Can one person hold both the City Administrator and Police Chief jobs in Algood, Tennessee?

Subject

Opinion No. 13-63, Algood City Administrator Serving as Algood City Police Chief, August 9, 2013

Plain-English summary

Rep. Ryan Williams asked the AG whether one person could simultaneously serve as both the Algood City Administrator and the Algood City Police Chief. The AG concluded no, citing the local full-time rule and the common-law rule against incompatible offices. It also said the general conflict-of-interest statute would likely prevent the dual role.

Full-time requirement. The Algood Code of Ordinances Title 1, Ch. 4, § 1-401 establishes the City Administrator as a full-time position: "[t]he administrator shall give full time to the duties of his office." That alone precludes the administrator from holding any other public office, including police chief.

Statutory conflict of interest. Tenn. Code Ann. § 12-4-101(a)(1) prohibits any "officer, committee member, director, or other person whose duty it is to vote for, let out, overlook, or in any manner to superintend any work or any contract in which any municipal corporation . . . shall or may be interested" from being directly interested in such contract. The Algood Code of Ordinances Title 1, Ch. 4, § 1-402 makes the City Administrator the supervisor and coordinator of "all administrative activities of each department under the city council," with duties including making recommendations on personnel, acting as personnel officer in employment matters, and maintaining personnel files. Assuming the chief heads a city department, the AG said the administrator's supervisory role over the chief's work and employment contract would likely prevent one person from occupying both positions.

Common-law incompatible offices. Tennessee common law prohibits one person from holding two offices that are inherently inconsistent. State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326 (1905). The leading Tennessee case is State ex rel. v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952), which held that city manager and city council member offices were incompatible because the council had authority to appoint, remove, and supervise the city manager. The same logic applies here: the city administrator supervises all city departments, including the police department, even though the administrator doesn't formally appoint or remove the chief. That supervisory relationship is sufficient to make the offices common-law incompatible. The AG noted in footnote 3 that Thompson involved one elected office, but no authority confines the common-law doctrine to elected positions; non-elected administrative offices are also subject to the incompatibility rule.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For a current dual-role decision, check Algood's present charter and ordinances and the current text of § 12-4-101(a)(1). The AG assumed the versions available on the City's website in 2013 were operative.

Background and statutory framework

Algood municipal sources.

• Algood City Charter (1977 Tenn. Priv. Acts, ch. 69, § 1), §§ 2.05(1)-(2): grants the City Council authority to appoint and remove the city administrator and to establish administrative departments.
• Algood Code of Ordinances Title 1, Ch. 4, § 1-401: city administrator is full-time.
• Algood Code of Ordinances Title 1, Ch. 4, § 1-402: administrator supervises all city departments, makes personnel recommendations, acts as personnel officer.

Statutory conflict of interest. Tenn. Code Ann. § 12-4-101(a)(1):

It is unlawful for any officer, committee member, director, or other person whose duty it is to vote for, let out, overlook, or in any manner to superintend any work or any contract in which any municipal corporation, county, state, development district, utility district, human resource agency, or other political subdivision created by statute shall or may be interested, to be directly interested in any such contract.

"Directly interested" reaches the official personally or any business in which the official is a sole proprietor, partner, or controlling-interest holder.

Common-law incompatibility doctrine. State ex rel. Little v. Slagle, 115 Tenn. 336, 338-42, 89 S.W. 326, 327 (1905), recognizes the doctrine. State ex rel. v. Thompson, 193 Tenn. 395, 401-02, 246 S.W.2d 59, 62 (1952), applies it: city manager and city council member offices are incompatible because the council appoints, removes, and supervises the manager. The standard inquiry is whether occupancy of both offices is detrimental to the public interest or whether performance of one set of duties interferes with performance of the other. 67 C.J.S. Officers § 38 (2012); 63C Am. Jur. 2d Public Officers and Employees § 58 (2012). Supervisory relationship between two offices creates inherent inconsistency.

Prior AG opinions on incompatibility. Op. 13-38 (May 7, 2013); Op. 12-104 (Nov. 9, 2012); Op. 85-036 (Feb. 14, 1985).

Common questions

Can the same person be a department head and the city administrator in a smaller Tennessee city?

The opinion decides the Algood administrator and police chief roles under Algood's ordinances. It explains that two offices may be incompatible when one is subject to the other's supervision or control. A different city's charter, ordinances, and actual duties would have to be examined before applying that reasoning.

What if the city administrator is part-time?

Algood's full-time ordinance is one stated reason for the result. The opinion does not decide a part-time arrangement. It separately analyzes whether the administrator's supervision of the chief creates a statutory conflict and makes the offices incompatible under common law.

Can a city avoid this by writing the police chief out of the administrator's supervisory chain?

The AG noted that Algood's administrator does not appoint or remove the chief, but supervises all city departments, including the police department. It did not assess a revised ordinance or decide whether changing the supervisory structure would permit one person to hold both positions.

Are there ever exceptions to the common-law incompatibility doctrine?

The opinion notes that Thompson found no statute then in effect permitting the same person to be both city manager and council member. It does not identify an exception for Algood or analyze how a later statute might affect this particular pair of offices.

What happens if someone is already serving in both roles in violation of this rule?

The AG concluded that the same person may not serve as both Algood city administrator and police chief. The opinion does not address how an existing dual appointment would be unwound or what proceeding would be available.

Does this analysis apply to any city, or just Algood?

The holding concerns Algood's charter and ordinances. The opinion describes statewide conflict-of-interest and common-law principles, but whether another city's two offices are incompatible depends on its own structure and duties.

Citations

Tenn. Code Ann. § 12-4-101(a)(1). 1977 Tenn. Priv. Acts, ch. 69, § 1 (Algood City Charter). Algood Code of Ordinances Title 1, Ch. 4, §§ 1-401, 1-402. Cases: State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326 (1905); State ex rel. v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952). Prior AG opinions: Op. 13-38 (May 7, 2013); Op. 12-104 (Nov. 9, 2012); Op. 85-036 (Feb. 14, 1985).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-063.pdf

Original opinion text

August 9, 2013

Opinion No. 13-63

Algood City Administrator Serving as Algood City Police Chief

QUESTION

May the same individual serve as the Algood City Administrator and the Algood City Police Chief?

OPINION

No.

ANALYSIS

The Code of Ordinances for the City of Algood establishes the position of city administrator and specifically states that this office is a full time position. Algood Code of Ordinances Title 1, Ch. 4, § 1-401, available at http://www.algood-tn.com/page.asp?p=City Ordinances ("[t]he administrator shall give full time to the duties of his office"). This ordinance precludes the Algood City Administrator from serving in any other position, including Algood City Police Chief.

1 This opinion assumes that the Charter and Ordinances located at the City of Algood's website are current and operative.

In addition, Tennessee's general conflict of interest statute would likely prevent the Algood City Administrator from serving as Algood City Police Chief. The general conflict of interest statute provides in relevant part:

It is unlawful for any officer, committee member, director, or other person whose duty it is to vote for, let out, overlook, or in any manner to superintend any work or any contract in which any municipal corporation, county, state, development district, utility district, human resource agency, or other political subdivision created by statute shall or may be interested, to be directly interested in any such contract. "Directly interested" means any contract with the official personally or with any business in which the official is the sole proprietor, a partner, or the person having the controlling interest. "Controlling interest" includes the individual with the ownership or control of the largest number of outstanding shares owned by any single individual or corporation. This subdivision (a)(1) shall not be construed to prohibit any officer, committeeperson, director, or any other person, other than a member of a local governing body of a county or municipality, from voting on the budget, appropriation, resolution, or tax rate resolution, or amendments thereto, unless the vote is on a specific amendment to the budget or a specific appropriation or resolution in which such person is directly interested.

Tenn. Code Ann. § 12-4-101(a)(1) (emphasis added). Under this provision, the Algood City Administrator is prohibited from being directly interested in any contract he or she has a duty to vote for, let out, overlook, or superintend in any manner.

A review of the City of Algood's Charter and Ordinances reveals that the Algood City Administrator would "overlook" and "superintend" the Algood City Police Chief, thus precluding one person from occupying both of these positions under Tenn. Code Ann. § 12-4-101(a)(1). Under the Algood City Code of Ordinances, the city administrator has the duty "to supervise and coordinate all administrative activities of each department under the city council." Algood Code of Ordinances, Title 1, ch. 4, § 1-402. The administrator also possesses the following additional duties:

2 The Algood City Charter grants the Algood City Council the power to "[a]ppoint and remove" the city administrator as well as to "[e]stablish other administrative departments and distribute the work of divisions," which presumably would include the creation and appointment of the Algood City Police Chief. Algood City Charter, §§ 2.05(1) & (2), 1977 Tenn. Priv. Acts, ch. 69, § 1, located at http://www.mtas.tennessee.edu.

(1) To make recommendations to the city council for improving the quality and quantity of public services to be rendered by the officers and employees to the inhabitants of the city.

. . . .

(5) To act as personnel officer in matters of employment, dismissal, promotion or demotion of any employee, and to cause personnel files to be kept on all employees.

Id. Assuming the police chief is the head of a city department, this ordinance grants the city administrator some supervisory authority over the police chief, including supervising the police chief's employment contract with the city. This supervisory relationship would prevent the same person from holding the positions of city administrator and city police chief under Tenn. Code Ann. § 12-4-101(a)(1), given the administrator "overlooks" or in some manner "superintends" the work of the police chief.

Tennessee common law likewise prohibits a public officer from holding two incompatible offices at the same time. State ex rel. Little v. Slagle, 115 Tenn. 336, 338-42, 89 S.W. 326, 327 (1905). See also Tenn. Att'y Gen. Op. 13-38 (May 7, 2013); Tenn. Att'y Gen. Op. 12-104 (Nov. 9, 2012); Tenn. Att'y Gen. Op. 85-036 (Feb. 14, 1985). This prohibition is generally applied when an individual occupies two inherently inconsistent offices. 63C Am.Jur.2d Public Officers and Employees § 58 (2012). The question of incompatibility depends on the circumstances of each individual case, with the critical inquiries being whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one office interferes with the performance of those of the other. 67 C.J.S. Officers § 38 (2012). For example, an inherent inconsistency exists where one office is subject to the supervision or control of the other. State ex rel. v. Thompson, 193 Tenn. 395, 401-02, 246 S.W.2d 59, 62 (1952). In Thompson, the Tennessee Supreme Court concluded that the offices of city manager and member of the city council were incompatible because the council had the authority to appoint, remove, and supervise the city manager, and no statute then in effect permitted the same individual to hold these offices.

In this case, the city administrator does not have the specific authority to appoint or remove the city police chief. But, based on the ordinances cited above, the city administrator does supervise all the city departments, including the police department. For this reason, the office of city administrator and the office of city police chief would be incompatible offices for the same person to occupy under this common law principle.

3 In the Thompson case, one of the offices found to be incompatible was popularly elected whereas neither the Algood City Administrator nor the Algood City Police Chief are popularly elected. But no authority suggests that the common law principle is confined to holders of elected office.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:

The Honorable Ryan Williams
State Representative
109 War Memorial Building
Nashville, Tennessee 37243