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

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 a commissioner's term has expired but no successor has been elected under the private act? Is the seat vacant?

The AG said no. Tennessee Constitution Article VII, § 5 provides: "Every officer shall hold his office until his successor is elected or appointed, and qualified." The private act did not address the status of an incumbent whose term expired without an elected successor. Under the constitutional provision, the incumbent remains in office until a successor is elected and qualified; the office is not vacant.

The AG cited Opinion No. 11-64, which said that an elected sheriff possibly subject to removal continued in office until a successor was duly appointed and qualified. Opinion 11-66 addresses the expired-term commissioner's status; it does not analyze the commissioner's powers or other causes of a vacancy.

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.

Anyone facing a current Morristown commissioner appointment question should check the current text of the 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. The AG cited Op. 11-64 (Sept. 1, 2011), which opined that an elected sheriff possibly subject to removal continued in office until a successor was duly appointed and qualified.

Common questions

What happens if the city council does not act on a nominee within 30 days?

Under the private act described in the opinion, a nominee is deemed elected if the council does not approve or disapprove the nomination within 30 days after notice. Opinion 11-66 assumes a different situation: the commissioner's term has expired and a successor has not been elected under the act. It says the incumbent then remains in office until a successor is elected and qualified.

Did the AG address the incumbent's voting or signing powers during the holdover period?

No. The AG concluded that the incumbent continues to hold office and that the office is not vacant. It did not separately analyze voting, signing, or other powers.

What if the incumbent wants to step down?

The opinion does not address resignation or the procedure for filling a vacancy caused by resignation. Its answer assumes that the incumbent's term expired and no successor was elected.

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

The opinion does not discuss quo warranto proceedings. It concludes only that the incumbent commissioner continues in office after the term expires until a successor is elected and qualified.

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

The opinion applies the constitutional holdover provision to the Morristown Utilities Commission, which was governed by a private act. It does not analyze other appointment statutes.

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