How can citizens remove an elected county property assessor for misconduct in Tennessee?

Subject

Opinion No. 13-30, Removal of County Property Assessor for Misconduct, April 5, 2013

Plain-English summary

Representative John Forgety asked how Tennessee citizens can remove an elected county property assessor from office. The AG identified two pathways.

1. Ouster proceeding under Tenn. Code Ann. §§ 8-47-101 to -127. This is the general ouster law for Tennessee public officers. A county property assessor is "any person holding any office of trust or profit, under and by virtue of any of the laws of the state" within the meaning of § 8-47-101, and therefore subject to ouster.

Grounds for ouster: knowingly or willfully committing misconduct in office; knowingly or willfully neglecting to perform a statutory duty; being in a public place in a state of voluntary intoxication; engaging in illegal gambling; or committing any act constituting a violation of a penal statute involving moral turpitude.

Who can initiate. Under § 8-47-103, the attorney general and reporter, district attorney general, or county attorney must investigate any written complaint that a county officer has committed any of the listed acts, and must initiate an ouster proceeding if there's reasonable cause. The Governor can direct the DA and county attorney to file an ouster petition under § 8-47-108. Most importantly for citizens, § 8-47-110 says the petition can be filed "without the concurrence of any of such officers, upon the relation of ten (10) or more citizens and freeholders of the state, county, or city, as the case may be, upon their giving the usual security for costs." That is the citizen-initiated path. § 8-47-111 then says the DA and county attorney shall aid the citizen relators in prosecuting the case, and § 8-47-122 says the citizens bear the costs.

2. Recall, where charter permits. No general state law allows recall of public officers in Tennessee. But the charters of certain governmental entities (chartered cities, metropolitan governments, charter counties) can include recall provisions. § 2-5-151(a) sets out procedural requirements that any such charter-based recall must meet.

The "moral turpitude" element. The Tennessee Supreme Court defined moral turpitude in Brooks v. State (1948) as "[a]n act of baseness, vileness, or depravity in the private and social duties which man owes to his fellowmen or to society in general, contrary to the accepted rule or right and duty between man and man." It's an act "intrinsically and morally wrong and malum in se," whether felony or misdemeanor. Meadows v. Tenn. Bd. of Emergency Med. Serv. (Tenn. Ct. App. 2001), quoting Tillinghast v. Edmead (1st Cir. 1929). Examples: forgery (Bryant v. Moore, 1955); theft, felony or misdemeanor (Meadows); burglary and larceny (Jenkins v. State, 1974).

The "clear case" standard. Vandergriff v. State (1937) and State ex rel. Leech v. Wright (1981) emphasize that ouster is a "drastic" remedy. A suit should be brought only where there is "a clear case of official dereliction" and "should be invoked only in plain cases and not for purposes of inquisition." The evidence at trial should be "clear and convincing" under State ex rel. Thompson v. Walker (1992).

A separate vacancy provision. § 8-48-101(6) provides that a county office is "immediately vacated" if the incumbent is sentenced to the penitentiary as punishment for an offense. So a felony sentence (to the penitentiary specifically, not local jail) bypasses the ouster process and directly vacates the office.

Currency note

This opinion was issued in 2013. 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's ouster statute, codified at §§ 8-47-101 to -127, has been periodically amended. The basic framework (citizen-initiated petition by 10 or more freeholders, AG/DA/county attorney duty to investigate written complaints, ouster grounds including misconduct, neglect, intoxication, gambling, and moral turpitude crimes) has been stable for decades. Anyone considering an ouster proceeding should pull the current statute and check the latest case law on the moral turpitude definition.

Background and statutory framework

Constitutional framework. Tenn. Const. art. VII, § 1, ¶ 1 sets the four-year term for county officers, including county assessors of property, and provides that they "shall be removed for malfeasance or neglect of duty as prescribed by the General Assembly."

Statutory qualification rules for assessors. Tenn. Code Ann. §§ 67-1-501 to -514 govern qualifications for the office. Neither these provisions nor any other property-assessor-specific statute provides a removal mechanism. So the general public-officer ouster law applies.

The ouster law: Tenn. Code Ann. §§ 8-47-101 to -127.

• § 8-47-101. Defines who is subject to ouster: "Every person holding any office of trust or profit, under and by virtue of any of the laws of the state, either state, county, or municipal, except such officers as are by the constitution removable only and exclusively by methods other than those provided in this chapter."
• Grounds for ouster (§ 8-47-101): Knowing and willful misconduct in office; knowing and willful neglect of a statutory duty; public intoxication produced by voluntarily taken drink; illegal gambling; commission of any act violating a penal statute involving moral turpitude. The officer who is found guilty "shall forfeit such office and shall be ousted."
• § 8-47-103. Mandatory investigation duty for the AG, DA, and county attorney upon written complaint. They must initiate ouster proceedings if there's reasonable cause.
• § 8-47-108. Governor can direct the DA and county attorney to file an ouster petition.
• § 8-47-110. Petition format: brought in the name of the state, on the relation of (1) the AG, (2) the DA for state officers, (3) the county attorney for county officials, (4) the city attorney or DA for municipal officials, or (5) ten or more citizens and freeholders of the relevant jurisdiction, with the citizens posting the usual security for costs.
• § 8-47-111. DA and county attorney must aid in prosecuting the case at the relator citizens' request.
• § 8-47-122. Citizen relators bear the costs of the proceeding.

Moral turpitude doctrine. Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948), gives the canonical Tennessee definition. The act must be "intrinsically and morally wrong and malum in se" (Meadows, quoting Tillinghast). Examples found by Tennessee courts to involve moral turpitude: forgery (Bryant v. Moore); theft, whether felony or misdemeanor (Meadows); burglary and larceny (Jenkins v. State).

Ouster as drastic remedy. Vandergriff and Leech emphasize ouster is reserved for clear cases. Thompson v. Walker set the burden of proof at "clear and convincing" evidence.

Recall. § 2-5-151(a) does not create a statewide recall procedure. It creates procedural requirements for charter-based recall (in a chartered city, metropolitan government, or charter county). The opinion does not specify which Tennessee counties had recall provisions in their charters as of 2013; that would have to be checked county by county.

Sentencing-to-penitentiary vacancy. § 8-48-101(6) provides automatic vacancy when a county officer is sentenced to the penitentiary. This avoids the ouster process when there's a felony conviction with prison time.

Common questions

How many citizens does it take to start an ouster proceeding?

Ten or more "citizens and freeholders" of the state, county, or city, depending on which office. They have to post security for costs. They can file without the cooperation of any state or local prosecutor, but if they ask, the DA and county attorney must help prosecute.

What are the grounds?

Five categories from § 8-47-101: knowing and willful misconduct in office; knowing and willful neglect to perform a statutory duty; public intoxication from voluntary drink; illegal gambling; or commission of an act violating any penal statute involving moral turpitude.

What's "moral turpitude"?

The Tennessee Supreme Court's definition in Brooks v. State is "an act of baseness, vileness, or depravity in the private and social duties which man owes to his fellowmen or to society in general, contrary to the accepted rule or right and duty between man and man." Tennessee courts have found forgery, theft, burglary, and larceny to involve moral turpitude. Tax evasion, certain frauds, and many violent crimes typically qualify. Speeding doesn't.

Can citizens recall a property assessor?

Only if the relevant local government (city, county) has a charter that provides for recall. There is no statewide recall provision applicable to county assessors. If your county does not have a charter with recall, the only removal options are the ouster proceeding or automatic vacancy on a penitentiary sentence.

What if a sitting assessor is convicted of a felony?

If the sentence is to the penitentiary, § 8-48-101(6) vacates the office automatically. No ouster proceeding is needed. If the sentence is something else (probation, county jail), the office is not automatically vacated, but the underlying crime might be grounds for ouster under § 8-47-101.

Who pays for the ouster lawsuit?

The citizens who initiated the petition. § 8-47-122. They post security for costs at the outset.

How heavy is the burden of proof?

"Clear and convincing" evidence. State ex rel. Thompson v. Walker. The standard is higher than the preponderance-of-evidence standard in ordinary civil cases, reflecting the drastic nature of removing an elected official.

Citations

Tenn. Const. art. VII, § 1, ¶ 1. Tenn. Code Ann. §§ 8-47-101 to -127 (ouster law); §§ 67-1-501 to -514 (assessor qualifications); § 8-48-101(6) (automatic vacancy); § 2-5-151(a) (recall procedures). Cases: Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948); Bryant v. Moore, 198 Tenn. 335, 279 S.W.2d 517 (1955); Meadows v. Tenn. Bd. of Emergency Med. Serv., No. M2001-00478-COA-R3-CV, 2001 WL 1158873 (Tenn. Ct. App. Oct. 2, 2001); Jenkins v. State, 509 S.W.2d 240 (Tenn. Crim. App. 1974); Vandergriff v. State, 185 Tenn. 386, 206 S.W.2d 395 (1937); State ex rel. Leech v. Wright, 622 S.W.2d 807 (Tenn. 1981); State ex rel. Thompson v. Walker, 845 S.W.2d 752 (Tenn. Ct. App. 1992); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-030.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

April 5, 2013

Opinion No. 13-30

Removal of County Property Assessor for Misconduct

QUESTION

By what methods may citizens remove from office an elected county property assessor?

OPINION

An elected county property assessor could be removed from office through an ouster action under Tenn. Code Ann. §§ 8-47-101 to -127 or by recall where permitted by Tennessee law.

ANALYSIS

Under article VII, section 1, paragraph 1, of the Tennessee Constitution, certain county officials including a county assessor of property are elected for a four-year term and "shall be removed for malfeasance or neglect of duty as prescribed by the General Assembly." Qualifications for the office of county property assessor are established under Tenn. Code Ann. §§ 67-1-501 to -514. Neither these statutes nor any other statutes specifically provide for the removal of a property assessor from office.

Public officers are generally subject to removal under the ouster law codified at Tenn. Code Ann. §§ 8-47-101 to -127. Tenn. Code Ann. § 8-47-101 provides:

Every person holding any office of trust or profit, under and by virtue of any of the laws of the state, either state, county, or municipal, except such officers as are by the constitution removable only and exclusively by methods other than those provided in this chapter, who shall knowingly or willfully commit misconduct in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state, or who shall in any public place be in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of illegal gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such office and shall be ousted from such office in the manner hereinafter provided.

(emphasis added). A county property assessor would be subject to ouster under this statute. Under Tenn. Code Ann. § 8-47-103, the attorney general and reporter, district attorney general, and county attorney must investigate any written complaint that a county assessor has been guilty of any of the actions set out in Tenn. Code Ann. § 8-47-101 and must initiate an ouster proceeding if there is reasonable cause for such complaint. The Governor may also direct the district attorney general and the county attorney to file an ouster petition against a county officer. Tenn. Code Ann. § 8-47-108. The petition is initiated as follows:

The petition or complaint [for ouster] shall be in the name of the state and may be filed upon the relation of the attorney general and reporter, or the district attorney general for the state, or the county attorney in the case of county officials, and of the city attorney, or the district attorney general, in the case of municipal officers; and in all cases it may be filed, without the concurrence of any of such officers, upon the relation of ten (10) or more citizens and freeholders of the state, county, or city, as the case may be, upon their giving the usual security for costs.

Tenn. Code Ann. § 8-47-110 (emphasis added). It is the duty of the district attorney general and county attorney, upon request of relator citizens, to aid and assist in the prosecution of an ouster proceeding against a county officer. Tenn. Code Ann. § 8-47-111. Citizens who bring an ouster proceeding directly must bear the costs of the proceeding. Tenn. Code Ann. § 8-47-122.

Whether any particular criminal offense would be grounds to oust a county official would depend on the circumstances under which it was committed, as well as the elements of the offense. Under Tenn. Code Ann. § 8-47-101, an offense would be grounds if it constitutes knowing and willful misconduct in office; knowing or willful neglect to perform the duties of the office; public intoxication; illegal gambling; or any act constituting a violation of any penal statute involving moral turpitude. "Moral turpitude" has been defined by the Tennessee Supreme Court as "[a]n act of baseness, vileness, or depravity in the private and social duties which man owes to his fellowmen or to society in general, contrary to the accepted rule or right and duty between man and man." Brooks v. State, 187 Tenn. 67, 76, 213 S.W.2d 7 (1948) (internal quotation marks omitted). It is an act "intrinsically and morally wrong and malum in se," whether denominated a felony or misdemeanor. Meadows v. Tenn. Bd. of Emergency Med. Serv., No. M2001-00478-COA-R3-CV, 2001 WL 1158873, at 4 (Tenn. Ct. App. Oct. 2, 2001) (quoting Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929)). See, e.g., Bryant v. Moore, 198 Tenn. 335, 337, 279 S.W.2d 517 (1955) (holding forgery is a crime involving moral turpitude); Meadows, 2001 WL 1158873 at 4 (holding theft, whether a felony or misdemeanor, is act involving moral turpitude); Jenkins v. State, 509 S.W.2d 240, 246 (Tenn. Crim. App. 1974) (holding burglary and larceny are crimes involving moral turpitude).

Tennessee courts have stated that an ouster suit should only be brought if "there is a clear case of official dereliction, as such a drastic statute should be invoked only in plain cases and not for purposes of inquisition." Vandergriff v. State, 185 Tenn. 386, 206 S.W.2d 395, 397 (1937). See also State ex rel. Leech v. Wright, 622 S.W.2d 807, 818 (Tenn. 1981). The evidence of official dereliction should be clear and convincing. State ex rel. Thompson v. Walker, 845 S.W.2d 752, 759 (Tenn. Ct. App. 1992).

There is no other law of statewide applicability that provides a mechanism for the removal from office of a county property assessor. While there is no general law authorizing the recall of public officers in Tennessee, the charters of certain governmental entities may provide for recall. See Tenn. Code Ann. § 2-5-151(a) (providing that "any governmental entity having a charter provision for a petition for recall . . . or any person acting pursuant to such charter provision" must meet the requirements set forth therein).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable John Forgety
State Representative
109 War Memorial Building
Nashville, Tennessee 37243