|Legal Opinion: |
Text of Document: I have researched this question and reached the conclusion that an alderman cannot run for both re-election and for the office of mayor, due to the two offices being “incompatible offices” and the clear intent of the city charter that these offices be held by different people.
Our election law, at T.C.A. 2-5-101(f)(5) states:
(5) No candidate, whether independent or represented by a political party, may be permitted to submit and have accepted by any election commission, more than one (1) qualifying petition, or otherwise qualify and be nominated, or have such candidate's name anywhere appear on any ballot for any election or primary, wherein such candidate is attempting to be qualified for and nominated or elected to more than one (1) state office as described in either § 2-13-202(1) , (2) or (3) or in article VI of the Constitution of Tennessee or more than one (1) constitutional county office described in article VII, § 1 of the Constitution of Tennessee or any other county-wide office, voted on by voters during any primary or general election.
You will note this paragraph prohibits a candidate from running for more than one “state office.” Yes, “state office” is defined as a state position, so this is not a clear prohibition against this happening in a city election. However, Tennessee Attorney General Opinion 02-012, examines the doctrine of “incompatible offices” when asked about whether a person could run for both sheriff and constable. This AG opinion provides as background the following:
The request states that the same individual has obtained petitions to qualify to appear on the ballot as a candidate for the office of sheriff and the office of constable. The request includes an opinion from the Division of Elections in the Tennessee Department of State. That opinion concludes that a person may run for both offices at the same time, but may not serve in both offices if the two are incompatible. As further discussed below, for a number of reasons we think the same individual is probably prohibited under Tenn. Code Ann. § 2-5-101(f)(5) from running for both offices in the same election.
The opinion then examines the “incompatible offices” doctrine:
Our Office has noted that an individual might be prohibited from holding two offices if they are incompatible under the common law doctrine prohibiting an individual from holding incompatible offices. Op. Tenn. Atty. Gen. 00-159 (October 17, 2000); State ex rel. v. Thompson, 193 Tenn. 395, 246 S.W.2d 59 (1952) . The question of incompatibility depends on the circumstances of each individual case, and the issue is whether the occupancy of both offices by the same person is detrimental to the public interest, or whether the performance of the duties of one interferes with the performance of those of the other. 67 C.J.S. Officers § 27 at 279-80 (1978).
Applying the same reasoning to the situation in your city, if this candidate were elected to both offices, it would clearly be “detrimental to the public interest,” as the performance of duties of either office would “interfere with the performance of those of the other.” Under the municipal Charter, four aldermen are elected, and three aldermen and the mayor constitute a quorum. The mayor is the presiding officer of the board. If this candidate is elected to both offices, he cannot under any law, much less the charter, be permitted to vote twice on any matter. All elected board members would therefore have to be present for a quorum to be reached and any business to be conducted. His absence would effectively shut down city business. More importantly, this situation would water down the representation of voters on the governing body, which is clearly detrimental to the public interest. Also, the charter addresses the offices of aldermen and mayor as being separate, and the election of one person to two of the board positions would alter the board to such an extent that, in my opinion, the intent of the charter would be violated.
The fine line – can he be a candidate for both offices, then accept only one office if he is elected to both? It is my opinion that the intent of the charter is that these offices be held by different people. That is the basis of representational government – your elected official represents you, and not a voter in another state or district. By setting up a governing body consisting of four alderman and a mayor, the charter clearly anticipates that these offices are separate, and are to be held by different people. An example of language in the charter treating these as offices to be held by different people follows:
The Aldermen shall act on all matters as a body, and no member shall seek individually to influence the official acts of any officer or employee of the City. The Board shall deal with various agencies, officers and employees of the City, solely through the Mayor.
The mayor is the assigned official to deal with agencies, officers and employees of the city, while the aldermen are prohibited from taking that role.
Also, with regard to elections, the charter states:
On the first Saturday in May of 1993, a nonpartisan, at large, general municipal election, open to all electors, shall be conducted by the county election commission to elect a Mayor and four (4) Aldermen. (italics added)
By using that phrase “a Mayor and four (4) Aldermen,” the charter clearly anticipates the election of different people to those positions.
Based on this charter language, on my opinion, the election commission would be justified in refusing to place his name on the ballot for both offices.
Considering the process of “qualifying” for office, it appears a candidate cannot qualify for two offices on the same ballot.
McQuillin’s Law of Municipal Corporations contains the following statements:
Under a law providing that one shall not hold two offices at the same time, it has been held that the eligibility relates not to the situation on election day, but on the day he or she qualifies to perform the duties of the office.
Based on this rule, one cannot legally be qualified for two offices on the same ballot. What happens if he is elected to both offices? The results would be inconclusive, and another election would have to be held, presumably at the city’s expense:
The fact that the candidate receiving the highest number of votes is ineligible will not entitle the next highest to the office . This is the prevailing rule in this country.
So if the outcome of the election is that this candidate receives the highest number of votes for both offices, he would have to select one office and then another election would have to be held to fill the remaining office. Such a possible result further leads me to conclude that allowing a person to be a candidate for two offices on the same ballot is a violation of public policy, as public policy requires clear election ballots and results, rather than permitting the possibility of inconclusive outcomes and the nullifying of votes cast in that election.
Although there is no clear law or rule on point with this situation, in my opinion one person may not qualify to run for two offices on the governing body. This opinion is based on the general intent of our state election law, at T.C.A. 2-5-101, that no person hold two offices, the doctrine of “incompatible offices,” and the clear intent of the municipal Charter.
I hope this is helpful,
Melissa A. Ashburn
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service