insights (2006-32)

Rx for Knox County Charter?

Dangers are mounting that the remedial course of action that County Mayor Mike Ragsdale has prescribed for restoring the validity of Knox County’s Charter could create a whole new set of problems.

To rectify the grounds on which Chancellor John Weaver invalidated the Charter, Ragsdale appointed a Charter Review Committee to propose amendments conforming it to Weaver’s predilections. These mainly consist of making provisions in the Charter for the offices of County Trustee, County Clerk, Property Assessor and Register of Deeds. Their omission, Weaver dubiously ruled, rendered the Charter “incomplete, invalid and ineffective”.

But the basis on which Ragsdale appointed the committee and the Aug. 15 deadline he set for completion of its work raise serious timing issues.

For one, the 1988 Charter provides for an appointment of a Charter Review Committee “on or before March 1, 1996, and on or before March 1 of each eight (8) years thereafter”. The county law department contends the word “before” means that such committees can be named more frequently. But other lawyers involved in this messy matter insist that the words, “each eight (8) years thereafter” preclude creation of a review committee until 2012. And at least one of them has privately stated his intention to challenge the validity of the committee’s work in court.

The Aug. 15 deadline that Ragsdale set for its completion fails to allow time for the committee to take into account what could well be a September decision by the state Supreme Court on an expedited appeal of Weaver’s ruling. The Supreme Court’s resolution of the matter could have a major bearing on what, if any, amendments to the Charter are warranted in relation to the court’s determinations. Any such amendments must be approved by referendum. And if the Supreme Court rules prior to Sept. 22, there would still be time to place conforming amendments on the ballot for the Nov. 7 general election. Or, if Weaver’s ruling is upheld, the prevalent view among lawyers involved in the proceeding is that there is no way to amend a Charter that has been ruled invalid, making a mockery of any ballot propositions.

A further problem with the committee’s deliberations to date is that the wording of the Charter amendments it’s considering is ill advised. These draft amendments provide for the “creation” of the officers whose omission from the present Charter was what Weaver seized upon to strike it down. But the word “creation” implies that these officers haven’t existed heretofore, when in fact they have. The trustee, clerk, assessor and register, along with the sheriff, are collectively known as “ constitutional officers” because they are mandated by the state Constitution as well as in state law. Each of them has been performing their state-prescribed duties since the Charter was adopted in 1988 just as they did before.

The worst consequence of the use of the word “creation” is its implication that as newly created officers they would not become subject to term limits until after serving two consecutive terms subsequent to the adoption of the amendments the committee is considering. While that may or may not be what their framers intended, the result could well be to exempt these officers, all of whom have already served two or more terms, from the two-term limit that voters overwhelmingly approved for “any elected office of Knox County” in 1994.

Term limits are, of course, what this entire imbroglio is really all about. The Charter’s validity only came into question after five county commissioners sued to contest it as a way of escaping application of its term-limits provision to them following the Supreme Court ruling in March that commissioners in Charter counties could indeed be term-limited.

Because of Weaver’s form over substance ruling, four of those commissioners, along with all the Constitutional officers, have now been elected to yet another term. And a Supreme Court decision that might well find them ineligible to serve can’t possibly come in time to prevent them from taking office on Sept. 1. (Oral arguments on Knox County’s appeal of Weaver’s ruling aren’t scheduled until Sept. 6, but a decision could come very soon thereafter.)

The stickiest question facing the Charter Review Committee is whether to leave its 1994 term-limits amendment in place or to recommend a change. Leaving it in place could subject all those affected by it to removal from office via a proceeding that only District Attorney General Randy Nichols is authorized to bring (though he is loath to do so). The only clear-cut way to avoid a messy set of removals and interim replacements by County Commission appointment is via a Charter amendment postponing the effective date of term limits until at least the next county election in 2010.

As the Charter Review Committee convenes for what’s due to be its final meeting today (Aug. 10), its 19 members appear of mixed mind on what course to follow. All 19, including nine county commissioners, profess to be supportive of term limits applicable to all elected officials as reflective of “the will of the people”. But at least the four commissioners on the panel who could be ousted can be expected to support a charter amendment that would let them serve another term, however ill begotten.

The prime architect of such an amendment on the committee is caterer David Duncan. He has crafted intricate provisions that would allow commissioners and Constitutional officers to serve out the terms to which they’ve been elected and then be precluded from serving for the next four years, after which they’d be eligible to run again.

The most outspoken opponent of any change in the charter’s present term limit provision is outgoing County Commissioner Larry Stephens, who opted to retire after having served two terms. The committee’s chairman, lawyer Bruce Anderson, says he is also, “leaning toward believing the best way to go is to leave it alone”.

For provisions like Duncan’s to take effect would mean convincing voters in the Nov. 7 election to rescind the measure they overwhelmingly approved in 1994 (assuming the Supreme Court validates the charter to allow for such a vote). While Duncan and others can warn that failure to make this change will result in chaos, the chance of selling a reprieve to a majority of the voters appears remote.

Making it all the more difficult is the fact Sheriff Tim Hutchison, Trustee Mike Lowe and the other Constitutional officers insist they aren’t subject to term limits no matter what the charter says. They all contend their qualifications are set by state law that can’t be infringed on by the county.

Assuming the Charter Review Committee gets rid of any word like “creation” in defining their positions, as Anderson now favors, the definition of their job being proposed for inclusion in the charter could go a long way toward undermining these office holders’ positions. Along with reciting their responsibilities, what’s proposed would make them subject to the charter as well as to state law and the Constitution. In his June 9 ruling that invalidated the charter, Weaver went on to opine that, “while recognizing that a county charter must provide for the functions of all the county officers set out in Article V11, Section 1 of the Tennessee Constitution, the office holders’ added argument that a county charter may not restructure their offices or provide for their terms… runs counter to Article V11, Section 1, paragraph 3 of the Tennessee Constitution as construed in Bailey [the case upholding term limits for county commissioners in charter counties]”.

In the last analysis, though, only Supreme Court directives, or at least directional signals, can extricate Knox County’s body politic from the morass in which it is now entangled. There’s room for optimism that such signals will be forthcoming in time for any rectifying amendments to the county charter that are needed to be placed on the Nov. 7 ballot. Hence, the Charter Review Committee should defer taking any final action until mid-September in hopes of being able to take them into account. In the meantime, Ragsdale would be well advised to reconstitute the committee under provisions of the charter that clearly allow for its amendment at any time. Otherwise, the same punticilious chancellor who declared the charter invalid in the first place could well invalidate the committee’s remedial work.