Who fills a vacancy on a Tennessee county board of education: the county commission, or the school board itself?

Plain-English summary

A state representative asked whether the county school board itself could fill a vacancy on the board, or whether the county commission had to do it. The AG said the county commission must do it.

The reasoning runs through two parts of the Tennessee Constitution. Article VII, § 2 says "Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified." Article VII, § 4 says "The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct."

The question is which clause governs school board vacancies. The Tennessee Supreme Court answered for county school boards in Marion County Bd. of Comm'rs v. Marion County Election Comm'n, 594 S.W.2d 681, 686 & n.4 (Tenn. 1980): a member of a county school board is a "county officer" under Article VII, § 2, so the county legislative body fills the vacancy. That puts county school board vacancies outside the legislature's power to direct otherwise.

This opinion clarifies an earlier 2010 opinion (Op. Tenn. Att'y Gen. 10-26) that had treated all local board vacancies as governed by Article VII, § 4. The AG narrows that: only municipal school boards and special school district boards are governed by § 4 and so by whatever statutory mechanism the legislature provides. County school boards are governed by § 2 and so by the county commission.

That means HB 2759/SB 3066, which would have amended Tenn. Code Ann. §§ 49-2-201(a)(1) and -202(e) to let "local boards of education, whether county, city or special school district boards" fill their own vacancies, would have been unconstitutional as applied to county boards.

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 whether a school board member is a "county officer"?
A: Because the Tennessee Constitution treats vacancies in county offices differently from vacancies in other offices. Article VII, § 2 hardwires the county legislative body as the appointing authority for county-office vacancies, leaving the legislature no flexibility. Article VII, § 4 covers other offices and lets the legislature direct vacancy-filling however it wants. So a vacancy mechanism that works fine for, say, a municipal school board member would be unconstitutional for a county school board member.

Q: How long does the appointee serve?
A: Article VII, § 2 says the appointee serves "until a successor is elected at the next election occurring after the vacancy and is qualified." So the appointment runs to the next general election that can accommodate the seat, not to the end of the original term. Marion County applied this to school board vacancies directly.

Q: Does this apply to my city's school board?
A: No. The opinion says municipal boards of education and special school district boards are governed by Article VII, § 4 and the legislature can direct how vacancies are filled. The 1980 decision in Marion County was specifically about county boards. The legislature can (and does, by various statutes) provide different mechanisms for cities and special districts.

Q: What is a "special school district"?
A: A school district that is not a county, city, or metropolitan district but a separately constituted entity, typically created by private act of the legislature. Tenn. Code Ann. § 49-3-302(11) lists them as one type of LEA.

Q: Would the proposed bill have been unconstitutional for cities and special districts too?
A: No, only for county boards. The bill went too far in trying to use a one-size-fits-all rule. A bill applied only to municipal and special district boards (or applying to county boards only on a state-the-county-commission-as-the-appointer basis) would have been constitutional.

Q: What is Marion County about beyond this point?
A: Marion County was a dispute about how to fill three vacancies on the Marion County Board of Education. The Tennessee Supreme Court held that the county legislative body had the constitutional duty under Article VII, § 2, pending the next election. The opinion's footnotes (n.4 and n.5) state that a school board member is a county officer and treat the now-repealed Tenn. Code Ann. § 49-213 as having been displaced by the constitutional rule.

Background and statutory framework

Tennessee's 1978 constitutional restructure gave each county an elected legislative body (often called a county commission) and a slate of constitutional county officers. Article VII, § 1 specifies which county officers are elected. Article VII, § 2 sets the rule for vacancies in county offices: the county legislative body appoints, and the appointee serves to the next election. Article VII, § 4 is the residual clause for other offices not addressed by the Constitution.

The Tennessee Supreme Court in Marion County held that a county board of education member is a county officer for Article VII, § 2 purposes. The Court's holding made the county legislative body's appointing role mandatory; the legislature cannot direct otherwise for county school board vacancies.

The 2010 bill, HB 2759/SB 3066, proposed to amend Tenn. Code Ann. § 49-2-201(a)(1) (composition of local boards) and § 49-2-202(e) (the vacancy provision) to allow local boards of education themselves to fill vacancies on their own boards, regardless of whether the board was county, city, or special district. The AG's opinion would limit such a bill to municipal and special-district boards if enacted, because Article VII, § 2 forecloses self-appointment for county boards.

Citations and references

Constitutional provisions:

• Tenn. Const. art. VII, § 2 (vacancies in county offices filled by county legislative body)
• Tenn. Const. art. VII, § 4 (vacancies not addressed by Constitution filled as legislature directs)

Statutes:

• Tenn. Code Ann. § 49-2-201(a)(1) (composition of local boards of education)
• Tenn. Code Ann. § 49-2-202(e) (vacancies on local boards)

Cases:

• Marion County Bd. of Comm'rs v. Marion County Election Comm'n, 594 S.W.2d 681 (Tenn. 1980) (county school board member is a county officer; vacancies filled by county legislative body)

Prior AG opinions:

• Op. Tenn. Att'y Gen. 10-26 (Mar. 8, 2010) (earlier broader statement, clarified by this opinion)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-088.pdf

Original opinion text

Vacancy on County Board of Education

QUESTIONS

1. Does a member of a county board of education hold a county office within the meaning of Article VII, Section 2 of the Tennessee Constitution so that, upon the occurrence of a vacancy on a county board of education, such vacancy may only be filled by the county legislative body until a successor can be elected and qualified or can the vacancy, if permitted by state law, be filled by the county board of education?

2. House Bill 2759/Senate Bill 3066 ("HB 2759/SB 3066") of the 106th General Assembly would have amended Tenn. Code Ann. §§ 49-2-201(a)(1) and -202(e) to permit local boards of education, whether county, city or special school district boards, to fill vacancies arising on such boards. If state law were amended as indicated in HB 2759/SB 3066, would such amendment violate Article VII, Section 2 of the Tennessee Constitution with respect to county boards of education?

OPINIONS

1. A member of a county board of education holds a county office within the meaning of Article VII, Section 2 of the Tennessee Constitution so that, upon the occurrence of a vacancy on a county board of education, such vacancy may only be filled by the county legislative body until a successor can be elected and qualified. Vacancies on county boards of education are governed by Article VII, Section 2 which provides, "Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified." See Marion County Bd. of Comm'rs v. Marion County Election Comm'n, 594 S.W.2d 681, 686 (Tenn. 1980). The vacancy may not be filled by the county board of education.

2. Yes. HB 2759/SB 3066 would have violated Article VII, Section 2 of the Tennessee Constitution with respect to county boards of education. Upon the occurrence of a vacancy on a county board of education, such vacancy may only be filled by the county legislative body until a successor can be elected and qualified.

ANALYSIS

1 and 2. Vacancies in county offices are governed by Article VII, Section 2 of the Tennessee Constitution which provides, "Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified." The Tennessee Supreme Court held that "[a] member of the school board is a county officer." Marion County Bd. of Comm'rs v. Marion County Election Comm'n, 594 S.W.2d 681, 686 n.4 (Tenn. 1980). The Court held that vacancies on county boards of education were to be filled by the county legislative body pursuant to Article VII, Section 2 of the Tennessee Constitution and Tenn. Code Ann. § 49-213, which has since been repealed. Id. at 686 n.5. The Court held, "We affirm so much of the Chancellor's decision as provides that the county legislative body fill the vacancy pending the August election. This is the clear mandate of Article VII, Section 2." Id. at 686. Therefore, a member of a county board of education holds a county office within the meaning of Article VII, Section 2 of the Tennessee Constitution so that, upon the occurrence of a vacancy on a county board of education, such vacancy may only be filled by the county legislative body until a successor can be elected and qualified. The vacancy may not be filled by the county board of education.

In a previous opinion, this office opined that vacancies on local boards of education are subject to the statutory provisions governing such vacancies according to Article VII, Section 4 of the Tennessee Constitution which reads, "The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct." Op. Tenn. Att'y Gen. No. 10-26 (Mar. 8, 2010). However, this office must clarify that vacancies on county boards of education are governed by Article VII, Section 2 of the Tennessee Constitution, as explained above. Vacancies on boards of education for municipalities and special school districts are subject to the statutory provisions governing such vacancies according to Article VII, Section 4 of the Tennessee Constitution, as we previously opined in our March 8, 2010 opinion.

HB 2759/SB 3066 would have amended Tenn. Code Ann. §§ 49-2-201(a)(1) and -202(e) to permit local boards of education, whether county, city or special school district boards, to fill vacancies arising on such boards. As explained above, vacancies on county boards of education are governed by Article VII, Section 2 of the Tennessee Constitution. See Marion County Bd. of Comm'rs, 594 S.W.2d at 686. The vacancy may only be filled by the county legislative body until a successor can be elected and qualified and may not be filled by the county board of education. Accordingly, HB 2759/SB 3066 would have violated Article VII, Section 2 of the Tennessee Constitution with respect to county boards of education.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

DAVID E. COENEN
Assistant Attorney General

Requested by:

The Honorable Harry Brooks
State Representative
212 War Memorial Building
Nashville, Tennessee 37243-0119