Can a sitting Tennessee state legislator also serve on the Board of Directors of the Tennessee Valley Authority?

Plain-English summary

Representative John Ragan asked whether a sitting member of the Tennessee General Assembly may also serve on the Tennessee Valley Authority Board of Directors. The AG concluded no, for two independent reasons under article II, section 26 of the Tennessee Constitution.

Reason 1 (federal office bar). Article II, section 26 says that no "person holding any office under the authority of the United States" may have a seat in the General Assembly. A TVA Board directorship is a federal office. TVA is "an instrumentality and agency of the Government of the United States" (16 U.S.C. § 831r). The Board is appointed by the President for a five-year term, compensated annually (16 U.S.C. § 831(a)), and exercises governmental powers including eminent domain in the name of the United States. Federal courts treat TVA as a "wholly-owned corporate agency and instrumentality of the United States." Matheny v. TVA, 557 F.3d 311, 320 (6th Cir. 2009); see Ashwander v. TVA, 297 U.S. 288 (1936). On the test the Tennessee Supreme Court used in Frazier v. Elmore, 173 S.W.2d 563 (Tenn. 1943), and similar reasoning applied by the Delaware and Massachusetts Supreme Courts to comparable state constitutional bars, the TVA directorship is an office under the authority of the United States.

Reason 2 (lucrative office bar). The same constitutional provision separately forbids "any person in this State" from simultaneously holding more than one lucrative office. The TVA directorship has tenure, duration, continuity, and ongoing duties (Sitton v. Fulton, 566 S.W.2d 887 (Tenn. Ct. App. 1978)). Directors take an oath of office, are covered by the Civil Service Reform Act and Federal Employees Compensation Act, serve five-year terms, and are compensated. So it qualifies as a lucrative office, and a Tennessee legislator already holds one lucrative office (the legislative seat). Kelly v. Woodlee, 133 S.W.2d 473 (Tenn. 1939), already held that a state District Attorney General cannot also hold a federal lucrative office (in that case, U.S. Senator) under the same provision.

Either ground alone is enough to disqualify a sitting legislator from the TVA Board.

Currency note

This opinion was issued in 2017. 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 text of article II, section 26. "No Judge of any Court of law or equity, Secretary of State, Attorney General, Register, Clerk of any court of Record, or person holding any office under the authority of the United States, shall have a seat in the General Assembly; nor shall any person in this State hold more than one lucrative office at the same time; provided, that no appointment in the Militia, or to the office of Justice of Peace, shall be considered a lucrative office, or operative as a disqualification to a seat in either House of the General Assembly."

Two separate prohibitions in one section.

1. Listed offices (including any "office under the authority of the United States") may not also hold a seat in the General Assembly.
2. Any person in Tennessee may not hold more than one lucrative office at the same time, with Militia and Justice of the Peace exceptions.

The Tennessee gloss on "office under the authority of the United States." Tennessee courts have not construed the federal-office phrase in article II, section 26 directly, but Frazier v. Elmore, 173 S.W.2d 563 (Tenn. 1943), interpreting the parallel "office of trust or profit under this State or the United States" language for judges in article VI, section 7, said the term "office" must be given a broad meaning to effectuate the prohibition's purpose: preventing diversion or division of time, labor, energies, and abilities of state officials, and limiting them to one source of compensation. Frazier held that a county judge inducted into U.S. military service and receiving compensation violated article VI, section 7.

Persuasive authority from other states. Two other state high courts have applied similar bars.

• Opinion of the Justices, 647 A.2d 1104 (Del. 1994): Delaware's article III, § 11 prohibits the governor from holding "any office under the United States" simultaneously with a state office. The court held the bar applied, but service on the Amtrak Board specifically was not an "office under the United States" because Congress had expressly disclaimed federal-agency status for Amtrak (45 U.S.C. § 541).
• Opinion of the Justices, 126 N.E.2d 115 (Mass. 1955): The Massachusetts governor could not accept appointment to the Federal Civil Defense Advisory Council without violating article VIII of the state constitution. Even though the Council's duties were advisory, it was "specially created by statute in the executive department," its members were presidentially appointed for definite terms with specified statutory duties, and the statute called them "office[holders]."

The TVA structure (the federal-office analysis). TVA was created by the 1933 Tennessee Valley Authority Act. Key federal features:

• TVA exists to maintain and operate U.S.-owned property in the interest of national defense, agricultural and industrial development, navigation improvement, and flood control on the Tennessee and Mississippi Rivers (16 U.S.C. § 831).
• TVA is "an instrumentality and agency of the Government of the United States" (16 U.S.C. § 831r).
• The Board is appointed by the President for five-year terms and is annually compensated (16 U.S.C. § 831(a)).
• The Board exercises eminent domain "in the name of the United States of America"; real estate so acquired is "entrusted to the Corporation as the agent of the United States." 16 U.S.C. § 831c(h).
• The Board may transfer real estate among federal entities "in the name of the United States of America." 16 U.S.C. § 831c(k)(c).
• The Supreme Court has called TVA "an agency of the Federal Government." Ashwander v. TVA, 297 U.S. 288 (1936).
• The Sixth Circuit calls TVA "a wholly-owned corporate agency and instrumentality of the United States." Matheny v. TVA, 557 F.3d 311, 320 (6th Cir. 2009).

That combination of presidentially appointed officials, defined terms, statutory duties, eminent domain in the name of the United States, and federal-agency status means the TVA directorship is an "office under the authority of the United States" for article II, section 26 purposes.

The lucrative-office analysis. Sitton v. Fulton, 566 S.W.2d 887, 889 (Tenn. Ct. App. 1978), describes the concept of office as embracing "tenure, duration, and continuity," with duties that are "generally continuing and permanent." The TVA directorship has all of those: five-year terms, ongoing statutory duties, oath of office, coverage under the Civil Service Reform Act and Federal Employees Compensation Act, annual compensation. It is therefore a lucrative office for article II, section 26 purposes. Tennessee has previously applied the same prohibition to bar a District Attorney General from also holding the federal lucrative office of U.S. Senator. Kelly v. Woodlee, 133 S.W.2d 473 (Tenn. 1939).

Common questions

Q: Can a sitting Tennessee state senator or representative serve on the TVA Board?
A: No, according to this opinion. Article II, section 26 of the Tennessee Constitution prohibits it on two independent grounds: the TVA directorship is an office under the authority of the United States, and it is a separate "lucrative office."

Q: Are there other federal positions a Tennessee legislator can't hold?
A: The constitutional bar reaches any "office under the authority of the United States." Whether a particular federal position qualifies depends on factors like statutory creation, defined duties, presidential appointment, oath, and compensation. Some advisory positions or non-agency roles may fall outside the bar (the Delaware court found Amtrak directors outside it for that reason), but agency directorships generally fall within.

Q: What if the legislator resigns the legislative seat first?
A: This opinion addresses the simultaneous holding of two offices. If the legislator resigns from the General Assembly before assuming the TVA role, the simultaneous-holding bar does not come into play. The opinion does not address timing details or interim periods.

Q: Why does the lucrative-office bar add anything?
A: Even if a federal office did not technically count as an "office under the authority of the United States," the second clause of article II, section 26 would independently bar holding two lucrative offices. The AG used both to make clear that either ground supports the answer.

Q: How is this different from the Amtrak case in Delaware?
A: Congress expressly disclaimed federal-agency status for Amtrak (45 U.S.C. § 541), so the Delaware court found Amtrak directorship was not an "office under the United States" even though the prohibition itself applied to federal offices. TVA is the opposite: federal statute and Supreme Court precedent both treat it as a federal agency.

Citations and references

Constitutional provisions:

• Tenn. Const. art. II, § 26
• Tenn. Const. art. VI, § 7

Statutes:

• 16 U.S.C. §§ 831, 831(a), 831c(h), 831c(k)(c), 831r
• 5 U.S.C. §§ 1101 et seq.; 8101 et seq.
• 45 U.S.C. § 541

Cases:

• Frazier v. Elmore, 173 S.W.2d 563 (Tenn. 1943)
• Kelly v. Woodlee, 133 S.W.2d 473 (Tenn. 1939)
• Phillips v. West, 213 S.W.2d 3 (Tenn. 1948)
• Sitton v. Fulton, 566 S.W.2d 887 (Tenn. Ct. App. 1978)
• Ashwander v. TVA, 297 U.S. 288 (1936)
• Matheny v. TVA, 557 F.3d 311 (6th Cir. 2009)
• Opinion of the Justices, 647 A.2d 1104 (Del. 1994)
• Opinion of the Justices, 126 N.E.2d 115 (Mass. 1955)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-052.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 6, 2017
Opinion No. 17-52

Member of General Assembly Serving on Board of Tennessee Valley Authority

Question

May a sitting member of the Tennessee General Assembly also serve on the Board of Directors of the Tennessee Valley Authority?

Opinion

No. Article II, § 26 of the Tennessee Constitution would prohibit a sitting member of the Tennessee General Assembly from simultaneously serving on the Board of Directors of the Tennessee Valley Authority. Membership on the TVA Board of Directors is an office under the authority of the United States, and article II, § 26 prohibits a person holding any office under the authority of the United States from also holding a seat in the Tennessee General Assembly. Membership on the TVA Board of Directors is, moreover, a compensated office, and article II, § 26 prohibits "any person in this State" from simultaneously holding more than one "lucrative office."

ANALYSIS

Article II, § 26 of the Tennessee Constitution prohibits certain officeholders, including any "person holding any office under the authority of the United States," from also holding a seat in the Tennessee General Assembly. In addition, it prohibits "any person in this State" from simultaneously holding more than one "lucrative office."

Tennessee courts have not considered the meaning of "holding any office under the authority of the United States" in article II, § 26, but the Tennessee Supreme Court has construed similar language in article VI, § 7 of the Tennessee Constitution, which provides that the judges "shall not hold any other office of trust or profit under this State or the United States." In Frazier v. Elmore, 173 S.W.2d 563 (Tenn. 1943), the Tennessee Supreme Court held that the term "office" as used in art. VI, § 7 must be given its broad meaning so as to effectuate the apparent intent of the constitutional prohibition against a diversion or division of the time and labor, energies and abilities of judges of our courts, which might destroy, or diminish their capacity to discharge the exacting duties of their responsible positions; and also to limit them to one source of compensation. Id. at 565-66. Accordingly, the court held that a county judge who was inducted into service in the United States military one month after his election to office was holding an office of trust under the United States and receiving compensation in violation of article VI, § 7.

The constitutions in some other states have prohibitions on holding multiple offices similar to Tennessee's constitutional prohibition. For example, the Delaware Constitution prohibits "any person holding or exercising any office under the United States" from simultaneously holding or exercising "any office of profit under this State." See Del. Const. art. III, § 11. In Opinion of the Justices, 647 A.2d 1104 (Del. 1994), the Delaware Supreme Court addressed whether this constitutional provision prohibited the governor of Delaware from being appointed to the Board of Directors of the National Railroad Passenger Corporation (Amtrak). Noting that the Delaware Constitution had always reflected a "desire to preserve the independence and undivided loyalty of its state officials by prohibiting the simultaneous holding of certain Delaware state offices and the public office of another sovereignty," the court found that article III, § 11 prohibited the incumbent governor from simultaneously holding an "office under the United States." Id. at 1107-08. But, because the court also found service as an Amtrak director not to be an "office under the United States," it ultimately held that the governor would not violate the Delaware Constitution by serving on the Amtrak Board of Directors. Id. at 1109.

In Opinion of the Justices, 126 N.E.2d 115 (Mass. 1955), the Massachusetts Supreme Court addressed whether the Massachusetts governor could accept an appointment to the Federal Civil Defense Advisory Council without violating article VIII of the Articles of Amendment to the Massachusetts Constitution. Article VIII provided that "no person holding any office under the authority of the United States shall, at the same time, hold the office of governor, lieutenant governor, or councilor, or have a seat in the senate or house of representatives of this commonwealth." Id. at 117.

The Massachusetts Supreme Court found that membership in the Council was indeed an office under the authority of the United States. While the duties of the Council were advisory only, "it is not merely a casual group of voluntary advisers such as almost any government officer might from time to time ask to assist him. It is a body specially created by statute in the executive department of the government. Its members are appointed by the president for definite terms. They have specified duties to perform in that they are required to meet at least once a year and at other times upon call of the administrator, even if he does not ask for advice. Their work may so develop as to become of great importance. They may be paid for their services out of the Federal treasury. The statute itself speaks of them as holding 'office.'" Id. at 118.

Similarly, if appointment to the Board of Directors of the Tennessee Valley Authority (TVA) constitutes an "office under the authority of the United States," article II, § 26 of the Tennessee Constitution would prohibit an incumbent legislator from serving on that Board.

The TVA was created in 1933 by the federal Tennessee Valley Authority Act. With the Act, Congress authorized the creation of the "Tennessee Valley Authority," a corporation designed for the "purpose of maintaining and operating the properties now owned by the United States . . ., in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood water in the Tennessee River and Mississippi River Basins." 16 U.S.C. § 831. In the context of giving TVA access to the United States Patent and Trademark Office, the Act expressly refers to the TVA as "an instrumentality and agency of the Government of the United States." 16 U.S.C. § 831r.

The TVA Board of Directors is appointed by the President of the United States for a five-year term and with annual compensation. 16 U.S.C. § 831(a). Among other powers, the Board is specifically given the power to exercise the right of eminent domain and to acquire real estate "in the name of the United States of America," which "real estate shall be entrusted to the Corporation as the agent of the United States." 16 U.S.C. § 831c(h). The Board is further given the power "in the name of the United States of America" to "transfer any part of the possession and control of the real estate now in possession of and under the control of said Corporation to any other department, agency, or instrumentality of the United States." 16 U.S.C. § 831c(k)(c).

The United States Supreme Court has recognized TVA's federal-agency status, see Ashwander v. TVA, 297 U.S. 288 (1936) (referring to TVA as "an agency of the Federal Government"). The Sixth Circuit Court of Appeals has likewise recognized the TVA as an agency and instrumentality of the United States. See Matheny v. TVA, 557 F.3d 311, 320 (6th Cir. 2009) ("TVA is a 'wholly-owned corporate agency and instrumentality of the United States'").

Based on these facts, a directorship on the TVA Board of Directors would constitute an "office under the authority of the United States." Accordingly, because article II, § 26 of the Tennessee Constitution prohibits any "person holding any office under the authority of the United States" from also holding a seat in the Tennessee General Assembly, article II, § 26 would prohibit a sitting member of the Tennessee General Assembly from simultaneously serving on the Board of Directors of the Tennessee Valley Authority.

Article II, § 26 also prohibits "any person in this State" from simultaneously holding more than one lucrative "office." This second constitutional prohibition may also apply here to bar an incumbent legislator from serving on the Board of Directors of TVA. The majority of the cases construing this provision dealt only with whether a person may hold two lucrative state offices. See, e.g., Phillips v. West, 213 S.W.2d 3 (Tenn. 1948). However, in at least one case, the Tennessee Supreme Court has held that a person could not hold both a state and federal office at the same time. Kelly v. Woodlee, 133 S.W.2d 473, 474-75 (Tenn. 1939) (holding that, pursuant to article II, § 26, a District Attorney General could not hold at the same time both lucrative offices of District Attorney General and United States Senator).

Tennessee courts have held that the concept of office "embraces the idea of tenure, duration, and continuity, and the duties connected therewith are generally continuing and permanent." Sitton v. Fulton, 566 S.W.2d 887, 889 (Tenn. Ct. App. 1978). Members of the TVA Board of Directors are required to take an oath of "office," and TVA employees are covered by the Civil Service Reform Act of 1978, 5 U.S.C. §§ 1101, et seq., and the Federal Employees Compensation Act, 5 U.S.C. §§ 8101, et seq. Members of the TVA Board of Directors serve for a five-year period and have ongoing and continuous duties. They are compensated for their service; the office is a lucrative one.

In sum, article II, § 26 of the Tennessee Constitution would prohibit a sitting member of the Tennessee General Assembly from simultaneously serving on the Board of Directors of the Tennessee Valley Authority. Membership on the TVA Board of Directors is an office under the authority of the United States, and article II, § 26 prohibits a person holding any office under the authority of the United States from also holding a seat in the Tennessee General Assembly. Membership on the TVA Board of Directors is, moreover, a compensated office, and article II, § 26 prohibits "any person in this State" from simultaneously holding more than one "lucrative office."

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable John D. Ragan
State Representative
614 Cordell Hull Building
Nashville, Tennessee 37243