Who counts as an 'official' under Tennessee's county purchasing conflict-of-interest rule, and can recusal cure a conflict?

Subject

Opinion No. 12-65, Conflicts of Interest under Tenn. Code Ann. § 5-14-114, June 27, 2012

Plain-English summary

Representative Curtis Johnson asked the Tennessee AG three questions about the conflict-of-interest provisions in the County Purchasing Law of 1957 (Tenn. Code Ann. § 5-14-114):

1. Does "other officials of the county" cover people appointed by the commission to non-statutory committees?
2. Does the conflict cover past or future financial relationships, or only those during the official's tenure?
3. Can an official avoid a conflict by recusing themselves?

The AG answered:

1. Generally yes, if the appointed position has the indicia of a "public officer" (term of office, defined duties, some compensation or emoluments, permanency). Members of advisory committees that lack those indicia are not covered (citing Op. 11-77 about Tenn. Code Ann. § 6-58-104 growth-plan coordinating committees).
2. The statute applies only "during the time when an individual actually holds a designated county office."
3. No. The prohibition is absolute and recusal does not cure the violation.

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 statute

Tenn. Code Ann. § 5-14-114 (part of the County Purchasing Law of 1957, §§ 5-14-101 to -116) provides:

(a) Neither the county purchasing agent, nor members of the county purchasing commission, nor members of the county legislative body, nor other officials of the county, shall be financially interested, or have any personal beneficial interest, either directly or indirectly, in any contract or purchase order for any supplies, materials, equipment or contractual services used by or furnished to any department or agency of the county government.

(b) Nor shall any such persons accept or receive, directly or indirectly, from any person, firm or corporation to which any contract or purchase order may be awarded, by rebate, gift or otherwise, any money or anything of value whatsoever, or any promise, obligation or contract for future reward or compensation.

(c) A violation of this section is a Class D felony.

The statute applies in all counties that have adopted the County Purchasing Law of 1957 (§§ 5-14-101 to -116).

Defining "public officer"

The opinion turned on whether non-statutory committee appointees fall under "other officials." Tennessee courts have defined a "public officer" as "an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law" (Sitton v. Fulton; 67 C.J.S. Officers § 2; also Gambling v. Town of Bruceton).

Additional characteristics: a set salary for a defined term of office, definite emoluments, and defined duties fixed by statute (Wise v. City of Knoxville). The office must "embrace the ideas of tenure, duration, emolument, and duties" (State ex rel. Thompson v. Crump, quoting United States v. Hartwell). And the office must have "some permanency and continuity and not be only temporary or occasional" (State ex rel. Lawson v. Farmer).

Application to non-statutory committees

The AG concluded that "other officials of the county" reaches appointees to non-statutory committees when those positions have the indicia of a public office. Counter-example: members of a growth-plan coordinating committee created under Tenn. Code Ann. § 6-58-104 (Op. Tenn. Att'y Gen. 11-77) were not public officers because they had no definite terms, were uncompensated, and were charged with a particular task rather than possessing broadly defined duties. So whether a particular non-statutory committee member is a "public officer" for purposes of § 5-14-114 turns on whether the position carries those indicia.

Tenure of the financial relationship

Section 5-14-114(a) prohibits county officials from having any personal beneficial interest in contracts or purchase orders "either directly or indirectly." The AG read this as applying "during the time when an individual actually holds a designated county office." Earlier opinion U95-073 (Aug. 15, 1995) considered a commissioner who had solicited county-employee insurance enrollments before becoming a commissioner; the AG opined he could continue receiving deferred compensation from those pre-election solicitations, since the payments related to a contractual service that arose before he became a commissioner.

Recusal cannot cure the violation

The AG read the prohibition as absolute. Section 5-14-114(a) bars the financial or personal beneficial interest itself; the conflict exists regardless of voting. Op. U95-073 reached the same conclusion. An official cannot fix a § 5-14-114 violation by recusing from votes or decisions on the conflicted transaction. The interest itself is what the statute prohibits.

Common questions

I'm thinking of appointing my real-estate broker friend to a non-statutory advisory committee. Will § 5-14-114 cover him?

It depends on the committee's structure. If the position has a defined term, compensation, fixed duties, and continuity, the friend may be a "public officer" under the AG's reading. If it's a temporary task-focused advisory role with no compensation and no defined term, the position may fall outside § 5-14-114 (as the AG concluded about Tenn. Code Ann. § 6-58-104 growth-plan committee members).

I had a contract with the county before I was elected to the commission. Am I in violation now?

The AG's reading is that § 5-14-114 applies during your tenure in office. A pre-existing financial relationship that arose before your election may or may not generate a continuing prohibited interest during your tenure; that turns on the specific facts. The 1995 opinion (U95-073) suggested that some pre-election arrangements could continue if they relate solely to pre-election contracts or services. Consult a Tennessee government-ethics attorney for the specific facts.

Can a commissioner just recuse from voting on a contract that benefits her?

Not under § 5-14-114. The AG concluded recusal cannot cure the conflict because the prohibition runs to the existence of the interest itself, not just to the vote. The commissioner would need to divest the conflicting interest.

Does this apply only in counties that have adopted the County Purchasing Law of 1957?

Yes. The County Purchasing Law of 1957 (Tenn. Code Ann. §§ 5-14-101 to -116) applies in counties that have adopted it. Counties that have not adopted the Act are governed by different conflict-of-interest rules.

What's the relationship between "public officer" and "county employee"?

The opinion notes that the county purchasing agent is a "county employee" rather than a public officer (§ 5-14-103(a)), with no term of office. The statute nevertheless expressly covers the purchasing agent. Similarly, members of the purchasing commission (§ 5-14-106(a)) are not described as officers but are expressly covered. The "other officials" phrase fills in around those explicit references.

Citations

• Tenn. Code Ann. §§ 5-14-101 to -116 (County Purchasing Law of 1957)
• Tenn. Code Ann. § 5-14-103(a) (county purchasing agent)
• Tenn. Code Ann. § 5-14-106(a) (purchasing commission)
• Tenn. Code Ann. § 5-14-114 (conflict-of-interest prohibition)
• Tenn. Code Ann. § 5-5-102(e) (county legislative body)
• Tenn. Code Ann. § 6-58-104 (growth-plan coordinating committee)
• Sitton v. Fulton, 566 S.W.2d 887 (Tenn. Ct. App. 1987)
• Gambling v. Town of Bruceton, 803 S.W.2d 690 (Tenn. Ct. App. 1990)
• Wise v. City of Knoxville, 250 S.W.2d 29 (Tenn. 1952)
• State ex rel. Thompson v. Crump, 183 S.W. 505 (Tenn. 1916)
• United States v. Hartwell, 73 U.S. 385 (1867)
• State ex rel. Lawson v. Farmer, 225 S.W.2d 60 (Tenn. 1949)
• State v. White, 362 S.W.3d 559 (Tenn. 2012)
• Op. Tenn. Att'y Gen. 11-77 (Nov. 14, 2011)
• Op. Tenn. Att'y Gen. U95-073 (Aug. 15, 1995)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-065.pdf

Original opinion text

June 27, 2012
Opinion No. 12-65
Conflicts of Interest under Tenn. Code Ann. § 5-14-114

QUESTIONS

1. Does the phrase "other officials of the county" in Tenn. Code Ann. § 5-14-114(a) include persons serving on non-statutory committees who are appointed by the county commission, or does this phrase only include persons appointed to statutory committees, commissions, or authorities in a manner prescribed by law?

2. Does a past or future history of a financial relationship with the county create a conflict of interest pursuant to Tenn. Code Ann. § 5-14-114, or does the statute only prohibit financial relationships that exist during the individual's tenure in office?

3. May an official recuse himself or herself from the decision-making process where a conflict of interest exists and thereby remain on a board of commissioners under Tenn. Code Ann. § 5-14-114.

OPINIONS

1. The phrase "other officials of the county" as used in Tenn. Code Ann. § 5-14-114(a) should generally include individuals whose positions are appointed by the official action of a legislative body, including the county commission, and who serve for a term of office, regardless whether the appointments are to committees or other authorities expressly created by law.

2. Tenn. Code Ann. § 5-14-114(a) prohibits county officials during their tenure of service from having any personal beneficial interest "either directly or indirectly, in any contract or purchase order for any supplies, materials, equipment or contractual services used by or furnished to any department or agency of the county government." This statutory language unambiguously applies only during the time when an individual actually holds a designated county office.

3. No.

ANALYSIS

The questions posed concern the conflict of interest provisions for county officials codified at Tenn. Code Ann. § 5-14-114, which states as follows:

(a) Neither the county purchasing agent, nor members of the county purchasing commission, nor members of the county legislative body, nor other officials of the county, shall be financially interested, or have any personal beneficial interest, either directly or indirectly, in any contract or purchase order for any supplies, materials, equipment or contractual services used by or furnished to any department or agency of the county government.

(b) Nor shall any such persons accept or receive, directly or indirectly, from any person, firm or corporation to which any contract or purchase order may be awarded, by rebate, gift or otherwise, any money or anything of value whatsoever, or any promise, obligation or contract for future reward or compensation.

(c) A violation of this section is a Class D felony.

This statute applies in all counties that have adopted the County Purchasing Law of 1957, codified at Tenn. Code Ann. § 5-14-101 to -116.

1. The initial question is whether the phrase "other officials of the county" used in Tenn. Code Ann. § 5-14-114(a) applies to persons appointed by the county commission to serve on non-statutory committees or is limited only to persons appointed in a manner prescribed by law to statutory committees, commissions, or authorities.

The statute explicitly includes within its coverage various county officials, including both the county purchasing agent and the purchasing commissioners. The county purchasing agent, appointed by the mayor, is a "county employee" and has no term of office. Tenn. Code Ann. § 5-14-103(a). Members of the county purchasing commission include the county mayor and four other members appointed by the county mayor with the approval of the county governing body. Tenn. Code Ann. § 5-14-106(a). The statute prescribes no compensation or term of office for members of the purchasing commission. Id. Subsection (a) of Tenn. Code Ann. § 5-14-114 next states it covers members of the county legislative body, and "other" officials of the county. County commissioners are elected to a term of office. Tenn. Code Ann. § 5-5-102(e).

While the term "county officials" as used in Tenn. Code Ann. § 5-14-114(a) is not specifically defined, Tennessee courts have recognized that a "public officer" such as a county official is broadly defined to include "an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law." Sitton v. Fulton, 566 S.W.2d 887, 889 (Tenn. Ct. App. 1987) (quoting 67 C.J.S. Officers § 2). See also Gambling v. Town of Bruceton, 803 S.W.2d 690, 692-93 (Tenn. Ct. App. 1990). Tennessee courts have also observed that 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)); Sitton v. Fulton, 566 S.W.2d at 889. To constitute 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).

For these reasons, the phrase "other officials of the county" as used in Tenn. Code Ann. § 5-14-114(a) should generally include individuals whose positions are created by the official action of a legislative body and who serve a term of office, including positions on non-statutory committees appointed by the county commission, unless the appointed position lacks the defined criteria of a public office. See, e.g., Op. Tenn. Att'y Gen. 11-77 (Nov. 14, 2011) (stating that members of a coordinating committee established under Tenn. Code Ann. § 6-58-104 to assist in developing a growth plan were not public officers since the members did not have definite terms, were uncompensated and were charged with a particular task rather than possessing broadly defined duties).

2. The next question posed is whether a past or future history of a financial relationship with the county creates a conflict of interest pursuant to Tenn. Code Ann. § 5-14-114, or whether the statute only prohibits financial relationships during the individual's tenure in office. By its terms, the statute prohibits individuals holding the identified county offices from having any financial or personal beneficial interest, either directly or indirectly, "in any contract or purchase order for any supplies, materials, equipment or contractual services used by or furnished to any department or agency of the county government." This statutory language unambiguously applies only during the time when an individual actually holds a designated county office and prohibits such an official from having the financial or personal beneficial interests identified. See State v. White, 362 S.W.3d 559, 566 (Tenn. 2012). But see Op. Tenn. Att'y Gen. U95-073 at 4-5 (Aug. 15, 1995) (this Office opining that a county commissioner could continue to receive any deferred compensation associated with health insurance enrollments of county employees he solicited prior to becoming a commissioner, given the payments related solely to a contract or contractual service that arose prior to his becoming a county commissioner).

3. Finally, an individual may not mitigate the conflicts identified in Tenn. Code Ann. § 5-14-114(a) by simply recusing himself or herself from voting or participating in decision making with regard to transactions in which he or she has an interest prohibited under Tenn. Code Ann. § 5-14-114. As this Office has previously observed, Tenn. Code Ann. § 5-14-114(a) by its terms is an absolute prohibition. Op. Tenn. Att'y Gen. U95-073, at 4. An individual subject to it, therefore, cannot cure a violation by recusal.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Curtis Johnson
State Representative
215 War Memorial Building
Nashville, Tennessee 37243-0168