In Tennessee, can a county mayor fire employees the county commission hired, or shut down a department the commission created?

Subject

Opinion No. 14-28, Authority of County Mayors, March 7, 2014

Plain-English summary

Three Tennessee legislators (Senator McNally, Representatives Powers and Ragan) asked the AG to settle a structural question of local-government authority: can a county mayor fire employees that the county commission hired, or shut down a department the commission created? The AG said no on both counts.

The hiring-and-firing question turns on who has the underlying hiring authority. The general background statutes setting up county legislative bodies, Tenn. Code Ann. §§ 5-5-101 to -127, do not give the commission general hiring power. Most county hiring is done by department heads (Tenn. Code Ann. § 5-21-123 and similar local-option acts) or by the county mayor as "chief executive officer of the county" with commission confirmation (Tenn. Code Ann. § 5-6-106). But specific statutes and private acts can and do put hiring authority in the commission. When the commission has hired someone under that kind of express authority, the AG applied the rule from Gillespie v. Rhea County, 191 Tenn. 487, 493, 235 S.W.2d 4 (1950): "the right to fire follows from the right to hire." Therefore the commission, not the mayor, has firing authority. The 1981 AG opinion (Op. 81-73) made the same point in mirror image: a county executive who appointed a department head, subject to commission confirmation, has the sole authority to remove that head.

The defunding-or-abolishing question runs on a similar rail. A county mayor cannot impound funds the commission has appropriated absent statutory authority (AG Op. 84-011). The AG found no general statute conferring impoundment power on the mayor to wipe out a department's budget. Section 5-9-404(a) makes budget adoption a commission function. Section 5-9-407(b) requires the commission to approve amendments to "major categories" of the budget, defined by § 5-9-407(f) as the major categories or summary accounts in the comptroller's uniform chart of accounts. If a department's whole budget is a major category, gutting it requires commission approval. Line-item amendments affecting personnel costs require budget-committee approval under § 5-9-407(c)(2)(A).

The AG then carved out the two narrow exceptions. The County Budgeting Law of 1957 allows a mayor to impound when revenue will not cover appropriations, but only with the written approval of the budget committee (Tenn. Code Ann. § 5-12-110(c)). The County Budgeting Law of 1993 allows impoundment to prevent deficit operation, but the mayor must certify the impoundment to the commission, and the commission can override by a two-thirds vote (§ 5-12-215(a)). Neither statute gives the mayor a free hand to defund an entire department.

Currency note

This opinion was issued in 2014. 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.

Common questions

Could a county mayor unilaterally fire an employee the commission hired?

No, not without express statutory authority. The AG followed the Tennessee Supreme Court's holding in Gillespie v. Rhea County that "the right to fire follows from the right to hire." If the commission was the body that hired under specific statute, private act, or local-option law, the commission is the body that fires. AG Op. 81-73 had previously applied the same rule the other direction: a mayor who hired a department head subject to commission confirmation had the sole power to fire that head.

Did the county commission have general hiring authority?

No, not generally. The AG noted that the statutes setting up county legislative bodies (§§ 5-5-101 to -127) do not contain a general hiring provision. The commission's role under § 5-23-103(d) is to adopt base personnel policies, but those govern things like vacation and compensatory time and apply alongside any agency-level policies. Most county hiring runs through department directors or through the mayor's appointment-with-confirmation channel.

Where did commission hiring authority come from when it existed?

Specific statutes and private acts. The AG cited Tenn. Code Ann. § 5-7-107 (commission can employ a construction superintendent) as one example, and AG Op. 97-068 noting that under Tenn. Code Ann. § 58-3-111(a) the commission must choose the county civil defense director. Local charters and private acts can confer additional hiring authority. The point of the opinion is that whenever the commission has been validly given that authority, it controls the firing decision.

Could a county mayor defund a department by refusing to spend its appropriation?

No. The general impoundment principle from AG Op. 84-011 says a county executive cannot impound funds the commission has appropriated unless a statute authorizes it. The AG found no general authority of that kind. Budget adoption is the commission's job (§ 5-9-404(a)).

Could a county mayor abolish a department?

No, not unilaterally. Abolishing a department is the kind of decision that, if done by spending or budget action, requires commission approval under § 5-9-407(b) (amendments to major categories of the budget) and § 5-9-407(c)(2)(A) (line-item amendments affecting personnel). The opinion presumed that an entire department's budget would be a "major category" in the chart of accounts. The structural decision to abolish a department typically requires the same body that created it: the commission.

What were the two narrow impoundment authorities the AG identified?

The County Budgeting Law of 1957 at Tenn. Code Ann. § 5-12-110(c) lets a county mayor impound appropriations when revenues will not cover them, but only with the budget committee's written approval. The County Budgeting Law of 1993 at § 5-12-215(a) lets the mayor impound to prevent deficit operation, but requires the mayor to certify the impoundment to the commission, which can override by a two-thirds vote. Both are temporary fiscal-management tools, not structural powers to dismantle a department.

Could a private act in a particular county shift the answer?

Yes. Both the hiring/firing rule and the budget rule are default rules tied to general statutes. A local private act, local-option act, or county charter could vest the mayor with broader authority. Anyone facing this question in a specific county needs to pull that county's private acts before relying on the default answer.

Background and statutory framework

Tennessee county government has a structural division of authority similar in spirit, but not in detail, to the federal separation of powers. The county commission, as the legislative body, controls the budget and certain specific hiring decisions. The county mayor, as "chief executive officer of the county" under Tenn. Code Ann. § 5-6-106(a), runs day-to-day operations, makes most appointments subject to commission confirmation, and proposes the budget.

The rule from Gillespie v. Rhea County, 191 Tenn. 487 (1950), that the right to fire follows from the right to hire, is a longstanding Tennessee Supreme Court principle. It is a presumption: the body that hires can fire. Specific statutes can reverse the presumption (some statutes give the mayor sole removal power even when commission confirmation was required for the initial hire), but absent that statutory direction, the presumption controls.

Budget impoundment in Tennessee counties has a tightly bounded set of authorities. The general impoundment ban from AG Op. 84-011 reflects basic appropriations-clause logic: once the legislative body has appropriated funds, the executive cannot refuse to spend them without statutory permission. The 1957 and 1993 County Budgeting Laws are the carve-outs, both built around fiscal solvency rather than structural authority. Neither was designed to let the mayor remake the county's organizational chart by withholding funds.

Citations

• Tenn. Code Ann. §§ 5-5-101 to -127 (county legislative bodies)
• Tenn. Code Ann. § 5-5-111 (filling vacancies)
• Tenn. Code Ann. § 5-6-106(a), (c) (county mayor as chief executive; appointments with confirmation)
• Tenn. Code Ann. § 5-7-107 (commission may employ construction superintendent)
• Tenn. Code Ann. § 5-8-602 (election of revenue commissioners)
• Tenn. Code Ann. § 5-9-404(a) (budget adoption by commission)
• Tenn. Code Ann. § 5-9-407(b), (c)(2)(A), (f) (budget amendments)
• Tenn. Code Ann. § 5-12-110(c) (County Budgeting Law of 1957; impoundment requires budget committee approval)
• Tenn. Code Ann. § 5-12-215(a) (County Budgeting Law of 1993; impoundment with two-thirds override)
• Tenn. Code Ann. § 5-21-123 (local-option act; agency director hiring)
• Tenn. Code Ann. § 5-23-103(a)-(d) (county personnel policies)
• Tenn. Code Ann. § 5-23-104 (base personnel policies content)
• Tenn. Code Ann. § 58-3-111(a) (civil defense director chosen by commission)
• Gillespie v. Rhea Cnty., 191 Tenn. 487, 235 S.W.2d 4 (1950) (Tennessee Supreme Court; right to fire follows right to hire)
• Tenn. Att'y Gen. Op. 81-73 (Feb. 2, 1981); Op. 84-011 (Jan. 19, 1984); Op. 97-068 (May 12, 1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-028.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 7, 2014
Opinion No. 14-28
Authority of County Mayors

QUESTION

Is a county mayor authorized to terminate employees hired by the county commission or to defund or abolish departments created by the county commission?

OPINION

Where a county commission has hired an employee in the valid exercise of its authority, a county mayor may not unilaterally terminate that employee unless expressly authorized. Nor may a county mayor defund or abolish an entire county department without the approval of the county commission.

ANALYSIS

A county commission's statutory authority to hire employees is limited. The statutes establishing county legislative bodies, Tenn. Code Ann. §§ 5-5-101 to -127, do not provide general authority to hire employees. Under Tenn. Code Ann. § 5-23-103(d), county commissions are involved in providing for the adoption of base personnel policies for county employees, but these base policies address only general employment matters such as vacation and compensatory time, see Tenn. Code Ann. § 5-23-104, and county officials may adopt their own personnel policies in any event, see Tenn. Code Ann. § 5-23-103(a)-(c). Local-option acts assume that county agency directors, not the county commission, generally hire and fire their employees, see, e.g., Tenn. Code Ann. § 5-21-123, and the county mayor, as the "chief executive officer of the county," generally appoints members of county boards and commissions and county department heads, subject to confirmation by the county legislative body, Tenn. Code Ann. § 5-6-106(a), (c).

We assume that the question presented is not directed at a county commission's exercise of its authority to elect or appoint a county official to a specific term, see, e.g., Tenn. Code Ann. § 5-8-602 (requiring county legislative body to elect revenue commissioners to a term of two years), or of its authority to fill vacancies in county offices, see Tenn. Code Ann. § 5-5-111.

Nevertheless, county legislative bodies do have hiring authority under certain public or private acts, local-option laws, or local charters. See, e.g., Tenn. Code Ann. § 5-7-107 (authorizing county legislative body to employ construction superintendent); Tenn. Att'y Gen. Op. 97-068 (May 12, 1997) (opining that county service director must be chosen by the county commission, in accordance with Tenn. Code Ann. § 58-3-111(a)). Where a county commission has hired an employee pursuant to lawful authority, the county commission is alone authorized to terminate that employee. See Gillespie v. Rhea Cnty., 191 Tenn. 487, 493, 235 S.W.2d 4 (Tenn. 1950) (right to fire follows from the right to hire); see also Tenn. Att'y Gen. Op. 81-73 (Feb. 2, 1981) (opining that county executive has sole authority to remove department head appointed by him, even though county commission must approve the initial appointment). In the absence of any express provision to the contrary, a county mayor may not unilaterally terminate an employee hired by the county commission in the valid exercise of its hiring authority.

Nor may a county mayor defund or abolish a department created by the county commission. Absent statutory authority, a county executive cannot impound funds previously appropriated by the county commission under its budget. Tenn. Att'y Gen. Op. 84-011 (Jan. 19, 1984). We have found no general or local-option act conferring this authority. Ordinarily, the county commission adopts the county budget for county departments and agencies. Tenn. Code Ann. § 5-9-404(a). Budget amendments to "major categories" must generally be approved by the county commission. Tenn. Code Ann. § 5-9-407(b). The term "major categories of the budget" means "major categories or summary accounts in the latest uniform chart of accounts as prescribed by the comptroller of the treasury." Tenn. Code Ann. § 5-9-407(f). Assuming that a department's entire budget is a "major category of the budget" within the meaning of this provision, any amendment defunding the department must be approved by the county commission in any county subject to this statute. Any line-item amendment that affects amounts budgeted for personnel costs must be approved by a budget committee created by law or a budget committee of the county commission appointed by the county commission to approve budget amendments. Tenn. Code Ann. § 5-9-407(c)(2)(A).

Some local-option county budgeting laws give the county mayor limited impoundment authority when it appears that county revenues will not cover county appropriations. Under the County Budgeting Law of 1957, however, such impoundments are subject to the written approval of the budget committee. Tenn. Code Ann. § 5-12-110(c). Under the County Budgeting Law of 1993, a county mayor may impound appropriations necessary to prevent deficit operation. But the county mayor must certify the appropriation to the county commission, and the commission may override the impoundment by a two-thirds vote. Tenn. Code Ann. § 5-12-215(a).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, Tennessee 37243-0205

The Honorable Dennis H. Powers
State Representative
Suite G-27 War Memorial Building
Nashville, Tennessee 37243

The Honorable John D. Ragan
State Representative
Suite G-24 War Memorial Building
Nashville, Tennessee 37243