FROM:
Sid Hemsley, Senior Law Consultant
DATE:
October 2, 2000
RE:
Personnel Authority of City Judges
You have the following question: Does the City Judge have the authority to appoint,
discipline, and remove the court clerk and deputy court clerk?
In my opinion the answer is yes.
The general rule is that the power to appoint an officer or employee includes the power to
remove the officer or employee. That is also the rule in Tennessee. It is said in Gillespie v.
Rhea County, 235 S.W.2d 4 (1950), that,
...the implied power to remove cannot be contracted away so as to
bind the appointing authority to retain a minor officer or employee
for a definite, fixed term. This is a universally accepted rule where
the tenure of office is not prescribed by Statute or the Constitution.
Under such circumstances the power to remove is an incident to
the power to appoint. [Citations omitted.] [At 7]
It is true that the city manager has broad personnel power under the City Charter, but
that power is limited. Article 5-I, provides for the powers of the city manager, among which is the
power to appoint and to remove city employees and administrative officers provided for under
the charter, “except as otherwise provided by law, this charter or personnel rules adopted
pursuant to this charter.” With respect to the court clerk and deputy court clerk, Section 6-B of
the charter provides that, “In addition to the inherent authority of the County Judge to issue all
warrants and other legal process coming from said court, the Clerk and Deputy Clerk as
designated by the said Judge shall likewise have authority to issue all legal process.” [Emphasis
is mine.]
Under Section 6-B of the charter, the city judge apparently has the power to appoint the
court clerk and deputy court clerk. For that reason, and in the absence of any constitutional or
statutory provision otherwise, the judge’s power includes the power to remove the court clerk
and deputy court clerk.
I want to add a final point about court clerks where the court has concurrent jurisdiction:
they might be required to be elected for four year terms. Article VI, Section 5, of the Tennessee
Constitution, provides that:
Judges of the Supreme Court shall appoint their clerks who shall
hold their offices for six years. Chancellors shall appoint their
clerks and masters, who shall hold their offices for six years.
Clerks of the Inferior Courts holden in the respective Counties or
Districts, shall be elected by the qualified voters thereof for the
term of four years. Any Clerk may be removed from office for
malfeasance, incompetency or neglect of duty, in such manner as
may be prescribed by law.
I have many times, beginning before Tennessee Code Annotated, 16-18-201, was
adopted, pointed to the possibility that Article VI, Section 5, applies to city judges who exercise
concurrent jurisdiction. Tennessee Code Annotated, section 16-18-207, permits (but does not
require) the clerk of an elected court judge to be elected. So far, there has been no case on that
question.