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City can't set term limits, attorney says
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McMinnville officials cannot use an ordinance to set term limits for citizens they appoint to boards that are established by state law or set term limits for themselves, says Tennessee Municipal League legal consultant Melissa Ashburn.
“The attempt is contrary to general law and the governing body lacks legal authority to limit the power of appointment granted by general law,” Ashburn said in an email to the city after she reviewed the proposed ordinance.
Ashburn added, “Any local regulation or legislation that conflicts with the general law is null and void. Once the state adopts laws regulating activity, local governments may not adopt any laws or regulations inconsistent with state law, as the state has effectively preempted any local action in that regard.”
On Aug. 13, the McMinnville Board of Mayor and Aldermen considered an ordinance that would have set term limits for some boards appointed by the city. The measure took a step back after it failed to pass and was sent to the Finance Committee for its consideration.
Mayor Jimmy Haley voted against setting term limits. He voiced concerns about the measure being against state law and asked the board to hold off on the ordinance until after Tennessee Municipal League had time to review it.
“I don’t disagree with setting term limits,” Haley said, “but I believe we need to make sure we are not violating Tennessee Code Annotated by passing an ordinance that has not been recommended by our Technical Advisory Service.”
Nominations for appointments are made by the mayor and voted on by the full board. Ashburn says limiting the pool of potential appointees inadvertently limits the power of the mayor and that is against state law.
“I understand the argument that a supporter of this policy/ ordinance would make that this isn’t a limit of the mayor’s appointing powers, but it is a limitation in that it limits the pool of potential appointees,” she said.
The city does not have the power to set term limits on any public utility board or planning commission, says Ashburn.
“Boards established under state law must comply with state law provisions concerning appointments and terms of office. That being the case, the governing board may not limit the general law powers of the mayor to make these appointments.”
McMinnville Housing Authority is exempt as well.
“Members of municipal housing authority boards are all appointed by the mayor, with no consent or approval of the governing body. Due to the general law provisions governing these boards created by McMinnville, in my opinion the city may not further restrict or modify the power of appointment to those boards.”
Alderman Ken Smith suggested setting term limits for the mayor and aldermen. When contacted by the Southern Standard, Ashburn says the city can’t do that either.
“McMinnville is what they call a General Law Charter, so they cannot add term limits to their own governing body,” said Ashburn. “Term limits can only be adopted by Home Ruled cities or by Private Act Charter cities. There are 68 cities in Tennessee under the General Law Charter. There are no term limit provisions in it and I guarantee you none will be added by the legislature.”
If officials wanted to set term limits, they would have to ask the voters to change the city’s charter from General Law Charter to a Home Ruled Charter.
“Once you are already formed as a city, it requires a resolution by the governing body to put the question ‘Do you want to go to Home Rule Charter’ on the ballot for the voters to decide,” said Ashburn. “If the vote passes, a charter commission is assigned to draw up a charter. A charter is like a constitution. So, basically, you would be calling a constitutional convention to come in, sit down and draw up what’s in the constitution.”
A Finance Committee meeting is set for Tuesday at 6:30 p.m. at City Hall to discuss term limits.