Can a Tennessee municipality cancel its school-board election when only one person filed for each open seat?

Subject

Opinion No. 14-36, Municipal Board of Education Elections, March 27, 2014

Plain-English summary

Representative G.A. Hardaway asked whether a Tennessee municipality could cancel a board-of-education election when only one candidate qualified for each seat. The AG said no.

In 2012 the General Assembly authorized municipalities to create city school systems under Tenn. Code Ann. § 49-2-127(a). The structural rules at § 49-2-127(b) require the city, by ordinance, to establish a board of education in compliance with § 49-2-201, with three to eleven members, elected in the same manner as the city's governing body.

Tenn. Code Ann. § 49-2-201(a)(1) says "[n]otwithstanding any other law to the contrary, there shall be a board of education elected by the people." The AG had read that provision before (Op. 12-103 and Op. 12-08) as superseding private acts and county charter provisions that purported to provide otherwise. The election-by-the-people mandate is strong.

The new ingredient in this opinion was Hooker v. Haslam, No. M2012-01299-SC-R11-CV, 2014 WL 1010367, at *15 (Tenn. Mar. 17, 2014), a Tennessee Special Supreme Court decision issued ten days before this opinion. The court held that "elective offices in Tennessee do not depend upon opposition from another candidate." An unopposed candidate, whether unchallenged on the ballot or by write-in, is still elected by the act of the electorate going to the polls. The election itself is the act of choice; a lack of opposition does not eliminate that act.

Combining those two authorities: the statute requires the election to happen, and an election still has to happen even when it is uncontested. A city cannot skip the vote because every seat has only one qualified candidate.

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

Could the city argue that holding an unopposed election is a waste of money?

It could argue that, but the statute does not give it a way to act on the argument. The election-by-the-people mandate in § 49-2-201(a)(1) is not conditional on competitiveness. The legislature has chosen to require the electoral act even when it is uncontested.

What does Hooker v. Haslam say?

The Tennessee Special Supreme Court held that "[a] candidate who does not draw opposition, whether on the ballot or as a write-in, is nevertheless elected; a lack of opposition does not negate the exercise of the vote by the electorate." The case arose in the context of judicial retention elections but the rule is broader.

Could a private act or city charter say something different?

No, according to the AG. Section 49-2-201(a)(1) opens with "[n]otwithstanding any other law to the contrary," which the AG has consistently treated (in Ops. 12-103 and 12-08) as overriding private acts and charter provisions on school-board election method.

Does the rule apply only to city school systems created under § 49-2-127, or to all school boards?

The AG opinion was prompted by the new city-school-system option, but the reasoning rests on § 49-2-201(a)(1), which applies to all local boards of education. The election-by-the-people requirement is general.

Background and statutory framework

Tennessee's 2012 legislation (codified at § 49-2-127) opened the door for municipalities to create their own school systems separate from county school systems. The structural rules borrow from § 49-2-201 for the board of education. The "elected by the people" command in § 49-2-201(a)(1) is the operative provision.

Hooker v. Haslam tackled the related question of whether judicial retention elections require a competing candidate to be valid elections. The Tennessee Special Supreme Court said no, and that holding directly applies here.

Citations

• Tenn. Code Ann. § 49-2-127(a), (b) (authorization for municipal school systems)
• Tenn. Code Ann. § 49-2-201(a)(1) (board of education must be elected by the people)
• Hooker v. Haslam, 2014 WL 1010367 (Tenn. Mar. 17, 2014) (Tennessee Special Supreme Court; uncontested elections valid)
• Tenn. Att'y Gen. Op. 12-103 (Nov. 2, 2012); Op. 12-08 (Jan. 18, 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-036.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 27, 2014
Opinion No. 14-36
Municipal Board of Education Elections

QUESTION

May a municipality cancel its board-of-education elections where only one candidate has successfully qualified for each of the board-of-education positions?

OPINION

No. Tenn. Code Ann. § 49-2-201(a)(1) requires that a local board of education be elected by the people, and an election need not be contested.

ANALYSIS

In 2012, the General Assembly enacted legislation authorizing a municipality to create a city school system. See Tenn. Code Ann. § 49-2-127(a). Under Tenn. Code Ann. § 49-2-127(b),

the governing body of the municipality shall, by ordinance, establish a city board of education in compliance with § 49-2-201; however, there shall be not less than three (3) nor more than eleven (11) members, and the members may be elected in the same manner, either from districts or at large, or a combination of both, used to elect members of the governing body of the municipality. . . . If a special election is requested to elect members of the initial board of education, then the municipality shall pay the costs of the election. The members shall take office on the first day of the first month following certification of the election results.

Tenn. Code Ann. § 49-2-201(a)(1) provides that "[n]otwithstanding any other law to the contrary, there shall be a board of education elected by the people" (emphasis added). This Office has previously opined that this statutory provision supersedes any private act or county charter provision providing otherwise with respect to the election of local school-board members. See Tenn. Att'y. Gen. Op. 12-103 (Nov. 2, 2012); Tenn. Att'y. Gen. Op. 12-08 (Jan. 18, 2012). The language of Tenn. Code Ann. § 49-2-201(a)(1) mandates that the members of a local board of education be elected by the people. And as a Tennessee Special Supreme Court recently observed, "elective offices in Tennessee do not depend upon opposition from another candidate." Hooker v. Haslam, No. M2012-01299-SC-R11-CV, 2014 WL 1010367, at *15 (Tenn. Mar. 17, 2014).

A candidate who does not draw opposition, whether on the ballot or as a write-in, is nevertheless elected; a lack of opposition does not negate the exercise of the vote by the electorate. In other words, one may be elected to public office even though the election was uncontested.

Id. Therefore, a municipality may not cancel its elections for school-board members where only one candidate has qualified for each school-board position.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable G.A. Hardaway
State Representative
37 Legislative Plaza
Nashville, Tennessee 37243