Which county officers can a Tennessee charter county like Knox County make appointed instead of elected, and vice versa?

Subject

Opinion No. 12-103, Officers under County Charter, November 2, 2012

Plain-English summary

Representative Brooks asked three questions about what Knox County (a charter county under Tenn. Code Ann. §§ 5-1-201 to -215) can do about how seven categories of county officers are selected.

Question 1: Can the county provide for appointment, instead of election, of the county clerk, register of deeds, trustee, property assessor, circuit court clerk, criminal court clerk, and chancery court clerk?

The AG's answers, with categorical reasoning:

• County clerk, register of deeds, trustee, property assessor: A charter county can choose to eliminate these offices entirely (Jordan v. Knox County, building on Bailey v. County of Shelby and Winter v. Allen). The duties have to be performed by some county officer, but the offices themselves are optional. If, however, the charter county chooses to keep any of these offices, the general law requires them to be elected for four-year terms. The AG cited the relevant statutes: § 8-11-101(a) (trustee), § 8-13-101(a) (register), § 18-6-101(a) and (b) (county clerk), and § 67-1-502 (property assessor). Under § 5-1-210(6), the charter's method of selection must be "consistent with general law," and the general law requires election.

  • Footnote on Shelby County assessor: Tenn. Att'y Gen. Op. 11-38 (Apr. 26, 2011) had separately concluded that a charter county could limit the assessor's initial term to two years, with subsequent terms being the standard four. That narrower issue is preserved.

• Circuit and criminal court clerks: The Tennessee Constitution requires that clerks of "inferior Courts" be elected for four years (Tenn. Const. art. VI, § 13). The Circuit Court of Knox County and the Criminal Court of Knox County are both inferior courts within the meaning of that provision (Tenn. Const. art. VI, § 1). A county charter cannot change this constitutionally mandated method of selection. Jordan v. Knox County had also struck down a Knox County Charter provision attempting to term-limit those clerks, partly because the charter cannot affect the judicial system (§ 5-1-204(f)).

• Chancery court clerk: Article VI, § 13 also requires that the chancery court clerk and master be APPOINTED by the chancellors, with a six-year term. A county charter cannot change that either. The Knox County Charter cannot provide for an elected chancery clerk.

Question 2: Can the charter provide for the election of the county school director?

No. § 49-2-203(a)(14)(A) makes the local school board "the sole authority in appointing a director of schools." § 49-2-201(a)(1) requires every county (including charter counties) to have an elected school board. Together, the general law dictates that the school board appoints the director. Jordan v. Knox County held that the general law preempts charter provisions on this; County of Shelby v. McWherter struck down a Shelby County Charter provision requiring the county commission to appoint school board members.

Question 3: Can the charter provide for an elected county road commissioner?

Yes. No general law of mandatory statewide applicability requires a county to have an APPOINTED road commissioner. The Tennessee County Uniform Highway Law (Tenn. Code Ann. §§ 54-7-101 to -206) doesn't dictate elected vs. appointed; Knox County is currently excluded from that law by population anyway. § 54-8-101 authorizes (but doesn't require) counties to create elected highway commissions; § 54-8-104 lets those commissions hire road supervisors. So a charter county can structure the road commissioner office as elected if it wishes. Earlier private acts dealing with "purely county affairs" are superseded by the charter (§ 5-1-211(a); Tenn. Att'y Gen. Ops. 10-118 and 88-04).

Currency note

This opinion was issued in 2012. 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 Tennessee constitutional framework

Tenn. Const. art. VII, § 1, paragraph 1 says: "The 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."

Tenn. Const. art. VII, § 1, paragraph 3 says: "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."

Bailey v. County of Shelby (Tenn. 2006) and Jordan v. Knox County (Tenn. 2007) read paragraph 1 as NOT controlling paragraph 3. A charter county under paragraph 3 isn't required to have the seven offices that paragraph 1 lists. Winter v. Allen (Tenn. 1963) established the related principle that the duties of those offices can be transferred to some other officer in an alternate form of government, so long as the duty is performed.

The charter-enabling statute

Tenn. Code Ann. §§ 5-1-201 to -215 authorize charter governments. § 5-1-210 lists what a charter must include:

• (5) Assigns administrative/executive functions to officers of the county.
• (6) Names, qualifications, compensation, "method of selection," tenure, removal, replacement, and other provisions for those officers, "not inconsistent with general law."
• (7) Authorizes "alteration or abolition of existing county offices, departments, boards, commissions, agencies and functions," except where otherwise provided.
• (12) "[T]he 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."

Jordan v. Knox County reconciled these. § 5-1-210(12) means that if the charter retains a constitutional officer's office, that officer's duties cannot be diminished. But the office can be abolished outright. The Court explained: "the point, of course, is that the offices must first be 'created' under the charter. . . . Article VII, paragraph 3 of our constitution grants the power to the counties not to have these officers at all."

Why elected if retained

§ 5-1-210(6) says the method of selection "shall not be inconsistent with general law." For each of the four constitutional offices, Tennessee general law requires election for four-year terms:

• § 8-11-101(a) (trustee)
• § 8-13-101(a) (register)
• § 18-6-101(a) and (b) (county clerk)
• § 67-1-502 (property assessor)

Shorts v. Bartholomew (Tenn. 2009) supplies the canon that statutes on related subjects are presumed to be consistent unless the new statute expressly repeals or amends the older one. The general law governing the four offices applies to charter counties just as it does to other counties.

Court clerks and the constitutional command

Tenn. Const. art. VI, § 13 sets out three rules:

• Supreme Court justices appoint their clerks for six-year terms.
• Chancellors appoint their clerks and masters for six-year terms.
• Clerks of inferior courts (which includes circuit and criminal courts under art. VI, § 1) are elected for four-year terms.

A charter county cannot override these. Jordan v. Knox County applied this against a charter attempt to term-limit clerks (§ 5-1-204(f) bars charters from affecting the judicial system).

The Criminal Court of Knox County was originally a branch of the Circuit Court (1907 Tenn. Priv. Act ch. 1), and the criminal court clerk also serves as clerk of the Court of General Sessions, Criminal Division (2000 Tenn. Priv. Act ch. 126). The Circuit Court Clerk serves as Clerk of the Court of General Sessions, Civil Division.

School director rules

Every county (including charter counties) must have an elected board of education under § 49-2-201(a)(1). The board "is the sole authority in appointing a director of schools" under § 49-2-203(a)(14)(A). Director of schools is hired via a written contract of up to four years' duration, renewable. The general law preempts contrary charter provisions: Jordan v. Knox County (Tenn. 2007); County of Shelby v. McWherter (Tenn. Ct. App. 1996).

Road commissioner: a different story

The Tennessee County Uniform Highway Law (§§ 54-7-101 to -206) doesn't require counties to have an appointed road commissioner. § 54-7-102 even excludes Knox County by population (and § 54-7-102 was amended again by 2012 Tenn. Pub. Acts ch. 689, § 1, effective January 1, 2013, to exclude any charter-form county). § 54-8-101 authorizes (without requiring) counties to create an elected highway commission; § 54-8-104 lets that commission hire a road supervisor.

Because no general law of mandatory statewide applicability dictates how a county picks its road commissioner, the charter county can choose. § 5-1-210(6) and § 5-1-211(a) leave the charter free to structure it. § 5-1-211(a) lets the charter county's legislative body pass ordinances on "purely county affairs." Earlier private acts on county form-of-government issues are superseded by adoption of the charter (Tenn. Att'y Gen. Op. 10-118; Tenn. Att'y Gen. Op. 88-04).

Common questions

If Knox County wants to streamline its government, what's its real flexibility?
It can eliminate the four constitutional county offices (clerk, register, trustee, assessor) and reassign their duties to other officers it creates. It cannot make those offices appointed; if it keeps them, they must be elected.

Why does the court clerk rule differ from the trustee rule?
The court clerks' selection method is set in the constitution itself (art. VI, § 13), not just in general statutes. The constitution overrides any charter provision. The trustee's selection method is set in general statutes, which § 5-1-210(6) makes binding on charters.

Can a Tennessee charter county have an unelected school board?
No. § 49-2-201(a)(1) requires every county, including charter counties, to have an elected school board. County of Shelby v. McWherter struck down a Shelby County Charter provision making the school board appointed.

Does this opinion apply only to Knox County?
The reasoning generalizes to any Tennessee charter county. Knox County is the example because it adopted a charter and asked the question. The Tennessee Supreme Court's Jordan decision is binding statewide.

What if a charter county wants an appointed director of schools but an elected school board, which is the default rule anyway?
That's the default rule under § 49-2-203(a)(14)(A) and § 49-2-201(a)(1). The opinion confirms that's the only lawful structure: elected board, appointed director.

Citations

Statutes and constitutional provisions:

• Tenn. Code Ann. §§ 5-1-201 to -215 (charter county enabling)
• Tenn. Code Ann. § 5-1-204(f) (charter cannot affect judicial system)
• Tenn. Code Ann. § 5-1-210(5)-(7), (12) (required charter provisions)
• Tenn. Code Ann. § 5-1-211(a) (purely county affairs)
• Tenn. Code Ann. § 8-11-101(a) (trustee elected)
• Tenn. Code Ann. § 8-13-101(a) (register elected)
• Tenn. Code Ann. § 18-6-101(a), (b) (county clerk elected)
• Tenn. Code Ann. § 49-2-201(a)(1) (elected board of education)
• Tenn. Code Ann. § 49-2-203(a)(14)(A) (school board appoints director)
• Tenn. Code Ann. §§ 54-7-101 to -206 (County Uniform Highway Law)
• Tenn. Code Ann. § 54-7-102, -103 (designated counties and chief admin officer)
• Tenn. Code Ann. § 54-8-101 (elected highway commission)
• Tenn. Code Ann. § 54-8-104 (commission hires road supervisor)
• Tenn. Code Ann. § 67-1-502 (property assessor elected)
• Tenn. Const. art. VI, § 1 (court structure)
• Tenn. Const. art. VI, § 13 (clerk selection)
• Tenn. Const. art. VII, § 1 (paragraph 1: constitutional offices; paragraph 3: charter authority)
• 1907 Tenn. Priv. Act ch. 1 (Criminal Court of Knox County); 2000 Tenn. Priv. Act ch. 126 (criminal court clerk also serves general sessions criminal division)
• 2012 Tenn. Pub. Acts ch. 689, § 1 (amending § 54-7-102 to exclude charter counties from highway law)

Cases and prior opinions:

• Jordan v. Knox County, 213 S.W.3d 751 (Tenn. 2007)
• Bailey v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006)
• Winter v. Allen, 212 Tenn. 84, 367 S.W.2d 785 (1963)
• Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009)
• County of Shelby v. McWherter, 936 S.W.2d 923 (Tenn. Ct. App. 1996)
• Tenn. Att'y Gen. Op. 11-38 (Apr. 26, 2011)
• Tenn. Att'y Gen. Op. 10-118 (Dec. 23, 2010)
• Tenn. Att'y Gen. Op. 88-04 (Jan. 5, 1988)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-103.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

November 2, 2012

Opinion No. 12-103

Officers under County Charter

QUESTIONS

1. May Knox County under its county charter of government, authorized under Article VII, § 1, ¶ 3, of the Tennessee Constitution and Tenn. Code Ann. §§ 5-1-201 to -215, legally provide for appointment rather than election of the following officers:
   a. County clerk;
   b. County register of deeds;
   c. County trustee;
   d. County property assessor;
   e. Circuit court clerk;
   f. Criminal court clerk;
   g. Chancery court clerk.

2. May Knox County under its charter provide for the election rather than appointment of the Knox County Director of Schools?

3. May Knox County under its charter provide for the election rather than appointment of the county road commissioner?

OPINIONS

1. A charter county may create the offices of county clerk, register, trustee and property assessor but may not provide that these positions be appointed rather than elected. Article VI, § 13, of the Tennessee Constitution requires that the clerks of inferior courts be elected for a term of four years and that the clerk and master of a chancery court be appointed by the chancellors. The Circuit Court of Knox County and the Criminal Court of Knox County are both inferior courts within the meaning of this provision, and the clerk of each court must, therefore, be elected for a term of four years. Similarly, the Clerk of the Chancery Court of Knox County must be appointed by the chancellors. A county charter cannot change these methods of selection.

2. Under Tennessee law, every county must have a county school board, and the county school board appoints the county school director. A county charter, therefore, cannot provide for the election of the county school director.

3. Yes, a county charter may provide for an elected county road commissioner.

ANALYSIS

This opinion addresses whether a county in adopting a charter form of government under Tenn. Code Ann. §§ 5-1-201 to -215 may provide for a method of choosing various local officers that differs from the method of selection set forth under various provisions of the Tennessee Constitution and Tennessee statutes of general applicability. Paragraph 3 of Article VII, § 1, of the Tennessee Constitution allows the General Assembly to authorize a county to elect a charter government, stating:

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.

Pursuant to this constitutional provision, the General Assembly has enacted Tenn. Code Ann. §§ 5-1-201 to -215 to give a county the option to adopt a charter form of government.

1. The offices of county clerk, county register of deeds, county trustee and county property assessor are constitutional county offices. Under Paragraph 1 of Article VII, § 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." (Emphasis added). However, Paragraph 3 of Article VII, § 1 authorizes the General Assembly to "provide alternate forms of county government including the right to charter and the manner by which a referendum may be called." Tenn. Const. art. VII, § 1. This paragraph further provides that any new form of government authorized by the General Assembly and adopted by the county "shall replace the existing form [of government]." Id. The Tennessee Supreme Court, in extensively reviewing the interrelationship of these constitutional provisions in a case seeking to declare the Knox County Charter null and void, concluded that Paragraph 1 specifying the creation of certain 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, 773-74 (Tenn. 2007). See also 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. See Jordan, 213 S.W.3d at 773-74.

Nonetheless, if a charter county does elect to create these offices, then Tennessee's statutory provisions authorizing a county to adopt a charter county government do not permit a charter county to appoint rather than elect the county trustee, register, clerk, and property assessor. 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 to -215. The statute provides in relevant part:

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.

(7) For such administrative departments, agencies, boards and commissions as may be necessary and appropriate to perform the functions of county government in an efficient and coordinated manner and for this purpose for the alteration or abolition of existing county offices, departments, boards, commissions, agencies and functions, except where otherwise provided in this part or prohibited by the Constitution of Tennessee;
. . . . and
(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.

Tenn. Code Ann. § 5-1-210(5)-(7), (12) (emphasis added).

The Tennessee Supreme Court has held that, under this statute, a county charter must either create the county offices listed in Paragraph 1 of Article VII, § 1, of the Tennessee Constitution 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. As the Court explained:

Knox County's claim that its charter is not required to provide for the constitutional county offices and that they somehow exist separate and apart from the charter by operation of law does not take into account the requirements of the enabling legislation. Our constitution authorizes the General Assembly to grant counties the right to establish governments under either the traditional or metropolitan forms or to create an alternate charter form of county government. Although the second sentence in the third paragraph of article VII, section 1 provides that the new form of government "shall" replace the existing form if approved by a majority of the voters, the new form must also comport with the enabling legislation. In order to meet the latter standard, the "new form of government" must satisfy the requirements found at Tennessee Code Annotated Section 5-1-210, including the provision 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." Tenn. Code Ann. § 5-1-210(12). In Bailey [v. County of Shelby, 188 S.W.3d 539 (Tenn. 2006)] this Court unequivocally concluded that the third paragraph of article VII is not controlled by its first paragraph. Therefore, the subsection requires that the "duties," which are clearly essential for a complete county government, not be neglected in an alternate form of government; but, as this Court ruled over forty years ago in Winter [v. Allen, 212 Tenn. 84, 367 S.W.2d 785 (1963)] the duties may be transferred to another county official, so long as the duty is performed. 367 S.W.2d at 790. The decision in Bailey implied that Tennessee Code Annotated section 5-1-210(12) provides that it is only when the charter does "retain" the constitutional county offices in the alternate form of government that the duties, as already described by our constitution and statute, may not be diminished. The point, of course, is that the offices must first be "created" under the charter. A comparison of the constitutional terminology and the statutory language compels this interpretation, as does the holding in Bailey. Article VII, paragraph 3 of our constitution grants the power to the counties not to have these officers at all.

Jordan, 213 S.W.3d at 773-74 (emphasis added).

Thus, per the Tennessee statutes authorizing a county to adopt a charter form of government and the Supreme Court's Jordan decision, a county in adopting a charter government may choose to eliminate the constitutional officers of county clerk, register of deeds, trustee and property assessor so long as the duties of these offices are not neglected and are transferred to another county official. However, if one or more of these offices is created by a charter government, then Tenn. Code Ann. § 5-1-210(6) specifically states that the "method of selection" of these officers shall not be "inconsistent with general law." Under the general law of Tennessee, each of these four county officers must be elected to a term of four years. Tenn. Code Ann. § 8-11-101(a) (trustee); Tenn. Code Ann. § 8-13-101(a) (register); Tenn. Code Ann. § 18-6-101(a) and (b) (county clerk); and Tenn. Code Ann. § 67-1-502 (property assessor). [Footnote 1: In Tenn. Att'y Gen. Op. 11-38 (Apr. 26, 2011), this Office opined the Shelby County Charter could limit the initial term of the Shelby County Assessor to two years. This opinion does not change the conclusion reached in Opinion 11-38, which was limited to the narrow question of whether a charter county has the flexibility to limit the assessor's initial term to two rather than four years. Tenn. Att'y Gen. Op. 11-38, at 3 (Apr. 26, 2011). This Office, while noting this could be a close question, opined the authorizing charter statutes would allow a charter county the flexibility to permit the assessor an initial two year term, with all subsequent terms being four years in accordance with the general law governing the method of selection of assessors. Id.] Of course, these qualifications are all constitutionally required for these officers in counties subject to Paragraph 1 of Article VII, § 1, of the Tennessee Constitution, but the general law governing the creation of these four offices does not exclude charter counties from its operation. Indeed the General Assembly in authorizing a charter form of government requires that the method of selection of county government positions created by a charter government must be consistent with the general law. Compare Tenn. Code Ann. § 5-1-210(6) with Tenn. Code Ann. §§ 8-11-101(a), 8-13-101(a), 18-6-101(a) & (b) and 67-1-502. See also Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009) (recognizing the general rule of statutory construction that, when the General Assembly enacts a statute, it is presumed to be aware of other statutes relating to the same subject matter, and, unless the newer statute expressly repeals or amends the older statute, the new provision is presumed to be in accord with the same policy embodied in the prior statutes). For these reasons, a county charter may create the offices of county trustee, register, clerk, and property assessor but, pursuant to Tennessee's general law, these positions must be elected.

The next question is whether a county charter may provide for the appointment rather than the election of the court clerks in the county. Knox County has three court clerks: a circuit court clerk, a criminal court clerk, and a chancery court clerk. The Criminal Court of Knox County was originally a branch of the Circuit Court of Knox County and was created under 1907 Tenn. Priv. Act ch. 1, as amended. The Criminal Court Clerk acts as Clerk of the Court of General Sessions of Knox County, Criminal Division and the Circuit Court Clerk acts as Clerk of the Court of General Sessions of Knox County, Civil Division. 2000 Tenn. Priv. Act ch. 126, §§ 1 and 2.

Article VI, § 13, of the Tennessee Constitution provides for the manner in which court clerks are selected:

Judges of the Supreme Court shall appoint their clerks who shall hold their offices for six years. Chancellors shall appoint their clerks and masters, who shall hold their offices for six years. Clerks of the Inferior Courts holden in the respective Counties or Districts, shall be elected by the qualified voters thereof for the term of four years. Any Clerk may be removed from office for malfeasance, incompetency or neglect of duty, in such manner as may be prescribed by law.

The Circuit Court of Knox County and the Criminal Court of Knox County are both "inferior Courts" within the meaning of this provision. See Tenn. Const. Art. VI, § 1 (establishing circuit and other courts). Thus, the Tennessee Constitution requires that the clerks of each of these courts be elected for a term of four years. Further, under this provision, the clerk and master of the Chancery Court of Knox County must be appointed by the chancellors. A county charter may not change these constitutionally mandated methods of selection. Jordan, 213 S.W.3d at 782 (Knox County Charter could not impose term limits on circuit and criminal court clerks under Article VI, § 1 and Tenn. Code Ann. § 5-1-204(f), which provides that a county charter may not affect the judicial system).

2. Nor can a county charter provide for the election, rather than the appointment, of the county school director. Tenn. Code Ann. §§ 5-1-201 to -215 do not explicitly authorize a county charter to address the administration of the county school system. Tenn. Code Ann. § 49-2-201(a)(1) does address the creation of county boards of education and provides in relevant part:

Notwithstanding any other law to the contrary, there shall be a board of education elected by the people. Except in counties with a county charter or metropolitan government charter, the board shall consist of no more members than the number of members authorized by general law or private act for boards of education in existence on January 1, 1992, or the number of members actually serving on a board on January 1, 1993, except during the transition periods following district reapportionment.

(Emphasis added). Thus, every county operating a county school system, including counties that have adopted a charter form of government, must have an elected board of education. See also County of Shelby v. McWherter, 936 S.W.2d 923, 934 (Tenn. Ct. App. 1996) (recognizing that Tennessee's general law requiring the election of school board members preempted a Shelby County Charter provision requiring the county commission to appoint them).

Tenn. Code Ann. § 49-2-203(a)(14)(A) authorizes the county to employ a school director, stating in relevant part:

(a) It is the duty of the local board of education to:
. . . .
(14)(A) Notwithstanding any other public or private act to the contrary, employ a director of school under a written contract of up to four (4) years' duration, which may be renewed . . . The school board is the sole authority in appointing a director of schools.

(Emphasis added). Thus, under the general law, the county school board appoints the county school director. A county charter, therefore, cannot provide for the election of the county school director. See Jordan, 213 S.W.3d at 782 (concluding that the general law governing the election and tenure of county school board members preempts the Knox County Charter).

3. Finally, a county charter may provide for an elected county road commissioner. We assume this question refers to the county's chief administrative officer in charge of county highways. No general law of mandatory statewide applicability requires a county to have an appointed road commissioner. The Tennessee County Uniform Highway Law, codified at Tenn. Code Ann. §§ 54-7-101 to -206, only addresses the administration of Tennessee's highway system in designated Tennessee counties and does not require a county to appoint or elect a chief administrative officer. See Tenn. Code Ann. §§ 54-7-102 & -103. [Footnote 2: Knox County is currently excluded by population from the Tennessee County Uniform Highway Law. See Tenn. Code Ann. § 54-7-102. See also 2012 Tenn. Pub. Acts ch. 689, § 1 (effective January 1, 2013 amending Tenn. Code Ann. § 54-7-102 to exclude from the Highway Law any county with a charter form of government).]

In addition, counties where a county highway organization does not already exist by legislative act are authorized, but not required, to create a county highway commission elected by the county legislative body. Tenn. Code Ann. § 54-8-101. In that case, the highway commission is authorized to hire a road supervisor. Tenn. Code Ann. § 54-8-104. Again, however, these statutes are not general laws of mandatory statewide applicability.

Accordingly, these statutes collectively do not create any Tennessee general law governing the selection of a county road supervisor and thus do not preclude a charter county from providing in its charter or by ordinance, if so permitted by its charter, for an elected county road supervisor. See Tenn. Code Ann. §§ 5-1-210(6) and -211(a). A charter county would have this authority even if a private act applicable to the county provided otherwise. Tenn. Code Ann. § 5-1-211(a) (legislative body of charter county may pass ordinance relating to "purely county affairs"); Tenn. Att'y Gen. Op. 10-118, at 4 (Dec. 23, 2010); Tenn. Att'y Gen. Op. 88-04 (Jan. 5, 1988) (both opining that earlier private acts dealing with the form of county government and "purely county affairs" are superseded by the adoption of a charter form of government). Any ordinance adopted under this statute would have to conform to the charter.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

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