June 10, 2005
Dear Sir:
You have the following question: In emergency communications districts (E-911
Districts) established under Tennessee Code Annotated, ' 7-86-101 et seq., how many votes on
the board of directors are required to pass measures.
In my opinion the answer is a majority vote of the total membership of the board, under
Tennessee Code Annotated, ' 7-86-106.
Where neither the charter nor any other statute provides for the number of members of a
governing body required to constitute a quorum, and/or does not provide for the number of votes
required to pass measures, the common law rule prevails. [Collins v. Janey, 247 S.W. 801
(1923)]. Collins declares that under the common law:
- A majority of such board constitutes a quorum;
- A majority of the members of the board present and voting [assuming the existence of a
quorum] is required to pass measures.
However, State v. Torrence, 310 S.W.2d 425 (Tenn. 1958), holds that a statute or charter
that prescribes what constitutes a quorum, or that prescribes how many votes are required to pass
measures, supersedes the common law.
Tennessee Code Annotated, ' 7-86-105(f) prescribes what constitutes a quorum on E-911
boards, and either Tennessee Code Annotated, ' 7-86-105(f) or Tennessee Code Annotated, ' 786-106 (last sentence) prescribes the number of votes required by E-911 boards to pass measures.
Tennessee Code Annotated, ' 7-86-105(f) provides that, “A majority of the board of
directors shall constitute a quorum, and all official action of the board shall require a quorum.”
Tennessee Code Annotated, ' 7-86-106 provides that, “The powers of each district shall be
vested in and exercised by a majority of the members of the board of directors of the district.” I
find nothing else in the Emergency Communications District Law, or any other state law, that
provides any guidance on how many votes of the board of directors of such districts are required
to pass measures.
The word “quorum” when used in connection with legislative bodies has a relatively clear
meaning. Polk County v. State Board of Equalization, 484 S.W.2d 49 (1972), speaks of the
meaning of that word in the context of Tennessee Code Annotated, ' 67-201, which provided
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that “A majority of said board [of equalization] shall constitute a quorum for the transaction of
business”:
Black’s Law Dictionary, Fourth Edition, p. 1421, cites authorities
in support of the following definitions of ‘quorum’:
‘Such a number of the members of a body as is competent to
transact business in the absence of other members.
When a committee, board of directors, meeting of shareholders,
legislature or other body of persons cannot act unless a certain
number of at least some of them are present, that number is called a
‘quorum.’....To the same effect is 74 C.J.S. p. 171 with the
additional: ‘The word ‘quorum’ implies a meeting, and the action
must be group action, not merely action of a particular number of
members as individuals.’ 74 C.J.S., p. 171. [At 56]
The Board of Equalization had the statutory authority to adopt rules of procedure. Some
of the rules that it adopted permitted the board to hold hearings with less than a quorum in certain
instances, and allowed the board members who were absent during meetings “to participate in the
disposition of said matters fully as though present.” [At 57] That authority did not permit the
Board of Equalization to do an end run around the statute’s quorum requirement, said the Court:
To the extent that this rule purports to deprive the taxpayer, or any
other interested person or group of persons, of that hearing by a
quorum and decision by a majority thereof, as provided by the
statutes, said rule is invalid, and cannot validate any action of the
State Board which violates the statute. The quoted rule does not
cure or avoid the fatal defect of lack of quorum. [At 57]
I do not know if the E-911 board has adopted Roberts Rules of Order for the conduct of
its business, but the courts routinely consider that authority when resolving parliamentary
questions. Roberts Rules of Order Newly Revised twice defines a quorum:
QUORUM OF MEMBERS. The minimum number of members
who must be present at the meeting of a deliberative assembly for
business to be legally transacted is the quorum of the assembly. ['
3, line 5.]
As indicated on pages 20-21, a quorum in an assembly is the
number of voting members who must be present in order that
business can be legally transacted. The quorum refers to the
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number of such members present, not to the number actually
voting on a particular question. [' 40, line 1]
The Tennessee Open Meetings Law found at Tennessee Code Annotated, ' 8-44-101 et
seq., defines the word “meeting” as:
“the convening of a governing body of a public body for which a
quorum is required in order to make a decision or to deliberate
toward a decision on any matter. “Meeting” does not include any
on-site inspection of any project or program.” [Tennessee Code
Annotated, ' 8-44-102(b)(2)]
That statute does not define the term “quorum,” and as far as I can determine, no cases
involving the Tennessee Open Meetings Law define it. But it is probably self-evident that it
means the number [and in some cases to the kind] of members of that body required to be present
before the body can take any official action. [For example, under some city charters the mayor
counts toward a quorum, under others he does not.]
Tennessee Code Annotated, ' 7-86-105(f) appears to be ambiguous. For that reason, the
rules of statutory construction apply to it.
However, there is no question but that the first clause in that statute is clear: “A majority
of the board shall constitute a quorum.” Under the same statute, the board of directors of a
county E-911 system must consist of no less than seven nor no more than 9 member. For that
reason, if the board is 7 members, a quorum is 4; if the board is 8 members, a quorum is 5; and if
the board is 9 members a quorum is 5.
It is the second clause of that statute that creates the ambiguity: “and all official action of
the board shall require a quorum.” That clause can be read to mean that the word “quorum”
therein refers to the number of votes that are required for board action.
The cardinal rule of statutory construction is the intent of the legislature. If the last
sentence in Tennessee Code Annotated, ' 7-86-106 itself speaks to what kind of majority is
required for board action, it is difficult to envision that the General Assembly in Tennessee Code
Annotated, ' 7-68-105(f) intended two different meaning of the word “quorum” in the same
sentence.
Another rule of statutory construction is that statutes on the same subject will be read
together and reconciled to give them all meaning. If the word “quorum” in the second clause of
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Tennessee Code Annotated, ' 7-86-105(f) is read to refer to the votes required by E-911 boards
to pass measures, the last sentence in Tennessee Code Annotated, ' 7-86-106, “in which the
powers of each district shall be vested in and exercised by a majority of the members of the board
of directors of the district,” is superfluous. It is difficult to believe that the General Assembly did
not mean something important in that sentence.
Another rule of statutory construction is that statutes are given a plain and simple reading
and without straining their language. It strains Tennessee Code Annotated, ' 7-86-105(f) to say
that the word “quorum” in the second clause refers to votes. Indeed, Torrence, above, made it
clear that terms providing for the number of votes required to pass measures are given a plain
reading under a “man in the street” standard. Applying that standard to the question of whether
abstentions counted as votes for the purpose of determining what a 2/3 vote of the board meant,
the Court said:
What person, who votes, unless he has certain technical
knowledge, would ever arrive at the idea that two-thirds of the
‘local legislative body’ meant that if they were present and did not
vote at all that they would be considered to have voted? We think
that question answers itself because as we see it no one would
hardly reach such a conclusion. [Emphasis is mine.]
Abstentions are not the issue in your question, but the same principle applies to the two
questions of whether:
- The second clause of Tennessee Code Annotated, ' 7-86-105(f) applies to the number
of votes required on E-911 boards to pass measures?
- The phrase “majority of the members of the board of directors of the district” in
Tennessee Code Annotated, ' 7-86-106 means anything other than more than half of the
membership of the board?
With respect to the first question, the meaning of the term “quorum” is so well
understood by the “man on the street” as the number of members of boards that must be present
before they can conduct business, that it cannot in Tennessee Code Annotated, ' 7-86-105(f)
refer to the number of votes require on E-911 board to pass measures. Moreover, the term
“quorum” is so well understood by the members of the General Assembly that the General
Assembly itself is not likely to have intended the second clause in Tennessee Code Annotated, '
7-86-105(f) to refer to votes required by E-911 boards to pass measures. As pointed out above,
the case law, and Roberts Rules of Order, on the meaning of a quorum has been clear for many
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years. The members of the General Assembly itself deal with the question of whether there is a
quorum on a daily basis, and understand what it means when there is, and when there is not, a
quorum. Those facts are also consistent with the rule of statutory construction that the Legislature
is presumed to know what the law is in the areas in which it is legislating. Had it wished to give
two entirely separate meanings to the word “quorum” in that statute, it could have clearly done
so, and it could have omitted the last clause of Tennessee Code Annotated, ' 7-86-105(f).
With respect to the second question, a “man in the street” would read the phrase
“majority of the member of the board....” to mean more than half the board without any creative
ways of calculating that number.
Tennessee Code Annotated, ' 7-86-106 first makes an emergency communications
district a “municipality,” with limited powers, breaks away from that train of thought to mention
charges for services, then switches back to how the board exercises it powers: “The powers of
each district shall be vested in and exercised by a majority of the members of the board of
directors of the district.” But for the temporary shift of that section to cover charges for services,
that statute covers what kind of entity an E-911 system is, gives such systems some powers that
are commonly given municipalities, vests its powers in a governing body, and prescribes how the
governing body exercises its powers. For that reason, the last sentence of that statute that vests
the powers of each district in a majority of the members of the board of directors of the district, is
consistent with the general purpose of that statue. It is certainly more than a vague general
prescription for how the board does business.
Let me note here that Tennessee Code Annotated, ' 5-5-108 prescribes the quorum for
the county governing body, and Tennessee Code Annotated, ' 5-5-109 prescribes the number of
votes required for county governing bodies to pass certain measures. We need not consider
whether those quorum or vote provisions differ from the quorum and vote provisions of E-911
districts, for the reason that those two statutes clearly apply only to the county governing bodies.
I have not addressed the question of how vacancies are handled in the calculation of
quorums, but will do so if that is or becomes an issue.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/