Alabama Advisory Opinions January 23, 1992: AGO 92-00145 (January 23, 1992)

Advisory Opinion Text

Honorable Clyde Alan Blankenship

City Attorney

City of Huntsville

Post Office Box 308

Huntsville, Alabama 35804

Municipalities - Municipal Councilmen - Offices and Officers - Term of Office

Section 2-14 of Ordinance No. 91-554 which permits the city council to reorganize and elect a new president and/or president pro tern is not prohibited by any provisions of Alabama law.

Dear Mr. Blankenship:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION

Whether Section 2-14 of Ordinance No. 91-554, insofar as it permits the City Council to reorganize itself at any time by a 4/5 vote and, consequently, to remove the then current president and/or president pro tern of the Council from such office (not from the Council) is a valid provision under the laws of the State of Alabama.

FACTS AND ANALYSIS

According to your request on October 1, 1990, the Huntsville City Council held its organization meeting as provided by Code of Alabama 1975, § 11-43-44, and elected a president and a president pro tem as officers of the council. At the time of these elections, the terms of the officers were not fixed by ordinance or state law. On October 21, 1991, the City Council adopted Ordinance No. 91-554 which established certain rules of procedure for the Council. These rules were adopted pursuant to the authority found at Code of Alabama 1975, § 11-43-52. Section 2-14 of Ordinance No. 91-554 provides:

"Following the oath of office, the members of the City Council shall elect, by a majority vote of the Council membership, a president, a president pro tempore, and a third presiding officer from among their number. In the event that no member receives a majority of votes for the office of president, then the member receiving a majority of votes for the office of president pro tempore shall preside and serve as president until such time as a president is elected.

"At the first Regular Council meeting in October of each year (except for years in which there is a municipal election), the Council shall elect new officers and reorganize the Council for the coming year. The presiding officer shall declare all offices and committee assignments vacant and shall yield the chair to the City Clerk-Treasurer to preside until election of a president. The rules of procedure for electing officers and organizing the Council shall be the same as those to elect officers and organize the Council after a municipal election. Officers may succeed themselves. All Committee appointments and assignments shall continue and remain in effect until the first meeting of the Council in each October, and thereafter until their respective successors are appointed or assigned.

"At any regular meeting of the City Council, upon motion duly made and seconded, the City Council may elect to call for a special reorganization meeting, provided such motion to reorganize is approved by a vote of four-fifths of the Council membership. If the City Council approves the motion to reorganize, then it shall conduct a special organization meeting at the end of the meeting where such motion to reorganize is approved. At such meeting, a vote of the majority of the Council shall prevail. The meeting time and place, and procedures for reorganization, shall be the same as those procedures for election of officers and reorganization provided in the preceding paragraph."

At a regular meeting of the City Council on November 14, 1991, the Council passed a motion calling for a special reorganizational meeting pursuant to the third paragraph of Section 2-14 as cited above. A new president was elected at this meeting and the then current president pro tem was reelected.

The City of Huntsville operates under a mayor/council form of government pursuant to Act No. 738, Acts of Alabama 1971, p. 1453. Section 3 of this Act provides:

"On the first Monday in October after the election, the members of the council elected pursuant to this Act shall assemble and organize and choose a chairman or president of the council from among their own number."

It is generally held that when the governing body has the power to choose its own presiding officer from its own members the office is held at the will and authority of a majority of the members and, therefore, the governing body has the inherent power to remove the officer at any time, unless prohibited by some express constitutional or statutory provision. McQuillin, Municipal Corporations . Vol. 4, § 13.19, p. 690. Neither Act No. 738 nor any other provision of law specifies a term of office for the president or president pro tem.

CONCLUSION

It is our opinion that Section 2-14 of Ordinance No. 91-554 which permits the city council to reorganize and elect a new president and/or president pro tern is not prohibited by any provisions of Alabama law.

I hope this sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General

JAMES R. SOLOMON, JR. Chief, Opinions Division