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, for three independent reasons.

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. The administrator therefore "overlooks" and "superintends" the police chief's employment contract and work, creating a direct conflict if the same person holds both offices.

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.

Algood's specific charter and ordinances may have been amended since 2013. Tenn. Code Ann. § 12-4-101(a)(1) has been amended multiple times, and the common-law incompatible-offices doctrine has been refined in subsequent opinions. Anyone advising a current dual-role situation should pull the current local ordinances and verify the current general-law text.

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 answer depends on the city's specific charter and ordinances and on the supervisory structure. If the city administrator supervises the department head (which is almost always the case in a council-administrator form of government), the answer is generally no. Smaller cities sometimes combine roles informally, but those arrangements are vulnerable under § 12-4-101(a)(1) and the common-law doctrine.

What if the city administrator is part-time?

The full-time-requirement rationale in this opinion is Algood-specific. But the statutory and common-law conflict reasons apply regardless of whether the administrator is full or part time. The supervisory relationship is what creates the conflict.

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

The AG noted that the administrator doesn't formally appoint or remove the chief in Algood, but still supervises all city departments. To functionally separate the two roles, the city would need to structurally remove the police department from the administrator's supervisory chain, which is unusual and might not match the council's actual policy expectations. Most cities structure the administrator as the supervisor of all departments.

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

Yes. The legislature can statutorily authorize the dual role. Thompson explicitly noted that no statute "then in effect" permitted the same individual to hold both city manager and council member offices. If a private act or charter expressly allows the combination, the common-law doctrine yields to the statute. Algood has no such authorizing provision.

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

Common-law incompatible-offices analysis usually concludes that accepting the second office automatically vacates the first (or vice versa, depending on the analysis). A quo warranto proceeding can be filed by the state or an aggrieved party to remove the dual officeholder. The practical solution is to choose one role and step down from the other.

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

The full-time-requirement reasoning is Algood-specific (depends on the local ordinance). The § 12-4-101(a)(1) and common-law analysis applies generally to any Tennessee municipality with the same supervisory structure between city administrator and police chief. A different city's ordinances should be examined directly, but the doctrinal framework carries over.

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.

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:

(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.

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