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Business, Free Enterprise and Constitutional Issues; Pro-Life and Pro Second Amendment. Susan Lynn is a member of the Tennessee General Assembly. She serves as Chairman of the Consumer and Human Resources subcommittee, a member of the Finance Ways and Means Committee and the Ethics Committee. She holds a BS in economics and a minor in history.

Friday, September 16, 2016

The House's Authority Expel a Member

State Representative Susan Lynn

Dear Members,

This letter is to assist in answering any questions regarding the House's action to expel a member this week, and to clarify issues regarding the historical precedent, constitutionality, and the rules and authority of the House.

There have been two expulsions since reconstruction in the Tennessee House of Representatives; in 1866 and 1980.  The first was during an Article III, Section 9 call by the Governor to Special Session.  In that Session six members were expelled at the same time by motion from the House floor.

Neither the expulsions, nor the authority of the House to conduct such business, were challenged.

An Article III, Section 9 call is the same call to Special Session that Governor Haslam made to the 109th General Assembly requiring our attendance this past week.

Article III, Section 9 reads;

“He may, on extraordinary occasions, convene the General Assembly by proclamation, in which he shall state specifically the purposes for which they are to convene; but they shall enter on no legislative business except that for which they were specifically called together.”

The term 'legislative business' needs clarification. The Attorney General has opined that “the words ‘legislative business’ refer to substantive matters, rather than matters of procedural or administrative nature.”  See, Tenn. Op. Atty. Gen. 84-009 (January 10, 1984).

Each House is constitutionally incapable of performing legislative business on its own without the approval of the other body.  Therefore, according to the AG, any action which the House can independently perform on its own is not legislative business. 

Consequently, “they shall enter on no legislative business except that for which they were specifically called together” means that we cannot meet at the call of the Governor to fix the DUI law and then also take up Insure TN as some hoped to do.  And to be sure, no action of the Executive branch has any power to prevent the House from working on non-legislative business such as procedural or administrative matters of the House.  Expulsion from the House is a procedural matter on which the House may act independently – not legislative business.

The state Constitution gives clear authority to each House to discipline and expel members in Article II, Section 12;

“Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offense; and shall have all other powers necessary for a branch of the Legislature of a free state.”

Art III, Sec. 9 cannot be interpreted to render Art. II, Sec. 12 inoperable.

House Rule 82, Ethics Code for the House of Representatives, is lengthy so I will not print the entire rule – only relevant portions; 
  • The purpose of the rule is “to establish standards of conduct for the representatives, to authorize the House Ethics Committee to consider alleged violations of this code, and to authorize the House Ethics Committee to render advisory opinions to the House.” 
Note that Rule 82 does not require an Art. II, Sec. 12 disciplinary motion or an expulsion motion to be referred to (or screened by) the ethics committee.  Such motions are made on the Floor of the House as was done in 1866 and in 1980.   The only limitation on expulsion is found under Art. II, Section 12; the House or Senate, as applicable, must vote to expel a member, and 2/3 of the body must vote in favor of expulsion to expel the member.
  • The ethics “code is in addition to and separate from standards of conduct that may be required under state or federal law.”
Criminal offenses are judicial matters which should be investigated by, and prosecuted by, the local District Attorney etc.  
  • The ethics code also states that “no complaint by a member of the House of Representatives alleging sexual harassment shall be received or considered by the [ethics] committee.” 
The Legislature’s Workplace Harassment Policy is set up to investigate sexual harassment complaints filed by the offended party.   Although there were accounts in the press of a sexual nature, no one filed a complaint.  
  • The ethics committee has the “authority to receive and consider complaints, based upon personal or constructive knowledge, concerning alleged violations of [the] House Ethics Code.”
Although Durham’s behavior was unbecoming, and press accounts covered a number of substantial issues, no member of the House filed an ethics complaint against Durham to bring about an Ethics Committee investigation.

No House Rule prevents the Speaker of the House from taking action deemed necessary and appropriate for the good of the House such as naming a Special Ad Hoc committee, including a committee to consider matters that would fall under Article II. Sec 12.

Further, nothing prohibits a Special Ad Hoc Committee named by the Speaker from naming a third party to perform an investigation on behalf of the Committee.  In this case, the Ad Hoc Committee requested the Attorney General to assist the committee in investigating the conduct of Jeremy Durham.

The Committee’s request for the AG’s assistance is exactly the same procedure and investigative authority granted to the House Ethics Committee by Rule 82, Article IV, (c)(2) where it reads “[the Ethics] Committee may request the…Attorney General…to assist the committee in investigating any complaint received or initiated by the committee.”

Therefore, it is perfectly constitutional for the House to take up procedural business during a Special Session called by the Governor, and;

It is perfectly within the Speaker’s authority to name a Special Ad Hoc Committee, and;

It is perfectly appropriate for the Special Ad Hoc Committee to request the assistance of the Attorney General to perform an investigation, and;

It is perfectly permissible for the House to address the discipline or expulsion of a member from the floor of the House.

Please have confidence that the House followed historical precedent, constitutional authority, and the rules and authority of the House of Representatives. Please write back should you have any questions.

Thank you for your time, and blessings for your re-election.

Most sincerely,

Susan Lynn
State Representative 

State Representative, District 57 | State of Tennessee | 104 War Memorial Building | Nashville, TN 37243
615-741-7462 | rep.susan.lynn@capitol.tn.gov

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