Can members of Tennessee's Underground Utility Damage Enforcement Board (UUDEB) be reimbursed for travel even though the statute says they serve 'without compensation,' and can they meet by phone or video?

Plain-English summary

Tennessee's Underground Utility Damage Enforcement Board (UUDEB) is the state board that handles "call before you dig" violations and similar enforcement under Title 65, Chapter 31. The statute says members "shall serve without compensation," and the board's executive director, working through the Tennessee Regulatory Authority, asked five questions about money and meetings.

The AG's bottom-line answers:

1. Travel reimbursement. Allowed. "Without compensation" prohibits salary or remuneration for service, but not reimbursement of actual expenses incurred attending board work. Tenn. Code Ann. § 8-26-116 expressly permits state board members to claim travel expenses under the Department of Finance and Administration's uniform travel regulations.

2. Counting reimbursement in UUDEB's annual operating cost. Yes. Section 65-31-115(b)(5) requires UUDEB to assess operators for its annual operating cost, including the cost of administrative services performed by the TRA. Processing and fulfilling travel claims is an administrative service, and that cost can be charged back to UUDEB and passed through to operators.

3. Quorum requirements. UUDEB and its executive committee are subject to the Open Meetings Act, which generally requires a physical quorum at the noticed meeting location. Tenn. Code Ann. § 8-44-108(b)(1).

4. Electronic quorum. Allowed when a "necessity" under Tenn. Code Ann. § 8-44-108(a)(3) exists. That requires (a) matters needing timely action, (b) physical presence by a quorum not being practical within the time available, and (c) electronic-quorum participation being necessary. The board must document the determination and the supporting facts in the minutes and file the determination with the Secretary of State within two working days.

5. Geographic dispersion alone is not "necessity." UUDEB members come from across the state, but that fact by itself does not justify a blanket finding of necessity. Necessity is a meeting-by-meeting determination based on the matters before the board and the time available.

Currency note

This opinion was issued in 2016. 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

UUDEB is created at Tenn. Code Ann. § 65-31-114 to enforce Chapter 31 of Title 65 (the Underground Utility Damage Prevention Act). It has 16 members: one ex officio member plus 15 industry/entity representatives covering, among others, natural gas distribution systems, utility districts, the cable industry, telecommunications providers, contractors, and excavators. Tenn. Code Ann. § 65-31-114(c). Members "shall serve without compensation." § 65-31-114(e).

The opinion's first move was to read "compensation" by its ordinary legal meaning. Black's Law Dictionary defines it as "[r]emuneration and other benefits received in return for services rendered; esp., salary or wages." That captures payment for service, not reimbursement of out-of-pocket expenses. Reimbursing actual travel costs leaves the member economically neutral, not paid for the work itself.

Tenn. Code Ann. § 8-26-116 then opens the door: "Notwithstanding any law to the contrary, claims for official travel expenses of state employees and members of boards and commissions shall be subject to the uniform travel rules and regulations issued by the commissioner of finance and administration pursuant to § 4-3-1008." The "notwithstanding any law to the contrary" phrasing was important: it operates as an override against narrower statutory language. The Department of Finance and Administration's Comprehensive Travel Regulations set the actual per-diem and reimbursement rates for state employees and board members.

Question 2 turned on the back-charge mechanism in § 65-31-115(b)(5), which requires UUDEB to "[a]ssess its annual operating cost to operators in an amount equal to the amount necessary to offset the cost of investigative and administrative services performed by the Tennessee regulatory authority at the direction of the [B]oard." Processing travel claims is administrative work that the TRA performs on behalf of UUDEB. Section 65-31-114(b) (incorporating § 65-2-122) authorizes the TRA to charge those expenses back to the Board, subject to board concurrence. The reimbursement costs flow through cleanly: TRA processes the claim, charges UUDEB, UUDEB rolls the cost into its annual operating cost, and operators ultimately fund it.

Questions 3, 4, and 5 are an Open Meetings Act story. The Act generally requires a "physical quorum" at the noticed meeting location for a governing body to conduct business. Tenn. Code Ann. § 8-44-108(b)(1). UUDEB is a "governing body" because § 8-44-108 defines that term as boards, agencies, and commissions of state government. So absent a statutory exception, UUDEB cannot meet by phone or videoconference.

The Act creates the exception at § 8-44-108(b)(2). If a physical quorum is not present, the body can still conduct business only if it determines that a "necessity" exists. "Necessity" is defined at § 8-44-108(a)(3) as a three-part test:

• the matters require timely action by the body;
• physical presence by a quorum is not practical within the time available; and
• participation by a quorum by electronic or other means is necessary.

The procedural requirements are strict. The minutes must reflect the necessity determination and the facts supporting it. § 8-44-108(b)(2). And the body must file the determination, with its factual recitation, with the Secretary of State within two working days. § 8-44-108(b)(3).

The AG's key clarification was that "necessity" is meeting-specific. The statute speaks in singular meeting terms ("that meeting"). UUDEB's geographic dispersion is a structural fact about the board that does not, on its own, satisfy the test for any particular meeting. The board has to be able to point to the time-sensitivity of the matters before that meeting and the impracticality of getting a physical quorum for that meeting. If members happen to be unable to travel for one meeting because of weather, work conflicts, or short notice, that may add up to necessity for that meeting. But it cannot be a standing policy.

Common questions

Q: I'm a UUDEB member. How do I get my mileage reimbursed?
A: Through the TRA's administrative processing, using Tennessee's Comprehensive Travel Regulations promulgated under Tenn. Code Ann. § 4-3-1008. The TRA will then back-charge UUDEB, and the cost flows into the annual operating-cost assessment on operators.

Q: Are per diem allowances allowed too, or only mileage?
A: Yes, both. The travel regulations cover travel reimbursements and per diem allowances for meals and incidentals, among other things. UUDEB members can claim these the same way other state board members do.

Q: Can UUDEB just adopt a standing rule that "we always meet by Zoom"?
A: No. That would be a blanket determination of necessity, which the AG concluded the statute does not permit. The necessity determination must be made and documented for each meeting where a physical quorum is not present.

Q: What happens if UUDEB conducts business by electronic quorum without making the necessity finding?
A: That would violate the Open Meetings Act. Actions taken in violation of the Act are generally voidable, and the board's process becomes vulnerable to challenge. Compliance with § 8-44-108(b)(2) and (3) is required.

Q: Does the public still get to attend an electronic-quorum meeting?
A: Yes. The Open Meetings Act remains in force regardless of how members participate. The location where the meeting is taking place must still be accessible to the public, and the public should be able to hear what the board is doing. The Act treats electronic quorum as a quorum mechanism, not an exclusion of public access.

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. § 65-31-114(b), (c), (e)
• Tenn. Code Ann. § 65-31-115(b)(5)
• Tenn. Code Ann. § 8-26-116
• Tenn. Code Ann. § 4-3-1008
• Tenn. Code Ann. §§ 8-44-101 et seq.
• Tenn. Code Ann. § 8-44-102(a)
• Tenn. Code Ann. § 8-44-108(a)(3), (b)(1), (2), (3)
• Tenn. Code Ann. § 65-2-122

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-025.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 15, 2016
Opinion No. 16-25
Reimbursement and Meetings of the Underground Utility Damage Enforcement Board

Question 1
May the members of the Underground Utility Damage Enforcement Board ("UUDEB" or
"the Board") receive reimbursement for travel expenses or per diem for travel and incidental
expenses incurred in attending Board and executive committee meetings?

Opinion 1
Yes.

Question 2
If the answer to Question 1 is yes, in the performance of its administrative duties on behalf
of the Board and executive committee, may the Tennessee Regulatory Authority (the "Authority")
include such reimbursement costs as part of UUDEB's annual operating costs under Tenn. Code
Ann. § 65-31-115?

Opinion 2
Yes.

Question 3
Must UUDEB or its executive committee have a quorum physically present to hold a
meeting and consider business?

Opinion 3
Yes, unless a "necessity" exists under Tenn. Code Ann. § 8-44-108(b)(2).

Question 4
If a meeting of UUDEB or its Executive Committee is conducted with a quorum by
electronic means is the Board or its executive committee subject to the requirements of Tenn. Code
Ann. § 8-44-108(b)(2) and (3)?

Opinion 4
Yes.

Question 5
Would the fact that members of the Board and its executive committee are from different
areas of Tennessee and not eligible for reimbursement of travel expenses constitute a "necessity"
as defined by Tenn. Code Ann. § 8-44-108(a)(3), and if so, could a consistent finding of
"necessity" on those grounds by UUDEB and its Executive Committee be used to meet by
electronic means?

Opinion 5
Since the Board members are eligible for reimbursement of travel expenses, ineligibility
for reimbursement is not a factor in determining "necessity." "Necessity" under the statute must
be determined on a case-by-case basis. There may be instances in which matters to be considered
by the Board at a particular meeting require timely action and physical presence by a quorum of
the members is not practical within the period of time requiring action because the members reside
in many different and distant parts of Tennessee so that a non-physical-presence quorum may
become necessary for that particular meeting within the meaning of Tenn. Code Ann. § 8-44-
108(b)(2). But the fact that Board members are dispersed throughout the State cannot be used to
make a blanket determination of "necessity" for all meetings.

ANALYSIS

1. Tennessee Code Ann. § 65-31-114 creates the Underground Utility Damage Enforcement
   Board ("UUDEB" or "the Board"), which was established "for the purpose of enforcing [Title 65,
   Chapter 31, of the Tennessee Code]." "The members of the board shall serve without
   compensation." Tenn. Code Ann. § 65-31-114(e).

"Compensation" is not a defined term in Title 65, Chapter 31, but "compensation" typically
means "[r]emuneration and other benefits received in return for services rendered; esp., salary or
wages." Black's Law Dictionary (10th ed. 2014). Thus, the directive that board members "shall
serve without compensation" means that members may not receive payment or other benefits in
return for their service on the Board.

But the statute does not preclude reimbursement to Board members for travel and related
incidental expenses they incur while performing their official duties. In fact, Tenn. Code Ann.
§ 8-26-116, which governs public officers and employees, contemplates that such reimbursements
are available:

Notwithstanding any law to the contrary, claims for official travel expenses of state
employees and members of boards and commissions shall be subject to the uniform
travel rules and regulations issued by the commissioner of finance and
administration pursuant to § 4-3-1008 . . . .

This statute permits members of any state board, including members of UUDEB, to make claims
for official travel expenses pursuant to the Department of Finance and Administration's
Comprehensive Travel Regulations. See Tenn. Code Ann. § 4-3-1008.

2. UUDEB may include in its "annual operating cost" expense reimbursements and per
   diem allowances made pursuant to Tenn. Code Ann. § 8-26-116. See Tenn. Code Ann. § 65-31-
   115(b)(5). Subsection 115(b)(5) requires the Board to "[a]ssess its annual operating cost to
   operators in an amount equal to the amount necessary to offset the cost of investigative and
   administrative services performed by the Tennessee regulatory authority at the direction of the
   [B]oard." Among the "administrative services" the Authority may provide to UUDEB is the
   processing and fulfillment of travel claims made under Tenn. Code Ann. § 8-26-116. Once the
   Authority performs the administrative services of processing and fulfilling UUDEB members'
   travel claims, the Authority then "shall charge the expenses associated with the administration and
   investigative duties of the [B]oard back to the [B]oard." Tenn. Code Ann. § 65-31-114(b) (citing
   Tenn. Code Ann. § 65-2-122). The Board would then include these charges from the Authority
   in its annual operating cost. See Tenn. Code Ann. § 65-31-115(b)(5).

3, 4, and 5. UUDEB must adhere to the quorum requirements of Tenn. Code Ann. § 8-44-
108(b)(1) but may, under appropriate circumstances, invoke the "necessity" provisions of Tenn.
Code Ann. §§ 8-44-108(b)(2) which allow for a quorum by electronic or other means when there
is a demonstrable necessity.

Tennessee's Open Meetings Act (Tenn. Code Ann. § 8-44-101, et seq.) declares that "[a]ll
meetings of any governing body are . . . public meetings open to the public at all times . . . ."
Tenn. Code Ann. § 8-44-102(a). "'Governing body' refers to boards, agencies and commissions
of state government." Tenn. Code Ann. § 8-44-108. UUDEB, a board of state government,
therefore is subject to the Open Meetings Act and must comply with all of its requirements,
including the requirement that "a physical quorum [be] present at the location specified in the
notice of the meeting as the location of the meeting." Id. § 8-44-108(b)(1).

The Open Meetings Act recognizes that a physical quorum may not always be possible for
a governing body and provides an alternative when circumstances so necessitate:

If a physical quorum is not present at the location of a meeting of a governing body,
then in order for a quorum of members to participate by electronic or other means
of communication, the governing body must make a determination that a necessity
exists. Such determination, and a recitation of the facts and circumstances on which
it was based, must be included in the minutes of the meeting.

Tenn. Code Ann. § 8-44-108(b)(2). For purposes of invoking this alternative,

"[n]ecessity" means that the matters to be considered by the governing body at that
meeting require timely action by the body, that physical presence by a quorum of
the members is not practical within the period of time requiring action, and that
participation by a quorum of the members by electronic or other means of
communication is necessary[.]

Tenn. Code Ann. § 8-44-108(a)(3).

"Necessity" under the statute must be determined on a case-by-case basis, i.e., for "that
meeting," meaning for a particular or given meeting. There may be instances in which matters to
be considered by the Board at a particular meeting require timely action and physical presence by
a quorum of the members is not practical within the period of time requiring that action because
the Board members reside in many different and distant parts of Tennessee so that a non-physical-
presence quorum becomes necessary for that particular meeting within the meaning of Tenn. Code
Ann. § 8-44-108(b)(2). But the fact that Board members are dispersed throughout the State cannot
be used to make a blanket determination of "necessity" for all meetings.

If the Board determines that there is a "necessity" for a particular meeting to be conducted
with a quorum present by electronic or other means of communication instead of a physical
quorum, the Board must adhere to the requirements of Tenn. Code Ann. § 8-44-108(b)(2) and (3).
The minutes of that meeting must reflect the determination of necessity and must detail the facts
and circumstances on which the determination was based. And the Board will be required to "file
such determination of necessity, including the recitation of the facts and circumstances on which
it was based, with the office of the secretary of state no later than two (2) working days after the
meeting." Tenn. Code Ann. § 8-44-108(b)(2), (3).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAMES P. URBAN
Assistant Attorney General

Requested by:
The Honorable Earl R. Taylor
Executive Director
Tennessee Regulatory Authority
502 Deaderick Street
Andrew Jackson Building
Nashville, Tennessee 37243