March 15, 2007
Dear Sir:
You have the following question: Can the board of mayor and aldermen [which I
will refer to as the “city council” so that when I speak of “board” there will be no confusion
over whether I am speaking of the board of mayor and aldermen or the utility board]
replace the member of the city’s utility board who was a member of the city’s governing
body but who was not re-elected to office in the last election?
That question arises from the following facts: In 2005, the City replaced its city charter
with Private Acts 2005, Chapter 76. That Act provides for a Utilities Board of seven members
(an increase of two from its previous charter). Approximately one-and-a-half years ago the board
of mayor and aldermen appointed two members of the board to be members of the utility board.
Neither of those two members were re-elected to the city council in the recent city election; one
did not run for re-election and one was defeated.. The former member of the city council who
did not run for re-election resigned from the utility board; the former member of the city council
is still serving on the utility board. The question involves that member of the utility board.
The answer is that the term of office of the member of the utility board in question
has expired, his term as a member of the city’s governing body having expired. He is a
holdover in that office and in that capacity is probably a de facto member of the board. He
canBand should be--replaced by the city council simply by its appointment of a
replacement from among the membership of the city council. In fact, at some point in the
near future his de facto status will become highly questionable.
Pre-Analysis Issues Raised By ' 18 of City Charter
Let me say several things here in connection with my study of this question:
- While the method of filling the vacancies of members of the utility board who are also
members of the city council appear clear, the method is woefully complicated and difficult to
understand unless it is read repeatedly. I suggest a charter change which provides for a specific
number of seats on the utility board that must be filled with members of the city’s governing
body, and which provides that the terms of those members of the utility board are concurrent
with their membership of the city council. The six year term for members of the utility board,
including the members of the utility board who are members of the city council unnecessarily
confuses the issue of which category of membership on the utility board serves what terms.
- Under ' 16D of the city’s previous charter, the members of the utility board were
appointed for terms of six years, except for the members of the first board who were appointed to
staggered terms. No such provision appears in the new city charter; likewise with respect to any
provision that would provide for the orderly transition of the board from five to seven members
and the continuation of staggered terms. Such a provision desperately needs to be inserted into
the charter. I have no idea how the stagger of the present members of the utility board has been
accomplished, and how the positions of the two members of the utility board who were also
members of the city council, and their replacements, are affected by the stagger. As will be
pointed out below, the terms of all the members of the utility board under ' 18 of the new city
charter are six years.
- There are some possible implications for Article XI, ' 9, of the Tennessee Constitution
with respect to the appointment of members of the utility board to six years terms and possibly
truncating those terms where they have been appointed with no reference to a staggered system.
Article XI, ' 9, prohibits the General Assembly from passing any private act that has the effect of
shortening the term of elected or appointed “officers.” It is not clear whether Article XI, ' 9
applies to members of utility boards, but I have written a good bit on that question and will be
glad to share it with you. I do not do so here because it appears to me clear that under ' 18 of the
City Charter, the term of members of the utility board who are also city council members are
concurrent with their terms as members of the city council. For that reason, their terms are not
shortened within the meaning of Article XI, ' 9. However, it may be that the terms of “civilian”
members of the utility board are shortened if they are appointed to six year non-staggered terms
and their terms are shortened in the process of accomplishing a staggered system.
Analysis of Your Question
Section 18 of Private Acts 2005, Chapter 76 makes it clear when the term of members of
the utility board who are also members of the city council begin and expire. The pertinent parts
of ' 18 provide that:
....there is hereby created an administrative body to be known as
the “Utilities Board.” The board shall consist of seven (7)
members each of whom shall be a qualified voter of Your City,
Tennessee. Each member shall serve for a term of six (6) years
and be elected by majority vote of the board of mayor and
aldermen of the City, Tennessee.
At least one (1) member of the Utilities Board elected by the board
of mayor and aldermen of the City must be a current member of the
board of mayor and aldermen.... When the board member’s elected
term of office on the board of mayor and aldermen expires, such
member’s membership in the Utilities Board likewise expires and
the board position shall be vacant until filled by the board of mayor
and aldermen for period extending until the completion of the six
(6) year term of office. At such time the board of mayor and
aldermen may elect a new member from among their board or may
reinstate the existing member for a new six year term.
There appears to be no legal problem with the city council’s appointment of two members
of the city council as members of the utility board. Section 18, above says, At least one (1)
member of the Utilities Board elected by the board of mayor and aldermen of the City must be a
current member of the board of mayor and aldermen. The word phrase “at least” strongly implies
that the city council can appoint more than one member of the city council as a member of the
utility board. I do not know what the upper limit on that number would be. Fortunately, we do
not have to address that question because clearly ' 18 contemplates the prospect that at least two
members of the city council would be appointed to serve on the utility board.
The first paragraph of ' 18 generally provides for terms of six years for members of the
utility board. As the second paragraph of ' 18 indicates, the same thing is true of members of
the utility board who are members of the city council. However, in spite of that confusion
created by the general term provided in paragraph 1, the second paragraph of ' 18 also makes it
abundantly clear that while the terms of office of all utility board members are six years, the
members of the utility board who are members of the city council serve only the part of their
terms that are concurrent with their terms on the city council:
When the board member’s elected term of office on the board of
mayor and aldermen expires, such member’s membership in the
Utility Board likewise expires and the board position shall be
vacant until filled by the board of mayor and aldermen for a period
extending until the completion of the six (6) year term of office....
In my view, there is no ambiguity in that provision: When the city council member’s
term expires, his position on the utility board automatically ends notwithstanding the fact that
generally the terms of all members of the utility board are six years. Even the city council
member who resigned from the utility board would not have had resign for his term to have
ended; it automatically ended when his term of office on the city council ended.
But even if there were an ambiguity created by paragraphs 1 and 2 in ' 18 with respect to
the terms of members of the utility board who are also members of the city council (which I do
not concede), the first paragraph reflects a general statute on the terms of utility board members,
and the second paragraph reflects a specific statute on the terms of utility board members who are
also members of the city council. Under the rules of statutory construction specific statutes
govern general statutes. Another rule of statutory construction requires that ambiguous statutes
are to be read together, and reconciled so that each of them has meaning. If the first paragraph of
' 18 is read to mean that the terms of members of the utility board who are also city council
members continue in office for six years notwithstanding the fact that they are not current
members of the city council, it would totally render meaningless the abundantly clear part of
paragraph 2 of ' 18, which plainly says that the terms of members of the utility board who are
members of the city council expire and remain vacant until filled by the city council for a term
extending to the completion of the six year term of office.
How are such positions on the utility board filled, and for what term?
Section 18 provides that the term of a utility board member ends when his term of office
on the city council ends, and his position remains vacant until it is filled by the city council
“for a period extending until the completion of the six (6) year term of office.” In other words,
the city council fills the vacancy in the utility board which was held by a member of the city
council for a period extending to whatever period remains on the six year term of office.
Conceivably, such an appointment might have to be made more than once during the remainder
of that six year term of office, because of the difference between the four and six year terms of
city council members and of utility board members.
Section 18 also provides that at the end of the six year term of office at issue, the city
council can elect a new member of the utility board from among the membership of the city
council, or “reinstate:” essentially re-electBthe member of its body who is presently serving as a
member of the utility board to a six year term.
I want to reiterate here that the six year term provisions for members of the utility board
who are members of the city council appear to me totally unnecessary and confusing because of
the command in the second paragraph of ' 18 of the charter that their terms on the utility board
are concurrent with their terms on the city council.
Two positions on the utility board need to be filled, one presently occupied by a holdover.
I assume they are both going to be filled by members of the city council. If that is so, they are
both filled in the same manner prescribed above.
Utility Board Member’s Legal Status
The Tennessee Constitution, Article VI, Section 5, provides, among other things, that,
“Every officer shall hold his office until his successor is elected or appointed and qualified.” As
far as I can determine, that anti-vacancy in public office provision has never actually been cited in
a case involving a municipal officer. However, although the Tennessee Supreme Court never
expressly cited that provision in State ex rel. Wyrick v. Wright, 678 S.W.2d 61 (Tenn. 984), it is
clear that the Court believed that provision does apply to municipal officers. It did not apply in
that case only because the offices in question could be identified to a specific office. [Especially
see p. 63[1]]. Generally, municipal officers elected at large cannot be identified to a particular
incumbent; usually the terms of several such officers expire at the same time, and their seats are
not numbered. In the case of the City’s Utility Board, the holdover can probably be identified to
his office on the utility board. For that reason, he can probably continue to serve in that office
until he is replaced.
In that capacity he probably serves as a de facto officer. The significance of being an
officer de facto, is that the acts of such officers are generally valid, at least for a period that
depends on many circumstances. [See County Clubs, Inc. v. City of Knoxville, 395 S.W.2d 789
(1965); Butler v. Cocke County, 671 S.W 847 (Tenn. Ct. App. 1984); Smith v. Landsden, 370
S.W.2d 557 (1963); Inman v. Brock, 622 S.W.2d 36 (Tenn. 1981); Waters v. State ex rel
Schmutzer, 583 S.W.2d 756 (Tenn. 1979); Weakley County Municipal Electrical System v. Vick,
309 S.W.2d 792 (1957).]
However, at some point in the near future he would probably lose his status as a de facto
officer because he is a holdover in an office which he clearly had no authority to occupy after his
term on the city council expired, and that lack of authority has been brought to his attention and to
the attention of the members of the utility board and of the city council.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/