January 9, 2006
Dear City Recorder:
The city council of the City has the following question: Does the mayor generally have
the right to vote?
In my opinion, the answer is no, except in case of a tie between candidates for the office
of alderman. However, upon a review of the law on this question, and a close review of the City
Charter, the question appears to me to be a much closer one than I had previously thought. As I
understand the facts, the city attorney has given the city an opinion that the mayor has a general
right to vote. Given certain language in the charter, I think a strong argument can be made to
support that proposition. The courts could go either way on the question. For that reason, I
recommend that the city clear up this question by amending the charter to make it clear whether
the mayor has the general right to vote.
In Tennessee, a mayor is a member of the legislative and administrative bodies of the city
only to the extent expressly provided in the charter or statute. [See Reeder v. Trotter, 142 Tenn.
37, 215 S.W. 400 (1919) and Anderson v. Town of Gainesboro, 1992 WL 33893 (unreported)].
The actual question in Reeder was whether the county judge of the Knox County Court
could vote. No, held the Court, reasoning that the county judge was not a member of the county
court. It was conceded in that case that Anone of the legislative enactments, pertaining to the
office of county judge, expressly constitute him as a justice of the peace, or a member of the
county court, or authorize him to vote upon any measure coming before said court.@ [At 400]
The first thing the Court did was state the rule governing voting on the part of a presiding
officer of a governing body, based on his membership of that body:
Where the presiding officer is a member of the
body, and, as such member, permitted to vote with
the other members, the fact that he was chosen to
act as presiding officer would not deprive him of
that privilege. For example, in a county where the
county court is presided over by a county chairman,
he, being a member of said court, clearly has the
right to vote. In our state Legislature each body
chooses one of its members as speaker. The
Constitution is silent as to their right to vote, but
being members they unquestionably have the right,
and have always voted as other members. The same
is true as to the speaker of the House of
Representatives in the National Congress. The
Constitution of the United States expressly provides
that the Vice President shall be President of the
Senate, but shall have no vote unless they be equally
divided. Not a single case has been brought to our
attention in which it has been held that a presiding
officer of any organization, in the absence of
express authority, has a right to vote where he is not
a member of such organization.
Important with respect to the City’s question is that in support of its holding, the Court
turned to various treatises and cases dealing with the voting rights of municipal mayors. Closely
read, those treatises and cases indicate that a mayor’s right to vote involves two questions:
1. Is a mayor a member of the city’s legislative body?
2. If the mayor is a member of the city’s legislative body, does he have the same
legislative powers as other members of the city’s legislative body?
I will quote at length what the Court said on both those questions:
Dillard on Municipal Corporations, vole 2, ' 513, says: AThe
question of whether the mayor of a city shall be regarded as a
member of the council is one of legislative intent. It is within the
power of the legislature to confer upon him the functions of a
member of the council in every respect, and if the legislation on
that subject calls for that construction he will be so regarded. But
in American Jurisprudence the mayor is not necessarily a
constituent part of the legislative power of the municipality. His
functions are intended to be, and usually are, of an executive or
administrative character, and whatever power he may at any time
exercise in the legislative functions of a municipal government is
never to be implied, but must find its authority in some positive
statute. In this view, in the absence of a statute necessarily
implying that he has the same standing in the council, as any other
member, and particularly when his powers are expressly stated to
be to preside at meetings and to give a casting vote in case of a tie,
he is only a member of the council sub moto, and to the extent of
the powers specially committed to him.@ [At 401] [Emphasis is
mine.]
In Jacobs v. San Francisco, 1001 Cal. 121, 34 Pac. 630, the
Supreme Court said: AThe mayor is not...necessarily a constituent
part of the legislative power of the municipality. His functions are
of an executive or administrative character....Whatever power he
may at any time exercise in the legislative functions of a municipal
government is never to be implied, but must find its authority in
some positive statute.
In Cate v. Martin, 70 N.H. 135, 47 Atl. 54, 48 L.R.A, 613, Judge
Blodgett for the Supreme Court of that sate said: AThe mayor of a
city is not an alderman or councilman of the city in a general or
proper sense of those terms...He is not a member of either branch
[legislative or administrative] of the city council unless expressly
made by such law;...and when this is the case, it is to the extent of
such powers as are specially committed to him, and no further that
he is a part of the city council. He is not one of its own members
in the sense of which an alderman is; ...nor has it been understood
that he is to be counted in determining the presence of a quorum...
Applying the principles of these authorities (and none have been
found to the contrary) to the statutory provisions relating to the
mayor and aldermen cited in behalf of the defendants, the result is
indubitably to establish the proposition that while the mayor is a
constituent part of the...board for some special purposes, he sits
and acts in the board not in the capacity of an alderman, but in the
capacity of an ex officio presiding officer, and exercises those
powers only which have been specially committed to him as the
chief executive officer of the city. [At 401]
If the mayor, who presides at the council meeting, is not a member
thereof, nor entitled to vote in the absence of express legislative
authority, then by the same parity of reasoning, it seems to us that,
in the absence of such express authority, the county judge cannot
be held to be a member of the county court and clothed with
authority to vote as a member thereof, or vote in case of a tie. [At
402] [Emphasis is mine]
In Gainesboro v. Anderson, above, the question was whether the mayor had the right to
vote on all matters that came before the board. The trial court held that the answer was yes, but
reversed itself upon rehearing. The Tennessee Court of Appeals upheld the trial court, which,
quoting Reeder v. Trotter at length, said that:
If the mayor of a city is to be allowed to vote as a member of the
board of mayor and aldermen, he must be given that authority
expressly and not by implication. There is nothing in the charter
of the Town of Gainesboro or any amendment thereto which
expressly gives the mayor the authority to vote. [At 4.] [Emphasis
is mine.]
I am exquisitely familiar with this case because on October 10, 1990, I gave the City of
Gainesboro an opinion that under its charter the mayor of the City of Gainesboro had the right to
vote. Nowhere in the charter was there any express language giving the mayor the right to vote,
but I pointed to all the places in the charter that gave the AMayor and Board of Aldermen@ of the
City legislative powers, and concluded that by implication they gave the mayor the general right
to vote. A declaratory judgment action by the mayor resulted in the trial court holding that the
mayor had the general right to vote on all matters. My opinion turned out to be wrong; I was not
aware of Reeder v. Trotter at the time and neither was the trial court. Subsequently, on a
rehearing of the case at which that case was brought to its attention, the trial court reversed itself.
I have attached that opinion and the references in the charter to the legislative powers of
the mayor and board of aldermen that are found in the Gainesboro City Charter. Note that one
reference is to ' 9, in which even provides that Athe Mayor and Board of Aldermen shall elect a
Town Recorder, a Town Treasurer, and a Town Marshal, and that Athey shall also...elect three
qualified voters [to become school directors], that annually thereafter, they shall elect one
member of said board for a term of three years...., and that AThey shall...appoint all necessary
committees to carry out the provisions of the charter, and all ordinances passed by them
hereunder, and shall fill all vacancies [in the above offices]. I was certain that the references in
the charter to the legislative powers of the “Board of Mayor and Aldermen,” especially those
spoken of in terms of “they” and “them” was convincing evidence that the intension of the
charter was to give the mayor the same right to vote as the aldermen. But those provisions were
not enough to give the mayor the right to vote, said the Court.
It must be said that the vesting of those legislative powers in the Gainesboro City Charter
were to the “Mayor and the Board of Aldermen” rather than to the “Board of Mayor and
Aldermen.” However, Anderson v. Town of Gainesboro interpreted Reeder v. Trotter to mean
that the mayor’s claim to a right to vote as a Amember of the board of mayor and aldermen@
must rest upon an express provision in the charter that gave him the right to vote. For that
reason, the distinction between a charter that vests legislative power in a “Board of Mayor and
Aldermen” as opposed to a “Mayor and Board of Aldermen” appears to me to be a distinction
without a difference. Had that Gainesboro City Charter vested the legislative power in the “Board
of Mayor and Alderman,” the result would have been exactly the same.
It must also be said here that Anderson v. Town of Gainesboro is an unreported case.
That is significant because unreported cases do not have the precedential value of reported cases.
However, they are still weighty; other courts are not likely to ignore it as they determine the law
on similar questions.
It appears to me that the application of Reeder v. Trotter, and of Anderson v. City of
Gainesboro to the question of whether the mayor can vote requires us to ask and answer two
questions:
First, is the mayor a member of the Board of Mayor and Aldermen?
There is no question that the mayor of the City is a member of the board of mayor and
aldermen. In fact, ' 2(3) of the charter defines “Board” as “the legislative body of the city,
which shall be composed of the mayor and seven (7) aldermen....” In addition, ' 2(1) of the
charter defines “Alderman” as “a person elected to the board as provided in this charter.”
Finally, numerous other provisions of the charter speak of the “Board of Mayor and Aldermen,”
such as:
- Section (4)(b): Gives the “[t]he Board of Mayor and Aldermen” the authority to
establish and operate a cable television service.
- Section 6:
The legislative powers of the city shall be vested in and exercised
by a Board of Mayor and Aldermen elected under the provisions of
this act, over whose meeting the Mayor shall preside. Any form of
board action shall be passed by a majority of the members present,
if there is a quorum. A quorum shall consist of our (sic) Aldermen.
Other provisions of that section require the ABoard of Mayor and Aldermen@ to hold meetings,
Aappoint, promote, suspend, transfer and remove from office any officer or employee of the
city,@ and appoint heads of, and combine, administrative offices or organizational units.
- Section 9: “Any vacancies occurring either of the Mayor or the Aldermen, whether by
death, resignation or otherwise, shall be filled by the remaining members of the Board....”
The same section also provides that “Whenever, in the opinion of the Mayor or three (3)
Aldermen, the welfare of the City requires it, the Mayor or the Recorder shall call, and it shall be
their respective duties to do so, special meetings of the Board of Mayor and Aldermen....”
- Section 11: “The Board of Mayor and Aldermen shall at the regular meeting in October
next following the City election an Aldermen to the office of Vice-Mayor....”
- Section 12: “The Board of Mayor and Aldermen shall at the regular meeting in October
next following the City election elect the Mayor or an Alderman to the office of City Judge....”
Section 13:”The Board of Mayor and Aldermen shall appoint a City Recorder....”
Section 14: “The Board of Mayor and Aldermen shall appoint a Chief of Police [who]
shall work under the immediate direction of the Mayor and Board of Aldermen.”
The same section provides “The Chief of Police may be removed from office by the Board of
Mayor and Aldermen at any time for cause.”
Section 17: The “Board of Mayor and Aldermen” settles tie votes among candidates for
the board of education “by a majority vote at their first meeting.”
Section 18: With respect to ordinances, “Any form of Board action shall be passed by a
majority vote of members present, if there is a quorum.”
Second, if the mayor is a member of the Board of Mayor and Aldermen, does he
have the same legislative powers as other members of the board? In the case of the City,
the particular question is whether he has the right to vote.
Section 10 of the City Charter denominates the mayor the chief executive officer of the
city and gives him certain administrative and disciplinary powers of city employees, and
authorizes the board by ordinance to give him additional functions and duties not incontinent
with the charter. Section 6 of the charter vests the legislative powers of the city in the “Board of
Mayor and Aldermen...over whose meetings the Mayor shall preside.” The same provision
declares that “Any form of board action shall be passed by a majority of the members present, if
there is a quorum. A quorum shall consist of four Aldermen.” Section 7 apparently gives the
mayor the right to vote in cases of ties between candidates for aldermen: AIf two or more
candidates for Aldermen from the same ward receive the same number of votes...then the Mayor
and Aldermen elected, between whom there is no tie, shall settle such controversy by a majority
vote at their first meeting.@ If there were nothing else in the charter to indicate otherwise,
arguably the mayor fits right into the box that Reeder v. Trotter and Anderson v. Town of
Gainesboro drew for a mayor who is a member of the board of mayor and aldermen for the
limited legislative power to preside, but who cannot vote because the charter does not expressly
give him that legislative power, except in the case of a tie:
“His functions are intended to be, and usually are, of an executive
or administrative character, and whatever power he may at any
time exercise in the legislative functions of a municipal government
is never to be implied, but must find its authority in some positive
statute. In this view, in the absence of a statute necessarily
implying that he has the same standing in the council, as any other
member, and particularly when his powers are expressly stated to
be to preside at meetings and to give a casting vote in case of a tie,
he is only a member of the council sub moto, and to the extent of
the powers specially committed to him.”
But what makes the answer to your city’s question a much closer one than it was in
Anderson v. Town of Gainesboro, is that, as was pointed out above. '' (2)(1) and (2)(3)
respectively define the “Board” as the legislative body of the city, which shall be composed of
the mayor and seven (7) “aldermen,” and “Alderman” as “a person elected to the board as
provided in this charter.” The first definition tells us what we have already concludedBthat the
mayor is a member of the board of mayor and aldermen, a status that does not in and of itself
give him the right to vote. But the second definition, that of AAlderman,@ seems important for
this reason: both the aldermen and the mayor are elected under this charter; there is no separate
definition of Amayor@ in ' 2 of the charter. If the mayor is expressly defined as a member of the
board of mayor and alderman under the charter, and the charter also declares that an AAlderman@
is Aany person@ elected under the charter, it is arguably the intention of the charter that he have
the status of an alderman. If the mayor has the status of an alderman, how can it be argued that
he does not have the same right to vote as does any alderman?
The mayor’s status as an aldermanBif indeed, that is what ' (2)(1) of the charter confers
on him--permits an interpretation of ' 6 of the charter (which vests the Alegislative powers of the
City@ in the ABoard of Mayor and Aldermen) that permits the mayor to be counted toward a
quorum under that section and to be counted as a part of the Amajority of members present@
entitled to pass measures. [Also see ' 18 of the charter on the same point.]
In my opinion, the language in both Reeder v. Trotter and Anderson v. Town of
Gainesboro is strong for the proposition that even if the mayor is a member of the board of mayor
and aldermen, his claim to a general right to vote must still rest upon some express authority
found in the charter or other statute; the definition of AAlderman@ in the charter is not enough to
bestow the status of aldermen on the mayor. The only express authority for the mayor to vote in
the City Charter is in connection with tie votes for mayor and aldermen.
But as I indicated at the beginning of this letter, I also think that a strong argument can be
made that because the City Charter expressly makes the mayor a member of the board of mayor
and aldermen, and defines the term AAlderman@ in a way that could easily include the mayor, the
mayor might have the same general right to vote as any alderman even if the charter does not
expressly give him that right. It is said in both Reeder v. Trotter and Anderson v. Town of
Gainesboro, that:
The question whether the mayor of a city shall be regarded as a
member of the council is one of legislative intent. It is within the
power of the Legislature to confer upon him the functions of a
member of the council in every respect, and if the legislation on the
subject calls for the construction he will be so regarded.[At 401 in
Reeder, and at 4 in Anderson.]
The same language goes on to say that the mayor has limited legislative powers Ain the
absence of a statute necessarily implying that he has the same standing in the council as any other
member....@ The provision of the charter that defines an AAlderman@ as Aa person elected to
this board as provided in this charter@ may have supplied the statute Anecessarily implying@ that
the mayor has the same power to vote as any other Aalderman.@
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/