Do members of a Tennessee county growth-plan coordinating committee have to live in the county, and can any official reject who gets seated?

Subject

Opinion No. 11-77, Coordinating Committee under Local Planning Law, November 14, 2011

Plain-English summary

Senator Faulk asked three questions about the coordinating committee created in each Tennessee county to develop or amend the countywide growth plan under Tenn. Code Ann. § 6-58-104. The committee is a mixed body of mayoral designees, utility-system representatives, soil-conservation appointees, an education board representative, a chamber-of-commerce appointee, and a few extra mayor appointees meant to bring environmental, construction, and homeowner perspectives.

Question 1: residency. Are committee members required to live in the city or county the growth plan covers? Mostly no. The statute itself does not require residency. But a mayor or county commissioner who serves on the committee has to keep being a resident of the city or county to hold the underlying public office, by Tenn. Code Ann. § 8-48-101(3). For all the other members, the AG concluded that committee service is not itself a "public office." Tennessee's classic public-office test (Wise v. City of Knoxville and the older line of cases) looks for tenure, salary, defined duties, and continuity. Coordinating committee members don't have a fixed term, aren't paid, are assigned a discrete task, and the committee reconvenes only when a growth-plan amendment is proposed. That's not a public office, so § 8-48-101(3)'s residency-or-vacate rule doesn't apply.

Question 2: can the committee reject its own members? No. Section 6-58-104(a)(1) says the committee "shall be composed" of members selected by the listed appointing authorities. The committee has no statutory authority to second-guess those appointments. The AG cross-referenced Op. Tenn. Att'y Gen. No. 10-83 (June 21, 2010), which had similarly concluded that a county mayor cannot veto a soil-conservation board's appointment to the committee.

Question 3: can anyone else reject appointments? The only built-in rejection path is the legislative-body confirmation of a mayor's designee under § 6-58-104(a)(1)(A) (county mayor designee) or (B) (municipal mayor designee). If the mayor designates someone (including possibly a member of the county legislative body itself), the legislative body has confirmation power and can decline. No other official, board, or committee has authority to reject a coordinating committee appointment.

The opinion also flags the alternative-entity option under § 6-58-104(a)(9)(B). If the county legislative body and every municipality in the county all agree, they can pick a different entity to perform the coordinating committee's duties instead of using the statutory committee. The membership rules for that alternative entity come from its own charter or agreement, not from § 6-58-104(a)(1).

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.

Background and statutory framework

The coordinating committee. Tenn. Code Ann. § 6-58-104(a)(1) creates within each county a coordinating committee to develop or amend a countywide growth plan. Members include: (A) the county mayor or designee, confirmed by the county legislative body; (B) the mayor of each municipality or designee, confirmed by the municipal governing body; (C) one member from the governing board of the largest municipally owned utility; (D) one member from the governing board of the largest non-municipal utility; (E) one member from the soil conservation district board, representing agricultural interests; (F) one member from the LEA with the largest student enrollment; (G) one member from the largest chamber of commerce; (H) two members appointed by the county mayor and two by the largest municipality's mayor to assure broad representation of environmental, construction, and homeowner interests.

Alternative entity. Tenn. Code Ann. § 6-58-104(a)(9)(B): if the county legislative body and every municipality in the county agree, an alternative entity may perform the committee's duties.

Growth plan timeline. § 6-58-104(2)(4): coordinating committee was originally required to submit a recommended plan by January 1, 2000. § 6-58-104(4)-(5): ratification or rejection by a date certain. § 6-58-104(b): dispute resolution through the Tennessee Secretary of State on impasse. § 6-58-104(c): final approval by the local government planning advisory committee (established by § 4-3-727) by no later than July 1, 2001. § 6-58-104(d)(1): plan in effect for at least three years; amendments require reconvening the coordinating committee.

Public-office residency rule. Tenn. Code Ann. § 8-48-101(3) provides that a person holding a "public office" vacates that office upon ceasing to reside in the state, district, circuit, or county for which the officeholder was elected or appointed.

Public-office test. Wise v. City of Knoxville, 194 Tenn. 90, 93-94, 250 S.W.2d 29, 31 (1952): a public office generally requires set salary, defined term, definite emoluments, and statute-fixed duties. State ex rel. Thompson v. Crump, 134 Tenn. 121, 130-131, 183 S.W. 505, 507 (1916) (quoting United States v. Hartwell, 73 U.S. 385, 393 (1867)): an office "embraces the ideas of tenure, duration, emolument, and duties." State ex rel. Lawson v. Farmer, 189 Tenn. 276, 279, 225 S.W.2d 60, 61 (1949): some permanency and continuity required, not just temporary or occasional service.

Prior AG guidance. Op. Tenn. Att'y Gen. No. 10-83 (June 21, 2010): a county mayor may not veto a soil conservation district board's appointment to the coordinating committee.

Common questions

Can a sitting county commissioner serve on the committee as the county mayor's designee?

Yes, and the statute explicitly contemplates this. Section 6-58-104(a)(1)(A) provides: "a member of the county legislative body may serve as such designee subject to such confirmation." The county legislative body itself confirms, so it can decline the mayor's choice if the commissioner is contested.

Can a member of the public force the committee to remove someone they think is unqualified?

No. The committee has no expulsion authority. The appointing entity controls its appointment. The only formal rejection check is legislative-body confirmation of mayoral designees.

Does service on the coordinating committee make someone subject to ethics, conflict-of-interest, or financial-disclosure laws?

The opinion did not address those frameworks. Tennessee's conflict-of-interest statutes for local public bodies may apply on their own terms regardless of whether the position is a "public office" for residency-vacation purposes; check current law.

If the local bodies agree to use an alternative entity, does that entity have to follow the membership rules of § 6-58-104(a)(1)?

No. § 6-58-104(a)(9)(B) makes the alternative entity's membership a function of "the charter or agreement that created it." The statutory committee's composition rules do not transfer.

When does the committee reconvene for an amendment?

Section 6-58-104(d)(1) requires the county mayor or executive to "reconvene or reestablish" the coordinating committee whenever an amendment is proposed. So the committee's existence is episodic, which is part of why service on it is not treated as a "public office."

Citations

• Tenn. Code Ann. § 6-58-104
• Tenn. Code Ann. § 6-58-104(a)(1)
• Tenn. Code Ann. § 6-58-104(a)(9)(B)
• Tenn. Code Ann. § 6-58-104(a)(1)(A)
• Tenn. Code Ann. § 6-58-104(a)(1)(B)
• Tenn. Code Ann. § 6-58-104(d)(1)
• Tenn. Code Ann. § 6-58-104(b)
• Tenn. Code Ann. § 6-58-104(c)
• Tenn. Code Ann. § 4-3-727
• Tenn. Code Ann. § 8-48-101(3)
• Tenn. Code Ann. § 8-48-101
• Wise v. City of Knoxville, 194 Tenn. 90, 250 S.W.2d 29 (1952)
• State ex rel. Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505 (1916)
• United States v. Hartwell, 73 U.S. 385 (1867)
• State ex rel. Lawson v. Farmer, 189 Tenn. 276, 225 S.W.2d 60 (1949)
• Op. Tenn. Att'y Gen. No. 10-83 (June 21, 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-077.pdf

Original opinion text

November 14, 2011
Opinion No. 11-77
Coordinating Committee under Local Planning Law

QUESTIONS

Tennessee Code Annotated § 6-58-104 generally requires counties to develop and submit a growth plan for the county. The statute creates a coordinating committee made up of members selected by various interests to develop the growth plan. In the alternative, where the local legislative bodies agree, a different entity may develop the plan.

1. Are members of a coordinating committee required to be residents of the county or municipality that is subject to the growth plan proposed by the committee?

2. Is the coordinating committee authorized to reject appointments to its membership?

3. Does any other official, board, or committee have the authority to reject appointments to the coordinating committee?

OPINIONS

1. A city or county mayor or member of the county legislative body that serves on a coordinating committee must be a resident of the city or county as a qualification for that local office. Otherwise a coordinating committee member is not required to be a resident of the county or city subject to the growth plan proposed by the committee.

2. The coordinating committee is not authorized to reject members appointed to the committee under Tennessee Code Annotated § 6-58-104(a). If the legislative bodies choose a different entity to develop the plan under Tennessee Code Annotated § 6-58-104(a)(9)(B), membership of that entity would be governed by the charter or agreement that created it.

3. The designee of the county or city mayor under Tennessee Code Annotated § 6-58-104(a)(1)(A) and (B) must be confirmed by the legislative body, although a member of the county legislative body may serve as the county mayor's designee subject to confirmation. The legislative body of the county or any municipality, therefore, may reject the designee of the county or municipality's mayor. No statute, however, authorizes any other official, board, or committee to reject an individual who has been appointed to the committee. If the legislative bodies choose a different entity under Tennessee Code Annotated § 6-58-104(a)(9)(B), membership of that entity would be governed by the charter or agreement that created it.

ANALYSIS

This opinion addresses several questions about membership in a coordinating committee created by Tennessee Code Annotated § 6-58-104. That statute creates within each county a coordinating committee charged with developing a countywide growth plan or amending an existing plan. The committee is composed of the following members:

(A) The county mayor or the county mayor's designee, to be confirmed by the county legislative body; provided, that a member of the county legislative body may serve as such designee subject to such confirmation;

(B) The mayor of each municipality or the mayor's designee, to be confirmed by the municipal governing body;

(C) One (1) member appointed by the governing board of the municipally owned utility system serving the largest number of customers in the county;

(D) One (1) member appointed by the governing board of the utility system, not municipally owned, serving the largest number of customers in the county;

(E) One (1) member appointed by the board of directors of the county's soil conservation district, who shall represent agricultural interests;

(F) One (1) member appointed by the board of the local education agency having the largest student enrollment in the county;

(G) One (1) member appointed by the largest chamber of commerce, to be appointed after consultation with any other chamber of commerce within the county; and

(H) Two (2) members appointed by the county mayor and two (2) members appointed by the mayor of the largest municipality, to assure broad representation of environmental, construction and homeowner interests.

Tenn. Code Ann. § 6-58-104(a)(1).

Subsection (a)(9)(A) of the same statute provides for a different membership of the coordinating committee in a county that meets certain population qualifications. Subsection (a)(9)(B) also allows the county and all impacted municipalities to create an entity other than the coordinating committee to perform the duties of the committee, stating:

Instead of the coordinating committee created pursuant to subdivision (a)(1), if the county legislative body and the governing body of each municipality located therein all agree that another entity shall perform the duties assigned by this chapter to the coordinating committee, then such other entity shall perform such duties of the coordinating committee, and such coordinating committee shall not be created or continued, as the case may be.

Tenn. Code Ann. § 6-58-104(a)(9)(B). (Emphasis added).

The coordinating committee is an important component of the process whereby local governments establish their comprehensive growth plans. The coordinating committee was originally required to submit a recommended growth plan for ratification to the county legislative body and the governing body of each municipality within the county by no later than January 1, 2000. Tenn. Code Ann. § 6-58-104(2)(4). The respective county or municipalities were then required to ratify or reject the recommended growth plan by a date certain. Tenn. Code Ann. § 6-58-104(4)-(5).

If the plan was rejected by the county or any municipality, then the coordinating committee was required to reconsider its action and submit a revised growth plan. If a consensus could not be obtained between all involved parties on a revised growth plan, the county or any municipality could declare an impasse, thereby triggering a dispute resolution process through the Tennessee Secretary of State. Tenn. Code Ann. § 6-58-104(b).

The growth plan ultimately adopted through this process was required to be submitted for consideration and approval (or revision) to the local government planning advisory committee established by Tennessee Code Annotated § 4-3-727, by no later than July 1, 2001. Tenn. Code Ann. § 6-58-104(c). Absent extraordinary circumstances the plan ultimately approved would remain in effect for not less than three years. Tenn. Code Ann. § 6-58-104(d)(1).

At any time after the expiration of this three-year period, the growth plan could be amended as often as deemed necessary by the impacted county and cities. As part of the amendment process, the county mayor or county executive is required to reconvene or reestablish the coordinating committee to consider any proposed amendment. Tenn. Code Ann. § 6-58-104(d)(1). Thus coordinating committees play a continuing role in adjusting the growth plans of local governments.

1. The initial question raised is whether members of a committee created under the statute are required to be residents of the county or municipality that will be subject to the growth plan. The statute itself does not require any of the members of the committee to be a resident of a county or a city within the county for which the committee is to develop a growth plan.

However, the failure of this statute to require residency does not end the inquiry under Tennessee law. Tennessee statutes provide that a person holding a "public office" will vacate that office once the person ceases to be a resident of the state, or of the district, circuit, or county for which the office holder was elected or appointed. Tenn. Code Ann. § 8-48-101(3). Thus a city or county mayor or member of the county legislative body that serves on the coordinating committee must be a resident of the city or county as a continuing qualification to serve in the public offices of mayor or county commissioner.

The determination of any residency requirement for the remaining members of the coordinating committee depends on whether mere service as a member of the committee rises to the level of a "public office", thus triggering the residency requirement of Section 8-48-101(3). Tennessee law would not view such service as a "public office" under this statute for a number of reasons. The term "public officer" generally requires a set salary for a defined term of office, definite emoluments and defined duties fixed by statute. Wise v. City of Knoxville, 194 Tenn. 90, 93-94, 250 S.W.2d 29, 31 (1952). An office thus "embraces the ideas of tenure, duration, emolument, and duties." State ex rel. Thompson v. Crump, 134 Tenn. 121, 130-131, 183 S.W. 505, 507 (1916) (quoting United States v. Hartwell, 73 U.S. 385, 393 (1867)). To create a public office, the office must have some permanency and continuity and not be only temporary or occasional. State ex rel. Lawson v. Farmer, 189 Tenn. 276, 279, 225 S.W.2d 60, 61 (1949).

Utilizing these criteria, membership on a coordinating committee would not constitute an "office" within the meaning of Tennessee Code Annotated § 8-48-101. Members are not appointed to a specific term of office, nor do they receive any compensation for their services. The absence of both of these characteristics is indicative that a coordinating committee member does not hold a public office. Furthermore these members do not have broad defined duties, but instead are charged with carrying out a particular task over an indeterminate period of time. Thus, the county mayor or executive is required to "reconvene or reestablish" the coordinating committee after an amendment to an existing growth plan is proposed under Tennessee Code Annotated § 6-58-104(d)(1). Further, the county commission and city legislative bodies within the county may agree to choose a different entity from the coordinating committee described in subsection (a)(1) of Tennessee Code Annotated § 6-58-104 to develop the growth plan. The statute contains no membership requirements for this different entity. Finally, the coordinating committee simply adopts and submits a plan to the local governing bodies within the county. The plan is not effective until it is ratified by the local governing bodies within the county. For these reasons, membership on a coordinating committee is not an "office" within the meaning of Tenn. Code Ann. § 8-48-101. A committee member, therefore, need not be a resident of the city or county subject to the growth plan the committee proposes.

2. The second question is whether the coordinating committee is authorized to reject appointments to the committee. No statute confers such authority on the committee, and indeed the statute explicitly states the committee "shall" be composed of the members selected by various groups. Tenn. Code Ann. § 6-58-104(a)(1). See also Op. Tenn. Att'y Gen. No. 10-83 (June 21, 2010) (county mayor may not veto soil conservation district board's appointment to the coordinating committee). If the legislative bodies choose a different entity under Tennessee Code Annotated § 6-58-104(a)(9)(B), membership of that entity would be governed by the charter or agreement that created it.

3. The third question is whether any other official, board, or committee has the authority to reject appointments to the coordinating committee. The designee of the county or city mayor under Tennessee Code Annotated § 6-58-104(a)(1)(A) and (B) must be confirmed by the legislative body. The legislative body, therefore, may reject the mayor's designee appointed under the statute. No statute, however, authorizes any other official, board, or committee to reject an individual who has been appointed to the coordinating committee under Tennessee Code Annotated § 6-58-104(a). See Op. Tenn. Att'y Gen. No. 10-83 (June 21, 2010). If the legislative bodies choose a different entity under Tennessee Code Annotated § 6-58-104(a)(9)(B), membership of that entity would be governed by the charter or agreement that created it.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Mike Faulk
State Senator
Suite 10A, Legislative Plaza
Nashville, Tennessee 37243