ROGERSVILLE -- A Tennessee attorney general's opinion returned to the Hawkins County Mayor's Office Tuesday states that the seat of District 2 County Commissioner Dustin Dean was officially vacant the moment it was discovered he lives outside of his district.
The opinion issued Tuesday by Attorney General Robert Cooper also states that Dean's seat should be placed on the ballot for the Nov. 6 election.
The Hawkins County Election Office became aware in January that Dean lives just inside the District 3 boundary thanks to a state review of the 2011 county redistricting plan.
Dean was registered to vote in District 2, qualified as a District 2 commission candidate, and was elected to that office by District 2 voters.
According to the Election Office, as part of the 1991 redistricting the District 2/3 line was moved from a location that would later become the back of Dean's residential property to the street in front of Dean's home, changing the property from District 2 to District 3.
That line change was overlooked by the Election Office when Dean built his house in 2006. Dean has always been considered a District 2 resident at his current address.
After Dean's district error was discovered, he was asked to stop attending Hawkins County Commission meetings until the question was resolved.
There was an outcry from many people, including several commissioners, to allow Dean to complete his term because the error was not his.
County Mayor Melville Bailey subsequently issued a three-part request for an attorney general's opinion to Cooper.
Part one asked if a person is elected and qualified to a county commission seat, and it is later determined that person was not a resident of the district, does a vacancy exist and when does the vacancy occur.
Cooper replied, "A vacancy would exist once it is determined the commissioner who has been elected and qualified did not reside in the district in which he or she was elected. This office has previously opined that a person cannot be properly elected to a county legislative body from a district in which he or she does not reside. Under these circumstances the office in question is automatically vacant with no judicial determination necessary to establish a vacancy."
Part two of the opinion request asks if the Hawkins County Commission can revise its district reapportionment so as to place the residence of that county commissioner within the district from which he or she was elected.
Cooper responds, "The County Commission cannot retroactively change the boundaries of a county commission district. Furthermore, Tennessee law only allows a county to conduct reapportionment for future elections if a reapportionment is needed to maintain substantially equal representation based on population. Thus the county legislative body lacks authority to revise its plan of reapportionment so as to place the residence of the commissioner in the district in which he or she was elected."
The third part of the opinion request asks when the County Commission is required by law to fill this vacancy by appointment.
Cooper responded, "Tennessee Code Annotated 5-1-104(b)(1) requires the county legislative body to make an appointment to fill this vacancy within 120 days of receiving notice of this vacancy, unless during that time there is a general election scheduled in the county and there is sufficient time for the vacancy to be placed on the ballot in accordance with (TCA)."
All 21 Hawkins County Commission seats come up for re-election in August 2014.
Cooper states in his opinion, however, that because there is more than 60 days between the issuance of his opinion and the November election, Dean's seat should be placed on the ballot for the Nov. 6 election.