August 21, 2001
Dear City Administrator:
Your letter of August 21, 2001, states the following facts: A alderman of the city attended
a meeting of the city council on June 15, 2000, after which he submitted his resignation. The
meeting was adjourned until June 20, 2000. The alderman did not attend that adjourned
meeting. He also failed to attend the city council’s meetings in July and August, 2000. However,
he withdrew his resignation on August 28, 2001, and stated his intent to remain on the city
council. The city council had never accepted his resignation. The alderman attended the city
council meeting on September 21, 2000, and all subsequent meetings of the city council.
Based on those facts, you have the following questions:
1. Did the alderman’s absence from the July and August, 2000, meetings (and
presumably the June 20, 2000 meetings) violate the city charter?
The answer is no.
The City Charter, Article II, Section 2.05, provides that:
A vacancy shall exist if the mayor or alderman resigns, dies,
moves his residence from the city, is recalled, is convicted, in the
ordinary sense of the word, of malfeasance or misfeasance in
office, a felony, a violation of this charter, or election laws of the
state, or a crime involving moral turpitude, fails to attend any
meetings of the council for a period of ninety (90) days with no
extenuating circumstances, or has been continuously disabled for
a period of ninety (90) days so as to prevent him from discharging
the duties of his office. The Board shall, by resolution, except in
the case of a recall, declare a vacancy to exist for any of these
reasons, and such finding shall be final.
By my calculations, the alderman did not attend meetings of the city council for 99 days.
However, his failure to attend meetings was not a violation of the charter. It is the law generally
that in the absence of a statute to the contrary, the failure of a city council member to attend
meetings without additional evidence of his intent to function as a city council member, is not in
and of itself grounds to declare the office abandoned. [McQuillin, Municipal Corporations, '
12.123; People v. Bradford, 18 N.E. 732 (Ill. 1915); Reid v. Smith, 244 N.W. 353 (S.D. 1932).]
The statute in this caseBArticle II, Section 2.06 of the charterBprovided that if the mayor or a
council member failed to attend meetings for 90 days, his office was to be declared vacant; it did
not impose any requirement on the mayor or alderman to attend meetings. The alderman
submitted his resignation (as he was entitled to do), following the June 15, 2000, meeting.
Apparently, the city council never acted on that resignation, which he withdrew on August 28,
2000, at the same time stating his intent to remain on the city council, 22 days before the next
meeting. It is also the law in Tennessee that a resignation is not effective until it has been
accepted by the body that has the authority to accept it, in this case the city council. [State ex rel.
v. Bush, Sheriff, 141 Tenn. 229 (1918)]
2. Was an action by the board required in September, 2000, to declare the alderman’s
office vacant?
The answer is yes.
Article II, Section 2.05 of the city charter clearly contemplates that the board pass a
resolution declaring the office vacant for any of the reasons outlined in that provision, including
absence from meetings for 90 days. In addition, the same provision declares that the absences
are excused if there are “extenuating circumstances.” Presumably, the burden of proving
extenuating circumstances would be on the mayor or alderman asserting his continued title to
office after being absent from meetings for 90 days. In this case, the alderman submitted his
resignation, but withdrew it before the 90 days had expired. The facts do not indicate whether
the city council considered the alderman’s tendered resignation as extenuating circumstances,
but it seems to me that the city council could have done so, particularly in light of the fact that the
city council did not even act upon the resignation before he withdrew it over two months after he
tendered it. I doubt that the city council would have even had to make any official finding on
extenuating circumstances.
3. Did the other members of the city council violate the city charter by not declaring the
alderman’s seat vacant?
The answer is no.
A beginning premise that every public body must take into serious consideration before it
removes a public officer for any reason is seen in LaFever v. Ware, 365 S.W.2d 44 (1963):
It is a general rule of law, well recognized in our State, that the
holder of a public office, duly elected, qualified and inducted for a
fixed term acquires certain property rights of which he may not be
arbitrarily deprived. [At 50]
Butler v. Cocke County, 671 S.W.2d 847 (Tenn. App. 1984), also declares that, “Clearly, county
officers property elected have property rights in their respective offices.” [At 848] that rule
absolutely also applies to municipal officers. For that reason, the courts are reluctant to easily
permit the removal of elected public officials.
The intention of the General Assembly is the cardinal rule of statutory construction. It is
difficult to believe that the General Assembly intended Article II, Section 2.05, to be used to
remove the alderman under the circumstances that surround his absences from council
meetings. It is the duty of the courts to interpret statutes in a manner that prevents absurdity,
hardship, injustice or inconvenience, and “with the saving grace of common sense.” [State ex rel;
Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979); Espstin v. State, 366 S.W.2d 914 (1963); Loftin
v. Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991).] Here the alderman tendered his
resignation, the city council did not act upon it for over two months, and the alderman withdrew
the resignation before 90 days expired, and he expressed his intent to remain on the council. It
violates common sense to interpret Article II, Section 2.05, in a way that would deprive the
alderman of his office simply because there was no meeting of the city council between the time
he tendered his resignation and the expiration of the 90 days.
Moreover, even though Article II, Section 2.05, speaks of the existence of a vacancy after
the mayor or alderman is absent for 90 days, the city council probably has some reasonable
latitude with respect to when it passes a resolution declaring the vacancy, with 90 days being a
minimum, rather than a maximum, period of absences. For example, if we assumed that the
alderman had not attended any council meeting for 90 days, had not tendered his resignation,
and had vocally and loudly broadcast to the community that he never intended to attend another
meeting of the city council, and had the council waited, say, 120 days, before it declared his seat
vacant, it is difficult to believe that it would have violated the charter. Indeed, there could be
instances where no successful vote on such a resolution can be obtained for a period far beyond
90 days.
4. Has the city council waived the violation by failing to declare his seat vacant for eleven
months?
This question is answered in the answer to Question 3, above.
5. If the city council passes a resolution declaring the alderman’s seat vacant, can the
council appoint the same person to fill the vacancy created?
The answer would be yes if there were any reason to take that action. However, I
strongly advise the city not to declare the alderman’s seat vacant for the simple reasons that it
has never been vacant, is not now vacant, and nothing in the charter or statute requires or even
invites the city council to declare it vacant. In short, it makes absolutely no sense to declare it
vacant.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/