|Legal Opinion: |
Text of Document: You have asked MTAS a question with respect to whether a person who is an interim appointment to fill a vacant position on the Board of Mayor and Alderman holds the position until the end of the unexpired term of office, or whether the successor must be placed on the ballot at the next regular election when such election occurs prior to the end of the unexpired term, in this case, October 1999?
The answer to this question is that once appointed to the unexpired term, the interim officer would remain in office until the next regular election, even though the term of the position filled does not expire until October 1999.
Article VII of the Tennessee Constitution specifically addresses state and county officers, and Section 2 of that Article addresses the filling of vacancies. Tenn. Const. Art. VII, Section 2. In addition, Section 5 of this provision of the Constitution addresses the filling of vacancies of certain civil officers. Tenn. Const. Art. VII, Sec. 5. The Supreme Court, however, has made it clear that this Article does not apply to municipal officers. City of Elizabeton v. Carter County, 204 Tenn. 452, 321 S.W.2d 822 (1958).
The general laws passed by the General Assembly that address the filling of vacancies for municipalities such as yours (with Mayor-Aldermanic form of government) control the answer to your question. The legislature has provided for Mayor-Aldermanic Charters, and has set forth a specific statutory scheme for the adoption of such Charter provisions. Tenn. Code Ann. § 6-1-101, et seq. This statutory scheme likewise has a particular provision addressing the filling of vacancies in the positions of mayor or alderman in such municipalities. Tenn. Code Ann. § 6-3-107 (b)(1) provides as follows:
By affirmative vote of a majority of the remaining members, the board shall fill a vacancy in the office of alderman for the unexpired term, but any portion of an unexpired four-year term for alderman or mayor that remains beyond the next municipal election shall be filled by the voters at that election, if the vacancy occurs at least twenty (20) days before the latest time for filling nominating petitions for candidates in that election.
Tenn. Code Ann. § 6-3-107 (b)(1).
Finally, the legislature has set forth general laws that apply to municipal elections.
See Tenn. Code Ann. § 6-53-101 et seq. The filling of vacancies are specifically covered in these general laws. The statutory provisions, however, do not apply to municipalities such as yours where the population is less than 100,000. The statute reads as follows:
(a) Notwithstanding the provisions of any other law or charter, whenever a vacancy occurs in the membership of the city council of any city having a population in excess of one hundred thousand (100,000) within counties, except those counties with the metropolitan form of government, having a population in excess of two hundred thousand (200,000), each according to the United States census of 1970 or any subsequent United States census, any appointment made to fill such vacancy under the provisions of law or charter shall be an interim appointment, valid only until the next primary or general election or referendum which is held in such city after the vacancy occurs.
(b) At such primary or general election or referendum, the vacancy shall be filled for the remainder of the unexpired term by the election of some qualified candidate.
Tenn. Code Ann. § 6-53-107(a) and (b).
In summary, the specific statute of general application addressing the filling of vacancies in municipal of governments such as yours requires that the term of the individual holding the interim position of the previous vacant office shall expire at the next regular election. See generally Op. Tenn. Atty. Gen. 97-009 (February 3, 1997).
Pamela M.M. Bingham