When a Tennessee utility district switches from elected to appointed commissioners under Tenn. Code Ann. § 7-82-307(a)(7), do the old private-act term limits still apply to the new appointed commissioners?

Subject

Opinion No. 11-13, Change in Selection of Utility District Commissioners under Tenn. Code Ann. § 7-82-307(a)(7), January 31, 2011

Plain-English summary

The Gibson County Utility District was originally created by 2002 Tenn. Priv. Acts Ch. 141, which set up popular election of commissioners and added a term-limit provision: "The commissioners taking office September 1, 2002, shall serve no more than two (2) full four-year terms in addition to any term of less than four (4) years." In 2006, the utility district's board adopted a resolution under Tenn. Code Ann. § 7-82-307(a)(7) changing the method of selection from popular election to appointment by the county mayor from a list of three nominees submitted by the board (the procedure in § 7-82-307(a)(4)). The Utility Management Review Board approved the change by an order dated March 23, 2006.

The state senator asked whether that change in selection method also wiped out the private-act term limits. The AG gave a two-part answer:

1. No, the change in method of selection did not affect the term limits imposed by the private act. Tenn. Code Ann. § 7-82-307(a)(4) does not impose term limits, but it also does not purport to repeal term limits that exist under a private act. The general statute and the private act work in parallel. The private-act term limits remained in effect after the 2006 method-of-selection change.

2. But, as written, those private-act term limits applied only to commissioners who took office on September 1, 2002. The private act says, "The commissioners taking office September 1, 2002, shall serve no more than two (2) full four-year terms in addition to any term of less than four (4) years." The AG read that language literally. The term-limit provision is keyed to a specific cohort of commissioners (those who took office on that specific date) and does not by its terms reach commissioners who take office at a later date, whether by election or by appointment.

The combined practical effect of those two answers is narrow: the original 2002 cohort remained subject to the two-full-term cap, but the appointed commissioners selected after the 2006 change in method of selection were not subject to the private-act term limits at all. The AG had reached a similar conclusion on an analogous question in Op. Tenn. Att'y Gen. 06-115 (July 25, 2006).

This kind of question, parsing how a general selection statute interacts with an older private act, is the bread-and-butter of utility district governance in Tennessee, where most districts operate under a mix of the general Utility District Act of 1937 and a long list of jurisdiction-specific private acts.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does Tenn. Code Ann. § 7-82-307(a)(7) actually let a utility district do?

It lets a single-county utility district that, as of May 6, 2004, was filling vacancies by a method other than appointment by a county mayor switch to the § 7-82-307(a)(4) method: appointment by the county mayor from a list of three nominees submitted by the board. The district adopts a resolution, files a certified copy with the Utility Management Review Board, and the Review Board approves or disapproves the change.

Does switching the selection method also clean up other private-act provisions?

No. The selection-method statute is narrowly about how commissioners are selected. It does not by its terms purport to repeal or override other private-act provisions, including term limits, qualifications, or compensation. Those continue to apply unless and until the legislature changes them.

So who was subject to the term limits after the 2006 change?

Only the commissioners who took office on September 1, 2002. The private act's plain text was tied to that specific group. Once those commissioners cycled off the board or hit the cap, the term-limit cap had nothing more to act on. New commissioners selected under the 2006 appointment system were not covered by the private-act cap and were not subject to any cap under Tenn. Code Ann. § 7-82-307(a)(4), which does not impose term limits.

Could the General Assembly have written the private act differently to reach all commissioners?

Yes. If the 2002 private act had said something like "no commissioner of the Gibson County Utility District shall serve more than two full four-year terms," it would have applied broadly. The legislature chose more specific text keyed to the September 1, 2002 cohort, and the AG read that text as written.

How does this interact with the Utility District Act of 1937?

The 2002 private act explicitly said that other matters were governed by the Utility District Act of 1937. The general statutes (Title 7, Chapter 82) supply the default rules; private acts can layer specific deviations on top. When the private act is silent, the general statute fills in. When they overlap, the more specific private act usually controls within its narrow scope.

Does the Utility Management Review Board's approval do anything more than confirm the selection-method change?

No. The Review Board's approval under § 7-82-307(a)(7) is limited to approving the method-of-selection change. It does not have authority to amend other private-act provisions. The AG was clear that the Review Board's order did not affect the term-limit provision in 2002 Tenn. Priv. Acts Ch. 141 either way.

Background and statutory framework

Tennessee utility districts are governed by the Utility District Act of 1937, codified at Title 7, Chapter 82. The Act provides a default framework for the creation, governance, and operation of districts that supply utility services. Individual districts often have their own private acts that modify the defaults in specific ways: setting election procedures, term lengths, qualifications, geographic boundaries, or term limits.

For the Gibson County Utility District, the relevant private act was 2002 Tenn. Priv. Acts Ch. 141. Key features:

• Five district commissioners with staggered four-year terms. The commissioners elected from districts 1, 3, and 5 served initial four-year terms; those from districts 2 and 4 served initial two-year terms. Thereafter, each commissioner was elected to a four-year term.
• A term-limit provision: "The commissioners taking office September 1, 2002, shall serve no more than two (2) full four-year terms in addition to any term of less than four (4) years."
• A general default clause: "All other duties, rights, compensation, and powers of the Commissioners of the Gibson County Utility District shall be governed by the Utility District Act of 1937."

The selection-method switch statute, Tenn. Code Ann. § 7-82-307(a)(7), reaches single-county utility districts that, as of May 6, 2004, were filling vacancies by a method other than appointment by a county mayor. The board may adopt a resolution to switch to appointment by the county mayor from a list of three nominees submitted by the board (the § 7-82-307(a)(4) method). The resolution gets filed with the Utility Management Review Board, which approves or disapproves.

The Gibson County Utility District board did exactly that. The Review Board approved the change by an order dated March 23, 2006. Going forward, commissioner vacancies were filled by appointment by the county mayor under § 7-82-307(a)(4).

The AG applied two analytic moves:

1. Implied repeal. Section 7-82-307(a)(4) does not impose term limits. It also does not purport to repeal term limits found in a private act. Implied repeal of an existing statute (or private act) is disfavored in Tennessee construction, and the AG saw no language in § 7-82-307(a)(4) suggesting an intent to repeal the private-act cap. So the cap survived the selection-method switch.

2. Textual reach of the private-act cap. The cap by its terms applied only to "the commissioners taking office September 1, 2002." The AG read that as a precise temporal limitation: the cap follows that cohort of commissioners, not the seats those commissioners occupied. New commissioners taking office at a later date, whether by election under the original method or by appointment under the post-2006 method, are not within the cap's text.

The AG had previously reached the same answer in an analogous case (Op. Tenn. Att'y Gen. 06-115 (July 25, 2006)), and treated that as supporting persuasive authority for the 2011 conclusion.

Citations

• Tenn. Code Ann. § 7-82-307(a)(4) (appointment by county mayor from board's nominee list)
• Tenn. Code Ann. § 7-82-307(a)(7) (selection-method switch authority)
• 2002 Tenn. Priv. Acts Ch. 141 (Gibson County Utility District)
• Utility District Act of 1937 (Title 7, Chapter 82, default framework)
• Op. Tenn. Att'y Gen. 06-115 (July 25, 2006)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-013.pdf

Original opinion text

Change in Selection of Utility District Commissioners under Tenn. Code Ann. § 7-82-307(a)(7)

QUESTION

Under Tenn. Code Ann. § 7-82-307(a)(7), a utility district board may adopt a resolution changing the method by which board vacancies are filled. If the Utility Management Review Board approves the resolution, then subsequent members are appointed under the new method. The Utility Management Review Board approved such a resolution for the Gibson County Utility District by an order dated March 23, 2006. Formerly, commissioners from this district were popularly elected under 2002 Tenn. Priv. Acts Ch. 141. This act provides in relevant part that, "The commissioners taking office September 1, 2002, shall serve no more than two (2) full four-year terms in addition to any term of less than four (4) years." Does the Utility Management Review Board's order approving the change in method of selection affect this provision on term limits?

OPINION

No, the approval of the Utility Management Review Board does not affect term limits on commissioners imposed by private act. But, as written, the term limits under 2002 Tenn. Priv. Acts Ch. 141 apply only to commissioners taking office September 1, 2002. They do not apply to those taking office at a later date.

ANALYSIS

This opinion addresses the effect of a change in the method of selection of utility district commissioners on term limits for commissioners imposed by a private act. The request asks, specifically, about the Gibson County Utility District. We addressed a similar issue in Op. Tenn. Att'y Gen. 06-115 (July 25, 2006).

Commissioners of the Gibson County Utility District were popularly elected under 2002 Tenn. Priv. Acts Ch. 141. Under this act, the terms of the five district commissioners taking office September 1, 2002, were staggered. The commissioners elected from districts 1, 3, and 5 served for four years; the commissioners elected from districts 2 and 4 served for two years. The 2002 private act provides:

Thereafter, each commissioner shall be elected to a four (4) year term. The commissioners taking office September 1, 2002, shall serve no more than two (2) full four-year terms in addition to any term of less than four (4) years.

(emphasis added).

Under the 2002 private act, "[a]ll other duties, rights, compensation, and powers of the Commissioners of the Gibson County Utility District shall be governed by the Utility District Act of 1937." Under Tenn. Code Ann. § 7-82-307(a)(7), a board of commissioners of a single-county utility district that, as of May 6, 2004, filled vacancies by a method other than appointment by a county mayor may change its method of selection to appointment by a county mayor from a list of three nominees submitted by the board under Tenn. Code Ann. § 7-82-307(a)(4). The board must file a certified copy of its resolution changing the method of selection with the Utility Management Review Board, which may approve or disapprove the resolution.

The request indicates that the Utility Management Review Board approved such a resolution by the commissioners of the Gibson County Utility District by an order dated March 23, 2006. As a result, selection of district commissioners is now governed by Tenn. Code Ann. § 7-82-307(a)(4), which must be read in conjunction with the applicable private acts. Tenn. Code Ann. § 7-82-307(a)(4) does not impose term limits on utility district commissioners. At the same time, this general statute does not purport to repeal the term limits imposed on Gibson County Utility District commissioners under 2002 Tenn. Priv. Acts Ch. 141. For this reason, those term limits remain in effect. As it is written, however, the term limits under this private act apply only to commissioners taking office September 1, 2002. They do not apply to commissioners who take office at a later date.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Lowe Finney
State Senator
317 War Memorial Building
Nashville, Tennessee 37243-0025