|Legal Opinion: |
Text of Document: January 20, 2005
If I try long enough, maybe I will get the question right: Where the mayor has appointed a substitute to represent him on the planning commission, either under T.C.A., § 13-4-101 or T.C.A., § 6-54-112, can the mayor participate fully in planning commission meetings, except with respect to voting?
In my opinion, the answer is no.
Under both statutes, the seat on the planning commission to which the mayor is entitled is one seat. T.C.A., § 13-4-101, says that: “One of the members shall be the mayor of the municipality or a person designated by the mayor...” T.C.A., § 6-54-112 says that:
(a)(1) Any mayor or full-time commissioner of a municipality who serves on a municipal, county, regional board, commission or authority or development district board, in an appointed, elected, or ex officio capacity, may from time to time designate a person qualified to hold the official’s office, a professional staff member of the municipality with appropriate training, or a member of the municipality’s governing body to sit in the municipal official’s place on the board, commission, or authority.
Note that those two statutes reflect slightly different flavors. Under T.C.A., § 13-4-101, the person appointed by the mayor to fill the seat on the planning commission the mayor would have otherwise occupied is undoubtedly a member of the planning commission until he is removed by the mayor. Under T.C.A.§ 6-54-112, the mayor (and commissioner) can “from time to time” designate a person “to sit in the municipal official’s place on the board, commission, or authority.” Under the latter statute it appears that person designated by the mayor to sit on the planning commission for whatever period is in a position of a person who has proxy to vote, except that his proxy may be somewhat broader, extending to the exercise of all the privileges of membership on the planning commission for the period the covered by the mayor’s appointment. In that connection it is worthwhile to point to Roberts Rules of Order, Newly Revised, 10th Ed., (RRONR 10th), § 46, subsection PROXY VOTING. That subsection defines proxy voting and states the policy against it:
A proxy is a power of attorney given by one person to another to vote in his stead; the term also designates the person who holds the power of attorney. Proxy voting is not permitted in ordinary deliberative societies unless the laws of the state in which the society is incorporated require it, or the charter or bylaws of the organization provide for it. Ordinarily it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal and nontransferable.
Under T.C.A., § 6-54-112, it seems that the mayor’s appointment of a substitute to serve on the planning commission is very like a power of attorney with respect to a proxy. That statute allows the mayor to designate someone with essentially a power of attorney to function as his substitute on the planning commission. But as will be pointed out below, the same statute outlines what is included in that power of attorney, which is all the powers the mayor would otherwise have on the planning commission, including the right to vote.
Despite the different flavors of those two statutes, under both of them when the mayor appoints a person to fill the seat on the planning commission, there is still only one seat. Logic seems to dictate that if that seat is being filled by an appointee under either statute, the mayor could not exercise the privileges of that office–including having a voice–while the seat is occupied by the appointee. Indeed, T.C.A., § 6-54-112(a)(2)–(4) provide, respectively, that:
- “Any such designee has the same immunities and powers, including the power to vote, as are otherwise conferred on the elected municipal official on the board, commission.
- “No such designee may cast more than one (1) vote.
- At any meeting attended by the elected municipal official, only the elected municipal official, and not the designee shall exercise voting power.”
Under that statute, those three provisions make it clear that the authority the mayor’s designee has under that statute is the mayor’s authority. The mayor and the mayor’s designee cannot both hold that authority.
It could be argued that nothing in T.C.A., § 6-54-112 prohibits the mayor from having a voice on the planning commission even if his designee is in attendance at the meeting. But if the designee is present and has the “same immunities and power, including the power to vote as are otherwise conferred on the elected municipal official...” how can the mayor exercise those powers, including the power of voice? When the mayor has appointed someone to serve in his place on the planning commission, and that person is serving in that capacity, it is he, not the mayor, who has the power to exercise the powers of that office. T.C.A., § 13-4-101 and 6-54-112 are all or nothing statutes. Nothing in them authorizes the mayor to partially relinquish his powers as a member of the planning commission to his designee on the planning commission.
It boggles the mind to believe that the mayor could willy-nilly revoke and re-confer his substitute’s “power of attorney” during the course of a planning commission meeting–perhaps several times–so that the mayor could speak on issues before the commission. That outcome cannot have been the purpose and intent of that statute. Unfortunately, I have I have been unable to find any cases containing rules governing such a situation. Arguably, as between the mayor and his appointee, the one of them who has been counted towards the determination of whether there is a quorum is a member of the planning commission for the purposes of the meeting in question.
It is opined in Tennessee Attorney General’s Opinion (OAG) 96-194 (WL 222815), that a non-voting ex officio member of a board cannot vote or make or second motions, but that he is “entitled to other incidents of membership in the county legislative body, including the right of notice of meetings, physical seating in the chamber of that body, to be recognized, and to speak, all within the body’s rules of order.” However, while a significant number of ex officio appointments to public bodies are authorized by various statutes in Tennessee, neither T.C.A., § 13-4-104 nor T.C.A., § 6-54-112, nor any other statue that I can find, makes the mayor an ex officio member of the planning commission, let alone an ex officio member who has a voice but no vote when the seat that he would otherwise occupy is filled by his designee. Under T.C.A., § 6-54-112, the mayor is, in fact, a member of the planning commission.
Sidney D. Hemsley
Senior Law Consultant