Can a Tennessee regional planning commissioner be removed for skipping the required annual training, and how does the removal and replacement process work?

Subject

Whether a regional planning commissioner who fails the annual training and certification requirements can be removed, the procedure for removal, and the procedure for filling the resulting vacancy.

Plain-English summary

Representative Rush Bricken asked the AG three sequential questions about regional planning commissioners under Tenn. Code Ann. §§ 13-3-101 to -105. The framework is unusual because Tennessee has two parallel appointment paths: in single-county planning regions, the county mayor appoints subject to confirmation by the county legislative body; in multi-county regions or single-county regions that participate jointly with a municipality, the Commissioner of the Department of Economic and Community Development (ECD) designates the members from a slate nominated by local chief elected officers.

Question 1 (the easy one): yes, a commissioner who fails to complete the required four hours of annual training under § 13-3-101(j)(1) or fails to file the year-end certification statement under (j)(3) may be removed. The statute itself, in (j)(8), says failing either requirement "shall constitute a cause for the removal" of the planning commissioner. Note that subsection (j)(9) lets a regional commission's legislative body opt out of the training requirement, in which case (j)(8) does not apply.

Question 2 (the procedural answer): the removal authority tracks the appointment authority. Where ECD designates commissioners, ECD removes them. Where the county legislative body confirms commissioners, the county legislative body removes them. In either case, the statute requires "cause specified in writing" served on the member, with at least fifteen days' written notice of a hearing. § 13-3-101(f); (i)(5). The AG opinion analogizes the procedural floor to standard due process: notice and an opportunity to be heard, citing Mullane and Pearson.

Question 3 (filling the vacancy): the vacancy is filled by the body that originally appointed. Single-county region vacancies go to the county mayor with county-legislative-body confirmation under (i)(4). Multi-county and joint-municipal region vacancies require nominations within thirty days after the position becomes vacant from the county mayor or chief elected official of a metropolitan-form-of-government county or affiliated municipality, after which the ECD Commissioner designates from the nominees under (b), (c)(3), (c)(4), and (i)(7).

What this means for you

If you are a sitting regional planning commissioner

Track your training hours. The statute requires a minimum of four hours per year on specified planning topics. File your written certification with your commission's secretary by December 31 each year, identifying date, subject, location, sponsors, and time spent. If you miss either the training or the filing, you have created statutory cause for your own removal. The body that confirmed your appointment can move to remove you, with fifteen days' notice and a hearing. If your commission's legislative body has opted out of training under (j)(9), this requirement does not apply.

If you are a county mayor or chief elected officer

Build the training audit into your annual oversight cycle. December each year, have your staff request copies of the certification statements from each commission's secretary. If a commissioner has missed both, you can begin removal proceedings (in single-county regions) or coordinate with the ECD Commissioner (in multi-county or joint-municipal regions). When a vacancy occurs, you have thirty days under (i)(7) to submit nominations for ECD-designated seats; do not let that window slip.

If you are a county legislative body

For seats your body confirmed, you have removal authority under (i)(5). The statute requires you to give the commissioner written notice of cause and hold a hearing on not less than fifteen days' notice. Document the cause in writing (training noncompliance, missed certification) and let the commissioner respond at the hearing. Removal without notice and hearing is procedurally defective.

If you are the ECD Commissioner or staff

For seats you designated under (b), (c), or (i)(7), you have removal authority under (f). Same procedural requirements: cause in writing, fifteen days' notice, a hearing. Coordinate with the local government planning advisory committee under (h) for the post-removal nomination and designation process. The committee was created by Tenn. Code Ann. § 4-3-727.

If you are a planning attorney advising a commission

Walk the commission through the scope notes carefully. Municipal planning commissions designated as regional under § 13-3-102 are outside this opinion. Regional planning commissions created by Private Act are also outside this opinion. The opinion's procedural floor (notice, fifteen days, hearing) is the minimum, not the ceiling; bylaws or a private act can require more.

Common questions

Q: How many hours of training are required?
A: A minimum of four hours per year on specified planning topics, under § 13-3-101(j)(1). Subject matter is specified by the statute. Training providers are typically the Municipal Technical Advisory Service, the County Technical Assistance Service, and similar entities.

Q: What if my commission's legislative body opted out?
A: The opt-out under (j)(9) eliminates the training requirement, and so the cause-for-removal trigger in (j)(8) does not apply to that commission. Other causes for removal still apply.

Q: Can the commissioner be removed without a hearing?
A: No. The statute requires a hearing with at least fifteen days' written notice. The AG analogizes this to baseline due process under Mullane and Pearson. A removal without notice and hearing is procedurally defective and likely subject to challenge.

Q: Who serves the written notice?
A: The body or officer with removal authority. For ECD-designated commissioners, the ECD Commissioner. For commissioners confirmed by the county legislative body, the county legislative body.

Q: What's the deadline to fill a vacancy?
A: Nominations for ECD-designated seats must be submitted within thirty days after the position is vacated. Single-county vacancies appointed by the county mayor and confirmed by the legislative body do not have a comparable thirty-day statutory deadline in the opinion's text, but counties should fill them promptly.

Q: Is the certification filed with the secretary the only acceptable proof?
A: The statute identifies the written statement filed with the commission secretary as the required form. The statement must identify "the date of each program attended, its subject matter, location, sponsors, and the time spent in each program." A commissioner who completes training but fails to file the statement still has cause for removal under (j)(8).

Q: Can the commissioner challenge the removal in court?
A: Yes, like any administrative action. The statute's notice-and-hearing requirements are the floor; if procedurally followed, the substantive question is whether cause existed. Judicial review under the Tennessee administrative scheme follows.

Background and statutory framework

Regional planning commissions in Tennessee are creatures of Tenn. Code Ann. §§ 13-3-101 to -105. The Department of Economic and Community Development creates planning regions; a region may be a single county, multiple counties, or portions of counties.

Membership comes through two paths. Single-county regions: county mayor appoints, county legislative body confirms. Multi-county regions and single-county regions that join with a municipality: ECD Commissioner designates from local nominations. § 13-3-101(b), (c), (i). The ECD Commissioner exercises designation authority "with the approval of the local government planning advisory committee" under (h), and that committee is established by § 4-3-727.

Annual training and certification: every commissioner must complete a minimum of four hours of training and file a certification statement by December 31 each year. § 13-3-101(j)(1), (3). Failing either is statutory cause for removal. § 13-3-101(j)(8). A commission's legislative body can opt out of the training under (j)(9).

Removal procedure tracks designation authority. ECD Commissioner removes ECD-designated commissioners under (f); county legislative body removes commissioners it confirmed under (i)(5). Both use the same procedure: cause specified in writing, served on the member, plus fifteen days' written notice of a hearing.

Filling vacancies: same as appointment. Single-county: county mayor appoints, legislative body confirms (i)(4). Multi-county or joint-municipal: thirty-day nomination window from local chief elected officials, then ECD designation (b), (c)(3), (c)(4), (i)(7).

Two scope exclusions: municipal planning commissions designated as regional under § 13-3-102 and regional planning commissions created by Private Act are not addressed here.

Citations

Statutes:
- Tenn. Code Ann. §§ 13-3-101 to -105 (regional planning commissions framework)
- Tenn. Code Ann. § 13-3-101(b), (c), (f), (h), (i)(1), (i)(4), (i)(5), (i)(7), (j)(1), (j)(3), (j)(8), (j)(9)
- Tenn. Code Ann. § 13-3-102 (municipal-to-regional designation, scope-excluded)
- Tenn. Code Ann. § 4-3-727 (local government planning advisory committee)

Cases:
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), notice and opportunity to be heard
- State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993), due process baseline
- Ashcroft v. Goodman, 202 S.W. 939 (Tenn. 1918), definition of "vacancy"
- State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567 (Tenn. Ct. App. 1994), vacant office means unoccupied

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-06.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 16, 2023
Opinion No. 23-006

Removal of Member of Regional Planning Commission

Question 1

If a member of a regional planning commission fails to attend the required training pursuant to Tenn. Code Ann. § 13-3-101(j)(1) or file a written statement with the commission secretary certifying such attendance pursuant to Tenn. Code Ann. § 13-3-101(j)(3), may the member be removed from the commission?

Opinion 1

Yes. A member of a regional planning commission may be removed for cause for failing to meet either of these requirements.

Question 2

If the answer to Question 1 is "yes," what is the process for removing the member?

Opinion 2

In regional planning commissions in which the Commissioner for the Department of Economic and Community Development designates planning commission members, the Commissioner "may remove a member . . . for cause specified in writing served on the member and after hearing, of which such member shall be given not less than fifteen (15) days' written notice." Tenn. Code Ann. § 13-3-101(f). In regional planning commissions in which planning commission members are appointed by the county mayor, subject to confirmation by the county legislative body, the county legislative body may remove a member for cause by following the same notice and hearing process. Id. § 13-3-101(i)(5).

Question 3

If a member is removed from the commission, what is the process for filling the vacancy?

Opinion 3

A vacancy in the membership of a regional planning commission that consists of a single county is filled through appointment by the county mayor, subject to confirmation by the county legislative body. Tenn. Code Ann. § 13-3-101(i)(4). And when there is a vacancy in the membership of a regional planning commission that contains territory in more than one county or a regional planning commission that consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, nominations to fill the vacancy must be submitted "within thirty (30) days after [the] position is vacated" by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. §§ 13-3-101(b), (c)(3) & (4), (i)(7). The Commissioner of the Department of Economic and Community Development may then designate a nominee as a member of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7).

ANALYSIS

Regional planning commissions are governed by Tenn. Code Ann. §§ 13-3-101 to -105. Under this statutory scheme, the Tennessee Department of Economic and Community Development (ECD) creates and establishes regional planning commissions that have planning authority over defined geographic areas. A planning region may be composed of the territory of a single county, or it may comprise several counties, or portions of several counties. Tenn. Code Ann. § 13-3-101.

When a planning region consists of a single county, the members of the regional planning commission for that region are appointed by the county mayor, subject to confirmation by the county legislative body. Id. §§ 13-3-101(b), (i)(1). In all other cases, i.e., when a planning region contains territory in more than one county or the planning region consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, the ECD Commissioner designates the members of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7). Any person designated by ECD Commissioner must have been previously nominated by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. § 13-3-101(c)(3).

Persons who are appointed or designated to regional planning commissions are generally required, each year, to attend a minimum of four hours of training and continuing education on specified planning topics. Id. § 13-3-101(j)(1). And each planning commissioner is required to "certify by December 31 of each calendar year such individual's attendance by a written statement filed with the secretary of such individual's respective planning commission." Id. § 13-3-101(j)(3). The statement must identify "the date of each program attended, its subject matter, location, sponsors, and the time spent in each program." Id.

1. "If a planning commissioner fails to complete the requisite number of hours of training and continuing education within the [statutorily allotted time] or fails to file the [requisite] statement . . . this shall constitute a cause for the removal of the planning commission member from the planning commission." Id. § 13-3-101(j)(8) (emphasis added). Hence, a planning commission member who fails to meet either requirement may be removed for cause. See id.

2. The power to remove a planning commissioner for cause rests with the ECD Commissioner in regional planning commissions in which the ECD Commissioner designates planning commission members. The ECD Commissioner "may remove a member . . . for cause specified in writing served on the member and after hearing, of which such member shall be given not less than fifteen (15) days' written notice." Id. § 13-3-101(f). In those regional planning commissions in which planning commission members are appointed by the county mayor, subject to confirmation by the county legislative body, the county legislative body may remove a member for cause by following the same notice and hearing process. Id. § 13-3-101(i)(5).

In short, the statute provides that a planning commissioner must be provided due process before that planning commissioner may be removed for cause. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (the touchstones of due process are notice and an opportunity to be heard). The ECD Commissioner or the county legislative body—whichever the case may be—must serve written notice on the planning commissioner explaining that removal of the planning commissioner is sought for failure to attend the required training and continuing education courses and/or for failure to file the requisite statement that indicates that the planning commissioner attended the required training and continuing education courses. See Tenn. Code Ann. §§ 13-3-101(f), (i)(5). The written notice must be given not less than fifteen days before the date on which the hearing is scheduled. See id. The hearing then provides the planning commissioner the opportunity to present any objections to removal. See Mullane, 339 U.S. at 314; Pearson, 858 S.W.2d at 884.

3. If a planning commissioner is duly removed for cause, that person's office becomes "vacant." See Ashcroft v. Goodman, 139 Tenn. 625, 630, 202 S.W. 939, 940 (Tenn. 1918) ("The term 'vacancy,' as used in legal phraseology, means a place unfilled, and when applied to an office, it means the state of being destitute of an incumbent, or a want of a proper or legally qualified officer to officiate."); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 573-74 (Tenn. Ct. App. 1994) (a "vacant" office is one that is unoccupied or without an incumbent).

A vacancy in the membership of a regional planning commission that consists of a single county is filled through appointment by the county mayor, subject to confirmation by the county legislative body. Tenn. Code Ann. § 13-3-101(i)(4). And when there is a vacancy in the membership of a regional planning commission that contains territory in more than one county or a regional planning commission that consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, nominations to fill the vacancy must be submitted "within thirty (30) days after [the] position is vacated" by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. §§ 13-3-101(b), (c)(3) & (4), (i)(7). The ECD Commissioner may then designate a nominee as a member of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7).

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Rush Bricken
State Representative
425 Rep. John Lewis Way N.
Suite 594
Nashville, Tennessee 37243