What happens to a Tennessee sheriff who took office without POST certification and never completed the required training, and who got reelected anyway?

Subject

Opinion No. 11-64, Certification and Training Requirements for County Sheriffs, September 1, 2011

Plain-English summary

Senator Jim Tracy and Representative Pat Marsh asked three connected questions about Tennessee's qualifications for sheriff before and after the General Assembly rewrote them in 2011 Public Chapter 370. The pre-2011 framework was strict: a new sheriff who lacked Peace Officer Standards and Training (POST) certification on taking office had to enroll in basic recruit training at the Tennessee Law Enforcement Training Academy (TLETA) within six months and complete it (and obtain POST certification) during the first term. Otherwise, the sheriff could not qualify to run for a second term.

Question 1. Could a sheriff who failed that training requirement legally qualify for a second term? The AG read the plain text of the old Tenn. Code Ann. § 8-8-102(d)(1) and said no. The statute said in so many words that "the person must have completed such recruit training program and have obtained peace officer standards and training certification during such person's first term of office as sheriff" before qualifying for "any subsequent election."

Question 2. If that disqualified sheriff still ran and got reelected, is the sheriff's office vacant? No. Under Tennessee law, an ineligible-but-reelected officer continues to hold the office until removed through an ouster proceeding under Tenn. Code Ann. §§ 29-35-101 et seq., and then continues until a successor is duly qualified. The leading authority is Hilliard v. Park, citing Conger v. Ray and State ex rel. Gann v. Malone. Holding a certificate of election creates prima facie title to the office (Shumate v. Claiborne Co.; Hagan v. Henry). So a county does not have a vacancy on its hands; it has a sheriff whose election is challengeable in court.

Question 3. Does the rewritten Tenn. Code Ann. § 8-8-102(a)(9), as amended by Chapter 370, let a previously non-compliant sheriff who was reelected and in office on May 30, 2011 (the effective date) continue to serve without satisfying training requirements? Yes. Chapter 370 deleted the prior provisions in their entirety and inserted a new (a)(9) requiring three years of full-time POST-certified experience in the previous ten years, "provided that any person holding the office of sheriff on the effective date of this act shall be deemed to have met the requirements of subdivision (9)." The italicized proviso is a grandfather clause. Sheriffs in office on May 30, 2011 are treated as if they had met the new training requirement. Subsection (B) excludes counties with metropolitan governments where the sheriff lacks full law enforcement powers.

The practical takeaway in 2011: a sheriff who slid through the prior law without completing TLETA training and got reelected was technically eligible to be ousted, but the 2011 amendment grandfathered them in. Once May 30, 2011 passed without an ouster action having concluded, the sheriff was safe.

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.

Sheriff qualification rules have been amended multiple times since 2011. Anyone evaluating a current sheriff's eligibility should look at the current version of Tenn. Code Ann. § 8-8-102 and recent legislative session amendments.

Background and statutory framework

Constitutional basis. Tenn. Const. Art. VII, § 1 makes the sheriff a constitutional county office, elected to a four-year term, with qualifications and duties to be prescribed by the General Assembly.

Pre-2011 statutory framework. Tenn. Code Ann. § 8-8-102(a)(1)-(8) set citizenship, age, education, psychological-fitness, criminal-history, and military-discharge requirements. Subsection (a)(9) required POST certification. Subsection (d)(1) carved out a path for an uncertified candidate: he or she could initially run and serve without POST certification, but had to enroll in TLETA within six months and obtain POST certification during the first term to qualify for any subsequent election.

Officer holdover doctrine. Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (Tenn. 1963), citing Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (Tenn. 1924), and State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (Tenn. 1914), hold that an officer continues to hold office until removed and until a successor is duly qualified. Shumate v. Claiborne Co., 183 Tenn. 182, 191 S.W.2d 441 (Tenn. 1946); Hagan v. Henry, 168 Tenn. 223, 76 S.W.2d 994 (Tenn. 1934): the certificate of election creates prima facie title to the office.

Ouster procedure. Tenn. Code Ann. §§ 29-35-101 et seq. govern the ouster of public officers. A successful ouster removes the sheriff, but the prior officer continues until a successor is appointed and qualified.

The 2011 grandfather clause. Tenn. Code Ann. § 8-8-102(a)(9)(A) (as amended by 2011 Tenn. Pub. Acts ch. 370): "Except as provided in subdivision (B), have at least three (3) years of full-time experience as a peace officer standards and training commission certified law enforcement officer in the previous ten (10) years or at least three (3) years of full-time experience as a state or federal certified law enforcement officer with training equivalent to that required by the peace officer standards and training commission in the previous ten (10) years; provided that any person holding the office of sheriff on the effective date of this act shall be deemed to have met the requirements of subdivision (9)." Subsection (B) excepts counties having a metropolitan form of government where the sheriff does not have full law enforcement powers.

Statutory construction. Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010): legislative intent controls. Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009): when language is clear, plain meaning controls.

Common questions

What did a sheriff have to do in the first term under the old law?

Enroll in TLETA basic recruit training within six months of taking office, and complete the program and obtain POST certification before the term ended. Any associated training cost was payable by the county.

Did a noncompliant sheriff become ineligible automatically?

The eligibility bar applied at the time of the next election. Failure to complete training did not automatically remove a sitting sheriff; it stopped the sheriff from running again. If the sheriff ran anyway and was elected, the election could be challenged in court but the sheriff would continue to serve until removed.

Who would bring an ouster action?

Ouster proceedings under Tenn. Code Ann. §§ 29-35-101 et seq. are typically brought by the district attorney or the AG. Private citizens have limited standing.

Did the 2011 grandfather clause apply to sheriffs in metropolitan-form counties without full law enforcement powers?

No. Subsection (B) excluded those counties from the (a)(9) requirement entirely. The grandfather clause sits inside (a)(9) and so doesn't change anything for sheriffs covered by (B).

Could a county appoint a replacement if the elected sheriff was eventually ousted?

Yes, following the normal vacancy-filling procedure in Tennessee law (county commission appointment in most counties), but only after the ouster proceeding concluded and a vacancy actually existed. Until then, the office was occupied.

Citations

• Tenn. Const. Art. VII, § 1
• Tenn. Code Ann. § 8-8-102 (and subsections; pre-amendment and post-amendment versions)
• Tenn. Code Ann. §§ 29-35-101 et seq.
• 2011 Tenn. Pub. Acts ch. 370
• Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (Tenn. 1963)
• Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (Tenn. 1924)
• State ex rel. Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (Tenn. 1914)
• Shumate v. Claiborne Co., 183 Tenn. 182, 191 S.W.2d 441 (Tenn. 1946)
• Hagan v. Henry, 168 Tenn. 223, 76 S.W.2d 994 (Tenn. 1934)
• Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010)
• Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-064.pdf

Original opinion text

September 1, 2011
Opinion No. 11-64
Certification and Training Requirements for County Sheriffs

QUESTIONS

1. Prior to the enactment of Chapter 370 of the 2011 Public Acts, could a sheriff, who was not certified as a peace officer when he first took office and who did not successfully complete basic recruit training at the Tennessee Law Enforcement Training Academy (TLETA) as required under Tennessee Code Annotated § 8-4-102(d) (repealed May 30, 2011), legally qualify to run for a second term in office?

2. If a sheriff did not qualify for reelection because of a failure to satisfy mandatory training requirements but nonetheless ran for and was reelected to a second term, would the office of sheriff in that county be legally vacant?

3. Does Tennessee Code Annotated § 8-8-102(a)(9), as amended by Chapter 370 of the 2011 Public Acts, permit a sheriff who was reelected to a second term, even though he failed to satisfy the training requirements set forth in Tennessee Code Annotated § 8-8-102(d) (repealed May 30, 2011), to continue to serve without having to satisfy such training requirements?

OPINIONS

1. Before Tennessee Code Annotated § 8-4-102(a) was amended by Chapter 370 of the 2011 Public Acts, a sheriff who was not POST certified upon first assuming office was required to complete basic recruit training at TLETA during the sheriff's first term. If a sheriff did not satisfy this training requirement, then the sheriff was not legally qualified to seek election for another term in office.

2. No. A sheriff under these circumstances would remain in office until removed, and a successor elected or appointed and duly qualified.

3. Yes. Under Tennessee Code Annotated § 8-8-102(a)(9), as amended by Chapter 370 of the 2011 Public Acts, a sheriff who held office on May 30, 2011, the effective date of Chapter 370, shall be deemed to have met the training requirements imposed by Tennessee Code Annotated § 8-8-102(a)(9). Therefore, a sheriff holding office on May 30, 2011 may continue to serve without having to satisfy such training requirements.

ANALYSIS

1. The office of sheriff is a county office established by the Tennessee Constitution. The sheriff is elected by the voters of the county and serves a term of four years. Tenn. Const. Art. VII, § 1. The Tennessee Constitution authorizes the General Assembly to prescribe the qualifications and duties of the office. Id.

Before Tennessee Code Annotated § 8-8-102 was amended by Chapter 370 of the 2011 Public Acts, the qualifications for election or appointment to the office of sheriff included citizenship, age, educational and other requirements related to psychological fitness and the absence of a criminal history and dishonorable or bad conduct military discharge. Tenn. Code Ann. §§ 8-8-102(a)(1)-(8) (repealed May 30, 2011). The statute also required sheriffs to be POST certified. Tenn. Code Ann. § 8-8-102(a)(9) (repealed May 30, 2011).

Tennessee Code Annotated § 8-8-102(d)(1) (repealed May 30, 2011) did however provide an exception for first term sheriffs who lacked POST certification, stating:

Notwithstanding any provision of subsections (a)-(d) to the contrary, a current and valid peace officer certification issued by the peace officer standards and training commission or training that is approved by or meets the standard on minimum hours required to be certified by the peace officer standards and training commission is not a requirement for a person to initially qualify for election to the office of sheriff. However, if such a person qualifies to run for the office of sheriff and is elected to the office, such person shall be required to enroll, within six (6) months after taking office, in the recruit training program offered by the Tennessee law enforcement training academy. Any cost associated with obtaining such peace officer standards and training certification shall be paid by the county. For such person to qualify for the office of sheriff in any subsequent election, the person must have completed such recruit training program and have obtained peace officer standards and training certification during such person's first term of office as sheriff.

Tenn. Code Ann. § 8-8-102(d)(1) (repealed May 30, 2011).

Thus, under the plain meaning of Tennessee Code Annotated § 8-8-102(d)(1), a sheriff who lacked POST certification when he or she first assumed office was required to complete the basic recruit training course during his first term in office. If the sheriff failed to do so, the sheriff would not be eligible to seek election to a second term.

2. The next question posed is whether under the facts presented the sheriff's office would be legally vacant. Under Tennessee law, if a sheriff who did not qualify for reelection ran for and was reelected to a second term, his or her failure to satisfy the mandatory training requirements would not result in an immediate removal from office. In such a case, the sheriff would continue to hold office until a legal proceeding was commenced to remove the sheriff pursuant to Tennessee Code Annotated §§ 29-35-101 et seq. Even if such an action were initiated and succeeded, the sheriff would continue to hold the office until a successor is duly appointed and qualified. See Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829, 838-39 (Tenn. 1963), citing Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (Tenn. 1924); State ex rel. Gann v. Malone, 131 Tenn. 149, 171, 174 S.W. 257, 263 (Tenn. 1914). See also Shumate v. Claiborne Co., 183 Tenn. 182, 185, 191 S.W.2d 441, 442 (Tenn. 1946); Hagan v. Henry, 168 Tenn. 223, 227, 76 S.W.2d 994, 995 (Tenn. 1934) (a person who is certified the winner of an election and receives a certificate of election has acquired prima facie title to that office).

3. In 2011, the General Assembly enacted Chapter 370 which amended Tennessee Code Annotated § 8-8-102 by deleting the former provision in its entirety and substituting an entirely revised version of the statute. The eligibility requirements previously set forth in subsections (a)(1) through (a)(8) remained substantially the same. The major revisions related to subsections (a)(9) and (d). Subsection (d), which dispensed with certification requirements for first term sheriffs, was repealed in its entirety. Subsection (a)(9), which sets forth the certification requirements, was rewritten to state as follows:

Except as provided in subdivision (B), have at least three (3) years of full-time experience as a peace officer standards and training commission certified law enforcement officer in the previous ten (10) years or at least three (3) years of full-time experience as a state or federal certified law enforcement officer with training equivalent to that required by the peace officer standards and training commission in the previous ten (10) years; provided that any person holding the office of sheriff on the effective date of this act shall be deemed to have met the requirements of subdivision (9).

Tenn. Code Ann. § 8-8-102(a)(9)(A) (emphasis added). The effective date of the Act was the date it was signed into law. 2011 Tenn. Pub. Acts ch. 370, § 2. The Act was signed by the Governor on May 30, 2011. Subdivision (B) stated this provision was not applicable in any county having a metropolitan form of government where the sheriff does not have full law enforcement powers. Tenn. Code Ann. § 8-8-102(a)(9)(B).

Thus, upon the passage of this statute effective May 30, 2011, a sheriff, who may not be qualified to serve a second term because the sheriff did not satisfy the training requirements set forth in former Tennessee Code Annotated § 8-8-102(d) but was nonetheless reelected and in office on May 30, 2011, could continue to serve in office without having to satisfy the certification requirements set forth in Tennessee Code Annotated § 8-8-102(a)(9) as amended by Chapter 370. The primary objective of statutory interpretation is to ascertain and give effect to the intent of the legislature. Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010). When the statutory language is clear and unambiguous, courts find that intent in the plain meaning of the language of the statute. Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009). The language of Tennessee Code Annotated § 8-8-102(a)(9) as amended by Chapter 370 clearly and unambiguously provides that all sheriffs who held office on May 30, 2011, the effective date of the amendment, shall be treated as if they satisfied the certification requirements set forth in that subsection. Such language reflects a clear legislative intent to grandfather in all sheriffs who were in office on that date. Therefore, as long as such a sheriff satisfies the other statutory requirements, the sheriff may continue to serve in office and seek reelection.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BENJAMIN A. WHITEHOUSE
Assistant Attorney General

Requested by:
Honorable Jim Tracy
State Senator
2 Legislative Plaza
Nashville, TN 37243

Honorable Pat Marsh
State Representative
110 War Memorial Building
Nashville, TN 37243