If a Tennessee county passes a bond resolution, citizens petition against it, and then the county takes the bond resolution back, does the county still have to hold the bond election?

Subject

Opinion No. 13-87, County Bond Referendum, November 6, 2013

Plain-English summary

Sen. Joey Hensley asked whether Lewis County still had to hold a bond election after the county commission rescinded its bond resolution. The facts: in March 2013, the Lewis County Commission approved up to $6 million in general obligation bonds for a jail project. Citizens petitioned against the bonds. The election commission certified the petition. Then the Lewis County Commission rescinded its bond resolution. Question: must the election still happen?

The AG said no. Under Tenn. Code Ann. § 9-21-209, the county commission adopts an "election resolution" only "[i]f it is necessary to hold an election on the proposition to issue general obligation bonds." Once the initial resolution is rescinded, there is no proposition to vote on. The election would be advisory only.

Tennessee law (per prior AG opinions Op. 95-013 and Op. 00-081) does not authorize counties to hold advisory or non-binding referendum elections. The General Assembly has the power to authorize them by private act, but no such private act applied here. The county election commission has no authority to call the election unless and until the county commission adopts an election resolution. With no resolution, no election.

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.

The Tennessee bond statutes have been amended since 2013. Specific projects may also be subject to local private acts. Anyone facing a bond-referendum situation should pull current statutes and check for local private acts before relying on this opinion.

Background and statutory framework

Bond authority and procedure. Tenn. Code Ann. §§ 9-21-101 to -1104 give local governments comprehensive authority to issue various bonds. § 9-21-201 authorizes general obligation bonds for public works. § 9-21-205 requires an "initial resolution" before issuing GO bonds.

Notice and petition rights. § 9-21-206 requires the initial resolution to be published in a local newspaper with a notice that the bonds will issue unless, within 20 days, a petition signed by at least 10% of registered voters protesting the issuance is filed with the official charged with maintaining local records.

Effect of qualifying petition. § 9-21-207(b): if a qualifying petition is filed, "no general obligation bonds shall be issued without the assent of the majority of the registered voters . . . voting upon a proposition for the issuance of the general obligations bonds in the manner provided by §§ 9-21-209 and 9-21-210."

Election resolution. § 9-21-209: "[i]f it is necessary to hold an election on the proposition to issue general obligation bonds . . ., then the election shall be called by the governing body of the local government." The governing body adopts an "election resolution" that "shall supersede . . . the initial resolution, if any."

Alternative path. § 9-21-208: a local government can also decide concurrently with the initial decision to hold an election to ascertain the will of the electorate, in which case it skips the initial-resolution step and proceeds directly to an election resolution.

No general advisory-election authority. Tenn. Att'y Gen. Op. 95-013 (Mar. 8, 1995): no general Tennessee statute or constitutional provision authorizes local advisory referendums. Tenn. Att'y Gen. Op. 00-081 (May 1, 2000): the General Assembly could authorize them by private act.

Common questions

What if the county commission rescinds the resolution and then later wants to re-issue the same bonds?

The county would have to start over: pass a new initial resolution, publish notice, and either issue if no petition gets filed in 20 days or hold an election if one does. The rescission doesn't prevent future bond issuance; it just ends the current process.

Could citizens force a referendum by petition even after rescission?

No. The petition right under § 9-21-207(b) attaches to the initial resolution and gives voters the chance to require an election only on the proposition the initial resolution authorized. Once the resolution is gone, there is no proposition for the petition to attach to.

What's the strategic implication for citizens petitioning against bonds?

A successful petition campaign can prompt the county commission to rescind rather than risk an unfavorable election. That's typically the point of the petition: prevent the bond issuance, by election if necessary but ideally by political pressure that gets the commission to back down.

What about the election commission's costs of certifying the petition?

The election commission incurred costs verifying signatures, but the opinion didn't address reimbursement. Generally, these are absorbed as part of routine election commission operations.

Can a private act create local advisory-referendum authority?

Yes. Op. 00-081 confirmed the General Assembly's constitutional power to authorize specific local advisory elections by private act. But Lewis County had no such private act, so the general rule applied.

Citations

Tenn. Code Ann. §§ 9-21-101 to -1104, 9-21-201, 9-21-205, 9-21-206, 9-21-207(b), 9-21-208, 9-21-209, 9-21-210, 2-3-204. Prior AG opinions: Op. 95-013 (Mar. 8, 1995); Op. 00-081 (May 1, 2000).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-087.pdf

Original opinion text

November 6, 2013

Opinion No. 13-87

County Bond Referendum

QUESTION

If a county commission authorizes the issuance of general obligation bonds, a petition protesting issuance of the bonds is filed, and the county commission then rescinds its resolution authorizing the bonds, is the county still required to hold an election on the proposition to issue the bonds?

OPINION

No.

ANALYSIS

The Tennessee General Assembly has enacted a comprehensive statutory framework authorizing local governments to issue various types of bonds. Tenn. Code Ann. §§ 9-21-101 to -1104. Any local government is authorized to issue general obligation bonds for a public works project. Tenn. Code Ann. § 9-21-201. Prior to the issuance of any such general obligation bonds, the governing body of the local government "shall adopt a resolution determining to issue the general obligation bonds." Tenn. Code Ann. § 9-21-205. This resolution, identified as the "initial resolution," is to be published in full in a newspaper of general circulation in the local government along with the following notice:

The foregoing resolution has been adopted. Unless within twenty (20) days from the date of the publication hereof, a petition signed by at least ten percent (10%) of the registered voters of the local government, (or the portion thereof being taxed for the bonds) shall have been filed with the (official charged with maintaining the records of the local government) protesting the issuance of the general obligation bonds, such bonds will be issued as proposed.

Tenn. Code Ann. § 9-21-206.

If a petition protesting the issuance of general obligation bonds signed by at least ten percent of the registered voters is filed within twenty days from the date of the publication of the initial resolution, then the statute provides that "no general obligation bonds shall be issued without the assent of the majority of the registered voters in the local government or a portion of the local government, if applicable, voting upon a proposition for the issuance of the general obligations bonds in the manner provided by §§ 9-21-209 and 9-21-210." Tenn. Code Ann. § 9-21-207(b).

A local government may also decide to issue general obligation bonds for a public works project and concurrently decide to hold an election "for ascertaining the will of the electorate." Tenn. Code Ann. § 9-21-208. Under these circumstances, the local government is not required to adopt and publish an initial resolution but instead is required to adopt an election resolution in accordance with Tenn. Code Ann. § 9-21-209 and thereafter to hold an election. Tenn. Code Ann. § 9-21-208. A local government may also hold an election after the adoption and publication of an initial resolution, even if no petition protesting the issuance of the bonds has been filed. Id.

The provisions governing the adoption of a resolution to call an election provide in pertinent part that

[i]f it is necessary to hold an election on the proposition to issue general obligation bonds or if the governing body decides to hold an election to ascertain the will of the electorate even if no petition has been filed, then the election shall be called by the governing body of the local government. Such election shall be held as an election on a question by the county election commission pursuant to § 2-3-204. The governing body shall adopt a resolution (herein called "election resolution") which shall supersede by its adoption, and immediately upon its adoption, the initial resolution, if any.

Tenn. Code Ann. 9-21-209 (emphasis added). Per the opinion request, the Lewis County Commission passed a resolution in March 2013 authorizing the issuance of up to $6 million in general obligation bonds for a county jail project. Thereafter, a group of citizens signed a petition protesting the issuance of the bonds. The Lewis County Election Commission subsequently certified the petition as containing the requisite number of signatures and otherwise meeting all the necessary requirements under Tennessee law pursuant to Tenn. Code Ann. § 9-21-207(b). After the petition was certified, the Lewis County Commission met and rescinded the resolution authorizing the issuance of bonds for the county jail project. The question posed is whether Lewis County is still required to conduct an election on the bond issue because the petition was "filed and certified" with the Lewis County Election Commission.

Initially, Tenn. Code Ann. § 9-21-207(b) requires that the petition be filed with the "official charged with maintaining the records of the local government within twenty (20) days from the publication of the initial resolution." After such petition has been filed, the county election commission is required to certify to the local government within fifteen days of receipt "the total number of registered voters as of the date of publication of the notice and the total number of valid signatures of registered voters signing the petition." Tenn. Code Ann. § 9-21-207(b). The county election commission has no authority to call or otherwise conduct the election unless and until the governing body of the local government adopts an election resolution, as the authority to call for the election is specifically vested in the governing body under the provisions of Tenn. Code Ann. § 9-21-209.

A governing body is required to adopt an election resolution only "[i]f it is necessary to hold an election on the proposition to issue general obligation bonds." Tenn. Code Ann. § 9-21-209. Under the circumstances described in the opinion request, however, there is no valid proposition to issue general obligation bonds, because the initial resolution authorizing the issuance of such bonds has been rescinded by the governing body. Thus, it is no longer "necessary" to hold an election on the proposition. Where the resolution authorizing the issuance of the general obligations bonds has been rescinded there is nothing for the electorate to approve or reject, and thus any such referendum election would be simply advisory. This Office has previously opined that there is no general provision in the Constitution or statutes of Tennessee that authorize a local government to hold an advisory or non-binding referendum election. See Tenn. Att'y Gen. Op. 95-013 (Mar. 8, 1995). Furthermore, while this Office has also opined that the General Assembly has the constitutional power to authorize local governments to hold such advisory referendum elections, see Tenn. Att'y Gen. Op. 00-081 (May 1, 2000), this Office is not aware of any private act authorizing the Lewis County Election Commission to hold an advisory referendum election concerning general obligation bonds for a county jail project.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET KLEINFELTER
Deputy Attorney General

Requested by:

The Honorable Joey Hensley, M.D.
State Senator
309 War Memorial Building
Nashville, Tennessee 37243