Can a Tennessee 911 district board automatically remove a sheriff or mayor who serves ex officio if they miss too many meetings?

Plain-English summary

In Tennessee, an emergency communications district (ECD), the entity that runs 911 service for a county or city, is run by a board of directors. For larger counties (population 300,000 to 750,000, except those with metropolitan government), state law puts five specific officials on the board automatically: the largest municipality's mayor, police chief, and fire chief, plus the county sheriff and county mayor. They may serve in person or send a representative. They are "ex officio" board members, that is, they serve by virtue of the office they hold.

Effective July 1, 2016, the legislature added Tenn. Code Ann. § 7-86-314(a), which automatically removes a board member who racks up four consecutive unexcused absences or who misses more than half of regularly scheduled meetings in a 12-month period. A senator asked whether that automatic-removal rule applies to ex officio members, not just appointed ones. The AG said yes. The statute uses "any" board member, with no carve-out, and the ex officio statute already lets a representative fill the seat if the official cannot attend.

The two statutes harmonize neatly: when an ex officio official is automatically removed, the seat is still filled, just by the official's representative (or, if the representative is the one removed, by another representative or by the official himself, subject to the 48-month re-eligibility wait imposed by subsection (d)).

Currency note

This opinion was issued in 2016. 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: Who exactly is on an ECD board under § 7-86-105(b)(3)?
A: For counties with populations between 300,000 and 750,000 (other than metropolitan-government counties), the statute makes the following officials ex officio members: the mayor, police chief, and fire chief of the largest-population municipality within the district; the county sheriff in the district; and the county mayor in the district. Each may serve personally or by a representative.

Q: What attendance bars trigger automatic removal?
A: Four consecutive unexcused absences, or failure to attend at least 50% of regularly scheduled meetings in any 12-month period.

Q: How does the AG read "any member"?
A: Plainly. The indefinite article "any" applied to "member of the board of directors" includes all members of the specified class, regardless of how they got the seat. There is no carve-out for ex officio members, so the same attendance rules apply to them.

Q: Does automatic removal create a vacancy in the official's underlying office?
A: No. Section 7-86-314(a) removes the person from the ECD board only. The official's underlying office is unaffected. But the official personally cannot be reappointed to the ECD board for at least 48 months (§ 7-86-314(d)), so during that period the seat must be filled by someone else.

Q: How does the seat get filled?
A: Section 7-86-105(b)(3) already allows the ex officio seat to be filled by the official or "their representative." If the official is removed for absences, the seat is filled by a representative of that office. If a representative is removed, the seat can be filled by another representative or by the official.

Q: Does the 48-month re-eligibility bar in subsection (d) apply to ex officio members?
A: Yes. The AG read "any such board member" in subsection (d) the same way, applying it to any member who was removed under section 314. The statute itself contemplates a "successor" being appointed, meaning someone different from the removed member.

Background and statutory framework

Tennessee created emergency communications districts to administer 911 service. An ECD is a "municipality" or public corporation under § 7-86-106 and is established by referendum. Its powers are exercised by a board of directors whose composition depends on local-government structure and county population. For mid-to-large counties, the legislature seated five specified ex officio officials on the board.

Public Chapter 2016 (the act adding § 7-86-314) imposed attendance discipline on board members, with automatic removal as the consequence. The opinion's analysis is largely about reconciling "automatic ex officio" status with "automatic removal" for absences, which the AG accomplishes by noting that ex officio seats are designed to be fillable by representatives, so removal of one human does not leave the seat empty.

Citations

• Tenn. Code Ann. § 7-86-104 (referendum to establish ECD)
• Tenn. Code Ann. § 7-86-105(b)(3) (ex officio board members in 300,000-750,000 population counties)
• Tenn. Code Ann. § 7-86-106 (ECD as municipality)
• Tenn. Code Ann. § 7-86-107 (ECD responsibilities)
• Tenn. Code Ann. § 7-86-314(a) (automatic removal for attendance failures)
• Tenn. Code Ann. § 7-86-314(d) (48-month reappointment bar)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-039.pdf

Original opinion text

Automatic Removal of Ex Officio Emergency Communications District Board Members

Question
Do the automatic removal provisions of Tenn. Code Ann. § 7-86-314(a) apply to ex officio emergency communications district board members, i.e., members serving pursuant to Tenn. Code Ann. § 7-86-105(b)(3) by virtue of the office they hold?

Opinion
Yes.

ANALYSIS

An emergency communications district ("ECD") is "a 'municipality' or public corporation." Tenn. Code Ann. § 7-86-106. If established by a referendum within all or part of a municipality or county, see Tenn. Code Ann. § 7-86-104(a), an ECD is responsible for the creation of an emergency communications service to respond to emergency calls within that district. See Tenn. Code Ann. § 7-86-107.

The authority and powers of the ECD are "vested in and exercised by a majority of the members of the board of directors of the district." Tenn. Code Ann. § 7-86-106. The composition of the board is governed by statute. As relevant here, for ECDs established by counties with a population greater than 300,000 and less than 750,000, except for counties with a metropolitan form of government,

the mayor, the chief of police and the fire chief of the municipality, or their representatives, with the largest population in the district, the county sheriff in the district, and the county mayor in the district, or their representatives, shall be members of the board of directors of the district.

Tenn. Code Ann. § 7-86-105(b) (emphasis added). In other words, the individuals who hold these offices, or their respective representatives, are, by virtue of the office, automatically members of ECD boards that have been established in the specified counties.

Effective July 1, 2016, a board member who does not attend a requisite number of board meetings is automatically divested of board membership.

[A]ny member of the board of directors of an emergency communications district with four (4) consecutive unexcused absences or who fails to attend at least fifty percent (50%) of regularly scheduled meetings within any twelve-month period shall automatically be removed from the board. The chair of the board of directors or acting chair shall notify the appointing authority in writing that a member has been removed and that a vacancy exists on the board. Upon the removal of a member pursuant to this subsection (a), a successor shall be appointed to serve the remainder of the term of the member being replaced.

Tenn. Code Ann. § 7-86-314(a) (emphasis added). "Any such board member so removed under [section 314] shall be ineligible for reappointment for a period of not less than forty-eight (48) months." Tenn. Code Ann. § 7-86-314(d).

Nothing in Tenn. Code Ann. § 7-86-314(a) limits its application to particular board members. On the contrary, the indefinite article/determiner "any" indicates inclusion of all members of the specified class. See "Any," New Oxford American Dictionary, 3d ed. Accordingly, the plain meaning of the phrase "any member of the board of directors" includes all members of the board without limit and regardless of the basis of a member's appointment to the board. Thus, pursuant to the plain meaning of the statute, a board member who is serving ex officio is subject to automatic removal if he does not fulfill the statutory attendance requirements, just as is a board member who is serving pursuant to appointment by the county mayor.

This automatic removal provision of Tenn. Code Ann. § 7-86-314(a) does not conflict with the automatic ex officio membership provision of Tenn. Code Ann. § 7-86-105(b)(3); the two statutory provisions are easily harmonized. Section 7-86-105(b)(3) does require that five specified officials be members of an ECD board, but the statute allows any of those ex officio membership positions to be filled either by the specified official or by a representative of that official: "the mayor, the chief of police and the fire chief of the municipality, or their representatives," and "the county sheriff in the district, and the county mayor in the district, or their representatives, shall be members of the board of directors of the district." (Emphasis added.) It follows that, when an ex officio member is automatically removed by operation of Tenn. Code Ann. § 7-86-314(a), that ex officio position can and should be filled by a representative of the official who was removed. And if an ex officio position is filled by a representative who is then automatically removed by operation of Tenn. Code Ann. § 7-86-314(a), that ex officio position can and should then be filled by another representative of the official or by the official himself.

In fact, the statute itself makes clear that a board member, including an ex officio member, who is automatically removed may not serve on the board again for at least four years. Tenn. Code Ann. § 7-86-314(d) ("any" board member removed pursuant to section 314 is expressly "ineligible for reappointment for a period of not less than . . . 48 months"). And consistent with that provision, § 7-86-314(a) requires that a "successor" be appointed when a member is automatically removed. Since "successor" refers to someone who takes over from another person, see New Oxford American Dictionary, 3rd ed., the statute clearly contemplates that a membership position made vacant by automatic removal will be filled by someone other than the person who was automatically removed.

In sum, the automatic removal provisions of Tenn. Code Ann. § 7-86-314(a) apply, by their plain language, to ex officio ECD board members. This does not create any conflict with the requirement of § 7-86-105(b)(3) that certain officials serve ex officio as ECD board members. The statute allows those ex officio membership positions to be filled either by the specified official or by a representative of that official. Thus, when an ex officio membership position is vacant because the specified official was automatically removed from the board, the statutory ex officio membership requirement is nevertheless fully satisfied when that position is filled by a representative of the official.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

BRAD H. BUCHANAN
Senior Counsel

Requested by:
The Honorable Todd Gardenhire
State Senator
11A Legislative Plaza
Nashville, Tennessee 37243