Compensation: Increasing Municipal Elected Official Pay

December 21, 2001

Ed Sumner, former General Counsel, Georgia Municipal Association

One of the frequent questions posed to GMA by city attorneys, city officials and, occasionally, news media representatives, relates to the legality and method of increasing the salaries of elected officials. Prior to the 1965 Home Rule Act, this was a matter that addressed itself primarily to the municipal charter of the individual city.

As a result of the continuing interest in this subject, we offer the following capsule review of the present statutory requirements which must be satisfied to increase the salary of municipal elected officials.

The present provision contains three subparagraphs, each of which will be discussed in turn. (1)

The first subparagraph of the provision contains the general grant of power to each governing authority of a municipal corporation to fix the salary, compensation and expenses of its municipal employees and members of its municipal governing authority. (2) This provision further authorizes the municipal governing authority to include its members and their dependents and survivors when the city provides insurance, retirement pension benefits, social security, hospitalization or workers' compensation benefits for the city employees, dependents and survivors.

With the exception of the employee fringe benefit coverages enumerated above, an action to increase the salary or compensation of elected members of the municipal governing authority is subject to several mandatory conditions and limitations. These conditions and requirements have disappointed more than one municipal official who thought that the city would be able to increase the Mayor and Council's salary at will. Any city with plans to provide a compensation increase to its elected officials should keep these limitations in mind.

The first Code limitation prohibits an increase in salary or compensation from becoming effective until the taking of office of those city officials who are elected at the next regular municipal election which is subsequent to the date on which the governing authority acted to increase compensation. (3) This limitation may appear confusing upon first review but it is not difficult to determine what the legislature was attempting to prevent after a few readings.

The underlying thrust of the limitation is to restrict the ability of a Mayor and Council to increase their salary during their current term of office.

As originally drafted, this limitation would have prevented any increase in salary of elected officials for two years in those municipalities whose officials serve two year terms with staggered elections. No city official in such a municipality would have been able to receive the salary increase until there had been a complete turnover on the council.

The Attorney General has indicated that, as presently constituted, this section will allow a salary increase to become effective for the entire council after the taking of office of only a portion of the council, when the municipality has staggered council terms. (4) It still prevents an immediate effective date of a pay increase by requiring that at least some of the members of the council have entered into a new term following an election.

The second limitation in the Code prevents a governing authority from taking action to increase salaries during the election "season." (5) The ordinance increasing the municipal salary cannot be adopted during that time period which begins with the date that candidates for election to membership on the municipal governing authority may qualify as candidates and ending with the date that members of the governing authority take office following the election. This section is to prevent any abuse by a mayor and council who may have qualified for election without opposition, waited until the closing of qualifications and the actual date of the election, and then substantially increased their salaries. In the case of such abuse the legislature viewed the ability of the municipal electorate to react to the salary increase as limited.

The final statutory requirement mandates that any action to increase the compensation or salary of the governing authority be advertised in the newspaper. (6) A notice of the intention to increase compensation has to be published in a newspaper of general circulation designated as the legal organ in the county and in the municipal corporation at least once a week for three weeks immediately preceding the week during which the governing authority adopts the ordinance to increase salaries.

The Code liberally defines elected members of the municipal governing authority. (7) The definition includes any elected municipal official who exercises any executive, legislative or executive and legislative powers of the municipal corporation. Specifically, it includes a mayor, vice mayor, president or chairman of a municipal council, a member of a municipal council, board of aldermen or member of a board of commissioners. Persons who are appointed to fill a vacancy in any of these elective offices would also be included. This particular section of the Code was added in response to a court case which found, that in at least one city, the mayor was not a member of the municipal governing authority under the particular charter in question. (8)

The final subparagraph of the Code was added by the General Assembly because of concern that some cities might attempt to "hide" a pay increase by calling it an expense allowance, without requiring that the expenses be actually incurred in carrying out municipal business. (9) A city is authorized to provide for the reimbursement of elected officials for expenses actually and necessarily incurred in carrying out official duties without triggering the limitations and requirements of the Code.

When making plans to implement a pay increase for elected members of a municipal governing authority, city officials should keep in mind the statutory pitfalls that await the unaware. In shorthand fashion, these are:
  1. Limitations on the effective date of the increase;
  2. Limitations on the time during which the municipal governing authority can take action to increase salary or compensation;
  3. Requirements for publication of notice of intent to take action to increase compensation;
  4. The inclusive definition of those individuals who are considered elected members of the municipal governing authority; and,
  5. The exclusion of only enumerated fringe benefits and reimbursement of expenses actually and necessarily incurred by members of the governing authority in carrying out their official duties from the limitations and conditions under the Act.

(1) O.C.G.A. Section 36-35-4 et seq.
(2) Id. Section 36-35-4(a).
(3) Id. Section 36-35-4(a)(1).
(4) 1980 Op. Att'y Gen. No. U80-27.
(5) O.C.G.A. Section 36-35-4(a)(2).
(6) Id. Section 36-35-4(a)(3).
(7) Id. Section 36-35-4(b).
(8) Savage v. City of Atlanta, 242 Ga. 671, 251 S.E. 2d 268 (1978).
(9) O.C.G.A. Section 36-35-4(c).

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