Who appoints the members of a Tennessee county's adult-oriented establishment board, and what happens if the wrong people were appointed?

Plain-English summary

Representative Eddie Bass asked the AG five practical questions about adult-oriented establishment boards in Tennessee counties. The board is a regulatory body created when a county adopts the state's Adult-Oriented Establishment Registration Act by a two-thirds vote of the county commission. Once adopted, the act creates a five-member board that handles registration, regulation, and discipline of adult-oriented businesses (sexually-oriented businesses) in that county. The questions arose because some county commissions had been appointing the board members and setting shorter terms, which is not what the statute provides.

AG Cooper's answers, in order:

1. No to commission appointments and shortened terms. The statute (Tenn. Code Ann. § 7-51-1103) is clear: the board's five members are "appointed by the county mayor," and their terms are "four (4) years." A county commission has no authority to make these appointments or set shorter terms.

2. Quo warranto is the fix when wrong people are sitting on the board. If improperly appointed members do not voluntarily resign, the district attorney general for the jurisdiction can bring a quo warranto action under Tenn. Code Ann. § 29-35-101(1) and § 29-35-109, in the name of the state, to remove them. After removal, the county mayor appoints proper replacements.

3. The county mayor appoints to fill vacancies, period. Whether the vacancy comes from improper original appointment, resignation, death, or any other cause, the mayor is the proper appointing officer. The mayor can take input from the commission and others, but the appointment power is the mayor's.

4. Vacancy fills serve the rest of the original term, not a new four-year term. If a member appointed for a four-year term leaves after two years, the replacement serves the remaining two years.

5. Past actions stand as valid until the new board reviews them. Members who were improperly appointed but acted under color of authority were "de facto officers" under Tennessee law. Heard v. Elliot (1906); State ex rel. Newsom v. Biggers (1995). Their actions are valid and binding for the public and third parties who relied on them. Once a properly appointed board takes office, the AG advises the new board to review the prior actions and vote to ratify, modify, or reject each one. This is not legally required, but it is good housekeeping that resolves any doubt.

A footnote points out that, in limited circumstances, a private citizen can bring a quo warranto action under § 29-35-110 if they show special injury and the district attorney has acted "arbitrarily or capriciously" in declining to act. Bennett v. Stutts (Tenn. 1975).

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

Q: Why does it matter who appoints the board?
A: Because the board has substantial regulatory power over adult-oriented businesses in the county, including registration, denial, and revocation. If the wrong body appointed the members, the legitimacy of every license, denial, and disciplinary action could be questioned. The opinion's de facto officer answer protects past actions from collapse, but also explains why getting the appointment process right matters going forward.

Q: What is "quo warranto"?
A: A common-law action (now codified in Tennessee at Tenn. Code Ann. § 29-35-101 et seq.) to challenge a person's right to hold a public office. Translation: "by what warrant?" The action is normally brought by the state through a district attorney general against a person "unlawfully holds or exercises any public office." A successful quo warranto action removes the person from office.

Q: Who can bring the quo warranto action?
A: The district attorney general with jurisdiction for the county is the primary actor. A private citizen can sometimes bring it, but only if they show special injury beyond the public's general interest and that the district attorney "arbitrarily or capriciously" declined to act. Bennett v. Stutts. The DA's discretion gets significant deference.

Q: What if the improperly appointed members just resign?
A: Then no quo warranto is needed. The vacancies are filled by the county mayor under § 7-51-1103. Voluntary resignation is the cleanest path; quo warranto is only needed when improperly appointed members refuse to step aside.

Q: Can the new board "undo" everything the old board did?
A: Yes, prospectively. Under the de facto officer doctrine, the prior actions are "valid and binding" as to public and third-party interests already implicated. The new board can review and ratify them (which leaves them in place), modify them, or reject them going forward. But it cannot retroactively void actions that third parties relied on without confronting reliance and due-process problems.

Q: Do the original four-year terms continue, or does a new clock start?
A: The original four-year terms continue. If the improperly appointed board was supposed to serve from 2010 to 2014, and proper replacement happens in 2012, the new appointees serve from 2012 to 2014. The term clock attached to the seat does not reset every time a new person fills it.

Q: Can the county commission give input to the mayor on board appointments?
A: Yes. Nothing prohibits it. The commission can make recommendations, hold informal interviews, or even pass a resolution suggesting names. What it cannot do is make the appointment itself or impose binding requirements on whom the mayor selects.

Q: What is a "de facto officer"?
A: Under Heard v. Elliot (Tenn. 1906) and State ex rel. Newsom v. Biggers (Tenn. 1995), a de facto officer is someone whose appointment is invalid (the appointing body lacked power, the appointee was ineligible, or there was a procedural defect) but who has acted under color of office without the public knowing. Tennessee law treats their actions as valid for public and third-party purposes. The doctrine prevents a technical appointment defect from voiding hundreds of decisions that real people relied on.

Q: Does this analysis apply only to adult-oriented establishment boards, or to other county boards too?
A: The specific holding is about § 7-51-1103. The analytical framework (statutory power of the appointing body, quo warranto for unlawful officeholders, de facto officer doctrine, vacancy-fills-the-balance rule) applies broadly to any county board where an appointing body has acted outside its statutory authority.

Background and statutory framework

Tennessee's Adult-Oriented Establishment Registration Act, Tenn. Code Ann. § 7-51-1101 et seq., is a local-option enabling statute. It is "local in effect" and becomes operative in a particular county only when the county legislative body adopts it by a two-thirds vote (§ 7-51-1120). Once adopted, the Act creates a registration and regulatory regime for adult-oriented establishments (sexually-oriented businesses) in that county, administered by an adult-oriented establishment board.

The composition of the board is fixed by statute. Tenn. Code Ann. § 7-51-1103(b) provides that "[t]he board shall consist of five (5) members appointed by the county mayor of such counties." Subsection (c) sets the term: "If the board consists of five (5) members appointed by such county mayor, the terms of the board members shall be for four (4) years." There is an alternative for counties with an existing massage registration board, which can double as the adult-oriented board, with terms co-extensive with the massage board's.

The statute is exclusive: it does not authorize the county commission, the sheriff, or any other body to appoint the board members. It does not authorize a shorter term. The opinion's first three answers all flow from the simple textual point that the appointing power is the mayor's and the term is four years.

When a wrong appointing body has acted, the structural question becomes how to fix it. Tennessee's quo warranto statute (Tenn. Code Ann. § 29-35-101 et seq.) provides the answer for unlawful officeholders. The action is brought "in the name of the state" against "any person [who] unlawfully holds or exercises any public office." § 29-35-101(1). The proper plaintiff is the district attorney general with jurisdiction for the county. § 29-35-109. A private citizen has limited standing to bring the action under § 29-35-110, but only if they show special injury beyond the public's general interest in lawful officeholders and that the district attorney acted "arbitrarily or capriciously" or with "palpable abuse of his discretion" in declining to act. Bennett v. Stutts (Tenn. 1975); State ex rel. Bee DeSelm v. Owings (Tenn. App. 2009).

The de facto officer doctrine is the doctrinal patch for the gap between an invalid appointment and judicial removal. Heard v. Elliot (Tenn. 1906) defined a de facto officer as "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of office were exercised under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public." State ex rel. Newsom v. Biggers (Tenn. 1995) reaffirmed the principle: the acts of de facto officers are "valid and binding."

This doctrine matters because a board that acts under invalid appointment usually does so for some period before the defect is identified. Voiding all of those actions would punish third parties (registered businesses, denied applicants, the public) who had no role in the appointment problem. The de facto officer doctrine protects them while still allowing the appointment problem to be fixed prospectively.

The opinion's recommendation that the new board review and vote on prior actions is a prudential overlay. Legally, the actions stand. Practically, businesses with denials or revocations from the prior board may want clean reaffirmation; businesses with approvals may want certainty that they will not be reopened. A formal review-and-ratify vote provides both.

Citations and references

Statutes:

• Tenn. Code Ann. § 7-51-1101 et seq. (Adult-Oriented Establishment Registration Act)
• Tenn. Code Ann. § 7-51-1103 (composition and appointment of board; four-year term)
• Tenn. Code Ann. § 7-51-1120 (local adoption requirement)
• Tenn. Code Ann. § 29-35-101 et seq. (quo warranto generally)
• Tenn. Code Ann. § 29-35-101(1) (action against unlawful officeholder)
• Tenn. Code Ann. § 29-35-109 (district attorney's quo warranto authority)
• Tenn. Code Ann. § 29-35-110 (limited private-citizen action)

Cases:

• Heard v. Elliot, 92 S.W. 764 (Tenn. 1906), Tennessee Supreme Court (de facto officer doctrine)
• State ex rel. Newsom v. Biggers, 911 S.W.2d 715 (Tenn. 1995), Tennessee Supreme Court (de facto officer acts valid and binding)
• Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975), Tennessee Supreme Court (private quo warranto requires showing of special injury and DA's arbitrary refusal)
• State ex rel. Bee DeSelm v. Owings, 2009 WL 1470704 (Tenn. App. 2009), Tennessee Court of Appeals

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-016.pdf

Original opinion text

Appointments to County Adult-Oriented Establishment Board

QUESTIONS

1. Is there any authority for a county board of commissioners to appoint the members of that county's adult-oriented establishment board and to set the term of the members to less than four (4) years?

2. If members of a county adult-oriented establishment board are improperly appointed, what action needs to be taken and by whom to properly appoint the board members?

3. If a vacancy occurs on an adult-oriented establishment board, is the county mayor the proper official to appoint a person to fill the vacancy?

4. If a vacancy on an adult-oriented establishment board is filled during the original four (4) year term, does the person filling that vacancy serve the remainder of the original four (4) year term or start a new four (4) year term upon appointment?

5. Once members of an adult-oriented establishment board are properly appointed, do the members of that board have the authority to ratify and reaffirm the actions taken by persons who were improperly appointed to that board?

OPINIONS

1. No. There is no authority in Tenn. Code Ann. § 7-51-1103 for a county board of commissioners to appoint the members of a county's adult-oriented establishment board or to set the terms of said members to less than four (4) years.

2. If members of an adult-oriented establishment board were improperly appointed, and the members do not voluntarily resign, the appropriate district attorney general for that jurisdiction may bring a quo warranto proceeding, in the name of the State, pursuant to Tenn. Code Ann. §§ 29-35-101(1) and 29-35-109, seeking removal of the improperly appointed board members. After a successful quo warranto proceeding, the county mayor would appoint persons to those vacant board positions.

3. The county mayor is the proper official to appoint persons to fill vacancies on that county's adult-oriented establishment board.

4. If a vacancy on an adult-oriented establishment board is filled during an original four (4) year term, the person filling such vacancy serves for the remainder of that original term.

5. Once members of an adult-oriented establishment board are properly appointed, the board has the authority to vote to adopt, modify, or reject the actions taken by the prior improperly appointed board.

ANALYSIS

Tennessee's Adult-Oriented Establishment Registration Act, Tenn. Code Ann. § 7-51-1101, et. seq., "shall be local in effect and shall be effective in a particular county upon the contingency of a two-thirds (2/3) vote of the county legislative body adopting this part." Tenn. Code Ann. § 7-51-1120.

An adult-oriented establishment board is created in any county in which this part is adopted. Tenn. Code Ann. § 7-51-1103(a). Tenn. Code Ann. § 7-51-1103 provides, in pertinent part:

(b) The board shall consist of five (5) members appointed by the county mayor of such counties. If there exists a massage registration board appointed by the county mayor, such board may be used for adult-oriented establishments, as determined by the county mayor.

(c) If the board consists of the massage registration board, the terms of the board members shall be co-extensive with the terms of the massage registration board with no member serving after the expiration of the member's term or removal from the massage registration board. If the board consists of five (5) members appointed by such county mayor, the terms of the board members shall be for four (4) years.

There is no authority in Tenn. Code Ann. § 7-51-1103 for a county board of commissioners to appoint the members of that county's adult-oriented establishment board or to alter the term of said board members to less than four (4) years.

The county mayor is the only one authorized on the face of Tenn. Code Ann. § 7-51-1103(b) or (c) to appoint members to a county's adult-oriented establishment board. Consequently, if board members were improperly appointed, and those board members do not resign, they may be removed through a quo warranto proceeding brought in the name of the State, pursuant to Tenn. Code Ann. § 29-35-101(1). Such actions are authorized against a person "whenever any person unlawfully holds or exercises any public office." Id. The district attorney general with jurisdiction for that county is the proper party who may bring a lawsuit to remove those improperly appointed officials. Tenn. Code Ann. 29-35-109.

If the board members resign or are removed in a quo warrato proceeding, the county mayor should appoint persons to fill the vacancies resulting from those original improper appointments. Furthermore, for any other vacancy occurring on the adult-oriented establishment board, the county mayor is the proper official to appoint a person to fill that vacancy. Nothing prohibits the county mayor from receiving input from the county board of commissioners or other persons regarding the board appointments.

If vacancies result due to the members of the adult-oriented establishment board being originally improperly appointed by the county board of commissioners, the county mayor should properly appoint board members to complete the original four (4) year terms. Likewise, for other vacancies on the board, the person filling such vacancy would serve the remainder of the original four (4) year term.

Once the members of the adult-oriented establishment board are properly appointed, the board may vote regarding the actions taken by the earlier improperly appointed board. It appears that the members of the improperly appointed board were officers de facto and therefore their actions stand as valid until modified or rejected by the new board. An officer de facto "is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of office were exercised under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public." Heard v. Elliot, 92 S.W. 764, 765 (Tenn. 1906); see State ex rel. Newsom v. Biggers, 911 S.W.2d 715, 718 (Tenn. 1995) (explaining that the acts of officers de facto are "valid and binding"). However, as a precaution, once the members of the adult-oriented establishment board are properly appointed, it is advisable that the board review the actions taken by the earlier improperly appointed board and vote to ratify, modify or reject such actions.

In limited situations, a court may have jurisdiction in a quo warranto action, upon relation of a private citizen, in the name of the State, when the citizen can show a special interest and injury not common to the public generally. Tenn. Code Ann. § 29-35-110. As the district attorney general is the proper public officer to maintain such actions, it must be shown that the district attorney general acted "arbitrarily or capriciously" or was guilty of "palpable abuse of his discretion" in declining to bring such an action, before the courts will take jurisdiction upon relation of a private citizen in the name of the State. See Bennett v. Stutts, 521 S.W.2d 575, 577-78 (Tenn. 1975); State ex rel. Bee DeSelm v. Owings, 2009 WL 1470704 (Tenn. App. 2009).

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

STEVEN A. HART
Special Counsel

Requested By:
The Honorable Eddie Bass
State Representative
109 War Memorial Building
Nashville, TN 38243