Dillon's Rule - Relationship of Municipalities to the State
To understand what a municipal charter is, you have to know what a municipality is. You may be surprised to learn that, from a legal standpoint, a municipality almost anywhere in the United States, including Tennessee, is not much. Some writers have compared municipalities to children and state legislatures to their parents. But that comparison isn’t completely accurate because most children have greater legal protection against their parents than municipalities do against their state legislatures.

The classic statement of a municipality’s relationship to its state legislature was made by Judge John F. Dillon speaking for the Iowa Supreme Court in the famous case of City of Clinton v. Cedar Rapids and Missouri Railroad Company, 24 Iowa 455 (1868):

Municipal corporations owe their origin to, and derive their powers from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it created, so may it destroy. If it may destroy, it may abridge the control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and a great wrong, sweep from existence all of the municipal corporations of the state, and the corporations could not prevent it. We know of no limitation on this right so far as corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.

There is a “constitutional limitation” against abolishing Tennessee’s home rule municipalities found in Article XI, Section 9, of the Tennessee Constitution. In addition, the remaining Tennessee municipalities receive a measure of security from abolition in the same provision of the Tennessee Constitution, which provides that “The General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be changed.” In any event, the legal subordination of municipalities to their state legislatures is no reason to lock up city hall and go home. Municipalities in every state have been around for a long time; there are more than 340 of them in Tennessee.

But Judge Dillon didn’t stop there. In Merriam v. Moody’s Executor, 25 Iowa 163, 170 (1868), he achieved everlasting fame among municipal lawyers and students of local government by announcing what is known as Dillon’s Rule. Dillon’s Rule outlines the kind of powers legislatures give to municipalities and what happens if there is some doubt about a municipality’s power:

It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.

Dillon’s Rule has been abolished in some states, but in the recent case of Southern Contractors v. Loudon County Board of Education, 58 S.W.3d (Tenn. 2001), the Tennessee Supreme Court announced that Dillon’s Rule still lives in Tennessee and applied it to hold that while a county school board did not have the express authority to arbitrate a contract, it had the implied power to arbitrate the contract at issue. But, the court also pointed out that Dillon’s Rule is only a rule of statutory construction that applies when a statute is ambiguous, and that several important exceptions to that rule have diminished its practical importance. The rule:

• Does not apply to home rule municipalities; and
• Where the General Assembly has granted local governments “comprehensive governmental power … without either enumerating the powers or expressly limiting the scope of that authority,” that “general provision” [will] be “liberally construed.” The court cited three examples of comprehensive grants of powers to municipalities from the general law municipal charters found in Tennessee Code Annotated, Title 6:
  • Section 6-19-102 of the general law manager-commission charter: “The enumeration of particular powers in this charter is not exclusive of others, or restrictive of general words or phrases granting powers, nor shall a grant or failure to grant power in this chapter impair a power granted in any other part of this chapter, and whether powers, objects or purposes are expressed conjunctively or disjunctively, they shall be construed so as to permit the city to exercise freely any one (1) or more such powers as to any one (1) or more objects for any one (1) or more such purposes.”
  • Section 6-19-101(33) of the general law city manager commission charter: “[Every city incorporated under chapters 18-22 of this title may] [h]ave and exercise all powers that now or hereafter it would be competent for this charter specifically to enumerate, as fully and completely as though such powers were specifically enumerated in this section.”
  • Section 6-2-201(32) of the general law mayor-aldermanic charter: “[Every municipality incorporated under this charter may] [h]ave and exercise all powers that now or hereafter it would be competent for this charter specifically to enumerate, as fully and completely as though these powers were specifically enumerated.”

The General Assembly makes grants of power to Tennessee municipalities through two kinds of laws: private acts and general laws. Private acts apply only to a specific town or city; general laws apply either to all cities and towns or, frequently, to all cities and towns within a certain class (for example, all cities and towns with a population of 1,134 to 1,876 according to the 1980 census or any census thereafter). The latter kind of general law is often called a general law of local application because in reality it usually applies to only one or two specific towns or cities. There are at least two kinds of municipal charters in Tennessee: private act and general law. Tennessee also has 14 municipalities that have a home rule charter.

• Private act charter. All cities with a private act charter were incorporated before 1953 when the constitution was amended to prohibit incorporating cities by special act. If a private act city wants to amend its charter, the city’s legislative delegation introduces the amendment in the General Assembly, and the city must ratify the new private act, either by majority vote of the governing body or by referendum;
• Home rule charter. A city wanting home rule government writes its own charter and adopts it in a referendum. A home rule city seeking to amend its charter must submit the amendment to a referendum. There are 14 home rule municipalities in Tennessee; and
• General law charter. A city may adopt one of the "form charters" that are written into the state code.

Consolidation of City and County Functions
The Eighth Amendment to the Tennessee Constitution deals with consolidating city and county functions (Article XI, Section 9). Under its terms, merging any function, such as schools, or completely consolidating city and county governments, as in Nashville and Davidson County, must be approved in a referendum by a majority of the vote in the city and a majority of the vote in the remainder of the county. Implementing legislation for complete city/county consolidation is found in T.C.A. §§ 7-1-101–7-3-312. A second consolidation act, the Charter Government Unification Act, applies to counties with a charter form of government. T.C.A. §§ 7-21-101, et seq.

Internet Posting of Charters
Each municipality must post its charter on a website maintained by the municipality, or, if the municipality has no website, the charter must be posted on the secretary of state’s website. T.C.A. § 5-1-127.

Click on the topics below in this section for more information

State Constitutional Provisions Regarding Creation and Control of Municipalities 

Municipalities are created and controlled by the state legislature. Unless there is a constitutional or federal law limitation, the state legislature may do anything it wants to a municipality, including ending its existence. A municipality’s only powers are those given by the state legislature and constitution. Before 1953, there were no state constitutional restrictions on the state legislature’s authority over municipalities. That year, the Sixth, Seventh, and Eighth Amendments to the Tennessee Constitution were adopted, giving citizens more control over their own cities. (These amendments can be found in Article XI, Section 9, of the state constitution. See Chapter 3, Forms of Government and Governing Bodies, for a more detailed discussion about private acts, general laws, and home rule.)

The Sixth Amendment says that before a private act (legislation applying only to cities named in the act) becomes effective, it must be approved locally by a two-thirds majority of the local legislative body or by referendum. The Sixth Amendment also prohibits the legislature from passing private acts that remove incumbents from any municipal office, shorten their terms, or alter their salaries.

The Seventh Amendment gives municipalities the option of adopting home rule by referendum and prohibits the legislature from passing private acts applying to home rule cities. This amendment also says that all new municipalities shall be incorporated only under general law charters provided in state law.

The Eighth Amendment provides for the consolidation of city and county functions.

Annexation, Merger, or Creation of Cities
The Tennessee Constitution states, "The General Assembly shall, by general law, provide the exclusive methods by which municipalities may be created, merged, consolidated, and dissolved and by which municipal boundaries may be altered" (Article XI, Section 9).

The state courts have routinely declared unconstitutional annexation laws that exempt certain counties or that apply only to cities with specified populations. This constitutional provision has also been interpreted as preventing the creation of additional private act chartered municipalities. Thus, any unincorporated area wishing to incorporate must do so under one of several general law charters found in Title 6 of T.C.A. (Volume 2B). 

The Internet is the most useful tool for promoting effective democracy since Gutenberg’s printing press. As our communities rely increasingly on the Internet as their primary source of information, our consideration of web sites as a primary repository of public information is critical to an informed electorate. For years federal and state governments have taken steps to require an increasing amount of public and governmental information be accessible via the Internet. There are now similar requirements for local governments.

Recognition of this by the Tennessee Legislature occurred with the passage of Public Chapter No. 808. T.C.A. § 5-1-127. This act requires each Tennessee municipality and county to post its charter of incorporation on a website maintained by the municipality or county. If no such website is maintained, the charter must be posted on the Tennessee Secretary of State’s website. Additionally, within three months following any changes or revisions to the charter, the electronic language posted on the website shall be corrected by the municipality or county to reflect such changes or revisions. If your charter has been sent to the secretary of state, their office is not required to keep it current, your city should send a copy of any amended charter to the secretary of state as soon as possible.

A local charter is the legislatively granted foundation of every local government. Being the expression of municipal power and responsibility, it is imperative that every resident have unfettered access to a charter’s contents. Charters are open to public inspection under our state’s open records laws. T.C.A. §§ 10-7-501 et seq. Logistically, this should pose no significant expenditure of time or resources to city personnel. There are currently electronic copies of the charters of every Tennessee city posted on the MTAS website.

If your city does not maintain its own website and you need assistance posting your charter on the secretary of state’s website, please contact Robert Greene, publications liaison, at (615) 253-4571 or robert.a.greene@state.tn.us [1].

Ordinances and Codes
Ordinances are the legislative enactments of municipal governing bodies. Codes are comprehensive ordinances, such as building, plumbing, and electrical regulations. A code of ordinances is a compilation (codification) of all city ordinances.

Procedures for Adopting Ordinances
Charters usually spell out the procedures for adopting ordinances, including the number of readings required. If the charter is silent, ordinances need to be read only once. The general law mayor-aldermanic charter requires two considerations of an ordinance.  T.C.A. § 6-2-102. The general law city manager- commission charter calls for two readings, and a city may establish by ordinance a procedure to read only the caption instead of the entire ordinance.  T.C.A. § 6-20-215. The modified city manager-council charter requires two readings. T.C.A. § 6-32-202.

Cities adopt ordinances one at a time. Eventually, this collection of ordinances becomes unwieldy unless it is organized under common categories and indexed. Organizing individual laws into a coherent book of laws is called "codification."

The procedure for making an effective codification is spelled out in T.C.A. §§ 6-54-508–509. It includes publishing notice of and holding a public hearing on the proposed code; adopting the new code by ordinance in accordance with charter requirements; publishing notice of adoption of the code; and placing a copy of the code in the city clerk’s office for public inspection. Newspaper publication of the code is specifically not required. However, if the codification contains any new penal provisions, they must be stated explicitly in the published notice for the public hearing.

T.C.A. § 6-54-510 provides that errors in the original ordinances are cured if corrected in the codification and the new code is adopted by the city council.

Legislature Declares When Ordinances, Resolutions to be Used
In 2009, the General Assembly passed a law that sets out enactments by municipal governing bodies that must be done by ordinance. Tennessee Code Annotated § 6-54-512 (2010). Under this law, beginning September 1, 2009, these actions must be accomplished by ordinance:

• A tax levy;
• A special assessment;
• Anything of a permanent nature, i.e., a measure applying to present and future conduct;
• A regulatory or penal measure, i.e., a measure controlling conduct or levying a fine or penalty; and
• Any action required by the general law or the municipality’s charter to be done by ordinance.

Other actions may be accomplished by resolution or motion, which is a form of resolution.

Municipal officials and employees should be aware that this is not an earthshaking change. This legislation is an attempt to statutorily re-state and clarify existing law. Most actions of municipal governing bodies already conform to these requirements. The legislature became concerned that some municipalities were seeking charter amendments that allowed many measures traditionally accomplished by ordinance to be done by resolution instead. This law is the legislature’s attempt to make sure certain measures will be by ordinance regardless of any charter provision relaxing this requirement. Thus, any tax levy, special assessment, or permanent or penal measure will have to be considered and voted on more than once to be enacted (unless, of course, the municipality’s charter is one of the few that allows ordinances to be adopted on only one reading or consideration).

Under this new law, only a general law can override the requirement of accomplishing the listed actions by ordinance. A good example of this is the new “guns in parks” law that allows municipalities to enact by resolution a prohibition on guns in parks and other recreational areas owned or controlled by the municipality. This is a regulatory and penal measure, as well as permanent in nature, but the general law requires that this be done by resolution. Another example is issuing debt or borrowing money. Some municipal charters require that borrowing money be authorized by ordinance. The general law, however, allows all actions necessary to borrow money to be done by resolution, and this general law provision overrides the charter requirement.

On the other hand, a municipal charter provision would not override this new general law requirement for using ordinances. Many municipal charters, for example, include special assessments in a general powers provision that allows the special assessment to be made by resolution or ordinance. Under this new law, the resolution option is foreclosed, and the municipality must use an ordinance to make a special assessment.

This law took effect on September 1, 2009, and applies only to actions taken on and after that date. Municipal officials of cities and towns enacting a tax, a special assessment, a permanent measure, a regulatory or penal measure, or any measure required by the municipality’s charter or the general law to be done by ordinance should make sure that if any reading or consideration of the matter takes place on or after September 1, 2009, the enactment is by ordinance rather than by resolution.

Judicial Ouster
Some Tennessee city charters include ouster provisions, but the only general law procedure for removing elected officials from office is judicial ouster. The state ouster law takes precedence over any charter provision on the topic.

The judicial ouster procedure applies to all officers, including people holding any municipal "office of trust or profit." (Note that it must be an "office" filled by an "officer," distinguished from an "employee" holding a "position" that does not have the attributes of an "office"). The statute makes any officer subject to such removal "who shall knowingly or willfully misconduct himself in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state, or who shall in any public place be in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of illegal gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude". T.C.A. § 8-47-101.

T.C.A. § 8-47-122(b) allows the taxing of costs and attorney fees against the complainant in an ouster suit if the complaint subsequently is withdrawn or deemed meritless. Similarly, after a final judgment in an ouster suit, governments may order reimbursement of attorney fees to the officer targeted in a failed ouster attempt.  T.C.A. § 8-47-121.

The local attorney general or city attorney has a legal "duty" to investigate a written allegation that an officer has been guilty of any of the mentioned offenses. If he or she finds that "there is reasonable cause for such complaint, he shall forthwith institute proceedings in the Circuit, Chancery, or Criminal Court of the proper county." However, with respect to the city attorney, there may be an irreconcilable conflict between that duty and the city attorney’s duties to the city, the mayor, and the rules of professional responsibility governing attorneys. Also, an attorney general or city attorney may act on his or her own initiative without a formal complaint. T.C.A. §§ 8-47-101–102. The officer must be removed from office if found guilty. T.C.A. § 8-47-120.

Disqualification for Infamous Crime in Office
A person convicted of a felony, while holding office, that involves the duties of the office is disqualified forever from holding any state or local office. T.C.A. § 40-20-114.

Bribery
Bribing a public official, as well as accepting a bribe by a public official, is a Class B felony. T.C.A. § 39-16-102.

Designee on Other Boards and Commissions
A mayor or full-time commissioner who serves on a municipal, county, or regional board, commission, authority, or development district in an appointed, elected, or ex officio capacity may name a qualified person as his or her designee. The designee will have the same powers as the official. This includes the power to vote except at any meeting the official attends. This law does not apply if there is a provision for such a substitution in a charter, private act, ordinance, or general law. It also does not apply to governor-appointed members of boards, commissions, or authorities. T.C.A. § 6-54-112.

The Tennessee Constitution (Article II, Section 26) prohibits "any person in this state" from holding "more than one lucrative office at the same time." The Tennessee courts have held that this prohibition applies only to holding two state offices, not to holding a state office and a local government office or two local government offices (see Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931)). For that reason, a municipal officer may serve in the General Assembly or another local government seat unless otherwise prohibited by law. Some municipal charters forbid dual office holding of various kinds. Such charter provisions generally have been upheld. State and city could properly adopt statutes and ordinances for purpose of preventing an individual from holding public offices which would create a conflict of interest. T.C.A. §§ 6-215, 6-626, 6-627.

Every city council will occasionally experience a vacancy. A board member might need to resign after moving his residence out of town. Or perhaps a member of the board has died, leaving an open seat.

Most cities do not have a formal policy to address how vacancies on the city council will be filled. As a result, the process of recruiting and appointing new board members can be emotionally charged and stressful. Recruitment and selection is conducted while the board is under time pressure. There can be confusion about how the appointment is to be made, eligibility requirements and the length of the term the appointee will serve. Such a state of affairs does nothing to improve the board’s chances of selecting a good, qualified replacement to fill the opening. To the contrary, these situations can contribute to the appointment of controversial new members who are confused about their duties.

But it need not be this way. Board vacancies, even those created by unfortunate or tragic events, can be managed in a way that will strengthen the governing board or, at least, avoid protracted and divisive debates over the appointment of a successor. A council vacancy can be an opportunity for the community, one that will improve the board, its public image and its ability to address local issues.

This section presents an argument in favor of cities adopting succession plans with two goals in mind:

• Developing a roster of citizens who are familiar with the processes of local government and willing to serve when a vacancy occurs; and
• Implementing a selection process that is open, transparent, fair and results in the placement of qualified persons on the governing board.

Types of Vacancies
Filling board vacancies can be influenced by factors that created the vacancy in the first place.

Council vacancies are most commonly caused by the resignation of a member of the board. In some instances, the board member’s resignation is mandatory after he or she has relocated to a new residence out-of-town or outside the district or ward he or she represents; the member may have contracted some debilitating illness that hinders regular attendance at board meetings; and less frequently, board members will sometimes resign their offices to protest board decisions with which they disagree or out of frustration.

The private act charters of some city governments require the board to declare a member’s seat to be vacant after the member has missed a given number of council meetings. In some instances, the charter may excuse these absences if they are due to extraordinary circumstances – a prolonged illness, for example. But in other cases, the charter grants no exception for multiple absences from council meetings or a failure of the member to perform his or her duties. In these circumstances, the board may be forced to declare a vacancy even if the member wishes to remain on the board.

The death of a board member, of course, is another cause of vacancy – often a very emotional time for the governing body.

Finally, and much more infrequently, a board vacancy can result from the ouster or removal of a board member. Such actions are ordered by the courts, usually after the board member’s conviction for serious misbehavior.

Any of these factors may have a profound effect on the board’s selection of a citizen to fill the vacancy. The death of a popular mayor, for example, may result in a desire to fill the vacancy in a manner that memorializes the deceased member. In these circumstances, there may be a call to appoint the deceased member’s spouse or some other close associate to fill the vacancy. Such sentiments are, of course, natural and understandable. They do not, however, always result in the best appointment to fill a board vacancy.

Similarly, if the vacancy is the result of an alderman’s repeated absences from board meetings, the board may look to recruit a replacement who is known to be available on meeting nights. Here again, an understandable response by the board, but there are other criteria that the board should consider as well.

If the vacancy was created by the abrupt resignation of a frustrated board member, the board may feel it important to select a replacement who will “go along” with the majority and who won’t rock the boat too much. This may result in more cordial board meetings, but it is no guarantee that the appointee possesses the knowledge, skills, abilities and temperament needed to oversee operation of the city government.

The selection of a citizen to fill a board vacancy should not simply be a reaction to the circumstances that led to the creation of the vacancy. Instead, the appointment should reflect the board’s agenda for the remaining term of the vacant seat – selecting a person who can help the board meet that agenda.

Consult your charter before taking any action!

Sooner or later, almost every municipal official will have a bad experience resulting from an interview with a news reporter. There are standard complaints: The reporter asked unfair or “loaded” questions, good responses were deleted from the story, or the reporter blew minor points out of all proportion.

A critical factor leading to unsuccessful news media interviews is often the failure of public officials to understand the role of the news media in a free, democratic society. The news media do not serve as the local government’s public relations arm, and it is not a reporter’s job to polish the city’s image or that of any individual municipal official. Quite to the contrary, journalists are trained to question authority, to be wary of the official explanations of government, and to pick apart proposals made by public officials. They are under no obligation to be “fair” to the government officials they interview and are especially leery of officials whom they may suspect want to slant the news in their favor.

The relationship between city hall and the news media is, almost by definition, an adversarial one. While this does not mean the relationship cannot be friendly and satisfying, a smart city official understands and accepts the obligation of the news media to ask tough questions, to probe into areas the government may find embarrassing, and to expose city problems.

Perhaps the single most critical factor leading to a bad news media interview, however, is lack of adequate preparation by the interviewee. Municipal officials wanting to give winning interviews to the press must plan and prepare for them. Successful interviews do not just happen.

The fact that you may have mastered the subject of the interview does not, by itself, assure a successful outcome. There are many examples of bad media interviews given by intelligent public officials who are experts in their field. Similarly, the fact that you may have a cordial relationship with the interviewer does not guarantee a successful performance. This is especially true in radio and television interviews, where the microphone or the camera is all that stands between you and the audience.

However unfair it may be, most of the responsibility for a successful media interview rests with the person being interviewed. However unfair it may be, most of the responsibility for a successful media interview rests with the person being interviewed. True, the reporter or interviewer should be fair and professional, ask the “right” questions, and otherwise lead the interview to a successful conclusion. But if the reporter fails in this regard, it is usually the interviewee who looks bad. For this reason, the public official who truly understands the importance of successful media interviews will take responsibility for making them successful.

This section will help municipal officials prepare for news media interviews and provide strategies for successful outcomes.

1 Mayor: The meeting will come to order. (The mayor determines if there is a quorum present. The recorder enters in the minutes the names of those present.)

2. The recorder will read the minutes of the last meeting. The minutes are read. Are there any corrections to the minutes? Corrections are suggested without a motion or vote if there is no disagreement. If there is disagreement, then the elected official motions to amend the minutes. Otherwise the mayor states: If there are no (further) corrections, the minutes stand approved as read (as corrected).

3. We will have the report of the officers (such as a financial report by the recorder), boards, standing committees, and special committees. A motion is made to adopt the financial report. If a committee report contains a recommendation, the reporting member (usually the chairman of the committee) moves that the recommendation be adopted. Otherwise, the report is filed without action.

4. Is there any unfinished business? This is sometimes referred to as "old business" but the proper term is "unfinished business" and includes such things as second readings of ordinances. Action is completed on any business not settled when last meeting was adjourned. If there is no unfinished business, the mayor states there is no unfinished business and moves right into new business.

5. After the unfinished business...Is there any new business (ordinances on first reading, regulations, resolutions)?

a. Any council member may introduce an ordinance, resolution, or regulation.

b. Ordinances on first reading are usually read by caption only, with the introducer explaining the contents.

c. Ordinances on second/final reading should be read in full. Charters or by-laws of some municipalities may prohibit the amendment of certain ordinances after second reading. Any changes or amendments otherwise are offered at this time. By charter, some cities are required to pass ordinances on three readings. Each new ordinance, regulation, or resolution is read, discussed, adopted, postponed, referred to a committee, or otherwise disposed of before the next one is proposed.

6. After all the business is completed...Is there anything for the good of the order? This is the opportunity for elected officials to make any announcements or informal observations about the work of the municipality.

7. If there is nothing further, I'll entertain a motion to adjourn. A member states: I move to adjourn. The motion requires a second and majority vote. If the motion to adjourn fails, the meeting continues. If the motion passes, the mayor states: The ayes have it, and the meeting is adjourned.

1. Council member addresses the chair. Mr./Madam Mayor, I'd like to have the floor to make a motion.

2. Mayor recognizes speaker: Council member ____________________, you have the floor.

3. Council member: I move the adoption of ordinance 2017-002 on first reading.

4. Another council member: I second the motion, or simply Second.

5. Mayor states the motion: The motion to adopt ordinance 2017-002 on first reading has been made by Council member ___________ and the motion has been seconded …Is there any discussion? This opens the floor to debate on the ordinance. The person who made the motion has the right to discuss it first. Discussion must be addressed to the mayor. The motion may be changed by amendment (another motion). If the council does not wish to take final action on the motion, it may dispose of the motion in some other way (most typically by postponing definitely [usually to the next meeting], or postponing indefinitely [which kills the motion]).

6. Under RONR decorum rules, members are allowed to speak on a motion only twice, and not for a second time until all members have had a first opportunity.

7. Debate then begins and may end one of two ways:

a. A member may close (end) debate by requesting the floor from the mayor, then saying: I move the previous question

     Another elected official seconds the motion, I second the motion or Second.

    The mayor states: There is a motion and a second to move the previous question which is adopting ordinance 2017-002 on first reading. Those in favor of ordering the previous question say "aye"... those opposed say "no"

    The mayor states the outcome of the vote: The ayes have it and the motion carries or The nos have it and the motion fails, so debate continues.

    If the motion carried, the mayor immediately moves into taking a vote on the ordinance: Those in favor of adopting ordinance 2017-002 on first reading say "aye"... those opposed say "no"

b. The mayor may close debate by stating: If there is no more discussion on the motion to adopt ordinance 2017-002 on first reading, let's move to a vote. If no one opposes (there is silence) then the mayor states: All those in favor of adopting ordinance 2017-002 on first reading say "aye." Those opposed say "no." If an elected official speaks out against closing debate, then debate continues.

8. Otherwise, the mayor states the outcome of the vote: The “ayes” (or “nos”) have it. The motion is carried (or defeated).

1. After a main motion is made and seconded, and debate has begun, an elected official may suggest a change to the legislation with another motion: I move to amend the ordinance by… and striking out, inserting, or substituting a word, phrase, sentence, or paragraph.

2. Another member: I second the motion to amend.

3. Mayor: It has been proposed to amend Ordinance ________________________ to read as follows… The mayor states the main motion and amendment so it is understood how the amendment changes the legislation. The amendment changes the motion. The amendment is handled in the same way as a main motion.

4. The mayor opens the floor to debate on the amendment: Is there any discussion?

5. Question: If there is no further discussion, the amendment is...

6. Vote: All in favor of the amendment... The mayor announces the outcome: The amendment is carried (or defeated). The motion now before the governing body is… (the motion plus the amendment, if carried).

Record what is done, not what is said. Keep the notes together in a special notebook.

Organize notes into clear, concise statements and record them in a permanent minute book to be read at the next meeting.

The first paragraph of the minutes should contain:

1. the kind of meeting (regular, special, adjourned regular, or adjourned special)
2. the name of the governing body
3. the date, time and location of the meeting
4. the fact that the mayor and recorder were present, or, in their absence, the names of the people who substituted for them
5. whether the minutes from the previous meeting were read and approved - as read, or as corrected - and the date of that meeting if it was anything other than a regular meeting.

Record each motion as a separate paragraph.

The minutes should be read and approved by the council at the next regular or adjourned meeting. Minutes should be signed by the recorder.

Ordinances should be kept in an ordinance book and resolutions in a resolution book. Both ordinances and resolutions should be numbered consecutively. If separate books are kept for ordinances and resolutions, the minutes need show only a caption and space left for the number assigned when passed on final reading. Minutes should show book and page number where the ordinance/resolution is recorded.

The recorder's duties under RONR are to:

1. Keep a record of the minutes
2. Keep on file all committee reports
3. Keep the official membership roll and call role where it is required
4. Make the minutes available
5. Furnish the governing body with documents necessary for them to do their jobs
6. Furnish delegates with credentials (not applicable to small governing bodies)
7. Sign all certified copies of acts of the governing body
8. Maintain minute books and have the current minute book on hand at each meeting
9. Send notice of the next meeting to the elected officials
10. Prepare the agenda (order of business) for each meeting for the use of the mayor
11. Call a meeting to order in the absence of the mayor and vice mayor and manage the election of a mayor pro tem for that meeting.

Mayoral duties regarding meetings, according to RONR are to:

1. Open the meeting at the appointed time and call the meeting to order and declare if a quorum is present or not
2. Announce the order of business (agenda)
3. Recognize elected officials who are entitled to the floor
4. State and put to vote all questions on motions that legitimately come before the governing body; and to announce the result of each vote
5. Protect the governing body from obviously dilatory motions by refusing to recognize them
6. Enforce the rules of debate, order, and decorum
7. Expedite business in every way compatible with the rights of members
8. Decide all questions of order
9. Respond to inquiries of elected officials regarding parliamentary procedure
10. Sign minutes, ordinances and resolutions
11. Declare the meeting adjourned

In addition, the mayor should have at each meeting a copy of the municipality's charter, a copy of its parliamentary authority, a list of all committees and their members, and an agenda (order of business).

The final minutes:

• should be typewritten or written legibly in permanent ink;
• should have a wide margin for corrections;
• should not be defaced. Corrections should be made by bracketing the erroneous portions and stating corrections in the wide margin;
• should be kept in book form. If in longhand, a bound book should be used; if typewritten, use a loose-leaf, lock minute book. If using the latter, number each page; and
• should be signed, when approved, by the recorder and mayor.

Dates and Changes
In election law, there is no uniform date for municipal elections as there is for county elections. Private act charters prescribe election dates, and a private act municipality may change its election date by changing its charter. In addition to any existing charter provisions, a private act municipality may change its election via ordinance to coincide with the August or November general election. The ordinance changing an election date may extend terms for no more than two years as necessary to meet the general election date. T.C.A. § 6-54-138.

The general law mayor-aldermanic charter provides that the first election after the incorporation of the municipality shall be held no later than 62 days following the incorporation election; and it authorizes the board of mayor and aldermen to change its election date by ordinance to coincide with the August or November general election. The ordinance changing an election date may extend terms for no more than two years as necessary to meet the general election date. T.C.A. § 6-1-207, T.C.A. § 6-3-104.

The general law city manager-commission charter provides that the first election of commissioners shall be the fourth Tuesday following the incorporation election, and it authorizes the board of commissioners to change the election date by ordinance to coincide with the August or November general state election. The ordinance changing an election date may extend terms for no more than two years as necessary to meet the general election date. T.C.A. § 6-20-102.

The general law modified city manager-council charter provides that the first election of council members after the incorporation of the municipality shall be the fourth Tuesday following the incorporation election, and it authorizes the city council to change the election date by ordinance. The ordinance changing an election date may extend terms for no more than two years as necessary to meet the general election date. T.C.A. § 6-31-102.

Tennessee’s "Little Hatch Act" limits the political activity of certain government employees but does not apply to municipal employees. T.C.A. §§ 2-19-201, et seq. Some municipal charters and ordinances contain restrictions on the political activities of municipal employees; however, they have been superseded by T.C.A. § 7-51-1501. That statute expressly gives local government employees the same rights as other Tennessee citizens to engage in political activities and to run for state and most local government offices.The law contains one significant exception: Local government employees may not run for the local governing body unless authorized by law or local ordinance.

Only the names of "qualified" candidates may be on the ballot. T.C.A. § 2-5-204(a). In general, charter provisions requiring up to one year of residency in the city to qualify for office are valid. A person may not use a business or commercial address as a residence for purposes of the election code unless the person provides evidence of the residential use of the property. T.C.A. § 2-2-122.

No minimum age qualification for membership on the municipal governing body may be greater than 21 years at the time the member takes office. A minimum age of 18 is fixed to be a candidate for such an office. However, a minimum age between 18 and 21 for assuming office may be fixed by private act, charter provision, or ordinance, if authorized by charter. This law does not apply in a county with a metropolitan form of government. T.C.A. § 6-53-109.

A political advertisement must state the name of the person or group funding it and whether the candidate authorized the ad. T.C.A. § 2-19-120.

Within certain counties, it is illegal for anyone to attach posters, show cards, advertisements, or devices (including election campaign literature) on poles, towers, or public utility company fixtures – whether publicly or privately owned – unless legally authorized. T.C.A. § 2-19-144. Candidates are required to remove all election signs on highway rights of way and on other publicly owned property within three weeks after an election, but there is no penalty for failing to do so. T.C.A. § 2-1-116. In addition to these provisions, many cities have local ordinances regulating posters, advertisements, and devices on public property.

The Tennessee Supreme Court has held that "the right to hold an election does not exist absent an express grant of power by the legislature." (See Brewer v. Davis, 28 Tenn. 208 (1848); McPherson v. Everett, 594 S.W.2d 677, 680 (Tenn. 1980).) The Tennessee Attorney General’s office has consistently concluded under those cases that referenda are elections for which there must be statutory authorization. Op. Tenn. Atty. Gen. No. 86-146; 95-013.

Local Referenda Permitted
The following referenda are authorized under Tennessee law:

• General obligation bonds (T.C.A. §§ 9-21-201, et seq.);
• Liquor retail sales (package stores) or selling alcoholic beverages for consumption on the premises (T.C.A. §§ 57-3-101, et seq., T.C.A. §§ 57-4-101, et seq.);
• Annexation (T.C.A. §§ 6-51-104, et seq.);
• Local sales tax (T.C.A. §§ 67-6-701, et seq.);
• Adopting or surrendering the general law mayor-aldermanic charter (T.C.A. § 6-1-201), the city manager-commission charter (T.C.A. § 6-18-104), and the modified city manager-council charter (T.C.A. § 6-30-106);
• A private act passed by the General Assembly (Article XI, Section 9, of the Tennessee Constitution);
• Creating an emergency communications (911) district (T.C.A. §§ 7-86-101, et seq.);
• Recalling a city official if the charter permits (T.C.A. § 2-5-151);
• Adopting or amending home rule charters (Article XI, Section 9, of the Tennessee Constitution);
• Popular election of the mayor in cities incorporated under the uniform city manager-commission charter (T.C.A. § 6-20-201(b));
• Consolidating city and county government (T.C.A. §§ 7-1-101, 7-3-312, and 7-21-101, et seq.);
• Increasing the number of commissioners from five to seven for cities with a population greater than 20,000 incorporated under the uniform city manager-commission charter (T.C.A. § 6-20-101); and
• Approval of the issuance of retail liquor licenses to alcoholic beverage manufacturers (T.C.A.§ 57-3-204).

Referendum Election Procedures
The procedures for holding any type of referendum election generally are in the law that authorizes the election. If the legislation does not address a particular type of referendum, the provisions of the Election Code apply. Additionally, T.C.A. § 2-3-204 frequently applies, and T.C.A. § 2-12-111 and T.C.A. §§ 2-6-101, et seq., always apply. Elections regarding local option sales tax pursuant to T.C.A. § 67-7-706(a) shall be conducted according to T.C.A. § 2-3-204.

Resolutions, ordinances, or petitions requiring elections on questions to be held during the general election or the presidential primary must be filed with the county election commission at least  75 days before the election T.C.A. § 2-3-204(b).

The city attorney is required to summarize in 200 or fewer words any question exceeding 300 words that is to be submitted to the voters T.C.A. § 2-5-208(f).

T.C.A. § 2-5-208 requires any question submitted to the people in a local referendum to be followed by the words yes and no so the voter can mark an X opposite the proper word. Any question must be worded so that yes indicates support for and no indicates opposition to the measure.

All candidates for the chief administrative office (mayor), any candidates who spend more than $500, and candidates for other offices who pay at least $100 a month are required to file campaign financial disclosure reports. Members of a municipal or regional planning commission must also file a campaign disclosure report. Civil penalties of $25 per day are authorized for late filings. Penalties up to the greater of $10,000 or 15 percent of the amount in controversy may be levied for filings more than 35 days late. It is a Class E felony for a multi-candidate political campaign committee with a prior assessment record to intentionally fail to file a required campaign financial report. Further, the treasurer of such a committee may be personally liable for any penalty levied by the Registry of Election Finance. T.C.A. §§ 2-10-101–118.

Contributions to political campaigns for municipal candidates are limited to:

• $1,000 from any person (including corporations and other organizations);
• $5,000 from a multi-candidate political campaign committee;
• $20,000 from the candidate;
• $20,000 from a political party; and
• $75,000 from multi-candidate political campaign committees.

The Registry of Election Finance may impose a maximum penalty of $10,000 or 115 percent of the amount of all contributions made or accepted in excess of these limits, whichever is greater. T.C.A. §§ 2-10-301–310.

Each candidate for local public office must prepare a report of contributions that includes the receipt date of each contribution and a political campaign committee’s statement indicating the date of each expenditure. T.C.A. §§ 2-10-105, 107.

Candidates are prohibited from converting leftover campaign funds to personal use. The funds must be returned to contributors, put in the volunteer public education trust fund, or transferred to another political campaign fund, a political party, a charitable or civic organization, educational institution, or an organization described in 26 U.S.C. 170(c). T.C.A. § 2-10-114.

Conflict of interest disclosure reports by any candidate or appointee to a local public office are required under T.C.A. §§ 8-50-501, et seq. Detailed financial information is required, including the names of corporations or organizations in which the official or one immediate family member has an investment of more than $10,000 or 5 percent of the total capital. This must be filed no later than 30 days after the last day legally allowed for qualifying as a candidate. As long as an elected official holds office, he or she must file an amended statement with the Tennessee Ethics Commission or inform that office in writing that an amended statement is not necessary because nothing has changed. The amended statement must be filed no later than January 31 of each year. T.C.A. § 8-50-504.

Recall elections are available only if the municipality’s charter authorizes them. Procedures for recall elections are found in T.C.A. § 2-5-151, but these provisions do not apply in Nashville-Davidson County. Recall petitions must contain one or more specific grounds for removal. T.C.A. § 6-53-108.

Petitions for Recall, Referendum, or Initiative
T.C.A. § 2-5-151 outlines procedures for cities having charter provisions for recall, referendum, or initiative. The statute contains extensive rules, including:

• A registered voter must submit the prepared petition and question to the county election commission, which must certify within 30 days whether it is proper;
• The individual who files has 15 days to fix any problems;
• The petition must include the question, the printed name of each signer, the date of the signature, and the signatures of at least 15 percent of the city’s registered voters;
• The completed petition must be filed within 75 days after certification by the election commission and at least 60 days before the election; and
• Individuals have eight days after filing to remove their names from the petition.

Since July 1, 1997, a municipality has been allowed to enact or re-enact controlling charter requirements relative to the number of signatures required and the 75-day deadline after election commission certification of the petition. T.C.A. § 2-5-151.

So you want to adopt or continue an at-large election system where all the members of the governing body are elected from the municipality as a whole. Or, you want to adopt a combination district / at-large election system in which the majority of members of the governing body would be elected from districts and one or two would be elected at-large. Will either system survive a challenge on the ground that it discriminates against minority voters?

Well, yes and no. Local governments have successfully defended a tiny number of totally at-large systems and at least one combination district / at-large system (by agreement of the parties).

However, if the local government has a significant minority population and a less-than-pristine record of race relations, any at-large component of its electoral system is skating on thin ice. Besides, win or lose, the defense of such suits is horrendously expensive (if the city loses, it also pays the plaintiff’s attorney’s fees).

If that answer is not particularly helpful in individual municipalities, there is a good reason for it. The reason lies in the nebulous legal tests against which at-large and combination at-large / district electoral systems are measured that have grown out of the history of the statutes and cases in this area.

The Civil Rights Act of 1965 (act) banned a large number of election practices considered by the Congress to discriminate against minorities in violation of the Fifteenth Amendment to the United States Constitution. These practices include literacy tests, educational or knowledge tests, moral character tests, and proof of qualifications through registered voters or other classes. A major amendment to the act, passed in 1975, required many states and local governments to provide bilingual election forms, including ballots.

Section 2 of the act, which basically tracked the language of the Fifteenth Amendment, provided that:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4 (f)(2).

In applying Section 2, the federal courts disagreed on whether a Section 2 violation was triggered by election practices that were adopted with the intention to discriminate against minority groups or simply the effect of the practice.

The United States Supreme Court settled the disagreement in Mobile v. Bolden, 446 U.S. 55 (1980). That case involved a challenge under the Fourteenth and Fifteenth Amendments to the U.S. Constitution, and Section 2, of the at-large election system of the City of Mobile, Alabama. The city was governed by a commission consisting of three commissioners elected at-large. The commission was established in 1911, but no black had ever been elected under that system.

In fact, until 1973 none had ever sought office. However, the Supreme Court turned aside the challenge on the grounds that the Plaintiffs had not proved the election system was a “purposeful device to further racial discrimination.” Curiously enough, the Court reasoned that purposeful discrimination in establishing the system could not be proven because in 1911 blacks in Alabama were, for all practical purposes, disenfranchised; therefore there was no need on the part of the City of Mobile to adopt an at-large system to discriminate against them.

In response to Bolden’s requirement that proof of intentional discrimination was essential to an election practice claim under both the Fourteenth and Fifteenth Amendments to the U.S. Constitution, and Section 2, the Congress in 1982 amended Section 2 by writing into it an “effects test.” The intent and effect of that amendment was to overturn the “intentional test” of Bolden under Section 2. In fact, the Senate Judiciary Report on the bill whether “ a challenged practice or structure, prevents plaintiffs from having an equal opportunity to participate in the political process and to elect candidates of their choice” (emphasis in mine).

As amended in 1982, Section 2 presently reads as follows:

a. No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in Section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
b. A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that it members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered; Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population (emphasis is mine).

At-large election systems, then, are not per se unconstitutional or a violation of Section 2. They, like other election practices, stand or fall on a “totality of circumstances” test under Section 2.

However, because intentional discrimination is still essential to the proof of a voting rights discrimination case under the Fourteenth and Fifteenth Amendments to the United States Constitution, and
Section 2 requires only that the effect of the election practice in question be discriminatory, the latter has become the primary vehicle for at-large elections system challenges.

The only U.S. Supreme Court case that interprets the present Section 2 is the landmark case of Thornburg v. Gingles, 106S.Ct. 2752 (1986). In striking down most of the redistricting plan of the North Carolina General Assembly on the grounds that it diluted the vote of black citizens in certain districts, the Court announced a three-pronged test for proving a minority voter dilution claim under Section 2. A plaintiff must show that:

• The minority is sufficiently large and geographically compact enough to constitute a majority in a single-member district.
• The minority is politically cohesive.
• The majority votes sufficiently as a block to enable it — in the absence of special circumstances, such as an unopposed minority candidate — usually to defeat the minority’s preferred candidate.

The Court went on to say that, “Stated succinctly, and bloc voting majority must usually be able to defeat candidates supported by a politically cohesive geographically insular minority group” (emphasis is mine).

If a local government possessed no other information than the history of Section 2, it should be on notice that if it has a significant minority population in identifiable pockets, an at-large election system or a combination district / at-large is automatically suspect.

The Voting Rights Act of 1965, as amended, generally, and Section 1 of that act, as amended after Bolden, in particular, express a clear intention on the part of Congress to snuff out any kind of election practice that operates to the detriment of minority groups. At-large provisions created or preserved in such cities after 1982 are invitations to legal trouble even if they were, or are, established with no discriminatory intent in mind.

The reason it is difficult to answer the question of whether a proposed district / at-large combination in a particular municipality would withstand challenge is that there are no simple rules or standards against which to measure any particular at-large or combination district / at-large election system, either before its adoption or after is challenged.

Even the U.S. Supreme Court in Gingles could not agree on what kind of evidence will satisfy the proof of a violation of each prong of the three-pronged test. Under the “totality of circumstances” test, the determination of whether a system complies with Section 2, can require some incredibly complicated and expensive analysis. In theory, that should be the plaintiff’s problem; in reality, it is usually municipalities that end up on the complicated, expensive defensive in most at-large cases.

However, one ironclad rule can be observed in the at-large electoral system cases: if under the old election system no blacks, or few were ever elected to office, that system will not stand constitutional muster . The corollary is that if under a proposed election system it is likely that no blacks, or few blacks will be elected to office, the system will not stand constitutional muster.

Beyond that simple rule, a municipality’s defensive problems are compounded by the Senate Judiciary Report’s list of nine “objective” factors the Courts are to use in analyzing a Section 2 claim

• The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise participate in the democratic process.
• The extent to which voting in the elections of the state or political subdivision is racially polarized.
• The extent to which the state or political subdivision has used unusually large election districts, majority voter requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group.
• If there is a candidate slating process, whether the members of the minority group has been denied access to that process.
• The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.
• Whether political campaigns have been characterized by overt or subtle racial appeals.
• The extent to which members of a minority group have been elected to public office in the jurisdiction.
• Whether there is a significant lack of responsiveness on part of elected officials to the particularized needs of the members of the minority group.
• Whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisites to voting. or standard, practice or procedure is tenuous.

But that list of rules is not a comprehensive and exclusive one, and there is no requirement that any particular factors proven, the Senate Judiciary Report continued. In other words, the “totality of circumstances” test permits the plaintiff to use the shotgun approach in his presentation of evidence of discriminatory effect. Any evidence or perceived evidence of discrimination in, as well as by, the city is allowed to be shot forth as evidence of election practices discrimination.

That list of rules has been used in one form or another by the courts in virtually all of the cases challenging at-large systems since Gingles. Many courts have gotten even into white-minority income comparisons as evidence of a lesser ability on the part of the latter to participate in the electoral process!

For an outstanding and devastating example of the Senate Judiciary Committee rules applied in a Tennessee Case, see Buchanan v. City of Jackson, 683 F.Supp. 1515 (1988) in which court developed a 170 year of discrimination against blacks in and by the City of Jackson.

What the Gingles three-pronged test and the “factors” that go into an analysis of a Section 2 case mean is that how a case is actually analyzed is “judge’s choice.” As one prominent writer on the subject pointed out:

Because the nine factors of the Senate Report remain relevant, and because of the presence of constitutional claims, proof in at-large election cases extends backward to formation of a local government in the Nineteenth Century, and extends forward to cover the fairness to minorities of every aspect of current government operations: hiring, housing, urban renewal and relocations, street improvements, school operations and curricula, and the provision of all government services…(emphasis is mine). (Rhyne, William S., Preparing and Trying the At-Large Election Voting Rights Case).

In other words, the at-large system analysis can become an as complicated and comprehensive look into the history of the municipality as the judge wants to make it, and the outcome can be totally unpredictable, depending upon which proof the judge wants to accept or ignore.

Although at-large election systems are not per se unconstitutional or a violation of Section 2, there is a judicial bias against them. While some have been upheld, they have generally received rough treatment in the courts, including in Jackson and Chattanooga.

No matter what good arguments justify at-large systems, where there is a significant minority population in identifiable pockets, they are viewed as an instrument which either dilutes, or have the high potential to dilute, the voting strength of minority groups.

While Section 2 specifically says that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population,” arguably, cases brought under that section lead to roughly that result.

The lengths to which the courts have gone to overturn local election practices clearly not designed with discriminatory intent in mind and defensible on common sense grounds is seen in NAACP v. City of Statesville, 606 F.Supp. 569 (1985). In that case the parties agreed to a combination district / at large system in which some of the district seats contained a majority black voting age population.

However, the city supported staggered two year terms, the plaintiffs non-staggered four year terms, for the at-large offices. The Court was asked to resolve that difference in a way that would lead to the least diminution of minority voting power. The Court decided that the at-large seats would be filled in non-staggered elections because that method permitted single-shot voting and candidate support trade off agreements between white and black candidates. The terms of office would be for four years because the blacks were less economically able than whites to sustain the cost of more frequent elections.

In theory, a redistricting scheme which incorporates one or two at-large seats would insure the election of members of the minority to office, thereby satisfying Section 2 and Gingles. But a careful reading of Section 2 and the Senate Judiciary Committee Report’s nine rules lead the court’s to ask In theory, a redistricting scheme which incorporates one or two at-large seats would insure the election of members of the minority to office, thereby satisfying Section 2 and Gingles. But a careful reading of Section 2 and the Senate Judiciary Committee Report’s nine rules lead the court’s to ask two questions about minority representation under such a system: (1) Does it permit the minority group to elect minority officeholders? And (2) Does it provide the minority group political power? Minorities may be elected by office in “proper” number in satisfaction of Section 2 and Gingles under a combination district / at-large election system, but conceivably find their political power diluted by the at-large office holders. The court will assure itself that both question are answered in favor of the minority.

Although Section 2 and Gingles may have had in mind voting power as opposed to political power, the latter has become a major component of the “totality of circumstances” test.

In fact, evidence of that can be seen in Buchanan v. City of Jackson, 683 F.Supp. 1537 (1988) in which the Court fashioned a remedy to the at-large election system it had found in violation of Section 2 in Buchanan v. City of Jackson, 683 F.Supp. 1515 (1988). A proposal by the City of Jackson called for the board of nine commissioners, six district commissioners to be elected from single member districts, and three administrative commissioners to elected at-large.

The three administrative commissioners were to be responsible for the administration of the City of Jackson in virtually the same manner as was the old board of three commissioner struck down by the Court. The Court rejected that plan on the premises that the election of all the administrative commissioners at-large would not remedy effects of past discrimination, which included, among other things, under employment of blacks as City employees, poorly maintained streets in black communities, and the total absence of blacks elected to City administrative ositions or appointed to head any department.

If there has been past discrimination on the part of the city, it is very easy for a court to find that any proposed system in which the majority voters can elect the controlling faction n the governing body perpetuates the effects of past discrimination.

Assume that there are five members of the governing body, two elected from majority districts, two from minority districts, and one elected at-large. If the total number of the majority oting age population in the municipality exceeds the total number of the minority voting age population, the at-large member of the governing body would, given polarized voting, lways be elected by the majority. In addition, he or she would hold the swing vote on the governing body. On the whole, it is not worthwhile to defend an at-large or even a district / at-large election system any place in Tennessee where there are significant identifiable pockets of blacks, unless the city in question has an immaculate history on discrimination. It is essential to remember that the issue here is not whether the municipality intended to discriminate, but whether there was and is discrimination.

Several good Tennessee Attorney General’s opinions and publications from various sources have been written on this subject.

SECTION 1. This section provides that the code of ethics adopted by the municipal governing body applies to all full-time and part-time elected and appointed officials, whether compensated or not. It also applies to members and employees of separate boards, authorities, and commissions created by the municipality except the school board, which adopts its own code. This includes planning commissions, boards of zoning appeals, beer boards, airport authorities and housing authorities, among others. These applications of the code of ethics are mandated by the Ethics Act passed by the General Assembly.

SECTION 2. The Ethics Act passed by the General Assembly requires that “personal interests” that affect or appear to affect the actions of municipal officials and employees must be disclosed, but the state statute does not define “personal interests.” This section defines those interests. This is a broad definition and is much more encompassing than the state’s conflict of interests laws. It includes ANY financial, ownership, or employment interest of an official or employee in a business or entity the municipality does business with, regulates or supervises. It also includes these interests of the listed family members of the official or employee. It includes situations in which the official, employee or family member is negotiating employment with an affected entity. There is some overlap with indirect interests under state law, but most of the situations to which this provision in the code of ethics applies will not be covered by the conflicts of interests laws. An example would be a family member of a member of the governing body who is an employee of a business seeking to do business with the municipality. This would not be a direct or indirect conflict of interests under the state law, but it would be a personal interest that would have to be disclosed under this definition. This section provides that when there is an overlap with the conflicts of interests laws, those laws take precedence.

SECTION 3. This section requires an official with the responsibility to vote to disclose any of his or her personal interests that might affect his or her discretion before the vote so that they appear in the minutes. The state statute does not require an official with a personal interest to recuse himself from voting. The implication of the statute is to the contrary and that after disclosure the official may vote. Nevertheless, this section allows, but does not require, the official to recuse himself.

SECTION 4. This section applies to employees and officials who must exercise discretion in matters that do not require a vote. The official or employee should, when possible, disclose the personal interest before the exercise of the discretion. Again, recusal is not required, but this section allows it when it is permitted by law, charter, ordinance or policy of the municipality.

SECTION 5. This section prohibits an official or employee from taking any money, gift, favor, or other gratuity from anyone other than the municipality for the performance of the official’s or employee’s regular duties or that gives the appearance of attempting to influence the discretion of the official or employee in carrying out municipal business. This is a somewhat modified version of a provision that most municipalities already have on the books. An alternative to this gift prohibition that is allowed by the state ethics statute would be to allow gifts and gratuities up to a certain amount but to require reporting of those items. MTAS decided on prohibition because it is simpler to implement and because most cities already have similar provisions.

SECTION 6. This section prohibits officials and employees from disclosing confidential information and from disclosing any other information with the intent to result in financial gain. Again, these are common provisions in ethics ordinances that some cities have already adopted.

SECTION 7. This section prohibits officials and employees from using or authorizing the use of municipal time and facilities for their own financial gain. It also prohibits this for other entities or individuals unless it is authorized by contract or lease determined by the governing body to be in the best interests of the municipality. This is a provision similar to ones that have been adopted by many municipalities.

SECTION 8. This section prohibits officials and employees from using their position to make private purchases in the name of the municipality and from using their position to gain privileges or exemptions that are not authorized by charter, general law, ordinance, or policy. These provisions are similar to provisions adopted by many municipalities.

SECTION 9. This section prohibits outside employment by officials or employees if the outside work interferes with municipal duties or is in conflict with any provision of the charter, any ordinance, or any policy of the municipality. Many municipalities have adopted similar provisions.

SECTION 10. This section provides methods for bringing and investigating complaints of violations of the code of ethics. The city attorney is designated as the ethics officer and may issue written opinions when requested on whether certain conduct would comply with the code of ethics and other applicable law. The city attorney is designated to receive and investigate complaints about officials and employees who are not members of the governing body. The attorney may request that the governing body designate another person or entity to act as ethics officer when he or she has a conflict of interests. The governing body must determine the merit of complaints against its members. If the governing body determines that a complaint warrants further investigation, it must authorize the investigation by the city attorney or another person or entity chosen by the governing body. An alternative to appointing the city attorney as ethics officer would be to appoint another individual, such as another attorney or a retired judge. If a municipality chooses to do this, it probably would want to provide for the appointment of the ethics officer after each municipal election. The position could be compensated or uncompensated, although it is unlikely many individuals would be willing to serve if the position is not compensated. Another acceptable alternative would be to establish a board of ethics to perform these functions. For municipalities that choose this alternative, MTAS suggests a three-member board to be appointed by the governing body. Terms probably should be three years. Because many municipalities already have personnel policies that deal with some of the same behaviors regulated by the code of ethics, this section provides that when a violation of the code of ethics also constitutes a violation of a personnel or civil service policy, rule, or regulation, the violation would be handled as a violation of the personnel provisions rather than as a violation of the code of ethics. This section also provides for a “reasonable person” interpretation and enforcement of the code of ethics. MTAS chose the above provisions for designating the ethics officer and for handling ethics complaints for the model code of ethics because they seemed simpler, less costly, and most appropriate for most Tennessee municipalities.

SECTION 11. This section provides for punishment for violations. Elected officials and appointed members of boards and commissions are punishable as already provided by law and, in addition, are subject to censure by the governing body. Appointed officials and employees are subject to disciplinary action. Municipalities that adopt the MTAS Model Code of Ethics must send a notice that it has been adopted, including the date of adoption, to the Tennessee Ethics Commission. Municipalities that do not adopt the MTAS model must send a copy of the ordinance they do adopt to the Ethics Commission. Send the notice to:

Tennessee Ethics Commission

404 James Robertson Parkway

Suite 104

Nashville, TN 37243

ethics.counsel@tn.gov [3]

Code of Ethics [1]

SECTION 1. Applicability. This chapter is the code of ethics for personnel of the municipality. It applies to all full-time and part-time elected or appointed officials and employees, whether compensated or not, including those of any separate board (except school board), commission, committee, authority, corporation, or other instrumentality appointed or created by the municipality. The words “municipal” and “municipality” include these separate entities.

SECTION 2. Definition of “personal interest.”
(1) For purposes of Sections 3 and 4, “personal interest” means:
(a) Any financial, ownership, or employment interest in the particular entity or person that is the subject of a vote by a municipal board not otherwise regulated by state statutes on conflicts of interests; or
(b) Any financial, ownership, or employment interest in the entity or person to be regulated or supervised; or
(c) Any such financial, ownership, or employment interest of the official’s or employee’s spouse, parent(s), stepparent(s), grandparent(s), sibling(s), child(ren), or stepchild(ren).

(2) The words “employment interest” include a situation in which an official, an employee or a designated family member is negotiating possible employment with a person or entity that is the subject of the vote or that is to be regulated or supervised.

(3) In any situation in which a personal interest is also a conflict of interest under state law, the provisions of the state law take precedence over the provisions of this chapter.

SECTION 3. Disclosure of personal interest by official with vote. An official with the responsibility to vote on a measure shall disclose during the meeting at which the vote takes place, before the vote and so it appears in the minutes, any personal interest that affects or that would lead a reasonable person to infer that it affects the official’s vote on the measure. In addition, the official may recuse himself from voting on the measure.

SECTION 4. Disclosure of personal interest in nonvoting matters. An official or employee who must exercise discretion relative to any matter, other than casting a vote, and who has a personal interest in the particular person or entity being regulated or supervised that affects or that would lead a reasonable person to infer that it affects the exercise of the discretion shall disclose the interest on a form provided by and filed with the recorder before the exercise of the discretion when possible. In addition, the official or employee may, to the extent allowed by law, charter, ordinance, or policy, recuse himself from the exercise of discretion in the matter.

SECTION 5. Acceptance of gratuities, etc. An official or employee may not accept, directly or indirectly, any money, gift, gratuity, or other consideration or favor of any kind from anyone other than the municipality:
(1) For the performance of an act, or refraining from performance of an act, that he would be expected to perform, or refrain from performing, in the regular course of his duties; or
(2) That might reasonably be interpreted as an attempt to influence his discretion, or reward him for past exercise of discretion, in executing municipal business.

SECTION 6. Use of information.
(1) An official or employee may not disclose any information obtained in his official capacity or position of employment that is made confidential under state or federal law except as authorized by law.
(2) An official or employee may not use or disclose information obtained in his official capacity or position of employment with the intent to result in financial gain for himself or any other person or entity.

SECTION 7. Use of municipal time, facilities, etc.
(1) An official or employee may not use or authorize the use of municipal time, facilities, equipment, or supplies for private gain or advantage to himself.
(2) An official or employee may not use or authorize the use of municipal time, facilities, equipment, or supplies for private gain or advantage to any private person or entity, except as authorized by legitimate contract or lease that is determined by the governing body to be in the best interests of the municipality.

SECTION 8. Use of position or authority.
(1) An official or employee may not make or attempt to make private purchases, for cash or otherwise, in the name of the municipality.
(2) An official or employee may not use or attempt to use his position to secure any privilege or exemption for himself or others that is not authorized by the charter, general law, or ordinance or policy of the municipality.

SECTION 9. Outside employment. An official or employee may not accept or continue any outside employment if the work unreasonably inhibits the performance of any affirmative duty of the municipal position or conflicts with any provision of the municipality’s charter or any ordinance or policy.

SECTION 10. Ethics complaints.
(1) The city attorney is designated as the ethics officer of the municipality. Upon the written request of an official or employee potentially affected by a provision of this chapter, the city attorney may render an oral or written advisory ethics opinion based upon this chapter and other applicable law.
(2) (a) Except as otherwise provided in this subsection, the city attorney shall investigate any credible complaint against an appointed official or employee charging any violation of this chapter, or may undertake an investigation on his own initiative when he acquires information indicating a possible violation and make recommendations for action to end or seek retribution for any activity that, in the attorney’s judgment, constitutes a violation of this code of ethics.
(b) The city attorney may request that the governing body hire another attorney, individual, or entity to act as ethics officer when he has or will have a conflict of interests in a particular matter.
(c) When a complaint of a violation of any provision of this chapter is lodged against a member of the municipality’s governing body, the governing body shall either determine that the complaint has merit, determine that the complaint does not have merit, or determine that the complaint has sufficient merit to warrant further investigation. If the governing body determines that a complaint warrants further investigation, it shall authorize an investigation by the city attorney or another individual or entity chosen by the governing body.
(3) The interpretation that a reasonable person in the circumstances would apply shall be used in interpreting and enforcing this code of ethics.
(4) When a violation of this code of ethics also constitutes a violation of a personnel policy, rule, or regulation or a civil service policy, rule, or regulation, the violation shall be dealt with as a violation of the personnel or civil service provisions rather than as a violation of this code of ethics.

SECTION 11. Violations. An elected official or appointed member of a separate municipal board, commission, committee, authority, corporation, or other instrumentality who violates any provision of this chapter is subject to punishment as provided by the municipality’s charter or other applicable law and, in addition, is subject to censure by the governing body. An appointed official or an employee who violates any provision of this chapter is subject to disciplinary action.

^[1] State statutes dictate many of the ethics provisions that apply to municipal officials and employees. For provisions relative to the following, see the Tennessee Code Annotated sections indicated:
Campaign finance — T.C.A. Title 2, Chapter 10.
Conflict of interests — T.C.A. §§ 6-54-107, 108; 12-4-101, 102.
Conflict of interests disclosure statements — T.C.A. §§ 8-50-501 et seq.
Consulting fee prohibition for elected municipal officials — T.C.A. §§ 2-10-122, 124.
Crimes involving public officials (bribery, soliciting unlawful compensation, buying and selling in regard to office) — T.C.A. § 39-16-101 et seq.
Crimes of official misconduct, official oppression, misuse of official information — T.C.A. §§39-16-401 et seq. Ouster law — T.C.A. §§ 8-47-101 et seq.

City officials should work with the Tennessee Municipal League (TML) to stay abreast of legislative happenings. The league is the eyes, ears, and voice of cities on Capitol Hill. City officials should inform the league as early as possible of the need for legislation or the city’s intent to have legislation introduced. This same advice holds true for other organizations that want to have legislation affecting cities adopted.

Many awkward situations and much embarrassment can be avoided simply by informing the league of proposed legislation. Following are examples of what can happen when cities don’t coordinate efforts with TML.

The league drafted a general bill amending a particular section in T.C.A. A city had a bill drafted and introduced that amended the same section in its entirety. The league’s bill passed, and the city’s bill passed afterwards. Since the league’s bill amended only part of the section and the city’s bill amended the whole section, the city’s bill wiped out the amendment affected by the league’s bill. The league had to draft and gain passage of similar legislation during the next legislative session. This embarrassing incident could have been avoided by one phone call from the city to the league.

In a similar situation, an organization that works for cities had legislation drafted and introduced, but did not inform the league. The legislation died, partly because the league had not lobbied for it. Fortunately, there was a similar legislation pending in a committee. After a plea for help from the organization and a great deal of effort, the league was able to aid the organization in passing that legislation.

So, it is extremely important to follow this rule: Inform TML of legislation your city needs or intend to have introduced.

Legislation should be drafted as far in advance of the legislative session as possible. This should be done not only to easily meet deadlines, but to make sure the legislation is correct and acceptable to other groups. Support, or even lack of opposition, from such groups can be crucial to legislation passage. One way to gain support or reduce opposition is to let interested groups or organizations review the proposed legislation beforehand and suggest any needed changes. These reviews can take much time.

The larger cities in the state have their own staff attorneys who draft legislation for them. The league or MTAS often drafts bills for smaller cities and public acts affecting all cities. Also, city attorneys may draft legislation for smaller cities. No matter who does the work, inform TML.

Telling the league of your city’s need for a public act might relieve you of everything but asking your legislators to vote for the bill. The league can have the bill drafted and introduced, and will even shepherd it through the legislature. The league might tell you that no legislation is needed, or that a private act, as opposed to a public act, is required.

Once the bill is drafted, it usually will be submitted to the General Assembly’s Office of Legal Services. This department often changes a bill’s wording, so carefully check the language coming out of this office to make sure the bill’s meaning has not been altered. The Office of Legal Services enters the bill in the legislature’s computer system, which keeps track of bills and amendments. This department will also place the bill in Senate and House color-coded folders (jackets) and make it ready for introduction.

After a bill has been jacketed, it is ready to be given to a sponsor — a member of the Senate or House who agrees to help pass the bill. The sponsor must explain the bill in committee hearings and on the floors of the respective houses. Choosing a sponsor can be very important to a bill’s passage.

Different legislators have different interests. Some legislators know a great deal about fiscal and tax matters and therefore like, or at least are willing to sponsor, bills dealing with those subjects. Others are interested in agriculture, conservation, and a whole range of other subjects. There are some legislators who are particularly concerned with and act favorably toward cities. Knowing which legislators are interested in what is one of the keys to finding good sponsors.

A sponsor must be obtained for each bill in each House. Securing a sponsor means going to the selected legislator, explaining the bill, and asking him or her to sponsor it. Often sponsors agree; sometimes they don’t. Sometimes they agree to sponsor if certain changes are made. When they don’t agree to sponsor the bill for some reason, or if they ask for too many changes, other sponsors must be found. Once you’ve gained a willing sponsor, he or she must file the bill with the clerk of the sponsor’s House, who assigns the bill a number. In the Senate, the number of the first bill introduced will be SB 1 (short for Senate Bill Number 1). In the House, the first bill will be HB 1 (short for House Bill Number 1), and so on. Each bill in one House should have an identical, or companion, bill in the other House. The companion bills, although identical, will not usually have the same bill numbers. It should be pointed out here that each House has rules setting deadlines, or bill cutoff dates, for introducing general bills. These deadlines make it imperative to draft all bills by the beginning of each legislative session.

Bills may be pre-filed before the beginning of each session, however, in accordance with T.C.A. 3-2-108 and 109 (see Provisions from Tennessee Code Annotated [4]). Pre-filing a bill simply means dropping it in the legislative hopper before the session starts. Bills must be passed on three different days to become law. The first two considerations are usually routine, and bills are passed en masse. The third consideration is when the bill, if it makes it that far, will get individual scrutiny. Before getting to the floor for the third consideration, however, the bill must be considered by at least one Standing Committee and scheduled for floor action by the Calendar Committees of each House. The Calendar Committee in the Senate merely schedules bills for floor action if they have been approved by the proper Standing Committee. In the House, the Calendar and Rules Committee exercises greater authority and may schedule the bill, defeat the bill, or send it back to the committee from which it came.

Once a bill has been passed routinely on first and second consideration, the speaker will assign the bill to a committee based on its subject matter. Bills affecting cities often go to the State and Local Government Committees of the two houses. Bills dealing with local taxes and others concerned only with finances generally go directly to the Finance, Ways and Means Committees of each House. Any bill having a large fiscal impact (the exact dollar figure is set in the rules of each House for each session), no matter what its subject, must go to the Finance, Ways and Means Committees after it has received approval by the Standing Committee that deals with the subject matter. Thus, bills with a large fiscal impact often must be approved by two Standing Committees — the committee concerned with the subject matter and the committee dealing with finances.

In addition to the committee system, the House of Representatives uses subcommittees as well. Thus, a bill assigned to a particular committee will then be assigned to a subcommittee based on its subject matter. Subcommittees function like small committees and create one additional hurdle for bills in the House.

Bills in committee are set for a hearing by the chair, in consultation with the vice chair and secretary. Bills generally are placed automatically on calendars in the Senate committees. But, the committee chair and those he or she consults with must consider both the legislation’s necessity and importance to determine how early or late to place bills on the calendar. In House committees, when sponsors ask the bills be put on the calendar, they are generally place on the calendar first.

The calendar, or the list of bills that a committee will consider, is published before each committee meeting. The calendar for the meetings of each committee must be reviewed by local government lobbyists and others to determine which bills in what committees affect cities. All committees must be monitored. The interests of municipalities are so wide-ranging that legislation in any committee in either House can affect them.

Once it has been determined that a bill affects municipalities, it must be decided whether the impact is good, bad, or neutral. This task is not always easy. However, a decision has to be made, often in a short amount of time. If a bill is bad, local government lobbyists will lobby against the bill. If a bill is good, local government lobbyists will not lobby against it and might lobby for it. The calculations that determine legislative action can be very complex. Let’s say a bill is moderately positive for cities, but one of the committee members is strongly opposed to it. If this member is a friend of cities and can help municipalities later, it might be determined not to lobby for the bill at the risk of upsetting a friend.

(Lobbying, by the way, means trying to persuade legislators to vote the way you want them to vote or to do what you want them to do. Local governments lobbyists do this by marshaling facts and figures to support their positions and by using logic, reason, and appeals to fairness, common sense, and friendship. To help make lobbying decisions and assignments and to coordinate their efforts, local government lobbyists have formed a lobbying group, made up of lobbyists from TML, the Tennessee County Services Association, the Tennessee County Executives Association, the Tennessee County Commissioners Association, the Tennessee County Highway Officials Association, and the larger cities in Tennessee. Occasionally other lobbyists, such as those for the County Officials Association of Tennessee, also join the group. It meets each day when the legislature is in session to go over the next day’s calendars and plan legislative strategy.)

When a bill is considered in committee, the sponsor must come before the group to explain it and answer questions. For the sponsor to do this, the group or organization that initiated the bill will have to provide him or her with information about the bill and its impact. To prepare for committee hearings, sometimes sponsoring legislators will ask for specific details about the bill’s necessity or effects.If no group has lobbied against a bill and the sponsor does a good job of explaining it, the committee hearing generally will go smoothly.

The committee hearings are usually where opposition surfaces, if it hasn’t already. Several legislators might oppose the bill, ask difficult questions, or indicate the need to change the bill before they can vote for it. Legislators might propose specific amendments to the bill and otherwise prod the sponsor to alter it. If it becomes clear that there are not enough votes to pass the bill out of committee without major modifications, the sponsoring legislator often will ask to put off the bill for future consideration so the conflicting sides can reach a compromise. Opposition, questions, and proposed changes to the bill more often than not are the result of lobbying by a group or groups opposed to the measure. This lobbying often will result in either killing the bill altogether or producing a bill both sides find acceptable.

Sometimes the difficult questions that legislators ask in committee hearings are not the result of lobbying, but of the legislators’ own concerns. Legislators are not shy about questioning a bill if they find it objectionable or if they don’t understand it. It’s impossible to anticipate every question people might ask about a bill or every argument they might use against it. Therefore, when TML or other city bills are before a committee, there is always someone from the TML staff or another local government lobbyist present who can help the sponsor. Also, if committee members propose amendments, the staff person can tell the sponsor and committee if the amendments are acceptable or if the sponsor should ask to delay the bill so the amendments can be reviewed and options explored.

When opposition amendments have been proposed, options include accepting the amendments, making counterproposals relative to amendments, making some other trade-off connected to the bill, withdrawing the bill, or attempting to pass the bill without amendments. Decisions on these options depend on the bill’s importance, the strength of support for and opposition to the bill, and the effect this legislation would have on other TML bills and TML’s relationships with different legislators. Again, the complexity of the legislative process manifests itself.

Once a bill has been passed by the committee, it must go to the Calendar Committee (Senate) or Calendar and Rules Committee (House) for scheduling for the floor action, unless the bill has a large fiscal impact. Then it must go the Finance, Ways and Means Committee first for approval. As noted earlier, the Calendar Committee in the Senate merely schedules bills for floor action. The Calendar and Rules Committee in the House may delay or kill a bill or schedule it for floor action.

If the governor signs the bill when it is presented, it becomes law as provided for in the bill. If he or she vetoes the bill, the governor must return it, with written objections, to the House in which it originated. For the vetoed bill to become a law, the veto must be overridden in both houses by a majority of the elected members. If the governor fails to take any action on a bill within 10 calendar days (Sundays excepted) after it has been presented, it becomes law without his or her signature.

From Article 2

Sec. 8. Legislative sessions — governor’s inauguration. The General Assembly shall meet in organizational session on the second Tuesday in January next succeeding the election of the members of the House of Representatives, at which session, if in order, the governor shall be inaugurated. The General Assembly shall remain in session for organizational purposes not longer than 15 consecutive calendar days, during which session no legislation shall be passed on third and final consideration. Thereafter, the General Assembly shall meet on the first Tuesday next following the conclusion of the organizational session unless the General Assembly by joint resolution of both houses sets an earlier date.

The General Assembly may by joint resolution recess or adjourn until such time or times as it shall determine. It shall be convened at other times by the governor as provided in Article III, Section 9, or by the presiding officers of both houses at the written request of two-thirds of the members of each House.

Sec. 17. Origin and frame of bills. Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

Sec. 18. Passage of bills. A bill shall become law when it has been considered and passed on three different days in each House and on third and final consideration has received the assent of a majority of all the members to which each House is entitled under this constitution, when the respective speakers have signed the bill with the date of such signing appearing in the journal, and when the bill has been approved by the governor or otherwise passed under the provisions of the constitution.

Sec. 19. Rejection of bill. After a bill has been rejected, no bill containing the same substance shall be passed into a law during the same session.

Sec. 20. Style of laws — effective date. The style of the laws of this state shall be, “Be it enacted by the General Assembly of the State of Tennessee.” No law of a general nature shall take effect until 40 days after its passage unless the same or the caption thereof shall state that the public welfare requires that it should take effect sooner.

From Article 3

Sec. 18. Bills to be approved by the governor — governor’s veto — bills passed over governor’s veto. Every bill which may pass both houses of the General Assembly shall, before it becomes a law, be presented to the governor for his signature. If he approves, he shall sign it, and the same shall become a law; but it he refuses to sign it, he shall return it with his objections thereto, in writing, to the House in which it originated; and said House shall cause said objections to be entered at large upon its journal and proceed to reconsider the bill. If after such reconsideration, a majority of all members elected to that House shall agree to pass the bill, notwithstanding the objections of the executive, it shall be sent, with said objections, to the other House, by which it shall be likewise reconsidered. If approved by a majority of the whole number elected to that House, it shall become a law. The votes of both houses shall be determined by yeas and nays, and the names of all members voting for or against the bill shall be entered upon the journals of their respective houses.

If the governor shall fail to return any bill with his objections in writing within 10 calendar days (Sundays excepted) after it shall have been presented to him, the same shall become a law without his signature. If the General Assembly by its adjournment prevents the return of any bill within said 10-day period, the bill shall become a law, unless disapproved by the governor and filed by him with his objections in writing in the office of the secretary of state within said 10-day period.

Every joint resolution or order (except on question of adjournment and proposals of specific amendments to the constitution) shall likewise be presented to the governor for his signature, and on being disapproved by him shall in like manner, be returned with his objections; and the same before it shall take effect shall be repassed by a majority of all the members elected to both houses in the manner and according to the rules prescribed in case of a bill.

The governor may reduce or disapprove the sum of money appropriated by any one or more parts of items in any bill appropriating money, while approving other portions of the bill. The portions so approved shall become law, and the items or parts of items disapproved or reduced shall be void to the extent that they have been disapproved or reduced unless repassed as hereinafter provided. The governor, within 10 calendar days (Sundays excepted) after the bill shall have been presented to him, shall report the items or parts of items disapproved or reduced with his objections in writing to the House in which the bill originated, or if the General Assembly shall have adjourned, to the office of the secretary of state. Any such items or parts of items so disapproved or reduced shall be restored to the bill in original amount and become law if repassed by the General Assembly according to the rules and limitations prescribed for the passage of other bills over the executive veto.

Much the same procedure takes place on the floor of the two houses as in committees. The floor calendar is published in advance. Lobbyists do their work. At the time for hearing the bill, the sponsor will be recognized to explain the bill and answer questions. Any amendments that have been added to the bill in committee also must be approved by the entire House or Senate. The rules provide that the chair (or designee) of the committee that added the amendments must explain them. Usually, the chair designates the sponsor of the bill to explain these amendments. They also may be proposed from the floor. Amendments are voted on before the bill. To pass on third consideration, the bill must receive the votes of a majority of all members to which each House is entitled (50 in the House of Representatives and 17 in the Senate).

Bills must pass both houses in identical form. The process described above for committee action and floor action doesn’t occur simultaneously in both houses. A bill may work its way through the Senate weeks or even months before consideration in the House. Often, by the time a bill has passed the first House, all concerned parties have been heard, agreements have been reached, and necessary amendments have been made. Thus, the amended version of the bill passes one House while an unamended or different version might get to the floor of the second. When this happens, the version that passed in the first House is substituted for the version still on the floor of the second House. The sponsor in the second House motions to “substitute and conform” the bill to the one that has already passed. The motion to substitute and conform generally is approved, and the same version of the bill passes both houses.

Sometimes, however, different amendments are added to a bill in the committees or on the floors of the two houses. If two different versions do pass the two houses, each must approve amendments added by the other. On rare occasions where the two houses cannot agree, a Conference Committee, composed of members of both houses, may be created to reconcile differences. The recommendations of the Conference Committee also must be approved by the two houses. Once the bill is passed in identical form by both houses, it is engrossed and signed by the speakers of the House and Senate and sent to the governor for consideration.

§ 3-2-102. Presentation to governor. Every bill, joint resolution, or order, except on questions of adjournment and proposals of specific amendments to the constitution, shall, after the same has been passed, enrolled, and signed by the speakers of both houses of the General Assembly, be presented by the Committee on Enrolled Bills of that House wherein such bill, joint resolution, or order originated, to the governor for his signature; and said committee shall report that they have presented the bill, joint resolution, or order to the governor for his signature, and the date of such presentation, which report shall be entered on the journal of that House to which such committee belongs; provided, that no bill, joint resolution, or order shall be presented to the governor until the time for moving a reconsideration shall have expired, unless expressly ordered by that House wherein such bill, joint resolution, or order originated; and provided further, that the speaker of the Senate shall first sign all bills and joint resolutions originating in the Senate, and the speaker of the House of Representatives shall first sign all bills and joint resolutions originating in the House of Representatives.

§ 3-2-103. Approval of governor. If the governor approves the bill, joint resolution, or order, he shall write upon the same, to the left of and below the signatures of the speakers of the two houses, the fact and date of his approval, as follows: “ Approved ________________________, 20______,” and shall sign the same as follows: “_______________________, governor.”

§ 3-2-104. Failure of government to return. If, while the General Assembly remains in session, the governor shall fail to return any bill, joint resolution, or order, with his objections, within 10 days (Sundays excepted) after it shall have been presented to him, it shall be the duty of the Committee on Enrolled Bills of that House wherein such bill, joint resolution, or order originated to cause said bill, joint resolution, or order forthwith to be re-enrolled; and the same shall thereupon be signed by the respective speaker of each House, who shall annex and sign the following certificate:

“This bill (joint resolution or order) having been presented to the governor for his signature on the _____________ day of _______________, and the governor having failed to return it within the time prescribed by law, the same is hereby declared to have become a law (or, in case of a joint resolution or order, the same is hereby declared to have taken effect).

This _________________day of _________________, 20___.

________________________________________, speaker of the House of Representatives

________________________________________, speaker of the Senate.”

§ 3-105. Filing with secretary of state. When any bill, joint resolution, or order shall have been returned duly signed by the governor, or shall have been passed over his veto, or shall otherwise become a law, the Committee on Enrolled Bills of that House wherein such bill, joint resolution or order originated, shall forthwith file the same in the office of the secretary of state, and shall report the fact and date of such filing, which report shall be entered upon the journal.

§ 3-2-106. Preservation of original acts. The original acts and resolutions passed by the General Assembly, and enrolled and filed in the office of the secretary of state, shall be bound together and preserved in that form in said office, and the secretary of state shall cause the same to be done.

§ 3-2-107. Fiscal notes for revenue bills — cumulative fiscal notes while legislature in session — preparation and content. (a) Fiscal notes shall be provided for all general bills or resolutions increasing or decreasing existing appropriations or the fiscal liability of the state or of local governments of the state. Not more than seven days following the introduction of any such bill or resolution, the Fiscal Review Committee shall furnish to the chief clerk of the House or houses of introduction a statement of analysis of the fiscal effect of such bill or resolution and shall prepare and distribute copies of the statement to members of the General Assembly. Within seven days following receipt of a request from a member of the General Assembly for a fiscal note on any proposed bill or resolution requiring a fiscal note, the Fiscal Review Committee shall prepare a fiscal note statement to accompany such proposal at the time of introduction. Within 24 hours following a request by the sponsor of an amendment to any pending measure on which a fiscal note is required by this section, the Fiscal Review Committee shall prepare for the sponsor a fiscal note showing what effect the amendment would have on the estimates made in the fiscal note which applies to the bill or resolution. In regard to any bill or resolution affecting local government, the director of the Division of Local Finance in the office of the comptroller is directed to provide to the Fiscal Review Committee, upon request, the information necessary to determine the fiscal effect of such bill or resolution.

The fiscal note shall, if possible, include an estimate in dollars of the anticipated change in revenue, expenditures, or fiscal liability under the provisions of the bill or resolution. It shall also include a statement as to the immediate effect and, if determinable or reasonably foreseeable, the long-range effect of the measure. If, after careful investigation, it is determined that no dollar estimate is possible, the note shall contain a statement to the effect setting forth the reasons why no dollar estimate can be given. The fiscal note statement shall include an explanation of the basis or reasoning on which the estimate is founded, including any assumptions involved.

No comment or opinion shall be included in the fiscal note regarding the merits of the measure for which the note is prepared; however, technical or mechanical defects may be noted.

(b) A cumulative fiscal note shall be prepared weekly by the Fiscal Review Committee and a copy shall be distributed to each member of the General Assembly each week while the General Assembly is in session. The cumulative fiscal note shall show the cumulative increase or decrease of revenue or expenditures as caused by legislation enacted from the beginning of the session then convened.

§ 3-2-108. Prefiling bills or resolutions — time — manner. (a) At the time specified in this session and § 3-2-109, members of the legislature are hereby authorized to prefile legislative bills and resolutions for introduction in the next succeeding regular legislative session.

(b) Bills and resolutions may be prefiled at the following times:

1. In the case of both senators and representatives, from the time that a member-elect has received his certification of election until next succeeding regular legislative session.

2. In the case of both senators and representatives, from the adjournment of the regular legislative session in odd-numbered years until the convening of the regular legislative session in even-numbered years.

3. In the case of senators, from the date of each general election of representatives at which senators area not regularly elected until the next succeeding regular legislative session.

(c) Bills and resolutions which are prefiled under the provisions of this section and § 3-2-109 shall be in such final and correct form for introduction in the legislature as is required by the constitution, laws, and rules of the respective houses of the legislature.

(d) The original copy of every bill and resolution prefiled shall be inspected by an attorney for the legislative drafting service.

(e) Any bill or resolution prefiled under this section and § 3-2-109 shall be mailed to the chief clerk of either House by registered or certified mail, return receipt requested, or by personal delivery by a member of the legislature who is one of the authors of the bill or resolution, and in the case of personal delivery the office of chief clerk of either House shall deliver a signed receipt therefor to such author.

(f) Any Standing Committee may prefile any bill or resolution at any time when a senator or representative is authorized to prefile bills and resolutions under this section. Bills or resolutions filed under authority of this subsection (f) shall be filed by the chairman or vice chairman of the Standing Committee in the same manner as such chairman or vice chairman would prefile a bill of which he was the author, or in the event neither the chairman nor vice chairman desires to sign said bill any member of the committee voting with the majority of the committee may introduce same. Before prefiling any bill or resolution under authority of this subsection, the chairman or vice chairman shall be authorized to make such prefiling by a majority vote of the members of his committee.

(g) The chief clerk of either the Senate or the House of Representatives shall number the bill or resolution and note thereon the date of the prefiling and the date of the first day of the next session of the General Assembly on which it will be first considered and passed. The procedures for printing and distribution shall be the same for prefiled bills and resolutions as if the General Assembly were in regular session.

§ 3-2-109. Placing prefiled bill or resolution on calendar — failure to comply procedurally. Immediately upon the convening of the next succeeding regular session of the legislature all bills and resolutions prefiled in accordance with § 3-2-108 and this section shall be deemed properly introduced and shall be placed upon the calendar on the first legislative day for the first consideration and passage in the same manner as bills and resolutions introduced after the convening of the legislature.

When any prefiled bill or resolution is placed on the calendar for first consideration and the same is passed, any prior failure to comply with any of the procedural requirements of § 3-2-108 and this section shall have no effect on the validity of such bill or resolution.

Properly appointed, a citizens advisory committee can provide two valuable services to city government:

• First, the committee can offer specialized, practical expertise that may not be available from the city council or city staff. Such citizens often can help guide city leaders on important issues, usually at little or no cost to the city.
• Second, the committee can lend legitimacy and credibility to the ultimate decision made by city government. Properly advised by the committee, the city council’s decisions are more likely to be seen as fair and considerate of all people having a stake in the outcome. Ideally, the committee can even help “sell” the council’s decision to the public.

It has been said that “advice is what we ask for when we already know the answer but wish we didn’t.” Before creating an advisory committee and obligating local citizens to a significant commitment of their time, city officials should consider these questions:

• Is the issue already decided? Is the committee being created simply to validate a decision that has already been made? It is unethical to use citizens in this manner.
• Is the city governing board or staff uncomfortable with the issue at hand? Is the decision likely to be controversial? Is the committee being created simply to diffuse the anticipated public criticism? Never appoint a citizen committee to avoid responsibility for a difficult decision. The committee members will feel used and manipulated and are likely to say as much to the general public in the ensuing controversy.
• Does the city have all the information it needs to make a decision on the issue it is confronting? If not, would creating a citizen panel serve to better inform the city’s decision?
• Do city staff have the background and expertise necessary to process the available information? Would a citizen panel be useful to the city in digesting the available information?
• How much time will advisory committee members need to devote to the project? Is it reasonable to expect the members to dedicate this much time?
• Are there people in the community having knowledge of the issues involved? Or, is the issue so specialized or complex that it will be difficult finding a sufficient number of committee members to advise the city?
• Is the governing board or staff prepared to accept advice that may conflict with their long-held, established viewpoints? A Chinese proverb has it that “honest advice is unpleasant to the ears.” Before asking for citizens’ advice, the governing board must realize the truth inherent in this proverb. Cities should not ask for advice they have no intention of heeding.

Once the decision to appoint an advisory committee is made, qualified residents must be identified and recruited to serve. This sounds much easier than it usually is. Many qualified people will decline involvement due to their lack of time to commit to the project. Others will decline service if the project is seen as controversial.

Cities are urged to avoid the “want ads” approach to finding people to serve on committees. Advertisements in the media may attract a large number of volunteers, but most will not have the expertise you are looking for. Some may have issues with the city and are looking for a platform to air these issues. Remember that you are seeking advice from known experts in your town to help resolve difficult problems. Every person on the street will have an opinion about what direction the city should take, but expertise is not evenly distributed throughout the community.

Instead, the governing board and staff should draw up lists of people recognized as having the necessary qualifications and who also are seen as community leaders. A proactive approach to recruiting these individuals should be undertaken. Professional groups, civic organizations, educators, clergy and neighborhood associations may be helpful in identifying those who possess the knowledge for the task.

In making appointments to citizen panels, you generally should avoid the following types of people:

• People known to have conflicts of interest in the issue and those who want to sell the city a specific product or service and who have a stake in the final decision.
• Relatives of board members or staff.
• Obstructionists. An effective citizen panel will consist of citizens having wide and diverse backgrounds. Each member should be able to speak freely and be critical of the status quo. You should look for problem solvers and avoid those who cannot suggest reasonable solutions to the objections they may raise.
• People with political ambitions. One of the purposes of seeking citizen advice is to receive input that is not colored by politics and that provides an objective analysis of facts. Appointing politicians (or wannabes) to advisory committees defeats this purpose.

It generally is best for the committee to be appointed by the governing board. It lends legitimacy to the committee and underscores the importance of the project.

Prior to appointment, the city must provide a charge for the committee, a clearly written mission statement and set of objectives. The objectives should be provided in writing and clearly delineate the sort of recommendations being sought. Ideally, the charge to the committee would be put in the form of a question, for example, “What training, skills and experience should the city council seek in a new city manager?”

The focus of the committee will be improved if the city provides written instructions on the following:

• The authority of the committee to expend money, hire consultants, etc. Generally, it is a good idea to require that all committee expenditures be approved in advance by the appropriate city official or the governing board. Be very clear about this point. Do not let the panel spend money for which it is not legally accountable.
• Likewise, the authority to solicit donations on the city’s behalf should be clearly understood by all parties. If the committee is given such authority, it is wise to have a written policy in place on the methods and conditions of such solicitations.
• The need for the committee to comply strictly with the Tennessee Open Meetings Law and the Open Records Law. There can be no secret meetings, and all documents must be turned over to the city recorder for safekeeping.
• Some basic operating rules: where meetings are to be held, appointing a chairperson, etc.
• The authority, if any, to direct the work of city staff.
• The names of staff members and consultants available to assist the committee and how such individuals are to be contacted.
• The deadline for submitting a recommendation.

Most importantly, before beginning its work the advisory committee members must clearly understand and accept that the governing board will make the final decision on any recommendations it receives and that the final decision may be at variance with the committee’s advice.

Without such explicit instructions, a citizen committee may find itself exploring issues that were never intended when they were appointed. This can result in embarrassment to the governing board and threaten the committee’s success. 

A citizen committee will benefit from having access to the city’s professional staff who can help arrange and coordinate committee meetings, perform research and provide reports for the committee’s study, and handle media inquiries.

Often, it is helpful to appoint a staff member (city manager, city recorder, city attorney, department head, etc.) to serve as an official advisor to the committee.

Although it is important to make staff available to assist the committee, it also is important that staff members do not dominate the committee’s work. A staff member’s knowledge and expertise may be used to help inform the committee, but the purpose of a citizen committee is, after all, to provide a perspective that might not otherwise be available within the usual machinery of government. Staff should assist the committee but not run it.

In most instances, it will be best that the committee submit written recommendations to the governing board. Oral reports may suffice for minor issues, but misunderstandings can be avoided if the committee issues a written final report to the board.

It is important that each recommendation included in the report be voted upon by the committee members and that the report reflect the outcome of such voting. Reporting the outcome of these votes will enable the governing board to better evaluate the committee’s recommendations. A 4 to 3 vote in favor of a recommendation may not be as impressive as one recorded as 7 to 0.

When the advisory committee is sharply divided on any recommendation, it may be advisable to allow a minority report to be submitted. This is a written statement expressing the views of those not voting with the winning side. This sort of report can place the committee’s recommendation to the governing board in a useful perspective.

In addition to submitting a written report, the governing board should insist upon a presentation of the committee’s recommendations at a public meeting. This is best done after the written report has been delivered to the governing board and its members have had time to read it. After the governing board is familiar with the committee’s recommendations, committee members should be invited to meet with the governing board to discuss the committee’s findings.

Finally, the committee members should be thanked — both publicly and with a personal note — for assisting the city. This is an important detail, especially if the city plans to ask other citizens for similar help in the future. 

No city council may delegate final decision-making authority to an unelected citizen advisory committee. From start to finish, this simple fact must be understood clearly by everyone involved in the issue: the committee members, the news media, the general public, the staff, and the governing board members themselves. Even when the committee report is brilliantly written and the committee members worked especially hard, it is the city’s governing board that must make the final decision on the recommendations.

This often is a difficult fact for members of a citizen committee to accept, and it is not unusual for members to feel let down if the city council rejects the committee’s recommendations goes in a different direction. This underscores the importance of the governing board’s initial instructions to the citizen committee, that every member of the committee knows from the outset that the governing board very well may pass on the advice it receives.

When an advisory committee’s advice is rejected, it is important that it be done in a way that does not embarrass the citizens who volunteered their time to help the city. The governing board may want to emphasize that their final decision is the result of interpretational differences (politics) rather than the scholarship of the committee members.

Conclusion
However helpful they can be, there are inherent risks associated with appointing citizen groups to advise the city. Considerable care must be taken selecting committee members, and it is even more important that the committee is given specific instructions about their purpose, role and methods. Otherwise, the advice provided by these committees likely will be no more valuable to the city than the advice of any randomly selected group of citizens. A well-chosen group of citizen advisors, given clear and specific direction on the help sought by the governing board, can provide valuable suggestions to city hall and help resolve difficult problems.