After Tennessee's 2010 amendment to § 13-3-103, can the Carter County mayor appoint the regional planning director if the county was created by a private act that lets the planning commission appoint employees and staff?

Subject

Opinion No. 11-15, Appointment of Planning Director, February 9, 2011

Plain-English summary

In 2010, the General Assembly passed Public Chapter 701, which rewrote Tenn. Code Ann. § 13-3-103 (the statute governing regional planning commissions) to provide:

Any provision relating to the appointment of a planning director contained in any metropolitan or county charter or private act or interlocal agreement must be used in appointing a planning director. In the absence of such a provision, the county mayor, county executive or metropolitan mayor or executive shall, in accordance with § 5-6-106(c), have the authority to appoint a planning director.

The state representative for the Carter County area asked the AG how this amendment interacts with 1972 Tenn. Priv. Acts ch. 360, which created the Carter County planning commission. Section 2 of that private act gives the commission authority to "appoint such employees and staff as it may deem necessary for its work, and may contract with county planners and other consultants for such services as it may require."

Three questions, three answers:

1. Does the private act count as "a provision relating to the appointment of a planning director"? Yes. The AG read "relating to" broadly. The term "relate" means "to have connection, relation, or reference," and a connection between two subjects does not require identity. Section 2 of the 1972 private act does not say "planning director" by name, but it does authorize the planning commission to appoint "such employees and staff" as it deems necessary, and that authority is broad enough to include a planning director if the commission deems one to be necessary. Because the private act has a provision relating to planning-director appointment, that provision controls under amended § 13-3-103. The commission, not the county mayor, makes the appointment.

2. If the answer to question 1 were no, could the county mayor make the appointment? Moot. Because the first answer was yes, the AG did not need to reach the fallback.

3. Is the planning director an at-will employee? Yes. Neither the private act nor § 13-3-103 sets a term of office for the planning director. In the absence of any statutorily prescribed term, Tennessee follows the default rule: the position is at-will, and the planning director may be removed by the appointing authority (here, the planning commission).

The opinion also flags an underlying constitutional uncertainty. The Tennessee Court of Appeals in Alcoa v. Blount County, 658 S.W.2d 116 (Tenn. Ct. App. 1983), found unconstitutional a private act creating a county planning commission in Blount County, on the ground that it conflicted with the mandatory general law (then codified as Tenn. Code Ann. §§ 13-101 et seq., now §§ 13-3-101 et seq.) and that there was no rational basis to suspend the general law for one county. Under that reasoning, the Carter County private act might face the same problem. But the General Assembly's 2010 amendment explicitly acknowledged and preserved the role of private acts ("any private act or interlocal agreement must be used"), suggesting the legislature has accepted the continuing validity of those acts. The AG did not resolve the constitutional question; it answered the statutory-interpretation question on the assumption that the private act is valid.

The legislative history of Public Chapter 701 (as explained by sponsor Rep. Turner during the March 15, 2010 House Session) confirms the goal: the prior general law gave appointment authority to the planning commission, but in practice the county executive had often been doing it. The 2010 amendment changed the default rule to put the appointment with the county executive, while preserving private-act variation.

Currency note

This opinion was issued in 2011. 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

Does the private act have to use the words "planning director"?

No. The amended statute says "any provision relating to the appointment of a planning director." The AG read "relating to" broadly, citing Friedman v. Hannan, 987 A.2d 60 (Md. Ct. App. 2010), which observed that the ordinary meaning of "relate" requires a connection between two subjects, not identity. The Carter County private act authorizes appointment of "such employees and staff as it may deem necessary," which the AG concluded was a broad enough provision to encompass the planning-director position.

So who actually makes the appointment in Carter County?

Under the AG's reading, the planning commission. The 1972 private act gives the commission authority to appoint its employees and staff, and that authority survives the 2010 amendment to § 13-3-103 because the amendment's exception for "any provision relating to the appointment of a planning director" in a private act preserves the private-act assignment.

What about counties without a private act? Who appoints the planning director there?

The county mayor, county executive, or metropolitan mayor or executive, under amended Tenn. Code Ann. § 13-3-103, acting in accordance with § 5-6-106(c). That is the default rule for jurisdictions that do not have a private act, charter provision, or interlocal agreement assigning the authority elsewhere.

Is the planning director's tenure protected?

Not by statute. Neither the private act nor § 13-3-103 sets a fixed term. Under Tennessee default rules, public employees without a statutory term are at-will and may be removed by the appointing authority. So the planning commission (which has appointment authority under the private act) also has removal authority.

Doesn't Alcoa v. Blount County say the private act is unconstitutional?

The Court of Appeals in Alcoa, 658 S.W.2d 116 (Tenn. Ct. App. 1983), held that a private act creating a county planning commission in Blount County conflicted with the general law and was unconstitutional. The Carter County private act could be vulnerable to the same challenge in court. The AG sidestepped the constitutional question for two reasons: (1) the constitutionality of a specific private act is not the AG's call in an advisory opinion, and (2) the General Assembly's 2010 amendment expressly recognized "any private act" as a possible source of appointment authority, which suggests legislative acceptance of those private acts even if they sit uneasily with Alcoa.

How does this relate to municipal planning commissions?

Public Chapter 701 also amended Tenn. Code Ann. § 13-4-102 for municipal planning commissions, but the AG noted that the municipal-planning scheme "appears to apply only to planning commissions established by a city." The county and regional planning commission framework in § 13-3-101 et seq. is what governs Carter County.

Background and statutory framework

Tennessee regional planning commissions are governed by Title 13, Chapter 3 of the Code, principally Tenn. Code Ann. §§ 13-3-101 to -103. The general framework:

• Tenn. Code Ann. § 13-3-101(a) authorizes the Department of Economic and Community Development to create and establish regional planning commissions.
• Tenn. Code Ann. § 13-3-101(i)(1) provides that members of a single-county regional planning commission are appointed by the county mayor, subject to confirmation by the county commission.
• Tenn. Code Ann. § 13-3-103, as amended by 2010 Public Chapter 701, sets the appointment rules for the planning director. The amendment preserves any "provision relating to the appointment of a planning director" contained in a county charter, private act, or interlocal agreement, and otherwise places the appointment authority with the county mayor, county executive, or metropolitan mayor or executive under § 5-6-106(c).

Carter County's structure traces to 1972 Tenn. Priv. Acts ch. 360, which created the county planning commission. Section 2 of that private act provides (in part):

The commission shall elect its chairman from among the appointive members. The term of chairman shall be one (1) year with eligibility for reelection. The commission shall adopt rules for the transactions, findings and determinations, which record shall be a public record. The commission may appoint such employees and staff as it may deem necessary for its work, and may contract with county planners and other consultants for such services as it may require. The expenditures of the commission, exclusive of gifts, shall be within the amounts appropriated for the purpose by the quarterly county court.

The private act was amended in 1975 (Tenn. Priv. Acts ch. 46) and 1993 (Tenn. Priv. Acts ch. 47), but Section 2 remained in effect.

The AG's analysis hinged on three textual and contextual moves:

1. "Relating to" is broad. The AG borrowed dictionary and out-of-state authority (Friedman v. Hannan) to read "relating to" as requiring only a connection between the private act's text and the planning-director appointment, not identity. The phrase "such employees and staff as it may deem necessary" is broad enough to include a planning director.

2. The 2010 amendment preserves private-act authority. The legislative history (Rep. Turner's March 15, 2010 floor remarks) confirms the General Assembly intended to set a new default rule (county executive appointment) while leaving private acts undisturbed. The AG read the "any private act" carve-out as legislative confirmation that the General Assembly accepts the continuing validity of private acts governing planning commissions, despite the Alcoa precedent.

3. At-will is the default for offices without a statutory term. Neither the private act nor the general statute sets a term for the planning director, so the position is at-will under standard Tennessee employment rules.

Citations

• Tenn. Code Ann. §§ 13-3-101, et seq. (regional planning commissions)
• Tenn. Code Ann. § 13-3-101(a) (Department of Economic and Community Development authority to create regional planning commissions)
• Tenn. Code Ann. § 13-3-101(i)(1) (county-mayor appointment of single-county RPC members)
• Tenn. Code Ann. § 13-3-103 (planning director appointment, as amended by 2010 Pub. Ch. 701)
• Tenn. Code Ann. § 13-4-102 (municipal planning commissions)
• Tenn. Code Ann. § 5-6-106(c) (county-executive appointment authority)
• 2010 Tenn. Pub. Acts ch. 701 (Public Chapter 701)
• 1972 Tenn. Priv. Acts ch. 360 (Carter County planning commission)
• 1975 Tenn. Priv. Acts ch. 46 (Carter County amendment)
• 1993 Tenn. Priv. Acts ch. 47 (Carter County amendment)
• Alcoa v. Blount County, 658 S.W.2d 116 (Tenn. Ct. App. 1983)
• Friedman v. Hannan, 412 Md. 328, 987 A.2d 60 (Md. Ct. App. 2010)
• House Session March 15, 2010 (remarks of Representative Turner)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-015.pdf

Original opinion text

Appointment of Planning Director

QUESTIONS

Chapter 701 of the Public Acts of 2010 ("Public Chapter 701") rewrote Tenn. Code Ann. § 13-3-103 governing regional planning commissions. As amended, the statute provides in part:

Any provision relating to the appointment of a planning director contained in any metropolitan or county charter or private act or interlocal agreement must be used in appointing a planning director. In the absence of such a provision, the county mayor, county executive or metropolitan mayor or executive shall, in accordance with § 5-6-106(c), have the authority to appoint a planning director.

Chapter 360 of the Private Acts of 1972 ("Private Chapter 360") creates a county planning commission in Carter County, and Section 2 of this act states in part:

The commission may appoint such employees and staff as it may deem necessary for its work, and may contract with county planners and other consultants for such services as it may require.

1. Is this sentence in Private Chapter 360 a "provision relating to the appointment of a planning director" within the meaning of Tenn. Code Ann. § 13-3-103?

2. If the answer to Question 1 is no, is the county mayor or executive authorized to appoint a planning director?

3. Under either the private act or Tenn. Code Ann. § 13-3-103, is the planning director of a regional planning commission an employee-at-will subject to removal by the appointing authority?

OPINIONS

1. It is the opinion of this Office that the sentence quoted above from Private Chapter 360 is a "provision relating to the appointment of a planning director" within the meaning of Tenn. Code Ann. § 13-3-103.

2. Because of our answer to Question 1, Question 2 is moot.

3. Yes. Neither the private act nor the general law provides for a term of office for the planning director. In the absence of such a provision, the planning director of a regional planning commission is an employee-at-will subject to removal by the appointing authority.

ANALYSIS

1. This opinion concerns application of recent amendments to Tenn. Code Ann. § 13-3-103 to the planning commission created in Carter County by Chapter 360 of the Private Acts of 1972 ("Private Chapter 360"). Tenn. Code Ann. §§ 13-3-101, et seq., govern regional planning commissions. Chapter 701 of the Public Acts of 2010 ("Public Chapter 701") rewrote Tenn. Code Ann. § 13-3-103. The new statute provides in part:

Any provision relating to the appointment of a planning director contained in any metropolitan or county charter or private act or interlocal agreement must be used in appointing a planning director. In the absence of such a provision, the county mayor, county executive or metropolitan mayor or executive shall, in accordance with § 5-6-106(c), have the authority to appoint a planning director[.]

Tenn. Code Ann. § 13-3-103 (emphasis added). Private Chapter 360 created a county planning commission in Carter County. Although the act was amended in 1975 by Private Chapter 46 and in 1993 by Private Chapter 47, Section 2 of Private Chapter 360 is still in effect, and it provides:

The commission shall elect its chairman from among the appointive members. The term of chairman shall be one (1) year with eligibility for reelection. The commission shall adopt rules for the transactions, findings and determinations, which record shall be a public record. The commission may appoint such employees and staff as it may deem necessary for its work, and may contract with county planners and other consultants for such services as it may require. The expenditures of the commission, exclusive of gifts, shall be within the amounts appropriated for the purpose by the quarterly county court.

(emphasis added). The first question is whether Private Chapter 360 contains a "provision relating to the appointment of a planning director" within the meaning of Tenn. Code Ann. § 13-3-103, as amended by Public Chapter 701.

As an initial matter, it is not clear whether Tenn. Code Ann. §§ 13-3-101, et seq., were intended to apply to county planning commissions created by private act. Tenn. Code Ann. § 13-3-101(a) authorizes the Department of Economic and Community Development to create and establish regional planning commissions. The members of a regional planning commission for a single-county regional planning commission are appointed by the county mayor, subject to confirmation by the county commission. Tenn. Code Ann. § 13-3-101(i)(1). The statutory scheme nowhere directly addresses how it applies to a county planning commission formed by a private act. Public Chapter 701 also amended Tenn. Code Ann. § 13-4-102 regarding municipal planning commissions. That statutory scheme appears to apply only to planning commissions established by a city. In 1983, the Tennessee Court of Appeals found unconstitutional a private act creating a county planning commission in Blount County. Alcoa v. Blount County, 658 S.W.2d 116 (Tenn. Ct. App. 1983), p.t.a. denied (1983). The Court concluded that the private act conflicted with Tenn. Code Ann. §§ 13-3-101, et seq., (then codified at Tenn. Code Ann. §§ 13-101, et seq.) The Court found that this act was a mandatory general law, and that there was no rational basis to suspend it in Blount County. Under this case, Private Chapter 360 could well be found unconstitutional for the same reasons. At the same time, however, the General Assembly expressly acknowledges and maintains private acts in its 2010 amendment by Public Chapter 701 to Tenn. Code Ann. § 13-3-103. Thus it appears that the General Assembly has recognized the continuing validity of private acts governing planning commissions.

The legislative history of Public Chapter 701 does not address the scope of the sentence concerning appointment of a planning director. Representative Turner sponsored the bill in the House of Representatives. He explained it as follows:

Currently under law, the state law, this deals with planning commissions and appointment of the planning director. Under current law, it gives the planning commission the authority to do that. In actuality, it's the chief executive officer of the county who's been doing it. What this does is simply reverses that, puts it in law, that the county executive or the county mayor can make those hires and oversee the function of the county planning commission. That's what the bill does. Mr. Speaker, pending any further questions, I move passage.

House Session March 15, 2010 (remarks of Representative Turner). Thus, Public Chapter 701 amended the general law to reflect what had become a common practice among planning commissions. But, to the extent that Tenn. Code Ann. § 13-3-103 applies to a county planning commission created by private act, then Private Chapter 360 contains a provision "relating to the appointment of a planning director" within the meaning of the statute. The term "relate" means "[t]o have connection, relation, or reference." American Heritage Dictionary (2d Coll. Ed. 1985); Friedman v. Hannan, 412 Md. 328, 987 A.2d 60, 66 (Md. Ct. App. 2010) (the ordinary meaning of "relate" is the existence of a connection between two subjects, not that the two subjects need be the same). While Section 2 of Private Chapter 360 does not expressly provide for the appointment of a planning director, it does authorize the county planning commission to appoint "such employees and staff as it may deem necessary for its work." The term "employees and staff" would include a planning director if the commission deems a director to be necessary for its work. For this reason, Section 2 of Private Chapter 360 is a "provision relating to the appointment of a planning director" within the meaning of Tenn. Code Ann. § 13-3-103.

2. Question 2 asks whether the county mayor or executive is authorized to appoint a planning director under Tenn. Code Ann. § 13-3-103, assuming that the answer to Question 1 is no. Because our answer to Question 1 is yes, then question 2 is moot.

3. The last question is whether, under either the private act or Tenn. Code Ann. § 13-3-103, the planning director of a regional planning commission is an employee-at-will subject to removal by the appointing authority. Neither the private act nor the general law provides for a term of office for the planning director. In the absence of such a provision, the planning director of a regional planning commission is an employee-at-will subject to removal by the appointing authority.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Kent Williams
State Representative
Suite G-4 Legislative Plaza
Nashville, Tennessee 37243