1) addresses salaries of elected judges, and states “The salary may be
fixed by the governing body by ordinance or resolution prior to the term of office and shall not be
increased or diminished during the term.” (Emphasis added)
In light of such clear language, the answer to your question is “no.”
5. Can an increase in salary (during a term) for an elected official be accomplished by
giving an employee a bonus or any type of settlement so that the employee will “hold” the
elected position?
If you are referring to the “buy out” situation proposed for the city administrator, who is then
appointed to be the city judge, my letter of May 14, 2002 addresses your question, the pertinent
text of which is reproduced in the two paragraphs below:
The first question is whether the city may enter into a “buy out” agreement with
regard to the city administrator’s contract. Without discussing legal considerations
including whether such a contract is enforceable in court, or void as against public
policy, it is my opinion that there is no legal barrier which should prevent the city
from voluntarily entering into an agreement to buy out the city manager’s contract.
The next question is whether such an arrangement would prevent the city from
appointing the former city manager as the new city judge, after the resignation of the
judge in office. As long as he is not performing any other duty for the city, and the
monthly payments he receives are only installments toward the buy out agreement,
I find no legal prohibition against such an arrangement. A city judge may not hold
any other office, or otherwise hold another job with the city. The Tennessee
Constitution forbids dual employment of judges by cities in Article VI, Section 7,
in stating that judges “shall not be allowed any fees or perquisites of office nor hold
any other office of trust or profit under this State or the United States.” As such, the
city judge may not act as an advisor to the board of aldermen or perform any other
duty on behalf of the City.
Your immediate question refers to “bonus” and “settlement” which are two very different terms
with different meanings. A bonus is not allowable under any circumstances. A “settlement” as
discussed above, which is understood by all parties to have nothing to do with the duties
performed as city judge, is allowable. As such, the “settlement” entered into cannot be
contingent upon any duties the city expects to be performed by the judge, and cannot be
rescinded if the new judge decides to resign prior to the expiration of his term. It is merely the
buy out of a contract, to which the city will be held under any circumstances, if the city enters into
such an agreement.
6. The board voted to give an employee a “settlement” for the stated purpose of
increasing an elected official’s salary, wherein the employee was to resign from the
employee position and run for an unexpired term of a vacant office, who would be
responsible if it was declared to be improper?
The information contained in this question indicates that the Board did not keep the two
transactions (the “settlement” and the judge’s salary) separate. As such, if the decision stands,
and is not rescinded by the Board in a later meeting, and the action is challenged in Court, a
judge will likely rule that the vote is null and void, on grounds that it is contrary to state law. If the
action is not challenged in court, then the vote stands.
If a lawsuit is filed concerning the vote, and the court rules it to be void, there is no personal
liability which will result to any alderman. Both state and federal law provide broad immunity to
local legislators in carrying out their duties. Tennessee Code Annotated ' 29-20-201(b)(2), part
of the Tennessee Governmental Tort Liability Act, states:
All members of boards, commissions, agencies, authorities, and other governing
bodies of any governmental entity, created by public or private act, whether
compensated or not, shall be immune from suit arising from the conduct of
affairs of such board, commission, agency, authority, or other governing body.
Such immunity shall be removed when such conduct amounts to willful, wanton,
or gross negligence.
It is very difficult for a plaintiff in Tennessee to prove “willful, wanton, or gross negligence” as
stated in this statute, and I am confident no such conduct can be established in the scenario you
have described.
Although your question speaks to “responsibility” rather than legal liability, the law is concerned
with liability only. Any lawsuit filed would be against the Board, which would collectively bear
responsibility. A practical effect of losing such a suit might be that the Board would be forced to
demand that the money paid to the former city administrator, pursuant to the motion passed, be
returned to the general fund. A citizen may be able to bring an action to force the city to sue the
former city administrator, or may lodge a complaint against the city judge himself for alleged
impropriety in connection with his compensation from the city.
7. Is there a difference in responsibility for voting against a measure and voting for a
measure when the question is not proper?
There is no significance in such distinction, as neither situation can lead to legal liability.
8. Is the official issuing the check, knowing the action to be improper, liable in any
manner?
No, due to the Governmental Tort Liability Act. Such an action constitutes official conduct, in
furtherance of the business of the board, to which individual liability does not attach.
I hope this answers all the questions raised by your City at this time. Please let me know if you
need anything further on these issues.