Do Tennessee charter commission members have to file a charter, and what can the county do if they don't?

Subject

Opinion No. 18-36, Duties of a Charter Commission, July 30, 2018

Plain-English summary

In Tennessee, a county that wants to switch to a charter form of government has to go through a charter commission, an elected body whose job is to draft a proposed charter and put it to the voters. Lieutenant Governor McNally and Representative Ragan asked the AG two questions: do commission members have an actual duty to prepare and file the charter once they are seated, and what can a county legislative body do if a commission stalls?

On the first question, the answer was yes. Tenn. Code Ann. § 5-1-208(a) says each charter commission "shall prepare and file" the proposed charter within nine months of its first meeting (or within an extended period authorized by county resolution). The AG read "shall" as mandatory under standard Tennessee construction (Bellamy v. Cracker Barrel, Stubbs v. State), and pointed to § 5-1-204(b)(3) and (c)(3), which require the resolution or proclamation creating the commission to recite that the commission exists "to propose to the people an alternative form of county government." A charter commission's "singular purpose" is to draft a proposed charter and submit it for a vote.

On the second question, the answer was that the county legislative body has extension authority and probably more, but the statutes are quiet on remedies. The county can extend the nine-month deadline by resolution, with no statutory cap on the number or length of extensions. Beyond that, state law does not specify remedies, but the AG concluded that the county legislative body has implied authority over the commission's continued existence (and potentially its dissolution), particularly if the commission was created on the legislative body's own initiative. That implied-authority conclusion drew on Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001) (local governments have authority "necessarily implied or necessarily incident to the powers expressly granted"), and State ex rel. Patton v. Mayor & Bd. of Aldermen, 626 S.W.2d 5 (Tenn. 1981) (authority to create a utility board includes authority to dissolve it).

Currency note

This opinion was issued in 2018. 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

The Limited Constitutional Convention of 1977 amended Tenn. Const. art. VII, § 1 to give the General Assembly the power to provide for new forms of county government, including the "right to charter." The implementing statutes were enacted in 1979 and sit in Tenn. Code Ann. § 5-1-201 et seq. (Jordan v. Knox Cty., 213 S.W.3d 751, 766-67 (Tenn. 2007)).

A county may create a charter commission three ways under § 5-1-204:

1. The county legislative body adopts a resolution creating the commission (§ 5-1-204(b)).
2. The county mayor issues a proclamation creating a commission and appointing members, ratified by the legislative body (§ 5-1-204(c)).
3. Voters submit a petition to the legislative body for a resolution to establish a commission (§ 5-1-204(d)).

If a resolution is adopted under (1) or (3), the county election commission holds an election for charter commission members (§ 5-1-204(b)(6), (d)(2); § 5-1-205(a)). Members appointed under the mayor's proclamation route are not separately elected.

Once seated, the commission's deadline runs from § 5-1-208(a): "Each charter commission shall prepare and file the charter proposed by it not later than nine (9) months after the date of its initial meeting, or within such an extended limit of time as may be authorized by resolution of the legislative body of the county." § 5-1-204(b)(3) and (c)(3) require the establishing instrument to recite that the commission's purpose is to "propose to the people an alternative form of county government."

The construction-of-"shall" rule comes from Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) ("When 'shall' is used in a statute or rule, the requirement is mandatory."). The implied-authority framework comes from Southern Constructors, 58 S.W.3d at 710, and Patton, 626 S.W.2d at 6.

Common questions

Once a charter commission is elected, does it have to actually do anything?

Yes. The opinion read § 5-1-208(a)'s "shall prepare and file" as mandatory. The commission's "singular purpose" is to propose a charter for a referendum vote, and it has a duty to do so within the time set by statute or extended by the county.

What is the deadline?

Nine months from the commission's first meeting, unless the county legislative body extends it by resolution. The statute does not put a cap on the number or length of extensions.

Can the county dissolve a commission that won't act?

Probably yes, in the AG's view, though the conclusion is framed as implied authority rather than express. The opinion drew on the principle from Patton that the power to create a body includes the power to dissolve it. The case for dissolution authority is stronger when the commission was created on the legislative body's own initiative; the analysis may be different for commissions created via voter petition.

What if the commission was created by voter petition?

The opinion did not work through this in detail. The implied-authority argument is weaker when the commission's existence was triggered by voters rather than by the legislative body. A county considering dissolution in that posture would be on softer ground and would face the additional question of whether dissolution would defeat the voter-petition right.

Can the commission's drafting work be reviewed by the county legislative body before it goes on the ballot?

The opinion did not reach that question. § 5-1-208(a) requires the commission to "prepare and file" the proposed charter; once filed, other provisions of the charter statute control how the proposal moves to a referendum, a stage this opinion does not address.

Does this opinion bind the courts?

No. AG opinions in Tennessee are persuasive authority, not binding precedent. Courts interpreting these statutes in a contested case may reach different conclusions, particularly on the scope of implied dissolution authority.

Citations

Constitutional provisions

• Tenn. Const. art. VII, § 1 (right to charter)

Statutes

• Tenn. Code Ann. § 5-1-201 (purpose: right to charter)
• Tenn. Code Ann. § 5-1-204 (creation of charter commission)
• Tenn. Code Ann. § 5-1-205 (election of commission members)
• Tenn. Code Ann. § 5-1-208 (preparation and filing of proposed charter; nine-month deadline)

Cases

• Jordan v. Knox Cty., 213 S.W.3d 751 (Tenn. 2007)
• Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278 (Tenn. 2009)
• Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (Tenn. 1965)
• Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001)
• State ex rel. Patton v. Mayor & Bd. of Aldermen, 626 S.W.2d 5 (Tenn. 1981)

Prior AG opinions

• Tenn. Att'y Gen. Op. 97-96 (July 1, 1997)
• Tenn. Att'y Gen. Op. 83-477 (Nov. 8, 1983)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-36.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 30, 2018

Opinion No. 18-36

Duties of a Charter Commission

Question 1

Once elected, do members of a charter commission have a duty to prepare and file a charter for consideration by the people?

Opinion 1

Yes.

Question 2

May a county legislative body extend the time period a charter commission has to submit its proposed charter more than once or take other actions if a charter commission fails to perform its duty to prepare and file a charter?

Opinion 2

The applicable statutes place no limits on a county legislative body's authority to extend the time a charter commission has to prepare and file its proposed charter. State law does not provide any other specific remedies for a charter commission's failure to fulfill its duty, but a county legislative body has some implied authority over the continued existence of the commission.

ANALYSIS

The Limited Constitutional Convention of 1977 amended the Tennessee Constitution to allow the General Assembly to provide for new forms of county government, including the "right to charter." Tenn. Const. art. VII, § 1; see Jordan v. Knox Cty., 213 S.W.3d 751, 766-67 (Tenn. 2007). In 1979, after these constitutional changes had been ratified by the people, the General Assembly enacted legislation "to provide for the right to charter for counties as an alternate form of government" and to establish the procedures and requirements applicable to any county wishing to adopt a charter form of government. Tenn. Code Ann. § 5-1-201; see also Jordan, 213 S.W.3d at 767.

Under this statutory scheme, the initial step for a county wishing to adopt a charter form of government is to create a charter commission. See Tenn. Code Ann. § 5-1-204(a). A county may create a charter commission in one of three ways: (1) the legislative body may adopt a resolution to create the commission, id. § 5-1-204(b); (2) the county mayor may issue a proclamation creating a commission and appointing its members, so long as the proclamation is ratified by the county legislative body, id. § 5-1-204(c); or (3) voters may submit a petition to the legislature for a resolution to establish a charter commission, id. § 5-1-204(d). If the county legislative body adopts a resolution creating a charter commission, either on its own initiative or pursuant to a voter petition, the county election commission must hold an election for the members of the charter commission. Id. §§ 5-1-204(b)(6), (d)(2); 5-1-205(a).

1. Once established, a charter commission has a duty to prepare and file a charter. Section 5-1-208(a) directs that "[e]ach charter commission shall prepare and file the charter proposed by it not later than nine (9) months after the date of its initial meeting, or within such an extended limit of time as may be authorized by resolution of the legislative body of the county." (emphasis added). "When 'shall' is used in a statute or rule, the requirement is mandatory." Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009); see also Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (1965) ("When 'shall' is used . . . it is ordinarily construed as being mandatory and not discretionary."). Accordingly, a charter commission "must prepare and file a proposed charter." Tenn. Att'y Gen. Op. 97-96 (July 1, 1997).

Moreover, the statutes require that a resolution or proclamation creating a charter commission include a provision indicating that the charter commission is established "to propose to the people an alternative form of county government." Tenn. Code Ann. § 5-1-204(b)(3), (c)(3). In other words, although a charter commission is ultimately governed by the county resolution or proclamation establishing it, state law mandates that "[t]he basic purpose of the Charter Commission" must be "to prepare a proposed . . . charter to be submitted to a special referendum election in a particular county." Tenn. Att'y Gen. Op. 83-477 (Nov. 8, 1983).

In short, the singular purpose of the creation of a charter commission is to propose a charter form of government. Accordingly, a charter commission has a duty to prepare and file a proposed charter as directed by the resolution or proclamation.

2. If a charter commission fails to prepare and file a proposed charter within nine months of its first meeting as directed by § 5-1-208(a), the county legislative body may extend the time for filing a proposed charter.

Section 5-1-208(a) specifically allows the county legislative body to extend the time the charter commission has to submit its proposed charter. The charter commission must prepare and file the proposed charter within nine months of its first meeting "or within such extended limit of time as may be authorized by resolution of the legislative body of the county." Tenn. Code Ann. § 5-1-208(a). The statute does not limit the number of times a legislative body may extend the time a charter commission has to propose a charter, nor does it limit the length of any extension. As long as the time period is extended "by resolution of the legislative body of the county," there are no state law limitations on the number or length of the extensions.

State law does not expressly provide for other remedies that the county legislative body may take if a charter commission fails to perform its duty to prepare and file a charter. Nor does state law provide any specific remedies for a charter commission's failure to propose a charter.

But the county legislative body may have implied authority to dissolve a charter commission that fails to perform the singular function for which it was created. As a matter of statutory construction, a local government has any authority that is "necessarily implied or necessarily incident to the powers expressly granted" to it. See Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). The authority to create a commission and to extend the time it has to perform its statutory duty necessarily implies that the county legislative body has some authority over the continued existence of the charter commission, particularly if the commission was created at the initiative of the legislative body itself. See State ex rel. Patton v. Mayor & Bd. of Aldermen, 626 S.W.2d 5, 6 (Tenn. 1981) (holding that a grant of authority to a municipality to create a utility board necessarily included the authority to dissolve the board); 56 Am. Jur. 2d Municipal Corporations § 356 ("The power of a municipal corporation to enact ordinances generally implies the power to repeal them by means of an act of equal dignity.").

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Randy McNally
Lieutenant Governor
425 5th Avenue North, Suite 700
Nashville, TN 37243

The Honorable John Ragan
State Representative
425 5th Avenue North
Nashville, TN 37243