insights (2007-10)

Commission Appointments Should Be Voided

I'm not as much of a stickler as most journalists that members of a governing body should never be allowed to discuss public business in private. It doesn't bother me personally, for example, if members of County Commission from a given district talk among themselves about the district's needs for schools, roads or other public funding. Certainly, many of them do, and by extension, it may seem natural to them when a vacancy on Commission occurs to discuss who's best qualified to fill it by appointment.

But the law is the law. And Tennessee's Open Meetings Act stipulates that no meetings or electronic communication involving two or more members of a public body "shall be used to decide or deliberate public business...."  

In the course of filling the commission vacancies created by the state Supreme Court's decisions upholding Knox County's term limits, there is no doubt that commissioners in certain districts reached understandings about prospective appointments privately prior to the Jan. 31 Commission meeting at which they were made. In the 5th District, for example, term-limited (but still serving) Commissioner John Griess called Commissioner Mike Hammond to say he intended to nominate former Commissioner Frank Leuthold to fill Griess' seat. Hammond agreed to yield the floor at the Jan. 31 meeting to let Griess make the Leuthold nomination. In at least one other district, I am certain that its two commissioners agreed in advance on whom the term-limited commissioner in that district would nominate to fill the vacancy. And I expect that similar agreements occurred in other districts.

For the most part, at its Jan. 31 meeting Commission ratified the nominations of commissioners from a given district with near unanimity. I have no problem with the rest of the members of that body showing deference to their colleagues from a given district as to who would represent it best. Frank Leuthold was a superb choice, bringing much needed budgetary experience to a body that was being stripped of it. And except for the ratification of term-limited Commissioner Diane Jordan's selection of her son, who has a history of drug dealing, I'm disposed to believe that the other relatively uncontested appointees are representative of their districts.

The problem is that at least some of those appointments were made in apparent violation of the law, and the Open Meetings Act further provides that, "Any action taken at a meeting in violation of this part shall be void and of no effect." In its lawsuit alleging violations, the News Sentinel is seeking nullification of all appointments to succeed term-limited officials made at the Jan. 31 meeting--including the sheriff, trustee, county clerk and register of deeds as well eight Commission seats. The News Sentinel 's attorney, Richard Hollow, contends that "if the courts find a violation by two or more members of a governing body, then any action taken at that meeting is void. Their conduct taints the meeting, and the act doesn't allow you to cherry pick." Knox County Law Director John Owings did not return calls seeking his opinion on this or other matters.

At its Feb. 26 meeting, Commission spurned a proposal by Commissioner Mark Harmon to settle the News Sentinel suit by agreeing to re-do all of the appointments without admitting any violation of the act. Commissioner Greg "Lumpy" Lambert ventured that, " I don't see how we have the legal authority to remove commissioners. This has got to go into litigation, and let the legal process work." But Owings disagreed, saying that, "In my opinion, this body would have the authority approve the settlement."

If the litigation proceeds, Hollow's depositions of commissioners promise to be painful and protracted. Along with the violations cited above, he can also be expected to probe what commissioners said to one another during lengthy recesses after deadlocks occurred on appointments to two seats. (For my own part, I got denials from commissioners who switched their votes to break the deadlocks that they had discussed the appointments with any fellow commissioners during recesses.)

The prospect of further instability in a county government that's already been roiled by an excess of same is not a pleasant one. Nonetheless, given the facts of the matter, Commission will be well advised to void the tainted appointments expeditiously rather than let the matter fester.

According to a state attorney general's opinion last week, such action would clear the way for a special election to fill the offices, as County Mayor Mike Ragsdale has proposed. Provision for such an election would require a special act of the state Legislature that, by all custom, would only be considered if County Commission requests it--which is another course of action that a Commission majority has rejected up to now.

Voiding appointments of the 12 affected offices begs the question of who will fill the vacancies until a special election could be held, preferably in conjunction with next fall's city elections as Ragsdale has proposed. In its January decision validating the Knox County Charter and its term limits, the state Supreme Court stipulated that term-limited officials "may continue as de facto officers until their successors are named in accordance with the law."

So if the Jan. 31 appointments were unlawful, it would appear that everyone from Sheriff Tim Hutchison to the eight term-limited commissioners could be reinstated, but that may require a court determination.

A special election is without doubt the best way to restore public confidence in a county government that has been shaken by a flawed appointment process. County Commission should stop balking and start following Ragsdale's lead in making provision for it. 

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