Can a Tennessee county charter commission spend public money campaigning for the new charter in a local referendum?

Subject

Opinion No. 12-86, Use of Public Funds to Promote Adoption of Charter County Form of Government, September 11, 2012

Plain-English summary

Representative Kelly Keisling asked whether a Tennessee county charter commission, the body created under Tenn. Code Ann. §§ 5-1-201 to -215 to draft a proposed county charter and put it to a referendum, can use the public funds appropriated to it to advocate for charter adoption.

The AG said no. Tenn. Code Ann. § 5-1-207(a) authorizes the county legislative body to appropriate up to $50,000 to defray a charter commission's expenses. Tenn. Code Ann. § 5-1-208(c) describes how the commission may use those funds:

Such charter commission shall take such other steps within the limitation if its available funds as it deems reasonable and appropriate to inform the public throughout the county of the contents of the proposed charter, and the same may be published or summarized in pamphlets and booklets to be made available for general distribution.

The AG read "inform the public... of the contents of the proposed charter" narrowly, applying the canon expressio unius est exclusio alterius (Rich v. Tennessee Bd. of Medical Examiners): the statute specifies one permitted use (informing about contents), so other uses (advocating for or against adoption) are excluded.

A 2012 AG opinion (Op. Tenn. Att'y Gen. 12-31, March 8, 2012) had recently reached the broader conclusion that, absent express statutory authority, a local government cannot use county funds for communications that advocate for or against a referendum measure. § 5-1-208(c) does not provide that express authority for charter campaigns. So a charter commission cannot lawfully spend its appropriation on yard signs, mailers urging a "yes" vote, or other advocacy.

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 charter commission framework

Tenn. Code Ann. §§ 5-1-201 to -215 lays out how a Tennessee county can adopt an alternative charter form of county government. A charter commission is established to draft the proposed charter (Tenn. Code Ann. § 5-1-210). After the commission certifies the proposed charter to the county election commission, a ratification referendum is held (Tenn. Code Ann. § 5-1-209(a)).

Funding and permitted uses

Under Tenn. Code Ann. § 5-1-207(a), once a charter commission is established, the county legislative body must appropriate funds to defray the commission's expenses, capped at $50,000. The mayor or fiscal officer disburses on vouchers signed by the commission's chair and secretary. § 5-1-207(b) requires public officials to assist the commission with information.

§ 5-1-208(c) describes the commission's permitted activities with those funds: take such steps as it deems reasonable to inform the public of the contents of the proposed charter, including by pamphlets and booklets. That language is information-focused, not advocacy-focused.

The narrow-construction rule

The Tennessee Supreme Court held in Rich v. Tennessee Bd. of Medical Examiners (and many similar cases) that the expression of one thing in a statute implies the exclusion of others. Where the legislature spells out one permitted use of funds, additional uses are not implied.

The 12-31 opinion's general principle

Op. Tenn. Att'y Gen. 12-31 (March 8, 2012) concluded that local governments cannot use public funds for referendum advocacy without express statutory authority. The principle reflects basic government-neutrality concerns: the public funds the entity, the entity isn't supposed to use those funds to advocate for outcomes that the public will be asked to vote on. A few states have explicit "public funds for advocacy" prohibitions; Tennessee's approach has been to demand express statutory authority before allowing such expenditures.

The information vs. advocacy line

The opinion does not draw a precise line, but the practical distinction is between:

• Permitted (informational): distributing the text of the proposed charter, summarizing its provisions in neutral terms, holding informational meetings explaining what the charter would and wouldn't do, publishing FAQs.
• Not permitted (advocacy): "Vote Yes on the Charter" signs, mailers urging a particular vote, paid advertising urging adoption, slogans about the benefits of charter government.

A commission can certainly inform; it cannot use public funds to campaign.

Common questions

Can private citizens or PACs advocate for the charter?
Yes. The restriction is on the commission's use of public funds, not on private speech. Citizens, civic groups, and political committees can spend their own money advocating for or against adoption.

Can commission members personally advocate?
Yes, on their own time, with their own resources. The restriction targets the use of the public appropriation.

What happens if a commission spends public funds on advocacy anyway?
Misuse of public funds can expose individual officials to liability and creates audit issues. The commission's expenditures are subject to county fiscal oversight.

Why is the rule so strict?
Because public funds shouldn't be used to skew an election the public is being asked to decide. The legislature can authorize advocacy spending if it wants to, but it has not done so for charter commissions.

Citations

Statutes:
- Tenn. Code Ann. §§ 5-1-201 to -215 (charter form of county government)
- Tenn. Code Ann. § 5-1-207 (charter commission funding)
- Tenn. Code Ann. § 5-1-208 (charter commission duties)
- Tenn. Code Ann. § 5-1-208(c) (informing the public about charter contents)
- Tenn. Code Ann. § 5-1-209(a) (referendum on proposed charter)
- Tenn. Code Ann. § 5-1-210 (proposing a county charter)

Cases:
- Rich v. Tennessee Bd. of Medical Examiners, 350 S.W.3d 919 (Tenn. 2011)

Prior AG opinion:
- Op. Tenn. Att'y Gen. 12-31 (March 8, 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-086.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

September 11, 2012

Opinion No. 12-86

Use of Public Funds to Promote Adoption of Charter County Form of Government

QUESTION

Is a county charter commission authorized to use public funds to advocate adoption of the charter county form of government in an upcoming referendum?

OPINION

No.

ANALYSIS

This opinion addresses the authority of a charter commission formed to propose a county charter under Tenn. Code Ann. §§ 5-1-201 to -215. This statutory scheme authorizes the creation of a charter commission to propose a county charter providing for an alternative form of county government under Tenn. Code Ann. § 5-1-210. Once the proposed charter has been certified to the county election commission, the election commission must hold a referendum election for the ratification or rejection of the charter. Tenn. Code Ann. § 5-1-209(a). Tenn. Code Ann. § 5-1-207 provides:

(a) Whenever any charter commission is established, it shall be the duty of the legislative body of the county to appropriate sufficient funds to defray the expenses of such commission, which appropriation shall be not more than fifty thousand dollars ($50,000). Such funds shall be disbursed by the county mayor or other fiscal officer of the county upon vouchers or warrants signed by the chair and the secretary of such commission.

(b) All public officials shall, upon request, furnish the commission with all information and assistance necessary or appropriate for its work.

The question posed is whether the charter commission is authorized to use county funds under this statute to actively promote adoption of the charter in an upcoming referendum. Tenn. Code Ann. § 5-1-208 lists the duties of the charter commission with regard to its proposed charter. Subsection (c) of the statute provides:

Such charter commission shall take such other steps within the limitation if its available funds as it deems reasonable and appropriate to inform the public throughout the county of the contents of the proposed charter, and the same may be published or summarized in pamphlets and booklets to be made available for general distribution.

Tenn. Code Ann. § 5-1-208(c) (emphasis added). Thus, the charter commission may use available funds only to inform the public of the contents of the proposed charter. The statute does not permit the commission to use these funds to advocate for or against the adoption of the proposed charter. See Rich v. Tennessee Bd. Of Medical Examiners 350 S.W.3d 919, 927 (Tenn. 2011) (citing the rule of statutory construction that the expression of one subject in a statute implies the exclusion of other unmentioned subjects). Furthermore, this Office has recently opined that, absent express statutory authority, a local government may not use county funds to pay for communications that advocate for or against the adoption of a measure in a local referendum. Op. Tenn. Att'y Gen. 12-31 (March 8, 2012). In this case, neither the county nor the charter commission is expressly authorized to use funds for this purpose. Therefore, a charter commission is not authorized to use public funds to promote adoption of the charter county form of government in an upcoming referendum.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Kelly T. Keisling
State Representative
108 War Memorial Building
Nashville, Tennessee 37243