Can a Tennessee state legislator or a county official also serve on a county soil conservation district board?

Subject

Opinion No. 13-18, Elected State or County Official Serving on a County Soil Conservation District, March 6, 2013

Plain-English summary

The Chairman of the State Soil Conservation Committee asked two questions: could a member of the Tennessee General Assembly also serve on a county Soil Conservation District board, and could a person elected to a county public office do so?

The AG's answer split the two scenarios. A state legislator cannot. The Tennessee Constitution at Art. II, § 26 prohibits any person from holding "more than one lucrative office at the same time," and the cases make clear that the constitutional prohibition is talking about state offices. Glasgow v. Fox and Boswell v. Powell limit the rule to state offices. Phillips v. West and Tenn. Att'y Gen. Op. 11-58 confirm that a member of the General Assembly holds a state office. Op. 07-143 from 2007 had concluded that a Soil Conservation District board seat is also a state office. Two state offices, both lucrative, mean Art. II, § 26 forbids the same person holding both.

A county official is different. Art. II, § 26 doesn't reach the combination of a state office and a county office: a person can hold both without violating the constitution (Phillips). But common law and local law can still block specific combinations. Under State ex rel. Little v. Slagle, when one accepts a second office "incompatible with one already held by him, the office first held is thereby ipso facto terminated." Incompatibility is fact-specific. The test is whether holding both is "detrimental to the public interest" or whether "the performance of the duties of one interferes with the performance of those of the other." An inherent incompatibility exists when one office supervises or controls the other (State v. Thompson; 63C Am. Jur. 2d Public Officers and Employees § 59).

Local laws or charters can also prohibit the combination. Hatcher v. Chairman held that a local law could preclude a city council member from holding another public office. Tenn. Att'y Gen. Op. 01-152 noted that a city charter may prohibit an alderman from also serving as constable. So a county official thinking of joining a Soil Conservation District board has to check (1) the substantive duties of each office for common-law incompatibility, and (2) any applicable local laws or charter provisions.

Currency note

This opinion was issued in 2013. 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.

The constitutional framework here (Art. II, § 26 and the state-office/county-office distinction) is stable. Local incompatibility rules can shift as charters and private acts are amended. Anyone evaluating a specific dual-officeholding question today should pull current county and city charter provisions and recent AG opinions on the specific office combinations at issue.

Background and statutory framework

Article II, Section 26 of the Tennessee Constitution prohibits a person from holding "more than one lucrative office at the same time." That word "lucrative" is doing some work. An office is "lucrative" if it carries with it any compensation, however small. The cases generally treat per diem, mileage, and similar payments to public officers as enough to make the office lucrative.

Two doctrines have evolved on top of the constitutional text:

Scope of "office." Glasgow v. Fox (1964) and Boswell v. Powell (1931) confined the constitutional prohibition to state offices. A federal office or county office doesn't count toward the "more than one lucrative office" calculation for state-constitutional purposes (the federal Constitution has its own incompatibility rules at the federal level). That leaves the field of state/county dual officeholding to common law and local law.

Common law incompatibility. State ex rel. Little v. Slagle (1905) established that incompatibility is a question of fact: whether the same person can faithfully perform both offices. State v. Thompson and the more recent AG opinions identify a few categorical bright lines (e.g., one office supervising the other) but otherwise leave the test fact-specific.

Soil Conservation Districts as state offices. A 2007 AG opinion (07-143) had concluded that a Soil Conservation District board seat is a state office. The 2013 opinion treats that as a settled premise. The combination of two lucrative state offices then triggers the Art. II, § 26 bar.

The opinion also flagged local laws and charters as a potential blocker for county-level combinations. Hatcher and Op. 01-152 are the examples. A county official has to check local-level rules in addition to the common-law incompatibility analysis.

Common questions

Why does it matter that the Soil Conservation District seat is a "state office"?

Because Art. II, § 26 prohibits holding more than one lucrative state office. If the SCD seat were a county office, the constitutional bar wouldn't apply, and the analysis for a legislator would shift to common-law incompatibility (which might or might not bar the combination depending on the duties involved). The classification matters as a threshold question.

What makes an office "lucrative"?

Any compensation makes it lucrative under Tennessee case law. Even a small per diem or mileage payment generally counts. The opinion didn't pause on this question because it was undisputed that both a legislator's seat and an SCD board seat carry some compensation.

What's "common law incompatibility"?

It's the doctrine that two offices can be mutually exclusive even when no statute says so, because the duties of one interfere with the duties of the other. Slagle tells us that accepting an incompatible second office automatically terminates the first. The classic bright-line case is when one office supervises or controls the other (e.g., a sheriff cannot also be a deputy sheriff, because one office supervises the other). Beyond bright lines, the analysis is fact-specific.

Does this opinion say a Davidson County commissioner can serve on a Davidson SCD board?

It says there's no general state-constitutional bar to a county official serving on the SCD board. But the county official still has to satisfy two checks: common-law incompatibility (do the duties of the two offices interfere?) and local law/charter restrictions (does the relevant county or city charter prohibit the combination?). Without knowing the specific facts, the AG could only state the general framework.

Could a private act change the answer?

Yes. A private act applicable to a specific county could establish a rule one way or the other. The opinion's bottom line is that no general state-law rule prohibits county-official/SCD-board combinations, but specific local laws or charters may.

What happens if someone accepts an incompatible office?

Under Slagle, the first-held office is "ipso facto terminated without judicial proceedings of any kind" when the person accepts an incompatible second office. The person doesn't get to hold both even briefly. That's a strong incentive to check incompatibility before accepting any new office.

Citations

• Tenn. Const. art. II, § 26 (no person to hold more than one lucrative office at the same time)
• Glasgow v. Fox, 383 S.W.2d 9 (Tenn. 1964) (scope of "office" under Art. II, § 26)
• Boswell v. Powell, 43 S.W.2d 495 (Tenn. 1931) (state and county offices not under same prohibition)
• Phillips v. West, 213 S.W.2d 3 (Tenn. 1948) (member of General Assembly holds state office)
• State ex rel. Little v. Slagle, 89 S.W. 326 (Tenn. 1905) (common-law incompatibility automatically vacates first office)
• State v. Thompson, 246 S.W.2d 59 (Tenn. 1952) (supervision/control creates inherent incompatibility)
• Hatcher v. Chairman, 341 S.W.3d 258 (Tenn. Ct. App. 2009) (local law could preclude dual officeholding)
• Tenn. Att'y Gen. Op. 07-143 (Oct. 11, 2007) (Soil Conservation District board seat is a state office)
• Tenn. Att'y Gen. Op. 11-58 (July 18, 2011) (General Assembly member holds state office)
• Tenn. Att'y Gen. Op. 07-159 (Dec. 6, 2007) (common-law incompatibility framework)
• Tenn. Att'y Gen. Op. 01-152 (Sept. 25, 2001) (city charter prohibition example)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-018.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
P.O. BOX 20207
NASHVILLE, TENNESSEE 37202

March 6, 2013

Opinion No. 13-18

Elected State or County Official Serving on a County Soil Conservation District

QUESTIONS

1. May a person elected to the General Assembly serve as either an elected or appointed member of a county Soil Conservation District?

2. May a person elected to any county public office serve as either an elected or appointed member of a county Soil Conservation District?

OPINIONS

1. A person elected to the General Assembly may not serve as an elected or appointed member of a county Soil Conservation District.

2. There is no law of general applicability preventing a person elected to a county public office from also serving as an elected or appointed member of a county Soil Conservation District. However, common law incompatibility or local laws may prevent the same individual from occupying these two offices.

ANALYSIS

1. The Tennessee Constitution prohibits a person from holding "more than one lucrative office at the same time." Tenn. Const. art. II, § 26. The term "office" under this provision refers to state offices. Glasgow v. Fox, 214 Tenn. 656, 661, 383 S.W.2d 9, 11 (1964); Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931). A person elected to the General Assembly holds a State office. Phillips v. West, 213 S.W.2d 3, 6 (Tenn. 1948); Tenn. Att'y. Gen. Op. 11-58 (July 18, 2011). This Office has previously opined that a member of a Soil Conservation District also holds a State office. See Op. Tenn. Att'y. Gen. No. 07-143 (October 11, 2007). Therefore, article II, section 26 of the Tennessee Constitution prohibits a person from simultaneously holding a position in the General Assembly and a position on a county Soil Conservation District.

2. Article II, section 26 does not address the simultaneous holding of State and county offices. Boswell, 43 S.W.2d at 495. Thus, a person can hold both a county office and a State office without violating article II, section 26 of the Tennessee Constitution. Phillips, 213 S.W.2d at 6. See also Tenn. Att'y Gen. Op. 07-159 (Dec. 6, 2007); Tenn. Att'y. Gen. Op. 02-117 (Oct. 22, 2002); Tenn. Att'y Gen. Op. 82-529 (Dec. 14, 1982).

Even though the Tennessee Constitution does not prohibit simultaneously holding a State office, such as a position on a Soil Conservation District, and a county office, holding such dual offices may be prohibited under common law principles or by local law. Under common law an individual is prohibited from holding incompatible offices. State ex. rel. Little v. Slagle, 89 S.W. 326, 327 (Tenn. 1905). As the Tennessee Supreme Court observed in Slagle, the "rule at common law is that, where one accepts a second office incompatible with one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind." Slagle, 89 S.W. at 327. See also Tenn. Att'y Gen. Op. 07-159 at 2. The question of incompatibility depends on the circumstances of each individual case, and asks whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. Tenn. Att'y Gen. Op. 07-159 at 2 (citing 67 C.J.S. Officers § 38). For example, an inherent inconsistency exists where one office is subject to the supervision or control of the other. 63C Am. Jur. 2d Public Officers and Employees § 59. See also State v. Thompson, 246 S.W.2d 59, 61 (Tenn. 1952); Tenn. Att'y. Gen. Op. 99-195 (Sept. 28, 1999). The responsibilities of each office must be reviewed to determine whether they are incompatible under the common law.

Local laws or charters may also prevent county officials from holding a county and a State office. See Hatcher v. Chairman, 341 S.W.3d 258, 263 (Tenn. Ct. App. 2009) (local law precluded a member of the city council from holding another public office); Tenn. Att'y Gen. Op. 01-152 (Sept. 25, 2001) (noting that a city charter may prohibit an alderman from also serving as constable). Thus local laws must be consulted to determine if such a prohibition applies to the particular county office held by the person seeking a position on a county Soil Conservation District.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JORDAN SCOTT
Assistant Attorney General

Requested by:

Pal Neal
Chairman
State Soil Conservation Committee
P.O. Box 40627
Nashville, TN 37204