July 15, 2008
Re: City manager political activity
Dear Judge,
You have asked MTAS if a section of the general law, city manager-commission charter
may be enforced against a city manager who endorses candidates for city commission in his/her
city. Several courts have upheld a local government’s right to curtail the political activities of
officers and employees, and it appears this section of the general law charter may be enforced
against officers of the city only. Enforcement against employees, however, may not occur due to
conflicts with another general law.
T.C.A. ' 6-21-106 is a section of the general law charter, city manager-commission form
of government. This section of the law states:
Political activities of officers and employees - Penalties.
(a) Neither the city manager, recorder, city judge, chief of police nor any person in the
employ of the city, under any of such officers, shall take any active part in or contribute
any money toward the nomination or election of any candidate for election to the board of
commissioners, except to answer such questions as may be put to them and as they desire
to answer.
(b) A violation of this section shall subject the offenders to removal from office or
employment, and to punishment by fine of not more than fifty dollars.
This statute was passed in either 1921 or 1932, which is important to the analysis of
whether this law can be enforced, in light of a later statute passed in 1996. That statute is T.C.A.
' 7-51-1501, which states:
Rights guaranteed to local government employees.
Notwithstanding the provisions of any county, municipal, metropolitan, or other local
governmental charter to the contrary, and notwithstanding the provisions of any
resolution or ordinance adopted by any such county, municipality, or other such local
governmental unit to the contrary, every employee of every such local governmental unit
shall enjoy the same rights of other citizens of Tennessee to be a candidate for any state or
local political office, the right to participate in political activities by supporting or
opposing political parties, political candidates, and petitions to governmental entities;
provided, further, the city, county, municipal, metropolitan or other local government is
not required to pay the employee’s salary for work not performed for the governmental
entity; and provided, further, that unless otherwise authorized by law or local 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 governmental
unit in which the employee is employed.
This statute was passed several years after T.C.A. ' 6-21-106, and therefore apparently
nullifies the earlier law with regard to employees.
The question which now arises is whether a city manager is an employee or an officer of
the city. If he is an employee, then T.C.A. ' 7-51-1501 protects his ability to endorse candidates
for office on the local governing body. If the city manager is an officer, then T.C.A. ' 6-21-106
may still apply to his conduct, and prevent his active participation in local campaigns.
Tennessee Courts have never answered the general question of whether a city manager is
an officer or an employee. The issue is clouded by the enduring Aat-will@ employment status of
most cities in our state, and by charter provisions stating that the city manager serves Aat the will
of@ the governing body. Generally speaking, the power of appointment carries with it the power
to remove, so the two legal positions may not be in conflict. However, it is generally held that
officers have defined terms of office, whereas city managers do not have terms of office.
In an opinion not reaching the merits of this issue, the Tennessee Attorney General opines
that a city manager under the city manager-commission general law charter is the chief executive
officer of the city. Tenn. Op. Atty. Gen. No. 83-208. Several sections of this general law charter
support the Attorney General’s opinion, as numerous executive powers are vested in the city
manager position. It does appear that under this general law charter, the city manager is an
officer, and not an employee.
Courts in Missouri, Arkansas and New York have concluded that city managers are
officers rather than employees. City of Lexington v. Thompson, 61 S.W.2d 1092 (Ky. App.
1933); McClendon v. Board of Health, 216 S.W.2d 289 (Ark. 1919); Hansell v. City of Long
Beach, 401 N.Y.S.2d 271 (1978). In Tennessee’s Aparent@ state of North Carolina, courts have
concluded that while city managers serve at the will of their governing bodies, under statute,
contracts with city managers providing for severance packages are still legal, as long as the
contract does not negate the at-will status of the city manager. Myers v. Town of Plymouth, 522
S.E.2d 122 (N.C. App. 1999).
Despite the fact we have no court case in Tennessee on this issue, it does appear that for
the purposes of the general law, city manager-commission charter, a city manager is considered
to be an officer of the city. That being the case, T.C.A. ' 7-51-1501 would not protect a city
manager from enforcement of the prohibitions against actively participating in local election
campaigns contained in T.C.A. ' 6-21-106.
It is important to examine the language of T.C.A. 6-21-106, to make a determination if
the actions complained qualify as activity prohibited by the law. The law prohibits city managers
and others from Atake[ing] any active part in or contribute[ing] any money toward the
nomination or election of any candidate for election to the board of commissioners...@ The
clause which follows that language provides an exception: Aexcept to answer such questions as
may be put to them and as they desire to answer.@ I read this language to mean that city
managers may not be campaign chairs for candidates or spokespersons, but may respond to
questions from the media and others concerning who that officer supports in the election. If the
city manager makes an Aendorsement@ by answering direct media questions with statements
revealing who he or she supports in the local election, then in my opinion the statute has not been
violated. A city manager’s name and supporting statements appearing on campaign literature or
a city manager making speeches at campaign events would appear to be activity which is
proscribed by the law.
In my opinion, the prohibitions against city managers’ active participation in elections for
city commission seats contained in T.C.A. ' 6-21-106 is enforceable. A violation of this section
of the general law charter may be punished by removal of the city manager from office.
I hope this information is helpful. Please let me know if you need further information or
assistance.
Sincerely,
Melissa A. Ashburn
Legal Consultant