Can a Tennessee county mayor veto the county commission's appointments to the sheriff's civil service board?

Subject

Opinion No. 12-57, Sheriff's Civil Service Law, May 21, 2012

Plain-English summary

Representative Tim Wirgau asked the AG four questions about the operations of a sheriff's civil service board created under the County Sheriff's Civil Service Law of 1974 (Tenn. Code Ann. §§ 8-8-401 to -419). The AG answered:

1. The county mayor cannot veto the county commission's appointments to the board. Appointment is an "administrative" function, not a "legislative" one, and Tenn. Code Ann. § 5-6-107(a)(2) limits the mayor's veto to legislative resolutions.
2. The three-member board can act with a quorum of two. The statute's reference to the board acting "as a body" does not require all three members to be present.
3. The county mayor must designate the chair each year, because one member's three-year term expires annually and a new board is effectively constituted each year.
4. The sheriff-appointed personnel officer who serves as the board's secretary does not have to attend every meeting personally, but someone in the sheriff's department must be present to record and prepare written minutes. The sheriff should designate a substitute when the regular secretary cannot attend.

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.

Historical background and statutory framework

The Sheriff's Civil Service Law of 1974

The Act is local in effect and takes effect in a county only after a two-thirds vote of the county legislative body (Tenn. Code Ann. § 8-8-402(a)). It creates a three-member civil service board selected by the county legislative body (§ 8-8-404). Members serve staggered three-year terms after initial one-, two-, and three-year staggered appointments (§ 8-8-405).

Mayoral veto and "administrative" vs. "legislative" acts

Tenn. Code Ann. § 5-6-107(a)(1) gives the county mayor a veto over "resolutions of the county legislative body," but subsection (a)(2) limits the veto to "legislative resolutions" and excludes resolutions in which the legislative body exercises "administrative or appellate authority." Earlier AG opinion 98-181 (Sept. 8, 1998) had treated commission resolutions appointing or electing committee members as administrative rather than legislative. The AG applied that same principle here: civil-service-board appointments are administrative, so they fall outside the mayor's veto power.

Quorum

The Act doesn't specify how many members must vote for board action. Tennessee follows the ordinary rule that a multi-member body acts through a quorum, which is generally a simple majority (Collins v. Janey; Bedford County Hospital v. Bedford County). For a three-member board, two is a quorum.

Annual chair designation

Section 8-8-408 says the county mayor "shall designate, from the three (3) members thus selected, a chair of the board." The Act doesn't set a term for the chair. The AG read this together with § 8-8-405's three-year staggered terms, observing that one member's term expires each year, so each year a "new board" is constituted by reappointment or new appointment. The mayor must designate the chair each year as that happens (In re Samaria S., reading a statute "naturally and reasonably").

The secretary requirement

Tenn. Code Ann. § 8-8-408 requires the sheriff to appoint from among the sheriff's employees a personnel officer who keeps the sheriff's departmental records and serves as the board's secretary. Section 8-8-409(8) requires the board to keep and maintain all records necessary for its administration. The Act does not say the secretary must be present at every meeting, but the AG read the requirement to keep written minutes as implying that someone in the sheriff's department must be present to witness proceedings and record the minutes. If the personnel officer cannot attend, the sheriff should designate another employee (preferably another personnel officer) to fill that role.

Common questions

Our county mayor disagrees with the commission's pick for the board. Does the mayor have any power to block the appointment?

According to this opinion, no. The mayor's veto power under § 5-6-107(a) is limited to legislative resolutions, and the AG treats board appointments as administrative. The mayor would have to persuade commissioners, not veto them.

Two members of our three-member board want to act. Is that enough?

According to this opinion, yes. Two members is a quorum, and a quorum of a three-member body can take action.

Does the chair stay on for multiple years automatically?

No. The AG read § 8-8-408 to require annual chair designation, because one member's three-year term expires each year and the board is re-formed each time.

Our personnel officer is on vacation. Can the board meet?

According to this opinion, yes, provided someone else in the sheriff's department attends to record the minutes. The sheriff designates a substitute, preferably another personnel officer.

What happens to actions taken without a secretary present?

The AG opinion treats minutes as required, but doesn't analyze whether actions taken without a witness present would be void. That depends on the specific facts. Counties should make sure someone is present to record proceedings.

Are the appointments made by Shelby County and Davidson County treated the same way?

The opinion did not specifically address those counties. The AG analyzed the general operation of the Sheriff's Civil Service Law of 1974. Local charters or private acts may apply differently.

Citations

• Tenn. Code Ann. §§ 8-8-401 to -419 (County Sheriff's Civil Service Law of 1974)
• Tenn. Code Ann. § 8-8-402(a) (local-effect activation)
• Tenn. Code Ann. § 8-8-404 (board composition and selection)
• Tenn. Code Ann. § 8-8-405 (staggered terms)
• Tenn. Code Ann. § 8-8-408 (chair designation; secretary)
• Tenn. Code Ann. § 8-8-409 (board powers)
• Tenn. Code Ann. § 8-8-409(8) (recordkeeping)
• Tenn. Code Ann. § 5-6-107(a) (county mayor's veto power)
• Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011)
• State v. McNack, 356 S.W.3d 906 (Tenn. 2011)
• Collins v. Janey, 249 S.W. 801 (Tenn. 1923)
• Bedford County Hospital v. Bedford County, 304 S.W.2d 697 (Tenn. Ct. App. 1957)
• In re Samaria S., 347 S.W.3d 188 (Tenn. Ct. App. 2011)
• Op. Tenn. Att'y Gen. 98-181 (Sept. 8, 1998)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-057.pdf

Original opinion text

May 21, 2012
Opinion No. 12-57
Sheriff's Civil Service Law

QUESTIONS

1. Is a county mayor authorized to veto appointments made by the county commission to the sheriff's civil service board (hereinafter "the board") created by Tenn. Code Ann. § 8-8-404?

2. Tenn. Code Ann. § 8-8-409 states that the board "as a body" may exercise various powers. Does this phrase require all three members of the board to be present whenever the board takes an action?

3. Tenn. Code Ann. § 8-8-408 provides that "[t]he county mayor shall designate, from the three (3) members thus selected, a chair of the board." Is the county mayor required to designate a new chair each year?

4. Tenn. Code Ann. § 8-8-408 requires the sheriff to appoint from among the sheriff's employees "a personnel officer who shall be the keeper of the sheriff's departmental records, and also shall serve as the secretary of the civil service board." Is the secretary appointed under this provision required to be present at all meetings of the board?

OPINIONS

1. No.

2. The board may act with a quorum of two members. All three members need not be present at a meeting for the board to take an action.

3. Yes, the county mayor must designate the chair each year after the county commission has appointed a new member or reappointed the member whose term has expired.

4. The statute does not require the personnel officer designated as secretary to attend each meeting of the board. By requiring the sheriff to appoint a secretary, however, the statute contemplates that the board's actions will be recorded in written minutes. Therefore, someone in the sheriff's department should be present at meetings of the board to witness the proceedings and prepare the minutes. If the particular individual that the sheriff has appointed as secretary is unable to attend, the sheriff should designate another employee, preferably another personnel officer, to attend and carry out these functions.

ANALYSIS

This request asks several questions about the operation of the County Sheriff's Civil Service Law of 1974, codified at Tenn. Code Ann. §§ 8-8-401 to -419 (the "Act"). The Act is "local in effect" and becomes effective when approved by a two-thirds vote of the county legislative body. Tenn. Code Ann. § 8-8-402(a). Tenn. Code Ann. § 8-8-404 creates a civil service board composed of three members selected by the county legislative body. The initial members' terms are staggered, so that one member serves for one year, one for two years, and one for three years. Tenn. Code Ann. § 8-8-405. After the initial appointments, each member is appointed to a three-year term. Id.

1. Tenn. Code Ann. § 8-8-404 by its unambiguous language states that appointments to the board are made by the county legislative body. The statute provides no role for the county mayor in this selection process. Accordingly the county mayor is provided no authority regarding the selections to the board made by the county legislative body. See Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); State v. McNack, 356 S.W.3d 906, 908-09 (Tenn. 2011).

Nor do the statutes establishing a county mayor's right of veto provide a county mayor any role in making these appointments. A county mayor's veto power is established by Tenn. Code Ann. § 5-6-107(a), which states:

(1) The county mayor has the power of veto with respect to resolutions of the county legislative body.

(2) Such veto shall apply only to legislative resolutions and shall not apply to resolutions in which the legislative body is exercising administrative or appellate authority.

This Office has previously opined that Tenn. Code Ann. § 5-6-107(a)(2) does not extend a county mayor's veto power to "administrative" functions performed by the county legislative body and that a county commission resolution appointing or electing committee members is "administrative" rather than "legislative" under Tenn. Code Ann. § 5-6-107(a)(2). Op. Tenn. Att'y Gen. 98-181, at 2 (Sept. 8, 1998). Accordingly, a county mayor may not veto appointments made by the county commission to a sheriff's civil service board.

2. Tenn. Code Ann. § 8-8-409 lists the powers and duties of a sheriff's civil service board. The first sentence of the statute states that "[t]he board as a body shall" and then lists nine subsections. Tenn. Code Ann. § 8-8-409 (emphasis added). The request asks whether, under this language, all three members of the board must be present for any board action. The Act does not specifically state how many members of a board are authorized to act on the board's behalf. Ordinarily, a multi-member board may act through a quorum of its members. A quorum required to act generally consists of a simple majority of the collective body. Collins v. Janey, 147 Tenn. 477, 485, 249 S.W. 801, 803 (1923); Bedford County Hospital v. Bedford County, 42 Tenn. App. 569, 584-85, 304 S.W.2d 697, 704 (1957). For this reason, the board may act when two members are present and the board, therefore, has a quorum. All three members need not be present at a meeting for the board to take an action.

3. Tenn. Code Ann. § 8-8-408 provides that "[t]he county mayor shall designate, from the three (3) members thus selected, a chair of the board." The question posed is whether the county mayor designates the chair of the board each year. The Act does not state the period of time for which the designation lasts. Logically, however, one board member's three-year term expires each year, and the county commission must appoint a new member or reappoint the member whose term has expired. Thus, a new board is constituted each year. It appears, therefore, that the county mayor must designate the chair each year after the county commission has appointed a new member or reappointed the member whose term has expired. See In re Samaria S., 347 S.W.3d 188, 203 (Tenn. Ct. App. 2011).

4. Tenn. Code Ann. § 8-8-408 provides in relevant part that "[t]he sheriff shall appoint from among the sheriff's employees a personnel officer, who shall be the keeper of the sheriff's departmental records, and also shall serve as secretary of the civil service board." A secretary for the board is necessary given the board's statutory directive to keep and maintain all records necessary for the administration of the board. Tenn. Code Ann. § 8-8-409(8). The Act does not require the secretary appointed under this provision to be present at all the meetings of the board. Further, the Act specifies no particular term of office for the personnel officer to serve as secretary. Instead, it appears that the Act simply requires the sheriff to assign recordkeeping functions to the personnel office within the sheriff's department. It is clear, however, that the board is required to keep written records of its actions. See Tenn. Code Ann. §§ 8-8-408 & 8-8-409(8). By requiring the sheriff to appoint a secretary, the statute contemplates that the board's action will be recorded in written minutes. Therefore, someone in the sheriff's department should be present at meetings of the board to witness the proceedings and prepare the minutes. If the particular individual that the sheriff has appointed as secretary is unable to attend, then the sheriff should designate another employee, preferably another personnel officer, to attend and carry out these functions.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Tim Wirgau
State Representative
301 6th Ave. North
Suite 204 War Memorial Building
Nashville, Tennessee 37243