January 19, 2007
Dear Sir:
You have the following question: What is the distribution of authority for the operation of
the city as between the city administrator and the recorder-treasurer?
I have restricted the answer to this question to its express parameters. The city council,
and even the mayor, probably have authority under the City Charter, and the city council
probably has the authority under case law, to exercise some oversight over the city recorder’s
office, notwithstanding the fact that the position of city recorder is an elective office. However, I
consider those issues only to the extent that the city council or mayor might assign the city
administrator that oversight function.
Generally
The City has a home rule charter, adopted on December 9, 1954, as amended through
November 2, 2004. Under Article III, '' 4 and 5 of the charter, the recorder/treasurer is elected.
As we shall see in more detail shortly, Article VIII and other provisions of the charter, prescribe
a number of duties of the city recorder/treasurer. With respect to those duties, Article II, ' 5,
provides that among the powers and duties of the city council is the power and duty “To define
the duties of all officers and employees of the city except elected officials .” [Emphasis is mine.]
That provision is a limitation on what the city council can do with respect to defining the duties
of the city recorder.
The Officer/Employee Distinction
The City recorder/treasurer is undoubtedly an officer, and the city administrator probably
an employee, under the City Charter.
What is an “officer” as opposed to an “employee”? It is not always easy to answer
that question. A county attorney in Ross v. Fleming, 364 S.W.2d 892 (1963) and the director of
law for the Nashville-Davidson County Metropolitan Government in Sitton v. Fulton, 566
S.W.2d 887 (1978) were declared to be officers. In the former case, the Tennessee Supreme
Court, citing Glass v. Sloan, 282 S.W.2d 397, said:
In deciding whether a particular employment is an office within the
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Page 2
meaning of the Constitution or statutory provisions, it is necessary
that each case be determined by a consideration of the particular
facts and circumstances involved; the intention and subject matter
of the enactment, the nature of the duties, the method by which
they are to be executed, the end to be obtained, etc.
The line between the public office and public employment is
sometimes not too clearly marked by judicial decisions. One of the
criteria of public office is the right of the officer to claim the
emolument of said office attached to it by law. Another one of the
criteria of public office is the oath required by law of the public
officials,...another the bond required by law of certain public
officials. But in determining the question of whether or not this
Act under consideration creates an office or employment it is not
necessary that all the criteria be present, however, it has been held
on good authority that tenure, oath, bond, official designation,
compensation and dignity of position may be considered along
with many other things. [At 894]
In the latter case, the Tennessee Court of Appeals, citing 67 C.J.S., ' 2 Officers, defined
"public officer" as:
...an incumbent to a public office; an individual who has been
appointed to or elected in a manner prescribed by law, who has a
designation or title given him by law, and who exercises functions
concerning the public assigned to him by law. [At 889]
Then citing 63 Am. Jur.2d Public Officers and Employees, ' 10, the same Court said: "A
public office embraces the idea of tenure, duration and continuity, and the duties connected
therewith are generally continuing and permanent." [At 889]
It was not necessary that the charter specifically declare the law director to be an
“officer,” said the Court. The charter established the position of law director, prescribed
the performance of certain duties on behalf of the public for a fixed period of time, set
salary, etc.
The county attorney and the law director in Ross and Sitton were elected or appointed for
a definite term. Those cases also involved the question of whether those positions were public
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officials within the meaning of Art. 11, ' 9 of the Tennessee Constitution prohibiting shortening
of the term of office, or alteration of the salary, of a local government officer by private act.
In Wise v. City of Knoxville, 250 S.W.2d 29 (Tenn. 1952), the Tennessee Supreme Court
considered the question of whether a policeman was an officer or an employee. The policeman
was suspended and terminated, and subsequently reinstated to the position of police officer. He
sued for full back salary as a police officer, claiming that the city was not entitled to deduct the
money he had earned during the period of his suspension and termination. The Court held that
while a public officer would have been entitled to his full salary for the period he had been
wrongfully excluded from office, that rule did not apply to the plaintiff because a policeman was
not a public officer. The Court reasoned that:
An “officer” when used in the sense of one who holds an “office”
which entitles him to the salary for the entire term, carries with it
the idea of tenure for definite duration, definite emoluments and
definite duties which are fixed by statute. [Citations omitted.]
The charter of the City of Knoxville from beginning to end refers
to policemen as employees. Charter, secs 121, 123 and 124. In
these charter provisions, policemen and firemen are referred to
together. Certainly it cannot be said that a fireman is an officer.
If a policeman is injured in the line of duty, he receives employee
benefits as a railroad employee would. If the mayor, who is an
officer, is injured in the line of duty, he does not receive employee
benefits in such a manner.
A City Director, under the charter of Knoxville can retire a
policeman or any other employee but cannot retire an official.
The city policeman is paid a salary like a railroad engineer or a
brakeman. He must report at a certain hour and goes off duty at a
certain hour. He does the work assigned to him like a secretary or
a nurse at a municipal hospital.
A policeman is not an officer, but a mayor, a sheriff or a judge is
an officer. [At 31]
However, in Gamelin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990), the
Court, citing the first paragraph of Sitton quoted above, held that an appointed recorder who did
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not have a definite term was an officer under the charter. That case indicates that the threshold
for being an officer under a municipal charter is quite low in Tennessee. There the recorder
argued he was an employee covered by the city's personnel policies regulating termination.
Citing its definition of “officer” in Sitton v. Fulton, the Court rejected that claim, pointing to
Section 3.04 of the Bruceton City Charter, which provided that:
Section 3.04. Town recorderBappointment and duties. The board
shall appoint a town recorder who shall have the following powers
and duties as may be provided by ordinance not inconsistent with
this Charter:.... [At 692]
Without even outlining those powers and duties, the Court pointed to Gamblin’s
appointment by the board of mayor and aldermen and declared that, "It is clear that Gamblin is a
public officer or official and not an employee." [At 693]
Although the Court did not outline them, the Bruceton City Charter prescribed the
following duties for the recorder in Gamblin:
(a) To keep and preserve the town seal and all official records not
required by law or ordinance to be filled [filed?] elsewhere.
(b) To attend all meetings of the council and to maintain a journal
showing the proceedings of all such meetings, the councilmen
present and absent, each motion considered, the title of each
resolution and ordinance considered, and the vote of each
councilman on each question. This journal shall be open to the
public during regular office hours of the town subject to reasonable
restrictions exercised by the town recorder.
(c) To prepare and certify copies of official records in his office....
(d) to serve as head of the Department of Finance.
(e) to serve as town judge if appointed by the council.
(f) To coordinate under the supervision of the mayor, the activities
of all administrative divisions or line departments, serve as special
liaison between the Mayor and divisions, departments, boards,
commissions and other bodies, and perform such administrative
and executive duties as may from time to time be assigned to him
by the mayor.
Under Gamblin, by itself, the City recorder/treasurer is unquestionably an officer.
Article II, ' 8 authorizes the city council to hire a city administrator, but speaks of the
city administrator being a city employee rather than an officer, as follows:
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[The city council has the power] to employ any other employees as
the Council shall deem necessary for the efficient operation of the
city, including but not limited to a City Administrator, clerical
employees, policemen, firemen and maintenance employees.
Article X, ' 2, provides that “the Council may appoint a City Administrator to supervise
departments, offices, or agencies....” But Article VII, ' 2, says that “The duties of the City
administrator shall be as established by ordinance.”
However, Article X, ' 5 of the charter goes the opposite direction. It provides that, “The
City Administrator and every appointive officer shall before taking office take and subscribe to
the same oath of office required of the Mayor and Council.” Being denominated an officer in the
charter, and the prescription of an oath of office are indices pointing to the city administrator
being an officer rather than an employee.
But the city administrator has no tenure of officeBhe serves at the pleasure of the city
council, he has no duties prescribed by the charter, and is elsewhere in the charter spoken of in
terms of being an employee. Whatever authority the city administrator has, he derives from the
city council. Taking all of the above cases distinguishing between officers and employees into
account, it appears to me that the city administrator is an employee rather than an officer.
The significance of that distinction between the city recorder and the city administrator is
that the city recorder simply outranks the city administrator, at least within the sphere of the city
recorder’s duties. The city recorder is elected to office, has permanence, and performs permanent
duties prescribed by law-the charter.
Charter provisions mandatory
In addition, it has been held that “Officials in this state, of all kinds, act under law. Their
duties and powers are defined by law.” [See Gaines v. Galbraith, 82 Tenn. 359 (1884), at 368] It
has also been held that:
The difference in the relations between public and private agents to
their principles is well defined. A private agent will bind his
principal within the apparent scope of his authority, although he
violate instructions. [Citation omitted by me.] But with public
agents it is entirely different. Their powers and duties are defined
by statute, which is notice to the world of the limitations of their
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authority, and no pretensions of authority or customary action can
amplify that authority beyond statutory limitation. [Elliot National
Bank v. Western & Atl. R.R., 70 Tenn. 676 (1879), at 680]
It has also repeatedly been held that the provisions of charters are mandatory and that
ordinances (and presumably other municipal actions) that conflict with the charter must surrender
to the charter. [See Sitton v. Fulton, 566 S.W.2d 887 (Tenn. Ct. App. 1978); State ex rel. Lewis
v. Bowman, 814 S.W.2d 369 (Tenn. Ct. App. 1991); Tusant v. City of Memphis, 56 S.W.3d 10
(Tenn. Ct. App. 2001).]
Duties the city charter prescribes for the city recorder/treasurer
The duties the city charter prescribes for the city recorder/treasurer are:
Under Article VIII:
- “[A]ll the duties and responsibilities imposed by the statutes of the State of Tennessee,
this charter, and the ordinances of the city.” [' 1]
- “[S]ecretary to the Purchasing Committee and shall keep all records and do all other
things that may be required in this capacity.” [' 1.]
- “[K]eep and record the minutes of all meetings of City Council and preserve the same as
permanent records of the city.” [' 2]
- “[K]eep the city tax records, book, and other documents in connection there with.... and
shall give public notice of the time taxes are due and payable....” ['3]
- “[P]rovide certified copies of city records, papers, etc.” and “charge a reasonable fee as
established by the City.” [' 4]
-“ [A]ccount for all moneys in accordance with applicable law....” and “make a full report
of the financial condition of the city to the City Council....” and “take all necessary steps to
collect delinquent property taxes...” [' 5]
- “[B]e the treasurer,” and “collect, receive and receipt for taxes and all other revenues
and bonds of the city....” [' 6]
- ”[B]e the Clerk of the City Court.” [' 7]
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Article XI:
- “[R]eport to the Council without delay,” probable instances where there will be a
deficit, “indicating the estimated amount of the deficit, any remedial action taken and
recommendations as to any other steps to be taken....” [' 8]
- “[T]ransfer part or all of any unencumbered appropriation balance among programs
within a department, office or agency,” and makes written requests to the Council to transfer part
or all of any unencumbered appropriation balance from one department, office, or agency to
another. [' 9]
- Certification that appropriations are supported by unencumbered and unexpended funds,
and co-sign checks. [' 11]
Duties the city charter prescribes for the city administrator
Under Article II, ' 8, the city council has the authority “[t]o employ any other employees
as the Council shall deem necessary for the efficient operation of the city, including, but not
limited to, a City Administrator...,” and under Article VII, ' 1, the city council has the “power to
employ a City Administrator [who shall] serve at the pleasure of the city Council.”
It does not appear that the City Charter gives the city administrator any specific
independent duties and powers with respect to the city recorder’s office or functions, certainly
nothing that suggests that he can interfere with the city recorder in the performance of her duties
prescribed by the charter. Article X, ' 2 gives the city council the authority to appoint a city
administrator “to supervise departments, offices, agencies,” and Article VII, ' 2, says that “The
duties of the City administrator shall be as established by ordinance.” But as indicated above,
under Article II, ' 1(5), the city council can “define the duties of all officers and employees of
the city, except elected officials,” of which the city recorder/treasurer is one.
The city council could probably pass an ordinance giving the city administrator the
authority to supervise those departments, offices and agencies where the city charter has not
otherwise deposited such authority elsewhere
Oversight duties the city council and mayor might assign to the
city administrator with respect to the city recorder’s office
There appears no reason why, under Article II, ' 8 and Article VII, ' 1, above, that the
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city council could not give the city administrator oversight responsibilities over the office of the
city recorder in the sense that the city administrator could report and make recommendations to
the city council on the operations of that office.
Article V, ' 1 gives the mayor the power “to appoint one or more persons to examine into
the affairs of any department of the city government whenever he shall deem it necessary.” There
is no reason that I can see why the mayor could not appoint the city administrator to perform that
function with respect to the city recorder’s office, and to report back to the mayor the findings of
his examination. .
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/