What happens to a Tennessee county commission seat when the elected member turns out not to live in the district?

Subject

Opinion No. 12-79, Vacancy on County Commission, July 31, 2012

Plain-English summary

State Senator Mike Faulk asked the AG to address the awkward scenario where a person is elected to a county commission seat, takes office, and only afterward is discovered not to live in the district that elected them. The AG worked through three questions:

1. Is there a vacancy, and when does it happen? Yes, immediately, with no judicial determination needed. Tenn. Code Ann. § 5-5-102(b) requires county legislative body members to reside in and be qualified voters of the districts they represent. Tenn. Code Ann. § 8-48-101(3) vacates the office when an incumbent ceases to be a resident of the relevant district. A prior AG opinion (Op. Tenn. Att'y Gen. 04-092) held that the same rule applies when the individual was never a qualifying resident; the office is deemed vacated as soon as the failure is established. Until then, the person who served is treated as a "de facto" officer whose actions remain valid.

2. Can the county commission retroactively redistrict to put the member back inside the district? No. Tenn. Code Ann. § 5-1-111 only allows reapportionment when needed to maintain substantially equal population representation, and the reapportionment is prospective. Counties can change boundaries every ten years (or sooner if needed for population balance), but they cannot rewrite past district lines to save an unqualified commissioner's seat.

3. When must the vacancy be filled? Tenn. Code Ann. § 5-1-104(b)(1) gives the county legislative body 120 days to make an appointment, unless a general election falls within that window and there is enough time to put the vacancy on the ballot. Subsection (b)(2) walks through how primary and general election timing interacts with the vacancy: vacancies arising more than 60 days before a primary go on the primary ballot; vacancies between 60 days before primary and 60 days before the August general election are filled by party convention with the August election deciding; vacancies less than 60 days before the August general but 60-plus days before November go to the November ballot. As of the opinion's date (July 31, 2012), a vacancy then would have landed on the November 2012 ballot.

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

Residency requirement

Tenn. Code Ann. § 5-5-102(b) is the operational rule for county commissioner residency:

Members shall reside within and be qualified voters of the districts which they represent.

A commissioner who doesn't satisfy this requirement is, in substance, not lawfully holding the seat.

Automatic vacancy under § 8-48-101(3)

Tenn. Code Ann. § 8-48-101 lists circumstances that vacate any state office. Subsection (3) covers an incumbent "[c]easing to be a resident of the state, or of the district, circuit, or county for which the incumbent was elected or appointed." A 2004 AG opinion (Op. Tenn. Att'y Gen. 04-092) construed this language to cover not just an incumbent who moves out, but also a person who was never qualified to begin with. The office is deemed vacated immediately upon establishing the failure. No court order is needed (Bailey v. Greer; Richardson v. Young).

De facto officer doctrine

The AG noted that even though the commissioner in this scenario was never properly elected, prior service is valid under the "de facto officer" doctrine: the commissioner occupied the office under apparent right and color of law. Votes cast and actions taken before the vacancy is recognized stay legally effective. This protects the public and third parties who relied on those actions.

No retroactive redistricting

Tenn. Code Ann. § 5-1-111 governs reapportionment of county legislative districts:

• Subsection (a) requires periodic redistricting to maintain substantially equal populations: by January 1, 1982, and at least every ten years thereafter.
• Subsection (c) lets the county legislative body redistrict before the next decennial cycle only if the body "deems such action necessary to maintain substantially equal representation based on population."

Both provisions describe prospective reapportionment for population balance. Nothing authorizes a county commission to draw new district boundaries to retroactively legitimize a member who happened to live outside the lines on election day. The AG invoked the canon expressio unius est exclusio alterius (mentioning population balance excludes other reasons) via Rich v. Tennessee Bd. of Medical Examiners and Wells v. Tennessee Bd. of Regents.

Filling the vacancy

Tenn. Code Ann. § 5-1-104(b)(1) gives the legislative body 120 days from notice of the vacancy to make an appointment. The appointee serves until a successor is elected at the next general election and qualifies. Subsection (b)(2) governs interactions with election timing:

• Vacancy more than 60 days before a primary: party nominees selected in the primary; successor chosen at August general election.
• Vacancy less than 60 days before primary but 60-plus days before August general: nominees selected by party convention; August general decides.
• Vacancy less than 60 days before August general but 60-plus days before November: nominees selected by party convention; November election decides.

For a vacancy arising on July 31, 2012 (the opinion's issue date), the latter scenario applied: too late for August 2012 but in time for November 2012.

Common questions

Are votes cast by the unqualified commissioner still valid?
Yes. The de facto officer doctrine protects past actions taken under color of law. The commissioner is treated as a valid officer for purposes of preserving the legitimacy of board votes until the vacancy is recognized.

Can the commissioner simply move into the district before discovery to fix the problem?
No. The qualification has to exist at the time of election. Moving in afterward does not retroactively cure the disqualification.

What if a small boundary line could be drawn that includes the commissioner's house?
That is precisely what the AG ruled out. § 5-1-111 only allows prospective reapportionment based on population. A redistricting designed to capture one residence is outside the statute's purpose.

Why does this kind of dispute matter in practice?
Residency disputes can scramble a commission's ability to act. If close votes hinge on the unqualified member, opponents may use the residency issue to invalidate the result. Until the vacancy is recognized, the de facto doctrine protects past votes; once recognized, the appointment process kicks in.

Citations

Statutes:

• Tenn. Code Ann. § 5-5-102 (county legislative body qualifications)
• Tenn. Code Ann. § 8-48-101(3) (automatic vacation of office on residency failure)
• Tenn. Code Ann. § 5-1-104(b)(1)-(2) (filling vacancies)
• Tenn. Code Ann. § 5-1-111 (county legislative body reapportionment)

Cases:

• Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909)
• Bailey v. Greer, 63 Tenn. App. 13, 468 S.W.2d 327 (1971)
• Rich v. Tennessee Bd. of Medical Examiners, 350 S.W.3d 919 (Tenn. 2011)
• Wells v. Tennessee Bd. of Regents, 231 S.W.3d 912 (Tenn. 2007)

Prior AG opinions:

• Op. Tenn. Att'y Gen. 04-092 (May 13, 2004)
• Op. Tenn. Att'y Gen. 10-99 (Sept. 17, 2010); Op. Tenn. Att'y Gen. 03-144 (Nov. 7, 2003); Op. Tenn. Att'y Gen. 83-29 (Jan. 13, 1983); Op. Tenn. Att'y Gen. 83-182 (Apr. 15, 1983); Op. Tenn. Att'y Gen. 81-536 (Sept. 28, 1981)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-079.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

July 31, 2012

Opinion No. 12-79

Vacancy on County Commission

QUESTIONS

1. If a person is elected and qualified to a county commission seat, and it is subsequently determined the person was not a resident of the district in which he or she was elected and thus did not qualify to hold the county commission seat, does a vacancy exist and when does the vacancy occur?

2. Assuming a vacancy does exist in response to Question # 1, could the county commission revise its district reapportionment so as to place the residence of that county commissioner within the district from which he or she was elected?

3. If the answer to Question 2 is "no" and a vacancy still exists, when is the county commission required by law to fill this vacancy by appointment?

OPINIONS

1. Yes, a vacancy would exist once it is determined the commissioner who has been elected and qualified did not reside in the district in which he or she was elected. This Office has previously opined that a person cannot be properly elected to a county legislative body from a district in which he or she does not reside. Under these circumstances the office in question is automatically vacant with no judicial determination necessary to establish a vacancy.

2. No, the county commission cannot retroactively change the boundries of a county commission district. Furthermore, Tennessee law only permits a county to conduct reapportionment for future elections if reapportionment is necessary to maintain substantially equal representation based on population. Thus, the county legislative body lacks authority to revise its plan of reapportionment so as to place the residence of the commissioner in the district in which he or she was elected.

3. Tenn. Code Ann. § 5-1-104(b)(1) requires the county legislative body to make an appointment to fill this vacancy within 120 days of receiving notice of the vacancy, unless during that time period there is a general election scheduled in the county and there is sufficient time for the vacancy to be placed on the ballot in accordance with Tenn. Code Ann. § 5-1-104(b)(2).

ANALYSIS

1. This opinion request poses a factual scenario in which a county commissioner is elected and qualified to the county commission and is subsequently determined to not reside in the county commission district which elected him or her. The initial question asks whether these circumstances would create a vacancy in this county commission district and, if so, when would this vacancy occur.

Tenn. Code Ann. § 5-5-102 sets out the qualifications for members of county legislative bodies and specifically requires that "[m]embers shall reside within and be qualified voters of the districts which they represent." Tenn. Code Ann. § 5-5-102(b). Tenn. Code Ann. § 8-48-101(3) provides that any office in this state is vacated by the incumbent "[c]easing to be a resident of the state, or of the district, circuit, or county for which the incumbent was elected or appointed." This Office has previously opined that this statute also applies "where an individual who was never a resident as required for the office is elected to office" and that under these circumstances "an individual who was mistakenly appointed to office without satisfying the residence requirement is deemed to vacate the office" immediately. No judicial determination is necessary to establish this vacancy. Op. Tenn. Att'y Gen. 04-092, at 2 (May 13, 2004). See also Richardson v. Young, 122 Tenn. 471, 551, 125 S.W 664, 683 (1909); Op. Tenn. Att'y Gen. 83-182 (April 15, 1983); Op. Tenn. Att'y Gen. 83-29 (Jan. 13, 1983).

Even though the county commissioner in this factual scenario was not properly elected, the commissioner nonetheless occupied the office by apparent right under the color of law and would be a "de facto" officer whose acts would be valid. See Op. Tenn. Att'y Gen. 10-99, at 2 (Sept. 17, 2010); Op. Tenn. Att'y Gen. 03-144, at 3 (Nov. 7, 2003); Op. Tenn. Att'y Gen. 81-536, at 2 (Sept. 28, 1981).

2. Assuming a vacancy does exist, the county legislative body cannot revise its district reapportionment so as to place the residence of this commissioner within the district from which he or she was elected. The reapportionment of county legislative districts is governed by Tenn. Code Ann. § 5-1-111, and this statute does not permit a county legislative body to retroactivelty alter district lines. Tenn. Code Ann. § 5-1-111 only allows prospective reapportionment when necessary to maintain substantially equal representation based on population. County legislative bodies periodically "change the boundaries of districts or redistrict a county entirely if necessary to apportion the county legislative body so that the members represent substantially equal populations." Tenn. Code Ann. § 5-1-111(a) (emphasis added). Such reapportionment must have been completed prior to January 1, 1982, and at least every ten years thereafter. Id. Tenn. Code Ann. § 5-1-111(c) does not authorize a county legislative body to reapportion at any time but only "if the county legislative body deems such action necessary to maintain substantially equal representation based on population." Thus, the county legislative body lacks authority to retroactively revise its plan of reapportionment so as to place the residence of the commissioner in the district to which he or she was elected. See Rich v. Tennessee Bd. of Medical Examiners, 350 S.W.3d 919, 927 (Tenn. 2011); Wells v. Tennessee Bd. of Regents, 231 S.W.3d 912, 917 (Tenn. 2007) (both cases referencing the general rule of statutory construction that the expression of one thing implies the exclusion of other things not expressly mentioned).

3. Furthermore, as noted above, the vacancy in the office is automatic and no judicial determination to that effect is necessary. See Bailey v. Greer, 63 Tenn. App. 13, 34, 468 S.W.2d 327, 336 (1971). Thus, if a county commissioner does not reside in the district from which he or she was elected, a vacancy in that office will exist. Tenn. Code Ann. § 5-1-104(b)(1) requires that "[v]acancies in county offices required by the Constitution of Tennessee or by any statutory provision to be filled by the people shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next general election" and qualified. The county legislative body is required to make an appointment to fill this vacancy within 120 days of receiving notice of the vacancy, unless during that time period there is a general election scheduled in the county and there is sufficient time for the vacancy to be placed on the ballot in accordance with the other provisions of this statute. Tenn. Code Ann. § 5-1-104(b)(1). Subsection (b)(2) of this statute provides that if the vacancy occurs more than 60 days prior to a primary election, then party nominees for the office will be selected in the primary election and a successor will be chosen during the August general election. Tenn. Code Ann. § 5-1-104(b)(2). If the vacancy occurs less than 60 days before the primary, but 60 or more days before the August general election, then nominees of political parties shall be selected by party convention and a successor elected at the August general election. Id. If the vacancy occurs less than 60 days before the August general election, but 60 or more days before the November election, then nominees are selected by party convention and a successor is chosen in the November election. Id.

Accordingly, if the aforementioned vacancy was determined to exist as of the date this opinion is issued, then it would exist less than 60 days before the August 2012 general election and 60 or more days before the November 2012 election. In this case, the vacancy would be placed on the ballot for the November election.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Mike Faulk
State Senator
Suite 10-A Legislative Plaza
Nashville, TN 37243