How do vacancies and abstentions affect a Tennessee county commission's quorum and majority vote count?

Subject

Opinion No. 12-109, County Commission Meetings, December 14, 2012

Plain-English summary

Representative Hawk asked five questions about Tennessee county commission meetings (operating under Tenn. Code Ann. §§ 5-5-101 to -127, not under a county charter or metropolitan government). The questions cluster around two topics: voting mechanics (quorum, majority, abstentions) and Open Meetings Act compliance with meeting space.

1.a. Quorum when there are vacancies?

Quorum is a majority of the members IN OFFICE at the time of the vote, not a majority of the total authorized membership. § 5-5-108 says "[a] majority of the members of the county legislative body of each county shall constitute a quorum." Beckler v. State (1955) and Bailey v. Greer (1971) read this to mean actual membership, not authorized. So if a 21-seat commission has 4 vacancies, quorum is 11 (a majority of the 17 in office), not 11 (a majority of 21).

1.b. Majority vote when there are vacancies?

Same answer for ordinary business. § 5-5-109(a) requires "a majority of all the members constituting the county legislative body, and not merely a majority of the quorum" to transact business. Again, "constituting" means actually in office, so if the commission has 4 vacancies out of 21 seats, ordinary majority means 9 votes out of 17.

But for certain matters, different rules apply:

• Tenn. Const. art. XI, § 9 requires a two-thirds affirmative vote of the entire AUTHORIZED membership to adopt local private acts (Kesterson v. McKee). For our 21-seat example: 14 votes, even if 4 seats are vacant.
• § 5-1-118(c)(1) (county decision to exercise municipal powers), § 5-1-204(c)(2) (ratification of county charter), § 5-7-117(a) (transfer of county water system), § 5-8-102(c)(1) (motor vehicle privilege tax) and other statutes may impose different voting thresholds for specific matters.

1.c. Abstentions in determining majority vote?

Generally an abstention is NOT excluded. § 5-5-109(a) requires a majority of all members constituting the commission, regardless of how individual members vote. Members who are present and abstain remain part of the count for the denominator. Lawrence v. Ingersoll (1889) illustrates: 8 of 9 members present, 4 voted yes, 3 voted no, 1 abstained: NOT a majority of all 9 in office, so the candidate didn't get majority approval.

Two statutory exceptions:

• § 12-4-101(c)(1) and (c)(3): a county-employee commissioner whose employment predates election may vote on conflict-of-interest matters after disclosure OR abstain. If abstaining, § 12-4-101(c)(3)(B) excludes the abstaining member's vote from the majority calculation. So if the commission has 17 in office and one employee-commissioner abstains under this rule, majority is calculated against 16.
• § 5-5-111(c): when a commissioner is nominated for an office the commission fills, that commissioner can't vote on the appointment. The statute says "the membership of the county legislative body shall be reduced to reflect any member or members prohibiting from voting on the appointment." So that member is excluded from the majority calculation.

Other statutes or private acts may impose other rules for specific matters.

2.a. Does the Open Meetings Act require any specific type of meeting space?

Not by statute. Tenn. Code Ann. §§ 8-44-101 to -111 (the Open Meetings Act) require that meetings of "any governing body" be "open to the public at all times" (§ 8-44-102(a)). County commissions are governing bodies (Tenn. Att'y Gen. Op. 10-126; Watson v. Waters). The Open Meetings Act doesn't specify the kind of space; that's left to local judgment. But the Act is remedial and "should be liberally construed in furtherance of its purpose" (Neese v. Paris Special School District; Johnston v. Metropolitan Government). To accomplish the Act's openness purpose, the meeting space should accommodate a reasonably expected public audience with adequate audio for the public to hear.

2.b. Is the Open Meetings Act violated if the space can't accommodate everyone who wants to attend?

Tennessee courts haven't directly addressed this. The AG surveyed other states' decisions:

• North Carolina (Garlock v. Wake County Board of Education): violation found where a meeting was held in a room too small to seat the public on a matter of intense public interest.
• New Mexico (Gutierrez v. City of Albuquerque): no violation when the room was over capacity but loudspeakers, radio broadcasting, and public-comment periods accommodated overflow.
• New York (Windsor Owners Corp.): no violation when the planning commission held its regular meeting in its regular location, with standing room, lobby seating with TV monitor and sound, and a commitment to hear every signed-up speaker.
• Wisconsin (Badke v. Village Board of Greendale): no violation when foyer overflow held some, press attended, and only three people were ultimately denied.

The AG's distillation: commissions should pick rooms large enough for reasonably expected attendance, and should make reasonable accommodations (overflow seating, sound systems, signed-up speakers) for unusually large crowds.

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 actual-membership rule for quorum and majority

§ 5-5-108: "A majority of the members of the county legislative body of each county shall constitute a quorum for the transaction of all business by the bodies in regular or special sessions."

§ 5-5-109(a): "A majority of all the members constituting the county legislative body, and not merely a majority of the quorum, shall be required to: (1) Elect county officials required by law to be elected by the body; (2) Fix salaries; (3) Appropriate money; and (4) Transact all other business coming before the county legislative body."

Beckler v. State and Bailey v. Greer establish that "members constituting" means members currently in office. Vacancies are not counted in either the quorum or the majority calculation.

Why two-thirds private-act votes differ

Tenn. Const. art. XI, § 9 requires local legislative acts (private acts) to be adopted by either a two-thirds vote of the local legislative body or by referendum. Kesterson v. McKee (Tenn. Ct. App. 1975) holds that the two-thirds is of the TOTAL AUTHORIZED MEMBERSHIP, not of those present or in office. So a vacancy DOES count against passage of a private-act ratification.

Other voting-threshold statutes

The AG flagged several statutes with non-ordinary voting thresholds:

• § 5-1-118(c)(1): county decision to exercise municipal powers
• § 5-1-204(c)(2): ratification of county charter
• § 5-7-117(a): transfer of county water system to utility district
• § 5-8-102(c)(1): imposition of motor vehicle privilege tax

These specific provisions trump § 5-5-109(a)'s ordinary majority rule for the matters they address.

Abstention math

Default: § 5-5-109(a) requires majority of ALL members constituting the body. Abstention by a member who is present doesn't reduce that denominator. The classic illustration is Lawrence v. Ingersoll: 8 of 9 members present, 4 yes, 3 no, 1 abstain. 4 is not a majority of 9. So the candidate didn't get majority approval. The abstainer's choice not to vote effectively counts against passage.

Exceptions to default:

• § 12-4-101(c)(3)(B): A county-employee commissioner who abstains from a vote in which he or she has a conflict of interest is excluded from the majority calculation. The denominator drops by one.
• § 5-5-111(c): A commissioner nominated for an appointment the commission is making cannot vote and is excluded from the majority calculation for the appointment.

Private acts or other specific statutes may impose other rules.

Open Meetings Act basics

§ 8-44-101(a): general policy declaration that public business shouldn't be conducted in secret. § 8-44-102(a): "All meetings of any governing body are declared to be public meetings open to the public at all times." § 5-5-104(d): no county legislative body business may be transacted "except in public session."

The Open Meetings Act is remedial (Neese v. Paris Special School District). Courts liberally construe it to promote government openness (Johnston v. Metropolitan Government). Watson v. Waters confirms a county commission is a governing body within the statute.

What courts elsewhere have said about meeting space

The AG surveyed Garlock (NC, found violation in small room), Gutierrez (NM, no violation with loudspeakers/broadcast), Windsor Owners (NY, no violation with overflow seating and TV monitor), Badke (WI, no violation with foyer overflow and three denials). Common thread: rooms should fit reasonably expected attendance, and authorities should accommodate the overflow rather than turning people away in ways that suggest arbitrary exclusion.

Common questions

If the commission has 21 authorized seats and 4 are vacant, how many votes does it take to pass an ordinary motion?
Nine. The majority is calculated against the 17 in office, so 9 affirmative votes.

Does an absent member count against passage of an ordinary motion?
Same effect as an abstention. The majority requirement is of all members constituting the commission, and an absent member is in office but not voting yes. So an absent member effectively counts against passage. If our 17-member-in-office commission has 5 absent on a particular day, 9 yes votes still pass.

What about Robert's Rules of Order?
The opinion is based on Tennessee statutes, which control over parliamentary procedure manuals. Many commissions adopt Robert's Rules as a backstop, but where the statute imposes a specific rule (like the actual-membership majority), the statute controls.

Can a commission move to a different meeting space when it expects a big crowd?
Yes. The Open Meetings Act doesn't lock the meeting to a specific room. Pre-announcement of the new location should follow notice requirements. The opinion encourages exactly this kind of accommodation when unusually large audiences are expected.

What about online/livestream meetings?
The 2012 opinion doesn't address virtual meetings. Tennessee Open Meetings Act compliance for virtual or hybrid meetings has its own developing case law that postdates this opinion. Verify current rules separately.

Citations

Statutes and constitutional provisions:

• Tenn. Code Ann. §§ 5-5-101 to -127 (county legislative body)
• Tenn. Code Ann. § 5-5-104(d) (no business except in public session)
• Tenn. Code Ann. § 5-5-108 (quorum)
• Tenn. Code Ann. § 5-5-109(a) (majority of members constituting the body)
• Tenn. Code Ann. § 5-5-111(c) (member nominated for appointment)
• Tenn. Code Ann. § 5-1-118(c)(1), § 5-1-204(c)(2), § 5-7-117(a), § 5-8-102(c)(1) (specific voting thresholds)
• Tenn. Code Ann. § 12-4-101(c)(1), (c)(3), (c)(3)(B) (conflict-of-interest abstention)
• Tenn. Code Ann. §§ 8-44-101 to -111 (Open Meetings Act)
• Tenn. Code Ann. § 8-44-101(a) (policy)
• Tenn. Code Ann. § 8-44-102(a) (public meetings open at all times)
• Tenn. Const. art. XI, § 9 (private-act adoption)

Cases and prior opinions:

• Beckler v. State, 198 Tenn. 372, 280 S.W.2d 913 (1955)
• Bailey v. Greer, 63 Tenn. App. 13, 468 S.W.2d 327 (Tenn. Ct. App. 1971)
• Kesterson v. McKee, 527 S.W.2d 144 (Tenn. Ct. App. 1975)
• Lawrence v. Ingersoll, 88 Tenn. 52, 12 S.W. 422 (1889)
• Watson v. Waters, 375 S.W.3d 282 (Tenn. Ct. App. 2012)
• Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990)
• Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W.3d 299 (Tenn. Ct. App. 2009)
• Garlock v. Wake County Board of Education, 712 S.E.2d 158 (N.C. Ct. App. 2011)
• Gutierrez v. City of Albuquerque, 631 P.2d 304 (N.M. 1981)
• Windsor Owners Corp. v. City Council of New York, 878 N.Y.S.2d 545 (N.Y. Sup. Ct. 2009)
• Badke v. Village Board of Greendale, 494 N.W.2d 408 (Wis. 1993)
• Tenn. Att'y Gen. Op. 10-126 (Dec. 30, 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-109.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

December 14, 2012

Opinion No. 12-109

County Commission Meetings

QUESTIONS

1.a. How does a vacancy on a county commission affect the number of members required for a quorum? [Footnote 1: This opinion does not address meetings of a county legislative body operating under a county charter, or meetings of the legislative body in a county that has adopted metropolitan government.]

b. Does a vacancy affect the number of votes needed to get a "majority vote" on a particular issue?

c. Does an abstention affect the number of votes needed to get a "majority vote" on a particular issue?

2.a. Does the Tennessee Open Meetings Act, codified at Tenn. Code Ann. §§ 8-44-101 to -111, require a county commission meeting to be held in any particular type of space or facility?

b. Has the Open Meetings Act been violated where the space where a county commission meets cannot safely accommodate all members of the public who wish to attend?

OPINIONS

1.a. Where there are vacancies on a county commission, a quorum is the majority of county commissioners in office when the vote is taken. The vacancy, therefore, is not counted for the purpose of determining a quorum.

b. Generally, where there are vacancies on a county commission, a majority vote is the vote of a majority of county commissioners in office when the vote is taken. The vacancy, therefore, is not counted for the purpose of determining whether a majority vote has been cast. Where the commission votes to adopt a private act under Tenn. Const. Art. XI, § 9, however, a two-thirds affirmative vote of the entire authorized membership of the commission is required. Other statutes may also explicitly impose different voting requirements when the county commission addresses specific matters.

c. Generally, Tennessee law requires the affirmative vote of a majority of the county commissioners in office when a vote is taken to transact business. Neither members who are absent nor members who are present and abstain are excluded from determining whether a majority of affirmative votes have been cast. The general law provides at least two exceptions. First, under Tenn. Code Ann. § 12-4-101(c)(3), where a commissioner who is also a county employee abstains from voting on an issue in which he or she has an interest by reason of such employment, the member is excluded in determining a majority vote. Second, under Tenn. Code Ann. § 5-5-111(c), where a member accepts a nomination for an office filled by the county commission and is prohibited from voting on filling the office, the member is excluded in determining a majority vote. Depending on the issue before the commission, some other statute or private act could also address the effect of an abstention on the number of votes required.

2.a. Tennessee courts have not addressed this specific issue. Under the Open Meetings Act, county commission meetings are public meetings and must be open to the public at all times. For this reason, county commission meetings should be held in a facility that can accommodate a public audience reasonably expected to attend. The audience should be able to hear the proceedings.

b. As discussed above, Tennessee courts have not addressed this specific issue. But courts in other jurisdictions have found that the state's open meetings act did not require the governing body to meet in a space that would accommodate all the members of the public who came to attend it, so long as no person was arbitrarily excluded and authorities provided some way for the overflow crowd to hear the proceedings. Thus, the county commission should take reasonable steps to enable any overflow crowd to hear its meeting, especially where it expects an unusually large audience.

ANALYSIS

This opinion addresses several questions about meetings of a county commission. We assume the questions refer to county commissions operating under Tenn. Code Ann. §§ 5-5-101 to -127.

1.a. The first question is whether a vacancy on a county commission affects the number of members required for a quorum. Tenn. Code Ann. § 5-5-108 provides:

A majority of the members of the county legislative body of each county shall constitute a quorum for the transaction of all business by the bodies in regular or special sessions.

Tenn. Code Ann. § 5-5-109(a) provides:

(a) A majority of all the members constituting the county legislative body, and not merely a majority of the quorum, shall be required to:

(1) Elect county officials required by law to be elected by the body;
(2) Fix salaries;
(3) Appropriate money; and
(4) Transact all other business coming before the county legislative body in regular or special sessions.

(Emphasis added). The majority referred to under this statute is a majority of the actual membership of the county legislative body at the time and not a majority of the total authorized membership. Beckler v. State, 198 Tenn. 372, 376, 280 SW.2d 913, 915 (1955); Bailey v. Greer, 63 Tenn. App. 13, 35, 468 S.W.2d 327 (Tenn. Ct. App. 1971). Thus, where there are vacancies in a county commission, a quorum is the majority of county commissioners in office when the vote is taken. The vacancy is not counted for the purpose of determining a quorum.

1.b. Tenn. Code Ann. § 5-5-109(a) expressly provides that a majority of all the members constituting the county legislative body, and not merely a majority of the quorum present, is required to transact most business. As discussed above, the majority referred to under this statute is a majority of the actual membership of the county legislative body at the time and not a majority of the total authorized membership. Thus, a majority vote is the vote of a majority of county commissioners in office when the vote is taken. The vacancy is not counted for the purpose of determining whether a majority vote has been cast.

This general rule may not apply where there is a special statute or constitutional provision requiring a different methodology for calculating an affirmative vote for passage. For example, under Article XI, § 9 of the Tennessee Constitution, a local legislative act must be adopted by a two-thirds vote of the legislative body of the municipality, or in a referendum. This provision requires a two-thirds vote of the total authorized membership of the local legislative body, and not two-thirds of the effective membership or of those present or legally voting. Kesterson v. McKee, 527 S.W.2d 144, 146 (Tenn. Ct. App. 1975). Other statutes explicitly impose different voting requirements when the county commission addresses specific matters. See, e.g., Tenn. Code Ann. § 5-1-118(c)(1) (county decision to exercise certain municipal powers); Tenn. Code Ann. § 5-1-204(c)(2) (ratification of county charter); Tenn. Code Ann. § 5-7-117(a) (transfer of county water system to utility district); Tenn. Code Ann. § 5-8-102(c)(1) (imposition of motor vehicle privilege tax).

1.c. An abstention by a county commissioner generally does not affect the number of votes needed to get a majority vote on a particular issue. Under Tenn. Code Ann. § 5-5-109(a), a majority of all members constituting the county legislative body is generally required to transact business before the county commission. Members who are present and abstain still are part of the commission. Thus, ordinarily, a majority of all members constituting the commission must affirmatively vote in favor of a measure for it to pass. Neither members who are absent nor members who are present and abstain are excluded from determining whether a majority of affirmative votes have been cast. Lawrence v. Ingersoll, 88 Tenn. 52, 62-3, 12 S.W. 422, 425 (1889) (officer did not receive a majority of the votes cast where eight of nine members were present, four voted in favor, three voted against, and one abstained).

At least two statutes provide exceptions to this general rule. First, under Tenn. Code Ann. § 12-4-101(c)(1), a member of a county commission who is also a county employee and whose employment predates the member's election to the commission may vote on matters in which he or she has a conflict of interest after informing the governing body of the interest immediately prior to the vote. Under Tenn. Code Ann. § 12-4-101(c)(3), the member can also abstain from voting. If the member abstains from voting on the issue, his or her vote is not counted for the purpose of determining a majority vote. Tenn. Code Ann. § 12-4-101(c)(3)(B). Similarly, under Tenn. Code Ann. § 5-5-111(c), where a member of a county commission accepts a nomination for an office or vacancy filled by the commission, that member may not vote on the appointment or any motions or resolutions relative to making the appointment until the office or vacancy is filled. The statute provides that "[f]or the purposes of determining a majority, the membership of the county legislative body shall be reduced to reflect any member or members prohibiting from voting on the appointment." Tenn. Code Ann. § 5-5-111(c). Depending on the issue before the commission, some other statute or private act could also address the effect of an abstention on the number of votes required for that particular issue.

2.a. No statute or Tennessee court has explicitly addressed whether county commission meetings must be held in any particular type of space or facility. Tenn. Code Ann. § 5-5-104(d) provides that "[n]o business [of the county legislative body] shall be transacted, or any appointment made, or nominations confirmed, except in public session." (Emphasis added). This statute should be read together with the Tennessee Open Meetings Act, codified at Tenn. Code Ann. §§ 8-44-101 to -111. Under Tenn. Code Ann. § 8-44-101(a), "[t]he general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret." Under Tenn. Code Ann. § 8-44-102(a), "[a]ll meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee." (Emphasis added). A county commission is a governing body within the meaning of the statute. Tenn. Att'y Gen. Op. 10-126 at 1 (Dec. 30, 2010). Thus, county commission meetings must be "open to the public at all times." Tenn. Code Ann. § 8-44-102(a). See also Watson v. Waters, 375 S.W.3d 282, 292-93 (Tenn. Ct. App. 2012).

The Open Meetings Act is remedial in nature and "should be liberally construed in furtherance of its purpose." Neese v. Paris Special School District, 813 S.W.2d 432, 434 (Tenn. Ct. App. 1990). The Act "should be interpreted to promote openness and accountability in government." Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W.3d 299, 310 (Tenn. Ct. App. 2009). Accordingly, to accomplish this purpose, county commission meetings should be held in a facility that can accommodate a public audience reasonably expected to attend with adequate audio equipment available to allow the public to hear the proceedings.

2.b. No statute or Tennessee court has addressed whether the Open Meetings Act is violated if the space where a county commission meets cannot safely accommodate all members of the public who wish to attend. In deciding whether an open meetings act requirement has been violated because the meeting room was too small, courts in other jurisdictions look to all the facts surrounding the meeting. For example, the North Carolina Court of Appeals found that a county board of education committee violated the state's open meetings act when it held a meeting in a small room with sufficient seating only for staff members, resulting in the complete exclusion of the public from a significant portion of the meeting on a matter of intense public interest. Garlock v. Wake County Board of Education, 712 S.E.2d 158, 176 (N.C. Ct. App. 2011).

A number of courts in other states, however, have found that the applicable public meetings statutes were not violated simply because all the members of the public who wished to attend could not safely fit in the meeting room, so long as no one was arbitrarily excluded and authorities provided some way for the overflow crowd to hear the proceedings. See, e.g., Gutierrez v. City of Albuquerque, 631 P.2d 304, 307 (N.M. 1981); Windsor Owners Corporation v. City Council of the City of New York, 878 N.Y.S.2d 545, 551 (N.Y. Sup. Ct. 2009); Badke v. Village Board of the Village of Greendale, 494 N.W.2d 408, 418-19 (Wis. 1993). Thus, in order to ensure compliance with the Open Meetings Act, a county commission should meet in a room that will accommodate reasonably expected numbers of the public. Additionally, the commission should take reasonable steps to enable the overflow crowd to hear the meeting, especially where it expects an unusually large audience.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable David Hawk
State Representative
201 War Memorial Building
Nashville, Tennessee 37243