June 26, 2006
You have the following questions:
1. Can a member of the utility board organized under the Electric Plant Law of 1935, serve in that capacity without taking the oath of office?
2. What are the effects of any action taken by a utility board member who has not taken the oath of office?
3. Can a utility board member who is the chairman or chairman pro tem of the board sign documents for the board if he has not taken the oath of office?
I compress those questions into two and answer them below.
However, because your question does not expressly say that the utility board member in question did not take the oath office, only that " (i.e. [It is] not on file in the recorders [sic] office, no record of the oath having been administered)." I suspect that if the utility board member alleges he actually took the oath of office, his allegation is subject to being proved or disproved by the testimony of other members of the board or of other parties present when he alleges he took the oath. But for the purposes of your question, I will assume that the utility board member does not allege that he took the oath of office.
The Electric Power Plant Law of 1935 is codified in Tennessee Code Annotated, '7-52- 101 et seq. Tennessee Code Annotated , '7-52-109 says that:
Each member shall give such bond, if any, as may be required by resolution of the governing body, and shall qualify by taking the same oath of office as required for members of such governing body.
Section 3.07 of the City Charter provides that " Before a person takes any office in the city government, he shall subscribe to the following oath or affirmation, administered by a magistrate, judge, the mayor or the city recorder or by any other person authorized by law to administer oaths" [there follows the prescribed oath].
Is taking the oath of office mandatory or simply directory on the part of a utility board member?
The oath of office is mandatory.
That answer is supported most recently by the Tennessee Supreme Court in State ex rel. Wyrick v. Wright , 678 S.W.2d 612 (Tenn. 1984). There a Rockwood City Councilman died before taking the oath of office. The question was whether he had taken office by virtue of his election even though he had not taken the oath office. The Rockwood City Charter expressly provided that city councilmen " shall" take an oath of office before entering upon the duties of their offices. He did not hold office at his death because he had not taken the oath of office, held the court, reasoning that:
In State ex rel. Gann v. Malone , 131 Tenn. 149,172 S.W. 257 (1915), the Tennessee Supreme Court stated that when the statute required the taking of an oath of office, the elected officer does not qualify and the term of office does not commence until the prescribed oath is taken....Other authorities have recognized that the statutory requirement of taking the oath of office is mandatory rather than directory and the term of office does not commence until the oath is taken. See City of Evansville v. Brown, 171 Ind. App. 284, 356 N.E.2d 691 (1976); Kohler v. Cobb, 31 N.J. 369, 157 A.2d 681 (1960); Hickey v. Hargraves, 194 Ark. 64, 105 S.W.2d 88 (1937); Logan County Bd. Of Educ , 241 Ky. 166, 43 S.W.2d 691 (1931); see also R. Cooley, Handbook of the Law of Municipal Corporations '57, at 206-07 (1931); 3 E. McWuillen, The Law of Municipal Corporations '12.97 (3rd ed. 1982); 2 C. Sands & M. Libonati, Local Government Law '10.18 (1981).... It follows that the office to which Cole was elected was vacant on July 1, 1983, and because of Cole' s failure to take the oath and qualify prior to his death on July 8, it remained vacant until filled by the election of Wright on July 18, 1983, in accord with Article IV, Section 3 of the Rockwood City charter. [At 64-65.]
What is the effect of the failure of a utility board member to take the oath of office with respect to the official actions he has taken up to the point that it is discovered that he did not take the oath of office?
The utility board member was a de facto officer, and the votes he cast (and other acts he may have performed as chairman of the board), at least to the point at which the problem that he had not taken the oath of office was brought to the board s attention, were legal. Needless to say, he needs to immediately take the oath of office.
It is said in Heard v. Elliot, 116 Tenn. 150 (1905), that:
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised, first, without a known appointment or election, but under such circumstances of reputation or acquiescence as was calculated to induce people, without injury, to submit to or involve his action, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer had failed to perform some precedent requirement or condition, as to take an oath , give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such. [At 156] [Citing a multitude of earlier cases.] [Emphasis is mine.]
The significance of being an officer de facto, is that the acts of de facto officers are generally valid. [See County Clubs, Inc. v. City of Knoxville, 395 S.W.2d 789 (1965); Butler v. Cocke County, 671 S.W 847 (Tenn. Ct. App. 1984); Smith v. Landsden, 370 S.W.2d 557 (1963); Inman v. Brock , 622 S.W.2d 36 (Tenn. 1981); Waters v. State ex rel Schmutzer , 583 S.W.2d 756 (Tenn. 1979); Weakley County Municipal Electrical System v. Vick , 309 S.W.2d 792 (1957).]
Assuming the utility board member' s appointment was otherwise valid, he clearly held office " under color of a known and valid appointment or election. "
The specific question of whether a person who had not taken an oath prescribed by law was a de facto officer has been an issue at least twice in Tennessee. In Kelley v. James Story , 53 Tenn. 202 (1871), a deputy court clerk performed some duties without having taken the prescribed oath of office. Holding that the deputy court clerk was a de facto officer, the Court pointed to Farmers & Merchant Bank v. Chester , 25 Tenn. 458 (1848), as being " conclusive on this question." In that case, deputy court clerks were authorized to take deed for probate. Rose, took a deed for probate, but he had not taken the oath of office for deputy court clerk. It was held that Rose was a clerk de facto. Pointing to yet another case, the Court said:
Judge Wright says in the case of Venable v. Curd, 2 Head, 586: " No principle is better settled than the acts of an officer de facto are valid when they concern the public or the right of third persons who have an interest in the act done, and the rule has been adopted to prevent a failure of justice." The rule is different when he acts for his own benefit, but when strangers or the public are concerned, who are presumed to be ignorant of the defect of title in the supposed officer, his act is always held good.
Here the party was publically acting as clerk in the office, the public had no notice of the failure to take the oath of office, and every reason applies to favor the validity of the act, to be found in any case in which the rule has been recognized. [At 206] [Emphasis is mine.]
Country Clubs, Inc. v. City of Knoxville , 395 S.W.2d 789 (1965), although it does not deal with the failure of a public officer to take an oath prescribed by law, is also instructive on the law of de facto offices where the officer at issue has been validly elected. There the plaintiff sought to have the office of Mayor of the City of Knoxville declared vacant because Mayor Rogers had failed to file a record of his campaign expenses as required by the city' s charter. The city' s charter provided that " ...any elective officer, failing to comply within the requirements of this act shall be disqualified from holding the office he seeks, or to which he has been elected." [At 790] One of the issues in that case was whether a city employee fired by Rogers had standing to bring the suit as a taxpayer.
Holding that the answer was no, the Court reasoned that the fired city employee had suffered no special injury because all of Roger' s acts were " at least the acts of a de facto Mayor.... " [At 793] Said the Court on that point:
It is enough to say that when a person is occupying a public office and performs the duties of this office he is a " de facto officer," even though he may not have legally been appointed or elected to the office where he holds apparent right under color of title. The bill here shows that Rogers did receive the majority of votes and
was then sworn in as Mayor, but the basis of attacking him as a usurper in this office is that he failed to comply with Section 92 of the Charter.... The law validates the acts of " de fact" officers as to the public and third persons on the ground, though not officers de jure, they are in fact officers whose acts, public policy requires, should be considered valid....[At 793] [Emphasis is mine.]
If the utility board member was validly appointed except as to taking the oath of office, both as to the office of utility board member, and as to the office of chairman of the board, he held his office " by apparent right under color of title." For that reason, he was a de facto officer and his acts are treated as legal.
Sidney D. Hemsley
Senior Law Consultant