Officers and Employees public.doc - MTAS

September 3, 2009 Dear Sir: You have the following questions: 1. What is the difference between an officer and an employee? 2. What is a "ministerial officer" within the meaning of the city
charter? 2. What does the term "general supervision" mean with respect to a
mayor's right to exercise general supervision over certain city officers or
employees? The answers (to the extent there are answers) are laid out below in
each section dealing with the question at issue. However, I have not reviewed the City's charter to determine what
those answers would be with particular respect to the city. I will be glad
to do that upon your request. But the material below will give you and an
idea of how to apply the charter to those questions. The Officer/Employee Distinction 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] 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 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 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 recorder: appointment 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. The meaning of "ministerial officer" Section 4 of the City Charter provides that the mayor "may make pro
tem. appointments by and with the consent of the board, to supply the place
of ministerial officers in cases of sickness, absence or other temporary
disability, under such restrictions as the board may direct." What is a
"ministerial officer"? In City of Memphis v. Shelby County Election Commission, 146 S.W.3d
532 (Tenn. 2004), the Tennessee Supreme Court held that the county election
coordinator and the commission were "ministerial officers," on the ground
that they had "limited discretion," and said this about "ministerial
officers": Black's Law Dictionary defines a "ministerial officer" as "[o]ne
who performs specified legal duties when the appropriate
conditions have been met, but who does not exercise personal
judgment or discretion in performing those duties." Black's Law
Dictionary 1113 (7th ed. 1999). A strictly "ministerial duty"
is defined as "A duty that is absolute and imperative, requiring
neither the exercise of official discretion or judgement." Id at
522. [At 5