FROM: Sid Hemsley, Senior Law Consultant
DATE: June 23, 2006
RE: Appointments to Board of Waterworks, Sewerage, and Natural Gas Commissioners
You have the following question: Can a member of the City' s Board of Waterworks, Sewerage and Natural Gas Commissioners be appointed to fill a vacancy in the board after he has already served two successive four year terms?
In my opinion, the answer is yes.
Section 2-401 of the Municipal Code provides for a board of Waterworks, Sewerage and Natural Gas Commissioners of five members appointed by the city council. One of the members of that board is appointed from the membership of the city council. The term of that member is four years to run concurrently with his term of office. The term of the remaining four members is four years. On the issue of succession with respect to those remaining four members, '2-401 also says, " Noncouncil members of the board shall not be appointed to succeed themselves more than once. "
The rule of statutory construction that applies to questions of whether members of legislative or other governing bodies can succeed themselves when the statutes that govern such questions are not clear, is that those statutes should be interpreted in favor of allowing those members to serve in office. [See McGinnis v. Kossar, 18 S.W.2d 988 (Ky. 1929); Ervin v Collins , 85 So.2d 842 (Fla. 1956); Commonwealth v.McDowell , 59 A.2d 169 (Pa. 1948); State v. Southwick, 13 Wis. 365 (1861); Legislature of the State of California v. Eu , 816 P.2d 1309 (Calif. 1991); Pope v. Superior Court , 39 Cal.App.4th 871 (Ct. App. 2d Dist. Calif. 2006). Also see 59 ALR2d 716.]
If that rule of statutory construction is applied to '2-401 of the Municipal Code , it opens the door for the former board member who has served two successive four year terms to be appointed to fill the vacancy, because that section only prohibits a former board member from being appointed to " succeed himself." In the City' s case, a former board member being appointed to fill a vacancy in a term of a person who succeeded him would not be appointed to succeed himself; he would be appointed to serve the remaining term of a board member who has served apart of an intervening term.
But even more compelling reason permits the person in question to be appointed to fill the vacancy in the office in question: Tennessee General Assembly never authorized term limits to be set for that office. Section 2-402 of the Municipal Code provides that, " The members of the board of waterworks, sewerage and natural gas commissioners shall qualify in the manner required by Pub. Acts 1933, ch. 68." Public Acts 1933, Chapter 68, provided for the establishment and operation by municipalities of waterworks and sewerage systems. Section 19 of that Act provided for a waterworks and sewerage board comprised of three members, the first members of which would service for terms of two, four and six years, and the succeeding members of which would serve for six year terms. Public Acts 1933, Chapter 68, as amended, is now codified in Tennessee Code Annotated, '7-35-401 et seq. One of the amendments to that statute provided for the term of appointments contained in '2-14 of the Municipal Code . However, Public Acts 1933, Chapter 68, did not provide for term limits, and neither does the present Tennessee Code Annotated, '7-35-401.
Charter provisions, being state law, are mandatory, and cannot be amended by ordinance. [See Lewis v. Bowman, 814 S.W.2d 369 (Tenn. Ct. App. 1991); Sitton v. Fulton , 566 S.W.2d 887 (Tenn. Ct. App. 1978)]. It was not within the authority of the City Council, after having established its Board of Waterworks, Sewerage and Natural Gas Commissioners on what is now Tennessee Code Annotated, '7-35-401 et seq., to in effect " amend" the provision of that statute by setting out the terms of that board.