|Legal Opinion: |
Text of Document: March 1, 1991
You have asked whether, if the mayor refuses to take an oath of office, his seat is considered vacant? The answer is no, in that the previous mayor holds office until a new mayor is elected and takes an oath of office. Thus, the incumbent mayor would continue to serve until the next election.
The City's charter contains the following provisions:
Section 3. "The officers of the Town of _____,...shall be a mayor, a recorder, and six aldermen, who shall hold their offices two (2) years and until their successors are elected and qualified...".
Section 5. "That the Mayor, Recorder, Chief of Police and Aldermen, before entering upon the discharge of their duties, shall each take an oath before some person authorized to administer oaths, that they will honestly and faithfully discharge the duties of their respective offices to the best of their skill and ability, without fear, favor, or partiality...".
According to the plain language of the charter, before a mayor may act as a mayor, he must take an oath. The administration of the oath, in effect, qualifies the elected official to begin discharging his duties. In Gann the Tennessee Supreme Court interpreted a charter provision identical to Section 5 of the city charter as being mandatory and not directory. They held that the elected officer does not qualify and the term of office does not commence until the prescribed oath is taken.
The rule in Tennessee is that the failure of the mayor or other elected official to qualify for office does not create a vacancy that can be filled by appointment or otherwise, but the incumbent continues in office until his successor is elected and qualified. Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (1963); Conger v. Roy, 151 Tenn. 30, 267 S.W. 122 (1924); State ex rel Gann v. Malone, 131 Tenn. 149, 174 S.W. 257 (19150; Annot., 74 ALR 486 (1931). The only exception to this rule is where there is no identifiable incumbent. In State v. Wright, 678 S.W.2d 61 (Tenn. 1984), the Supreme Court created an exception to the rule first announced in Malone where public offices cannot be identified with a particular incumbent, there is no holding over beyond the end of the term. In Wright an at large aldermanic position was considered vacant when the person elected died before being administered an oath of office.
If the newly elected mayor of the city fails to take an oath, the previous mayor will hold over until the next regular municipal election. If you have any further questions or need additional information please let me know.