Can a Tennessee city governing body add hiring criteria or ethics policies on top of the Municipal Electric Plant Law's qualifications for the superintendent of the city's electric board?

Subject

Opinion No. 11-14, Hiring Superintendent under Tenn. Code Ann. § 7-52-114(b), February 8, 2011

Plain-English summary

Four members of the Tennessee General Assembly from Clarksville-area districts asked the AG who controls the hiring of the superintendent of a city electric system that operates under the Municipal Electric Plant Law of 1935 (codified at Tenn. Code Ann. §§ 7-52-101 et seq.). The AG's bottom line: the electric board, not the city council, runs that decision.

Three answers, in sequence:

1. Qualifications for the superintendent are set by the 1935 Law itself, not by the city governing body. The statute, Tenn. Code Ann. § 7-52-114(b), provides that the superintendent must be "qualified by training and experience for the general superintendence" of the electric plant and need not be a Tennessee resident at the time of appointment. The AG read this as an exclusive standard. Absent a more specific law overriding the 1935 Law (which could include a sufficiently explicit private act), a city governing body cannot use generic charter language about creating departments to impose extra hiring criteria.

2. The 1935 Law is the primary law governing the board-city relationship, but it does not displace every general law. Tennessee courts have treated a utility board created under the 1935 Law as a department of the city, and the board's employees as city employees. Op. Tenn. Att'y Gen. 96-043 (March 13, 1996) made clear that when a general statute directly conflicts with a specific 1935 Law provision, the 1935 Law controls. But the AG and the courts have also recognized that some general-law policies adopted by the city governing body do apply to the electric board, including reimbursement policies under Tenn. Code Ann. §§ 6-54-901 et seq. and merit-system rules under § 6-35-403(b) for cities operating under the Modified City Manager-Council Charter. Personnel policies adopted under § 6-54-123 probably apply to the board's employees too. The specific carve-out is the superintendent: because § 7-52-114(b) expressly gives the board authority to hire and remove the superintendent, generic city personnel policies do not reach that position.

3. Ethics policies regarding the superintendent's hiring are exclusively the board's job. The 1935 Law does not explicitly forbid the city council from adopting ethics policies for the superintendent, but the AG read the statute as a whole to imply exclusivity: the board has hiring authority, the board has general supervision and control over the electric plant, and the board reports only periodically to the city governing body. Layering city-council ethics rules on top of board hiring authority would conflict with that statutory design. The AG noted one general-law caveat: Tenn. Code Ann. §§ 8-17-101 et seq. (the 2006 ethics-standards statute) requires every local government to adopt ethical standards (gift limits and disclosure of personal interests) that apply broadly to officials and employees. Those disclosure-style ethics standards do reach board officers and employees. But § 8-17-102(3) expressly excludes "personnel or employment policies or procedures related to operational aspects of governmental entities" from the type of standards a local governing body may adopt under that act, so the council still cannot use it as a vehicle to override the board's hiring authority.

The big-picture takeaway: the Municipal Electric Plant Law of 1935 is, on purpose, a statutory framework that walls off operational management of the electric plant from elected-political oversight at the day-to-day level. The board has independent decision-making authority within its statutory grant; the city's leverage is upstream (appointing board members, setting the budget, periodic reporting), not downstream into hiring decisions.

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

Can the city charter give the council power to set criteria for the superintendent?

The AG said a generic charter provision authorizing the city governing body to create departments and provide for their powers is not enough. A private act addressing this specific point in detail could in principle override the 1935 Law, but a general charter clause cannot. The 1935 Law is specific; charter generality loses to statutory specificity.

Are the board's employees city employees?

Yes, in important respects. The Tennessee Supreme Court in Keeble v. Loudon Utilities, 370 S.W.2d 531 (1963), held that a city utility board is a city department, and the Court of Appeals in Weakley County Municipal Electric Company v. Vick, 309 S.W.2d 792 (1957), held that the board's employees are city employees. Multiple AG opinions extend that treatment to conflict-of-interest statutes (Tenn. Code Ann. § 12-4-101) and political-activity statutes (Tenn. Code Ann. § 7-51-1501). The municipal-employee classification matters for purposes of statutes that apply to city employees generally.

So why doesn't a city personnel policy bind the superintendent's hiring?

Specific-over-general construction. Tenn. Code Ann. § 7-52-114(b) gives the board explicit authority to appoint, set the salary of, and remove the superintendent at the board's pleasure. A city personnel policy under § 6-54-123 (which requires policies to apply "fairly, impartially, and uniformly, to the extent practicable, to each department of the municipal government") may well apply to the board's other employees, but the specific 1935 Law provision controls for the superintendent. The Tennessee Supreme Court in Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010), confirmed that statutes on the same subject matter must be interpreted together.

What can the city governing body actually do?

A lot, but indirectly. The chief executive officer of the municipality appoints board members (with consent of the governing body) under § 7-52-107(b), and designates a member of the governing body or the city manager to serve on the board under § 7-52-108(c). The municipality may also provide health insurance for board members and pay the premiums under § 7-52-110(g). The board must submit at least an annual report to the city governing body under § 7-52-113. The city sets the appropriations envelope. What the city cannot do is reach in and direct individual hiring or operational decisions reserved to the board and the superintendent.

Could a private act change any of this?

Yes. A private act sufficiently explicit on point could override the 1935 Law's default rules. The AG flagged this possibility but noted that no general law provides such authority on its own, and a charter provision generally authorizing the council to create departments is not specific enough. Cities and electric boards that want a different allocation of authority need a targeted private act, not generic charter language.

What about the 2006 local-ethics statute?

Tenn. Code Ann. §§ 8-17-101 et seq. requires every local government to adopt ethical standards for officials and employees, defined as gift limits and disclosure of personal interests. Those standards apply to board officers and employees. But the statute carves out personnel or employment policies and procedures "related to operational aspects of governmental entities" from what counts as ethics standards. So the council cannot use the 2006 ethics statute as a vehicle to dictate superintendent-hiring criteria; that is operational, not ethics-disclosure.

Background and statutory framework

The Municipal Electric Plant Law of 1935, Tenn. Code Ann. §§ 7-52-101 et seq., authorizes Tennessee municipalities to acquire and operate electric plants. The statute creates a distinct governance structure designed to professionalize utility management:

• Tenn. Code Ann. § 7-52-103: every municipality may acquire and operate an electric plant.
• Tenn. Code Ann. § 7-52-107: any municipality issuing bonds for the acquisition of an electric plant (with carve-outs for city-managed cities and those under 2,000 population) shall appoint a board of public utilities. The board has either two or four members appointed by the chief executive officer with the consent of the governing body, plus a third (or fifth) member designated by the chief executive officer under § 7-52-108(c) (either a governing-body member or the city manager). Board members must have been property holders and residents of the municipality for at least one year; regularly compensated municipal officers or employees cannot serve until one year after leaving public office.
• Tenn. Code Ann. § 7-52-110: the board sets its own rules of procedure "except as otherwise expressly provided"; sets compensation for members (within a $200/month travel-and-meeting cap); and the municipality may provide health insurance for board members.
• Tenn. Code Ann. § 7-52-113: the board reports to the city governing body at least annually.
• Tenn. Code Ann. § 7-52-114(a)(1): "the supervisory body" (the board if one exists, otherwise the city governing body) is in charge of general supervision and control of the electric plant.
• Tenn. Code Ann. § 7-52-114(b): the supervisory body appoints the superintendent. The superintendent must be qualified by training and experience and need not be a Tennessee resident at the time of appointment. The supervisory body fixes the salary; the superintendent serves at the pleasure of the supervisory body.
• Tenn. Code Ann. § 7-52-114(c): powers conferred by the statute are exercised on behalf of the municipality by the supervisory body and the superintendent.
• Tenn. Code Ann. § 7-52-115(a): the board maintains rate schedules and rules at the electric plant and at the municipal clerk's office.
• Tenn. Code Ann. § 7-52-117: the superintendent has charge of construction, operation, and enforcement of rules. The superintendent has power to hire and fire most employees (Op. Tenn. Att'y Gen. U88-02 (Jan. 4, 1988)), with the board's approval for technical consultants, advisors, and legal assistants.
• Tenn. Code Ann. § 7-52-133: the 1935 Law's powers are "in addition and supplemental to" any other law. Cities can finance, own, and create boards under other laws if they choose. But when a city operates under the 1935 Law, that law is the primary framework.
• Tenn. Code Ann. § 7-52-134(b): the statute is remedial and is to be liberally construed.

The case law treating the board as a city department:

• Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531 (1963): a city utility board is a city department, and (like the city) could not be sued outside the county where the city was located.
• Weakley County Municipal Electric Company v. Vick, 43 Tenn. App. 524, 309 S.W.2d 792 (1957): employees of an electric board created under the 1935 Act were employees of the city and could be enjoined from striking.

The application of general municipal-law schemes to the board:

• Tenn. Code Ann. §§ 6-54-901 et seq. (reimbursement policies): apply to members of a board under the 1935 Law (Op. Tenn. Att'y Gen. 94-045 (April 4, 1994)).
• Tenn. Code Ann. § 6-35-403(b) (Modified City Manager-Council Charter merit system): applies to board employees other than the superintendent (Op. Tenn. Att'y Gen. U92-97 (August 6, 1992)).
• Tenn. Code Ann. § 6-54-123 (city personnel policies): probably apply to board employees other than the superintendent.
• Tenn. Code Ann. § 12-4-101 (conflict of interest): board employees are local-government employees within the statute (Op. Tenn. Att'y Gen. 87-66 (April 13, 1987)).
• Tenn. Code Ann. § 7-51-1501 (local employees' political activity): board employees are local-government employees (Op. Tenn. Att'y Gen. 96-106 (August 20, 1996)).
• Tenn. Code Ann. §§ 8-17-101 et seq. (local-ethics statute): board officers and employees are subject to gift-limit and personal-interest-disclosure standards adopted by the local governing body, but only those, not operational employment policies.

The specific-over-general construction principle (Op. Tenn. Att'y Gen. 96-043 (March 13, 1996)) ties it all together: when a general statute directly conflicts with a specific 1935 Law provision, the 1935 Law controls. The municipal-purchasing example: even though the board was a city department using municipal funds within the Municipal Purchasing Law of 1983, the 1935 Law's more lenient purchasing requirements specifically governed the board.

Citations

• Tenn. Code Ann. §§ 7-52-101, et seq. (Municipal Electric Plant Law of 1935)
• Tenn. Code Ann. § 7-52-103 (municipal authority to acquire and operate electric plant)
• Tenn. Code Ann. § 7-52-107 (appointment of board of public utilities)
• Tenn. Code Ann. § 7-52-107(b) (one-year disqualification of compensated officers)
• Tenn. Code Ann. § 7-52-108(c) (third or fifth member designation)
• Tenn. Code Ann. § 7-52-110(d) (board's rules of procedure)
• Tenn. Code Ann. § 7-52-110(e) (board member reimbursement)
• Tenn. Code Ann. § 7-52-110(f) (additional allowance for multi-utility boards)
• Tenn. Code Ann. § 7-52-110(g) (health insurance for board members)
• Tenn. Code Ann. § 7-52-111 (multi-utility board jurisdiction)
• Tenn. Code Ann. § 7-52-113 (annual reporting)
• Tenn. Code Ann. § 7-52-114(a)(1) (supervisory body in charge of plant)
• Tenn. Code Ann. § 7-52-114(b) (superintendent appointment and qualifications)
• Tenn. Code Ann. § 7-52-114(c) (powers exercised by supervisory body and superintendent)
• Tenn. Code Ann. § 7-52-115(a) (rate schedules and rules on file)
• Tenn. Code Ann. § 7-52-117 (superintendent's operational role)
• Tenn. Code Ann. § 7-52-117(b) (superintendent's hire/fire power)
• Tenn. Code Ann. § 7-52-133 (supplemental nature of 1935 Law)
• Tenn. Code Ann. § 7-52-134(b) (remedial; liberal construction)
• Tenn. Code Ann. § 6-35-403(b) (Modified City Manager-Council Charter merit system)
• Tenn. Code Ann. § 6-54-123 (city personnel policy uniformity)
• Tenn. Code Ann. §§ 6-54-901, et seq. (reimbursement policy)
• Tenn. Code Ann. § 7-51-1501 (local employees running for office)
• Tenn. Code Ann. § 12-4-101 (conflicts of interest)
• Tenn. Code Ann. §§ 8-17-101, et seq. (local ethics standards)
• Tenn. Code Ann. § 8-17-102(3) (definition of "ethical standards")
• Tenn. Code Ann. § 8-17-102(5) (definition of "officials and employees")
• Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531 (1963)
• Weakley County Municipal Electric Company v. Vick, 43 Tenn. App. 524, 309 S.W.2d 792 (1957)
• Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010)
• Op. Tenn. Att'y Gen. U88-02 (January 4, 1988)
• Op. Tenn. Att'y Gen. 87-66 (April 13, 1987)
• Op. Tenn. Att'y Gen. 96-106 (August 20, 1996)
• Op. Tenn. Att'y Gen. 94-045 (April 4, 1994)
• Op. Tenn. Att'y Gen. U92-97 (August 6, 1992)
• Op. Tenn. Att'y Gen. 96-043 (March 13, 1996)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-014.pdf

Original opinion text

Hiring Superintendent under Tenn. Code Ann. § 7-52-114(b)

QUESTIONS

Tenn. Code Ann. § 7-52-114(b) authorizes a board created under the Municipal Electric Plant Law of 1935 (the "1935 Law") to appoint a superintendent "who shall be qualified by training and experience for the general superintendence of the acquisition, improvement and operation of the electric plant. The superintendent need not be a resident of the state at the time of appointment."

1. Does this statute provide the exclusive criteria for the qualifications of the superintendent, or may the city governing body, under its charter powers, impose other criteria?

2. Does the 1935 Law exclusively govern the relationship between a board created under that law and the city governing body, specifically, the board's powers, duties, and limitations on the exercise of its powers?

3. Is there any prohibition contained within the 1935 Law that would restrict a city governing body from adopting ethics policies regarding the hiring of the superintendent of a board created under the law?

OPINIONS

1. Absent some law overriding the 1935 Law, a city governing body is not authorized to impose other criteria for the qualifications of the superintendent of a board created under the 1935 Law. This Office is unaware of any general law providing such authority. It is possible a private act, if sufficiently explicit, could provide such authority. A charter provision generally authorizing the city governing body to create departments and provide for their powers, however, is not sufficient.

2. Absent some law overriding the 1935 Law, the board is not generally subject to the authority of the city governing body when the board exercises its powers to manage the electric plant. But this Office has concluded that, under a number of statutory schemes, policies adopted by the city governing body apply to a board created under the 1935 Law. These include reimbursement policies adopted under Tenn. Code Ann. §§ 6-54-901, et seq., and an employee merit system adopted under Tenn. Code Ann. § 6-35-403(b) of the Modified City Manager-Council Charter. Whether any particular policy applies would depend on the scope of the general law. For example, city personnel policies adopted under Tenn. Code Ann. § 6-54-123 would probably apply to employees of a board created under the 1935 Law. But, because Tenn. Code Ann. § 7-52-114(b) expressly gives the board the authority to hire and remove the superintendent, these policies would not apply to that position.

3. The 1935 Law does not explicitly prohibit a city governing body from adopting ethics policies regarding the hiring of the superintendent of a board created under that law. But the statute, read as a whole, contemplates that the board has the exclusive power to set ethics policies regarding the hiring of a superintendent. Absent some law overriding the 1935 Law, therefore, a city governing body is not authorized to adopt ethics policies regarding the hiring of a superintendent of a board created under that act. This Office is unaware of any other general law that would authorize such policies.

ANALYSIS

This request concerns the authority of a city governing body over the decision of a city electric board to hire a superintendent under Tenn. Code Ann. § 7-52-114 of the Municipal Electric Plant Law of 1935 (the "1935 Law"). The 1935 Law is codified at Tenn. Code Ann. §§ 7-52-101, et seq. Under Tenn. Code Ann. § 7-52-103, every municipality is authorized to acquire and operate an electric plant. Tenn. Code Ann. § 7-52-107 provides:

(a) Any municipality, except those that employ a city-manager or that have a population of less than two thousand (2,000), issuing bonds under the provisions of this part for the acquisition of an electric plant shall, and any municipality now or hereafter owning or operating an electric plant under this part or any other law may, appoint a board of public utilities, referred to as the "board" in this part.

(b) The board shall be created in the following manner: at the time the governing body of a municipality issuing bonds under this part determines that a majority of the qualified voters voting on the election resolution have assented to the bond issue for the acquisition of an electric plant, the chief executive officer of the municipality shall, or if no such bonds are issued, or if the municipality employs a city-manager or has a population of less than two thousand (2,000), then at any time 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.

(Emphasis added). The municipality's chief executive officer is also required to designate a member of the governing body or the city manager to serve as a third or fifth member of the board. Tenn. Code Ann. § 7-52-108(c). This designation is subject to the consent of the governing body of the municipality. Id.

Tenn. Code Ann. § 7-52-110 addresses organization and meetings of the board, as well as compensation of members and officers. The board must establish its own rules of procedure, "except as otherwise expressly provided." Tenn. Code Ann. § 7-52-110(d) (emphasis added). The statute provides that board members are reimbursed for traveling expenses, including an allowance not to exceed two hundred dollars a month for attendance at meetings. Tenn. Code Ann. § 7-52-110(e). Board members are entitled to an additional allowance for attending meetings for any additional utility system over which the board has jurisdiction under Tenn. Code Ann. § 7-52-111. Tenn. Code Ann. § 7-52-110(f). Subsection (g) provides:

Additionally, the municipality may provide health insurance coverage for each member of the board and may pay the health insurance premiums for such coverage in the same manner as if the member were a municipal employee. Payment of such premiums on behalf of such members shall constitute a cost of operation and maintenance of the electric plant.

(Emphasis added).

Tenn. Code Ann. § 7-52-114(a)(1) provides:

The general supervision and control of the acquisition, improvement, operation and maintenance of the electric plant shall be in charge of the following agency, referred to as the "supervisory body" in this part:
(A) The board; or if there be no board, then
(B) The governing body of the municipality.

(Emphasis added). Subsection (b) of the statute provides:

The supervisory body shall appoint an electric plant superintendent, referred to as "superintendent" in this part, who shall be qualified by training and experience for the general superintendence of the acquisition, improvement and operation of the electric plant. The superintendent need not be a resident of the state at the time of appointment. The superintendent's salary shall be fixed by the person or agency appointing such superintendent. The superintendent shall serve at the pleasure of the supervisory body and may be removed by such body at any time.

(Emphasis added). Subsection (c) provides:

Within the limits of the funds available, all powers to acquire, improve, operate and maintain, and to furnish electric service, and all powers necessary or convenient to furnishing electric service, conferred by this part shall be exercised on behalf of the municipality by the supervisory body and the superintendent, respectively.

(Emphasis added). Tenn. Code Ann. § 7-52-117(a) provides:

The superintendent shall have charge of all actual construction, the immediate management and operation of the electric plant and the enforcement and execution of all rules, regulations, programs, plans and decisions made or adopted by the supervisory body.

(Emphasis added). Under subsection (b) of Tenn. Code Ann. § 7-52-117, the superintendent has the power to hire employees and fix their duties and compensation, with the exception of technical consultants, advisors, and legal assistants. Control of these employees is subject to the approval of the board. This statute also empowers the superintendent to fire employees of a board created under the 1935 Law. Op. Tenn. Att'y Gen. U88-02 (January 4, 1988). The board is required to keep a record of its meetings, receipts, and disbursements, and submit a report to the governing body of the municipality at least once a year. Tenn. Code Ann. § 7-52-113. The board is also required to maintain a copy of its rate schedule and its rules and regulations relating to electric service on file at the main and branch offices of the electric plant and the office of the municipal clerk or recorder. Tenn. Code Ann. § 7-52-115(a).

Tenn. Code Ann. § 7-52-133 provides:

The powers conferred by this part shall be in addition and supplemental to the powers conferred by any other law. Bonds may be issued under this part for the acquisition or improvement of an electric plant, notwithstanding that any other law may provide for the issuance of bonds for like purposes and without regard to the requirements, restrictions or procedural provisions contained in any other law.

Tenn. Code Ann. § 7-52-134(b) provides:

This part is remedial in nature and the powers hereby granted shall be liberally construed to effectuate the purpose of this part, and, to this end, every municipality shall have power to do all things necessary or convenient to carry out the purposes of this part in addition to the powers expressly conferred in this part.

1. City Governing Body's Authority to Add to Criteria for Hiring Superintendent

The first question is whether Tenn. Code Ann. § 7-52-114(b) provides the exclusive criteria for the qualifications of the superintendent of a board created under the 1935 Law, or whether the city governing body may impose other limitations through its authority under its city charter. Absent any public or private law overriding the 1935 Law, the respective powers of both entities are governed by the 1935 Law. Tenn. Code Ann. § 7-52-133 does provide that the powers conferred by the 1935 Law "shall be in addition and supplemental to the powers conferred by any other law." Thus, a city may finance, own, and create a board to operate an electric plant under any other applicable law. But if it chooses to operate under the 1935 Law, that law is the primary law governing the relationship of the city governing body to the board. The 1935 Law gives a board created under it "general supervision and control of the acquisition, improvement, operation and maintenance of the electric plant[.]" Tenn. Code Ann. § 7-52-114(a)(1)(A). Further, Tenn. Code Ann. § 7-52-114(b) provides that a board may hire a superintendent and remove him or her at its pleasure. Finally, Tenn. Code Ann. § 7-52-107(b) expressly prohibits a regularly compensated municipal officer or employee from serving on a board created under the 1935 Law for one year after leaving his or her position. It imposes no such limit on being employed by the board. For all these reasons, absent some law overriding the 1935 Law, it is the opinion of this Office that the city governing body may not, by ordinance, impose other criteria on a board's authority to hire the superintendent under Tenn. Code Ann. § 7-52-114(b).

The question then becomes whether any other general law authorizes the city governing body to adopt such criteria notwithstanding the 1935 Law. As discussed in the answer to Question 2, this Office has concluded that, under a number of different statutory schemes, policies adopted by the city governing body also apply to a board created under the 1935 Law. But this Office has also concluded that, when a statute directly conflicts with a specific provision in the 1935 Law, that law must control. Op. Tenn. Att'y Gen. 96-043 (March 13, 1996). In that opinion, this Office addressed whether a provision in the Municipal Purchasing Law of 1983, applying to "all purchases by authorized officials in all municipalities using or encumbering municipal funds," applied to a board created under the 1935 Law. The opinion concluded that, while the board was a city department using and encumbering municipal funds within the meaning of the Municipal Purchasing Law, the 1935 Law specifically provided a more lenient purchasing requirement. The specific requirement in the 1935 Act controlled over the same requirement in the Municipal Purchasing Law.

In this case, the 1935 Law explicitly provides that the superintendent is appointed by the board and subject to removal by the board. This Office is unaware of any general law that would override this specific provision. It is possible a private act, if sufficiently explicit, could provide such authority. A charter provision generally authorizing the city governing body to create departments and provide for their powers, however, is not sufficient.

2. Whether the 1935 Law Exclusively Governs the Relationship Between City and Board

The next question is whether the 1935 Law exclusively governs the relationship between a board and the governing body of a city that created it under that law, specifically, the board's powers, duties, and limitations on the exercise of its powers. As discussed above, when a city creates a board under the 1935 Law, that law is the primary law governing the relationship of the city to the board. But courts of this state have concluded that a utility board created and operating under the 1935 Law is a department of the city, and its employees are employees of the city. Keeble v. Loudon Utilities, 212 Tenn. 483, 370 S.W.2d 531 (1963) (city utility board was a city department and, like the city, could not be sued outside the county where the city was located); Weakley County Municipal Electric Company v. Vick, 43 Tenn. App. 524, 309 S.W.2d 792 (1957), p.t.a. denied (February 6, 1958) (employees of an electric board created under the 1935 Act were employees of the city and could be enjoined from striking).

Based on this authority, this Office has concluded that an employee of a utilities board created under the 1935 Law is an employee of the local government within the meaning of various statutory schemes. Op. Tenn. Att'y Gen. 87-66 (April 13, 1987) (Tenn. Code Ann. § 12-4-101 governing conflicts of interest); Op. Tenn. Att'y Gen. 96-106 (August 20, 1996) (Tenn. Code Ann. § 7-51-1501 regarding right of local employees to run for office). In addition, this Office has concluded that a board created under the 1935 Law is subject to policies adopted by the city governing body under some general laws. Op. Tenn. Att'y Gen. 94-045 (April 4, 1994) (reimbursement policy adopted under Tenn. Code Ann. §§ 6-54-901, et seq., must provide policies for reimbursements to members of a board created under the 1935 Law); Op. Tenn. Att'y Gen. U92-97 (August 6, 1992) (except for the superintendent, employees of a board created under the 1935 Law are subject to the city's merit system adopted under Tenn. Code Ann. § 6-35-403(b) of the Modified City Manager-Council Charter). Under this authority, policies adopted by a city governing body under other general laws apply to a board created under the 1935 Law. Whether any particular policy applies would depend on the scope of the general law. For example, under Tenn. Code Ann. § 6-54-123, a municipality must provide a personnel policy that applies "fairly, impartially, and uniformly, to the extent practicable, to each department of the municipal government." Under the authority discussed above, personnel policies adopted under this statute would probably apply to employees of a board created under the 1935 Law.

We note that this conclusion arguably conflicts with Tenn. Code Ann. § 7-52-114(a)(1), (b), and (c). These statutory provisions give the board all powers necessary to operate and maintain the electric plant and provide electric service. Opinions of this Office do not directly address this argument. But statutes on the same subject matter must be interpreted together. Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010). Further, Tenn. Code Ann. § 7-52-110(d) requires the board to establish its rules of procedure "except as otherwise expressly provided." For this reason, personnel policies adopted under Tenn. Code Ann. § 6-54-123 would probably apply to employees of a board created under the 1935 Law. But, because Tenn. Code Ann. § 7-52-114(b) expressly gives the board the authority to hire and remove the superintendent, these policies would not apply to that position. Whether any other particular policy adopted by the city governing body applies to a board created under the 1935 Law depends on the scope of the general law authorizing the policy.

3. City's Authority to Adopt Ethics Policies Regarding Appointment of Superintendent

The last question is whether the 1935 Law contains any prohibition that would restrict a city governing body from adopting ethics policies regarding the hiring of the superintendent of a board created under that law. The 1935 Law contains no such explicit prohibition. But it confers on the board authority to hire the superintendent, as well as general supervision and control of the acquisition, improvement, operation, and maintenance of the electric plant. Further, it requires the board to report to the municipal governing body only periodically. The statute contemplates, therefore, that the board has the exclusive power to set ethics policies regarding the hiring of a superintendent.

Again, the question then becomes whether, under any general law, the board might be subject to ethics policies adopted by the city governing body. In 2006, the General Assembly enacted a statute requiring the governing body of each local government to adopt ethical standards for all officials and employees of the entity. Tenn. Code Ann. §§ 8-17-101, et seq. As used in the statute, the term "officials and employees" includes "any official, whether elected or appointed, officer, employee or servant, or any member of any board, agency, commission, authority or corporation, whether compensated or not, or any officer, employee or servant thereof, of a county or municipality." Tenn. Code Ann. § 8-17-102(5). But the statute defines the term "ethical standards" as follows:

"Ethical standards" includes rules and regulations regarding limits on, and/or reasonable and systematic disclosure of, gifts or other things of value received by officials and employees that impact or appear to impact their discretion, and shall include rules and regulations regarding reasonable and systematic disclosure by officials and employees of their personal interests that impact or appear to impact their discretion. The term "ethical standards" does not include personnel or employment policies or procedures related to operational aspects of governmental entities[.]

Tenn. Code Ann. § 8-17-102(3) (emphasis added). Thus, officers and employees of a board created under the 1935 Law would probably be subject to the ethical standards regarding disclosure that a city governing body adopts under this statute. But the statute expressly excludes personnel or employment policies or procedures related to the operational aspects of governmental entities from the type of ethics standards a local governing body may adopt. This Office is unaware of any other general law authorizing a city council to adopt ethics policies regarding the hiring of the superintendent of a board created under the 1935 Law.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Tim Barnes, State Senator, 305 War Memorial Building, Nashville, Tennessee 37243-0222
The Honorable Phillip Johnson, State Representative, 104 War Memorial Building, Nashville, Tennessee 37243-0178
The Honorable Curtis Johnson, State Representative, 212 War Memorial Building, Nashville, Tennessee 37243-0168
The Honorable Joe Pitts, State Representative, 34 Legislative Plaza, Nashville, Tennessee 37243-0167