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Officers, Agents, and Employees

It is to be noted that the provisions relating to the officers of municipal corporations are provided for in the municipal charter or by general statutory law.  The duties and functions of a municipal officer relate exclusively to the local affairs of the municipality and the municipality alone is interested in their conduct and administration[i].  Generally, officers must make their assessments on property in the manner prescribed by law.  Unless such assessments are made under warrant of law, the service rendered is gratuitous[ii].

Generally, state laws applicable to municipalities often lay down the eligibility of a person to hold office.  The right to be a candidate for public office is a valuable right, and no one must be denied this right unless the constitution or applicable valid law expressly declares him/her ineligible[iii].

The right to hold office is a valuable one and its exercise must not be prohibited or curtailed except by plain provisions of law.  If this rule permits too much latitude, then the question of eligibility cannot be corrected by the courts, but by the legislature in whom the power rests[iv].  It is to be noted that statutes and constitutions imposing restrictions upon the right of a person to hold office must receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers[v].

An officer will be disqualified from holding a second public office which is incompatible with the duties of his/her current office.  However, such provisions will not disqualify a candidate if the particular office is not prohibited by law.  Therefore, a breach of duty arises when a public official holding dual offices cannot protect, advance, or promote the interest of both offices simultaneously.  The incompatibility of offices arises only when a breach of duty results from the performance of the duties of a public office[vi].

Some jurisdictions explicitly require that a candidate for municipal office must be a registered voter “on the day the petition is filed[vii].”  Whereas, in some other jurisdictions, there will be two separate clauses containing eligibility qualifications in the statute. The first clause requires a candidate to be a registered voter and a resident of the municipality.  The second clause states that a candidate must not be an employee of the municipality[viii].

In State v. Oldner, 361 Ark. 316 (Ark. 2005), the courts have consistently recognized that a person convicted of a felony or one of the specifically enumerated offenses is disqualified from holding public office.  The presumption is that one convicted of a felony or other base offense is unfit to exercise the privilege of suffrage, or to hold office, upon terms of equality with freemen.

It is to be noted that the power to extend to its employees both compensation and benefits is ineluctably essential to the operation of local governmental units[ix].  However, if a municipal officer claims compensation for the performance of duties appertaining to his/her office, the officer must be able to point to some provision of law authorizing him/her to demand it in order to support his/her claim.

The rights, powers, and duties of the officers of a municipality are controlled by the provisions of the constitution, statutes, charter, and ordinances.  It is well established that a city’s charter is the fountainhead of municipal powers.  The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised.  It follows that agents of a city, including its commissions, have no source of authority beyond the charter.  Their powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language[x].

[i] Lambert v. Barrett, 115 Va. 136 (Va. 1913).

[ii] McGinnis v. Nelson County, 146 Va. 170 (Va. 1926).

[iii] Treiman v. Malmquist, 342 So. 2d 972 (Fla. 1977).

[iv] Hurt v. Naples, 299 So. 2d 17 (Fla. 1974).

[v] Ervin v. Collins, 85 So. 2d 852 (Fla. 1956).

[vi] Macomb County Prosecutor v. Murphy, 233 Mich. App. 372 (Mich. Ct. App. 1999).

[vii] Smith v. Brito, 2007 WY 191 (Wyo. 2007).

[viii] Hayes v. City of Sheridan, 2005 WY 10 (Wyo. 2005).

[ix] Devlin v. City of Philadelphia, 580 Pa. 564 (Pa. 2004).

[x] Alexander v. Retirement Bd., 57 Conn. App. 751 (Conn. App. Ct. 2000).

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