Does Tennessee's 2019 statute protecting 'constitutional county officers' apply in Shelby County, where the county charter replaced those offices with new 'county charter officers' in 2008?
Subject
Whether Tenn. Code Ann. § 5-1-202(c) (added in 2019), which protects the duties, qualifications, and privileges of the "constitutional county offices" of sheriff, register, county clerk, assessor of property, and trustee from being altered by a charter, applies to Shelby County's current "county charter officers."
Plain-English summary
Senator Raumesh Akbari asked whether the 2019 statute protecting Tennessee's constitutional county offices reaches Shelby County's current officers. The AG's answer is likely no, because Shelby County's charter eliminated the constitutional offices and created new "county charter officers" in their place.
The Tennessee Constitution allows three types of county government under Article VII, § 1 (Maner v. Leech, 1979): (1) the standard county-executive/county-legislative-body model, (2) consolidated/metropolitan government, and (3) charter form of government. Charter counties have substantial autonomy under Tennessee's enabling legislation (Tenn. Code Ann. §§ 5-1-201 to -215). Two Tennessee Supreme Court cases shape the analysis. Bailey v. County of Shelby (2006) held that charter counties can set their own qualifications for officers (term limits in particular). Jordan v. Knox County (2007) held that charter counties are not required to retain the "constitutional county offices" listed in Article VII, § 1, paragraph one; the duties may be transferred to other county officials so long as they are performed.
In response to Jordan, Shelby County voters in November 2008 adopted Charter amendments that explicitly deleted Section 4.06 (Sheriff as constitutional officer) and added new Article VIII titled "County Charter Officers." The new article created Shelby County Sheriff, Trustee, Register, Clerk, and Assessor as charter officers (effective Sept. 1, 2010, and Sept. 1, 2012 for the Assessor) with the same duties as the former constitutional officers, but as charter officers rather than constitutional officers.
Section 5-1-202(c), added in 2019, says no charter "may be interpreted to alter, amend, or reduce the duties, qualifications, or privileges of the constitutional county offices of sheriff, register, county clerk, assessor of property, or trustee in a manner inconsistent with the laws of this state." The AG reads this to apply only to charters that have retained constitutional county offices. The Jordan analysis of the parallel statute § 5-1-210(12) supports this reading: § 5-1-210(12) "applies only when the charter 'retain[s]' the constitutional county offices in the alternate form of government." The AG concludes that the same logic applies to § 5-1-202(c).
A footnote flags that the General Assembly could amend the law to require all charter counties to retain constitutional county offices. The 2019 statute, on the AG's reading, did not go that far.
What this means for you
If you are a Shelby County official or candidate
The county-charter-officer framework remains in place. The 2019 statute does not, on the AG's reading, force Shelby County to convert back to constitutional county offices. Continue operating under the charter framework. The AG's analysis is persuasive but not binding; if a court reaches a different conclusion, that would change the analysis.
If you are a Knox County or other charter county official
Jordan v. Knox County is your direct authority. The AG's analysis of Shelby County applies with equal force to other counties that have eliminated constitutional offices in their charters.
If you are a Tennessee state legislator
If the policy goal of § 5-1-202(c) was to lock in constitutional county offices statewide (including in Shelby County), the AG's reading suggests the legislation didn't quite get there. To require all charter counties to retain constitutional offices, an amendment would need to do so explicitly.
If you are a Shelby County voter
The current Shelby County offices of sheriff, trustee, register, clerk, and assessor are charter officers, not constitutional officers. Their duties are the same as constitutional officers because the charter assigns them; their existence comes from the charter, not the constitution.
If you are a county attorney advising a county considering a charter
The Bailey/Jordan framework gives charter counties wide latitude. Your charter can establish or eliminate constitutional offices, set qualifications and term limits, and assign duties to charter officers. The 2019 statute (§ 5-1-202(c)) constrains charters that retain constitutional offices but does not force you to retain them.
Common questions
Q: Did the 2019 law re-impose constitutional county offices on Shelby County?
A: Not on the AG's reading. The statute by its terms applies to "constitutional county offices" and Shelby County eliminated those.
Q: What if a future court disagrees with the AG?
A: An AG opinion is persuasive but not binding. A court could reach a different conclusion, particularly if it reads § 5-1-202(c) more broadly. Officials should plan for either outcome and consult counsel about contingency planning.
Q: Are charter officers different in any practical way from constitutional officers?
A: The duties are the same; that's how the Shelby County charter is structured (the charter officers "perform the duties and functions of the former constitutional county officers"). The differences are constitutional and procedural: charter officers exist by charter, can have qualifications set by the charter, and are governed by the charter's term and election rules.
Q: Could Shelby County re-establish constitutional county offices?
A: It would require a charter amendment approved by voters. The current charter explicitly created county charter officers in lieu of constitutional officers.
Q: Does this affect the Sheriff's law-enforcement powers?
A: No. The Shelby County Sheriff still has all law enforcement powers under state law. The opinion is about which constitutional/statutory framework applies to the office, not about the powers exercised.
Q: Is the analysis the same for metropolitan governments like Nashville-Davidson?
A: Metropolitan/consolidated governments operate under Article XI, § 9 and are exempt from certain Article VII requirements. The Bailey/Jordan analysis under the third-paragraph charter authority is similar but distinct.
Background and statutory framework
Article VII, § 1 of the Tennessee Constitution authorizes three types of county government. The first paragraph lists constitutional county officers (sheriff, trustee, register, county clerk, assessor of property), and provides that "[t]heir qualifications and duties shall be prescribed by the General Assembly." The third paragraph permits "alternate forms of county government" by charter, with no requirement that the constitutional offices be retained.
The General Assembly's enabling legislation (Tenn. Code Ann. §§ 5-1-201 to -215) implements the charter framework. Section 5-1-202(a) provides that a charter operates as a fresh slate: "no right, power, duty, obligation or function of any officer, agency or office of such county shall be retained and continued unless [the enabling legislation] or the charter of such county expressly so provides, or unless such retention and continuation be required by the Constitution of Tennessee."
The Tennessee Supreme Court resolved key questions in Bailey v. County of Shelby (2006) and Jordan v. Knox County (2007). Bailey upheld term limits in the Shelby County Charter, holding that charters can set qualifications. Jordan held that charter counties are not constitutionally required to retain the constitutional offices, that the duties may be transferred to other officials, and that § 5-1-210(12) (preserving the "duties of the constitutional county officers") applies only when the charter retains the constitutional offices.
Following Jordan, Shelby County voters in 2008 amended the charter to eliminate the constitutional offices and create county charter officers. Section 4.06 (the constitutional Sheriff provision) was deleted. New Article VIII created county charter officers with identical duties.
Section 5-1-202(c), enacted in 2019, prohibits charters from altering, amending, or reducing the duties, qualifications, or privileges of "the constitutional county offices" of sheriff, register, county clerk, assessor of property, or trustee. Reading § 5-1-202(c) consistently with the Jordan analysis of § 5-1-210(12), the AG concludes that § 5-1-202(c) applies only to charters that have retained the constitutional offices, not to charters like Shelby County's that have eliminated them.
Citations
Constitutional and statutory provisions:
- Tenn. Const. art. VII, § 1; art. XI, § 9
- Tenn. Code Ann. §§ 5-1-201 to -215; § 5-1-202(a), (c); § 5-1-203(b), (c); § 5-1-210(1), (4), (5), (6), (12)
Cases:
- State ex rel. Maner v. Leech, 588 S.W.2d 534 (Tenn. 1979)
- Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006)
- Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007)
- Pidgeon-Thomas Iron Co. v. Shelby Cnty., 397 S.W.2d 375 (Tenn. 1965)
Local enactments:
- Shelby County Charter, Art. IV, § 4.06; Art. VIII
- Shelby County, Tenn., Ordinance 364 (Aug. 27, 2008)
Prior AG opinion:
- Tenn. Att'y Gen. Op. 09-104 (June 1, 2009)
Source
- Landing page: https://www.tn.gov/attorneygeneral/opinions.html
- Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-008.pdf
Original opinion text
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 30, 2024
Opinion No. 24-008
Offices of Sheriff, Trustee, Register, County Clerk, and Assessor of Property Under Shelby County Charter
Question
Does Tenn. Code Ann. § 5-1-202(c) apply to the offices of sheriff, register, county clerk, assessor of property, and trustee in Shelby County?
Opinion
Tennessee Code Annotated § 5-1-202(c) likely does not govern Shelby County's current offices because the Shelby County Charter explicitly replaced "constitutional county officers" with "county charter officers."
ANALYSIS
- Article VII, § 1 of the Tennessee Constitution provides the general framework for the government of counties. Revised in 1978, this constitutional provision states in pertinent part:
The qualified voters of each county shall elect for terms of four years a legislative body, a county executive, a Sheriff, a Trustee, a Register, a County Clerk and an Assessor of Property. Their qualifications and duties shall be prescribed by the General Assembly. . . .
Any county organized under the consolidated government provisions of Article XI, Section 9, of this Constitution shall be exempt from having a county executive and a county legislative body as described in this paragraph.
The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum.
No officeholder's current term shall be diminished by the ratification of this article.
Tenn. Const. art. VII, § 1.
The Tennessee Supreme Court has interpreted Article VII, § 1 to allow three types of county government. State ex rel. Maner v. Leech, 588 S.W.2d 534, 537 (Tenn. 1979). First, it authorizes a type of county government "wherein the basic units of government are the county executive and the county legislative body." Id. Second, it authorizes a consolidated form of government, commonly known as a metropolitan government, which is exempt from certain requirements in Article VII. Id. Third, it authorizes the General Assembly to statutorily create "alternate," "diverse forms of county government without regard to the general type established in Article VII." Id.
Acting pursuant to its constitutional authority, the General Assembly has enacted legislation allowing counties to adopt a charter form of government. See Tenn. Code Ann. §§ 5-1-201 to -215. If lawfully adopted, a charter "result[s] in the creation and establishment of an alternative form of county government to perform all the governmental and corporate functions previously performed by the county." Id. § 5-1-203(b). "Such charter form of government shall replace the existing form if approved by a majority of the voters in a referendum." Id. § 5-1-203(c). By statute, "no right, power, duty, obligation or function of any officer, agency or office of such county shall be retained and continued unless [the enabling legislation] or the charter of such county expressly so provides, or unless such retention and continuation be required by the Constitution of Tennessee." Id. § 5-1-202(a).
The General Assembly imposed certain requirements on charter forms of government. For example, a charter must operate as "a public corporation, with perpetual succession, capable of suing and being sued." Id. § 5-1-210(1). It must provide "[f]or the assignment of administrative and executive functions to officers of the county government" id. § 5-1-210(5), declare the "method of election, qualification for holding office, method of removal, and procedures of the county legislative body," id. § 5-1-210(4), and set out "the names or titles of the administrative and executive officers of the county government, their qualifications, compensation, method of selection, tenure, removal, replacement and such other provisions with respect to such officers, not inconsistent with general law," id. § 5-1-210(6). And, "the duties of the constitutional county officers as prescribed by the general assembly shall not be diminished under a county charter form of government; provided, that such officers may be given additional duties under such charters." Id. § 5-1-210(12).
The Tennessee Supreme Court addressed these statutory requirements and the status of "constitutional county officers" in two significant cases: Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006) and Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007).
In 2006, Bailey held that Article VII, § 1 does not prohibit a county operating under a charter form of government from establishing the "qualifications" of its officers. 188 S.W.3d at 541, 546-48. There, a group of county commissioners challenged a term-limit provision in the Shelby County Charter, arguing that the first paragraph of Article VII vests the authority to set qualifications in the General Assembly. The Court disagreed. It emphasized that Article VII allows "for the creation of a new form of county government that replaces the existing form," and "reject[ed] the notion that an alternative government formed under the third paragraph of Article VII must conform to the [qualifications] language in the first paragraph of Article VII." Id. at 545-46.
The following year, Jordan made clear that Article VII does not require a charter form of government to retain the constitutional county offices set out in the first paragraph of Article VII. 213 S.W.3d at 773. The Court explained that "the offices named in the first paragraph, including those of sheriff, trustee, property assessor, register of deeds, and county clerk, are not essential to an alternative form of government." Id. And "because the constitutional officers of a county are not [constitutionally] necessary in the charter form, then no duty, obligation, or function of these offices and officers is retained unless expressly provided for in the charter or required by the . . . the enabling legislation." Id.
The Court then turned to the enabling legislation. Section 5-1-203(b) requires a charter form of government "to perform all the governmental and corporate functions previously performed by the county." This language required Knox County to retain an officer that performs "the duties" of constitutional county officers. But the Court rejected the notion that only a constitutional county officer could perform those duties. Section 5-1-210(12) applies "only when the charter . . . 'retain[s]' the constitutional county offices in the alternate form of government." Id. at 773. "[T]he duties [of constitutional county officers] may be transferred to another county official, so long as the duty is performed." Id.
- Following the issuance of Jordan, the Shelby County Board of Commissioners proposed amendments to address deficiencies in the Shelby County Charter. The proposed amendments were submitted to the voters of Shelby County during the August 7, 2008, countywide election—but the amendments were not approved. Shelby County, Tenn., Ordinance 364 (Aug. 27, 2008).
Two months later, the Shelby County Board of Commissioners submitted another set of proposed amendments "that, if approved will create officers to carry out the duties and functions of the former constitutional county officers and meet the state law requirements for establishing a charter form of county government . . . ." Id. Among other provisions, the amendments proposed to delete Section 4.06 of Article IV of the Shelby County Charter, which read as follows:
The sheriff shall be the chief law enforcement officer of the county and is charged with the enforcement of ordinances of the County of Shelby. The sheriff shall be elected by the qualified voters of Shelby County according to law and all duties, conferred or implied by law, shall expressly continue as they existed prior to the enactment of this charter.
And the amendments proposed to add a new Article VIII entitled "County Charter Officers" to the Shelby County Charter. The initial section of the new proposed article stated:
Section 8.01. Replacement of constitutional county officers.
In addition to the legislative and executive branches created herein, the officers listed in this article shall be officers of the county who shall be known as the "county charter officers" and are hereby created and established to perform the duties and functions of the former constitutional county officers that existed as part of Shelby County government prior to Shelby County adopting a charter form of county government. This article shall become effective September 1, 2010; provided, however, this article shall become effective September 1, 2012 as to the office of the Shelby County Assessor.
The remaining sections of the proposed article generally provided that the qualifications, duties, and powers of the "county charter officers"—i.e., the Shelby County Sheriff, Shelby County Trustee, Shelby County Register, Shelby County Clerk, and Shelby County Assessor—that were "created" under Section 8.01 would be the same as those required of the "former constitutional officers." The proposed amendments were approved pursuant to voter referendum in the November 4, 2008, general election. Shelby County Charter, Art. IV, § 4.06, Note 1; Art. VIII, Note 1.
By approving these amendments, Shelby County voters "replace[d] [the Shelby County government's] constitutional county officers" with county charter officers assigned the "duties and functions of the former constitutional county officers." See Jordan, 213 S.W.3d at 780 (quoting Pidgeon-Thomas Iron Co. v. Shelby Cnty., 217 Tenn. 288, 295, 397 S.W.2d 375 (1965)).
- In 2019, the General Assembly added Tenn. Code Ann. § 5-1-202(c) to the statutory scheme governing charter forms of government. That provision states that "[n]o charter . . . may be interpreted to alter, amend, or reduce the duties, qualifications, or privileges of the constitutional county offices of sheriff, register, county clerk, assessor of property, or trustee in a manner inconsistent with the laws of this state . . . ." Tenn. Code Ann. § 5-1-202(c). And it adds that "[t]his subsection (c) must not be construed to affect the terms of the constitutional county offices of sheriff, register, county clerk, assessor of property, or trustee." Id.
This statutory language likely does not govern Shelby County's current charter officers. For one, the plain text of § 5-1-202(c) applies to "constitutional county offices," and Shelby County has eliminated those offices from its charter form of government and explicitly created parallel "county charter officers" in their place. Moreover, while not identical, § 5-1-202(c) is similar in structure to § 5-1-210(12), which states "[t]hat the duties of the constitutional county officers as prescribed by the general assembly shall not be diminished under a county charter form of government." Both statutes set statutory limits prohibiting changes to certain characteristics associated with "constitutional county offices" or "officers." And, when the Jordan Court considered § 5-1-210(12), it concluded that the statute applies "only when the charter . . . 'retain[s]' the constitutional county officers in the alternate form of government." Under that reasoning, it seems likely that a Tennessee court would hold that Tenn. Code Ann. § 5-1-202(c) imposes constraints only when counties have adopted a charter that retains the "constitutional county offices of sheriff, register, county clerk, assessor of property, or trustee."
In sum, because Shelby County has replaced its constitutional county officers with county charter officers, it does not appear that Tenn. Code Ann. § 5-1-202(c) governs the offices of sheriff, register, county clerk, assessor of property, and trustee in Shelby County.
JONATHAN SKRMETTI
Attorney General and Reporter
J. MATTHEW RICE
Solicitor General
LAURA T. KIDWELL
Assistant Solicitor General
Requested by:
The Honorable Raumesh A. Akbari
State Senator
425 Rep. John Lewis Way N.
Suite 764 Cordell Hull Building
Nashville, Tennessee 37243