Can one person hold both the interim chief of police and the interim city administrator jobs in a Tennessee city at the same time?

Subject

Opinion No. 14-50, City's Interim Chief of Police Serving as Interim City Administrator, April 24, 2014

Plain-English summary

Representative Jeremy Faison asked whether a city's interim chief of police could also serve as the interim city administrator. The AG said no general state law prohibits the combination, but three other layers could.

State constitutional bar. Article II, § 26 of the Tennessee Constitution forbids any person from "hold[ing] more than one lucrative office at the same time." But the Tennessee Supreme Court has read "office" in that clause to mean state office (Phillips v. West, 1948; Boswell v. Powell, 1931). City positions like police chief and city administrator are local offices, not state offices, so Article II, § 26 does not reach them.

State statutory bar. The AG identified no general state statute that bars the combination. So as a matter of state law, the answer is yes.

Common-law incompatibility. Tennessee inherited the common-law doctrine that one person cannot hold two incompatible public offices simultaneously (State ex rel. Little v. Slagle, 1905). Incompatibility turns on whether the same person holding both offices is detrimental to the public interest or whether one office's duties interfere with the other's. A classic case is when one office is subject to the supervision or control of the other (State ex rel. v. Thompson, 1952). The AG did not decide whether these two particular offices are incompatible; it said the responsibilities of each office must be reviewed, because the question depends on the circumstances of each case.

Local laws and charter. A city's charter or a local ordinance may independently forbid dual office holding. The AG cited Hatcher v. Chairman (2009) (local law precludes city council members from holding another public office) and prior Op. 01-152 (city charter may prohibit alderman from serving as constable). The city's specific charter and ordinances must be checked.

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

Why doesn't Article II, § 26 cover city offices?

The Tennessee Supreme Court read "office" in that clause to mean state office. Phillips v. West (1948) and Boswell v. Powell (1931) are the foundational cases. The reasoning is historical: the framers were concerned with concentration of state power, not with the daily organization of municipal government, which the state delegates to cities by charter.

What is common-law incompatibility?

It is a doctrine that voids the second appointment when one person tries to hold two public offices whose duties conflict. Tennessee adopted it in State ex rel. Little v. Slagle (1905). The standard incompatibility check asks: is the public interest harmed by the same person holding both? Do the duties of one interfere with the duties of the other? Is one subordinate to or supervising the other?

Does the supervisor-subordinate relationship between city administrator and police chief automatically make them incompatible?

The opinion does not say. It identifies supervision or control of one office by the other as a recognized example of inherent inconsistency (State ex rel. v. Thompson), but it does not apply that example to the police chief and city administrator. It says only that the responsibilities of each office must be reviewed to determine whether they are incompatible under the common law.

What about interim status? Does it change the analysis?

The AG said no: state law applies the same way to interim service as to full-time service. The common-law incompatibility analysis would also apply to interim service. The charter or local ordinance might treat interim service differently, but that is a city-by-city question.

How would a city check whether its charter forbids dual holding?

Read the charter sections governing each office. Many Tennessee city charters expressly prohibit certain combinations (e.g., aldermen serving as constables, council members holding other public offices). Some charters are silent. If silent, the common-law analysis controls, and the practical question becomes whether the duties as defined in the charter conflict.

Does interim service change where you have to look?

No. The opinion treats the charter and local ordinances as the place to look for any prohibition, and says that consultation applies to service in these offices "on an interim basis" just as it would to permanent service. If the charter or a local law forbids the combination, that controls; if neither does, the common-law incompatibility framework is the remaining check.

Background and statutory framework

The Tennessee common-law incompatibility doctrine has been applied across many factual contexts in the AG's opinions. The 2014 opinion follows a long line: Op. 13-63 (Aug. 9, 2013), Op. 07-159 (Dec. 6, 2007), Op. 07-145 (Oct. 12, 2007), and Op. 01-152 (Sept. 25, 2001). The recurring framework: (1) Article II, § 26 is limited to state offices and rarely controls municipal dual-holding questions; (2) general state statutes rarely bar municipal dual holding; (3) the common-law analysis is the substantive check; and (4) the city's charter or local ordinance is the practical first stop.

The case-by-case nature of common-law incompatibility means that Tennessee courts and the AG generally describe the framework rather than declare a fixed rule for given office pairings. The relevant questions are whether the duties of one office are subject to the supervision or control of the other, and whether the simultaneous holding harms the public interest. The opinion stops at that framework and does not predict how it would come out for the police chief and city administrator.

Citations

• Tenn. Const. art. II, § 26 (no holding more than one lucrative state office at the same time)
• Phillips v. West, 187 Tenn. 57, 213 S.W.2d 3 (1948) (Tennessee Supreme Court; "office" means state office)
• Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931) (Tennessee Supreme Court; same)
• State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326 (1905) (Tennessee Supreme Court; common-law incompatibility doctrine adopted)
• State ex rel. v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952) (Tennessee Supreme Court; supervision/control as classic incompatibility)
• Hatcher v. Chairman, 341 S.W.3d 258 (Tenn. Ct. App. 2009) (Tennessee Court of Appeals; local law preclusion of dual holding by city council members)
• Tenn. Att'y Gen. Op. 13-63 (Aug. 9, 2013)
• Tenn. Att'y Gen. Op. 07-159 (Dec. 6, 2007)
• Tenn. Att'y Gen. Op. 07-145 (Oct. 12, 2007)
• Tenn. Att'y Gen. Op. 01-152 (Sept. 25, 2001)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-050.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 24, 2014
Opinion No. 14-50
City's Interim Chief of Police Serving as Interim City Administrator

QUESTION

May a city's interim chief of police also serve as the interim city administrator?

OPINION

No law of general statewide applicability prohibits a person from serving simultaneously as a city's interim police chief and interim city administrator. However, the common-law prohibition against incompatibility of offices, local laws, or a city's charter may prohibit such a dual tenure.

ANALYSIS

Article II, § 26, of the Tennessee Constitution prohibits a person from "hold[ing] more than one lucrative office at the same time." The term "office" has been construed by Tennessee courts to mean "state office." Phillips v. West, 187 Tenn. 57, 65-66, 213 S.W.2d 3, 6 (1948); Boswell v. Powell, 163 Tenn. 445, 447, 43 S.W.2d 495 (1931). The offices of city administrator and chief of police are local offices and, therefore, are not covered by the prohibition of Article II, § 26. No other constitutional provision or state statute of general applicability would prohibit the same individual from serving in both positions simultaneously, whether full-time or on an interim basis.

However, holding such dual offices may be prohibited under common-law principles, by local laws, or by a city's charter. Under the common law, there is a well-recognized prohibition against a public officer 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 Tenn. Att'y Gen. Op. 13-63 (Aug. 9, 2013); Tenn. Att'y Gen. Op. 07-159 (Dec. 6, 2007); Tenn. Att'y Gen. Op. 07-145 (Oct.12, 2007). This prohibition is generally applied when an individual occupies two inherently inconsistent offices. 63C Am. Jur. 2d Public Officers and Employees § 58 (2014). 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 and Public Employees § 38 (2002). 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). The responsibilities of each office must be reviewed to determine whether they are incompatible under the common law.

A local law or a city's charter may also prevent an individual from holding both offices simultaneously. See Hatcher v. Chairman, 341 S.W.3d 258, 263 (Tenn. Ct. App. 2009) (local law precludes members of city counsel from holding another public office); Tenn. Att'y Gen. Op. 01-152 (Sept. 25, 2001) (noting that city charter may prohibit an alderman from also serving as constable). Therefore, local laws or the city's charter must be consulted to determine whether such a prohibition applies to the offices of chief of police and city administrator, including service in those offices on an interim basis.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

EUGENIE B. WHITESELL
Senior Counsel

Requested by:
The Honorable Jeremy Faison
State Representative
202 War Memorial Building
Nashville, Tennessee 37243