MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
July 25, 2001
RE:
Quorum Issues
Under your Municipal Charter, the city commission consists of a mayor and five
commissioners, and a quorum consists of three commissioners. At the recent organizational
meeting of the new city council following its election, one commissioner resigned, and his
resignation was accepted. Three special meetings are held, virtually stacked on top of each
other. Some commissioners did not appear at any of the special called meetings. The
Municipal Charter also provides that the seats of the mayor or commissioners missing three
meetings “shall” be declared vacant. Several questions have arisen under those facts:
Question 1: If there is no quorum for a meeting, can the commissioners present meet,
and is the meeting considered to have been held within the meaning of charter and ordinance
requirements governing meetings?
If there is no quorum, the commissioners who appear can meet for limited purposes, and
that meeting is considered to have constituted a meeting of the city council.
Question 2: If certain commissioners do not appear for special meetings, do those
meetings count towards the maximum number that commissioners can miss before their offices
can be declared vacant?
In my opinion, particularly given the fact that the special meetings are virtually stacked on
top of one another, the answer is no.
Question 3: If vacancies on the city council reach such a number that the number of
remaining council members cannot achieve a quorum, how are vacancies to those offices filled?
In my opinion, the vacancies are filled by the remainder of the city council, even if that
number is insufficient for a quorum.
GENERAL
The Municipal Charter contains the following provisions relevant to those questions:
Article IV:
The governing body of the city shall be a mayor and five commissioners [Section 1].
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Page 2
The mayor and commissioners shall be elected at large for terms of four years “or until
their successors are elected and qualified.” [Section 4]
Vacancies in the offices of mayor and commissioner “shall” exist, and the board “shall
declare the same” by resolution where, among other things, the mayor or commissioner
“resigns,” or “fails to attend three (3) consecutive meetings of the mayor and board of
commissioners, except for reasons beyond their control, or without being excused by a majority
vote of the mayor and board of commissioners present and voting.” Vacancies are filled in the
following manner:
Any vacancy in the board of commissioners shall be filled by
appointment made by the remaining members of the mayor and
board of commissioners, and the commission member so
appointed shall be a qualified resident of the City and shall serve
for the remainder of the unexpired term. In the event of the
occurrence of any vacancy in the board of commissioners which
may, under the provisions of this section, be filled by appointed
[sic] by the remaining commission members, and such remaining
commission members shall fail or neglect to fill such vacancy
within thirty (30) days of its occurrence, it shall be the duty of the
elections commissioners of the County, upon certification of such
facts to them by the mayor or any commission member, to call and
cause to be held, as herein above provided, a special election for
the purpose of filling such vacancy for the remainder of the
unexpired term... [Section 7]
In addition, where the office of mayor becomes vacant, the vice-mayor automatically
becomes the mayor, and the board of commissioners fills the vacancy thus created under Article
IV, Section 7.
Article V:
“Three commissioners shall constitute a quorum.” [Section 3]
The board shall follow the latest version of Roberts Rules of Order, which is not
inconsistent with the charter. [Section 3]
Ordinances, resolutions and other measures, are passed by “an affirmative vote of a
majority of the board present and voting.” Abstentions count neither as a yes nor a no vote.
[Section 4]
Except as otherwise provided by general law, legislative action of the board shall be by
ordinance or resolution.
ANALYSIS OF QUESTION 1
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Page 3
Under Article V, Section 3, of the Municipal Charter, the city is required to follow the
latest version of Roberts Rules of Order, which is presently Roberts Rules of Order, Newly
Revised (RRONR). The same prescription is found in the Municipal Code, Section 1-203.
Section 39 of RRONR says with respect to the right of members of a governing body to meet
when there is no quorum:
PROCEEDINGS IN THE ABSENCE OF A QUORUM. In the
absence of a quorum, any business transacted (except for the
procedural actions noted in the next paragraph) is null and void.
But if a quorum fails to appear at a regular or properly called
meeting, the inability to transact business does not detract from
the fact that the society’s rules requiring the meeting to be held
were complied with and the meeting was convenedBeven though it
had to adjourn immediately. [Emphasis is mine.]
The next paragraph of ' 39 of RRONR, says that:
The only action that can legally be taken in the absence of a
quorum is to fix the time to which to adjourn, recess, or take
measures to obtain a quorum.
In the absence of a quorum, commissioners can meet, then, for the restricted purposes
indicated, and such a meeting constitutes a meeting for the purposes of the rules requiring the
meeting to be held.
Under RRONR, one of the restricted purposes is to “ take measures to obtain a
quorum....” For that reason, if the board of commissioners meets and no quorum can be
obtained, the council can recess and can send out representatives of the council to ask the
resigning members to attend, at least long enough for their resignations to be accepted. A Call
of the House [in which absent members may be arrested and brought before the house] is also
in order with respect to assemblies that have the power to compel attendance. But I see no
provision in the City Charter authorizing the board of commissioners to compel attendance.
As will be seen in the analysis of Question 3, if vacancies reach the level that no quorum
can be obtained, the remaining members of the board of commissioners can also meet for the
purpose of filling vacancies.
ANALYSIS OF QUESTION 2
I have been unable to find any statute or cases directly on this question. Article V,
Section 7, of the Municipal Charter authorizes (indeed, appears to require) the removal of the
mayor and commissioners who miss three “consecutive” meetings “except for reasons beyond
their control, or without being excused by a majority vote of the mayor and board of
commissioners present and voting.” It was declared in Hill v. Tennessee Rural Health
Improvement Association, 882 S.W.2d 801 (Tenn. App. 1994), that:
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Consecutive should be given its ordinary and common
interpretation. Consecutive in its normal and everyday
interpretation means following successively without
interruption....[At 803]
But that case involves the meaning of “consecutive months” with respect to benefits
payable under an insurance contract, and does not appear to me to address the question of
whether “consecutive meetings” within the meaning of Article IV, Section 7, applies to special
meetings.
The Supreme Judicial Court of Massachusetts addressed the question of what was
meant by the phrase “two consecutive legally called town meetings” in Wadsworth v. Casassa,
106 N.E. 847 (1916). There a by-law of the City of Revere, Massachusetts, provided that no bylaw could be repealed, amended or added, unless it was “adopted by two consecutive legally
called town meetings, the date of the last meeting to be not less than two (2) months from the
date of the first meeting.” [At 847] The Court looked at the purpose of that by-law to determine
that intervening meetings of the city council at which other business could be transacted was
permitted between the two “consecutive” meetings at which consideration was given to
amending, repealing or adding a by-law.
Although the Court in Wadsworth was obviously aided by the language of the by-law at
issue, and the Municipal Charter contains no such aid, its point seems well-taken: the definition
of “consecutive meetings” depends upon the purpose of the statute. Article V, Section 2, of the
Municipal Charter provides for regular and special meetings, but neither it nor Article IV, Section
7, distinguish between regular and special meetings with respect to the consecutive number
that need be missed by the mayor or commissioners before a vacancy is declared. However, it
cannot be the purpose of Article IV, Section 7, to permit the board of commissioners to stack
special meetings virtually on top of one another, and use (whether innocently or by design) those
meetings as devices to declare vacant the offices of commissioners.
Concurrently, the intention of the General Assembly is the cardinal rule of statutory
construction in Tennessee. It is difficult to believe that the General Assembly intended that
Article V, Section 7, be used in that manner. Such an interpretation of Article V, Section 7,
would permit too much opportunity for mischief. It is the duty of courts to interpret statutes in a
manner that prevents absurdity, hardship, injustice or inconvenience, and “with the saving grace
of common sense.” [State ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979); Espstein v.
State, 366 S.W.2d 914 (1963); Pulaski Highway Express, Inc. v. Central States S.E. & S.W.
Areas Health & Welfare & Pension Funds, 41 Bankr. M.D. Tenn. 1984); Loftin v. Langsdon, 813
S.W.2d 475 (Tenn. Ct. App. 1991).]
A narrow construction of Article IV, Section 7, would reflect the “saving grace of common
sense.” It would also be consistent with the policy of the law that the removal of elected
municipal officials, even under the Ouster Law, is not approved easily by the courts, except in
“clear cases of official dereliction.” [McDonald v. Brooks 387 S.W.2d 803 (1965). Also see
State ex rel. Wright v. Leech, 622 S.W.2d 807 (1981); In re Kelly, 352 S.W.2d 709 (1961), State
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ex rel. Wilson v. Bush, 208 S.W. 607 (1918). While missing special meetings virtually stacked on
top of each other may not be commendable on the part of commissioners, it is difficult to believe
that the courts would consider such a failure as a “clear case of official dereliction.” In fact,
generally, the failure to attend meetings on the part of a member of a governing body without
additional evidence of an intent to abandon office is not sufficient reason to declare the office
abandoned. [See McQuillin, Municipal Corporations, ' 12-123; People v. Bradford, 18 N.E. 732
(Ill. 1915); Reid v. Smith, 244 N.W. 353 (S.D. 1932)].
Butler v. Cocke County, 671 S.W.2d 847 (Tenn. App. 1984), also declares that, “Clearly,
county officers properly elected have property rights in their respective offices.” [At 848]. That
case is particularly instructive on other points regarding the removal of elected officers. There
Blazer, the county executive, was ousted by the trial court for the offense of official oppression.
The county legislative body appointed Butler to replace Blazer until the next general election. At
that election Butler was elected to the office of county executive for the remainder of Blazer’s
unexpired term. Blazer’s conviction was subsequently overturned on appeal, and he was
reinstated to office. Butler claimed for the salary of the county executive during the period he
served in that office. The Court rejected his claim, holding that because Blazer had never been
“duly convicted,” his office had never been vacant, the corollary of which was that no authority
existed to hold an election to fill that office for the unexpired term. However, Butler had been a
defacto officer, and defacto officers were not entitled to the emoluments of office.
Two propositions can be gleaned from that case if the board of commissioners declares
the offices of some of the commissioners vacant and appoints replacements, and those
declarations of vacancies are subsequently overturned (which is my prediction):
1. The replacements would probably be defacto officers, and their acts during the period
they functioned as commissioners would probably be legal. [Also see Waters v. State ex rel.
Schmutzer, 583 S.W.2d 756 (Tenn. 1979); County Clubs, Inc. v. City of Knoxville, 395 S.W.2d
789 (19765)].
2. The replacements would not be entitled to the emoluments of office, including the
salaries.
Finally, Article IV, Section 7, does not necessarily operate as an automatic “three strikes
and you are out” provision. The declaration of a vacancy must hinge upon three absences
which are either (1) beyond the control of the affected mayor or commissioners, or (2) not
excused by the board of commissioners. With respect to (1), presumably the affected
commissioners would have the burden of showing the absences were beyond their control, and
with respect to both (1) and (2), it is likely that the affected commissioners would be entitled to a
hearing before the board of commissioners prior to their removal. It is said in LaFever v. Ware,
365 S.W.2d 44 (1963), citing Rhea County v. White, 43 S.W.2d 375 (1931), that:
It is a general rule of law, well recognized in our State, that the
holder of a public office, duly elected, qualified and inducted for a
fixed term acquires certain property rights of which he may not be
arbitrarily deprived. [At 50] [Emphasis is mine.]
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For that reason alone, the board of commissioners should probably proceed with caution before
it removes commissioners.
ANALYSIS OF QUESTION 3
This question deals with two possible categories of vacancies:
1. The vacancy created by the resignation of the commissioner at the organizational
meeting of the board of commissioners following the recent election.
2. The vacancies created by the declaration of the board of commissioners that the
seats of those commissioners who missed three special called meetings are vacant.
A threshold question that aries here is whether the board of commissioners has any
other alternative with respect to obtaining a quorum where one commissioner has resigned and
two have been removed for having missed meeting.
Tennessee Code Annotated, section 8-48-101, provides that “Any office in this state is
vacated by....
(2) The incumbent’s resignation, when permitted by law...
(4) The decision of a competent tribunal, declaring the election or appointment void or
the office vacant...”
Officers who resign are permitted to function, including vote, until their successors are
elected and qualified. In Bailey v. Greer, 468 S.W.2d 327 (Tenn. 1971), it was declared that
aldermen whose resignations are accepted may continue to function in their offices until their
successors are elected and qualified. In that case Squire Stewart tendered, and the county
judge accepted, his resignation immediately before a meeting of the Sequatchie County Court.
The county judge refused to consider Squire Stewart a member of the Court for the purposes of
ascertaining a quorum. The plaintiffs argued that although Squire Stewart had resigned before
the meeting, he was still a member of the county court for the purposes of determining the
presence or absence of a quorum at that meeting, and that his right to vote at the meeting was
preserved [even though he did not attend the meeting]. They pointed to Article 7, Section 5, of
the Tennessee Constitution, and to Tennessee Code Annotated, section 8-1804 [now section 818-104], both of which provide, among other things, that “Every officer shall hold office until a
successor is elected or appointed and qualified,” and to U.S ex rel Watts v. Justices of
Lauderdale County, 10 F. 460 (1882).
An explanation of Watts is necessary for an understanding of Greer. In Watts a person
obtained a judgment against Lauderdale County, Tennessee, in the U.S. Circuit Court for the
Western District of Tennessee. That Court issued a writ of mandamus requiring the county court
to levy and collect a tax to pay the judgement. Twenty-one of the 26 justices of the peace
comprising the Lauderdale County Court resigned, obviously leaving the county court without a
July 25, 2001
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quorum. The Court, pointed to the Tennessee Constitution, Article 7, Section 5, in declaring that
the resignation of the 21 justices of the peace was not effective until their successors were
appointed and qualified. The Court reasoned that its construction of Article 7, Section 5,
prevented:
...an epidemic of resignations, caused by a conspiracy to defeat
the law, which will, and has in this case, destroyed the machinery
of local government, and paralyzed all governmental functions so
far as they pertain to those assumed by these respondents. [At
465.]
However, the Tennessee courts, including Greer, have since expressly rejected Watts.
In State ex rel. v. Grace, 113 Tenn. 11 (1904), the Court declared that:
The constitutional and statutory provisions in Tennessee, providing
that every officer shall hold his office until his successor is elected
or appointed and qualified, do not apply to cases of this
character....The object of these provisions was to change the
common law, by which the official life of all officers elected for a
limited time ended upon the expiration of such term, and authorize,
not compel, officers to hold their offices until their successors are
qualified; and the primary purpose of the constitutional provision
was, for obvious reasons, to extend the official life of all officers
under the then existing State government until their successors
could be elected under the new constitution. [At 17.]
Greer also flatly declared that the Watts court had gone too far in the interpretation of
Article 7, Section 5, of the Tennessee Constitution:
The legal conclusions expressed in that opinion extend beyond the
legal proposition necessary for disposition of the case. In said
case, the ultimate conclusion reached was that, where Justices of
the Peace had previously been served with mandamus to perform
a duty, they could not avoid the performance of the command of
the writ by resignation because, under Article 7, Section 5 of the
Constitution of Tennessee, the power to act remained in them from
the date of their resignation until the designation of their respective
successors.
In short, the District Court held that their duty to obey the
mandamus continued as long as the power to obey continued, in
other words, until election of successors.
Other than the continuing duty to obey a mandamus the effect of a
resignation upon the occupancy or vacancy of the office, or their
exercise of its powers were not involved in United States ex rel.
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Watts v. Justice of Lauderdale County and the opinion must be
considered in this light.
Furthermore, we find the complainants’ interpretations of
the effect of that opinion to be in conflict with T.C.A.
8-2801 [now 8-18-101 and also find that the District
Court’s opinion was not followed in a later opinion of
our Supreme Court . [Speaking of Grace, above.] [At
333.]
But Greer speaks further about the application of the holdover provisions in Article 7,
Section 5, of the Tennessee Constitution and in Tennessee Code Annotated, section 8-18-101,
to resignations. Quoting Grace, the Court said:
The object of these provisions was to change the common law, by
which the official life of all officers elected for a limited time ended
upon the expiration of such term, and authorize, not compel,
officers to hold their offices until their successors are qualified.
[The Court’s emphasis.]....When such an officer resigns and says
in effect, “I cannot or will not continue to carry on this responsibility
which has been placed upon me,” and then follows such
resignation with his refusal to attend a session of the forum to
which he has been elected, he sheds the responsibilities of the
office and the obligations to perform its functions. Until his
successor is qualified, the office is vacant for most purposes.
However, until the successor is qualified, the officer who resigned
may (not must) exercise the prerogatives of the office. If he does
not see fit to do so, then no one may claim any right grounded
upon his supposed continuance in office wherein he refuses to
function.... Squire Stewart’s resignation was accepted and he has
not in anywise attempted or offered to exercise his functions either
by attendance or voting. Thus, by his own voluntary act of
resignation and failure to function, his office was, on the date of
the meeting in question, vacant. [At 333-335.]
Grace and Greer, stand for the propositions that after the acceptance of the resignation
of a public officer, the officer may, if he chooses, continue to function in that office until his
successor is appointed and qualified, and that if he attends meetings of the city council he would
be counted for the purposes of ascertaining a quorum, and could continue to vote on matters
until his successor is appointed and qualified.
The reason that proposition is important is that the same rule governing holdovers
contained in Article 7, Section 5, of the Tennessee Constitution and in Tennessee Code
Annotated, section 18-8-104, applies to municipalities under State ex rel. Wyrick v. Wright, 678
S.W.2d 61 (Tenn. 1984). Therefore, at first glance, the commissioner who resigned could
continue to function as commissioners until their successors were appointed and qualified.
However, Wyrick, also expressly rejects that theory where the incumbent holds no identifiable
July 25, 2001
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office. The commissioners of the City are elected at large; therefore, an individual commissioner
has an office, but no office that can be identified as his or her office. For that reason, where a
commissioner resigns, his or her office is apparently vacant for all purposes. In addition, if a
commissioner will not attend a meeting before his or her removal, it seems unlikely he or she will
attend a meeting after his or her removal.
Incidentally, I cannot determine whether the rule that a member of a governing body that
holds an identifiable office can continue in service after he resigns applies to members of
governing bodies who have been removed from office for failure to attend meetings. But that
question needs no answer because like the commissioner who resigned, the commissioners
who are removed for failure to attend meetings hold no identifiable offices.
Tennessee Attorney General’s Opinion [TAG], 79-183, opines that where three of five
aldermen resigned, a majority of the remaining aldermen represented a quorum and could
appoint new aldermen. Arguably, the opinion is correct as to the calculation of a quorum after
the resignations in that case, but it completely bypasses the problem that resignations are not
effective upon submission but upon acceptance, and that the number of aldermen from which a
quorum is calculated is not reduced until the resignations are accepted. However, because only
one resignation is at issue, and that resignation was accepted in the City, we do not have that
problem.
Under Article IV, Section 1, of the City Charter, there is a mayor and five commissioners.
Under Article V, Section 3, a quorum is three commissioners. One commissioner has resigned.
If I understand the facts correctly, two more commissioners have missed three consecutive
meetings. If those commissioners are removed, there will be two remaining commissioners, one
short of a quorum.
TAG 79-183 gives the city an argument that once the resignation and the removals are
effectuated, a majority of the remaining members of the city council constitute a quorum. That
opinion was based on a city charter involving a mayor and four aldermen, and providing that, “in
the case of death, removal or resignation of any officer of said corporation, the Mayor and
Aldermen shall fill such vacancy for the unexpired term.” The mayor and two of the aldermen
resigned. The charter was silent on the question of whether the “Mayor and Aldermen” within the
meaning of that charter provision referred to the authorized membership of the board, or to the
remaining members of the board. A quorum in that situation, declares that opinion, was the
remaining two members. It cites Bedford County Hospital Board v. Bedford County, 304 S.W.2d
695 (Tenn. App. 1957), in which the court defined a quorum as, “Ordinarily, a quorum means a
majority of all entitled to vote.” [Citing 18 C.J.S. Corporations, section 719.]
Surprisingly, while TAG 79-183 is on solid practical ground, the courts are seriously split
on the question of whether vacancies in office are deducted from quorum requirements. [3
McQuillin, Municipal Corporations, sections 13.27 and 13.27.15; 67A C.J.S. Parliamentary Law,
section 6.] Many of those cases turn upon the precise wording of the statute or charter provision
governing quorum requirements. In addition, the cases in which resignations or removals from a
governing body creates a genuine inability of the governing body to achieve a quorum are rare.
The definition of “quorum” in Bedford County Hospital Board is extremely thin authority with
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respect to what would constitute a quorum of the Board of Commissioners following a
resignation of one commissioner and the removal of two commissioners.
But the best reasoned case in which resignations produced a genuine quorum problem is
consistent with TAG 79-183. In City of Nevada v. Slemmons, 69 N.W.2d 793 (1953), the Iowa
Supreme Court, declaring that the courts have a duty to interpret a statute in a way to make it
practically workable, held that a charter provision that required vacancies on the city council to
be filled by the majority of votes of “the whole number of members” applied to the remaining
members after the deduction of vacancies. It reasoned that:
Public policy demands that a majority of the remaining councilmen
should have the power to act in a manner that will prevent a total
failure of the corporate functionBwhich in a given case would result
if they could not so fill vacancies and obtain sufficient members to
comply with subsection 2 of the act [quorum requirements]
Significant language we believe was used to provide a method by
which the remaining members could elect successors so that a
quorum could be obtained to transact the city’s business. If it were
held otherwise, by resignation several members could completely
and effectively inactivate a municipal government, or set the stage
for a rule by negative action of the minority...[At 795]
Slemmons distinguished a New Jersey case, Schermerhorn v. Jersey City, 53 N.J.L. 112,
29 A. 829, in which the opposite decision was reached on similar quorum language. It declared
that the case applied to a quorum vote on an ordinance, and concluded that it would have
decided the same way on “legislative action by the council as distinguished from the election of a
member to fill a vacancy.” [At 796]
The Supreme Court of California reached a similar conclusion in Nesbitt v. Bolz, 91 P.2d
879 (1939). In that case, there were five board members. Two members of city council were
recalled, and one council member resigned after the recall, leaving two members of the board.
The two remaining members of the board refused to meet on the ground that they did not
constitute a quorum. A statute provided that in the event of a recall of a majority of the board,
the recalled members would remain in office until their successors were elected and qualified,
“Otherwise, the council shall forthwith fill the vacancy or vacancies by appointment.” Another
statute provided that “At any meeting of the city council a majority of said council shall constitute
a quorum for the transaction of business.” The Court held that:
Although for certain functions such as the enactment of
ordinances, the concurrence of at least three members is required
[statutory citation omitted], there is no question but that a council of
three members is directed and required to elect the successors of
two recalled councilmen and that two of them constitute a quorum
for that purpose. [At 880]
The Supreme Court of Florida also took a hard line against reducing the number required
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for a quorum in cases of vacancies on local governing bodies, in Clark v. North Bay Village, 54
So.2d 240 (1951). It blamed the vacancies on the governing body:
The vacancies were created by virtue of the fact that McCracken
and Ridings moved their residences from North Bay Village; but,
the vacancies have continued to exist by the failure of the
remaining councilmen to elect successors to these two former
councilmen. Should we hold that a quorum of the council is a
majority of the remaining qualified councilmen, it would be possible
for two of their number to continue to govern the Village by their
own design, or their failure or neglect to fill existing vacancies. [At
242]
However, at that point there were still sufficient remaining members on the North Bay
Village board to achieve a quorum, and the Court made it clear that under the right
circumstances, its answer would have been different:
It does not appear from the record that one of the remaining
councilmen, Joel Hurt, has failed or refused to attend a meeting of
the council called for the purpose of filling the vacancy. Nor is it
demonstrated clearly, or at all, that Councilman Hurt could not be
compelled by lawful process to perform his duty of attending a
called meeting of the Council as distinguished from being coerced
to vote, upon attending such meeting in any particular matter. [At
242]
Had such a showing been made, and had such remedies available to the board not
worked, presumably, the Court would have intervened and reduced the number of council
members required to constitute a quorum.
It is difficult to quarrel with City of Nevada v. Slemmons and like cases. The alternative in
the face of mass resignations or removals from a city’s governing body is total disintegration of
that body, without the possibility of ever achieving a quorum. For that reason, it seems logical
that the Tennessee courts would adopt the TAG 79-183 theory that a quorum is reduced by
vacancies in office; otherwise there could never be a quorum under many charters following a
mass resignation.
I had always assumed that the proper method of filling more than one vacancy was for
the governing body to fill one vacancy at time, permitting the most recent appointee to take part
in filling the next vacancy. While that might be a logical approach to filling vacancies, I find no
such requirement in any of the above cases. As far as I can determine from the cases dealing
with the filling of multiple vacancies, in the absence of any statute or charter provision to the
contrary, the remaining members fill all the vacancies.