January 26, 2010 Sheriff's Deputies Running for Public Office

Several years ago, a large number of Hamblen County deputies asked the Hamblen County Legislative Body to adopt a civil service act that would protect them from routine firings when a new sheriff takes office. Hamblen County did so. T.C.A. 8-8-401 et seq.

Now some of those deputies (such as Ernie Burzell and also David Kitts) are finding that the local civil service act may be a double-edged sword with the state attorney general opining (October 2009) that a deputy who is covered by civil service (such as Hamblen County deputies) must resign prior to running for sheriff. 

Here's my previous post which includes a link to the October 2009 opinion on the subject of deputies running for the office of sheriff.

Yesterday, another Tennessee Attorney General's Opinion (AGO) was released on this same subject (click here). Yesterday's opinion not only discusses a deputy (under civil service) who wants to run for sheriff but also a deputy (under civil service) who wants to run for county commission. The opinion states that "under certain circumstances" a deputy sheriff would have to resign in order to run for county commission. 

This new opinion also repeats that a deputy (under civil service) who wants to announce his candidacy for sheriff must resign or be in violation of T.C.A. 8-8-419. The opinion adds that in certain circumstances the federal Hatch Act may prohibit an employee of a state or local agency from being a candidate for elective office "unless said election is nonpartisan."

Locally, at least four individuals (Sheriff Esco Jarnagin and Hamblen County deputies Ernie Burzell, David Kitts, and Wayne Blevins) are impacted by this new AGO--and a fifth individual (Deputy Roy Rucker) may be impacted if he decides to announce his candidacy for Hamblen County Sheriff. 

Deputy Ernie Burzell announced his candidacy for Hamblen County Sheriff with Sheriff Esco Jarnagin  allowing Burzell to take administrative leave in lieu of resigning.  Deputy David Kitts announced his candidacy for Sheriff in Jefferson County but thus far has not had to take administrative leave or resign--apparently because the candidacy was in another county. It is my understanding that Deputy Wayne Blevins is running, or is planning to run, for constable. That would involve announcing his candidacy for elective office and then he, too, could be seen as being in violation of the civil service act.

An article in the local "news"paper last week mentioned that county attorney Rusty Cantwell was asking  State Rep. John Litz and State Sen. Steve Southerland "to request an attorney general's opinion."

With the October 2009 and January 2010 opinions already in place, a third opinion from the same office on deputies under civil service announcing their candidacy for office would likely be a waste of time.  No matter how many "opinions" are issued,  a deputy who wants to run for Sheriff and who disagrees with these opinions could file a lawsuit and ask a court to make the decision.

The Hamblen County Civil Service Board, relying on the October 2009 AGO, has recently filed a complaint against Sheriff Jarnagin, Deputy Kitts, and Deputy Blevins with the Hamblen County Ethics Committee. If the paper is correct, the ethics complaint wants all civil service employees treated alike and asserts that Kitts and Blevins should be allowed to take administrative leave to run for office like Burzell did. 

If you are going by the October 2009 and the newly-minted January 2010 opinion, it looks like treating  Burzell, Kitts, and Blevins alike--as the civil service board wants--may actually mean giving each the choice of resigning or being fired if they seek elective office.

According to the "news"paper, Bill Brittain, acting-chairman of the Ethics Committee, said that the Ethics Committee is "going to wait until we get the attorney general's opinion...that's what we've been advised to do." Presumably, the advice to do nothing and wait on yet another AG's opinion came from county attorney/Ethics Committee attorney Rusty Cantwell. And the purpose of getting (another) attorney general's opinion is????  The AG has already released two recent opinions that say a deputy who is under civil service must resign before announcing his candidacy for sheriff and, in some cases, before announcing his candidacy for other offices as well.

This is a proverbial can of worms. Don't be surprised if someone--whether from Hamblen County or from some other county--ends up taking this to court to get a real resolution to this rather getting a third or fourth opinion.