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9 Tennessee Attorney General Reports and Opinions 1 (1979-1980)

handle is hein.sag/sagtn0171 and id is 1 raw text is: STATE OF TENNESSEE OFFICE OF THE ATTORNEY GENERAL NASHVILLE, TENNESSEE 37219 OPINION NO. I TO: State Senator DATE: July 31, 1979 BY: Chip Ames RE: State Property QUESTIONS i. Does § 12-253, which requires State Building Commission approval before certain leases can become effective, provide the State Building Commission must approve the cancel lation of any lease subject to said statute? 2. Would it be legally permissible to include a clause in future leases to the effect either the State Building Commission or the Commissioner of Finance and Administration may cancel same upon notice? OPINION I. § 12-253 does not empower the State Building Commission with the authority to cancel any leases entered into pursuant to said statute. 2. It is legally permissible to include such a clause enabling the Commissioner of Finance and Administration to cancel leases upon notice. ANALYSIS 1. § 12-253(c) provides that no state lease subject to said statute shall be valid unless the requirements of same be met. With specific reference to your question, § 12-253(b) requires any proposed lease, where the State is the lessee or lessor, which is for a term of five year (5) years or more, or which involves an annual consideration of more than twelve thousand dollars ($12,000.00) to be first approved by the State Building Comnission. From the words underlined in this particular provision, as well as others throughout the statute, it appears the intent of same is to insure, as a procedural safeguard, that certain proposed leases pass an additional approval process before same can be valid. This is borne out by your own presentation of this bill on the Senate floor as it came up for third and final reading. Your stated primary reason for this legislation was that it provided legislative input into these lease agreements, an area which hitherto was purely executive in function. Your expressed opinion was that leases involving substantial monies should bear the scrutiny of those who vote the funds to pay for same. Since many of these people are represented on the State Building Commission, you opined said body should logically review same The use of § 12-253 as a procedural safeguard is buttressed by many factors, not the least of which is the fact said statute only became effective in March of 1973, whereas the State has had the authority to execute lease agreements at least since 1943 with the enactment of § 12-106. The authority to make leases has not been changed by § 12-253; a new step in the approval process has simply been added. Naturally, should the State Building Commission disapprove any lease brought before it pursuant to § 12-253, the result would be an effective cancellation or veto. This is analogous to the professional service agreements authorized by § 12-450 and § 12-451. § 12-451 calls for various people to approve certain professional service agree- ments. While their approval is necessary to make the agreement valid, the actual contract is administered and controlled by the using agency, not the people whose approval is required by § 12-451. The same holds true with the provisions of recent appropriation acts which require State Building Commission approval of any contracts calling for the expenditure of capital outlay and major maintenance funds. See e*g., Section 1, Item 23, Chapter 931, Public Acts of 1978 and Section 1, Item 23, Chapter 435, Public Acts of 1979. This is in keeping with the announced State Building Commission goal of insuring the State of Tennessee receives the

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