TO:
Rex Barton
FROM:
Dennis Huffer
DATE:
November 7, 2003
RE:
Mayor Serving as Unpaid Volunteer Reserve Police Officer
You asked for an opinion on whether the Mayor may legally serve as an unpaid volunteer
reserve police officer. The City is incorporated under the general law City Manager-Commission
charter. The Mayor, therefore, would not be appointed, selected, or accepted for this volunteer
position by either himself or the governing body of which he is a member. It is my understanding that
the police chief initially recommends acceptance of these volunteers and the city manager either
affirms or rejects the applicant. It is also my understanding that the volunteer position is completely
unpaid and that there are no benefits attached other than tort liability coverage which is provided of
necessity because the state tort act treats volunteer police officers as employees for the limited
purpose of tort liability. Although the Mayor serving as a reserve officer could lead to some very
awkward situations, it is my opinion that in the circumstances here, this is legally permissible.
There are three (3) statutes and one (1) common law doctrine that might have some bearing
on this situation. T.C.A. § 7-51-1501 prohibits an employee of a municipality from running for a
position on the governing body unless this is specifically authorized by charter or ordinance. T.C.A.
§§ 6-54-107 and 12-4-101 prohibit contracts between members of the governing body of a
municipality and the municipality. And the common law doctrine of incompatible offices prohibits an
official from holding two (2) offices with conflicting duties.
The Election Disqualification Statute
Although § 7-51-1501 does not have any application to the present situation since the Mayor
is already in office, it would have application when and if the Mayor runs for re-election. It provides in
pertinent part:
[U]nless otherwise authorized by law or ordinance, an employee of a municipal government or of a
metropolitan government shall not be qualified to run for elected office in the local governing body of
such local government unit in which the employee is employed.
This statute does not define the word “employee.” Therefore we must look to the ordinary meaning
of the word. The American Heritage Dictionary of the English Language defines “employee” as “A
person who works for another in return for financial or other compensation.” Since there is no
compensation here, the Mayor as a volunteer police officer would not be affected by this statute.
We can also look to analogous situations in which the word is defined. The Workers’
Compensation Law, for example, defines “employee” as “every person ... in the service of an
employer ... under any contract of hire ... written or implied.” An employer under the Act must use the
services of at least five (5) persons “for pay.” T.C.A. § 50-6-102(9) and (11). In Hill v. King, 663
S.W.2d 435 (Tenn. App. 1983), the Court held that a volunteer deputy sheriff who received free
meals on occasion at the jail was not an employee for Workers’ Compensation purposes. This
deputy was also provided with a badge, uniform, and pistol. Otherwise, he received no
compensation. The Court held that “mere gratuities and gifts, unless understood by the parties to
constitute the equivalent of wages, are not considered payment under a contract of hire.” Id., 442.
The deputy was held to be a volunteer and not an employee since there was no intention that he be
paid.
The purpose of this statute is to prohibit the very awkward situation in which a city employee
also serves on the policy making body of the city (unless this is allowed locally). In a city manager
city, this would result in an employee being one of his boss’s bosses. This awkwardness also
prevails to some extent in the volunteer situation but probably not to the same extent as the
employee situation. In my opinion the Courts would recognize the distinction between a paid
employee and an unpaid volunteer under this statute and would hold it inapplicable to the unpaid
volunteer.
The Conflict of Interests Statutes
T.C.A. § 6-54-107 provides in pertinent part:
No person holding office under any municipal corporation shall, during the time for which such
person was elected or appointed, be capable of contracting with such corporation for the
performance of any work which is to be paid for out of the treasury.
Notice that the work must “be paid for out of the treasury.” That is not the case here since there is no
compensation for the Mayor as a volunteer. Part of the punishment for violating this statute is that
the offending official “shall forfeit the amount so paid.” T.C.A. § 6-54-108.
T.C.A. § 12-4-101 does not have the language about the contract being paid from the public
treasury, but the punishment section, 12-4-102, requires the offending official to “forfeit all pay and
compensation therefor.” The purpose of the conflict of interests statutes is to prevent officials from
using their positions for personal financial gain. That purpose is not served by prohibiting officials
from volunteering without pay or compensation. Therefore in my opinion the courts would hold these
statutes inapplicable here.
The Incompatible Offices Doctrine
Some states have incompatible office statutes, but in Tennessee it is a common law doctrine
recognized in State v. Thompson, 246 S.W.2d 59 (Tenn. 1952). In this case, the Board of
Commissioners of the City of Paris, which is incorporated under the same charter as your City,
appointed one of the commissioners city manager. The Court held that a body with appointive power
cannot appoint one of its own members to a position. After reviewing some of the charter provisions
applicable to the city manager, the Court says:
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, as a member of the Board, to accept or reject or modify his own
recommendation made as City Manager, or, as a member of the Board, to direct or 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. Id., 61.
It is a significant distinction in this situation that the governing body would not be appointing or
directly overseeing the Mayor in his job as a volunteer reserve police officer. Much of the Thompson
court’s rationale was based upon the notion, quoting 42 Am.Jur. § 97, that “it is contrary to public
policy to permit an officer having appointing power to use such power as a means of conferring an
office upon himself, or to permit an appointing body to appoint one of its own members.” Id.
Moreover, it is unlikely that the position of unpaid reserve police officer would be considered
an “office” that can be incompatible with another office. In Wise v. City of Knoxville, 250 S.W.2d 29
(Tenn. 1952), the Court held that a full-fledged police officer was an employee rather than an
“officer.” The Court noted that an office is generally a statutorily created position with a definite term,
compensation, and other emoluments of office. I doubt that an unpaid reserve police officer would
be considered as holding an “office” for purposes of the incompatible offices doctrine.
I hope this is helpful.