In Tennessee, can the same person be a county commissioner and the clerk and master of the chancery court, and can a clerk and master practice law on the side?

Subject

Opinion No. 14-23, County Commissioner Serving as Clerk and Master, February 26, 2014

Plain-English summary

State Senator Mike Bell asked whether a single person could hold both the office of county commissioner and the office of clerk and master of the chancery court, and, separately, whether a clerk and master could maintain a private law practice. The AG said yes to both, with caveats.

On dual office holding: the Tennessee Constitution at Article II, Section 26, bars one person from holding "more than one lucrative office at the same time," but the Tennessee Supreme Court has long read "office" in that clause to mean state office. Both the county commissioner seat and the clerk and master position are local offices, so the constitutional incompatibility rule does not apply. The dual-service ban in Tenn. Code Ann. § 5-5-102(c)(2), which keeps certain county officers off the county legislative body, lists county mayor, sheriff, trustee, register, county clerk, and property assessor, but it does not name clerk and master. No other statute bars the combination either. A private act in a particular county could prohibit it, and the common-law incompatibility doctrine could kick in if "circumstances arise" during the dual tenure that make the two posts work against each other; but absent a private act or a specific conflict, the AG saw no automatic incompatibility.

On private law practice: the AG read Tenn. Code Ann. § 18-1-110 together with § 23-3-102. Court clerks generally cannot practice law, but the carve-out in § 23-3-102 allows it outside the clerk's own court. Translated to the clerk-and-master context: a clerk and master who is a licensed attorney may practice law except (a) in the chancery court where they serve, (b) in any cause commenced in, brought to, or carried from that court, or (c) in any cause commenced in a court from which an appeal lies to that chancery court. Even within those bounds, the AG flagged the heightened conflict-of-interest risk because, unlike an ordinary court clerk whose duties are clerical, the master "is a judicial officer, and is clothed with many of the powers of the Chancellor himself."

Currency note

This opinion was issued in 2014. 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.

Common questions

Did Tennessee's constitutional ban on holding two lucrative offices block this combination?

No. Article II, Section 26 prohibits holding more than one lucrative office, but Tennessee Supreme Court decisions (Phillips v. West and Boswell v. Powell) have long construed "office" in that clause to mean state office. Both the county commission seat and the clerk and master are local offices. Earlier AG opinions (00-159 on county commissioners and 92-06 on clerks and masters) had already classified each as a local office.

Did any statute prohibit a county commissioner from also serving as clerk and master?

No. The closest statute is Tenn. Code Ann. § 5-5-102(c)(2), which bars county mayors, sheriffs, trustees, registers, county clerks, property assessors, and any "other county-wide office filled by vote of the people or the county legislative body" from serving on the county legislative body. Clerk and master is not on that list, and the AG concluded no other statute closes the gap. (It also noted the 2005 amendment adding directors of schools to the bar.)

Could a county's own private act forbid the combination?

Yes. The AG cited Op. 99-044, which found a private-act ban on serving both on a county board of highway commissioners and on the county commission. Counties can write their own incompatibility rules into private acts that govern their local offices, so whether a given county forbids the combination turns on that county's private acts.

Could common-law incompatibility still apply?

Yes, situationally. The leading Tennessee case is State ex rel. Little v. Slagle, 115 Tenn. 336 (1905). The doctrine 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." The AG saw no inherent conflict between the duties of a commissioner and those of a clerk and master, but warned that conflicts could develop during the dual tenure that would force the officeholder to give up one of the seats.

Could a clerk and master who was also a licensed attorney maintain a private law practice?

Yes, but with statutory walls. Tenn. Code Ann. § 18-1-110 bars clerks from practicing law except as § 23-3-102 allows. Section 23-3-102 prohibits practice in the clerk's "own court," in any cause commenced, brought to, or carried from that court, or in any cause commenced in a court from which an appeal lies to it. A chancery court's clerk and master is therefore barred from chancery practice in that county and from cases that could end up in their court on appeal. Practice in unrelated courts in other forums is allowed.

Were there extra conflict-of-interest concerns specific to clerks and masters?

Yes. The AG distinguished a clerk and master from a typical court clerk. Quoting Gibson's Suits in Chancery: "There is a wide difference between the Clerk of Court and a Master in Chancery. The duties of a Clerk are almost exclusively clerical. The Master, on the contrary, is a judicial officer, and is clothed with many of the powers of the Chancellor himself." Because the master exercises judicial powers, the AG said a clerk and master "must exercise particular care to keep the conduct of his or her law practice separate from the functions of the office."

What is the common-law conflict-of-interest standard for public officers in Tennessee?

The state's contract-conflict statute, Tenn. Code Ann. § 12-4-101, applies only when an officer is overseeing a contract in which the officer has an interest. The broader common-law rule covers more. The AG quoted earlier Tennessee AG opinions describing the rule: a public officer must not "place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public." The rule applies to all public officials, not just a single category.

Background and statutory framework

The clerk and master in Tennessee chancery courts is a hybrid: the office combines clerical recordkeeping with substantive judicial functions like hearing matters referred by the chancellor, taking proof, and reporting findings. That dual role is what the AG flagged as carrying a "heightened risk of conflicts of interest."

The dual-office rules in Tennessee have three layers. The constitutional layer (Art. II, § 26) handles state-level incompatibility and does not reach local offices. The statutory layer (Tenn. Code Ann. § 5-5-102(c)(2)) lists specific county officers barred from sitting on the county commission. The common-law layer (State ex rel. Little v. Slagle and similar) catches incompatibilities not addressed by constitution or statute, asking the functional question of whether the two offices interfere with each other or harm the public interest. Private acts add a fourth layer in individual counties.

For lawyer-clerks, the statutory framework comes from Tenn. Code Ann. §§ 18-1-110 and 23-3-102, which together carve out a narrow zone in which the clerk can still practice law, the zone defined by reference to the clerk's own court and to appellate paths leading into it.

Citations

• Tenn. Const. art. II, § 26 (one lucrative state office at a time)
• Tenn. Code Ann. § 5-5-102(c)(2) (bar on certain county officers serving on the county legislative body)
• Tenn. Code Ann. § 18-1-110 (court clerks generally barred from practicing law)
• Tenn. Code Ann. § 23-3-102 (carve-out allowing practice outside the clerk's own court and appellate path)
• Tenn. Code Ann. § 12-4-101 (statutory conflict of interest, contracts)
• Phillips v. West, 187 Tenn. 57, 213 S.W.2d 3 (1948) (Tennessee Supreme Court; Article II § 26 limited to state offices)
• Boswell v. Powell, 163 Tenn. 445, 43 S.W. 495 (1931) (Tennessee Supreme Court)
• State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 316 (1905) (Tennessee Supreme Court; common-law incompatible offices)
• Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972) (Kansas Supreme Court)
• Low v. Madison, 135 Conn. 1, 60 A.2d 744 (1948) (Connecticut Supreme Court)
• Housing Authority of the City of New Haven v. Dorsey, 164 Conn. 247, 320 A.2d 820 (1973) (Connecticut Supreme Court)
• 67 C.J.S. Officers and Public Employees § 38 (2002)
• William H. Inman, Gibson's Suits in Chancery 693 (7th ed. 1988)
• Tenn. Att'y Gen. Op. 00-159 (Oct. 17, 2000); Op. 92-06 (Jan. 24, 1992); Op. 99-044 (Mar. 1, 1999); Op. 85-36 (Feb. 14, 1985); Op. 13-89 (Nov. 12, 2013)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-023.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 26, 2014
Opinion No. 14-23
County Commissioner Serving as Clerk and Master

QUESTIONS

1. May a county commissioner serve as clerk and master for the chancery court in the same county?

2. May a person serving as clerk and master engage in the private practice of law?

OPINIONS

1. Yes. A county commissioner may serve as clerk and master unless holding both offices is prohibited by a private act or where circumstances arise that render the two offices incompatible.

2. Yes. A clerk and master is not precluded by statute from engaging in the private practice of law except in the chancery court where he or she serves as clerk and master, "in any cause commenced, brought to or carried from" that court, or in any cause "commenced in any court from which an appeal lies" to that court. However, a common-law conflict of interest could arise where the clerk and master is acting or appearing to act inconsistently with the best interest of the public.

ANALYSIS

1. The Tennessee Constitution, Article II, Section 26, prohibits a person from "hold[ing] more than one lucrative office at the same time." The term "office" has been construed by Tennessee courts to mean "state office." Phillips v. West, 187 Tenn. 57, 65-66, 213 S.W.2d 3 (1948); Boswell v. Powell, 163 Tenn. 445, 447, 43 S.W. 495 (1931). The offices of county commissioner and clerk and master are local offices, not state offices. See Tenn. Att'y Gen. Op. 00-159 (Oct. 17, 2000) (stating that office of county commissioner is local office, not state office); Tenn. Att'y Gen. Op. 92-06 (Jan. 24, 1992) (stating that office of clerk and master is county rather than state office). Therefore, holding those offices simultaneously is not prohibited by Article II, Section 26.

No other constitutional provision prohibits a person from simultaneously holding both offices. Likewise, Tenn. Code Ann. § 5-5-102(c)(2), which bars certain officers from nomination for or election to membership in the county legislative body, does not prohibit a person from simultaneously holding office as a county commissioner and clerk and master, nor does any other statute do so.

Holding those two offices might, however, be prohibited by private act. See, e.g., Tenn. Att'y Gen. Op. 99-044 (Mar. 1, 1999) (concluding that individuals were prohibited from serving on both county board of highway commissioners and county commission by private act creating board). Moreover, there is a well-recognized common-law prohibition against a public officer holding two incompatible offices at the same time. State ex rel. Little v. Slagle, 115 Tenn. 336, 341, 89 S.W. 316 (1905). "[T]he issue is 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." 67 C.J.S. Officers and Public Employees § 38 (2002). Although there is no apparent inconsistency, incompatibility, or conflict between the offices of county commissioner and clerk and master that would, as a matter of common law, prohibit the same person from holding them concurrently, conceivably circumstances could develop during a dual tenure that would make the offices so incompatible that one could not continue to hold them simultaneously.

Section 5-5-102(c)(2) provides:

No person elected or appointed to fill the office of county mayor, sheriff, trustee, register, county clerk, assessor of property, or any other county-wide office filled by vote of the people or the county legislative body, shall also be nominated for or elected to membership in the county legislative body. After June 18, 2005, a director of schools shall not be qualified to serve as a member of the county legislative body.

2. "No clerk of any court can practice law in any of the courts of this state, except as provided in [Tenn. Code Ann.] § 23-3-102." Tenn. Code Ann. § 18-1-110. Section 23-3-102 provides, in pertinent part: "The clerks of the several courts and their deputies are also prohibited from practicing in their own courts, or in any causes commenced, brought to or carried from their courts, or commenced in any court from which an appeal lies to their court." Thus, assuming that the clerk and master is a licensed attorney authorized to engage in the practice of law, he or she is not precluded by statute from practicing law except in the chancery court where he or she serves as clerk and master, in any cause commenced, brought to, or carried from that court, or in any cause commenced in any court from which an appeal lies to that chancery court.

Nevertheless, the potential for a conflict of interest is great when a public officer engages in the private practice of law. Although the state's conflict-of-interest statute, Tenn. Code Ann. § 12-4-101, is not applicable unless the official is superintending, voting for, letting, or otherwise overseeing a contract in which the official has an interest, a common-law conflict of interest can arise whenever personal interests conflict with public duty. As this Office has recognized:

At common law, "the essence of the offense [of having a conflict of interest] was acting or appearing to act inconsistently with the best interest of the public . . . ." Note: Conflicts of Interests: State Government Employees, 47 Va. L. R[ev]. [1034,] at 1048 [(1961)]. In Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972), the common law principle was described as not permitting the public officer "to place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public." Id. at 1337. This policy is not limited to a single category of officers, but applies to all public officials. Low v. Madison, 135 Conn. 1, 60 A.2d 744 (1948); Housing Authority of the City of New Haven v. Dorsey, 164 Conn. 247, 320 A.2d 820 (1973), cert. denied 414 U.S. 1043.

Tenn. Att'y Gen. Op. 85-36, at 2 (Feb. 14, 1985) (quoted with approval in Tenn. Att'y Gen. Op. 13-89, at 6 (Nov. 12, 2013)).

Furthermore, the office of clerk and master carries a heightened risk of conflicts of interest, given the special duties of a master in chancery court. "There is a wide difference between the Clerk of Court and a Master in Chancery. The duties of a Clerk are almost exclusively clerical. . . . The Master, on the contrary, is a judicial officer, and is clothed with many of the powers of the Chancellor himself." William H. Inman, Gibson's Suits in Chancery 693 (7th ed. 1988). Therefore, a clerk and master must exercise particular care to keep the conduct of his or her law practice separate from the functions of the office so that conflicts of interest may be avoided.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

GORDON W. SMITH
Associate Solicitor General

Requested by:
The Honorable Mike Bell
State Senator
309 War Memorial Building
Nashville, Tennessee 37243