|Legal Opinion: |
Text of Document: How is a housing authority commissioner who was elected to the board of mayor and aldermen removed from office of housing authority commissioner?
It is said in State ex rel. v. Thompson, 246 S.W.2d 69 (Tenn. 1952), that "The rule at common law is that where one accepts a second office incompatible with the one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind." [At 61] In that case, the principle questions were whether a member of a city’s governing body could vote to appoint himself to the office of city manager, and whether a city’s governing body could appoint one of its members to the office of city manager. But the general rule of incompatible offices stated above applies to cases where the law itself creates the incompatibility in office by prohibiting one holding a certain office from being elected or appointed to another office. [See State ex rel. Slagle, 115 Tenn. 336 (1905), which is cited with approval by Thompson ]
However, an officer elected or appointed to a term of office, as is a housing authority commissioner, can be removed only after notice of the "charges" against him and the opportunity for a hearing on those "charges." I put the term "charges" in quotation marks because under the facts, the commissioner is not accused of any misconduct in or out of office; he simply does not meet the continuing qualification requirement in the charter that a housing authority commissioner not be a city official.
Tennessee Code Annotated, section 13-20-408(c), expressly provides that a housing authority commissioner cannot be a city official. It makes no exceptions for a commissioner who during his term is elected to city office. For that reason the prohibition appears to be a continuing qualification to hold office as housing authority commissioner. Tennessee Code Annotated, section 13-20-411, provides for the removal of a housing authority commissioner for "inefficiency or neglect of duty or misconduct in office," but nothing in that statute nor any other statute dealing with housing authorities provides for the removal of a housing authority commissioner who is elected or appointed to a city office. In such a case, the common law rule that in the absence of a statute that provides for the removal of an officer, the officer is entitled to notice and a fair hearing, applies. The charges against him must be specific and substantially certain. In this case, that appears to be no problem: The officer in question was elected to the office on the governing body of the city while holding the office of housing authority commissioner, and he now holds the office of housing authority commissioner in violation of Tennessee Code Annotated, section 13-20-408(c).
The notice and hearing provisions contained in Tennessee Code Annotated, section 13-20-411, for the removal of a housing authority commissioner for inefficiency or neglect of duty or misconduct in office appear to be a good model for the removal of a housing authority commissioner for being a city official.
Under Tennessee Code Annotated, section 13-20-408(c), a housing authority commissioner holds his office until his successor has been appointed and qualified, although he is not required to do so.