TN Opinion No. 11-66 September 14, 2011

What happens if a Tennessee city fails to appoint a successor utilities commissioner when the term expires?

Short answer: The office is not vacant. Under Article VII, Section 5 of the Tennessee Constitution, 'every officer shall hold his office until his successor is elected or appointed, and qualified.' An incumbent utilities commissioner continues to hold office beyond the expiration of the term until a successor is elected and qualified. This applies even when the utility commission was created by private act and the appointment procedure under that private act has stalled.

Disclaimer: This is an official Tennessee Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Tennessee attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Subject

Opinion No. 11-66, Failure to Appoint Successor Utilities Commissioner, September 14, 2011

Plain-English summary

Senator Steve Southerland asked a tight constitutional question. The Morristown Utilities Commission is established by private act (2001 Tenn. Priv. Acts ch. 7). The private act sets up a specific appointment mechanism: the mayor nominates from a list of three names supplied by the commissioners, the city council votes to approve, and a nominee is deemed elected if the council does not act within 30 days. If the council disapproves, a modified nomination procedure kicks in.

What happens if the council can't or won't act and a commissioner's term has expired? Is the seat vacant?

The AG said no. Tennessee Constitution Article VII, § 5 contains a general "holdover" rule for all officers: "Every officer shall hold his office until his successor is elected or appointed, and qualified." That covers expired-term sheriffs, county commissioners, utility commissioners, and just about every other Tennessee public office. The constitutional holdover rule fills the procedural gap left by the private act. So the incumbent stays in office, with full authority, until the council finally finishes the appointment process and a successor takes the oath.

The AG cross-referenced its same-week Opinion No. 11-64 (the sheriff training case), where the same constitutional principle applied to a sheriff whose election was potentially infirm. The principle is structural: Tennessee government has no gap-toothed officeholding. A vacancy only exists after a duly qualified successor steps in, never just because a term ran out.

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.

Article VII, § 5's holdover rule is constitutional text and has not been amended. The Morristown Utilities Commission private act (2001 Tenn. Priv. Acts ch. 7) could have been amended at any subsequent legislative session. Anyone facing a current Morristown commissioner vacancy or similar deadlock should pull the current text of any controlling private act.

Background and statutory framework

The constitutional holdover rule. Tenn. Const. Art. VII, § 5: "Every officer shall hold his office until his successor is elected or appointed, and qualified." This is a general structural rule that prevents gaps in public officeholding.

The Morristown Utilities Commission private act. 2001 Tenn. Priv. Acts ch. 7 expanded the commission from three to five members and modified terms. Members are nominated by sitting commissioners (in lists of three), appointed by the mayor, and elected by a majority of the city council. If the council fails to vote within 30 days, the nominee is deemed elected. If a majority disapproves, an alternative procedure begins.

The cross-reference to Opinion 11-64. Issued in the same week, Op. 11-64 (Sept. 1, 2011) applied the same holdover principle to a sheriff whose election was potentially defective. The AG cited Op. 11-64 to confirm that the holdover rule applies broadly across Tennessee offices, regardless of the source of the appointment mechanism.

Common questions

Can the city council just refuse to act and keep the incumbent indefinitely?

The constitution doesn't forbid it. Politically, that's a stalemate question, not a legal one. The incumbent stays in office until the council acts. If the council disapproves a nominee, the modified procedure under the private act begins. Other than the private act's modified procedure, there is no automatic remedy for a deadlocked council.

Does the incumbent have full authority during the holdover period?

Yes. The holdover provision treats the officer as continuing in office for all purposes. The commissioner can vote, sign documents, and bind the utility just as if the original term had not yet expired. There is no asterisk on the holdover officer's authority.

What if the incumbent wants to step down?

A holdover officer can resign. A resignation creates a vacancy that must be filled under the private act's appointment procedure. The holdover provision keeps the incumbent in office only as long as the incumbent is willing to serve and qualified to hold the office.

Can someone bring a quo warranto action to challenge the holdover?

A quo warranto action is the traditional Tennessee tool to test the right to hold a public office. But because the constitution itself authorizes the holdover, any quo warranto challenge to a holdover officer would normally fail. The action becomes meaningful only if the holdover officer is alleged to be unqualified for some other reason.

Does this rule apply to private acts and to general law alike?

Yes. The constitutional rule is general. It overrides procedural mechanisms that have stalled, whether the underlying office was created by general statute or by private act.

Citations

Tenn. Const. Art. VII, § 5
2001 Tenn. Priv. Acts ch. 7 (Morristown Utilities Commission)
Op. Tenn. Att'y Gen. 11-64 (Sept. 1, 2011) (cross-reference)

Source

Landing page: https://www.tn.gov/attorneygeneral/opinions.html
Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-066.pdf

Original opinion text

September 14, 2011
Opinion No. 11-66
Failure to Appoint Successor Utilities Commissioner

QUESTION

If a utilities commission, formed by a private act, fails to elect a commissioner through the method established by such private act, does the commissioner whose term has expired continue in office until a successor is appointed, or is the position vacant?

OPINION

Under Article VII, § 5, of the Tennessee Constitution, "[e]very officer shall hold his office until his successor is elected or appointed, and qualified." An incumbent utilities commissioner, therefore, continues to hold office beyond the expiration of his or her term and until his or her successor is elected and qualified. Such commissioner's office is not vacant.

ANALYSIS

This opinion concerns the effect of a failure to elect a utilities commissioner to a utilities commission under the method established by the private act that created the commission. The request includes a copy of Chapter 7 of the 2001 Tennessee Private Acts, governing the Morristown Utilities Commission. This act increased the membership on the commission from three members to five. It modified the terms of the commissioners then in office, and provided for election of two additional commissioners. Under the 2001 Act, the mayor appoints commission members from a list of three nominees submitted by the commissioners. A majority of the city council must then elect the nominee. A nominee is deemed elected if the council fails to take action to approve or disapprove the nominee within thirty days following notice of the nomination to the city council. If a nominee is disapproved by a majority vote of the city council, or is not approved by a majority vote of the council, a modified nomination procedure takes place.

We assume this request concerns an incumbent commissioner whose term has expired, but whose successor has not been elected under the Act. The Act does not address the status of such commissioner. But, under Article VII, § 5, of the Tennessee Constitution, "[e]very officer shall hold his office until his successor is elected or appointed, and qualified." See also Op. Tenn. Att'y Gen. 11-64 (September 1, 2011) (opining that an elected sheriff possibly subject to removal continues to hold office until a successor is duly appointed and qualified). Thus, an incumbent utilities commissioner continues to hold office beyond the expiration of his or her term and until his or her successor is elected and qualified. The commissioner's office is not vacant.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Steve Southerland
State Senator
10 Legislative Plaza
Nashville, Tennessee 37243-0201