|Legal Opinion: election certified before swearing in public.docx|
Text of Document: November 9, 2012
Via Fax: (901) 877-3582, and U.S. Mail
Dear City Recorder,
Your MTAS Management Consultant asked me when elected officials in your City may be sworn in after this recent election. The City Charter states in Section 5:
The term of office for the mayor and for the aldermen shall begin at 7:30 P.M. on the date of the regular board meeting next following their election, and they shall serve until their successors have been elected and qualified.
The next meeting of the board is scheduled for Tuesday, November 13, at which time it is not anticipated the election results will be certified. Despite the charter language, no elected official should be sworn in until the election results have been certified by the election commission. Our courts have held that one who receives the certificate of election from the election commission is the only person who may legally hold that office:
In Hagan v. Henry, 168 Tenn. 223 [76 S.W.2d 994], followed in other cases, it was held that upon issuance to one of the contestants for an elective office of a certificate of election by the Board of Election Commissioners and his induction, he acquires prima facie the title to the office, and upon induction becomes the lawful occupant thereof.
Shumate v. Claiborne County, 183 Tenn. 182, 185, 191 S.W.2d 441, 442 (1946).
It is important to note that the language form the charter clearly provides that aldermen hold their office “until their successors have been elected and qualified.” (emphasis added) The courts interpret the word “qualified” as used in this context as being certified as the winner of the election:
…an incumbent officeholder can legally serve until his successor has ‘qualified.’ This provision is to prevent interruption in the public service. See Graham v. England, 154 Tenn. 435, 288 S.W. 728 (1926). Qualification in[sic] logically mean where the election results have been certified logically mean where the election results have been certified and the oath has been taken. [errors exists in original Attorney General Opinion]
Tenn. Op. Att'y Gen. No. 80-427 (Aug. 26, 1980).
Despite the Attorney General’s abuse of the English language, his opinion cited above is correct, in that the term “qualified” in this context means the person has been certified as the winner of the election. Therefore, no new aldermen should be sworn in until the results of the election have been certified, and he or she is “qualified” for the office.
The next question I was asked is whether the governing body may simply continue its meeting on the evening of November 13th, and reconvene the meeting when the election results are certified for the purpose of swearing in new officers. Yes, that scenario is legal, and would be appropriate to satisfy the charter requirement. I recommend that the board continue its meeting next week until the certification of election results is received and then convene for the swearing in thereafter.
I hope this information is helpful.
Melissa A. Ashburn