|Legal Opinion: |
Text of Document: April 2, 1991
Your general question is whether the city can split the authority to operate the parks and recreation system between the recreation commission and the board of mayor and aldermen. You point out the possible conflicts between Tennessee Code Annotated, title 11, chapter 24, the charter provisions related to the recreation commission, and the municipal code provisions on the same subject.
The threshold issue in answering your question is whether Tennessee Code Annotated, title 11, chapter 24 applies to the recreation system in your city. The only reference I can find in your charter to the "Recreation Commission" is in section 14. Nothing in that section, or in the Municipal Code, title 1, chapter 10, indicates the recreation commission was established under Tennessee Code Annotated, title 11, chapter 24. That section was added by Private Acts 19__, chapter __.
Parenthetically, I also note that in section 15 of you charter there is mention of a "Sewer Commission" with no reference there or elsewhere in the charter or the municipal code to any general law authority under which it was established. It too was added by Private Acts 19__, chapter __. Other commissions are mentioned in the municipal code with no reference to the authority under which they were established.
My point is that perhaps the recreation commission (and perhaps other commissions) are not locked to any general statutory authority. That point leads me to another: there is authority under your charter for the city to operate a parks and recreation system. Section 3 adopts the powers granted to cities under both the general law mayor-aldermanic and the general law manager-commission charters (Sections 6-2-201 and 6-19-101). There is nothing in the former relative to parks and recreation systems, but in the latter, there are two references: subsections (15) and (27). Both of them, individually and collectively, provide municipalities express authority to establish parks and recreation systems.
The basis of Tennessee Code Annotated, section 11-24-101 et seq. is Public Acts 1937, ch. 307. I am convinced that when that act was passed it was merely supplemental authority for a municipality to operate a parks and recreation system. In fact, an expression of intent appears in section 1 of that Act, which says
Be it enacted by the General Assembly of the State of Tennessee, That for the purposes of this Act the term "municipality" shall be construed to mean any city, town, township, school district, or other political subdivision of the State of Tennessee. Provided, further, that the intention of this Act is to extend the power granted the municipalities to the counties and they are hereby empowered to act under the provisions of this Act. [Emphasis is mine.]
That expression of intent suggests that municipalities already had the power to operate recreation systems, and that Public Acts 1937 was designed primarily to permit counties to operate recreation systems. I find no evidence that before 1937 municipalities had general statutory authority to operate recreation systems; therefore, private act cities must have derived such express or impled authority from their charters.
Other language in the Act indicates that it was supplementary. Section 8 provides that, "Be it further enacted, That it shall be the duty of the governing body of a municipality or county to provide for the maintenance and conduct of any recreation system acquired under the provisions of this Act..." [Emphasis is mine.] Section 9 begins, "Be it further enacted, That the governing body of any municipality or county adopting provisions of this Act will levy and collect a tax, ..." [Emphasis is mine.] Section 10 declares, "Be it further enacted, That any municipality being or intending to be subject to the provisions of this Act ..." [Emphasis is mine.] There is additional similar language in the Act.
A [and perhaps "the"] method of financing recreation systems established under the authority of Public Acts 1937, ch. 307 is both clearly set out and mandatory. Section 8 provides that the funds for the conduct and maintenance of the recreation system "shall be provided by taxation levied on the real and personal property of the county or municipality as the cases may be..." Section 9 continues,
Be it further enacted, That the governing body of any municipality or county adopting provisions of this Act will levy and collect a tax, the rate of which to be set by said governing body and the proceeds to be designated as a "special" playground and recreation tax, and shall be levied and collected in like manner as a general tax of the municipality, but the same shall be in addition to and exclusive of all other taxes such municipality may levy or collect, nor shall such tax be sealed down under any existing law. [Emphasis is mine.]
It may be that no municipality operating a recreation system under Tennessee Code Annotated, title 11, chapter 24 has levied such a tax, at least in the past number of years, but it is difficult, if not impossible, to escape the compulsion in the language of Section 9. Arguably, that provision does not prescribe an exclusive method by which a municipality can finance a recreation system created under that statute, that such a system can also be financed from general funds, but the argument is not particularly convincing; the special levy method is firmly hammered into the statute.
In any event, if such a system can be financed from the general fund, there appears to be no getting around the levy of a "special playground and recreation tax," which "shall be in addition to and exclusive of all other taxes such municipality may levy or collect."
So much for Tennessee Code Annotated, title 11, chapter 24 as it looked in 1937. There have been few changes since then, only one of which is significant to your question.
Public Acts 1985, ch. 133, deleted and replaced in its entirety Tennessee Code Annotated, section 11-24-103, which was derived from Public Acts 1937, ch. 307, sec. 3. That section in general terms gave municipal governing bodies the authority to establish and operate supervised recreation systems and to appropriate funds for the same. But it also provided that the governing body could vest such authority "in the school board, park board or recreation commission or council as the governing body of such municipality shall determine."
The replacement language provides municipalities with the authority to establish and operate parks and recreation facilities and to conduct recreation programs, including the power to "appropriate funds" for those purposes, but continues by providing that, "A municipality shall use one and only one of the following methods to operate and maintain parks and recreation facilities and to conduct recreation programs." The language goes on to list the methods, which include a recreation advisory board, a parks and recreation board, and a joint board and authority.
However, a concluding and key provision of the Act provides that,
Nothing in this Act shall be interpreted as abolishing or limiting the powers or authority of local parks and recreation boards or special boards of trustees with responsibility for park properties pursuant to existing state law. [Emphasis is mine.]
The question raised by Public Acts 1985, ch. 133 is whether it eliminates the supplementary authority character of Tennessee Code Annotated, title 11, chapter 24. Arguably, the "one and only one" method of operating a recreation system applies only to recreation systems operating under the authority of that general law because Public Acts 1985, ch. 133 did not disturb any other language found in that statute. The key provision cited above might dampen that argument somewhat. The term "existing state law" within the context of the above provision can be interpreted to mean that a recreation system can continue operation under its present charter authority, but once the municipality once casts aside that authority, it is stuck with the authority found in Tennessee Code annotated, title 11, chapter 24.
I do not read Tennessee Code Annotated, section 11-24-103 that narrowly. I believe that a study of Public Acts 1985, ch. 133 against the backdrop of Public Acts 1937, ch. 307 supports the first interpretation. My conclusion is that Tennessee Code Annotated, title 11, chapter 24 is still supplementary, and not mandatory, authority, and that a municipality can operate its parks and recreation system under authority found in its charter, and that it can also shift from the authority found in Tennessee Code Annotated, title 11, chapter 24 to the authority found in its charter, and visa versa. None of the other "supplementary language" found in Public Acts 1937, ch. 307 that I noted in the analysis of that Act was deleted or changed by Public Acts 1985, ch. 133.
But I am equally convinced that municipalities which operate a recreation system under Tennessee Code Annotated, title 11, chapter 24 are still bound to finance the system, at least partially, through the "special" playground and recreation tax provided for in that statute. There have been no changes in Tennessee Code Annotated, title 11, chapter 24 which have disturbed the recreation financing methods set out in Public Acts 19376, ch. 307. The authority of a municipality to "appropriate funds" for parks and recreation facilities provided for by Public Acts 1985, ch. 133 [Tennessee Code Annotated, section 11-24-103] may be broad enough to include appropriations from general revenues, but that language is no broader than was the general appropriations authority language found in Public Acts 1937, ch. 307.
In any event, the "special" tax appears to be mandatory. In fact, because its levy and collection is so specifically set out in the statute, it is arguably the exclusive method of financing parks and recreation systems operating under Tennessee Code Annotated, title 11, chapter 24.
If the city is operating its parks and recreation under Tennessee Code Annotated, section 11-24-103(2), the board of mayor and aldermen's operational authority over the "Recreation Commission" is limited. As I read that provision, the board of mayor and aldermen's operating powers are almost wholly delegated to the recreation commission [or board], including the power to hire the parks and recreation director and other employees. If it operating its parks and recreation system under the authority of its charter, it can administer the system as it chooses, including splitting certain personnel functions between the recreation commission and the board of mayor and aldermen. That is, of course, if my analysis is correct.
I understand that a similar opinion I gave a city on basically the same question has raised such an uproar that it has asked for an attorney general's opinion on the scope of Tennessee Code Annotated, title 11, chapter 24. I do not know when that will be forthcoming.
In response to the mayor's question relative to the authority of the recreation commission to issue bonds, a good argument can be made that, read together, Tennessee Code Annotated, sections 11-24-103, 11-24-104 and 11-24-107 give a park commission established under Tennessee Code Annotated, section 11-24-103(2) the authority to issue bonds without approval of the board of mayor and aldermen. However, I suspect that was not the intention of the Legislature in passing those provisions; that Tennessee Code Annotated, section 11-24-107, which gave the governing body the authority to issue bonds, was supposed to stand alone. It seems inconsistent that the Legislature would give a recreation board or commission the authority to issue bonds bootstrapped to other provisions of the same title, but that Tennessee Code Annotated, section 11-24-106 would be so solicitous of the potential expense to a municipality that a gift of land or money might impose on a municipality that the municipal governing body could reject the gift.
But that is not the principal reason a recreation board or commission has no such independent authority. Broad power was granted recreation boards and commissions established under Tennessee Code Annotated, sections 11-24-103--104, but nowhere do those sections, or any other provision in Tennessee Code Annotated, title 11, chapter 24, expressly give them the authority to issue bonds. One can imply that authority from a collective reading of the statutes cited above, but the authority to issue bonds must be "specially" conferred." (Weil, Roth & Co. v. Mayor of Newbern, 126 Tenn. 223, 148 S.W. 689 (1912), particularly at 261-265 and the cases cited therein). Such authority is not specially conferred--it must be bootstrapped--on recreation boards and commissions anywhere in Tennessee Code Annotated, title 11, chapter 24. Where there is a question of whether a municipal instrumentality has the authority to issue bonds, I believe the courts would resolve the issue against the instrumentality.
Nothing in the Government Public Obligations Act of 1986 (Tennessee Code Annotated, title 9, Chapter 21) supports the proposition that recreation boards can issue bonds without local government approval. That Act is the comprehensive general law under which all municipal bonds must now be issued. I find no language there giving such boards the authority to issue bonds. The definition of a "Local government instrumentality" contained in the Act (Tennessee Code Annotated,m section 9-21-105(15) might fit a recreation board; however, nowhere in the Act is it given to such instrumentalities the authority to independently issue bonds.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant