FROM: Sid Hemsley, Senior Law Consultant

August 15, 2002

Page 1

MEMORANDUM

FROM: Sid Hemsley, Senior Law Consultant

DATE: August 14, 2002

RE: Salary (and Compensation) of Mayor

You have the following question:

1. As a condition of his salary, is the mayor required to be a full-time mayor in the sense that he must be on the job during regularly scheduled business hours of the city?

2. If the answer is no, in what respect is he distinguished from the parks director?

The answer to question 1 is no. In fact, the mayor is legally entitled to his salary whether he performs his duties full time or part time, and even if he does not perform any of the duties of his office. But that is not necessarily true with respect to his “compensation” in the form of sick and vacation leave. The mayor’s salary and compensation are not the same thing.

The answer to question 2 is that the parks director is an employee, not an officer.

I will handle both questions together.

The Mayor’s Salary

Section 8.(b) of the Municipal Charter provides that:

The compensation of the Mayor and Aldermen shall be set by Ordinance, but the salary of the Mayor or any Aldermen shall not be changed during their term of office. The Mayor and Aldermen may be reimbursed for actual and necessary expenses incurred in the conduct of their official duties. [Emphasis is mine.]

Apparently, in addition to his salary, the mayor receives compensation in the form of sick and vacation leave, although I am not clear exactly under what authority he accrues such leave. I assume that the authority is §§ 4-201, 202 and 203 of the Municipal Code. Section 4-201 provides that “This chapter [Title 4, Chapter 2] shall apply to all full time municipal officers and employees except those operating under the jurisdiction of a school, utility or other separate board or commission.” [Emphasis is mine.] Section 4-202 authorizes vacation time for “All officers and employees....”, and § 4-302 authorizes sick leave for “all officers and employees....”

With respect to the salary of the mayor, I see no provision in the charter under which the mayor is denominated a full-time mayor, or otherwise required to work full time as mayor. Section 9 of the charter provides that he “....shall perform other duties imposed by this Charter and by ordinances not inconsistent with this Charter.” Any such duties would be in addition to a multitude of executive duties expressly or impliedly prescribed for the office of mayor in §§ 9, 12, 15, and 30 of the charter. But the only intimation that the mayor is a full-time mayor is that he accrues vacation and sick leave, possibly under §§ 4-201–203 of the Municipal Code.

But in all events, a mayor in Tennessee is clearly an officer. Wise v. Knoxville, 250 S.W.2d 29 (1952); Ross v. Fleming, 364 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).] One of the major characteristics of public office is that the public officer has a claim to the salary of the office and that his claim is not dependent upon the services he renders. [Wise v. Knoxville, 250 S.W.2d 29 (1952); Ross v. Fleming, 364 S.W.2d 892 (1963); Peay v. Nolan, 7 S.W.2d 818 (1928).] 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. West v. Jefferson Woolen Mills, 147 Tenn. 100 (1922), declared that “salary” has reference to compensation of clerks, bookkeepers, and other employees of like class, officers of corporations and public officers. Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 818 (1928), announced that 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.” For those reasons, the mayor is entitled to his salary until he vacates his office whether or not he works full-time.

The parks director is an employee of the city. In fact, § 22 of the City Charter provides that “The Board of Mayor and Aldermen shall appoint, for terms of not more than two (2) years, all employees who are designated, by ordinance, as department heads.” As the above cases point out, one of the main distinctions between officers and employees is that generally, the compensation of employees depends upon the service they render. If the parks director was frequently absent from her duties, it was certainly within the authority of the mayor and of the city council under § 15 of the city charter to have terminated her.

The Mayor’s Compensation

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, Section 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, Section 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” prohibitions on salary, they also stand for the propositions that any claim to salary or compensation on the part of a public official must be based on legislative authority, and that “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.” In Peay, 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.

Here let me mention Tennessee Code Annotated, § 6-54-901 et seq., which deals with a peculiar form of compensation for members of municipal governing bodies. They do not appear to be at issue in the case of the Mayor of Selmer, but an explanation of why that is so probably needs to be made.

Tennessee Code Annotated, section 6-54-901(a) provides that:

Notwithstanding the provisions of any public or private act to the contrary, in all municipalities of the state, any mayor and any member of the local governing body, and any board or committee member elected or appointed by the mayor or local governing body, and any official or employees of the municipality whose salary is set by charter or general law, may be reimbursed from municipal funds for actual expense which such municipal officer may incur as an incident to holding such office. [Emphasis is mine.]

Subsection (b) of the same statute goes on to provide that the municipality shall determine by ordinance whether or not to pay the expenses of the above officers, and if the municipality makes a positive determination by ordinance, shall enact a written policy governing what and how such expenses are to be reimbursed.

Finally, Tennessee Code Annotated, section 6-54-902 provides that:

To the extent not adequately documented as provided in section 6-54-901, expense allowances shall be considered compensation for purposes of any salary limitations as may be provided by statute, charter or private act.

The last sentence of § 8.(b) of the City Charter also provides that, “The Mayor and Aldermen may be reimbursed for actual and necessary expenses incurred in the conduct of their official duties.”

That statute and charter provision apply to expenses of officers on municipal governing bodies. The statute denominates such expenses as compensation with respect to salary limitations on such officers in statute or charter. The function of both the statute and the charter provision is to permit members of municipal governing bodies to be compensated for actual expenses of office without running afoul of such salary limitations. But the questions dealing with the Mayor, do not involve compensation for the expenses of his office, but his salary, and his compensation in the form of sick and vacation leave.

The mayor is entitled to his salary no matter what schedule he works for the city. The salary of municipal officers cannot be altered during their terms of office under Article XI, Section 29, of the Tennessee Constitution, and § 8.(b) of the City Charter. However, neither that constitutional limitation nor that limitation in the city’s charter prohibits legislation authorizing the City to give, and to increase, compensation to its mayor and council members. Indeed, § 8.(b) of the City Charter reflects legislative authority for the city to provide compensation for municipal officers in the form of sick and vacation leave. But §§ 4-201–203 of the Municipal Code provides such compensation for “full time municipal officers and employees.”

It obviously makes no sense to require a mayor to work 8:00 A.M. to 5:00 P.M., 40 hours a week Indeed, as an elected official, and under the city’s charter, there is no way for the city to require the mayor to work such a schedule, or any other particular schedule. But the city can condition the mayor’s compensation in the form of sick and vacation leave upon his working “full time.” It appears to have done so, perhaps not even realizing it, in §§ 4-201–203 of its municipal code.

But § 4-201 does not define “full-time.” My previous research on the question of what “full time” indicates that it means the number of hours customarily worked during a certain period in the labor market or business activity at issue. Generally, the time customarily worked by employees in most labor markets and in most cities in Tennessee is probably 40 hours per week. That research applies to employees, but I am not sure its logic applies to elected officials, particularly a mayor. But in order for the mayor to avoid any “charge” that because he works less than 40 hours a week, he is not entitled to the accrual of sick or vacation leave, it wise for the city to amend § 4-201 of the Municipal Code to take into account the peculiar position of the mayor.