July 25, 2006
Dear City Attorney:
You have the following question: Was the school board chairman' s appointment to fill the vacancy on the school board legal?
The answer is no.
The city operates under the Modified General Law Manager-Council Charter found at Tennessee Code Annotated , 6-30-101 et seq. Section 6-36-107(b) of that charter contains provisions governing the filling of vacancies, as follows:
A vacancy [on the school board] shall be filled within thirty days by an affirmative vote of a majority of the remaining board members, the appointee to serve until the next regular election at which time a successor shall be elected to fill the unexpired term in the manner specified in '6-31-201, except that the term " chair of the board" shall be read for references to the term " mayor." If a tie vote by the board to fill a vacancy is unbroken for thirty (30) days, the chair shall appoint a qualified person to fill the vacancy....
Except for some language that takes into account the fact that the mayor is the presiding officer of the city's governing body, and the chairman is the presiding officer of the school board, that provision is a carbon copy of '6-32-201 of the city's charter, which provides for the filling of vacancies on the city's governing body.
Unfortunately, the application of '6-36-107(b) is complicated by Tennessee Code Annotated , Title 49, Chapter 2, which governs the election and appointment of members of boards of education in Tennessee. Tennessee Code Annotated, '49-2- 201(a)(1) provides with respect to vacancies on school boards, that, " Vacancies occurring on the board shall be filled by the local legislative body." Tennessee Code Annotated, '49-2-202(e)(1), says that " When a vacancy occurs, the unexpired term shall be filled at the next regular meeting of the county legislative body or at a special meeting of the county legislative body." A question arises in connection with those provisions: Do they apply to, and supercede, '6-36-107(b)?
Tennessee Code Annotated, '49-2-201(a) appears to generally apply to all school boards. Tennessee Code Annotated, '49-2-202(e)(1) expressly applies only to county school boards. However, Tennessee Attorney General's Opinion 96-123, says that:
The Education Improvement Act of 1991 (EIA) provided for a uniform system of governance of county, municipal and special school districts. Part 2 of Chapter 2 of Title 49 now applies to " Boards of Education" rather than " County Boards of education" as before.... [Emphasis is mine.]
In Tennessee Attorney General's Opinion 98-235, the question was whether the City of Cleveland could compensate the city board of education. In opining that the answer was yes, the Attorney General reasoned that although Tennessee Code Annotated, '49-2-202(d), provides that " The compensation of members of the county board shall be fixed by the county legislative body, "
[T]his office has opined that the provisions of the EIA are intended to provide a uniform system of governance of county, municipal, and special school districts and that Title 49, Chapter 2, Part 2, in which the above quoted statute appears, now applies to " Boards of Education" generally rather than only to >county Boards of Education as before passage of the EIA..
If the Tennessee Attorney General is correct, the provisions in Tennessee Code Annotated, ''49-2-201(a)(1) and 49-2-202(e) supercede '6-36-107(b) of the city's charter. Those provisions require vacancies to be filled by the city's governing body; they contain no provision for the filling of such vacancies by the mayor when there is a tie vote. It is the law in Tennessee that the mayor has those powers, and only those powers expressly granted to him in the city charter or in other statutes, or necessarily implied therefrom. [ Weil, Roth & Co. v.
Mayor and Aldermen of Newbern , 148 S.W. 680 (1912); Reeder v. Trotter, 215 S.W. 400 (1919); Anderson v. Town of Gainesboro , 17 TAM 12-27 (1992).] I see no reason why the same rule would not apply to a chairman of the school board.
It is certainly within the authority of the General Assembly to give the school board chair the authority in a municipal charter to break tie votes on school board appointments, but it is equally within the authority of the General Assembly to take away such authority by general law. Arguably, that is what the General Assembly did with respect to the filling of school board vacancies in its passage of the EIA Without success I 've researched and pondered what the courts would do if presented with the question of whether the EIA did that. However, in County of Shelby v. State, 936 S.W.2d 923 (Tenn. Ct. App. 1996), Shelby County argued that " the special provisions of its charter superceded the general law of the EIA relating to the selection of the board of education members because the selection is a governmental or political function." [At 933] The Court rejected that argument, declaring that even in the case of a home rule county:
There is no constitutional provision that prohibits the Legislature from enacting laws which in some form or fashion are contrary to a local law set forth in a county 's home rule charter. To the contrary, there is ample authority for the proposition that where the Legislature acts through general legislation, the Legislature retains power over a county, despite the county's home rule status, and this is true even with respect to functions that are governmental or political in nature. [Citations omitted.] [At 933-34]
The Court pointed out that some of the cases on which the county relied to support the proposition that a general law did not supercede a private act involved " subsequent private acts which modify or contradict previously passed public acts." [At 933] The EIA is, of course, a comprehensive general law, that was enacted long after '6-36-107.
For those reasons, there is a good argument that the provision in '6-36-107 that gives the chair the authority to fill a vacancy on the school board when there is a tie vote to fill such vacancy has been superceded by the above provisions of the EIA covering the subject of filling vacancies on school boards.
But even if '6-36-107(b) is still operative as to the filling of vacancies in the city 's school board, the filling of the vacancy by the chairman was premature. That provision prescribes a two-level process for the filling of vacancies, the first of which applies to vacancies generally, the second of which applies to tie votes:
- Subsection (a) of that charter provision lists the six circumstances under which a vacancy is created on the board of education. The first sentence of subsection (b) says, " A vacancy shall be filled within thirty (30) days by an affirmative vote of a majority of the remaining board members...." [Emphasis is mine.]
- " If a tie vote by the board to fill a vacancy is unbroken for 30 days , the chair shall appoint a qualified person to fill the vacancy." [Emphasis is mine.]
It has been repeatedly said that the word " shall" contained in a statute is mandatory.
But the word " shall" in the first sentence of subsection (b) applies to vacancies generally because the second sentence of subsection itself provides the remedy for the failure of the board to fill a vacancy when that failure is the consequence of a tie vote to fill the vacancy. But the first sentence does not provide a remedy for what happens if the board does not fill a vacancy for more than 30 days that does not involve a tie vote. It simply presumes that the board will do its mandatory duty and fill the vacancy within the prescribed period. For that reason, it is not necessarily peculiar that '6-36-107 would prescribe the remedy for a tie vote, but not for, say, the failure to vote.
In one respect, we need not even reach the question of what happens in the case where the board does not even take any action to fill the vacancy within 30 days, because the school board voted within that time. But in another respect, the question of what happens when a board exceeds its statutory time for the filling of vacancies, and there is no other statutory provision for the filling of such vacancies, or where, as in '6-36-107, the statute providing for the filling of such vacancies is limited, goes to the heart of how much authority courts have to read things into the statute.
A statute in Tennessee's mother state of North Carolina provided that vacancies on school board " shall" be filled within 30 days of the vacancy. The statute was silent on who had the power to fill such vacancies after the expiration of 30 days. The school board voted repeatedly over a six-month period to fill the vacancy, a tie vote occurring each time. The trial court ordered an election to fill the vacancy. In Fogle v. Gaston County Board of Education , 224 S.W.2d 677 (N.C. Ct. App. 1976), the North Carolina Court of Appeals overturned the trial court, saying:
Although the members of the Board of Education have been deadlocked in a four-to-four tie vote on each occasion they have tried to fill the vacancy created by Mr. Traenker's death, there is no statutory or constitutional provision for an alternative method of filling the vacancy. In the enactment of Chapter 906, Session Laws of 2967, it must be presumed that the legislature knew that a voting deadlock would occur in the attempt by the remaining members of the Board of Education to fill a vacancy on the Board. Had the legislature desired an alterative method of filling a vacancy, it would have provided one. It follows that the legislative intent was that the remaining members of the Board, and only the remaining members of the Board, shall fill the vacancy for the unexpired term. Absent a provision for an alternative method of filling the vacancy, the authority of the remaining members of the Board to fill the vacancy is not lost by their failure to have done so within thirty days after the vacancy occurred.... [At 679]
[Also see Westlund v. Smethport Area School District, 236 A.2d 120 (Penn. 1967).]
What was the remedy for persons wishing to force the school board to fill the vacancy in that case? The Fogle Court, in dicta, declared that:
Although the remaining members of the Gaston County Board of Education have failed to perform their statutory duty to fill the vacancy on the Board within thirty days after it occurred, it was error for the trial court to order and election under G.S. 115 B24 to fill the vacancy. Plaintiffs may wish to consider the propriety of an action for a writ of mandamus to compel the remaining members of the board to perform their statutory duty to fill the vacancy on the board. [At 679-80]
That is probably the same remedy available for any failure of the School Board to fill a vacancy within 30 days of its occurrence where there is no tie vote. But Fogle also stands for the proposition that where a statute to fill a vacancy contains limited remedies, the limited remedies stand. Nothing in '6-36-107 gives the chair the right to fill the vacancy where there is no tie vote, and where there is no tie vote not lasting 30 days . The courts cannot manufacture a judicial remedy where a statute provides for how vacancies are to be filled but either does not provide an alternative method of filling such vacancies, or limits the alternative methods as the General Assembly has done in '6-36-107
The second sentence in '6-36-107 clearly gives the chair the right to fill the vacancy only where a tie vote is unbroken for 30 days; it does not give the chair the right to fill all vacancies that have existed for more than 30 days. If the board ties on the vote to fill a vacancy, say, 20 days after the vacancy occurs, the board has 30 days from that date to break a tie. That is not only what '6-32-107 says, what it says is also logical. If the General Assembly's intent was to insure that all vacancies in the board were to be filled within 30 days, it could have simply provided that if a vacancy for any reason remained open after 30 days the chair could make an appointment to fill the vacancy. But the General Assembly made a special provision for the filling of vacancies where there was a tie vote. That special provision accommodates the function of the legislative body of the city by leaving the filling of vacancies solely in its hands, unless there is a tie vote, and the tie vote exists more than 30 days.
The facts indicate that the vacancy occurred on May 25, 2006, and that the board voted to fill the vacancy on June 22, 2006, 27 days after the vacancy occurred. Four days later, the chair appointed a person to fill the vacancy, presumably because the chair interpreted '6-36-107(b) of the charter to mean that it was entitled to make the appointment after the vacancy in the board had existed for 30 days. However, as indicated above, that charter section triggers the chair's authority to make the appointment only after the tie vote " is unbroken" for 30 days.
For that reason, my opinion is that the appointment is illegal, although, under the circumstances, the appointee is probably a de facto officer until a court can determine the validity of his appointment.
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).]
Even if the EIA supercedes '6-36-207 with respect to the filling of vacancies, the chair's appointee to the school board is probably still a de facto officer because he was appointed under color of law.
However, because the August 3 general election will " resolve" appointment question (at least this time around), the appointee in question not having qualified to run for the office of school board, the city may want to consider whether it is worthwhile to file a suit contesting the right of the appointee to hold the office; presumably, such a suit would be by quo warranto.
Sidney D. Hemsley
Senior Law Consultant