Conflicting state laws: TSBA says Walkup can keep serving

The Tennessee School Board Association has weighed in on the question of whether a vacancy exists on the Cannon County Board of Education.

In the opinion of the TSBA, one does not. However, the law the association cites conflicts with another state law.

In an email sent this morning to the Cannon Courier, TSBA Deputy Executive Director & General Counsel Randall G. Bennett wrote:

"We've been following the coverage regarding whether Shelley Walkup's board seat is or should be vacant after moving from the district from which she was elected ... and the discussion of TCA § 8-48-101(3) regarding residency requirements for local officials.

"There is conflicting language in Tennessee Code Annotated regarding vacancies of elected officials generally and school board members particularly. We submit this conflicting language is the source for the differing opinions on this question.

"The following language from Title 49, which pertains to education, is more specific than the statute referenced in Title 8:

"Tenn. Code Ann. §49-2-202(5) If any member ceases to reside in the county, the office of the member shall become vacant.

"In discussing statutory construction, the Attorney General in Opinion 17-029, referred to the following cases:

'As a matter of statutory construction, a specific statutory provision will control over a more general statutory provision." In re Harris, 849 S.W.2d 334, 337 (Tenn. 1993). See also Washington v. Robertson County, 29 S.W.3d 466, 475 (Tenn. 2000) (holding that, as a matter of statutory construction, a specific statutory provision, such as the definition of "person" under Tenn. Code Ann. § 4-21- 102(14), will control over a more general statutory provision); Rent-N-Roll v. Highway 64 Car & 4 Truck Sales, 359 S.W.3d 183, 188, (Tenn. Ct. App. 2010) (since it is "a well settled rule of statutory interpretation that the specific controls the general," court "cannot disregard the specific language of Tenn. Code Ann. § 47-2A-310, which deals directly with the issues at hand, on the basis of the exceedingly general language in Tenn. Code Ann. § 47-2A-104(1)(a)").'

"It is the opinion of our legal department that this statute, which is more specific in nature and having application to only school board members, would be controlling when determining if a vacancy exists on a local board of education. Additionally, it is our position that based on the language of this statute, so long as a school board member does not move out of the 'county' that board member may serve the remainder of his/her elected term. However, if or when that board member decides to run for re-election, it would be necessary to run in the district in which he/she currently resides."

In a followup email sent at the request of the Courier, Bennett wrote:

"In regard to our telephone discussion, I am not aware of any case in the Tennessee appellate courts which speaks directly to the apparent conflict between Title 8 and Title 49. However, as I indicated during our conversation there is considerable authority regarding statutory construction and it remains my opinion that Title 49 controls in this situation because it is specific statutory language and pertains ONLY to school board members."

Bennett said there would likely be opposing views with respect to which law trumps the other from different lawyers and judges. He also indicated the Attorney General has not issued an opinion specifically addressing the matter.

Information received by the Courier which was sent from the Tennessee Division of Elections highlights that conflict. Beth Henry-Robertson, the state's Assistant Coordinator of Elections, sent the following to Cannon County Administrator of Elections Matt Teply:

"Based on Tenn. Code Ann. § 8-48-101(3), a vacancy can occur when an officeholder ceases "to be a resident of the state, or of the district, circuit, or county for which the incumbent was elected or appointed." (Emphasis added) Because this statute applies to "any office in this state," it applies to county school board and county commission.

"If the vacancy on the school board occurs in the middle of the four-year school board term, then Tenn. Code Ann. § 5-1-104 applies and governs the process for filling the vacancy and requires the unexpired term to be placed on the August 2, 2018 ballot. However, if the school board member is entering the end of the full-term of office, as are the members of the county legislative body, Tenn. Code Ann. § 5-1-104 still governs the appointment process, but the election in 2018 will be for the full term of office."

It is not known why the two laws differ with respect to county commissioners and school board members. Qualifications to run for both offices with respect to residency are identical. If a county commissioner moves outside of their district, they vacate their seat.

Cannon County attorney Mike Corley has stated it is his opinion Walkup is no longer eligible to serve. The state election commission takes the stance the decision as to whether there is a vacancy or not is left to the discretion of the county commission. Bennett said if the county commission decides school board members are subject to the same residency requirements as are its own members, and removes Walkup from office, she could take the matter to court.