What are the rights and powers of a member of an ex officio member of the county library board, under Tennessee Code Annotated, section 10-5-102?
The ex officio member of the county library board has the same rights and powers as members of the county library board, including a voice and a vote.
Tennessee Code Annotated, section 10-5-102(b), provides, in pertinent part, that "A member of the regional library board who is not an active member of a county library board is hereby designated an ex officio member of such county board. A member of the regional library board may be an active member of a county library board." That statute produces a case of having your cake and eating it, too.
Neither Tennessee Code Annotated, section 10-5-102(b), nor any other statute I can find, prescribes the rights of ex officio members of boards in Tennessee in general, or of county library boards in particular. However, cases from other jurisdictions hold 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 such ex officio members. Seiler v. O’Maley, 227 S.W. 141 (Ct. App. Ky. 1921), appears to be the principle case in this area. In that case the Court declared that:
.....[W]e 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.] [Emphasis is mine.]
It was also held in Louisville & Jefferson County Planning & Zoning Commission v. Ogden, 210 S.W.2d 771 (Ct. App. Ky. 1948), citing Seiler, that, "But ex officio members of a public body are members for all purposes and must be counted in determining the presence of a quorum." [At 774] That was true even where the ex officio members did not ordinarily attend meetings.
Barber Pure Milk Co. v. Alabama State Milk Control Board, 156 S.W.2d 351 (1963), also 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, cited 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.]
I admit those cases came as a surprise to me.