|Legal Opinion: |
Text of Document: Can the city manager serve as an ex officio member of the city’s utility board?
The answer is no; there is no authority for the appointment of ex officio members of a municipal utility board organized under Electric Plant Law of 1935.
Section 13-101 of your municipal code indicates that the city’s utility board is organized under the Municipal Electric Plant Law of 1935, codified at Tennessee Code Annotated, section 7-52-101 et seq. That Law provides for two kinds of membership on the utility board:
1. Tennessee Code Annotated, section 7-52-107(b), provides for citizen membership and appointment to the utility board. It also says, "No regularly compensated officer or employee of a municipality shall be eligible for such appointment until at least one (1) year after the expiration of the terms of such person’s public office."
2. Tennessee Code Annotated, section 7-52-108(c) also provides for public membership appointed by the chief executive officer of the city, "with the consent of the governing body of the municipality." The public member may be either a member of the governing body of the city or "in the chief executive officer’s discretion, the city manger."
As I understand the city’s form of government, the city has a city administrator rather than a city manager. [Private Acts 1998, Chapter 101, Article III, Section 3.02.] For that reason alone the mayor could not appoint the city administrator to a position on the utility board, even with the consent of the city’s governing body.
In addition, although I can find no case in Tennessee on whether ex officio membership on a public body must be authorized by statute, cases in other jurisdictions indicate the answer is yes. In fact, they reason that officio membership on a board derives not from appointment to the board, but from the ex officio member’s position on another board, the statutory powers and duties of which include ex officio membership on the other board. They also reason that ex officio members of boards have the same rights on the board as all members of the board, except where a statute limits the rights of ex officio members. Seiler v. O’Maley, 227 S.W. 141 (Ct. App. Ky. 1921, appears to be the principle case in this area. There the Court declared that:
.....we can see no logical reason nor has one been presented to us, why an ex officio member of a representative body should not have, in cases where he is not personally interested, all of the authority of other members. In this one case his power and authority as such member is conferred upon him by that department of the sovereignty having authority to create the board because of the fact of his holding some office, while the other members receive their power and authority because of their election or appointment in the manner provided by the same governmental department. We have no doubt but that it would be competent in the creation of the board to provide that it should be composed entirely of ex officio members, and because some of the members are selected in the manner pointed out in the law creating the board, while others are selected by the terms of the law itself, whether it be a statutory or constitutional provision cannot possibly affect the extent of the power and authority of the members. They are each vested with full power and authority to do any and all things necessary and essential to carry out the purpose of the law in creating the board or body, whether they be ex officio members or selected in the manner provided by law. If, as contended by appellants, an ex officio member cannot be counted in forming a quorum, we fail to see any additional reason why such a member should have the right to vote or should have his vote counted in the transaction of any other business of the body. To our mind the rule contended for, pursued to its only logical conclusion, would result in depriving the ex officio member of all voice in the proceedings of all meetings and render his position on the board void of all effect except perhaps to entitle him to be present at the meeting. Such an absurd consequence was never contemplated. On the contrary, when one is made by the proper authority an ex officio member of a created body or board, it is to be presumed that those responsible for its creation had some purpose in view in designating the ex officio member. Manifestly that purpose was to constitute that individual a member of the board or body because of his holding some office of trust, and that whoever held that office should perform, in addition to his official duties, also those incumbent upon the board of which he was made an ex officio member. [At 143.]
Barber Pure Milk Co. v. Alabama State Milk Control Board, 156 S.W.2d 351 (1963), citing Seiler, declared that:
"Ex officio" means by virtue or because of an office. Webster’s International Dictionary, 2d Ed., p. 894; Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88, 95, 173 ALR 397; King v. Physicians’ Casualty Assen of America, 97 Neb. 637, 130 NW 1010, 1011. It has been held that an "ex officio" member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. State ex rel. Hennipin County v. Brandt, 225 Minn. 345, 31 N.W.2d 5, 9. It has also been held that "ex officio members of a public body are members for all purposes and must be counted in determining the presence of a quorum." Louisville & Jefferson County Planning & Zoning Commission v. Ogden, 307 Ky. 362, 210 S.W./2d 771. [At 357-58.]
Similar language is found in Ashmore, above, in connection with the Court’s declaration that prohibitions against dual office-holding do not apply to ex officio offices:
A common example is ex officio membership upon a board or commission of the unit of government which the officer serves in his official capacity, and the functions of the board or commission are related to the duties of the office. [Citations omitted.] Ex officio means "by virtue of his office. 1 Bouv., Law Dict. Rawles’ Third Revision, page 1103. Similar observation may be made with respect to ex officio membership upon a governing board, commission or the like of an agency or institution in which the unit of government of the officer has only a part or joint ownership or management. In mind as an example is an airport operated by two or more units of government. A governing board of it might be properly created by appointment ex officio of officer of the separate governmental units whose duties of their respective officers [sic] have reasonable relation to their functions ex officio. [At 95.]
Finally, in Brandt, above, it was said of a city comptroller who was by law an ex officio member of the board of tax levy, that, "the city comptroller, and this is likewise true of any other member of the board [of tax levy], is an ex officio member, that is, by virtue of his office, and without further warrant or appointment." The same case further says that:
Where by law an incumbent of one office is ex officio the incumbent of another office, such incumbent occupies two separate and distinct offices if the duties of the two official capacities are different in their general nature and are separate and distinct so that the incumbent, while acting in one capacity, is governed by one law, and while acting in another is governed by a different and independent law. [at 9.] [Citation omitted.]
A significant number of ex officio appointments to public bodies are authorized by various statutes in Tennessee, but none of those statutes authorize ex officio appointments to the utility board under the Electric Plant Law. The city administrator, then, cannot be appointed an ex officio member of the utility board; his appointment would need derive from some statute making him an ex officio member of that board by virtue of his position as city administrator.
I see no reason why the city administrator could not be appointed by the city as the utility board observer. Because meetings of the utility board must be open to the public, he would have the same right as any citizen to attend, and to speak at, utility board meetings. In addition, the utility board has the authority to adopt its own procedure, "save as otherwise expressly provided." [Tennessee Code Annotated, section 7-52-110.] That authority probably gives it the right to grant such an observer special status with respect to the right to speak. However, it could not grant him the right to vote, nor to be counted for purposes of a quorum. Of course, the extent to which the utility board decided to give, or to withdraw, any rights it has the power to extend to such an observer would be entirely within the discretion of the utility board.