Distribution of Authority Between the City Administrator and the City
Recorder-Treasurer
Summary:
MTAS was asked to analyze the question of the distribution of authority
between the city recorder and the city administrator.
Original Author:
Hemsley, Sid
Co-Author:
Product Create Date:
01/19/2007
Subject:
City administrator; City recorder
Type:
Legal Opinion
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 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]
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:
[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 office–he 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
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]
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 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