June 15, 2006
Dear City Manager:
You have the following questions:
1. Is it legal for a city commissioner to be a volunteer firefighter?
The answer is yes, but that answer may be a close one. Section 7-305 of the Municipal
Code may give volunteer firefighters a property right in their status. If that is true, they might be
employees for the purposes of two statutes related to this question. Under the first statute,
Tennessee Code Annotated, ' 7-51-1501 et seq., a municipal employee cannot run for office on
the board of commissioners. Under the second statute, Tennessee Code Annotated, ' 12-4-101
et seq., a municipal officer cannot have a direct interest in a contract with the city. My
conclusion is that volunteer firefighters are not employees for the purposes of those statutes, but
' 7-305 of the Municipal Code makes that conclusion uncertain.
But regardless of the correct answer to this question, if the city does not think it a wise
policy for volunteer firefighters to be city officers, there is no reason it could not adopt a
regulation prohibiting them from being city officers. Likewise, such a regulation could be made
retroactive to prohibit persons who presently hold city offices from being volunteer firefighters. .
2. Is it legal for the city recorder to be a volunteer firefighter?
The answer is yes with respect to the volunteer firefighter being the city recorder. But
that answer may also be a close one for the reasons indicated in the answer to Question 1.
But even if volunteer firefighters have a property right in their positions under ' 7-305 of
the Municipal Code, they may have no property right in the office of city recorder. Section 621-108 of the general law manager-commission charter says this with respect to the city
manager’s personnel authority:
Except as provided in this charter, appoint, promote, demote,
suspend, transfer, remove, and otherwise discipline all department
heads and subordinate employees at any time, subject only to any
personnel rules and regulations adopted by ordinance or resolution
by the commission....
June 15, 2006
Page 2
I do not know what personnel rules and regulations have been adopted by the city that
might restrict how the city manager can exercise that disciplinary authority over the city recorder.
In the absence of any such rules and regulations, the city manager may have the right, on the
penalty of discipline up to termination, to prohibit the city recorder from being a volunteer
firefighter.
With respect to both questions, ' 6-21-701 of the general law manager-commission
charter provides that “The city manager shall appoint a chief of the fire department and such
other members of the department as may be provided by ordinance.” Under Title 7, Chapter 2, of
the Municipal Code, the city has a volunteer fire department. Section 7-301 provides that, “The
volunteer fire department shall be composed of a chief and no more than thirty-six (36)
physically-fit subordinate officers and firemen appointed by the city manager.” Section 7-305
provides that, “The fire chief and all subordinate officers and personnel shall hold office so long
as their conduct and efficiency are satisfactory to the city manager.” Title 4, Chapter 5 of the
Municipal Code, contains the city’s personnel policy. Section 4-502 creates a classified service,
but also creates an exempt service consisting of certain officers, employees, and other positions.
Among those positions placed in the exempt service are “(9) Volunteer personnel appointed
without compensation.” Both the city commissioner and the city recorder were volunteer
firefighters before assuming those offices. As I understand it, the commissioner and city recorder
are, like other volunteer firefighters, paid for fire calls on a per diem basis, and are paid their per
diem pay twice a year, roughly $1,500 for each payment ‘ $3,000 per annum. The city operates
under the general law manager-commission charter found at Tennessee Code Annotated, ' 6-18101 et seq.
Question 1: The City Commissioner
At least two statutes must be considered in answering the question of whether the city
commissioner can be a volunteer firefighter.
First, Tennessee Code Annotated, ' 7-51-1501 generally authorizes municipal employees
to participate in political activities, but provides that they cannot run for office on the municipal
governing body, unless a law or ordinance permits them to run for that office. There is no law or
ordinance that permits city employees to run for office on the board of commissioners.
In the attached memorandum I wrote to Mike Tallent, I extensively considered the
question of whether volunteers are employees under that statute. My conclusion was that for the
reasons outlined in the memorandum they are generally not employees. However, the courts
have made some exceptions to that general rule in the context of the Fair Labor Standards Act
(FLSA). The rationale of both the rule and its exceptions appear to me to have application to
June 15, 2006
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other contexts where the question of whether a volunteer is an employee arises. What may create
the exception to the general rule that volunteers are not employees is ' 7-305 of the Municipal
Code, which reads as follows: “The chief and all subordinate officers and personnel shall hold
office so long as their conduct and efficiency are satisfactory to the city manager.” That
provision may give volunteer firefighters a property right in their status by permitting their the
dismissal only for cause.
It has been held that property rights in government employment are created under state
law, and sometimes by ordinance or resolution where the state law is silent on that question with
respect to the government employees at issue. [See the U.S. Supreme Court case of Cleveland
Board of Education, 470 U.S. 532 (1985), and the myriad of cases on property rights in
government employment that have followed that case]. I have been unable to find any cases
involving the creation of property rights in volunteers, although I can think of no reason why
such property rights cannot be created. However, it seems to me that where property rights are
created in volunteers, they may lose their status as “volunteers” at least for certain purposes.
I am not sure whether the language contained in ' 7-305 creates a property right in the
City’s volunteer firefighters, and even if it does, whether those property rights elevate those
volunteers to “employees” for the purposes of Tennessee Code Annotated, '' 7-51-1501 and
12-4-101. Indeed, volunteers are not even members of the classified service under ' 4-502 of the
Municipal Code. But that provision also makes exempt from the classified service “Volunteer
personnel appointed without compensation.” On the other hand, ' 7-305 declares that, “All
personnel of the volunteer fire department shall receive such compensation for their services as
the board of commissioners may from time to time provide.”
The amount of “compensation received by the city’s volunteer firefighters is probably
insufficient, standing alone, to make volunteer firefighters employees,” but it is difficult to
conclude that ' 7-305 does not intend to protect volunteers in their “jobs,” the effect of which is,
at least temporarily, to protect the continuance of that compensation.
My conclusion is that ' 7-305 is not enough to make volunteer firefighters municipal
“employees” because there is still no “contract for hire” between them and the city. But I can see
a court concluding that under all the circumstances, such a contract exists.
Second, as indicated above, Tennessee Code Annotated, ' 12-4-101 et seq., reflects
Tennessee’s Conflicts of Interest Law. That law entirely prohibits direct conflicts on the part of
municipal officers, and requires municipal officers to disclose indirect interests, in the following
language:
Direct Interests:
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It is unlawful for any officer, committee member, director, or other
person whose duty it is to vote for, let out, overlook, or in any
manner to superintend any work or any contract in which any
municipal corporation...shall or may be interested, to be directly
interested in any such contract. “Directly interested” means any
contract with the official personally or with any business in which
the official is the sole proprietor, a partner, or the person having the
controlling interest... [Tennessee Code Annotated, ' 12-4-101]
Indirect Interests:
It is unlawful for any officer, committee member, director or other
person whose duty it is to vote for, let out, overlook, or in any
manner superintend any work or any contract in which any
municipal corporation...shall or may be interested to be indirectly
interested in any such contract unless the officer publically
acknowledges such officer’s interest. “Indirectly interested,”
means any contract in which the officer is interested, but not
directly so, but includes contracts where the officer is directly
interested but is the sole supplier of goods or services in a
municipality or county. [Tennessee Code Annotated, ' 12-4-101]
Section 6-20-205 of the general law manager-commission charter also contains a conflicts
of interest provision. It is less restrictive than is the Tennessee Code Annotated, ' 12-4-101 et
seq. It provides that AAny member of a local governing body of a county or a municipality who
is also an employee of such county or municipality may vote on matters in which such member
has a conflict of interest if the member informs the governing body immediately prior to the vote
as follows: [There follows magic words that the employee utters to disclose his conflict of
interest on the matter to be voted on.] In addition, subsection (b)(4) of that general law managercommission charter provision says:
Nothing in this subsection (b) shall be construed as altering,
amending or otherwise affecting the provisions of ' 12-4-104(a).
In the event of any conflict between this subsection (b) and ' 12-4101(a), the provisions of ' 12-4-101(a) shall prevail.
For that reason, Tennessee Code Annotated, ' 12-4-104(a) takes precedence over the
conflicts of interest provision in the general law manager-commission charter.
But it does not appear that the commissioner-volunteer firefighter has either a direct or an
indirect conflict of interest within the meaning of Tennessee Code Annotated, section 12-4-101.
June 15, 2006
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As I pointed out above, it is my opinion that generally volunteer firefighters are not employees,
and that in particular, the volunteer firefighters in the city are not probably not city employees.
The twin triggers to Tennessee’s Conflict of Interest Law appear to be:
- The existence of a contract between the city and the officer;
- The existence of a personal direct financial interest, or of an indirect personal financial
interest, of the official in the contract.
It would be difficult to escape the conclusion that the commissioner would have a direct
conflict of interest in the contract between the city and its volunteer firefighters (of which he is
one), if he were an employee of the city. [See Madison County v. Alexander, 94 S.W. 604
(1906); Ramsey v. Gibson County, 7 Tenn. Civ. App. (7 Higgins) 52 (1916); Cagle v. Benton
County, 181 S.W.2d 1 (1944); Southern v. Beeler, 195 S.W. 857 (1946).]
But my memorandum to Mike Tallent makes clear that the small on-call payments made
to, and even insurance and retirement benefits provided by cities to, volunteer firefighters do not
create the “contract for hire” that makes them an employee of the city; those payments and
benefits are more in the nature of “gratuities.” For the same reason, such payments and benefits
by a city to a volunteer firefighter, standing alone, probably do not create a “contract” between
the city and the volunteer that is necessary to trigger Tennessee Code Annotated, section 12-4101 et seq. But if ' 7-305 of the Municipal Code gives volunteer firefighters a property right in
their status, they may have what amounts to a “contract” of employment with the city.
In City of Knoxville v. Christenberry, 247 S.W. 98 (1922), the Tennessee Supreme Court
upheld gratuitous payments made by the board of mayor and aldermen to its members for work
they had done outside of the duties prescribed by the charter against a claim that the payments
violated the Conflicts of Interest Law. The Court reasoned that:
This is not a case in which it is sought to enforce a contract
prohibited by law. At most, from the complainant’s viewpoint, it
is one in which a municipality paid a compensation for services
rendered, and seeks to recover upon the ground that it could not
have legally contracted to pay the defendants for such services.
This distinction affords a material difference in the principles
applicable. We have not a case where there is any intimation of
fraud, graft, or moral wrongdoing of any character. These
defendants performed valuable services, and the city received the
benefit thereof in excess of compensation paid. It was perfectly
June 15, 2006
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legitimate and proper for the city to receive the benefit of this
particular service. It could have employed third persons to perform
it, and the city would have lost money in employing others to do
the services performed by these defendants. Conceding that it,
under the statute, could not contract with these defendants to
perform the services, there was no legal prohibition against their
payment for the services after they were received. The transition
does not involve in any aspect a rendering of service in pursuance
of a contract which the law prohibits being made. The defendants
did not perform the service in pursuance of a contract. It was
voluntary on their part without any agreement or understanding
that they would be paid for it, and, indeed without any expectation
that they would be paid. Not only does the case not involve the
enforcement of a contract made in violation of a statute, but it is
not even a case where a benefit was received as the result of or in
pursuance of a contract. It is merely a situation in which the
defendants rendered a valuable service without any agreement or
contract and where they accepted reimbursement for benefits
conferred and money expended. The case might be different if the
services had been rendered in pursuance of a contract which could
not be legally entered into.... [At 99]
The payments to volunteer firefighters by the City are continuing and made with a
regularity; that was not true of the gratuitous payments made by the city to its board members in
Christenberry. If the volunteer firefighters have a property right in their status under ' 7-305 of
the Municipal Code, that property right may function as a sort of “contract or agreement” that
makes Christenberry inoperative as to them.
I have concluded that ' 7-305 does not go far enough to make volunteer firefighters
employees with whom the city has a contract within the meaning of Tennessee’s
Conflicts of Interest Law, but that conclusion is not a solid one.
But even where the service by a city officer as a volunteer firefighter is not prohibited by
either Tennessee Code Annotated, ' 7-51-1501 or Tennessee Code Annotated, ' 12-4-102, the
city undoubtedly has the authority to prohibit its volunteer firefighters from serving as officers of
the city. Even the U.S. Supreme Court in United States v Boeing Company, Inc., 494 U.S. 152
(1990), has said that:
Congress appropriately enacts prophylactic rules that are intended
to prevent even the appearance of wrongdoing and that may apply
June 15, 2006
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to conduct that has caused no actual injury to the United
States....Legislation designed to prohibit and to avoid potential
conflicts of interest in the performance of governmental service is
supported by the legitimate interest in maintaining the public’s
confidence in the integrity of the federal service. [At 164-65]
I can think of no reason the same authority would not reside in state and in municipal
governments.
Indeed, the General Assembly made it mandatory that municipalities adopt ethics
legislation, and gave them broad authority in that area. Public Acts 2006, Chapter 1 (E.S.). It
does not appear that Public Acts 2006, Chapter 1 (E.S.) requires that municipal ethical standards
prohibit dual service, only that they require the disclosure of personal interests that that appear to
impact the discretion of municipal officers and employees. But it does not appear that Public
Acts 2006, Chapter 1 (E.S.) prohibits municipalities from adopting ethics polices that prohibit
members of the municipal governing body from holding positions as volunteer firefighters.
The city manager may already has the authority to dismiss volunteer firefighters who are
members of the board of commissioners. But the answer to that question depends on whether
volunteer firefighters have a property right in that status. It may be that the city has created such
a property right in ' 7-305 of the Municipal Code, which provides that “The chief and all
subordinate officers and personnel shall hold office as long as their conduct and efficiency are
satisfactory to the city manager.” Presumably, because the provision applies to “personnel” as
opposed to “employees,” it covers volunteer firefighters.
I have been unable to find any cases on the question of whether a city manager or any
other municipal officer with personnel authority can dismiss subordinate employees or other
personnel on the ground that their dual service as municipal officers affects the efficiency and
conduct under such a provision. For that reason I am reluctant to conclude that the city manager
can dismiss volunteer firefighters for that reason. But I repeat my opinion that the board of
commissioners of the city has the authority to prohibit volunteer firefighters from holding
positions as municipal officers, and had that authority even before Public Acts 2006, Chapter 1
(E.S.) was passed by the General Assembly. Moreover, it has the authority to make that
prohibition retroactive so that it covers present volunteer firefighters.
Question 2: The City Recorder
Unlike a city commissioner, under ' 6-21-401 of the general law manager-commission
charter, the city recorder is clearly appointed by the city manager. In short, the city manager has
personnel authority over both the city recorder and of the control over both the city recorder and
June 15, 2006
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of volunteer firemen. As pointed out above, the volunteer firemen may have obtained a property
right in their status under ' 7-304 of the Municipal Code, which declares that subordinate
officers and “personnel” of the fire department “shall hold office so long as their conduct and
efficiency are satisfactory to the city manager.”
But the city recorder also appears to be a member of the classified service under ' 4-502
of the Municipal Code. The significance of that fact is that ' 6-21-108 of the general law
manager-commission charter provides that among the powers of the city manager is the power to:
(2) except as otherwise provided in this charter, appoint, promote,
demote, suspend, transfer, remove, and otherwise discipline all
department heads and subordinate employees at any time, subject
only to any personnel rules and regulations adopted by ordinance
or resolution by the commission.
Title 4, Chapter 5 of the Municipal Code provides for a city personnel system, and gives the city
manager the authority to adopt personnel rules and regulations, which are to be adopted by the
city commission. I do not know what rules have been adopted with respect to the city recorder.
It may be that the city recorder is an at will employee who can be dismissed by the city manager
with or without cause. If that is true, while a firefighter may have a property right as a firefighter
under ' 7-304 of the Municipal Code, the city recorder may have no property right in his or her
job.
But I repeat here the proposition that the city commission can prohibit volunteer firemen
from holding the position of municipal officers even though such a prohibition is not contained
in Tennessee Code Annotated, ' 7-51-1501 et seq. or in Tennessee Code Annotated, ' 12-4-101
et seq., and have that right to make that prohibition retroactive.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/