Can a Tennessee regional planning commissioner be removed for skipping the required annual training, and how does the removal and replacement process work?

Subject

Whether a regional planning commissioner who fails the annual training and certification requirements can be removed, the procedure for removal, and the procedure for filling the resulting vacancy.

Plain-English summary

Representative Rush Bricken asked the AG three sequential questions about regional planning commissioners under Tenn. Code Ann. §§ 13-3-101 to -105. The framework is unusual because Tennessee has two parallel appointment paths: in single-county planning regions, the county mayor appoints subject to confirmation by the county legislative body; in multi-county regions or single-county regions that participate jointly with a municipality, the Commissioner of the Department of Economic and Community Development (ECD) designates the members from a slate nominated by local chief elected officers.

Question 1 (the easy one): yes, a commissioner who fails to complete the required four hours of annual training under § 13-3-101(j)(1) or fails to file the year-end certification statement under (j)(3) may be removed. The statute itself, in (j)(8), says failing either requirement "shall constitute a cause for the removal" of the planning commissioner. Note that subsection (j)(9) lets a regional commission's legislative body opt out of the training requirement, in which case (j)(8) does not apply.

Question 2 (the procedural answer): the removal authority tracks the appointment authority. Where ECD designates commissioners, ECD removes them. Where the county legislative body confirms commissioners, the county legislative body removes them. In either case, the statute requires "cause specified in writing" served on the member, with at least fifteen days' written notice of a hearing. § 13-3-101(f); (i)(5). The AG opinion analogizes the procedural floor to standard due process: notice and an opportunity to be heard, citing Mullane and Pearson.

Question 3 (filling the vacancy): the vacancy is filled by the body that originally appointed. Single-county region vacancies go to the county mayor with county-legislative-body confirmation under (i)(4). Multi-county and joint-municipal region vacancies require nominations within thirty days after the position becomes vacant from the county mayor or chief elected official of a metropolitan-form-of-government county or affiliated municipality, after which the ECD Commissioner designates from the nominees under (b), (c)(3), (c)(4), and (i)(7).

What this means for you

If you are a sitting regional planning commissioner

The opinion concludes that failing to complete the required annual training under § 13-3-101(j)(1), or failing to file the year-end certification statement under (j)(3), is statutory cause for removal. Section 13-3-101(j)(8) states that failing either requirement "shall constitute a cause for the removal" of the commission member. Removal for that cause requires written notice of the cause and a hearing on at least fifteen days' written notice.

If you are a county legislative body

For commission members appointed by the county mayor and confirmed by the county legislative body, the opinion concludes that the county legislative body may remove a member for cause. The opinion states the removal must follow the procedure in § 13-3-101(i)(5): cause specified in writing served on the member, and a hearing on not less than fifteen days' written notice.

If you are the ECD Commissioner

For commission members the ECD Commissioner designates, the opinion concludes that the ECD Commissioner may remove a member "for cause specified in writing served on the member and after hearing, of which such member shall be given not less than fifteen (15) days' written notice" under § 13-3-101(f).

If you are a county mayor or other appointing or nominating official

The opinion addresses how a resulting vacancy is filled. In a single-county region, the county mayor appoints and the county legislative body confirms under (i)(4). In a multi-county region, or a single-county region that participates jointly with a municipality, nominations must be submitted within thirty days after the position is vacated by the listed chief elected officials, after which the ECD Commissioner may designate a nominee, under (b), (c)(3), (c)(4), and (i)(7).

The opinion does not address municipal planning commissions designated as regional under § 13-3-102 or regional planning commissions created by Private Act.

Common questions

Q: Can a planning commissioner be removed for missing the training?
A: Yes. The opinion concludes that a member who fails to complete the required training under § 13-3-101(j)(1), or who fails to file the certification statement under (j)(3), may be removed for cause. The opinion relies on (j)(8), which provides that failing either requirement "shall constitute a cause for the removal" of the member.

Q: Can the commissioner be removed without a hearing?
A: No. The opinion states the statute requires written notice of the cause and a hearing on at least fifteen days' written notice. It describes the hearing as providing the commissioner an opportunity to present objections, citing Mullane and Pearson on notice and an opportunity to be heard.

Q: Who removes the commissioner?
A: The opinion concludes that removal authority follows appointment authority. For members designated by the ECD Commissioner, the ECD Commissioner removes under § 13-3-101(f). For members appointed by the county mayor and confirmed by the county legislative body, the county legislative body removes under (i)(5). Both follow the same notice-and-hearing process.

Q: How is the vacancy filled?
A: For a single-county region, the opinion states the vacancy is filled by appointment by the county mayor, subject to confirmation by the county legislative body, under (i)(4). For a multi-county region, or a single-county region that participates jointly with a municipality, nominations must be submitted within thirty days after the position is vacated by the listed chief elected officials, after which the ECD Commissioner may designate a nominee, under (b), (c)(3), (c)(4), and (i)(7).

Background and statutory framework

Regional planning commissions in Tennessee are creatures of Tenn. Code Ann. §§ 13-3-101 to -105. The Department of Economic and Community Development creates planning regions; a region may be a single county, multiple counties, or portions of counties.

Membership comes through two paths. Single-county regions: county mayor appoints, county legislative body confirms. Multi-county regions and single-county regions that join with a municipality: ECD Commissioner designates from local nominations. § 13-3-101(b), (c), (i). The ECD Commissioner exercises designation authority "with the approval of the local government planning advisory committee" under (h), and that committee is established by § 4-3-727.

Annual training and certification: every commissioner must complete a minimum of four hours of training and file a certification statement by December 31 each year. § 13-3-101(j)(1), (3). Failing either is statutory cause for removal. § 13-3-101(j)(8). A commission's legislative body can opt out of the training under (j)(9).

Removal procedure tracks designation authority. ECD Commissioner removes ECD-designated commissioners under (f); county legislative body removes commissioners it confirmed under (i)(5). Both use the same procedure: cause specified in writing, served on the member, plus fifteen days' written notice of a hearing.

Filling vacancies: same as appointment. Single-county: county mayor appoints, legislative body confirms (i)(4). Multi-county or joint-municipal: thirty-day nomination window from local chief elected officials, then ECD designation (b), (c)(3), (c)(4), (i)(7).

Two scope exclusions: municipal planning commissions designated as regional under § 13-3-102 and regional planning commissions created by Private Act are not addressed here.

Citations

Statutes:

• Tenn. Code Ann. §§ 13-3-101 to -105 (regional planning commissions framework)
• Tenn. Code Ann. § 13-3-101(b), (c), (f), (h), (i)(1), (i)(4), (i)(5), (i)(7), (j)(1), (j)(3), (j)(8), (j)(9)
• Tenn. Code Ann. § 13-3-102 (municipal-to-regional designation, scope-excluded)
• Tenn. Code Ann. § 4-3-727 (local government planning advisory committee)

Cases:

• Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), notice and opportunity to be heard
• State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993), due process baseline
• Ashcroft v. Goodman, 202 S.W. 939 (Tenn. 1918), definition of "vacancy"
• State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567 (Tenn. Ct. App. 1994), vacant office means unoccupied

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-06.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 16, 2023
Opinion No. 23-006

Removal of Member of Regional Planning Commission

Question 1

If a member of a regional planning commission fails to attend the required training pursuant to Tenn. Code Ann. § 13-3-101(j)(1) or file a written statement with the commission secretary certifying such attendance pursuant to Tenn. Code Ann. § 13-3-101(j)(3), may the member be removed from the commission?

Opinion 1

Yes. A member of a regional planning commission may be removed for cause for failing to meet either of these requirements.

Question 2

If the answer to Question 1 is "yes," what is the process for removing the member?

Opinion 2

In regional planning commissions in which the Commissioner for the Department of Economic and Community Development designates planning commission members, the Commissioner "may remove a member . . . for cause specified in writing served on the member and after hearing, of which such member shall be given not less than fifteen (15) days' written notice." Tenn. Code Ann. § 13-3-101(f). In regional planning commissions in which planning commission members are appointed by the county mayor, subject to confirmation by the county legislative body, the county legislative body may remove a member for cause by following the same notice and hearing process. Id. § 13-3-101(i)(5).

Question 3

If a member is removed from the commission, what is the process for filling the vacancy?

Opinion 3

A vacancy in the membership of a regional planning commission that consists of a single county is filled through appointment by the county mayor, subject to confirmation by the county legislative body. Tenn. Code Ann. § 13-3-101(i)(4). And when there is a vacancy in the membership of a regional planning commission that contains territory in more than one county or a regional planning commission that consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, nominations to fill the vacancy must be submitted "within thirty (30) days after [the] position is vacated" by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. §§ 13-3-101(b), (c)(3) & (4), (i)(7). The Commissioner of the Department of Economic and Community Development may then designate a nominee as a member of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7).

ANALYSIS

Regional planning commissions are governed by Tenn. Code Ann. §§ 13-3-101 to -105. Under this statutory scheme, the Tennessee Department of Economic and Community Development (ECD) creates and establishes regional planning commissions that have planning authority over defined geographic areas. A planning region may be composed of the territory of a single county, or it may comprise several counties, or portions of several counties. Tenn. Code Ann. § 13-3-101.

When a planning region consists of a single county, the members of the regional planning commission for that region are appointed by the county mayor, subject to confirmation by the county legislative body. Id. §§ 13-3-101(b), (i)(1). In all other cases, i.e., when a planning region contains territory in more than one county or the planning region consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, the ECD Commissioner designates the members of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7). Any person designated by ECD Commissioner must have been previously nominated by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. § 13-3-101(c)(3).

Persons who are appointed or designated to regional planning commissions are generally required, each year, to attend a minimum of four hours of training and continuing education on specified planning topics. Id. § 13-3-101(j)(1). And each planning commissioner is required to "certify by December 31 of each calendar year such individual's attendance by a written statement filed with the secretary of such individual's respective planning commission." Id. § 13-3-101(j)(3). The statement must identify "the date of each program attended, its subject matter, location, sponsors, and the time spent in each program." Id.

1. "If a planning commissioner fails to complete the requisite number of hours of training and continuing education within the [statutorily allotted time] or fails to file the [requisite] statement . . . this shall constitute a cause for the removal of the planning commission member from the planning commission." Id. § 13-3-101(j)(8) (emphasis added). Hence, a planning commission member who fails to meet either requirement may be removed for cause. See id.

2. The power to remove a planning commissioner for cause rests with the ECD Commissioner in regional planning commissions in which the ECD Commissioner designates planning commission members. The ECD Commissioner "may remove a member . . . for cause specified in writing served on the member and after hearing, of which such member shall be given not less than fifteen (15) days' written notice." Id. § 13-3-101(f). In those regional planning commissions in which planning commission members are appointed by the county mayor, subject to confirmation by the county legislative body, the county legislative body may remove a member for cause by following the same notice and hearing process. Id. § 13-3-101(i)(5).

In short, the statute provides that a planning commissioner must be provided due process before that planning commissioner may be removed for cause. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (the touchstones of due process are notice and an opportunity to be heard). The ECD Commissioner or the county legislative body—whichever the case may be—must serve written notice on the planning commissioner explaining that removal of the planning commissioner is sought for failure to attend the required training and continuing education courses and/or for failure to file the requisite statement that indicates that the planning commissioner attended the required training and continuing education courses. See Tenn. Code Ann. §§ 13-3-101(f), (i)(5). The written notice must be given not less than fifteen days before the date on which the hearing is scheduled. See id. The hearing then provides the planning commissioner the opportunity to present any objections to removal. See Mullane, 339 U.S. at 314; Pearson, 858 S.W.2d at 884.

3. If a planning commissioner is duly removed for cause, that person's office becomes "vacant." See Ashcroft v. Goodman, 139 Tenn. 625, 630, 202 S.W. 939, 940 (Tenn. 1918) ("The term 'vacancy,' as used in legal phraseology, means a place unfilled, and when applied to an office, it means the state of being destitute of an incumbent, or a want of a proper or legally qualified officer to officiate."); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 573-74 (Tenn. Ct. App. 1994) (a "vacant" office is one that is unoccupied or without an incumbent).

A vacancy in the membership of a regional planning commission that consists of a single county is filled through appointment by the county mayor, subject to confirmation by the county legislative body. Tenn. Code Ann. § 13-3-101(i)(4). And when there is a vacancy in the membership of a regional planning commission that contains territory in more than one county or a regional planning commission that consists of a single county that participates jointly in the planning region with a municipality or municipalities lying within that county, nominations to fill the vacancy must be submitted "within thirty (30) days after [the] position is vacated" by "the chief elected officer of any county having a metropolitan form of government, the county mayor of any other county, or the chief elected officer of any municipality lying inside of the boundary of the planning region." Id. §§ 13-3-101(b), (c)(3) & (4), (i)(7). The ECD Commissioner may then designate a nominee as a member of the regional planning commission. Id. §§ 13-3-101(b), (c), (i)(7).

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Rush Bricken
State Representative
425 Rep. John Lewis Way N.
Suite 594
Nashville, Tennessee 37243