Can a Tennessee community oversight board take political stances on legislation or audit a police department's finances?

Subject

Authority of Community Oversight Boards Under Tenn. Code Ann. § 38-8-312

Plain-English summary

Representative Michael G. Curcio asked two questions about what Tennessee community oversight boards (sometimes called citizen review boards or civilian review boards) can and cannot do under § 38-8-312, the 2019 statute that brought some uniformity to how these local boards operate.

The AG's answer to both questions is no.

First, a community oversight board does not have authority to formally declare, by board action, support or opposition for legislation, candidates, or ballot measures. § 38-8-312(a) explicitly limits the board's authority to "the review and consideration of matters reported to the board and the issuance of advisory reports and recommendations to . . . duly elected or appointed officials of the agencies involved in public safety." Anything outside that scope is outside the board's statutory power.

Second, a community oversight board cannot conduct a financial audit of a local law enforcement agency. The AG breaks "audit" into two senses, drawing on the New Oxford American Dictionary. The primary sense, an "official financial examination of the accounts," is outside the board's review-and-advise authority. The secondary sense, a "systematic review or assessment," may be available if a complaint or report comes in that requires a systemic examination, because that fits within "review and consideration of matters reported to the board." But formal financial auditing is not.

The AG anchors the analysis on a familiar Tennessee administrative-law principle: an administrative body has only the powers given to it by statute. Hammond v. Harvey, 410 S.W.3d 306, 309 (Tenn. 2013), and Tennessee-Carolina Transp., Inc. v. Pentecost, 206 Tenn. 551, 556, 334 S.W.2d 950, 953 (1960), are cited for the rule that "[t]he powers of [an administrative body] must be found in the statutes. If they are not there, they are non-existent." The same principle is used to narrow board authority and to invalidate any local-government action that purports to give a board more authority than the statute allows.

Local-government preemption is also addressed. Any city or county legislation that gives a board authority beyond § 38-8-312 is preempted, including pre-2019 ordinances. The AG cites State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954), for the doctrine that local governments cannot effectively nullify state law. City of Memphis v. Shelby Cnty., 469 S.W.3d 531, 547 (Tenn. Ct. App. 2015), and Methodist Healthcare-Jackson Hosp., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003), support implied repeal of conflicting prior local provisions.

The opinion does not say anything about whether a community oversight board's individual members can speak about legislation or candidates in their personal capacity. The limit is on the board's collective official action.

What this means for you

If you are a community oversight board member

Your board cannot take official positions, by vote or formal action, supporting or opposing legislation, candidates, or ballot measures. Such votes are ultra vires under § 38-8-312. Your individual right to express political views as a private citizen is unaffected; the AG's opinion is about the board's authority, not yours personally. On the audit front, you cannot order or conduct a formal financial examination of a law enforcement agency's books. If a complaint comes in that warrants a systemic review of agency procedures or finances tied to that complaint, you may "review and consider" it under § 38-8-312(a), but the formal audit power is not yours.

If you are a city council member or county commissioner who created or oversees a board

A pre-2019 ordinance that gave the board financial-audit power or political-advocacy authority is impliedly repealed under § 38-8-312. Update your ordinance to align with the statutory limits. Continuing to act under the old, broader ordinance creates legal risk for the board's actions and exposes the local government to challenge.

If you are a police chief, sheriff, or law enforcement administrator

A board cannot order an official audit of your agency's finances. If a board demands such an audit, you can decline on the basis that the board lacks statutory authority. The board still has authority to review complaints reported to it, request information related to those complaints, and issue advisory reports about misconduct or operations within its review scope. Coordinate with your municipal attorney on the line between statutory review and unauthorized audit.

If you are an advocate for stronger civilian police oversight

The 2019 General Assembly chose to constrain board authority. To expand the boards' powers, the change has to come from the General Assembly, not from local ordinance. Any local effort to authorize broader powers (financial audit authority, formal political advocacy, independent subpoena authority) will run into the AG's preemption analysis and the underlying Hammond v. Harvey rule on administrative authority.

If you are a municipal attorney

Audit your jurisdiction's community oversight board ordinance against the four corners of § 38-8-312. Anything that purports to grant authority beyond review-and-advise is at risk under this opinion. Check both the ordinance text and the board's actual practice; some boards may have informally drifted into political advocacy or financial audit work that the statute doesn't authorize.

Common questions

Q: Can a community oversight board issue a press release supporting a specific bill?
A: A formal board action endorsing or opposing legislation is outside the board's authority under § 38-8-312. A factual report describing how a particular bill would affect the board's review work, prepared as part of the board's advisory function, is in a different category. The line is between official advocacy (no) and informational reports tied to the board's statutory purpose (potentially yes).

Q: Can a board recommend that the city audit the police department?
A: A recommendation, as part of an advisory report, fits within § 38-8-312(a)'s grant of authority to issue "advisory reports and recommendations." The board itself cannot conduct the audit, but it can recommend that a body with audit authority (the city's internal audit office, for example) do one.

Q: Can a board subpoena documents from a police agency?
A: Not on its own. § 38-8-312(b) sets up a process whereby the local legislative body can have a subpoena issued on the board's behalf under certain conditions. Independent board subpoena authority is not granted.

Q: What about boards that existed before 2019 with broader powers under local ordinance?
A: Those broader powers are impliedly repealed by § 38-8-312 to the extent they conflict. The board now operates within the statutory limits regardless of what the original ordinance said.

Q: Can a board investigate police misconduct?
A: Yes, that is the core of its authority. § 38-8-312(g)(2) defines a board as a body "established by a local government to investigate or oversee investigation into possible law enforcement officer misconduct or the operations of an agency employing a law enforcement officer." Reviewing reported misconduct and issuing advisory reports about it is the board's primary function.

Q: Can the board members vote, in their personal capacities, on a ballot measure?
A: Yes. Personal voting and personal political activity by individuals who happen to serve on a board are not affected by this opinion, which addresses board action only.

Background and statutory framework

Community oversight boards (also known as citizen review boards or civilian review boards) are local-government bodies that review allegations of police misconduct and evaluate internal procedures used by local law enforcement personnel. See Tenn. Att'y Gen. Op. 18-07 (Mar. 8, 2018). Local governments created these boards independently, leading to substantial variation in their structure, scope, and powers.

In 2019, the General Assembly enacted Tenn. Code Ann. § 38-8-312 to bring some uniformity to community oversight boards in Tennessee. The statute defines a "community oversight board" broadly: "a board or committee established by a local government to investigate or oversee investigation into possible law enforcement officer misconduct or the operations of an agency employing a law enforcement officer." § 38-8-312(g)(2).

The grant of authority is narrow:

The authority of a community oversight board shall be limited to the review and consideration of matters reported to the board and the issuance of advisory reports and recommendations to the duly elected or appointed officials of the agencies involved in public safety and the administration of justice within the jurisdiction for which the community oversight board is established.

§ 38-8-312(a) (emphasis added).

The statute does not grant subpoena authority directly to the board. § 38-8-312(b) provides a process by which the local legislative body can have a subpoena issued on the board's behalf under specific conditions.

The fundamental administrative-law principle the AG applies is that an administrative body has no inherent or common law powers; it has only those powers conferred expressly or impliedly by statute. General Portland, Inc. v. Chattanooga-Hamilton Cnty. Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976); Hammond v. Harvey, 410 S.W.3d 306, 309 (Tenn. 2013); Tennessee-Carolina Transp., Inc. v. Pentecost, 206 Tenn. 551, 556, 334 S.W.2d 950, 953 (1960). Because § 38-8-312 limits authority to review-and-advise, anything beyond that, including political advocacy and formal financial audits, is outside the board's authority.

State preemption applies to local ordinances that purport to give boards broader power. State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954), holds that local governments cannot nullify state law on the same subject. Pre-2019 ordinances are impliedly repealed to the extent they conflict with § 38-8-312, see City of Memphis v. Shelby Cnty., 469 S.W.3d 531, 547 (Tenn. Ct. App. 2015); Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Cnty. Gen. Hosp. Dist., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003).

Citations

Statutes:
- Tenn. Code Ann. § 38-8-312 (community oversight board authority)
- Tenn. Code Ann. § 38-8-312(a) (review-and-advise scope)
- Tenn. Code Ann. § 38-8-312(b) (subpoena process)
- Tenn. Code Ann. § 38-8-312(g)(2) (definition)

Cases:
- General Portland, Inc. v. Chattanooga-Hamilton Cnty. Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976)
- Hammond v. Harvey, 410 S.W.3d 306, 309 (Tenn. 2013)
- Tennessee-Carolina Transp., Inc. v. Pentecost, 206 Tenn. 551, 556, 334 S.W.2d 950, 953 (1960)
- State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000) (statutory construction)
- Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996) (statutory construction)
- State ex rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d 330, 334 (1954)
- City of Memphis v. Shelby Cnty., 469 S.W.3d 531, 547 (Tenn. Ct. App. 2015)
- Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Cnty. Gen. Hosp. Dist., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003)

Prior AG opinion:
- Tenn. Att'y Gen. Op. 18-07 (Mar. 8, 2018) (community oversight boards generally)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-08.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 22, 2022
Opinion No. 22-08
Authority of Community Oversight Boards Under Tenn. Code Ann. § 38-8-312

Question 1
Under the authority and limits of Tenn. Code Ann. § 38-8-312, does a community oversight
board, as defined therein, have the authority to formally declare, by board action, the opposition
or support for local, state, or federal legislation, candidates, or ballot measures?

Opinion 1
No.

Question 2
Under the authority and limits of Tenn. Code Ann. § 38-8-312, does a community oversight
board, as defined therein, have the authority to conduct an audit, i.e., conduct an official financial
examination of the accounts of, agencies involved in public safety and the administration of
justice within its jurisdiction, absent an allegation of misconduct?

Opinion 2
A community oversight board has no authority to conduct an official financial examination
of the accounts of agencies involved in public safety and the administration of justice within its
jurisdiction under any circumstances.

ANALYSIS

Community oversight boards, which are also known as citizen review boards or civilian
review boards, oversee local law enforcement agencies. Local governments create these boards to
independently review allegations of police misconduct and evaluate internal procedures used by
local law enforcement personnel. See Tenn. Att'y Gen. Op. 18-07 (Mar. 8, 2018).

Because community oversight boards are created by local governments for various
purposes, they do not all operate or function in the same way. To bring some uniformity to the
operation of community oversight boards in Tennessee, the General Assembly enacted Tenn. Code
Ann. § 38-8-312 in 2019. Under that statute, "community oversight board" is broadly defined as
"a board or committee established by a local government to investigate or oversee investigation
into possible law enforcement officer misconduct or the operations of an agency employing a law
enforcement officer." Tenn. Code Ann. § 38-8-312(g)(2) (emphasis added). And under the
statute, a "community oversight board" must exercise its functions in accordance with the
"limited" authority granted to it by the General Assembly:

The authority of a community oversight board shall be limited to the review and
consideration of matters reported to the board and the issuance of advisory reports
and recommendations to the duly elected or appointed officials of the agencies
involved in public safety and the administration of justice within the jurisdiction
for which the community oversight board is established.

Tenn. Code Ann. § 38-8-312(a) (emphasis added).

The statute confers no other authority on community oversight boards. Moreover, the
statute makes clear that a community oversight board has no independent authority to issue
subpoenas for documents or to compel witness testimony when it exercises its "limited" authority.
See id. § 38-8-312(b) (providing process for local legislative body to have subpoena issued on
behalf of a community oversight board under certain conditions).

It is well established that an administrative body, such as a board, has no inherent or
common law powers. General Portland, Inc. v. Chattanooga-Hamilton Cnty. Air Pollution
Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976); 73 C.J.S. Public Administrative Law
and Procedure § 147 (2022). Such a body may exercise only those powers conferred expressly or
impliedly upon them by statute. Hammond v. Harvey, 410 S.W.3d 306, 309 (Tenn. 2013); see
Tennessee-Carolina Transp., Inc. v. Pentecost, 206 Tenn. 551, 556, 334 S.W.2d 950, 953 (1960)
("The powers of [an administrative body] must be found in the statutes. If they are not there, they
are non-existent."). Thus, a community oversight board has no authority to formally declare, by
board action, the opposition or support for local, state, or federal legislation, candidates, or ballot
measures because a community oversight board's authority is now expressly "limited to the review
and consideration of matters reported to the board and the issuance of advisory reports and
recommendations to" local officials. Tenn. Code Ann. § 38-8-312(a) (emphasis added).

Similarly, because of the express statutory limitations on its authority, a community
oversight board has no authority to conduct an "audit" of a local law enforcement agency in the
sense of an official financial examination of the agency's accounts. New Oxford American
Dictionary 105 (3rd ed. 2010). Hence, construing the authority of a community oversight board
to encompass the power to conduct such a financial audit of a local law enforcement agency would
impermissibly broaden the language of Tenn. Code Ann. § 38-8-312. See State v. Fleming, 19
S.W.3d 195, 197 (Tenn. 2000) (a court ascertains a statute's purpose "from the plain and ordinary
meaning of its language within the context of the entire statute without any forced or subtle
construction that would limit or extend the meaning of the language"); Worley v. Weigels, Inc.,
919 S.W.2d 589, 593 (Tenn. 1996) (in determining legislative intent and purpose, a court must not
unduly restrict or expand a statute's coverage beyond its intended scope).

A community oversight board, however, could "audit" a law enforcement agency in the secondary sense of the
word, a "systematic review or assessment of something," New Oxford American Dictionary 105 (3rd ed. 2010), if
the board got a complaint or request that required a systemic review. See Tenn. Code Ann. § 38-8-312(a) (allowing
community oversight board to "review and consider[] matters reported to the board").

Further, any local legislation that attempts to give a community oversight board authority
or power beyond the statutory limits would be preempted by Tenn. Code Ann. § 38-8-312. Local
governments may not effectively nullify state law on the same subject by enacting ordinances or
other regulations that ignore applicable state laws and grant rights that state law denies. State ex
rel. Beasley v. Mayor and Aldermen of Town of Fayetteville, 196 Tenn. 407, 415-16, 268 S.W.2d
330, 334 (1954). And, correspondingly, any local legislation in existence prior to the passage of
Tenn. Code Ann. § 38-8-312 that gave a community oversight board authority or power beyond
the statutory limits has been superseded and impliedly repealed by Tenn. Code Ann. § 38-8-312.
See City of Memphis v. Shelby Cnty., 469 S.W.3d 531, 547 (Tenn. Ct. App. 2015); Methodist
Healthcare-Jackson Hosp. v. Jackson-Madison Cnty. Gen. Hosp. Dist., 129 S.W.3d 57, 69 (Tenn.
Ct. App. 2003).

In sum, under Tenn. Code Ann. § 38-8-312 a community oversight board does not have
authority to formally declare, by board action, the opposition or support for local, state, or federal
legislation, candidates, or ballot measures and does not have authority to conduct an official
financial inspection of the accounts of local law enforcement agencies involved in public safety
and the administration of justice within its jurisdiction under any circumstances.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Michael G. Curcio
State Representative
425 Rep. John Lewis Way N.
Cordell Hull Building, Suite 630
Nashville, Tennessee 37243