May 7, 2007
Dear City Administrator:
You have the following question: Was the board of mayor and aldermen’s appointment of a member of the Utility Board on April 10, 2007 legal and complete under the following facts:
On April 10, 2007, the mayor recommended reappointing a certain person to the utility board. The mayor’s recommendation was “ignored,” and a member of the board of mayor and aldermen nominated another person. The nomination was properly seconded, and the board of mayor and aldermen appointed that person to the utility board. Concerned that its appointment to the utility board on April 10, 2007, was illegal on the ground that the mayor had the authority to make appointments to the utility board with the consent of the board of mayor and aldermen, the board of mayor and aldermen on April 17 voted to rescind the appointment to the utility board it had made on April 10, and voted to reappoint to the utility board the person whose appointment the mayor had recommended on April 10, 2007.
If the above information correctly reflects the facts, I have no doubt that the appointment to the Utility Board made by the board of mayor and aldermen on April 10, 2007, was both legal and complete, and that the board of mayor and aldermen had no authority or power to rescind the appointment, or to appoint another person to the Utility Board on April 17.
I am not sure why the board of mayor and aldermen thought its appointments of members of the Utility Board required the recommendation or consent of the mayor. Section 18 of the City Charter makes it abundantly clear that the board of mayor and aldermen makes appointments to the utility board, that neither the advice, nor consent, nor recommendation of the mayor is required:
- “Each member [of the Utilities Board] shall serve for a term of six (6) years and be elected by a majority vote of the board of mayor and aldermen of the City of ________, Tennessee.” [Section 18, first paragraph, last sentence.]
- “At least one (1) member of the Utilities Board elected by the board of mayor and aldermen of the City must be a current member of the board of mayor and aldermen.... When the board member’s elected term of office on the board of mayor and aldermen expires and the board position shall be vacant until filled by the board of mayor and aldermen for period extending until the completion of the six (6) year term of office. At such time the board of mayor and aldermen may elect a member from among their board or may reinstate the existing member for a new six (6) year term.” [Section 18, second paragraph.]
- “Any vacancy in the membership of the board shall be filled for the unexpired term by a majority vote of the board of mayor and aldermen....” [Section 18, third paragraph, first sentence.]
There is no language in § 18 of the City Charter, or any other provision of the charter, that suggests that the appointment of a member of the Utility Board requires the advice, consent, or recommendation of the mayor.
It is true that under the Electric Plant Law of 1935, the appointments to membership on the electric board provides that:
....then at any time the chief executive officer [of the municipality] may, with the consent of the governing body of the municipality, appoint two (2) or four (4) persons from among the property holders of such municipality... [Tennessee Code Annotated, § 7- 52-107]
The same law also provides that, “Successors to retiring members so appointed shall be appointed for a term of four (4) years in the same manner, prior to the expiration of the term of office of the retiring member,” and that “In addition to the members so appointed, such chief executive officer shall also, with the consent of such governing body, or in the chief executive officer’s discretion, the city manager, to serve as a third or fifth member of the board, as the case may be....,” and that “Appointments to complete unexpired terms of office shall be made in the same manner as original appointments.” [Tennessee Code Annotated, § 7-52-108(b) and (c).]
However, the City Charter also makes it abundantly clear that the City’s Utility Board operates under its charter and not under the Electric Plant Law of 1935. Indeed, § 18 of the City Charter says:
The Utilities Board shall have all the powers, rights, privileges and perform the same duties and functions as “The Board of Public Utilities” created by Chapter 497 of the Private Acts of the General Assembly of the State of Tennessee for the year 1939, it being the intention of the Legislature that one (1) board, to wit, Utilities Board, shall operate and administer the waterworks plant system and electric distribution system of the City of ______, Tennessee. [Fourth paragraph.]
Under Private Acts 1939, Chapter 497, the Board of Mayor and Aldermen of the City was authorized to issue $500,000 in bonds to establish and operate an electric system. Section 10 of that Act says this about the membership of the electric system:
That for the purpose of operating and administering the electric system when it shall have been acquired, there is hereby created an administrative body to be known as “The Board of Public Utilities.” Such board shall consist of three members.... Except as hereinafter provided, each member shall serve for a term of six years. The members of the Board shall be appointed by the Board of Mayor and Aldermen and in making the first appointments to said Board, the Board of Mayor and Aldermen shall designate one appointee to serve until January 1, 1941, one to serve until January 1, 1943, and one to serve until January 1, 1945. Any vacancy in office shall be filled for the unexpired term by vote of the Board of Mayor and Aldermen...[Section 9]
There is not a single reference in the former Charter of the City (which was Private Acts of 1903, Chapter 104, and into which Private Acts 1939, Chapter 497 was incorporated), nor in the present Chapter of the City (which is Private Acts 2005, Chapter 76), to the Electric Power Plant Law of 1935, nor to the city’s operation under that Law. Indeed, the terms of office of members of the utility board under that Law are four years, and the mayor has the authority to make appointments to that board with the consent of the board of mayor and aldermen; but the terms of office of utility board members under Private Acts 1939, Chapter 497, § 10, and Private Acts 2005, Chapter 76, § 18, are six years, and the mayor has no authority to make appointments with the consent of the board of mayor and aldermen, or to otherwise give advice with respect to such appointments. For those reasons alone, comparing the Utility Board with utility boards under the Electric Plant Law is comparing apples to oranges.
As I understand the facts, the person appointed to the utility board on April 10, 2007, had not yet taken the oath of office. Section 18 of the City Charter says that “The board shall take the oath of office prescribed for judges of the State of Tennessee. Members of the board shall be removable from office only by general ouster proceedings for the causes appropriate to such proceedings.” [Paragraph 3]
It has been held that the oath of office in Tennessee is mandatory. In State ex rel. Wyrick v. Wright, 678 S.W.2d 612 (Tenn. 1984) 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 of office. The Rockwood City Charter expressly provided that city councilmen “shall” take an oath of office before entering upon the duties of their offices. The Tennessee Supreme Court declared that 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. McQuillen, 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.]
But I cannot make it any clearer than I did in my letter to the City of Humboldt that once a legislative body’s appointing power has been exhausted with respect to a particular appointment, it cannot rescind the appointment. That is true under both Robert’s Rules of Order and under an abundance of case law on that issue. Here, let me repeat some of that letter with an emphasis on the fact that under the cases cited therein, it does not matter that the person appointed to the utility board by the board of mayor and aldermen on April 10, 2007 had taken the oath of office.
The famous U.S. Supreme Court case of Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), was triggered by the refusal of Secretary of State James Madison in the administration of Thomas Jefferson (third president of the U.S) to deliver to Marbury and other commissions to the office of justice of the peace, to which former President John Adams (second president of the U.S.) had nominated them and which nominations had received the advice and consent of the Senate and had been signed by President Adams before he left office. The Court in holding that a writ of mandamus could be issued to require the delivery of their commissions to them, declared that justices of the peace were judicial officers, and that:
They hold their offices independent of the will of the president. The appointment of such an officer is complete when the president has nominated him to the senate, and the senate, having advised and consented, and the president has signed the commission, and delivered it to the secretary to be sealed. The president has then done with it; it becomes irrevocable... [At 1 Cranch 149]
Marbury v. Madison stands for the preposition that when an officer that does not serve at the will of the chief executive of the governmental entity in question, and the appointment of the officer is complete, the appointment is irrevocable, and is cited in a number of the cases holding that once an appointment is complete it cannot be revoked or otherwise rescinded. There is no doubt in that case that the justices of the peace had not taken their oaths of office, their commissions not having been delivered to them.
That preposition is also supported by Board of Education of Boyle County v. McChesney, 32 S.W.2d 26 (1930). There the Boyle County Board of Education appointed a school superintendent for a term of one year. His appointment was recorded in the minutes of the April 5, 1930, meeting of the board. On June 7, 1930, the board attempted to rescind its action of April 5,1930. Under Kentucky law, a school superintendent could not be removed except for cause during his term. In holding that the board could not rescind the appointment of the superintendent of education, the Court declared that:
When a power is given and has been exercised, and the repository of the power has no further control over the subject, except to remove the appointee for cause, the appointing power is exhausted and may not be reconsidered. If the power belongs to a board its act is complete when the meeting has adjourned. [At 28]
The Court further said that:
An appointment to office may be revoked, of course, at any time before the act becomes final. [Citations omitted.] Here the board had adjourned, and its minutes showing the appointment of McChesney had been approved. Thus the appointment became complete and the power of the board for the time being was exhausted. [At 28]
It is not clear whether the superintendent of education in that case had taken the oath of office (or whether one was even required), but it is clear that the board’s appointing power was exhausted when the appointment was made and the meeting at which it had been made was adjourned.
As I understand the facts with respect to the minutes of the April 10, 2007 meeting, those minutes had not been approved when the board voted to rescind the appointment to the utility board it made on April 10. But little should be made of what the Court said in Boyle County Board of Education, above, about the minutes reflecting the appointment having been approved. In Commonwealth v. Stephens, 574 S.W.2d328 (Ky. Ct. App. (1978), a Kentucky school board’s minutes were amended to show that one of its members had not voted for the school board to employ certain of his relatives, when there was parol [oral] testimony showing evidence that he had made such votes. The trial court excluded the parol evidence. The Court of Appeals overturned the trial court, saying that where public rights are concerned “It would be an intolerable situation if, as appellants content, the records of a city were conclusive against fraud.” In that case the remedy against the school board member was ouster, and the Court thought it absurd that amended minutes could be used to cut off a charge of fraud.
But that case also points to a different rule for handling claims of false minutes where an individual’s right to hold office are concerned:
In Kentucky, the general rule allows only the minutes of municipal corporations to speak for actions of these bodies. Parol [oral] evidence is generally not admissible to refuse to explain actions taken at meetings, [citations omitted by me.] and minutes can be amended to correct inaccuracies and reflect actual events at meetings. [Citation omitted by me.]
After the record has been amended, it is entitled to the same respect as an original record. The only remedy a person who is injured by such amendment and claims that the original entry was correct is by a direct proceedings to have the minutes as amended annulled. While the amended minutes remain, they cannot be impeached or varied in a collateral proceedings.
In accord is an Alabama case, Anniston v. Davis, 98 Ala. 629, 12 So. 331 (1893), where Davis sought a writ of mandamus to compel the city council of Anniston to reinstate him as councilman. The record revealed Davis was elected by unanimous vote but the minutes were later amended showing a vote of less than a majority for Davis. The Alabama Supreme Court held that the minutes as they stood were a complete answer for a writ of mandamus and that Davis remedy lay in a direct proceedings to have the city council amended minutes set aside and the original minutes restored. [At 329-30]
I am not at all suggesting that the Board of Mayor and Aldermen would falsify minutes of meetings, only pointing out that where the minutes do not reflect the truth of what happened with respect to an appointment to office, the person who is alleging that he was illegally deprived of office as a result of inaccurate minutes might simply have to wage a direct war on the minutes to have them set aside and corrected.
It was also said in MacAlister v. Baker, 33 P.2d 469 (1934), citing Marbury v. Madison and other cases, that:
We gain from the authorities that an appointment to office is complete and beyond change, annulment or reconsideration by the appointing power when everything requiring the action of the appointing power has been done. The authorities are not entirely harmonious in their determination of just what is required to be done by the appointing power. After a thorough review of the decisions, however we think the doctrine of the best-reasoned cases justifies the conclusion that the appointing power is executive in nature, and anything that is definitely required to be done by a clerk after the executive has acted is ministerial, and that the appointment is complete and not subject to reconsideration, even if the clerk has not acted. This reasoning, carried into actions by assemblages such as city council, carries us to the conclusion that appointments of officers through the choice of membership of an assembly is none the less executive in nature and that its selectionby vote is the act of appointment, incapable of being affected by the requirement of subsequent clerical action or parliamentary procedure. [At 471]
In this case, the Court also made it clear that the appointing power is exhausted “and beyond change, annulment or reconsideration by the appointing power,” when everything requiring the action of the appointing power has been done.” The oath of office is not something requiring the action of the appointing power, but of the person appointed to office.
[Also see Magoffin County Board of Education Commissioner v. Conley, 445 S.W.2d 861 (Ky. App. 1969); State v. Phillips, 11 A. 274 (1887) (appointment of tax assessor by board of mayor and aldermen complete after vote is declared and entered on record); State v. Starr, 63 A. 512 (1906) (appointment of city surveyor by city’s common council: “When a legislative body expresses its will by ballot, its act is not complete before the result of the ballot is ascertained and made known. When this is done and it appears clearly from the announcement of the state of the vote that the number of ballots requisite to an appointment has been lawfully given for one person, and no further action is taken, the will of the body is finally expressed and the appointment is complete. It is not lawful afterward, and without any reason, to revoke such an appointment and appoint another person.” [At 514]; State v. Barbour, 22 A. 686 (1885) (Appointment of city prosecutor by common council: “We have said the appointment was made when the result of the ballot was ascertained and declared. Nothing more was required of the convention. Its will had been expressed in a parliamentary and legal fashion, had been duly declared and had become a matter of record. Declaring the result by resolution was unnecessary. No certificate or commission from the convention or its officers was required by law. Mr. Coogan’s right to the office vested at once, and he might, without further ceremony, accept and qualify.” (Citing Marbury v. Madison) [At 687-88]; Speed v. Common Council, 56 N.W. 570 (1893) (Appointment of city attorney by mayor for term of three years under state statute authorizing same: “The appointment was duly made and filed, and when so made and filed was beyond the mayor to recall.” In addition, his office required a bond, and the city council could not arbitrarily refuse to approve his bond.)
Under none of those cases is there any hint that the oath of office must be taken by the appointee before the rule blocking rescission applies. In all those cases the question is whether the appointing board’s authority to appoint had been exhausted beyond the point of no return. The point of no return is when a vote has been taken and announced, and the meeting atwhich the appointment was made has adjourned. Presumably, a statute or charter could require more for an appointment to be complete, but there are no such requirements in Tennessee, at least with respect to the City’s Utility Board.
Sidney D. Hemsley
Senior Law Consultant