Can Shelby County, a Tennessee charter county, shorten one term of the county Assessor from four years to two years through a charter referendum so that the Assessor election cycle aligns with other county offices?

Plain-English summary

Shelby County in 2008 amended its charter to add an Article VIII creating "County Charter Officers" (Sheriff, Trustee, Register, Clerk, Assessor). The Charter set up a one-time two-year term for the Assessor elected in August 2012 (running from September 1, 2012 to September 1, 2014) so that future Assessor elections would happen in the same cycle as the other county officers. Representative Towns asked whether that one-time two-year term was constitutional and statutorily authorized.

The AG said yes. Two issues to resolve:

1. Tennessee Constitution. Article VII, § 1, paragraph 1, requires county Assessors to serve four-year terms. But paragraph 3 lets the General Assembly create "alternate forms of county government," including charter counties. The Tennessee Supreme Court held in Bailey v. County of Shelby, 188 S.W.3d 539, 546 (Tenn. 2006), and Jordan v. Knox County, 213 S.W.3d 751, 774 (Tenn. 2007), that paragraph 1's listing of county officers and their terms does not bind paragraph-3 charter counties. So the four-year term requirement is not a constitutional ceiling on Shelby County.

2. Tennessee statutes. Tenn. Code Ann. §§ 5-1-201, et seq., authorize and govern charter counties. Section 5-1-210(6) requires the charter to set the "method of selection, tenure" of county officers "as may be deemed necessary or appropriate for the county government." The Shelby County Charter's two-year Assessor term is exactly that kind of charter-specific tenure choice. Section 5-1-201(b) requires liberal construction of the charter authority. Although Tenn. Code Ann. § 67-1-502 generally requires a four-year term for property assessors, the Shelby County Assessor is created by charter under § 5-1-210(6), not by the general assessor statute. The charter's transitional term is consistent with both the statutory scheme and the constitutional grant of charter-county authority.

The result: Shelby County could, and did, run the Assessor on a one-time two-year term in 2012 to bring the office into sync with the other county offices, after which the office returned to four-year terms.

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

Why are charter counties different from regular Tennessee counties?
Charter counties are created under Tenn. Const. art. VII, § 1, paragraph 3, which lets the General Assembly authorize alternate forms of county government adopted by local referendum. Once a charter is approved, it replaces the county's prior form of government. The Tennessee Supreme Court has held that the specific officer-and-term requirements in paragraph 1 do not apply to paragraph-3 charter counties (Bailey; Jordan).

Does that mean charter counties can do anything they want?
No. The General Assembly retains substantial authority. Tenn. Code Ann. § 5-1-210(12) provides that the duties of constitutional county officers cannot be diminished under a county charter; the charter can give them additional duties but cannot strip them. Jordan v. Knox County held the charter must either create the listed county offices or provide for the performance of their duties by charter-created officers.

Could a four-year Assessor term still be required by statute?
Tenn. Code Ann. § 67-1-502 says a property assessor must be elected to a four-year term, and one reading of Tenn. Code Ann. § 5-1-210(6) is that a charter county must follow all the statutes governing the qualification and tenure of constitutional officers. The AG rejected that reading in favor of the alternative: the Shelby County Assessor is created by the Shelby Charter under § 5-1-210(6), not by the general assessor statute, and the "as may be deemed necessary or appropriate for the county government" language in § 5-1-210(6) gives the charter room to set its own tenure rules.

Is the two-year term permanent?
No. Under Section 8.03.B of the Charter, only the Assessor elected in August 2012 served a two-year term. From September 1, 2014 onward, Shelby County Assessors return to four-year terms aligned with the other county officers.

Could the Charter have lengthened the term instead of shortening it?
The AG did not address that question. Doctrinally the same charter-authority framework would govern, but practical considerations (and possibly term-limit provisions in the Charter itself) would constrain a lengthening change.

Background and statutory framework

Tennessee's charter-county statutes (Tenn. Code Ann. §§ 5-1-201, et seq.) implement Article VII, § 1, paragraph 3's alternate-form-of-government authority. The statutory scheme imposes minimum content requirements (officers, duties, structure) but otherwise leaves charter counties broad latitude. The Tennessee Supreme Court's modern charter-county jurisprudence (Bailey, 188 S.W.3d 539; Jordan, 213 S.W.3d 751) is unusually deferential, holding that paragraph 1 of Art. VII, § 1, does not constrain charter counties at all.

The Shelby County Charter amendments at issue here came out of a longer effort to consolidate Shelby County's election cycle. Many Tennessee counties run different county offices on different cycles, which adds election cost and reduces voter focus on county elections. Shelby County's 2008 amendment was designed to fix the misalignment by phasing the Assessor onto the same cycle as the other county-charter officers. The two-year term is a one-time transition mechanism.

Citations

• Tenn. Const. art. VII, § 1, paragraphs 1 and 3
• Tenn. Code Ann. § 5-1-201(b) (liberal construction)
• Tenn. Code Ann. § 5-1-210(6) (tenure of charter officers)
• Tenn. Code Ann. § 5-1-210(12) (duties of constitutional officers not diminished)
• Tenn. Code Ann. § 67-1-502 (general four-year term for Assessor)
• Shelby County Charter §§ 8.01, 8.02, 8.03
• Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006)
• Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-038.pdf

Original opinion text

Altering Term of County Assessor

QUESTION

Shelby County is governed by a county charter adopted under Tenn. Code Ann. §§ 5-1-201, et seq. May one term of the Shelby County Assessor be altered by referendum to reduce the term from four years to two years in order to make the election cycle for that office coincide with other county offices?

OPINION

Section 8.01 of the Shelby County Charter creates the office of Shelby County Assessor, and Section 8.03.B provides that the next term of that office will begin September 1, 2012, and end September 1, 2014. Beginning September 1, 2014, the Shelby County Assessor will be elected to a four-year term. Paragraph 1 of Article VII, Section 1, of the Tennessee Constitution provides that a county assessor must be elected to a four-year term. But that paragraph does not apply to Shelby County, which operates under a county charter adopted under Paragraph 3 of Article VII, Section 1, of the Tennessee Constitution. Section 8.03.B, therefore, does not violate the Tennessee Constitution or Tenn. Code Ann. §§ 5-1-201, et seq., authorizing the adoption of the Shelby County Charter.

ANALYSIS

This opinion concerns an amendment to the Shelby County Charter changing the term of office of the Shelby County Assessor to be elected in August 2012 from four years to two years. Shelby County operates under a county charter adopted pursuant to Tenn. Code Ann. §§ 5-1-201, et seq. The General Assembly adopted this statutory scheme under the authority of Article VII, Section 1, Paragraph 3, of the Tennessee Constitution. That paragraph authorizes the General Assembly to provide "alternate forms of county government." The current Shelby County Assessor was elected to office in 2008. Most other Shelby County officers, including the Mayor, the Sheriff, and the Register, were elected in 2010.

In 2008, Shelby County amended its Charter to add a new Article VIII entitled "County Charter Officers." The article creates the offices of Shelby County Sheriff, Shelby County Trustee, Shelby County Register, Shelby County Clerk, and Shelby County Assessor. Shelby County Charter, § 8.01. These officers are to have the same qualifications as those required of the former constitutional Sheriff, Trustee, Register, County Clerk, and Assessor by state law as of the date the provision becomes effective. Shelby County Charter, § 8.02. The Article became effective September 1, 2010, except with respect to the office of Shelby County Assessor. The Article is to become effective September 1, 2012, as to the office of Shelby County Assessor. Shelby County Charter, § 8.01. Section 8.03 of the Shelby County Charter provides:

A. The county charter officers, with the exception of the Shelby County Assessor, shall be elected each four years by the voters of Shelby County in accordance with the Tennessee Constitution, the general laws of the State of Tennessee and the Charter of Shelby County, commencing with the August 2010 general election.

B. Effective September 1, 2012, the Shelby County Assessor shall be elected to a term of two years by the voters of Shelby County in accordance with the Tennessee Constitution, the general laws of the State of Tennessee and the Charter of Shelby County. Effective September 1, 2014, and each four years thereafter, the Shelby County Assessor shall be elected to a term of four years.

C. The county charter officers shall not be subject to term limitations unless provided for in Article V herein.

The term of the current Shelby County Assessor began September 1, 2008, and will end September 1, 2012. Under Section 8.03.B, the next Shelby County Assessor will be elected to a two-year term of office, beginning September 1, 2012, and ending September 1, 2014. After that, the term of the Shelby County Assessor will be four years, and the Assessor will be elected at the same time as other Shelby County officers.

Under Paragraph 1 of Article VII, Section 1, of the Tennessee Constitution, "[t]he qualified voters of each county shall elect for terms of four years a legislative body, a county executive, a Sheriff, a Trustee, a Register, a County Clerk and an Assessor of Property." But the Tennessee Supreme Court has ruled that this paragraph specifying county officers and their terms of office does not apply to a charter county form of government created under Paragraph 3 of the same section. Jordan v. Knox County, 213 S.W.3d 751, 774 (Tenn. 2007); Bailey v. County of Shelby, 188 S.W.3d 539, 546 (Tenn. 2006). Thus, a charter county government is not constitutionally required to have these officers, and, if it provides for them, is free to change their term.

Paragraph 3 of Article VII, Section 1, 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 question then becomes whether the change in the Shelby County Assessor's term complies with the statutory scheme authorizing the county charter form of government. Tenn. Code Ann. § 5-1-210 lists the provisions that must be included in a county charter adopted under Tenn. Code Ann. §§ 5-1-201, et seq. The statute provides in relevant part:

The proposed county charter shall provide:

(12) That the duties of the constitutional county officers as prescribed by the general assembly shall not be diminished under a county charter form of government; provided, that such officers may be given additional duties under such charters.

The Tennessee Supreme Court has concluded that, under this statute, a county charter must either create the county offices listed in Paragraph 1 of Article VII, Section 1, or provide for the performance of the duties of these constitutional officers by other officers created under the charter. Jordan, 213 S.W.3d at 773-74. Under Tenn. Code Ann. § 5-1-210(5) and (6):

The proposed county charter shall provide:

(5) For the assignment of administrative and executive functions to officers of the county government, which officers may be given, subject to such limitations as may be deemed appropriate or necessary, all or any part of the administrative and executive functions possessed by the county being chartered and such additional powers and duties, not inconsistent with general law or the Constitution of Tennessee;

(6) For the names or titles of the administrative and executive officers of the county government, their qualifications, compensation, method of selection, tenure, removal, replacement and such other provisions with respect to such officers, not inconsistent with general law, as may be deemed necessary or appropriate for the county government[.]

(Emphasis added). Tenn. Code Ann. § 5-1-210(6) must be liberally construed as a utilization of the constitutional power granted by Article VII. Tenn. Code Ann. § 5-1-201(b); Jordan, 213 S.W.3d at 780 (citing Bailey, 188 S.W.3d at 544). Under Tenn. Code Ann. § 67-1-502, a property assessor must be elected to a term of four years. It can be argued that, under Tenn. Code Ann. § 5-1-201(6), a charter county that chooses to retain the constitutional county officers must follow all the statutes governing the qualification, compensation, method of selection, tenure, removal, replacement, and other provisions governing these officers. But the office of Shelby County Assessor is created under the Shelby County Charter, not Article VII, Section 1, Paragraph 1, or Tenn. Code Ann. §§ 67-1-501, et seq. Further, Tenn. Code Ann. § 5-1-210(6) includes the qualification, "as may be deemed necessary or appropriate for the county government." Section 8.03.B of the Shelby County Charter clearly intends that Shelby County officers will be elected on the same election cycle. Finally, the opposite interpretation would violate the rule of liberal construction set forth in Tenn. Code Ann. § 5-1-201(b). For all these reasons, we conclude that Section 8.03.B of the Shelby County Charter does not violate the Tennessee Constitution or Tenn. Code Ann. § 5-1-210(6) and is otherwise authorized under Tenn. Code Ann. §§ 5-1-201, et seq.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
Honorable Joe Towns, Jr.
State Representative
36 Legislative Plaza
Nashville, Tennessee 37243-0184