“The issue is whether the occupancy of both offices by the same person is detrimental to the public interest, or whether the performance of the duties of one office interferes with the performance with those of the other. However, we know of no inherent inconsistency, incompatibility or conflict between the offices under discussion which would prohibit the same person from holding them concurrently as a matter of common law. But conceivably circumstances could develop during a multiple tenure such as would make the offices so incompatible that one could not continue to hold them simultaneously.”
– 1986 Tennessee Attorney General’s opinion regarding whether a Red Bank city commissioner could serve on the Hamilton County Commission
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On Wednesday, Ken Smith placed his hand on a red Bible, raised his right hand and swore an oath to serve as a Hamilton County commissioner.
It was a similar oath to one he took in April 2021 while being sworn in most recently as a Chattanooga City Council member, promising to do the job "faithfully, uprightly and honestly."
Now, he'll represent differing sets of Hixson residents at both the city and county level. About a third of the voters he represents on the county board don't live in the part of Hixson he represents on the City Council, he has told the Chattanooga Times Free Press.
Smith, R-Hixson, said he intends to stay in both positions for the time being, and he is still thinking about whether to leave his city job.
"It is a lot of work to serve in both bodies, but it will become clear at some point," Smith told the paper Wednesday.
DUELING LOYALTIES
It's illegal in many states to serve in more than one such elected office at once.
In places that have outlawed holding multiple offices, laws reflect the common law doctrine of incompatible offices, which brings into question whether one person can faithfully perform the duties of both positions.
In Florida, the constitution prohibits anyone holding more than one state, county or city office. A Kentucky statute dedicated to incompatible offices also bars someone from holding multiple local or state positions at once.
In Texas, the state attorney general's office has ruled that county commission and city council positions are incompatible and can't be held at the same time because they present conflicting loyalties.
"As a general matter, where the geographical boundaries of two governmental bodies overlap, there is always the potential for conflict, particularly where both entities collect taxes," reads a 2003 opinion from Greg Abbott, then Texas attorney general, finding that a county commissioner would have to leave office to join a city council.
Counties often enter contracts with the cities they include, the opinion says, and one person cannot adequately represent both parties to the contract.
TWO POSITIONS
People elected to overlapping positions in Hamilton County said they didn't feel their offices were incompatible. No one -- including constituents and attorneys for Chattanooga and the county -- raised questions when they assumed a second office, officials said.
Officials, as well as some voter advocates, say the bigger problem is whether officials have the time to fill more than one role.
"One person can't hold two positions at the same time," Everlena Holmes, founder of the Hamilton County Voters Coalition, said in a phone interview. "Something is being neglected. Why have two positions if one person could do both? Save the property owners some money -- why are we paying two salaries?"
Tennessee's laws only stop someone from holding two "lucrative" offices at the same time, which state courts and attorneys general have interpreted to mean state-level positions. But courts still haven't decided on the matter of local officials, according to a 2008 state attorney general's opinion.
The opinion, which considered whether the mayor of Kingston could also take a seat on the Roane County Commission, said there was no legal basis to decide the question. The county's district attorney agreed, refusing to bring legal action against the mayor/commissioner.
The Kingston City Council member who raised the question, Brant Williams, told the Knoxville News Sentinel at the time that he felt the offices posed built-in conflicts of interest.
"How can he swear an oath to the county and an oath to the city and give 100% to both sides?" Williams told the paper in 2009.
A court would need to say whether the offices' duties interfered with each other and decide whether having one person hold both at once "is detrimental to the public interest," the 2008 opinion concluded. Because they don't supervise or appoint each other, the AG said, they aren't obviously incompatible by Tennessee standards.
"Only a Tennessee court can make a binding determination on this issue," the opinion from then-Attorney General Robert Cooper said.
That leaves the matter largely up to cities and towns to decide whether to allow their elected officials or employees to take another public post.
In the meantime, most local officials can continue to double up on positions.
"At a minimum, the question has to be raised and considered," Dick Williams, chairman of the watchdog group Common Cause Tennessee, said in a phone interview, "or even to consider legislation in that area, like a prohibition or defined boundary."
CHATTANOOGA CHANGE
In Chattanooga, a public vote in 2020 changed the city charter to allow people who work for the county, state or federal government to serve on the City Council. Eighty-five percent of voters supported the change, which came after Anthony Byrd, then a Hamilton County court clerk, had to quit his job after being elected to the council.
Though Byrd inspired the referendum, the first to benefit from its passing was Jenny Hill, who was elected to represent North Chattanooga on the Chattanooga City Council in the middle of a term on the Hamilton County school board.
(READ MORE: School board member plans to stay on if elected to Chattanooga City Council)
Hill didn't leave the school board after taking her council seat, serving out the rest of her term before a new member was elected. She said she worried the majority-Republican County Commission would choose someone more conservative to fill her school board spot, which represents a district with a pretty even mix of Republicans and Democrats.
As a school board member, Hill has voted to approve lease renewals with Chattanooga for the district's Head Start program, a yearly yes-or-no vote she said is mostly a formality. She also voted yes on an agreement between the district and the city's recently-formed Department of Early Learning.
Only once was Hill told to sit out a topic at a City Council meeting, when council member Demetrus Coonrod, of Eastdale, pitched the idea of Chattanooga taking over city schools in 2021.
(READ MORE: Chattanooga councilwoman proposes study of separating city, county schools)
Smith is beginning his second tenure as both a city councilman and county commissioner. He served a temporary stint as a commissioner over the summer when a vacancy arose. During that time, he voted several times on agreements between the two governments.
In July, he voted yes on the county allocating $2 million to the city-owned Tivoli Theatre for renovations. Later that month, he voted on both boards to approve an agreement between the city and county to support a local flight to Denver from Chattanooga Airport.
On the commission, Smith also voted to allocate $1.5 million to the Chattanooga Fire Department for a fire training facility that county crews will also use. A month later, he voted on the council to accept that money.
At an Aug. 3 commission meeting, he gave an aye vote to a set of resolutions that greenlit the construction of the new Chattanooga Lookouts stadium in the city's South Broad area. On Aug. 9, he voted yes from the Chattanooga City Council dais.
Smith did not respond to requests for comment for this story.
"I don't think it's ideal to have this as a regular pattern, to have people serving multiple elected roles," Hill said in a phone interview. "That said, politics is increasingly difficult on families and individuals, and it's very hard to find great people who are willing to put themselves out there."
KNOWING THE ROPES
Hill and others said they felt better-equipped to take on a second elected role after learning the procedural ropes in their first positions.
Hamilton County Commissioner Mike Chauncey, R-East Ridge, also served on both the city and county levels for about three months last year, before his term on the East Ridge City Council expired.
"If anything, it kind of added more continuity to county government," Chauncey said of his three months overlapping with his service in East Ridge. "I don't really think one helped the other, it was just that I had the opportunity to serve the citizens in both capacities."
In the past couple of decades, East Ridge has developed somewhat of a tradition of electing its state representative from its City Council. The city's current representative, Republican Esther Helton-Haynes, was elected to the statehouse after two years on the council. Her two predecessors, former Reps. Marc Gravitt and Vince Dean, followed the same path.
"I was in Nashville from Monday through Thursday. We would leave the House floor around noon or 1, then I would really have to drive as fast as I possibly could to make it to the East Ridge City Council meeting," Gravitt, who served in the statehouse and in East Ridge for about two years, said by phone this week.
Dean, who served in East Ridge for nearly 10 years before running for a state seat, said his time on the council helped him advocate for things that would benefit East Ridge, including securing state money to improve the Exit 1 area off Interstate 75.
"Serving on the transportation committee, I was able to get the city of East Ridge a seat at the table," Dean said in a phone interview last week. "I had firsthand knowledge of what was going on in Nashville, and so I could work for the citizens of East Ridge a lot closer."
David Queen, a Hixson resident, said he was happy to see Smith chosen to represent him at the county level as well as the city because Smith already has an understanding of the area and won't face as much of a learning curve.
"It's good for citizens to have a person who's going to be effective right off the bat," Queen said in a phone interview Thursday.
DOUBLE DUTY
Gene-o Shipley, R-Soddy-Daisy, was elected to a County Commission seat last year and has served on the Soddy-Daisy commission for roughly 25 years.
Shipley plans to do double duty until his term in Soddy-Daisy expires in November 2024, he said. That probably wouldn't be possible if he were still working, he said in a phone interview on Thursday, but retirement has given him the time to serve in both roles. About 60% of his county district is made up of people he does not represent on the Soddy-Daisy commission.
"No one raised any concerns, no one ever questioned it. I was real open in the (Soddy-Daisy) commission meetings when I announced I would be running," Shipley said by phone Thursday.
Chauncey wasn't sure whether he'd run for re-election in East Ridge if he won his county seat, but he said his decision was made after talking to voters on the campaign trail.
"It didn't seem too popular with the constituents that I hold both seats," Chauncey said in a phone interview Wednesday.
Some were concerned there would be conflicts of interest, but Chauncey and other officials said they have encountered few votes that could be seen as a conflict because that generally only applies in cases where someone benefits financially.
Other constituents said they worried Chauncey wouldn't have enough time to do both jobs well, he said.
"I wanted to put all my efforts into the County Commission because I think that's what the taxpayers deserve," Chauncey said. "But I also wanted to fulfill my term that I was elected to. I wanted to finish the job because I felt like that's what the taxpayers in East Ridge deserve."
In November, both Chauncey and Shipley approved an agreement between the county and its smaller municipalities, including East Ridge and Soddy-Daisy, for the second phase of a stormwater pollution control program. Both commissioners said they didn't see a problem with voting as a representative of two different parties to the agreement.
"Those are just normal, year-to-year things that we go through," Shipley said. "I don't really see where there would be a conflict there."
Former County Commissioner Greg Martin, R-Hixson, stepped down from his county position ahead of being sworn in as a state representative this month.
Martin was appointed to fill the statehouse seat vacated by former Rep. Robin Smith, R-Hixson, last year following a vote from his fellow county commissioners. But with committee meetings in Nashville on Wednesday mornings, the same time the Hamilton County commissioners meet each week, Martin said he knew he wouldn't be able to do both.
"I legally could have done both, but I didn't think that was in the best interest of my constituents," Martin said by phone earlier this month.
Contact Ellen Gerst at egerst@timesfreepress.com or 423-757-6319.