Tennessee Advisory Opinions January 01, 2002: TN Att. Gen. Op. 02-121

Advisory Opinion Text

It is not clear whether membership on the county election commission is an "elected or appointed office within the county" within the meaning of Tenn. Code Ann. § 8-8-406. This Office has concluded that membership in a county election commission is a state office for some purposes. Op. Tenn. Arty. Gen. 79-72 (February 20, 1979). But a county election commission is extensively involved in every part of the election process within the county. This Office has noted that Tenn. Code Ann. § 8-8-406, when read literally, seems to include any office — city, county, or state — within the county limits. Op. Tenn. Atty. Gen. U94-95 (July 8, 1994). Further, the county commission is generally required to fund the operations of the election commission, except for expenses related to certain city, state, and federal elections. Tenn. Code Ann. § 2-12-109. When the General Assembly amended the county election commission statutes in 1986, it expressly provided that county election commissions were subject to county purchasing and budgetary laws, and also stated that "[n]othing in this act shall be construed as conferring upon any county election

commission . . . status as a state employee." 1986 Tenn. Pub. Acts Ch. 930, Section 5 (now codified at Tenn. Code Ann. § 2-12-210). For all these reasons, a court could well conclude that Tenn. Code Ann. § 8-8-406 prohibits a member of the Franklin County Election Commission from serving on the Franklin County Civil Service Board.

In addition, we think Tenn. Code Ann. § 2-1-112(a) also prohibits a member of the Franklin County Election Commission from serving on the Franklin County Civil Service Board. Tenn. Code Ann. § 2-1-112(a) provides:

Neither an elected official nor an employee of a state, county, municipal or federal governmental body or agency or of an elected official may serve as a member of a county election commission or as a member of a county primary board or as an election official. No candidate in an election may act in connection with that election as a member of any board or commission or an election official.

The statute does not define the term "employee." But we think that members of the Franklin County Civil Service Board are county employees, even if they are not full-time. Under Tenn. Code Ann. § 8-8-407, members of a civil service commission receive a salary to be determined by the county commission. We think this is sufficient to make the members of the civil service commission employees of the county within the meaning of Tenn. Code Ann. § 2-1-112(a), even though they are not full-time. See Op. Tenn. Atty. Gen. U93-46 (April 5, 1993)(the City Judge of Cumberland City, who is appointee by the Board of Mayor and Aldermen, is a city employee prohibited from serving as a member of a county election commission under Tenn. Code Ann. § 2-1-112). Under Tenn. Code Ann. § 2-1-112(a), therefore, a member of the Franklin County Election Commission may not serve as a member of the Franklin County Civil Service Board.

PAUL G. SUMMERS
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:

Honorable George Fraley State Representative 202 War Memorial Building Nashville, TN 37243-0139