Section 2.2 Distinguishing Between Municipal Officers and Employees

• Library: Local Government Deskbook (2017 Ed.)

B. (§2.2) Distinguishing Between Municipal Officers and Employees

While the terms “public office” and “public officer” cannot be defined with absolute precision, it has been observed that a delegation of some part of the sovereign power is an important indication of officer status as compared to mere employee status. Kirby v. Nolte, 164 S.W.2d 1, 8 (Mo. banc 1942). Such power—delegated to an individual person—“must be substantial and independently exercised with some continuity and without control of a superior power other than the law” itself. Id. A multitude of features inherent to public officer status have been provided, including:

“‘(1) the giving of a bond for faithful performance of the services required,

(2) definite duties imposed by law involving the exercise of some portion of the sovereign power,

(3) continuing and permanent nature of the duties enjoined, and

(4) right of successor to the powers, duties, and emoluments . . . .’”

None are independently controlling. State ex rel. Scobee v. Meriwether, 200 S.W.2d 340, 341 (Mo. banc 1947) (quoting State ex rel. Pickett v. Truman, 64 S.W.2d 105, 106 (Mo. banc 1933)). The determination of officer status is factually driven, and casual reference in a statute or ordinance that an individual is a “sworn officer” of a court, commission, or other government body is neither controlling nor persuasive. Meriwether, 200 S.W.2d at 342 (rejecting the notion that being a “sworn officer” has any determinative value and commenting that “[a]ttorneys-at-law are officers of the court but they are not public officers”).

Applying these principles, a court reporter has been found not to be a public officer because he or she has no sovereign power, performs no independent duties, and may be removed by a higher authority (judges) for incompetency or misconduct. Id. By contrast, the courts have summarily concluded that county judges—who enjoy broad autonomy—are public officers. See State ex inf. Stephens v. Fletchall, 412 S.W.2d 423 (Mo. banc 1967). Similar outcomes can be seen in a variety of Missouri caselaw, making it possible to draw broad distinctions between officers and employees generally based on the level of independent sovereign authority imbued in the individual person. Compare State ex rel. Hull v. Gray, 91 Mo. App. 438, 443 (W.D. 1902) (the consulting engineer of city hall was not a public officer because there was no exercise of sovereign power), with State, on inf. of McKittrick v. Williams...