TBA Law Blog


Posted by: Joseph Jarret on Feb 1, 2016

Journal Issue Date: Feb 2016

Journal Name: February 2016 - Vol. 52, No. 2

What the Law of Ouster in Tennessee Says About Getting the Boot

It is a law that has its roots in the Tennessee Constitution and has the tendency to vex defendants and attorneys alike. It is a law that can end the political careers of public officials for conduct ranging from voluntary public intoxication and illegal gambling to the all-inclusive, ever elusive offense of “moral turpitude.”[1] It is Tennessee’s Ouster Law, and it can prove the bane of public officials who dabble in malfeasance while holding public office. As we explore this unique body of law, it is important to note that not every person against whom an ouster petition is filed is guilty of the allegations contained therein, despite the prevailing “throw the bums out!” mentality that exists in today’s society.

The Law

Article 7, Section 1 of the Tennessee Constitution provides that county officers shall be removed from office for malfeasance or neglect of duty.

“The terms ‘malfeasance’ and ‘neglect of duty’ are comprehensive terms and include any wrongful conduct that affects, interrupts or interferes with the performance of official duty.”[2] Pursuant to Tenn. Code Ann. § 8-47-101, county officials may be ousted from office for:

  1. Knowing or willful misconduct in office;
  2. Knowing or willful neglect of duties required by law;
  3. Voluntary intoxication in a public place;
  4. Engaging in illegal gambling; or
  5. Committing any act violating any penal statute involving moral turpitude.

More specifically, the statute reads:

Every person holding any office of trust or profit, under and by virtue of any of the laws of the state, either state, county, or municipal, except such officers as are by the constitution removable only and exclusively by methods other than those provided in this chapter, who shall knowingly or willfully commit misconduct in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state, or who shall in any public place be in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of illegal gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such office and shall be ousted from such office in the manner hereinafter provided.[3]

Judicial Restraint

Despite the various options available to litigants who seek to remove public officials from office, it has been a legal tradition in Tennessee that our courts exercise judicial restraint when faced with such cases. For instance, over a century ago, one court held, “Proceedings under the Ouster Act should never be brought unless there is a clear case of official dereliction. This is a very drastic statute and should not be invoked except in plain cases that can be certainly proved.”[4] Soon thereafter, the Tennessee Supreme Court ruled that:

The Ouster statute is a salutary one, but those administering it should guard against its over-encroachment. Shreds of human imperfections gathered together to mold charges of official dereliction should be carefully scanned before a reputable officer is removed from office. These derelictions should amount to knowing misconduct or failure on the part of the officer if his office is to be forfeited; mere mistakes in judgment will not suffice.[5]

Decades later, the Tennessee Supreme Court similarly opined that ouster suits should be brought only where the evidence of official dereliction is clear and convincing.[6]

Of course, there exist those times when the court deviates from this position with interesting results. Take the case of Wolfenbarger, et al. v. Moore & Pinkston,[7] an attempt to oust members of the Knox County Commission. The complaint alleged that the two commissioners violated Tennessee’s Open Meetings Act and further gave false testimony regarding the alleged violations. The trial court ultimately ruled that neither commissioner violated the Open Meetings Act nor made false statements regarding same. However, the trial court did rule that Defendant Moore, by testifying during the trial that he could not recall a conversation he had with a local attorney, perjured himself, thus committing the crime of moral turpitude. Consequently, the court removed Moore from office. In support of its ruling, the court announced, “The essence of our judicial system is the ephemeral search for the truth.” Noting Benjamin Franklin’s quip “half a truth is a great lie,” the court went on to note that, “evasion of an answer to a pertinent question is as much an untruth as a palpable falsehood.”[8]

It is interesting to note that perjury is not one of the ouster offenses enumerated under the statute but moral turpitude is. This elusive term has been defined by the Tennessee Supreme Court as “[a]n act of baseness, vileness, or depravity in the private and social duties which man owes to his fellowmen or to society in general, contrary to the accepted rule or right and duty between man and man.” Indeed.[9]

Who’s Subject to Ouster?

One of the more challenging aspects of Tennessee’s Ouster Law involves the issue of just who is subject to its reach? The Tennessee Code reads that any person who holds a local or state government “office of trust or profit” is subject to ouster, albeit the law does not specifically read whether such offices are presumed elected versus appointed. How a plaintiff goes about determining whether a particular office is one of trust or profit and as such vulnerable to ouster can prove to be challenge. This dilemma recently arose in the Chancery Court of Anderson County where a specially appointed chancellor ruled that the Anderson County law director, the respondent in an ouster action whose position is an appointed one, was not subject to ouster due to the fact that no evidence existed that it was the intent of the Tennessee legislature to create an office of public trust for the position. Consequently, the court granted the respondent’s motion to dismiss.[10]

In upholding the lower court ruling, the Tennessee Court of Appeals ruled in pertinent part that, as the Anderson County law director is subject to the oversight of an advisory committee, which may remove the individual holding the position with the approval of the county legislative body, it is not a public office under the ouster law.[11] The Tennessee Attorney General, however, has opined that judicial commissioners appointed by county legislative bodies are subject to the ouster statute.[12]

Who Can/Must File an Ouster Petition?

The Tennessee Code is explicit when it comes to who is empowered to file ouster petitions. The law reads that 10 or more citizens referred to as citizen “relators” and “freeholders” the attorney general, district attorneys general, city and county attorneys within their respective jurisdictions may all file petitions.[13] As will be discussed infra, city and county attorneys are not only empowered but can be compelled to file ouster petitions.

You’re Outta There, for Now!

One aspect of the ouster law that serves to emphasize the seriousness in which the Tennessee legislature views such matters is evidenced by the fact that once an ouster petition or complaint is filed, the court is empowered (albeit not required) to suspend the accused officer from performing any of the duties of their office, pending a final hearing and determination of the matter. In other words, a person duly elected by the citizens of the state, city or county lose the representation of the person they put into office. That is not to say the office remains vacant. Rather, the vacancy is filled in accordance with the laws governing that particular office, and the person selected to serve in the accused’s stead carries on the duties of that office until the hearing is concluded (and all appeals exhausted) or until a successor is duly elected.[14] In the event the court (such matters are decided by a judge, not a jury) temporarily suspends the official, the person temporarily filling the office receives the same salary and fees as paid to the suspended officer.[15]

Although a judge is empowered to temporarily suspend the accused, he or she is entitled to demand and have a trial by jury as to any issue of fact. Likewise, plaintiffs in an ouster suit are entitled to a trial by jury as to any issue of material fact.[16] Further, recognizing the importance of such actions, the legislature has deemed it necessary to insure that proceedings founded in ouster take precedence over other civil and criminal actions, and as such, must be tried at the first term after the filing of the complaint or petition, provided that the answer of the accused officer has been on file at least 10 days before the day of trial.[17]

Ouster lawsuits, like whistle blower and other suits alleging government wrongdoing, are generally pled “ex rel” or Ex relatione denoting the party on whose information the suit is brought.

You Have the Right to Remain Silent: Not!

Another peculiarity of ouster proceedings is the fact that defendants leave their constitutional right against self-incrimination at the door. The person who is the subject of an ouster proceeding may not be excused from testifying under the ouster statutes on the ground that the person’s testimony may incriminate him or her. However, should the ouster defendant make a statement against self-interest amounting to a confession “to any crime or misdemeanor under the laws of this state” such persons’ testimony may not be used against him or her.[18]

Attorney v. Client

Of the individuals who may legally petition a court for ouster, the most unusual are county and city attorneys. I make this assertion based upon the fact that a city or county attorney is not only empowered to seek the ouster of their own clients, but in certain circumstances are compelled to do so. For instance, in the event a group of 10 or more citizens seeks to oust a locally elected official, the city or county attorney representing that official can be compelled to assist the citizens in removing him or her. The statute specifically requires city and county attorneys to aid and assist such citizens in the prosecution of ouster proceedings against city and county officials.[19]

This peculiarity in the law, if you will, begs the question, “How does the local government attorney reconcile this duty with the Tennessee Rules of Professional Conduct that regulate attorney behavior?” For instance, if a local government attorney undertakes the role of advising and assisting citizens in a legal matter, one would be hard pressed to assert an attorney-client relationship has not been created. Contemporaneously with this new relationship, the attorney’s “old” relationship with the public official who is the subject of the ouster is not severed. Rule 1.7 of the Tennessee Rules of Professional Conduct reads in pertinent part, “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client.” Nevertheless, under a strict interpretation of the law of ouster, a local government attorney could conceivably spend the morning with a group of citizens seeking the ouster of, say a member of city council or county commission and then spend the evening imparting legal advice to that same individual during the course of a public meeting.

In addition to being required to assist citizens in ousting their clients, local government attorneys, under certain circumstances, are required to personally initiate proceedings against their clients. Local government attorneys who are put on notice, in writing, that one of their clients is guilty of one of the crimes outlined in the code, are required to conduct an investigation, and, if it is determined that reasonable cause exists to substantiate the complaint, “shall forthwith institute proceedings in the circuit, chancery, or criminal court of the proper county, to oust such officer from office.”[20] This authority, or burden, depending on your perspective, is not extended to city or county commissioners nor city or county executives.[21]

Notes

  1. The term “moral turpitude” remains undefined by the Tennessee legislature despite its appearance in several code sections. However, our courts have deemed offenses such as assault to commit murder, theft, alteration of a cable box to receive free cable services, larceny and burglary to constitute the offense of moral turpitude. See for example, Meadows v. Tennessee Board of Emergency Medical Service, 2001 WL 1158873, (Tenn. Ct. App. 2001).
  2. State ex rel. Complainant v. Ward, 43 S.W.2d 217, 219 (Tenn. 1931).
  3. Tenn. Code Ann. § 8-47-101.
  4. State ex rel. Wilson v. Bush, 208 S.W. 607, 609 (Tenn. 1919).
  5. Vandergriff v. State ex rel. Davis, 206 S.W.2d 395, 397 (Tenn. 1937).
  6. McDonald v. Brooks, 387 S.W.2d 803, 806 (Tenn. 1965).
  7. State ex rel. Wolfenbarger v. Moore, 171426-2 (Tenn. Ch. 2010), affirmed, State ex rel. Wolfenbarger v. Moore, 2010 WL 520995 (Tenn.Ct.App. 2010).
  8. Id.
  9. Brooks v. State, 187 Tenn. 67, 76, 213 S.W.2d 7 (1948).
  10. See State of Tennessee, ex. Rel. Landle Byrge, et. al. v. Nicholas Yeager, Tenn Ch No. 14CH6354. State of Tennessee ex rel Landle Byrge, et al. v. Nicholas Jay Yeager, perm. app. denied (Tenn. Oct. 16, 2015).
  11. See State of Tennessee, ex. Rel. Landle Byrge, et. al. v. Nicholas Yeager (Tenn.Ct.App. 2015).
  12. Op. Tenn. Atty. Gen. 00-126.
  13. Tenn. Code Ann. § § 8-47-109-113.
  14. Tenn. Code Ann. § 8-47-116.
  15. Tenn. Code Ann. § 8-47-121.
  16. Tenn. Code Ann. § 8-47-119. For an excellent analysis of the mechanics of Tennessee’s Ouster Law, see “Removal From Office-Ouster” published by the University of Tennessee, Municipal Technical Advisory Service, http://ctas-eli.ctas.tennessee.edu.
  17. Tenn. Code Ann. § 8-47-119.
  18. Id.
  19. Tenn. Code Ann. § 8-47-111.
  20. Tenn. Code Ann. § § 8-47-107.
  21. See Duncan v. Cherokee Ins. Co., 1987 WL 11329 (Tenn.Ct.App. 1987).

Joe Jarret JOSEPH “JOE” JARRET has served three public entities as law director/chief legal counsel and is a former United States armored cavalry officer with service overseas. He currently lectures full-time for the University of Tennessee, Graduate School of Public Policy and Administration, and is a graduate of Stetson Law School.