In Tennessee, can a county medical examiner who also serves as county coroner run for or hold a seat on the county commission?

Subject

Opinion No. 11-74, County Medical Examiner and Coroner Serving on County Commission, October 17, 2011

Plain-English summary

Senator Stewart and Representative Alexander asked whether a doctor serving as both county medical examiner and (by county commission designation) county coroner could also serve as a county commissioner. The AG said no.

The starting point is the Tennessee Constitution, Article II, Section 26, which bars a person from holding "more than one lucrative office at the same time." But Tennessee courts have read "office" in that clause to mean state office. County offices fall outside the constitutional prohibition. So the constitutional question dead-ends.

The decisive provision is statutory: Tenn. Code Ann. § 5-5-102(c)(2), which lists a series of county-wide offices that cannot also be held by a member of the county legislative body. The list expressly names county mayor, sheriff, trustee, register, county clerk, assessor of property, and "any other county-wide office filled by vote of the people or the county legislative body." It also adds, effective June 18, 2005, that a director of schools cannot serve as a county commissioner.

The medical examiner is appointed by the county mayor and confirmed by the county legislative body under Tenn. Code Ann. § 38-7-104(a). The coroner office is created at the discretion of the county legislative body under Tenn. Code Ann. § 8-9-101; if the office is created, the legislative body elects a coroner. But the same statute lets the county vest the coroner duties in the medical examiner instead of electing a separate coroner. When the county does that, the medical examiner-now-also-coroner is performing duties that the legislative body has affirmatively assigned.

That assignment, the AG concluded, makes the medical examiner-coroner position one "filled by vote of the county legislative body" within the meaning of § 5-5-102(c)(2). Either path (electing a coroner outright, or vesting coroner duties in the medical examiner) involves the commission "fill[ing]" the position. The medical examiner-coroner therefore falls inside the statutory bar and cannot also serve as a county commissioner.

The opinion expressly distinguishes a 1979 AG opinion (No. 79-104A) that had reached the opposite result, on the ground that § 5-5-102(c)(2)'s dual-office-holding prohibition did not become effective until June 1, 1979, after that earlier opinion was issued. The 2011 opinion supersedes the 1979 conclusion.

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.

Background and statutory framework

The constitutional rule. Tenn. Const. art. II, § 26 prohibits holding "more than one lucrative office at the same time." Tennessee Supreme Court precedent reads "office" to mean state office. Phillips v. West, 187 Tenn. 57, 65-66, 213 S.W.2d 3, 7 (1948); Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931). County offices are outside the constitutional prohibition.

The statutory rule for county commissioners. Tenn. Code Ann. § 5-5-102(c)(2): "No person elected or appointed to fill the office of county mayor, sheriff, trustee, register, county clerk, assessor of property, or any other county-wide office filled by vote of the people or the county legislative body, shall also be nominated for or elected to membership in the county legislative body. After June 18, 2005, a director of schools shall not be qualified to serve as a member of the county legislative body."

The medical examiner. Tenn. Code Ann. § 38-7-104(a): the county medical examiner is appointed by the county mayor, subject to confirmation by the county legislative body, from a list of up to two doctors of medicine or osteopathy nominated by a convention of physicians resident in the county. The county mayor calls the convention. The examiner serves a five-year term and is eligible for reappointment.

The coroner. Tenn. Code Ann. § 8-9-101: the county legislative body has discretionary authority to create the office of county coroner. If the office is created, the body elects a coroner for a two-year term. If there is a county medical examiner, the legislative body "may vest the duties of the county coroner in the county medical examiner and shall not be required to elect a county coroner."

The 1979 prior opinion, superseded. Op. Tenn. Att'y Gen. No. 79-104A (March 12, 1979) had concluded that an individual could hold both county coroner and county commissioner. That opinion predated § 5-5-102(c)(2), which was enacted by 1979 Tenn. Pub. Acts Ch. 175 and took effect June 1, 1979.

Common questions

What if the county has not vested coroner duties in the medical examiner?

The opinion assumed the county legislative body has vested coroner duties in the medical examiner. If the county has elected a separate coroner instead, the coroner is "elected" by the legislative body under § 8-9-101 and the same § 5-5-102(c)(2) bar still applies. A separate medical examiner who carries no coroner duties is appointed by the mayor with legislative-body confirmation. Whether confirmation alone makes that office one "filled by vote of the county legislative body" is a closer question; the opinion did not directly answer it.

What if the medical examiner duties are filled and the coroner duties are unfilled (no county coroner office created)?

If the county has not created the coroner office at all, the medical examiner is the medical examiner, period. The opinion's chain of reasoning depends on the coroner-duties vesting. Without it, the analysis would have to rest only on the medical examiner's appointment-plus-confirmation route, which is not the route the opinion addressed.

Could a sitting commissioner be removed under this opinion, or does it only apply to new candidacies?

Section 5-5-102(c)(2) speaks to nomination for and election to commission membership. The cleanest read is that the bar prevents qualifying as a candidate and prevents being seated. A person already serving on the commission who later becomes medical examiner-coroner presents a separate vacancy/incompatibility question that this opinion did not analyze.

Does this apply in counties with a metropolitan form of government?

The opinion did not address metropolitan forms. Statutes governing those governments (e.g., Davidson County) may differ on which positions are dual-office-holding-incompatible.

Why does the medical examiner's appointment by the mayor get treated as the commission "filling" the position?

The opinion's logic was that whether the county elects a coroner outright or vests coroner duties in the medical examiner, the county commission is the body that determines who carries out coroner duties. The commission "fills" the coroner role through its choice of mechanism. The reasoning is specific to the medical-examiner-as-coroner scenario, not to medical examiners generally.

Citations

• Tenn. Code Ann. § 38-7-104(a)
• Tenn. Code Ann. §§ 8-9-101, et seq.
• Tenn. Code Ann. § 8-9-101
• Tenn. Code Ann. § 5-5-102(c)(2)
• 1979 Tenn. Pub. Acts Ch. 175
• Tenn. Const. art. II, § 26
• Phillips v. West, 187 Tenn. 57, 213 S.W.2d 3 (1948)
• Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931)
• Op. Tenn. Att'y Gen. No. 79-104A (March 12, 1979) (superseded in part)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-074.pdf

Original opinion text

October 17, 2011
Opinion No. 11-74
County Medical Examiner and Coroner Serving on County Commission

QUESTION

May a person who serves as county medical examiner, and performs the duties of county coroner, serve as a county commissioner?

OPINION

A county medical examiner in whom the county commission has vested the duties of county coroner may not serve as a county commissioner.

ANALYSIS

This opinion addresses whether an individual who serves both as the county coroner and the county medical examiner may also serve as a county commissioner.

The county medical examiner is appointed by the county mayor, subject to confirmation by the county legislative body. Tenn. Code Ann. § 38-7-104(a). The examiner is elected from a list of a maximum of two doctors of medicine or osteopathy nominated by convention of the physicians, medical or osteopathic, resident in the county. The county mayor calls the convention for this purpose. A county medical examiner serves a five-year term and is eligible for reappointment by the county mayor with confirmation by the county legislative body. Id.

The office of county coroner is governed by Tennessee Code Annotated §§ 8-9-101, et seq., which provides in relevant part:

The county legislative body is hereby granted discretionary authority to create the office of county coroner. If such office is created, the county legislative body shall elect a coroner who shall hold office for two (2) years, and until a successor is qualified. However, in those counties that have a county medical examiner, the county legislative body may vest the duties of the county coroner in the county medical examiner and shall not be required to elect a county coroner.

Tenn. Code Ann. § 8-9-101 (emphasis added). This opinion assumes that an individual selected as county medical examiner under Section 38-7-104(a) has also been vested with the duties of the county coroner by the county commission under Section 8-9-101.

The Tennessee Constitution, Article II, Section 26, prohibits a person from "hold[ing] more than one lucrative office at the same time[.]" The term "office" has been construed by Tennessee courts to mean "state office." Phillips v. West, 187 Tenn. 57, 65-66, 213 S.W.2d 3, 7 (1948); Boswell v. Powell, 163 Tenn. 445, 43 S.W.2d 495 (1931). The offices of county medical examiner/coroner and county commissioner are local offices and, therefore, are not covered by the prohibition of Article II, Section 26. No other constitutional provision would prohibit the dual office holding addressed in this request.

However, by statute, the Legislature has placed the following limitations on who can serve on a county commission:

No person elected or appointed to fill the office of county mayor, sheriff, trustee, register, county clerk, assessor of property, or any other county-wide office filled by vote of the people or the county legislative body, shall also be nominated for or elected to membership in the county legislative body. After June 18, 2005, a director of schools shall not be qualified to serve as a member of the county legislative body.

Tenn. Code Ann. § 5-5-102(c)(2) (emphasis added).

The question posed is whether the office of medical examiner carrying out the duties of the county coroner is "filled by vote of ... the county legislative body" within the meaning of this statute. Under Tennessee Code Annotated § 8-9-101, the county commission may either create a separate office of coroner or vest the duties of coroner in the medical examiner. In either case, the county commission determines the official to carry out the duties of coroner and in effect "fills" the position. Accordingly, the office of medical examiner carrying out the duties of the county coroner is "filled by vote of ... the county legislative body" within the meaning of Tennessee Code Annotated § 5-5-102(c)(2). A medical examiner carrying out the duties of the county coroner, therefore, may not serve as a county commissioner.[1]

[1] In 1979, this Office concluded that an individual may simultaneously hold the offices of county commissioner and county coroner. Op. Tenn. Att'y Gen. No. 79-104A (March 12, 1979). This opinion, however, was issued before the prohibition on dual office holding in Section § 5-5-102(c)(2) became effective. 1979 Tenn. Pub. Acts Ch. 175 (effective June 1, 1979).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Eric Stewart
State Senator
310A War Memorial Building
Nashville, Tennessee 37243-0214

The Honorable David Alexander
State Representative
107 War Memorial Building
Nashville, Tennessee 37243