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Reviewed Date: May 30, 2017
Removal of Members of Limited Purpose Appointed Boards and Commissions for the Purpose of Promoting Racial Balance
MTAS was asked whether the city can remove all members of present boards and replace them with membership more reflecting the minority population of the city.
Knowledgebase-Removal of Members of Limited Purpose Appointed Boards and Commissions for the Purpose of Promoting Racial BalanceAugust 12, 1996 You have the following question: Can the city remove all members of present boards and replace them with membership more reflecting the minority population of the city? The answer is that the members of most of the boards are probably tenured officers for the terms to which they were appointed. In addition, I can find no cases where the courts have mandated removal of members of limited purpose appointed boards and commissions for the purpose of promoting racial balance. It is not always easy to determine whether a person appointed to a board or commission is a tenured officer. However, Sitton v. Fulton, 566 S.W.3d 885 (Tenn. 1978), defined the term “public officer” in the course of holding that the Director of Law of the Nashville-Davidson County Metropolitan Government was an officer: ‘Public officer’ has been defined as an incumbent of a public office; an individual who has been appointed or elected in a manner prescribed by law, who as a designation or title given him by law, and who exercises functions concerning the public assigned to him by law. [Citing 67 C.J.S. Officers, sec. 2.]Also, as pointed out at 63 Am.Jur.2d, Public Officers and Employees, Sec. 10, ‘[a] public office embraces the ideal of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent.’ It was not necessary that the charter specifically declare the law director to be an "officer," said the Court. The charter established the position of law director, prescribed the performance of certain duties on behalf of the public for a fixed period of time, set salary, etc., and “The office is one of duration, and the duties connected therewith are continuing and permanent.” That definition appears quite broad. Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tn. Ct. App. 1990) appear to have made it even more broad. There the Court, citing Sitton, held that the city recorder, whose appointment and duties were prescribed by the city charter, was an officer, reasoning that: Plaintiff argues that he is an employee and therefore entitled to the benefit of the town’s employee personnel polices established by ordinance. We cannot agree with this argument. The Bruceton City Charter plainly provides for the appointment of the town recorder by the Board of Aldermen... [Citing the first paragraph of the Sitton definition of a “public officer, cited above.]Gamblin seems to make it clear that the threshold for becoming a municipal officer is quite low in Tennessee. Every board listed below (with the possible exception of the senior citizens advisory board) is a board prescribed by the city charter and/or the state law. Moreover, the charter and particular statute in question prescribe the manner of appointment, specific terms of office, and duties that have a continuing and permanent character. The terms of office of most of those boards are also staggered, suggesting continuity. Only the statute providing for a planning commission makes the portion of the membership of the board appointed by the mayor subject to the mayor’s removal at his will. The utility board statute even expressly provides for removal of board members only for cause after notice of charges. Planning Commission TCA 13-4-101 provides for a planning commission of 5 to 10 members appointed as follows: 1 member is the mayor. 1 member is appointed by the city governing body. Remaining members appointed by the mayor, and serve at the pleasure of the mayor. The members of the planning commission are appointed for specific terms, but apparently the mayor can remove at his pleasure the members he appoints. Board of Zoning Appeals TCA 13-7-205 provides for municipal boards of zoning appeals (BZAs). Under that statute the city governing body appoints the members of the BZA for specific terms. Unfortunately, it is not clear whether the city governing body can shorten such terms. Under TCA 13-7-106, members of county BZAs can be removed “for cause upon written charges and after a public hearing.” No such provision is found in TCA 13-7-205 or in any other statute governing municipal BZAs. However, the better view is probably that they are officers whose terms cannot be shortened except for cause. Park Commission The park commission of 7 members is established under chapter 4, section 3 of your City Charter. One member is appointed by the mayor from among the membership of the board of mayor and aldermen, and the remaining members are appointed for terms of five years by the board of mayor and aldermen. Except for the member appointed by the mayor, the members of the park commission are probably officers whose terms cannot be shortened except for cause. Library Board Chapter 4, section 6 of your City Charter established a library board pursuant to TCA 10-3-101 et seq. Under that statute, members of library boards are probably officers appointed for specific terms that cannot be shortened except for cause. Utility Board Chapter 4, section 7 of your City Charter establishes a utility board under TCA, title 7, chapter 52, which is the Municipal Electric Plant Law of 1935. Under that law, members of the utility board are appointed for specific terms, except that the city’s chief executive officer, with the consent of the city’s governing body, can appoint to the utility board a member of the governing body, or the city manager, for a term fixed by the chief executive officer (not beyond the term of the appointee’s office.) [TCA 7-52-103] A member of the utility board can be removed from office for cause upon 3/4s vote of the governing body of the city, after “preferment of formal charges by resolution of a majority of the members of such governing body.” Members of the utility board are undoubtedly officers whose terms cannot be shortened except for cause. The city’s governing body can abolish the utility board, but the city’s governing body itself would become the utility board. [State ex re. Patton v. Mayor of Lexington, 626 S.W.2d 5 (Tenn. 1981).]Industrial Bond BoardI assume that the industrial bond board is an industrial development corporation established under TCA 7-53-101 et seq. A board of directors of a minimum of 7 members is prescribed by that statute. The members are “elected” by the municipal governing body for specific terms. Their terms probably cannot be shortened except for cause. Airport Board I have been unable to determine for sure under what statutory authority your airport operates; I assume it is probably TCA 42-5-101 et seq. That statute does not prescribe a term for airport board members, but apparently leaves that issue to local resolution. [TCA 42-5-112] Senior Citizens Advisory Board I have been unable to determine under what authority the senior citizens advisory board is organized. Let me know if I can help you further in this or any other matter. Sincerely, Sidney D. Hemsley Senior Law ConsultantSDH/