Can a Tennessee school board lock in a director of schools by writing a contract that requires a supermajority (two-thirds) board vote to fire her, instead of the usual majority?

Plain-English summary

The hypothetical: a nine-member school board hires a director of schools, 5 to 4. The director's employment contract says she can be fired only on a two-thirds (six-vote) board action. Months or years later, a majority (five) of the board wants her out. Is the supermajority clause enforceable?

The AG said no. Tenn. Code Ann. § 49-2-202(g) provides that "[a] majority of all of the members constituting the board, and not merely a majority of the quorum, shall be required to transact all business coming before the board in regular or special meetings." A school board's authority to terminate the director under § 49-2-203(a)(14) is "business" within that statute. The General Assembly chose the majority rule and did not authorize any local supermajority override.

The opinion leans on Shelton v. Rutherford County, where the Tennessee Court of Appeals held that a county commission could not adopt a supermajority requirement for amending zoning when state law set a majority threshold. The court there observed that even apart from the zoning-specific statute, the general "majority of all members" rule for county-commission business required the same result. The opinion also draws on Taylor v. The Town of New Chicago, where an Indiana appellate court ruled that a town could not, by contract with its police chief, bargain away its statutory authority to remove the chief by majority vote. The AG concludes that the same principle applies here: a board cannot contractually limit its own statutory decision-making authority by adopting a supermajority termination clause.

The second question, whether a subsequent board of newly elected members is bound by the supermajority requirement, follows automatically. Because the contract clause is unenforceable as to the original board, it is also unenforceable as to a successor board.

Currency note

This opinion was issued in 2014. 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.

Common questions

Q: Does this mean any supermajority provision in a school board contract is unenforceable?
A: The opinion's reasoning extends to any contract clause that tries to make it harder for the board to transact its statutory business than § 49-2-202(g) requires. The opposite case (a clause that simply tracks the statutory majority) presents no issue.

Q: Could the General Assembly create a supermajority requirement?
A: Yes. The opinion notes that the Tennessee Court of Appeals in Shelton expressly contrasted situations where the legislature did create a supermajority requirement. The legislature can; a local board cannot do so unilaterally.

Q: What about other terms in the director's contract, like length of service or buyout?
A: The opinion does not address those. The General Assembly explicitly authorizes a written contract of up to four years for the director (§ 49-2-203(a)(14)(A)) and has not capped severance or buyout terms. The bar in this opinion is to clauses that alter the statutory voting threshold for board action, not to other negotiated terms.

Q: What happens to the director if the supermajority clause is unenforceable but a five-member majority votes to remove her?
A: The board still must comply with the 15-day notice requirement under § 49-2-203(a)(14)(C). Other contract terms (severance, accrued benefits) would still govern between the parties unless they too run afoul of statute. The opinion does not address damages.

Q: Is the in pari materia logic really that strong here?
A: The opinion treats the issue as essentially settled by Shelton's reasoning. Whether a court would distinguish Shelton (which involved a zoning resolution, not a contract) is at least an open question; the opinion answers it through the Taylor analogy.

Background and statutory framework

Tennessee's local-school-governance framework sits at §§ 49-2-201 to -211. The number of board members can vary by private or general law. The director-of-schools relationship is governed by § 49-2-203(a)(14), which authorizes written contracts up to four years and requires 15 days' notice before any termination action. The statute does not specify the voting threshold for termination, so the general majority rule in § 49-2-202(g) applies by default.

The opinion sits in a small but consistent line of Tennessee AG and judicial authority for the proposition that statutory voting thresholds cannot be raised by local resolution or contract. The principal Tennessee precedent (Shelton) is unpublished but follows a familiar doctrine: a governmental body cannot bargain away its statutory powers through contract.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 49-2-201 to -211 (boards of education, generally)
• Tenn. Code Ann. § 49-2-201(a)(1) (board size variation)
• Tenn. Code Ann. § 49-2-202(g) (majority of all board members rule)
• Tenn. Code Ann. § 49-2-203(a)(14)(A) (director contract authority)
• Tenn. Code Ann. § 49-2-203(a)(14)(C) (15-day notice before termination action)

Cases:

• Shelton v. Rutherford County, No. M2008-02596-COA-R3-CV, 2009 WL 3425638 (Tenn. Ct. App. Oct. 23, 2009) (Tennessee Court of Appeals; supermajority zoning resolution invalid)
• Taylor v. The Town of New Chicago, 839 N.E.2d 212 (Ind. Ct. App. 2005), transfer denied (Ind. 2006) (Indiana Court of Appeals; town cannot contract away statutory removal authority)

Subject

Opinion No. 14-102, Supermajority Voting Requirement, December 2, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-102.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 2, 2014
Opinion No. 14-102
Supermajority Voting Requirement

QUESTIONS

1. With respect to a local board of education, Tenn. Code Ann. § 49-2-202(g) provides that "[a] majority of the members constituting the board, and not merely a majority of the quorum, shall be required to transact all business coming before the board in regular of special meetings." Assume a nine-member local board of education hires a school superintendent and approves the superintendent's employment contract by a vote of five to four. A provision of that contract provides that the superintendent may be terminated only upon the vote of two thirds of the board's members, that is, six members. Does the supermajority contract provision override Tenn. Code Ann. § 49-2-202(g)?

2. Is a subsequent school board of newly-elected members bound by the supermajority contract provision?

OPINIONS

1. A board of education may not, by contract, limit its statutory decision-making authority by requiring a supermajority vote to approve termination of a director of schools when the statute provides for termination by majority vote.

2. No. The supermajority voting requirement is unenforceable.

ANALYSIS

1. Contract provision requiring Supermajority Vote

This opinion concerns a school superintendent's employment contract. Local boards of education are established and governed under Tenn. Code Ann. §§ 49-2-201 to -211. The number of members of a board of education may vary according to private or general law. Tenn. Code Ann. § 49-2-201(a)(1). Tenn. Code Ann. § 49-2-202(g) provides:

A majority of all of the members constituting the board, and not merely a majority of the quorum, shall be required to transact all business coming before the board in regular or special meetings.

Duties and powers of these boards are listed in Tenn. Code Ann. § 49-2-203. Under section (a)(14)(A) of this statute, a board of education is authorized to employ a director of schools under a written contract of up to four years' duration, which may be renewed. No school board may terminate the director's employment contract or remove the director from office without giving notice at least fifteen calendar days before the scheduled meeting at which the action is to be taken. Tenn. Code Ann. § 49-2-203(a)(14)(C). This provision does not address the terms that may be included in the employment contract.

The questions posed assume a nine-member local board of education that approves an employment contract for its director of schools. Under the contract, the director's employment can only be terminated by a vote of two-thirds of the members of the board, or six votes. The board approved the contract by the majority vote required under Tenn. Code Ann. § 49-2-202(g), or five votes.

The first question is whether the contract provision requiring a supermajority vote overrides the statute providing that only a majority vote of the members is necessary to conduct business. The Tennessee Court of Appeals has held that a county commission may not adopt a supermajority voting requirement to approve a matter that, under a state statute, it may approve by a majority vote. Shelton v. Rutherford County No. M2008-02596-COA-R3-CV, 2009 WL 3425638 (Tenn. Ct. App. October 23, 2009), (permission to rehear denied (2009)), (no perm. app. filed). In that case, a statute authorized counties to amend a zoning ordinance by a majority vote of the entire membership of the county commission. A county commission adopted a zoning resolution providing that, where twenty percent of neighboring property owners submitted petitions opposing an amendment, a two-thirds vote of the commission members would be required to approve it. The Court found this requirement inconsistent with the zoning statute explicitly authorizing the commission to amend a zoning ordinance by a majority vote. The Court noted that, even if this specific statute did not apply, the general law requiring a majority vote for all business before the commission required the same result. The Court cited, in comparison, other statutes which did expressly impose a supermajority voting requirement for a county commission to approve specific decisions.

In this case, a local board of education has imposed a supermajority limit on its decision-making authority by a contract rather than by resolution, rule, or ordinance. But the same principles apply. State statutes expressly provide that a local school board shall transact all business coming before it by a vote of a majority of all the members. We have found no statute imposing any supermajority voting requirements on a board of education. Accordingly, a board of education may not, by contract, limit its statutory decision-making authority by requiring a supermajority vote to approve termination of the contract. See, e.g., Taylor v. The Town of New Chicago, 839 N.E.2d 212 (Ind. Ct. App. 2005), transfer denied (Ind. 2006). In that case, the Indiana Court of Appeals found that a town had exceeded its authority in adopting an employment contract for a chief of police that limited the town's authority to terminate the contract. The contract provided that the chief of police could be removed only for "good cause" by a three-fourths vote of the town council and the city board of police. State law expressly authorized a town to remove a police chief by a majority vote without notice, hearing, or good cause. The Court found that the town could not, by contract, bargain away this statutory authority.

2. Binding Effect of Contract Provision requiring Supermajority Vote

The second question is whether a newly-elected board of education would be bound by the supermajority voting requirement in the contract. For the reasons discussed above, this contract provision is unenforceable.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, Tennessee 37243-0205