August 14, 1997
You have several questions arising from the following facts: The charter of the city provides for 7 aldermen, one of whom is elected mayor by the board of mayor and aldermen. The mayor (and the city attorney) recently resigned. At a regular meeting of the board of mayor and aldermen on August 5, the board made an attempt to appoint an alderman to replace the vice-mayor, who moved up to the office of mayor. The mayor attempted to both make a motion to nominate a person alderman, and to vote for the same person as alderman. He was told by the board that the mayor could not make motions or vote except in the case of a tie. Two persons, a man and a woman, were subsequently nominated for the office of alderman at which time nominations ceased. The first vote taken was on the man. The vote was two aye, three no. No vote was ever taken on the nomination of the woman because the mayor and two aldermen resigned and walked out after the vote failed with respect to the man. The three remaining aldermen continued to conduct city business, including the adoption of a tax rate. One alderman has since submitted his resignation to you in writing. Your questions, and their brief answers are:
1. Did the woman nominated to the office of alderman become an alderwoman?
2. Are the resignations of the three aldermen who walked out of the meeting effective?
No. The resignations will be effective when they are accepted by the city council.
3. Was it legal for the three remaining members of the board to continue the meeting?
4. What constitutes a quorum to do business, and if the resignations of the three board members who walked out of the meeting are accepted, how can there ever be a quorum for the city to appoint new aldermen and to conduct other city business?
A quorum before the resignations of the three aldermen in question are accepted is four members of city council. After their resignations are accepted, given the fact that there is already one vacancy on the city council, a quorum would be two members of the council.
The board can achieve a quorum at the meeting at which the resignations of the aldermen are accepted by persuading at least one of the aldermen to attend that meeting (assuming that its three remaining members also attend the meeting). The resigning alderman who attended that meeting would not have to vote on his resignation, only be present so that a quorum can be achieved. However, after their resignations are accepted, the aldermen in question can, if they choose, continue to serve as aldermen until their successors are appointed and qualified.
The answers to all four questions are analyzed in more detail below.
Your city charter provides as follows with respect to those questions:
- The board of mayor and aldermen consists of seven aldermen, who shall elect one of the number mayor. [Sections 3 and 5.]
- The mayor serves as the presiding officer, and cast the deciding vote in case of a tie. [Section 7.]
- "[A] majority of all the Aldermen shall constitute a quorum for the transaction of business." [Section 7.]
- In the event the mayor is absent, the board elects one of its members to preside over the deliberations of the board, “in which event one more than a quorum shall be present.” [Section 7.]
- The board of mayor and aldermen fills vacancies in the office of mayor from among its membership, and fills all other vacancies in the board. [Section 7.]
The board of mayor and aldermen have the power to "fill any and all vacancies occurring in the board....whether said vacancies occur on account of death, removal, resignation or other cause."
The charter does not provide for the number of votes required to pass ordinances or any other measures, except that in Section 18, the board can remove certain officers by a 2/3s vote, and the mayor can fill those vacancies with the consent of a majority of the board.
Under Section 7 of the city charter, the board of mayor and aldermen fills vacancies in the office of mayor and of aldermen. If no vote was taken by the board on the woman nominated to that office, it is impossible for the board to have appointed her. In addition, the Tennessee Open Meetings Law requires that the votes on measures by local governments be recorded by the ayes and nays of each member of the board. [Tennessee Code Annotated, section 8-44-104.]
Tennessee Code Annotated, section 8-48-101, provides that, "Any office in this state is vacated by.... (2) The incumbent's resignation, when permitted by law." However, that statute does not provide how a resignation is effected. It is said in 3 McQuillin, Municipal Corporations, section 12.124, that:
Where the holding of an office is not compulsory, in the absence of legal provision, resignation upon delivery to the proper authorities takes effect without acceptance; and in such cases a successor may be appointed or elected without the formal acceptance of the resignation. However, the general rule, apart from the legal provision, is that mere presentation of a resignation does not work a vacancy, and a resignation is not complete until accepted by the proper authority....In the absence of any special rule prescribing to what authority a resignation should be presented, the proper authority to accept a resignation is that which has the power to fill the vacancy.
Tennessee appears to follow the general rules that the resignation is not effective until it is accepted by proper authority, and that the proper authority is the authority which has the power to fill the vacancy. In State ex rel. v. Bush, Sheriff, 141 Tenn. 229 (1918), it was argued that a person could resign from office pending an ouster suit brought against him. In declaring that he could not, the Court said that:
This argument is ill founded. It assumes that such officer's resignation will be accepted by the authority authorized to select his successor. We cannot suppose that a resignation would be accepted under such circumstances. It is well settled that a resignation is not complete until accepted by competent authority. [At 236.]
In Murray v. State ex rel. Luallen, 115 Tenn. 303, 89 S.W.101 (Tenn. 1905), it was held that the county judge had the authority to accept the resignation of a justice of the peace. [At that time, justices of the peace were members of the county governing body]. However, the court took pains to point out that the county judge was vested with that authority under the statutes governing county courts. The Court in Bailey v. Greer, 468 S.W.2d 327 (Tenn. 1971), citing Murray, thought it necessary to reach the same conclusion, even though the acceptance of the resignation of the justice of the peace was not challenged in that case. For that reason, the city recorder is not the proper authority to accept a resignation of an alderman; she is not statutorily vested with such authority. Section 7 of your city charter makes the city council the appointing authority with respect to resignations.
It is necessary here to speak more of Greer because it creates confusion over the right of the aldermen whose resignations are accepted to continue to function in their offices until their successors are elected and qualified. In that case Squire Stewart tendered, and the county judge accepted, his resignation immediately before a meeting of the Sequachie County Court. The county judge refused to consider Squire Stewart a member of the Court for the purposes of ascertaining a quorum. The plaintiffs argued that although Squire Stewart had resigned before the meeting, he was still a member of the county court for the purposes of determining the presence or absence of a quorum at that meeting, and that his right to vote at the meeting was preserved [even though he did not attend the meeting]. They pointed to Article 7, Section 5 of the Tennessee Constitution, and to Tennessee Code Annotated, section 8-1804 [now section 8-18-104], both of which provide, among other things, that "Every officer shall hold office until a successor is elected or appointed and qualified," and to U.S ex rel Watts v. Justices of Lauderdale County, 10 F. 460 (1882).
An explanation of Watts is necessary for an understanding of Greer. In Watts a person obtained a judgment against Lauderdale County, Tennessee, in the U.S. Circuit Court for the Western District of Tennessee. That Court issued a writ of mandamus to requiring the county court to levy and collect a tax to pay the judgement. Twenty-one of the 26 justices of the peace comprising the Lauderdale County Court resigned, obviously leaving the county court without a quorum. The Court, pointed to the Tennessee Constitution, Article 7, Section 5, in declaring that the resignation of the 21 justices of the peace was not effective until their successors were appointed and qualified. The Court reasoned that its construction of Article 7, Section 5, prevented:
...an epidemic of resignations, caused by a conspiracy to defeat the law, which will, and has in this case, destroyed the machinery of local government, and paralyzed all governmental functions so far as they pertain to those assumed by these respondents. [At 465.]
However, the Tennessee courts, including Greer , have since expressly rejected Watts. In State ex rel. v. Grace, 113 Tenn. 11 (1904), the Court declared that:
The constitutional and statutory provisions in Tennessee, providing that every officer shall hold his office until his successor is elected or appointed and qualified, do not apply to cases of this character....The object of these provisions was to change the common law, by which the official life of all officers elected for a limited time ended upon the expiration of such term, and authorize, not compel, officers to hold their offices until their successors are qualified; and the primary purpose of the constitutional provision was, for obvious reasons, to extend the official life of all officers under the then existing State government until their successors could be elected under the new constitution. [At 17.]
Greer also flatly declared that the Watts court had gone too far in the interpretation of Article 7, Section 5 of the Tennessee Constitution:
The legal conclusions expressed in that opinion extend beyond the legal proposition necessary for disposition of the case. In said case, the ultimate conclusion reached was that, where Justices of the Peace had previously been served with mandamus to perform a duty, they could not avoid the performance of the command of the writ by resignation because, under Article 7, Section 5 of the Constitution of Tennessee, the power to act remained in them from the date of their resignation until the designation of their respective successors.
In short, the District Court held that their duty to obey the mandamus continued as long as the power to obey continued, in other words, until election of successors.
Other than the continuing duty to obey a mandamus the effect of a resignation upon the occupancy or vacancy of the office, or their exercise of its powers were not involved in Unites States ex rel. Watts v. Justice of Lauderdale County and the opinion must be considered in this light.
Furthermore, we find the complainants’ interpretations of the effect of that opinion to be in conflict with T.C.A. 8-2801 [now 8-18-101 and also find that the District Court’s opinion was not followed in a later opinion of our Supreme Court . [Speaking of Grace, above.] [At 333.]
But Greer speaks further about the application of the holdover provisions in Article 7, Section 5 of the Tennessee Constitution and in Tennessee Code Annotated, section 8-18-101, to resignations. Quoting Grace, the Court said:
The object of these provisions was to change the common law, by which the official life of all officers elected for a limited time ended upon the expiration of such term, and authorize, not compel, officers to hold their offices until their successors are qualified. [The Court's emphasis.] .... When such an officer resigns and says in effect, "I cannot or will not continue to carry on this responsibility which has been placed upon me," and then follows such resignation with his refusal to attend a session of the forum to which he has been elected, he sheds the responsibilities of the office and the obligations to perform its functions. Until his successor is qualified, the office is vacant for most purposes. However, until the successor is qualified, the officer who resigned may (not must) exercise the prerogatives of the office. If he does not see fit to do so, then no one may claim any right grounded upon his supposed continuance in office wherein he refuses to function.... Squire Stewart’s resignation was accepted and he has not in anywise attempted or offered to exercise his functions either by attendance or voting. Thus, by his own voluntary act of resignation and failure to function, his office was, on the date of the meeting in question, vacant.” [At 333-335.]
Grace and Greer, then, stand for the propositions that after the acceptance of the reassignation of a public officer, the officer may, if he chooses, continue to function in that office until his successor is appointed and qualified, and that if he attends meetings of the city council he would be counted for the purposes of ascertaining a quorum, and could continue to vote on matters until his successor is appointed and qualified.
The reason that proposition is important is that the same rule governing holdovers contained in Article 7, Section 5 of the Tennessee Constitution and in Tennessee Code Annotated, section 18-8-104, applies to municipalities under State ex rel. Wyrick v. Wright, 678 S.W.2d 61 (Tenn. 1984.) Therefore, at first glance, if the resignations of the three aldermen in question are accepted by the city council, they could continue to function as aldermen until their successors were appointed and qualified. However, Wyrick, also expressly rejects that theory where the incumbent holds no identifiable office. The aldermen of your city are elected at large; therefore, an individual alderman has an office, but no office that can be identified as his office. For that reason, if the resignations of the aldermen in question are accepted, their offices are vacant for all purposes.
A public officer can also abandon his office. It is said in 3 McQuillin, Municipal Corporations, section 12-123, that:
An office may be vacated by abandonment. Abandonment may be treated as a constructive resignation, e.g., where an alderman refuses to attend the meetings of the council. A resignation by implication may take place by abandonment of official duty without leave of absence or without good cause shown. But what acts will constitute abandonment or implied resignation of an office depend upon the circumstances of the particular case and the controlling law....Abandonment is ordinarily a question of intention that may be inferred from acts or conduct, but mere nonuser of office or employment may be insufficient. Thus, a mere failure to attend regular meetings of the board does not per se constitute resignation of the office. The absence must be so long continued as to raise the presumption that abandonment of office was intended....
Likewise, 63C Am. Jur.2d, Public Officers and Employees, section 115, says, "A public office may become vacant ipso facto by abandonment. If the acts and statement of the public officer clearly indicate an absolute relinquishment of the office, a vacancy is created thereby without the necessity of a judicial determination." With respect to abandonment by absence, 63C Am. Jur.2d, Public Officers and Employees, section 163, says:
The abandonment of an office may be shown by the action of the officer in leaving the state or changing his or her residence from the territorial jurisdiction of the office. Mere temporary absences without intent to change domicil or to abandon an office or cease to discharge its duties will not terminate title to an office on the grounds of nonresidency. Furthermore, a temporary absence is not sufficient to constitute an abandonment of an office and does not ipso facto create a vacancy where no statute fixes the period beyond which the absence must not continue.
The only Tennessee case I can find on abandonment of office adds little that helps in the determination of what constitutes intent to abandon office. In Kelly v. Woodlee, 133 S.W.2d 473 (Tenn. 1939), a Tennessee attorney general was elected to the U.S. Senate but was not sworn into office for 60 days. During that period he performed the duties as attorney general, but drew no salary as U.S. Senator. He had not abandoned the office of attorney general, held the Court. Generally, an intent to abandon office is essential to the finding of abandonment, and there was no such intent demonstrated in this case, reasoned the Court. Unfortunately, the Court did not get into the issue of what constituted intent to abandon.
Obviously, it is not necessary to reach the question of whether the alderman who submitted a written resignation abandoned his office. However, if the remaining aldermen do not submit a written resignation, it would be more difficult for the board from an evidentiary standpoint to prove their intent to resign unless they fail to attend future meetings of the city council and they otherwise fail to act as aldermen. It seems wise to me for the city to avoid the question of whether the aldermen in question have abandoned office. The answer to that question might require the passage of several meetings that they did not attend. If the three aldermen in question really intend to resign, that intent should, if possible, be confirmed as soon as possible, preferably before the meeting at which their resignations are accepted.
Under Section 7 of the charter, "In the event the Mayor shall be temporarily absent, the Board shall elect one of its number to preside over the deliberations of that body, in which event one more than a quorum shall be present." Under the same section of the charter, a quorum is a majority of "all the Aldermen." Sections 3 and 5 of the charter provide for a board of mayor and aldermen of seven members, one of whom is the mayor selected by the board from among its membership. Is the mayor an aldermen for the purpose of calculating a quorum? It is not necessary to answer that question because a majority of either six, or of seven, members of the board is obviously four members.
However, it is necessary to answer the question of whether a mayor who has resigned, but whose resignation is not accepted is "temporarily absent" for the purposes of Section 7 of the charter, because if he is only temporarily absent, "one more than a quorum must be present." One more than a quorum is five members. I can find no law on that question in that context in Tennessee or any other state. However, Black's Law Dictionary, 6th Ed., 1990, defines "Temporary," as "That which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration." Surely, it can be said that a mayor who walks out of a meeting, declaring that he resigns, and who does not appear at the next meeting is absent at least for an indefinite period. That being so, he would not be temporarily absent under those circumstances, and one more than a quorum would not be necessary to consider the acceptance of the resignations in question.
Tennessee Attorney General's Opinion [TAG], 79-183, opines that where three of five aldermen resigned, a majority of the remaining aldermen represented a quorum and could appoint new aldermen. Arguably, the opinion is correct as to the calculation of a quorum after the resignations in that case, but it completely bypasses the problem that resignations are not effective upon submission but upon acceptance, and that the number of aldermen from which a quorum is calculated is not reduced until the resignations are accepted. When your city's three aldermen "resigned" and walked out of the meeting on August 5 here is how the quorum picture stood: the charter provided for seven aldermen; there were six sitting aldermen; a quorum of either of either six or seven members is four members; and the exit of three aldermen left only three present, at least one less than a quorum (and perhaps two less than a quorum, if the mayor's absence is counted temporary under that circumstance). We will consider Tennessee Attorney General's Opinion 79-183 further in the answer to question 4.
The logic in the answer to questions 1--3 appears to produce a Catch-22: the resignations of the three aldermen of the city are not effective until they are accepted by the city council, but given the fact that there is already one seat vacant on the council, if they refuse to attend future meetings of the city council there can never be a quorum, and their resignations can never be accepted. However, the city council does have some options to help it avoid that result.
Your city has adopted Roberts Rules of Order, Newly Revised [RRONR], to govern the transaction of business before the city council. Section 39 of RRONR provides that, "The only action that can legally be taken in the absence of a quorum is to fix the time to which to adjourn, recess, or take measures to obtain a quorum....A motion that absent members be contacted during a recess would represent a measure in the last category." A Call of the House [in which absent members may be arrested and brought before the house] is also in order with respect to assemblies that have the power to compel attendance. Unfortunately, I see no provision in your city charter authorizing the city council to compel attendance. For that reason, if the city council meets and no quorum can be obtained, the council can recess and can send out representatives of the council to ask the resigning members to attend, at least long enough for their resignations to be accepted.
There is also no reason why sitting members of the council could not in advance of the meeting try to convince the resigning aldermen that their presence at a council meeting is necessary in order to obtain a quorum to effectuate the acceptance of their resignations. It is necessary that at least one of the resigning aldermen be so convinced, assuming that all three remaining aldermen appear at the meeting at which the resignations are considered.
TAG 79-183 gives the city an argument that once the resignations are effectuated, a majority of the remaining members of the city council constitute a quorum. That opinion is based on a city charter that provided for a mayor and four aldermen, and that provided that, "in the case of death, removal or resignation of any officer of said corporation, the Mayor and Aldermen shall fill such vacancy for the unexpired term." The mayor and two of the aldermen resigned. A quorum in that case, that opinion says, was the remaining two members. It cites Bedford County Hospital Board v. Bedford County, 304 S.W.2d 695 (Tenn. App. 1957), in which the court defined a quorum as, "Ordinarily, a quorum means a majority of all entitled to vote." [Citing 18 C.J.S. Corporations, section 719.]
Section 7 of your city charter provides that, "[A] majority of all the Aldermen shall constitute a quorum for the transaction of business." It also provides that, "The Board of Mayor and Aldermen of the town of _____ shall have the power to fill any and all vacancies occurring in the Board..., whether said vacancies occur on account of death, removal, resignation or other cause." Under TAG 79-183's logic, a quorum of the three members of the city council remaining after the three resignations are accepted is two.
Surprisingly, while TAG 79-183 is on solid practical ground, it is on shaky legal ground. A majority of jurisdictions that have considered the question of whether vacancies in office are deducted from quorum requirements have held they are not. [3 McQuillin, Municipal Corporations, sections 13.27 and 13.27.15; 67A C.J.S. Parliamentary Law, section 6.] The definition of "quorum" in Bedford County Hospital Board appears to me totally useless with respect to what would constitute a quorum of your city council following the acceptance of the resignations of the three aldermen. Fortunately, cases in some jurisdictions do permit the deduction of vacancies in the calculation of a quorum where no specific number for a quorum is specified in the charter or other law, and are consistent with TAG 79-183. [62 C.J.S., Municipal Corporations, section 399.] Your city charter contains no specific number of aldermen required to constitute a quorum.
It seems logical that the Tennessee courts would adopt the TAG 79-183 theory that a quorum is reduced by vacancies in office under charters matching the one at issue there. Your city charter matches that charter, and contains no specific number of aldermen required to constitute a quorum. From a practical standpoint, it is essential that TAG 79-183 be correct on that point; otherwise there could never be a quorum under such charters following a mass resignation. However, let me reiterate again that TAG 79-183 does not address the threshold problem that resignations are required under Bush, Grace and Greer to be accepted before they are effective.
It bears repeating here that the city should invest some time and energy into enlisting the help of at least some of the three resigning members of city council to at least attend the meeting of the city council at which the resignations are accepted. They would not even be required to vote on their resignations; their presence is required only to produce a quorum. That is true because there are no provisions in your city charter declaring how many votes are required to pass measures. Where the charter or other law does not prescribe the number of votes required to pass measures, the number required is a majority of those actually voting. [Collins v. Janey, 147 Tenn. 477, 249 S.W. 801 (Tenn. 1923).] Surely, someone in the city can influence at least one or more of the resigning aldermen to attend a meeting long enough for the resignations in question to be accepted.
Let me also suggest a charter change in the 1998 session of the Tennessee General Assembly that expressly provides that:
1. Resignations can be accepted by a quorum of the remaining members of the board.
2. Eliminates the additional quorum requirement during temporary absences of the mayor.
3. Provides for the compelled attendance of members of the city council.
Sidney D. Hemsley
Senior Law Consultant