Can a Tennessee charter county like Knox County amend a private act of the General Assembly just by passing an ordinance?

Subject

Opinion No. 10-118, Amendment of Private Act by Charter County, December 23, 2010

Plain-English summary

Representative Ryan Haynes asked whether the Knox County Commission could amend the 1983 Tennessee Technology Corridor Development Authority Act by ordinance, since Knox County had adopted a charter form of government in 1990 under Tenn. Code Ann. §§ 5-1-201 et seq. The AG said no. A Tennessee charter county can pass ordinances on "purely county affairs" (Tenn. Code Ann. § 5-1-211(a)), and the charter can reorganize "existing county offices, departments, boards, commissions, agencies and functions" if it expressly addresses them (Tenn. Code Ann. § 5-1-210(7)). But the Knox County Charter never spoke to the Technology Corridor Authority, and the Authority itself looks too state-flavored to qualify as "purely county affairs." Six of the seven board members are nominated or appointed by the Governor. The 1983 Act anticipates extension of the Technology Corridor into other counties by future general legislation. And the Authority is audited "in the manner established for audit of state agencies" under Tenn. Code Ann. § 8-4-109. With those state-level fingerprints all over the statute, the Knox County Commission lacks ordinance authority to amend it. Any change has to come from the General Assembly, subject to the local approval rule in Article XI, Section 9 of the Tennessee Constitution.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's a "private act" in Tennessee, and how is it amended?

A private act is a piece of state legislation that applies to a specific county, city, or local body, rather than to the whole state. Article XI, Section 9 of the Tennessee Constitution allows the General Assembly to pass private acts, but a local act is generally only effective if the local government (here, Knox County) ratifies it by the constitutionally required vote. The default rule is that an act of the General Assembly, public or private, can only be changed by the General Assembly.

What does "purely county affairs" mean in this context?

Tenn. Code Ann. § 5-1-211(a) authorizes a charter county to pass ordinances "relating to purely county affairs," but those ordinances cannot conflict with general laws or interfere with municipal affairs. Op. Tenn. Att'y Gen. 88-04 (January 5, 1988) and Op. Tenn. Att'y Gen. 94-008 (January 14, 1994) read that phrase as a real limit. The AG used three features of the 1983 Act to show it crossed beyond county affairs: gubernatorial appointment of most of the board, statutory contemplation of extension into other counties, and state-agency-style auditing.

Could the Knox County Charter itself have reorganized the Authority?

Maybe, if the charter had actually addressed the Authority. Tenn. Code Ann. § 5-1-210(7) permits a charter to "alter or abolish existing county offices, departments, boards, commissions, agencies and functions." The AG noted that the Knox County Charter is silent on the Authority, so even the strongest charter-level reorganization power was not invoked.

What was Knox County actually doing?

The county had adopted Knox County Code of Ordinances Title 14, Article II, which "largely tracks" the 1983 Act but differs in places. For example, Section 14.-30 of the ordinance lets the geographic area of the corridor be changed "upon concurrence of the governing body and the approval of the Authority," cutting out the General Assembly. That was the move the AG specifically said the county couldn't make.

What's the Jordan v. Knox County issue mentioned in the footnote?

The 1990 Knox County Charter was invalidated by the Tennessee Supreme Court in Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007), because it failed to provide for the offices listed in Tenn. Const. art. VII, § 1, paragraph 1. The county later cured the defect by amendment. The AG's opinion assumes Knox County operates under a valid charter; the underlying answer about private-act amendment would be the same either way.

Background and statutory framework

The 1983 Tennessee Technology Corridor Development Authority Act (1983 Tenn. Priv. Acts ch. 148) created the Tennessee Technology Corridor Development Authority as an agency and instrumentality for Knox County. The Authority oversees a defined Technology Corridor in Knox County, works jointly with the Knoxville/Knox County Metropolitan Planning Commission, and exercises significant land-development powers within a High Technology Overlay Zone established by the Knox County Commission. Section 5.b. expressly states that "[a]ny modification of the boundaries of the corridor shall be made by amendment of the act upon concurrence of the governing body and the approval of the Authority." The General Assembly amended the boundaries in 1984 (1984 Tenn. Priv. Acts ch. 229).

The Authority's seven-member governing board, under Section 6.b., is structured so that the Governor nominates five members (from recommendations of the Tennessee Technology Foundation) for approval by the Knox County Commission, the Governor directly appoints one member (who does not have to live in Knox County), and the Knox County Commission appoints one member who must be a county commissioner. Section 13.d. preserves the General Assembly's right to extend the Technology Corridor into other counties through future similar legislation. Section 14 subjects the Authority to audit by the Comptroller of the Treasury "in the manner established by the provisions of Tennessee Code Annotated, Section 8-4-109, for audit of state agencies." Section 15 made the 1983 Act subject to two-thirds local approval, as constitutionally required.

Knox County's charter authority comes from Tenn. Const. art. VII, § 1, ¶ 3 (allowing the General Assembly to provide alternate forms of county government, including charters), implemented through Tenn. Code Ann. §§ 5-1-201 et seq. Section 5-1-210 lays out the topics a charter may address, including (in subsection (7)) the "alteration or abolition of existing county offices, departments, boards, commissions, agencies and functions." Section 5-1-211(a) limits ordinance authority to "purely county affairs." Section 5-1-202(a) eliminates pre-charter county functions not preserved by the charter or required by the constitution.

The AG's earlier opinions on charter counties were directly on point. Op. Tenn. Att'y Gen. 88-04 said earlier private acts dealing with the form of county government and "purely county affairs" would be superseded by a county charter, but private acts that don't fall in that bucket survive and remain subject only to General Assembly amendment. Op. Tenn. Att'y Gen. 94-008 reinforced that Tenn. Code Ann. § 5-1-210 is the place to look for the topics a charter may address. The 1983 Act's state-level features (gubernatorial appointment, extension to other counties, state-agency audit) pulled it outside the "purely county affairs" zone.

Citations

• Tenn. Const. art. VII, § 1 (county government)
• Tenn. Const. art. XI, § 9 (local acts and local approval)
• Tenn. Code Ann. § 5-1-201 et seq. (charter county form of government)
• Tenn. Code Ann. § 5-1-202(a) (pre-charter functions)
• Tenn. Code Ann. § 5-1-210 (required contents of charter)
• Tenn. Code Ann. § 5-1-210(7) (alteration of county offices, boards, agencies)
• Tenn. Code Ann. § 5-1-211(a) ("purely county affairs" ordinance authority)
• Tenn. Code Ann. § 8-4-109 (audit of state agencies)
• 1983 Tenn. Priv. Acts ch. 148 (Tennessee Technology Corridor Development Authority Act)
• 1984 Tenn. Priv. Acts ch. 229 (corridor boundary amendment)
• Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007)
• Op. Tenn. Att'y Gen. 88-04 (January 5, 1988)
• Op. Tenn. Att'y Gen. 94-008 (January 14, 1994)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-118.pdf

Original opinion text

Amendment of Private Act by Charter County

QUESTION

1983 Tenn. Priv. Acts Ch. 148 (the "1983 Act") creates the Tennessee Technology Corridor Development Authority ("the Authority") to operate in Knox County. Knox County adopted a county charter form of government under Tenn. Code Ann. §§ 5-1-201, et seq., in 1990. Is the Knox County Commission now authorized to amend the 1983 Act by ordinance?

OPINION

No. While Knox, as a charter county, may pass ordinances through its Commission "relating to purely county affairs," the organization and functioning of the Authority is not purely a county matter. This is reflected in the Governor's authority to nominate five of the seven members of the Authority's governing board (subject to local approval) and to appoint one member who need not reside in Knox County. This is also reflected in the provisions that the Technology Corridor may be extended into other counties and that the Authority is subject to audit by the Comptroller of the Treasury in the manner established for audit of state agencies. The Knox County Commission, therefore, may not amend the 1983 Act by ordinance. Instead, it must be amended by the General Assembly, subject to the local approval requirements in Article XI, Section 9, of the Tennessee Constitution.

ANALYSIS

This opinion addresses whether the Knox County Commission is authorized, by ordinance, to amend a 1983 private act applicable to Knox County. The private act in question is 1983 Tenn. Priv. Acts ch. 148, the "Tennessee Technology Corridor Development Authority Act" (the "1983 Act"). The Act creates the Tennessee Technology Corridor Development Authority (the "Authority"). The Authority is a public and governmental body acting as an agency and instrumentality for Knox County. 1983 Act, § 2.b. The Authority is established for the purpose of developing and implementing a comprehensive development plan for a Technology Corridor, the boundaries of which are set forth in section 5.b. That section provides, "Any modification of the boundaries of the corridor shall be made by amendment of the act upon concurrence of the governing body and the approval of the Authority." 1983 Act, § 5. The General Assembly amended this portion of the 1983 Act to change the boundaries of the corridor in 1984. 1984 Tenn. Priv. Acts ch. 229.

The geographic description of the corridor describes it as land situated in Knox County. Other parts of the 1983 Act suggest that at least some of the land within the corridor is within the corporate boundaries of the cities of Knoxville and Farragut, or that the Authority exercises some power over use of land within these cities. For example, section 10.c. of the 1983 Act exempts land use within the incorporated areas of Farragut and Knoxville at the time the act was enacted from the requirement of obtaining a certificate of appropriateness from the Authority. Areas later annexed are not exempt.

The Authority is to work jointly with the Knoxville/Knox County Metropolitan Planning Commission. 1983 Act, § 4.b.(1). Section 5 of the 1983 Act requires the Knox County Commission to establish a High Technology Overlay Zone within which the Authority will exercise powers to effect the Act's purposes. The Commission must amend its zoning resolution to establish the overlay zone. Id.

Under section 6, the Authority is governed by a board of commissioners "charged with the promotion and support of high technology-based economic growth for the Tennessee Technology Corridor in the State of Tennessee" (the "Board"). 1983 Act, § 6.a. The Board is made up of seven members. Five of the members are nominated by the Governor upon recommendations received from the Tennessee Technology Foundation, "a not-for-profit corporation chartered in cooperation with the State of Tennessee," and approved by a majority vote of the Knox County Commission. One member is appointed by the Governor. One member must be a Knox County commissioner appointed by the Knox County Commission. 1983 Act, § 6.b. All commissioners must be Tennessee residents, and all except the commissioner appointed by the Governor must be residents of Knox County. Id.

The Board is given broad authority to develop land within the Tennessee Technology Corridor. 1983 Act, § 7. Decisions of the Board may be appealed to the Knox County Commission. Id. at § 11. Section 13 of the 1983 Act contains several provisions regarding its construction. Section 13.b. provides:

This act is remedial in nature, and shall be liberally construed to effect its purposes of promoting high technology-based economic development within and in proximity to the Tennessee Technology Corridor as defined herein, facilitating the attraction, siting, and support of high technology industries in Knox County, and encouraging the effective utilization of the natural, educational, and technological resources therein to the ultimate growth and development of commerce and industry in said counties and throughout the State of Tennessee.

(emphasis added). Section 13.d. provides:

Nothing in this chapter shall be construed to prevent the extension of the Technology Corridor into other counties by adoption of similar legislation for such counties, and upon adoption of such legislation this act should be amended to provide for participation by representatives of that county or those counties on the Board of Commissioners by the appointment of additional members of the Board from either that county or those counties, and by providing for the governing body of such county to serve in all respects as the governing body for the development in such county.

Section 14 provides:

The Tennessee Technology Corridor Development Authority shall be subject to audit by the Comptroller of the Treasury in the manner established by the provisions of Tennessee Code Annotated, Section 8-4-109, for audit of state agencies.

Under section 15, the 1983 Act has no effect unless approved by a two-thirds vote of the governing body of Knox County. This provision is constitutionally required for all local acts under Article XI, Section 9, of the Tennessee Constitution.

Since 1990, Knox County has operated under a county charter. Paragraph 3 of Article VII, Section 1, of the Tennessee Constitution provides:

The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum.

The General Assembly has enacted Tenn. Code Ann. §§ 5-1-201, et seq., authorizing counties to adopt a charter form of government. Tenn. Code Ann. § 5-1-210 addresses the contents of a county charter. The statute provides in relevant part:

The proposed charter shall provide:

(1) For the creation of an alternative form of county government vested with any and all powers that counties are, or may hereafter be, authorized or required to exercise under the Constitution and general laws of the state of Tennessee, and any and all powers and duties of such county that are required or authorized by private acts effective on the date of ratification of such charter, as fully and completely as though the powers were specifically enumerated therein;

(7) For such administrative departments, agencies, boards and commissions as may be necessary and appropriate to perform the functions of county government in an efficient and coordinated manner and for this purpose for the alteration or abolition of existing county offices, departments, boards, commissions, agencies and functions, except where otherwise provided in this part or prohibited by the Constitution of Tennessee;

(emphasis added). Tenn. Code Ann. § 5-1-211(a) provides:

The legislative body of each county that adopts a charter form of county government may pass ordinances relating to purely county affairs, but such ordinances shall not be opposed to the general laws and shall not interfere with the local affairs of any municipality within the limit of such county.

(emphasis added).

The request asks whether the Knox County Commission may now amend the 1983 Act by ordinance. Ordinarily, any act of the General Assembly, general or local in effect, must be amended by the General Assembly. The text of the 1983 Act reflects no legislative intent to change this rule. Section 5.b. describes the area included within the Tennessee Technology Corridor and states: "Any modification of the boundaries of the corridor shall be made by amendment of the act upon concurrence of the governing body and the approval of the Authority." (emphasis added). Further, the General Assembly explicitly retains the right to amend the 1983 Act to extend the Technology Corridor into other counties "by adoption of similar legislation for such counties." 1983 Act, § 13.d.

The question then becomes whether Knox County is authorized to amend the 1983 Act by ordinance because it has become a charter county. The Knox County Charter does not explicitly address the Authority. The Knox County Commission has adopted an ordinance that, while it largely tracks the 1983 Act, differs from it in some respects. Knox County Code of Ordinances, Title 14, Article II. Section 14.-30 of the ordinance, for example, provides that the geographic area of the corridor may be amended "upon concurrence of the governing body and the approval of the Authority." Thus, the ordinance deletes the requirement that the General Assembly first amend the act. Similar discrepancies appear in other parts of the ordinance.

This Office addressed the effect of adoption of a county charter under Tenn. Code Ann. §§ 5-1-201, et seq., in 1988. Op. Tenn. Att'y Gen. 88-04 (January 5, 1988). In that opinion, this Office concluded that earlier private acts dealing with the form of county government and "purely county affairs" would be superseded upon adoption of the charter. This conclusion is based on two provisions of the county charter statutory scheme. First, Tenn. Code Ann. § 5-1-202(a) provides that, upon adoption of a charter, "no right, power, duty, obligation or function of any officer, agency or office of such county shall be retained and continued unless this part or the charter of such county expressly so provides, or unless such retention and continuation be required by the Constitution of Tennessee." Second, Tenn. Code Ann. § 5-1-211(a) authorizes the legislative body of a charter county to pass ordinances "relating to purely county affairs[.]" The opinion notes that private acts that do not deal with the areas of county government covered by the charter are still in place and may be amended by the legislature. A later opinion notes that Tenn. Code Ann. § 5-1-210 sets forth the topics and forms of government for which a county charter may make provisions that are different from those that exist in other counties under the general statutes and private acts. Op. Tenn. Att'y Gen. 94-008 (January 14, 1994).

As cited above, Tenn. Code Ann. § 5-1-210(7) explicitly authorizes a county charter to provide "for the alteration or abolition of existing county offices, departments, boards, commissions, agencies and functions, except where otherwise provided in this part or prohibited by the Constitution of Tennessee[.]" But the Knox County Charter does not attempt to reorganize the Authority. Because the Charter is silent on the Authority and its powers, the 1983 Act remains in place and is subject to change by the General Assembly.

The question presented, however, is whether the Knox County Commission is authorized to amend the 1983 Act by ordinance. Tenn. Code Ann. § 5-1-211(a) authorizes a charter county to pass ordinances "relating to purely county affairs[.]" At least three features of the 1983 Act indicate that the Authority's operation implicates state interests. First, the 1983 Act provides that the Governor will select six of seven members of the Board, with the guidance of an independent non-profit corporation. Second, the Act reserves the General Assembly's right to extend it to apply to other counties. Finally, Section 14 of the act subjects the Authority to audit by the State Comptroller "in the manner established by the provisions of Tennessee Code Annotated, Section 8-4-109, for audit of state agencies." For these reasons, it is the opinion of this Office that the Knox County Commission may not amend the 1983 Act by ordinance. Instead, it must be amended by the General Assembly, subject to the local approval requirements in Article XI, Section 9, of the Tennessee Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Ryan A. Haynes
State Representative
203 War Memorial Building
Nashville, Tennessee 37243-0188