July 21, 2009
Re: Request for legal opinion concerning school superintendent’s eligibility for Board of
Mayor and Aldermen.
Dear Mayor,
This writing is in response to a request for legal opinion I received from your MTAS
Management Consultant on Wednesday, July 15, 2009.
This opinion asked the following questions:
1) Is the Superintendent of the City School System a city employee?
2) If the answer to question number one is yes, can the Superintendent serve
simultaneously as a member of the Board of Mayor and Aldermen?
3) If the answer to question number two is no, and if the Superintendent has already
been elected to the Board of Mayor and Aldermen, and been duly sworn, must he
resign from either his position as Superintendent or his position as Alderman?
The relevant facts, as I understand them are as follows. At the municipal election in May
2009, the current City School Superintendent was elected to the Board of Mayor and
Alderman. Furthermore, it is my understanding that this newly elected Alderman was serving
as Superintendent during the entire candidacy, at the time of election and continues to serve
as Superintendent at the time of this writing.
Opinions
1) The superintendent is an employee of the city.
2) It is likely a violation of the Charter and of state law for a current municipal
employee to run for office.
3) The superintendent who has already been elected alderman does not have to resign
as of the time of this writing. Other remedies, however, are discussed infra.
Is the superintendent a city employee?
A nearly-identical situation has already been answered by the Tennessee Attorney General in
Opinion No. 08-72 dated March 31, 2008. In that opinion the Attorney General opined that
under Tennessee Code Annotated § 7-51-1501 and the Charter of the City of Clinton, a city
school teacher was not eligible to be a candidate for the city legislative body.
In the aforementioned Opinion No. 08-72, the city’s charter granted the governing body the
power to establish and administer the city’s public school system. Section 4 (s) of your City
Charter grants the city the power:
[t]o provide for the maintenance of the public schools of the town and shall
elect a board of education to consist of not more than seven (7) members, as
provided by the general law of the state; the said board of education shall
have and perform all functions as now provided by law and conferred on
boards of education and municipalities by the general law of the state. The
members of said board of education shall serve until their successors are
elected and qualified and their terms of office shall be designated by the
Mayor and Aldermen.
Under this similar provision the Superintendent would likely be deemed a city employee for
purposes of T.CA. § 7-51-1501 and ineligible to qualify as a candidate for elected city office
in your city.
Charter Violation
Assuming the superintendent is an employee of the city, we turn our discussion to whether it
is a violation of local or state law to simultaneously serve as an employee and an elected
official. The Charter contains a provision, albeit confusing, restating the state law prohibition
of T.C.A. § 7-51-1501 (discussed infra). The Charter provision reads in relevant part:
SECTION 23. No employee of the city shall continue in the employment of
the city after becoming a candidate for nomination or election to any city
office, but this provision shall not apply to the Mayor, Aldermen, Members
of Boards or Commissions, the City Attorney or the City Judge…. Any
person who is found, acting by himself or with others, to have willfully or
corruptly violated any provision of this section shall forfeit and vacate the
office or position he holds and be ineligible to hold any office or position of
employment in the city government for a period of five (5) years thereafter.
This provision, similar to the state law proscription, prohibits an employee from continuing
employment after becoming a candidate for or elected to a city office. The charter provision,
however, goes one step further by requiring a knowing violator to forfeit his or her position
or employment and finds him or her ineligible for any office or employment for five years.
These punitive stipulations require a finding that the employee willfully or corruptly became
a candidate while continuing as a city employee. Upon the forfeiture the Board is obligated
to declare a vacancy as required by Section 10 of the Charter:
The Board of Mayor and Aldermen shall declare that a vacancy exists if the
Mayor or an Aldermen resigns, dies, moves his or her residence from the
city, is convicted of malfeasance or misfeasance in office, a felony, a violation
of this charter or election laws of the State, or a crime involving moral
turpitude, fails to attend any meetings of the Board for a period of ninety
(90) days with no extenuating circumstances, or has been continuously
disabled for a period of six (6) months so as to prevent him or her from
discharging the duties of his or her office. (Emphasis mine.)
Hence, if the superintendent is found to have violated Section 23 of the Charter, the Board
is obligated to declare a vacancy and fill the vacant seat via Section 10 of the Charter. Such a
ruling could be appealed to a court of competent jurisdiction.
State Law Violation
Tennessee Code Annotated § 7-51-1501 states in relevant part:
…unless otherwise authorized by law or local ordinance, an employee of a
municipal government or of a metropolitan government shall not be
qualified to run for elected office in the local governing body of such local
governmental unit in which the employee is employed.
It is my understanding that the City does not have a provision allowing a municipal
employee to run for elected office as required by this section. Hence, employees of the City
are prohibited by state law from running from elected office, and it was in violation of
T.C.A. § 7-51-1501 for the superintendent to run for elected office.
Vacancy/Remedies
In our situation the Superintendent has already been qualified, elected and duly sworn. A
parallel situation was settled by the Tennessee Attorney General in Opinion No. 96-122
(Sept. 19, 1996). There an employee was elected to alderman in violation of T.C.A. § 7-511501. The Attorney General opined that this did not give rise to an automatic vacancy in the
office. Rather, the office would become vacant upon resignation, a court declaring the
election void or other causes listed in T.C.A. § 8-48-101. Furthermore, the Attorney General
stated that the proper challenge to test the alderman’s qualifications is by bringing an action
quo warranto as provided for in T.C.A. §§ 29-35-101, et seq.
The same is true for our situation. No vacancy is created by a determination that the
Superintendent violated T.C.A. § 7-51-1501. Only a court of competent jurisdiction can hear
an action brought quo warranto, alleging a person unlawfully holds an office, and subsequently
remove that officer.
Conclusion
In conclusion, it is the opinion of this office that the superintendent of the City School
System is a city employee. Furthermore, for the superintendent to run for elected office was
likely a violation of state and local law. Neither of these violations result in an automatic
vacancy. Other remedies, however, are available.
I hope this information assists you and your city. If I can be of further assistance, please do
not hesitate to ask. Best of luck in all your endeavors.
Yours,
Josh Jones