September 18, 2000
You have asked what the requirements are for membership on the City Utility Board. I
first researched the origin of your Board. Your charter states:
The City Utility Board is hereby created and shall have five (5) members
who shall be appointed and organized in accordance with Tennessee Code
Annotated, title 7, chapter 52. The City Utility Board shall have such jurisdiction
over the city’s electric system, waterworks, sewage works, and gas system as
has heretofore been vested in the city council, and/or any other local board or
commission, but shall in all respects be subject to and governed and controlled
by the provisions of Tennessee Code Annotated, title 7, chapter 52.
“The City Utility Board is specifically given the right to revise and set the
rates charged for electricity, water, sewer service, and gas. The City Utility Board
is also given the right to set the miscellaneous charges in providing utility services
to its customers.” Municipal Code, Title 18, Chapter 1, ' 18-101.
The statute referred to in your charter says the following about membership on such a
board:
“The board shall be created in the following manner: . . .the chief
executive officer may, with the consent of the governing body of the municipality,
appoint two (2) or four (4) persons from among the property holders of such
municipality who are residents of the municipality and have resided therein for not
less than one (1) year next preceding the date of appointment to such board.
The board of a municipal electric system may consist of two (2) or four (4)
persons who have been for not less than one (1) year preceding the appointment
both a customer of the municipal electric system and a resident of the county
wherein such municipality is located. No regular compensated officer or
employee of a municipality shall be eligible for such appointment until at least one
(1) year after the expiration of the term of such person’s public office.” (' 7-52107(b), Tennessee Code Annotated.
Thus, the statute authorized board membership under either of two situations, either a
property holder who is also a resident or a customer who is a resident of the county. Those
provisions appear to be in conflict with each other, so we must resort to the rules for statutory
construction to determine the intent of the legislature. Courts try to construe conflicting statutes
to avoid a conflict so the laws will operate together harmoniously. Bible & Godwin Construction
Co. v. Faener Corp, 504 S.W.2d 370 (Tenn. 1974); City of Caryville v. Campbell County, 660
S.W.2d 510(Tenn. Ct. App. 1983). Where the statutes are irreconcilable, the more specific
statute will prevail over the more general. Trotter v. City of Maryville, 191 Tenn. 510 235 S.W.2d
13 (1950); State v. ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979).
The two sections in '7-52-107(b) do not appear to be reconciled or harmonized, as they
set forth quite different requirements for board membership. In this case, the proper rule of
statutory construction is that the latter statute impliedly repeals the earlier one. State v. Hicks,
848 S.W.2d 69 (Tenn. Crim. App. 1992). It is necessary to review the history of the statutes to
determine reconciliation. The conflict apparently arose from careless draftsmanship. The
“property holders who are also residents” requirement was in the original version of the statute.
The “customer who is also a county resident” requirement was added in 1990, without the
legislature deleting the conflicting language of the “property owners/city resident” requirement.
We must imply that the later language repealed the conflicting earlier language even though the
drafter forgot to omit the “property holder/city resident” requirement.
In conclusion, the statute requires a member of the City Utility Board to be a customer of
the utility AND a resident of the county for at least a year before being appointed to the board. If
you have additional questions, please do not hesitate to call.
Sincerely,
Donna M. Leydorf
Legal Consultant