MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: November 15, 2002
RE: Salary and Compensation–Mayor and Aldermen
You have the following questions related to the salary for the Mayor:
1. Is he entitled to be paid a salary as an officer or employee of the city?
2. Is he entitled to be paid compensation for attendance at meetings?
3. Is he entitled to be paid compensation in lieu of insurance?
As I understand the facts related to me by you, the mayor presently receives roughly $20,000
annually in the above three forms of salary and/or compensation, some apparently as an employee of the
city. I do not know how the $20,000 is broken down among salary as an officer or employee, compensation
for attendance at meetings, and compensation in lieu of insurance.
In my opinion, the answer to the above questions are:
Question 1: The mayor is entitled under § 3.07 of the City Charter to be paid a salary as an
officer, but that he is not even entitled under any provision of the charter to be an employee of the city.
For that reason, he is not entitled to any compensation–salary or otherwise--as an employee of the city.
Question 2: The mayor is entitled under § 1-102 of the Municipal Code to compensation for
attendance at meetings because such compensation qualifies as “salary” under Tennessee case law.
However, under Article XI, § 9 of the Tennessee Constitution, that salary cannot be altered during the
mayor’s term of office.
Question 3: The mayor is not entitled to be paid compensation in lieu of insurance.
A Tennessee Constitutional provision, two City Charter provisions and one Municipal Code
provision bear on all three questions. The Tennessee Constitutional provision is Article XI, § 9, the
applicable part of which provides that, “The General Assembly shall have no power to pass a special, local
or private act having the effect of...altering the salary prior to the end of the term for which such
[incumbent] public officer was selected.”
Section 3.07 of the City Charter provides that:
....The salaries of all officers and employees of the city shall be fixed by resolution under a pay plan
applying uniformly to all officers and employees having similar responsibilities and doing like work.
Section 1.02(h) of the City Charter provides that:
“Officer” shall mean and include the mayor, aldermen, city judge, members of boards and commissions,
and any other person classified as public officers by the laws or judicial decisions of this state. An
“officer” as herein defined shall fill an “office,” and an “employee” shall fill a “position of employment.”
Section 1-102 of the Municipal Code provides that:
The mayor and aldermen shall receive compensation for services as follows:
(1) The sum of one hundred dollars ($100.00) for attendance to regular board meetings and specially called
meetings of the board....
(2) The mayor of the city shall receive the sum of twenty-five dollars ($25.00) for attendance to schedule
[sic] committed meetings for no more than four meetings per month.
Analysis of Questions 1 and 2
Public legislative bodies in Tennessee, including municipal governing bodies, have broad
authority to modify the salaries and other forms of compensation of elected officers to the extent not
limited by the Tennessee Constitution. In Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815 (1928), the
Tennessee Supreme Court held that the General Assembly could authorize the payment of expenses of its
members without violating Article II, § 23, of the Tennessee Constitution, which prescribes the
compensation of members of the General Assembly. The court reasoned that the constitutional limitation
in Article II, §23, was a “salary” and not a “compensation” limitation.
Blackwell v. Quarterly County Court, 622 S.W.2d 535 (1981), contains even more sweeping
language along that line. In upholding the right of a county to modify a pension plan, the Tennessee
Supreme Court in effect declared that within constitutional limitations, governments at both the state and
local levels have broad authority relative to salary and compensation adjustments of their elected as well as
appointed officials.
But while Peay and Blackwell distinguish between “salary” and “compensation” with respect to a
government’s authority to provide for, or increase, the latter without running afoul of constitutional
prohibitions on salary, any claim to salary or compensation on the part of a public official must be based
on legislative authority. It is said in 4 McQuillin, Municipal Corporations, Section 12.174, that:
Where the Common Law imposed a duty upon an officer, he could not claim remuneration for fulfilling it
unless the law had expressly conferred such a right. Unless the law provides a salary or compensation to
the public officer none can be recovered. This sound rule is of general application, and steadily enforced
by the courts. Any sort of claim against the public as salary, compensation, emolument, wage, fee, or
expense must be authorized by law or contract, either express or implied. [Emphasis is mine]
Similar language is found in 62 C.J.S., Municipal Corporations, Section 523: “A municipal officer
rightfully holding an office is entitled to such compensation, and only such compensation, as is provided
by law as an incident to the office.”
Peay, above, points to the same rule. There, it is said that:
Compensation attached to the office, wherever ‘salary’ or ‘per diem’ [citation omitted] is not given to the
incumbent because of any supposed legal duty resting upon the public to pay for the service, [citation
omitted] and a law creating an office without any provision for compensation carries with it the implication
that the services are to be rendered gratuitously.
Even more emphatic on that point is Bayless v. Knox County, 286 S.W.2d 579 (1955). There it
was argued that even in the absence of statutory authority for the county to pay certain expenses of the
county judge and county commissioners related to official county business the county had authority to pay
those expenses. The Court rejected that argument, declaring:
Considered on principle, the decisions of this State are directly contrary, as this Court views it, to that
assertion. In State ex. Rel Vance v. Dixie Portland Cement Company, 151 Tenn. 53, 60, 267, SW. 595,
597, it is said:
‘It is a well settled policy of the state, determined by statute and judicial decree, that public
officers can receive no fees or costs except as expressly authorized by law.’
To the same effect is State v. True, 116 Tenn. 294, 311, 95 SW. 1028; Shelby County v. Memphis
Abstract Co., 140 Tenn. 74, 84, 203 SW. 339, L.R.A. 1918E, 939; Henry v. Grainger County, 154 Tenn.
576, 578, 200 SW. 2; Stone v. Town of Crossville, 187 Tenn. 19, 24, 213 S.W.2d 678; and many others
which might be cited. There are no decisions to the contrary. [At 587]
Both Peay and Blackwell explain that absent constitutional limitations, the legislative body is
entitled to legislate with respect to salaries and compensation. But in both those cases, there was
legislative authority supporting the contested payments to the public officials.
The salary of municipal officers cannot be altered during their terms of office under Article XI, §
9, of the Tennessee Constitution. However, that constitutional limitation would not prohibit legislation
authorizing the City to give, and to increase, compensation to its mayor and councilmen.
That brings us to the question of whether § 3.07 of the City Charter supports any of the three
forms of salary/compensation the Mayor receives. As pointed out above, it provides that, “The salaries of
all officers and employees of the city shall be fixed by resolution under a pay plan applying uniformly to
all officers and employees having similar responsibilities and doing like work.” Clearly that provision
applies only to salaries and not to compensation. But an argument can be made that it was not the
intention of the General Assembly that provision even apply to the salary of the mayor and aldermen. It
ties salary to a pay plan that applies “uniformly to all officers and employees having similar responsibilities
and doing like work.” That language does not sound like it applies to the mayor and aldermen. However,
because that provision does apply to “all” officers and employees of the city, and because under § 1.02 of
the Municipal Charter the mayor and aldermen are defined as “officers” who hold an “office,” I resolve
that close question in favor of its application to the mayor and aldermen.
Because under Article XI, § 9, of the Tennessee Constitution, the General Assembly cannot pass a
private act having the effect of altering the salary of the mayor and aldermen, this question arises: Can the
General Assembly pass a private act under which the city can alter the salary of the mayor and aldermen
during their terms of office? The Tennessee courts have never directly answered that question, but I am
convinced that the answer is no. The reason is that Article XI, § 9 actually prohibits private acts that have
the effect of doing two things with respect to local government officers: (1) shortening the terms of such
officers; (2) altering the salaries of such officers. An argument can be made that if the General Assembly
passes a private act under which the city could alter the salaries of city officers, it is a private act that does
not involve the General Assembly in the altering of those salaries. That logic seems faulty to me for two
reasons:
First, no matter how such an act is sliced it is the private act that ultimately has the effect of
altering the salary, whether the alteration is done by the act itself, or the act delegates to the city the right to
alter the salary.
Second, if the argument is accepted that a private act can be passed by the General Assembly that
delegates to the city the authority to alter the salary of city officers during their terms without running afoul
of Article XI, § 9, of the Tennessee Constitution, the same argument must be accepted with respect to a
private act passed by the General Assembly that delegates to the city the right to shorten the terms of city
officers. It cannot be the law that under Article XI, § 9 a private act passed by the General Assembly can
authorize a city to shorten the term of a city officer.
As I understand the facts, it may be that the mayor is being paid as an employee. It is clear under
the law in Tennessee, as well as in § 1.02 of the City Charter that a mayor is an officer, not an employee.
[Wise v. City of Knoxville, 250 S.W.2d 29 (1952); Ross v. Fleming, 3654 S.W.2d 892 (1963); Glass v.
Sloan, 281 S.w.2d 397 (1955); Sitton v. Fulton, 566 S.W.2d 885 (1978); Gamblin v. Town of Bruceton,
803 S.W.2d 690 (1990).]. It is also the law in Tennessee that a municipal governing body cannot appoint
one of its members to an office or a position of employment over which it has appointing power, absent
some statute that expressly authorizes such an appointment. [State ex. rel. v. Thompson, 246 S.W.2d 59
(1952); Jackson v. Hensley, 715 S.W.2d 605 (Tenn. App. 1986).] I can find no such provision in the
general state law or the city’s charter authorizing the mayor to be a city employee.
Section 1-102 of the Municipal Code provides that “The mayor and aldermen shall receive
compensation for services...” for attendance at meetings. State v. Duncan, 1 Tenn. Ch. App. 334 (1901)
defines salary as annual compensation to men in official and some other situations, even if paid in
installments. But in Peay v. Nolan, cited above, one of the questions was whether the per diem allowed
legislators under Article 2, § 23, of the Tennessee Constitution was salary or compensation. It provided
that:
The sum of four dollars per day and four dollars for every twenty-five miles traveled to and from the seat
of government shall be allowed to the members of each General Assembly....But no member shall be paid
for more than seventy-five days of a regular session, or for more than twenty days of any extra or called
session, or for any day when absent from his seat in the Legislature, unless physically unable to attend.
The Senators, when siting as a court of impeachment, shall each receive four dollars per day of actual
attendance. [At 817]
The Court held that the per diem authorized by Article 2, § 23, was salary, declaring:
The term “per diem” as used in article 2, § 23 is synonymous with “salary.” The term salary imports the
idea of compensation for personal service, and not the repayment of money expended in the discharge of
the duties of the office. Troop, Public Officers, 441. Compensation attached to the office, whether
“salary” or “per diem” (22 R.C.L., p 526, note 4) is not given to the incumbent because of any supposed
legal duty resting upon the public to pay for the services. (Moore v. Stickling, 46 W.Va. 515, 33 S.E. 274,
50 L.R.A. 280), and a law creating an office without any provision for compensation carries with it the
implication that the services are to be rendered gratuitously. 22 R.C.L. p. 532. [At 917]
Peay appears to use the terms “compensation” and “salary” interchangeably, making salary part of
compensation. It also stands for two propositions that relate to compensation for the mayor and aldermen
of the City:
First, where an office is created without any provision for compensation, no compensation can be
paid for that office. The significance of that proposition for the city is that § 3.07 of the Municipal Charter
does provide for a salary for officers of the city, albeit not a salary fixed by that provision or any other
provision of the charter. It authorizes the board of mayor and aldermen to set that salary. However, we
have seen that under Article XI, § 9 of the Tennessee Constitution, that salary cannot be changed during
the term of the mayor or of the aldermen.
Second, “salary” and “per diem” are synonymous. The significance of that proposition is that
apparently the “per diem” payments to the mayor and aldermen for meetings attended under § 1-102 of the
Municipal Code qualify as “salary.”
A possible problem the city needs to consider is that it may not have followed the requirements of
§ 3.07 of the Municipal Charter in setting the salary of the mayor. As I indicated above, none of the facts I
have indicates how much salary the “pay plan” required by § 3.07 reflects salary for the mayor as the
mayor. I suspect that the per meeting salary provided by § 1-102 of the Municipal Code is outside of the
pay plan.
Analysis of Question 3
There is nothing in the Municipal Charter that authorizes any kind of compensation for the mayor
beyond salary. Under Tennessee Code Annotated, § 6-54-901 et seq., the mayor and any other member of
a municipal governing body can be reimbursed only for the actual expenses of office. Obviously, such
expenses do not include insurance. However, under Tennessee Code Annotated, § 8-27-601 et seq.,
municipalities are authorized to pay the health and other insurance costs of their officers and employees,
but nothing in that statute or any other statute or charter provision pertaining to the City authorizes the city
to pay the mayor cash in lieu of insurance.
It seems to me that such cash payments constitute salary. We have seen above that the mayor’s
salary must meet the qualifications of § 3.07 of the Municipal Charter, and of Article XI, § 9 of the
Tennessee Constitution.