Can a Tennessee state legislator also serve as a paid mediator or arbitrator under the state's Rule 31 ADR program?

Subject

Opinion No. 11-58, Legality of Legislator Serving as a Dispute Resolution Neutral, July 18, 2011

Plain-English summary

Senator Mike Faulk asked whether a sitting member of the Tennessee General Assembly could moonlight as a mediator or arbitrator under Tennessee Supreme Court Rule 31, the rule that governs court-annexed alternative dispute resolution in civil cases. The concern was Article II, § 26 of the Tennessee Constitution, which says "[no] person in this State [shall] hold more than one lucrative office at the same time." Service as a legislator is a lucrative state office. So the question reduced to whether the Rule 31 mediator role is also a "lucrative State office."

The AG said no. Three reasons converged. First, the Rule 31 framework does not create a state office. A Neutral is appointed by the court or agreed to by the parties for a single proceeding. There is no term of office, and a person is not elected or appointed to be qualified to serve. A case-by-case appointment to mediate one civil dispute does not carry the marks of a public office.

Second, the Rule 31 Neutral is not compensated by the State. The parties pay the Neutral's fees and expenses. Even when those costs are taxed as court costs, the court costs are paid by a party to that particular litigation, not by the State as employer or compensator. Under Durham v. Dismukes, "[t]he primary badge of a State officer is that the Legislature provide that the State pay the salary of the office." A Rule 31 Neutral does not draw a state salary.

Third, and a separate confirmation: the same Article II, § 26 challenge had previously failed in analogous contexts. In Op. 99-211, the AG concluded that a deputy sheriff could be appointed and paid case-by-case to serve as an interpreter in general sessions court, because "an interpreter is not an office in State government." A mediator is even further from being a state officer than a paid interpreter.

The AG flagged one practical caveat. Rule 31, § 10 requires the Neutral to disclose "any known relationships with the parties … which may affect or give the appearance of affecting the Neutral's neutrality." In a proceeding involving the State, a legislator-mediator should disclose that legislative service so the parties and the court can decide whether that relationship implicates neutrality. The opinion also noted in a footnote that common-law incompatibility doctrine (separate from Article II, § 26) bars a public officer from simultaneously holding two incompatible offices, but the office found no reason to think mediation under Rule 31 would clash with legislative duties in that way.

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.

Tennessee Supreme Court Rule 31 and Rule 8, RPC 2.4 have been amended over time. The Alternative Dispute Resolution Commission's qualification, training, and conduct standards for mediators evolve. Anyone considering this dual-role arrangement today should look at the current Rule 31 text and current ADRC guidance.

Background and statutory framework

The constitutional provision. Tenn. Const. Art. II, § 26 disqualifies certain officials from serving in the General Assembly and adds the broader "more than one lucrative office at the same time" prohibition. Justices of the peace and militia commissions are expressly carved out.

Lucrative office, limited to state government. The lucrative-office bar reaches only state offices, not county or municipal offices. Boswell v. Powell, 43 S.W.2d 495 (Tenn. 1931); Phillips v. West, 213 S.W.2d 3, 6 (Tenn. 1948). Op. Tenn. Att'y Gen. No. 90-11 (Feb. 6, 1990) applied that limit in a legislator-also-county-officer context.

The Rule 31 framework. Tenn. Sup. Ct. Rule 31 governs court-annexed alternative dispute resolution. A Neutral is appointed by the court or agreed to by the parties for a particular case, with no term of office. Section 4 sets out how Neutrals are nominated and selected; §§ 14 to 16 cover non-binding arbitrators, mini-trial neutrals, and case evaluators, and § 17 covers mediators listed by the Alternative Dispute Resolution Commission. Section 9 and Appendix A set out the standards of professional conduct for Rule 31 Neutrals. Tenn. Sup. Ct. Rule 8, RPC 2.4, governs attorneys serving as a Neutral.

Why a Rule 31 Neutral is not a "State office." The role has no term of office, no continuing duty, and no state salary. The Neutral is appointed case by case and paid by the parties, not by the State. Those features are what take the position outside Article II, § 26.

Common questions

Can the legislator-mediator be paid for mediation work?

Yes. Rule 31 contemplates reasonable compensation, paid by the parties (or, in pro bono settings, donated). The compensation does not transform the role into a state office because the State is not the paying employer.

What if the case the legislator mediates involves the State of Tennessee as a party?

The legislator must comply with Rule 31, § 10's disclosure obligation. Disclosing the legislative role to the parties and the court at the outset is the prescribed handling. The court and the parties then decide whether that relationship affects neutrality. The opinion does not categorically bar a legislator from mediating cases involving the State; it requires disclosure.

Does this opinion bless a legislator serving as an arbitrator in a binding arbitration?

The opinion's reasoning extends to non-binding arbitrators, mini-trial neutrals, and case evaluators under Rule 31, §§ 14 to 16. It does not separately analyze private binding arbitration outside Rule 31. The same logic likely applies to non-Rule-31 private arbitration, but anyone considering binding arbitration work should also check potential incompatibility issues (especially if the case might come back to the Legislature as policy).

Why isn't a deputy sheriff a state officer here?

The AG cited Op. 99-211. At the time of that opinion, the office of deputy sheriff was treated as a state office, but a deputy sheriff appointed and paid case-by-case as a court interpreter was not himself holding a separate state office in that interpreter capacity. The interpreter role failed the "permanence" test. The same logic applies to mediators.

Is the common-law incompatible-offices doctrine still a concern?

The AG flagged that doctrine in a footnote but said the office had no reason to think mediation conflicts with legislative duties under it. The common-law rule asks whether the "functions are inherently inconsistent and repugnant to each other," considering permanency, power granted, and functions performed. Routine mediation work does not obviously clash with legislative service. A specific case (for example, mediating a dispute about a statute the legislator authored) might raise different concerns and would call for case-by-case judgment.

Citations

• Tenn. Const. Art. II, § 26
• Tenn. Sup. Ct. Rule 8, RPC 2.4
• Tenn. Sup. Ct. Rule 31 (entire rule, especially §§ 4, 9, 10, 14-17)
• Boswell v. Powell, 43 S.W.2d 495 (Tenn. 1931)
• Phillips v. West, 213 S.W.2d 3 (Tenn. 1948)
• Durham v. Dismukes, 333 S.W.2d 935 (Tenn. 1960)
• State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326 (1905)
• Op. Tenn. Att'y Gen. 90-11 (Feb. 6, 1990); Op. Tenn. Att'y Gen. 99-211 (Oct. 20, 1999)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-058.pdf

Original opinion text

July 18, 2011
Opinion No. 11-58
Legality of Legislator Serving as a Dispute Resolution Neutral

QUESTION

Does Article II, § 26 of the Tennessee Constitution, which provides that no person shall hold more than one lucrative State office at the same time, prohibit a member of the General Assembly from serving as a Dispute Resolution Neutral, including serving as a Mediator, under Tennessee Supreme Court Rule 8, RPC 2.4, or Rule 31?

OPINION

No, because serving as a Dispute Resolution Neutral, including serving as a Mediator, under Tennessee Supreme Court Rule 8, RPC 2.4 or Rule 31 does not constitute holding a lucrative State office.

ANALYSIS

This opinion addresses whether Article II, § 26 of the Tennessee Constitution prohibits a member of the General Assembly from serving as a Dispute Resolution Neutral, including serving as a Mediator, under either Tennessee Supreme Court Rule 31 (regulating alternative dispute resolution in connection with civil judicial proceedings) or Rule 8, RPC 2.4 (regulating the conduct of attorneys serving as a Dispute Resolution Neutral). Article II, § 26 of the Tennessee Constitution provides:

No Judge of any Court of law or equity, Secretary of State, Attorney General, Register, Clerk of any court of Record, or person holding any office under the authority of the United States, shall have a seat in the General Assembly; nor shall any person in this State hold more than one lucrative office at the same time; provided, that no appointment in the Militia, or to the office of Justice of the Peace, shall be considered a lucrative office, or operative as a disqualification to a seat in either House of the General Assembly.

This constitutional provision is aimed "against any person holding more than one lucrative office 'in this state[,]' [t]hat is, in state government." Boswell v. Powell, 43 S.W.2d 495 (Tenn. 1931) (quoted in Phillips v. West, 213 S.W.2d 3, 6 (Tenn. 1948)) (finding that the Article II, § 26 prohibition is not applicable to county or municipal offices); see Tenn. Att'y Gen. Op. No. 90-11 (Feb. 6, 1990).

While serving as a member of the General Assembly clearly is holding a "lucrative State office," an examination of the relevant provisions of Rule 31 reveals that serving as a Rule 31 Neutral is not holding a lucrative State office under Article II, § 26 of the Tennessee Constitution. See also Tenn. Att'y Gen. Op. No. 99-211 (Oct. 20, 1999) (opining that a deputy sheriff, an office which at that time was considered as being a State rather than county office, may be appointed and paid on a case-by-case basis to be an interpreter in general sessions court, since an interpreter is not an office in State government).

Initially, although Rule 31 specifies the qualifications, duties, and responsibilities for a person serving in the position of a Neutral on a case-by-case basis, it does not create a State office. See Tenn. Sup. Ct. Rule 31, § 9 and Rule 31's Appendix A (setting forth the Standards of Professional Conduct for Rule 31 Neutrals); see also Tenn. Sup. Court Rule 8, RPC 2.4 (setting forth standards for a lawyer who serves as a Neutral). A Neutral under Rule 31 is thus appointed by the court and/or agreed to the parties for a limited purpose; indeed a Rule 31 Neutral does not even have a term of office or employment. A person is not elected or appointed in order to be qualified to serve as a Rule 31 Neutral. Pursuant to Section 4 of Rule 31, in a particular civil case in which an alternative dispute resolution proceeding will occur, either (a) the parties agree to the selection of the Neutral or (b) the court follows a prescribed procedure for the nomination and selection of the Neutral from available qualified Neutrals, based upon the input of the parties. In certain alternative dispute resolution proceedings, the parties and the court may select any lawyer in good standing to act on a case-by-case basis as an arbitrator in a non-binding arbitration, to act as a neutral in a mini-trial, or to serve as an evaluator in a general civil or family case. Tenn. Sup. Ct. Rule 31, §§ 14 - 16. Moreover, a Rule 31 Mediator may serve in that capacity on a case-by-case basis as long as that applicant meets the qualifications for being listed as a Mediator by the Alternative Dispute Resolution Commission ("ADRC"). See Tenn. Sup. Ct. Rule 31, § 17.

Moreover, since a Rule 31 Neutral is not compensated by the State to hold a State office, a Neutral does not hold a "lucrative State office". Cf. Durham v. Dismukes, 333 S.W.2d 935, 938 (Tenn. 1960) (finding that a general sessions court is a county office by noting "[t]he primary badge of a State officer is that the Legislature provide that the State pay the salary of the office"). The parties to the alternative dispute resolution proceeding pay the Rule 31 Neutral's fees and expenses. Although a Rule 31 Neutral may request that the costs of his services be charged as court costs, the court costs are ultimately paid by a party to that particular litigation. Even if the State were a party to the litigation, the State is no different from a private party paying for the services rendered by the Rule 31 Neutral.

Accordingly, it is the opinion of this Office that serving as a Rule 31 Neutral is not holding a lucrative State office. The Tennessee Constitution, Article II, § 26, does not prohibit a member of the General Assembly from serving as a Dispute Resolution Neutral, including as a Mediator, under either Tennessee Supreme Court Rule 31 or Rule 8, RPC 2.4.

Section 10 of Rule 31 does require the Neutral to disclose, prior to the commencement of any alternative dispute proceeding, "any known relationships with the parties … which may affect or give the appearance of affecting the Neutral's neutrality." Accordingly, in a dispute resolution proceeding involving the State in any way, appropriate disclosure of the Neutral serving as a member of the General Assembly should be made to the parties and the court.

ROBERT E. COOPER, JR.
Attorney General and Reporter

STEVEN A. HART
Special Counsel

Requested by:
The Honorable Mike Faulk
State Senator
11A Legislative Plaza
Nashville, TN 37243