September 11, 2003
Re: Ouster of Commissioner
Dear City Attorney:
You asked whether the City would have to use the procedure in Tennessee Code Annotated, § 6-20-220, to oust a commissioner or whether the City could use the general ouster law (T.C.A. § 8-47-101, et seq.). Although there appear to be no decisions or Attorney General opinions directly on point, my opinion is that the City may use either statute.
T.C.A. § 6-20-220, which is part of the City’s charter, provides that the mayor or a commissioner “may” be removed from office using the procedures in that section. As you know, the word “may” usually denotes discretion and is not mandatory. There is nothing in the section that indicates a legislative intent that this is the exclusive method for removing these officials under this charter. This provision was originally enacted in 1921, and the General Assembly is presumed to know that another procedure was already in place, being enacted in 1915, providing for the ouster of officials. The 1921 act also applied to employees of the City, and this might be one reason the General Assembly included this ouster or removal provision. More than likely, however, the authors of the legislation, being aware of the 1915 ouster law, wanted to provide a simpler method as an alternative to that law.
T.C.A. § 8-47-101 provides that the general ouster law applies to “Every person holding any office of trust” under the laws of the state except those that are removable as dictated by the constitution. This includes municipal officials. Therefore, it seems clear that this statute could be used to attempt the ouster of a commissioner.
My research has failed to reveal any situation in which statutes providing for the ouster of officials are considered exclusive of other statutes providing for ouster, other than quo warranto cases that question the authority to hold the office. The remedies might not always be the same, but the decision makers have a choice of which ouster statute to proceed under. The general ouster law itself has been interpreted with other provisions as a cumulative remedy rather than an exclusive one. See Broyles v. State, 341 S.W.2d 724, and cases cited therein. T.C.A. § 12-4-102 also has an ouster provision that has been interpreted as cumulative with the general ouster law, although the remedies of this conflict of interest provision are not the same as those of the ouster law. See State ex rel. Phillips v. Greer, 98 S.W.2d 79 (Tenn. 1936), and State ex rel. Lavender v. Bingham, 98 S.W.2d 86 (Tenn. 1936). The courts attempt to construe charter provisions on ouster in harmony with the general ouster law when this is necessary. In McDonald v. Brooks, 387 S.W.2d 803 (Tenn. 1965), the court said about an ouster proceeding under a charter provision:
The petition filed by the citizens before the city council is an ouster suit against the mayor, the same as if it had been filed under the General Ouster Statutes of Tennessee ... and the sufficiency of the petition must be tested by the same rules as those of a court of law. 387 S.W.2d at 806.
The closest factual situation I found to the one you posit is in Roberts v. Brown, 310 S.W.2d 197 (Tenn. App. 1958), although the argument was the reverse of your concerns. In this case, the charter of Union City had a recall provision. The argument was that the recall provision was invalid because officers were subject to the general ouster law. The Court upheld the recall provision as a cumulative method of ouster. A difference from your situation is that the charter of Union City specifically provided that the recall provision was cumulative to other methods of ouster. But I believe the word “may” in your City’s charter would probably be given the same effect, meaning the City “may” bring the ouster action under § 6-20-220 or may use other law. I doubt that the courts would rule either statute invalid or inapplicable when they can be reconciled and construed harmoniously as the courts have done in similar situations in the past.
I hope this is helpful. If you have further questions about this or any other matter, please contact us.