Can a Tennessee county planning commission make citizens testify under oath at meetings?

Subject

Opinion No. 12-105, Authority of Carter County Planning Commission to Require Testimony Under Oath, November 26, 2012

Plain-English summary

Representative Williams asked whether the Carter County Planning Commission has the authority to require citizens addressing the commission to do so under oath. The AG said no.

The Carter County Planning Commission was created by 1972 Tenn. Priv. Acts ch. 360 (as amended). The 1972 Act gives the Commission detailed authority: adopt a county general plan, recommend public improvement programs, request information from public officials, conduct examinations and surveys, approve subdivisions, adopt subdivision regulations, hold hearings on plats, propose zoning, administer land use under various private acts on mobile homes. Section 6 gives the Commission a catch-all: "such powers as may be necessary to enable it to perform its purposes and promote county planning."

But nothing in the 1972 Act explicitly grants oath-administration authority. And Tennessee's general law gives that authority only to the county legislative body and its committees created by duly adopted resolution. Tenn. Code Ann. § 5-5-126 provides:

Power is given to members of the county legislative body to administer an oath or affirmation as provided by law for witnesses appearing in a court of record of this state to give testimony in such court, when a witness is called to give testimony before the county legislative body or any committee of the county legislative body that has been created by a duly adopted resolution of the county legislative body.

The Planning Commission doesn't fit. It's a creature of private act, not a committee created by resolution. Black's Law Dictionary defines "committee" as "[a] subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action." The Planning Commission has its own statutory mandate; it isn't a subordinate body that the county legislative body referred business to. So § 5-5-126 doesn't reach it.

The AG also invoked the general rule that Tennessee counties and their subdivisions have only the powers granted by statute or constitution. Tennessee courts have long held that local legislative bodies are "creatures of statute possessed of statutory jurisdiction alone, and wholly wanting in common law powers" (Shelby County v. Exposition Co., 1896, quoted in Tenn. Att'y Gen. Op. 83-462). State ex rel. Witcher v. Bilbrey reaffirmed that counties and their legislative bodies "possess only the powers vested in them by the Tennessee Constitution or by state law." Mosier v. Thompson holds that enabling statutes for predecessor bodies (the quarterly court) must be strictly construed.

The catch-all language in Section 6 of the 1972 Act ("such powers as may be necessary") isn't enough to fill the gap. Tennessee courts will not broaden the scope of a statute beyond the legislature's clear intent (Wlodarz v. State). And Tenn. Att'y Gen. Op. 83-462 specifically rejected subpoena power for county commissioners under similar reasoning.

The AG flagged this as "arguably a close question," but came out against the Commission having oath authority.

Currency note

This opinion was issued in 2012. 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 Carter County Planning Commission's structure

1972 Tenn. Priv. Acts ch. 360 (as amended) created the Carter County Planning Commission. The 1972 Act gives the county commission authority to appoint between 7 and 12 members. The chair of the county commission is automatically a member; another seat is reserved for a county commissioner. The remaining seats are apportioned by school district. Terms can be up to six years and may be staggered. The Commission adopts its own rules and keeps public records.

Substantive duties under the 1972 Act include adopting an official general plan, amending the plan, recommending public improvement programs and financing, requesting information from public officials, entering land for surveys, approving subdivision plats, adopting subdivision regulations (with public hearings), holding hearings on plats, developing a county zoning plan (for the county commission's approval), and administering mobile-home land-use rules under several 1990s private acts.

Why the general regional-planning-commission statute doesn't help

Tenn. Code Ann. §§ 13-3-101 to -105 govern regional planning commissions established by the Department of Economic and Community Development. Where a planning region matches a county's boundaries, the county mayor appoints commission members subject to county legislative body confirmation (§ 13-3-101(i)(1)). But only a few provisions of the general regional-planning-commission statute apply to a planning commission created by private act. None of those provisions touches oath authority.

Why § 5-5-126 doesn't reach the Commission

§ 5-5-126 gives the county legislative body, and any of its committees created by resolution, the power to administer oaths. The Carter County Planning Commission isn't a "committee of the county legislative body." It was created by the Tennessee General Assembly via private act, not by county resolution. Even if you read "committee" loosely, the Commission's structure (independent statutory mandate, fixed mix of ex officio and appointed members) makes it more like a freestanding body than a subordinate committee.

The general anti-implication principle

Tennessee local bodies have only the powers explicitly granted by statute or constitution. Three citations support this:

• Mosier v. Thompson (1965): enabling statutes for the predecessor quarterly court must be strictly construed.
• State ex rel. Witcher v. Bilbrey (1994): counties "possess only the powers vested in them by the Tennessee Constitution or by state law."
• Shelby County v. Exposition Co. (1896, quoted by Tenn. Att'y Gen. Op. 83-462): local legislative bodies are "creatures of statute possessed of statutory jurisdiction alone, and wholly wanting in common law powers."

Tenn. Att'y Gen. Op. 83-462 had specifically rejected subpoena power for county commissioners on this basis. The Carter County Planning Commission falls within the same line of reasoning.

What about Section 6's "powers as may be necessary" clause?

The catch-all gives "such powers as may be necessary to enable it to perform its purposes and promote county planning." The AG read this conservatively under Wlodarz v. State, which directs courts not to broaden a statute beyond its intended scope. Oath administration is a serious power historically reserved to judicial and legislative bodies; the AG declined to find it implicit in a county planning commission's general grant.

Common questions

What's the practical effect for citizens speaking at planning meetings?
Citizens are not under oath. Their statements aren't perjury liability if untrue. The Commission can require courtesy, take statements in writing, ask follow-up questions, and weigh credibility, but it can't administer an oath.

What can the Commission do to ensure accurate testimony?
Use information-gathering tools that don't require an oath: request public records, hire experts, ask for sworn affidavits voluntarily, require written submissions in advance. Citizens always remain subject to general laws against fraudulent statements to government bodies.

Can the county legislative body fix this by passing a resolution making the Planning Commission a committee?
Section § 5-5-126 covers committees "of" the county legislative body, suggesting a structural relationship. The Carter County Planning Commission was created by state statute, not by county resolution; pre-existing structure under the 1972 Act probably forecloses converting it to a committee by simple resolution. A legislative amendment by the Tennessee General Assembly to the 1972 Act, or a state statute granting oath authority to county planning commissions, would be a cleaner fix.

Does this apply to other Tennessee county planning commissions?
The opinion analyzes the Carter County structure specifically. Other county planning commissions created by private act will face the same § 5-5-126 problem. Commissions created under the general regional-planning-commission statute (Tenn. Code Ann. §§ 13-3-101 to -105) would need to be analyzed separately.

Citations

Statutes and private acts:

• Tenn. Code Ann. § 5-5-101 (county legislative body)
• Tenn. Code Ann. §§ 5-5-102 to -127 (general county legislative body provisions)
• Tenn. Code Ann. § 5-5-126 (oath administration power)
• Tenn. Code Ann. §§ 13-3-101 to -105 (regional planning commissions)
• Tenn. Code Ann. § 13-3-101(i)(1) (county mayor appoints in single-county region)
• 1972 Tenn. Priv. Acts ch. 360 (Carter County Planning Commission)
• 1990 Tenn. Priv. Acts ch. 182 (mobile home parks)
• 1990 Tenn. Priv. Acts ch. 187 (mobile homes in flood hazard areas)
• 1992 Tenn. Priv. Acts ch. 198 (mobile homes)

Cases and prior opinions:

• Mosier v. Thompson, 216 Tenn. 655, 393 S.W.2d 734 (1965)
• State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567 (Tenn. Ct. App. 1994)
• Shelby County v. Exposition Co., 96 Tenn. 653, 36 S.W. 694 (1896)
• Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012)
• State v. Edmondson, 231 S.W.3d 925 (Tenn. 2007)
• Tenn. Att'y Gen. Op. 11-15 (Feb. 9, 2011) (Carter County Planning Commission discussion)
• Tenn. Att'y Gen. Op. 83-462 (Oct. 26, 1983) (subpoena power for county commissioners)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-105.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

November 26, 2012

Opinion No. 12-105

Authority of Carter County Planning Commission to Require Testimony Under Oath

QUESTION

Is the Carter County Planning Commission authorized to require citizens to be under oath when they wish to address the Commission?

OPINION

No.

ANALYSIS

This opinion addresses whether the Carter County Planning Commission (the "Planning Commission") is authorized to require citizens to be under oath when they wish to speak at Commission meetings. As discussed in Tenn. Att'y Gen. Op. 11-15 at 2-3 (Feb. 9, 2011), the Planning Commission is a county planning commission created under 1972 Tenn. Priv. Acts ch. 360, as subsequently amended (hereinafter collectively referenced as the "1972 Act"). [Footnote 1: Ordinarily, regional planning commissions are governed by Tenn. Code Ann. §§ 13-3-101 to -105. Under that statutory scheme, the Department of Economic and Community Development creates and establishes regional planning commissions with planning authority over a defined geographic area. Where the boundaries of a planning region determined by the Department follow the existing boundaries of a single county, the county mayor appoints the members of the planning commission, subject to the confirmation by the county legislative body. Tenn. Code Ann. § 13-3-101(i)(1). But only a few provisions of the general statutes governing regional planning commissions expressly apply to a county planning commission created by private act, and nothing in these statutes applies to the Planning Commission's authority in this instance.]

The 1972 Act authorizes the Carter County Commission to create the Planning Commission. The Planning Commission may have no less than seven and no more than twelve members. 1972 Tenn. Priv. Acts ch. 360, § 1. [Footnote 2: The 1972 Act references the appointing body as the "quarterly county court" of Carter County. That body was abolished effective September 1, 1978, and replaced with the county commission. See Tenn. Code Ann. § 5-5-101; Tenn. Code Ann. §§ 5-5-102 to -127.] One member of the Planning Commission is the chair of the county commission, and another member must be a member of the county commission selected by the county commission. Id. The county commission appoints the remaining members so that each school district has equal representation. Id. The county commission is authorized to specify terms of the appointive members up to six years and may stagger the terms. Id. The Planning Commission is authorized to "adopt rules for the transactions, findings, and determinations, which record shall be a public record." Id., § 2.

The Planning Commission is charged with adopting an official general plan for the physical development of the county outside of municipal limits. Id. § 3. The plan, including any maps, plats, charts, and descriptive and explanatory matter, shall show the Planning Commission's recommendations for development. Id. The Planning Commission may from time to time amend, extend or add to the plan, or carry any part of subject matter into greater detail. Id. The Planning Commission must certify its adopted plan to the county commission. Id., § 4.

Section 6 of the 1972 Act further provides:

The commission may make reports and recommendations relating to the plan and development of the county to public officials and agencies, public utility companies, to civic, educational, professional and other organizations and to citizens. It may recommend to the executive or legislative officials of the county programs for public improvements and the financing thereof. All public officials shall, upon request, furnish to the commission, within a reasonable time, such available information as it may require for its work. The commission, its members and employees, in the performance of its work, may enter upon any land and make examinations and surveys and place and maintain necessary monuments and marks thereon. In general, the commission shall have powers as may be necessary to enable it to perform its purposes and promote county planning.

Id., § 6. Once the Planning Commission has filed a certified copy of the master plan in the office of the county register, every plat of a subdivision of land within the county and outside city boundaries must be submitted to and approved by the Planning Commission before it can be recorded in that office. Id., § 9. The Planning Commission must adopt subdivision regulations. Id., § 10. Before it adopts subdivision regulations or amendments, the Planning Commission is required to hold a public hearing. Id. The Planning Commission must afford an opportunity for a hearing before acting on any plat. Id., § 11. The Planning Commission is authorized to develop a zoning plan for the county commission's approval. Id., § 17. The Planning Commission is also responsible for administering land use planning under 1990 Tenn. Priv. Acts ch. 182 (mobile home parks), 1990 Tenn. Priv. Acts ch. 187 (mobile homes and structures in the flood hazard area), and 1992 Tenn. Priv. Acts ch. 198 (mobile homes).

A thorough review of the Planning Commission's authority under the 1972 Act evidences no explicit provision allowing the Planning Commission to require that individuals appearing before the Commission must present their statements under oath, although the Commission is generally provided such "powers as may be necessary to enable it to perform its purposes and promote county planning." 1972 Tenn. Priv. Acts ch. 360, § 6. Furthermore, a review of the general law of Tennessee evidences that the Tennessee General Assembly has only given the power to "administer an oath or affirmation" to a county legislative body or one of its committees, and did not extend this authority to any other locally created public body. This statute specifically provides:

Power is given to members of the county legislative body to administer an oath or affirmation as provided by law for witnesses appearing in a court of record of this state to give testimony in such court, when a witness is called to give testimony before the county legislative body or any committee of the county legislative body that has been created by a duly adopted resolution of the county legislative body.

Tenn. Code Ann. § 5-5-126 (emphasis added).

The Planning Commission is not a "committee of the county legislative body" within the meaning of this statute. Black's Law Dictionary defines the term "committee" as:

A subordinate group to which a deliberative assembly or other organization refers business for consideration, investigation, oversight, or action.

Black's Law Dictionary, 289 (8th ed. 2004). See also State v. Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007) (stating that, when the General Assembly fails to provide a specific definition for a statutory term, courts may "look to other sources, including Black's Law Dictionary, for guidance"). The status and function of the Planning Commission was created by a private act of the Tennessee General Assembly, and thus the Planning Commission is not a committee "created by a duly adopted resolution" of the county commission as referenced in Tenn. Code Ann. § 5-5-126. For these reasons, Tenn. Code Ann. § 5-5-126 does not authorize the Planning Commission to administer oaths to citizens appearing before it.

In sum, although arguably a close question, the failure of the Planning Commission's enabling statute to specifically allow the Planning Commission the discretion to require those appearing before it to take an oath, coupled with the exclusion of the Planning Commission from Tennessee's general law allowing the administration of oaths by certain public local entities, leads to the conclusion that the Planning Commission lacks the authority to require those appearing before it to take an oath. See Mosier v. Thompson, 216 Tenn. 655, 658-59, 393 S.W.2d 734, 735 (1965) (stating that the enabling statutes establishing the power and jurisdiction of a quarterly court, the predecessor to the county commission, must be strictly construed); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 571 (Tenn. Ct. App. 1994) (recognizing that counties and county legislative bodies "possess only the powers vested in them by the Tennessee Constitution or by state law"); Tenn. Att'y Gen. Op. 83-462 at 2-3 (Oct. 26, 1983) (quoting Shelby County v. Exposition Co., 96 Tenn. 653, 657, 36 S.W. 694 (1896)) (opining that no statutory authority existed to convey subpoena power on county commissioners, relying on the long enunciated principle established by Tennessee courts that local legislative bodies are merely creatures of statute "possessed of statutory jurisdiction alone, and wholly wanting in common law powers"). See also Wlodarz v. State, 361 S.W.3d 490, 496 (Tenn. 2012) (stating general rule of statutory construction that a court's primary objective is to carry out legislative intent "without broadening or restricting the statute beyond its intended scope").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Kent Williams
State Representative
G-2 War Memorial Building
Nashville, Tennessee 37243