March 17, 2009 Sunshine Week and Open Meetings Act Lawsuits in Hamblen County: Then and Now

March 15-21 is Sunshine Week in Tennessee. Usually, the local newspaper carries a series of front-page articles during Sunshine Week about openness in government, noting the importance of Tennessee's Open Meetings and Open Records Acts in ensuring open and accountable government. [Update: Thanks to Michael Silence for steering readers to this post]

Newspapers have traditionally been major proponents of open government, and there are some newspapers today who still continue the proud tradition of the press as guardian and protector of the public's right to know when government meetings are taking place and right to access to public records.

In this area, the Knoxville News-Sentinel has continued the tradition of the press as guardian and protector of open government. To protect the public from backroom deals and secret meetings, the Sentinel filed an Open Meetings lawsuit in 2007 against the Knox County Commission. The lawsuit resulted in an important victory for open government not only for the News-Sentinel but also for the people of Knox County.

And one time many years ago, the local Citizen-Tribune took the lead in exposing and stopping violations of the Open Meetings Law by the Morristown Civil Service Board.

The Tribune, a part of Lakeway Publishers, filed an Open Meetings lawsuit against the Morristown Civil Service Board some 15+ years ago. The Tribune asked for an injunction against the Civil Service Board to prevent secret deliberations and future violations of the Act and the Tribune asked that costs be assessed against the Board.

The Tribune won that battle, but only because it was willing to file suit on behalf of the public and the press.

What happens when there are local violations today?

In December of 2008, the Hamblen County Ethics Committee violated the Open Meetings Act by not providing notice to the public of its December 15 meeting. [Yes, as many have people have mentioned to me, there is real irony in the Ethics Committee violating state law.]

On January 22, during the public comments portion of the meeting of the county commission, Ethics Chair Joe Swann, Ethics member Stancil Ford, Ethics attorney Rusty Cantwell, and the full commission were informed of the Open Meetings violation by the Ethics Committee and the Ethics Committee was asked to correct the violation.

A Tribune reporter was present. However, in the Tribune's coverage of the commission meeting, the alleged Open Meetings violation by the Ethics Committee was not mentioned nor were comments or responses from any Ethics Committee member reported.

With no concern, questions, or reporting by the press, the Ethics Committee just ignored and denied the violation. While I would hope that the Tribune is still as concerned about the Open Meetings Act as it was fifteen years ago when it filed its own Open Meetings lawsuit, that just doesn't appear to be the case today.

Stonewalling by the Ethics Committee left only one way to enforce the Open Meetings Act--a citizen lawsuit. The citizen lawsuit was filed on February 17, 2009, only after the Ethics Committee continued to refuse to admit and correct its violation.

After the lawsuit was filed, the Ethics Committee quit ignoring and denying its violation and held a re-do meeting on March 11.

At the Ethics Committee re-do meeting, Bill Brittain, a member of the Ethics Committee, recused himself from the vote regarding discipline of Frank Parker and Paul King after being questioned about a conflict of interest regarding Frank Parker.

The more things change, the more they stay the same.

Fifteen years ago, the Morristown Civil Service Board violated the Open Meetings Act but did nothing about its violation until forced to do so as a result of an Open Meetings lawsuit filed by the Tribune.

In December 2008, the Hamblen County Ethics Committee violated the Open Meetings Act but did nothing about its violation until forced to do so as a result of an Open Meetings lawsuit filed by a citizen.

Some helpful links on Open Government in Tennessee: Tennessee Coalition for Open Government. Tennessee Press Association.

February 10, 2009 Ethics Committee Violates the Sunshine Law--No Notice to the Public of its December 15 "Public" Meeting

Oops, they did it again--another county government meeting without notice to the public.

THEN: The Commission held a special meeting in May 2007 to appoint the Ethics Committee and did not provide public notice of the meeting. See my post here and the opinion of the county attorney that informing the press about a meeting meets the requirements of "adequate public notice"---even when the press doesn't mention the meeting to the public.

NOW: The Ethics Committee, which rarely meets, has held a special meeting (December 2008) without providing public notice of the meeting. What irony! The Ethics Committee is appointed in a meeting without notice to the public--- and then the Ethics Committee itself meets without notice to the public.

Tennessee's Open Meetings Act (TOMA) is one of our Sunshine Laws. The purpose of TOMA is to make sure that the public's business takes place in the "sunshine" with "adequate public notice" of any meetings.

Tennessee Code 8-44-103 requires Notice of public meetings. —

(a) Notice of Regular Meetings. Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting.

(b) Notice of Special Meetings. Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting.

(c) The notice requirements of this part are in addition to, and not in substitution of, any other notice required by law.

Notice of the special December 15 Ethics Committee meeting was provided to a limited number of people---Ethics Committee members, commissioners, the county attorney, and the press but these were the only people who were notified.

So there's not really a question of whether there was adequate notice to the public. There was NO notice to the public.

[And strangely, the notice that was provided to the press and to the Ethics Committee didn't even mention why there was a special meeting or what it was about.]

As it turned out from reports after the meeting, the Committee considered the "resign or be ousted" letter sent by Mayor David Purkey to then-Constable Paul King, discussed and got county attorney Rusty Cantwell's opinion on the actions taken by Purkey in regard to Paul King and Frank Parker, and then took a vote supporting the "resign or be ousted" letter.

The Parker-King saga at Cherokee Park is a lengthy one of theft, lies, pre-trial diversion, and plea deals, culminating in both keeping their county jobs but with demotions and/or transfers. Of course, it was their boss County Mayor David Purkey who made the decision to keep them on the county payroll and he just happened to be the #1 character reference for both men.

But I digress. Back to the Sunshine Law.

At the January 22 meeting of the full Commission, I spoke to the county attorney before the meeting to point out that there was no notice to the public of the December 15 Ethics meeting. The county attorney repeated his previous opinion that notifying the press is all the county must do. In other words, we tell the press and if the press doesn't pass the word along to the public, then too bad, so sad.

During the visitor's comments portion of the commission meeting, I spoke to the full commission about the apparent violation of the Open Meetings Act, pointing out that the law requires "adequate public notice" and that this is the second meeting that I know of where a limited number of people are notified, but there is NO notice to the public at all.

Actions taken at a meeting in violation of the Sunshine Law may be declared void, but there is a very easy way to correct the violation, and that's what I asked the Ethics Committee to do. Hold a new meeting--with notice to the public and with full deliberation and re-consideration of the actions taken. Problem solved.

After two weeks passed and the commission had not responded to my request for a re-do of the Ethics Committee meeting, I contacted Chairman Stancil Ford to see what, if anything, the county intended to do. Ford stated that he had talked with the county attorney and that the county attorney continues to maintain that notifying the press is all the law requires. Ford suggested that I call the chairman of the Ethics Committee Joe Swann, which I did, and discuss my concerns with Joe.

Joe Swann told me that he had also talked with the county attorney. Swann informed me that the county attorney maintains that there is no violation of the open meetings act and that notice to the press meets the requirements of the law. He was firm in stating that there would be no re-do of the meeting.

I shared with him that it is my opinion that at least two "public" meetings of county government have been held without any notification to the "public." While I fully agreed that there has been "adequate press notice," I believe that the law clearly and in plain words requires "adequate public notice."

In the two instances mentioned, no one has to spend much time bickering over whether "adequate" notice to the public was given, because there was NO public notice at all. Let the Sunshine in.

December 30, 2008 Parker and King Demoted but Keep County Jobs. King Resigns Constable Position Effective December 31

Hamblen County Constable Paul King has resigned as Constable with an effective date of December 31. His resignation letter (above left) is dated December 9 and is addressed To Whom It May Concern. The "December 9" resignation letter was not turned in until December 16.

King's resignation had first been requested by County Mayor David Purkey in a December 5th letter to King (above). When the County Mayor received no response from King, the Hamblen County Ethics Committee met on December 15 and backed up the request for King's resignation. Apparently, the next day (December 16), King turned in his "December 9" resignation letter to Wanda Neal, Administrator of Elections, and she faxed it to county attorney Rusty Cantwell.

King was manager of Cherokee Park when he and his boss (Cherokee Park Director Frank Parker) were indicted in May 2008 by a Hamblen County grand jury for theft over $500 for charging Albert Walker $750 to get Walker's car out of the Sheriff's impound lot when both knew that no money was due to remove the car. [Parker was also indicted for felony official misconduct].

King's boss and Co-Defendant Frank Parker requested and was granted pre-trial diversion on theft and official misconduct charges by District Attorney Berkeley Bell in July 2008. (click to view previous post)

Parker, who had previously resigned his county commission position, was stripped of his deputy sheriff status by Sheriff Esco Jarnagin. (click to view previous post)

King applied for diversion but was ineligible due to a prior offense. King pled guilty to a lesser-charge (theft under $500) in Hamblen County Criminal Court on November 21, 2008. (click to view previous post)

On December 5, County Mayor David Purkey sent a disciplinary letter to each man. (Click on images above to enlarge and read).

Frank Parker was demoted from Director of Cherokee Park to Maintenance Technician and was "suspended without pay for multiple three (3) day periods encompassing the month of February."

Paul King was demoted to Sanitation Worker, suspended without pay for multiple 3-day periods encompassing the month of January, and "transferred to an undetermined county department effective February 1, 2009." County Mayor Purkey also requested King's resignation as constable to avoid ouster proceedings.

On December 16, King finally turned in his resignation letter to Wanda Neal.

November 16, 2008 Constable/Cherokee Park Manager Paul King's Diversion Hearing on Theft Charges Postponed To Next Week (Part I)

Paul King, Hamblen County Constable and Cherokee Park Manager, will have to wait until next week before his request for pre-trial diversion (above) is presented to Judge John Dugger. [Click on each image to read. The 4-page document will be in correct sequence for most browsers]

King and his boss---Cherokee Park Director, former deputy Sheriff and former Hamblen County Commissioner Frank Parker---were indicted in May 2008 for felony theft over $500.

The pair--both of whom are county employees, both of whom had law enforcement connections at the time of the theft, and both of whom were elected officials at the time of the theft--took $750 from Albert Walker to get Walker's car out of the Hamblen County Sheriff's impound lot.

Both Parker and King knew that there was no charge at all to get Walker's car out of impound, but both admit that they did not let Walker know that his car could be retrieved for nothing. After taking the $750 from Walker, Parker and King were charged with theft by deception.

Parker was also charged with felony misconduct for using his position as a county commissioner to get the car out of the impound lot.

Parker resigned his position as a county commissioner in June 2008 and immediately applied for pre-trial diversion. District Attorney Berkeley Bell recommended diversion for Parker, and Parker's diversion was signed by Judge John Dugger in early July 2008.

Subsequently, Sheriff Esco Jarnagin stripped Parker of his deputy status.

Apparently, County Mayor David Purkey, the County Commission, and the County Ethics Committee aren't saying much of anything regarding Parker and Cherokee Park. It's not clear whether Parker has resumed the title of "Director" and is allowed to handle money again. It's also not clear whether Parker is again drawing approximately $38,000 in salary plus full benefits or whether he continued to draw his full salary all along. Parker is still listed as Cherokee Park Director on the Hamblen County government website.

King, Parker's Co-Defendant, applied for diversion in August 2008. His diversion was scheduled to be heard this past Friday, November 14. During Friday's 1:00 session of court, however, Judge Dugger announced that King's attorney was unable to attend the hearing and that the diversion would be presented next week. King apparently continues to be employed by the county as Manager of Cherokee Park.

In addition to King's request for pre-trial diversion (shown above), a page from King's initial application for diversion and one of King's letters of commendation--from current and long-time Hamblen County School Board member Roger Greene--can be seen here.

In a nutshell, pre-trial diversion means that there is no trial. The defendant tells his version of what happened, explains that he is sorry and that this was a one-time thing, and is typically required to make restitution. The District Attorney can approve the request or reject it for any number of reasons. If the diversion is granted, the defendant is allowed to go free with the charges wiped off completely if the Defendant is not charged with anything else during the brief probationary period.

Frank Parker's request for pre-trial diversion will be posted soon. It is a particularly interesting document in which Parker accepts "criminal responsibility" for his actions and then turns right around and blames the Victim for "pestering" Parker into committing theft. Parker's "he pestered me into it" sounds a lot like comedian Flip Wilson's old "the Devil made me do it" tag line from the 1970s.

More to come....

December 10, 2006 A New Local Ethics Policy

The General Assembly passed the "Comprehensive Governmental Ethics Reform Act of 2006" in February of 2006. T.C.A. § 8-17-101 et seq.

The Ethics Reform Act requires local governments to adopt ethical standards related to the acceptance of gifts and disclosure of conflicts of interest. It also directs CTAS (County Technical Assistance Services) to develop a Model Policy.

Counties must adopt an ethics policy by June 30, 2007.

The policy must address at least two things: (1) disclosure and/or limits on gifts and (2) disclosure of conflicts of interest.

The policy applies broadly to all officials and employees and members of all boards and commissions of a county.

The CTAS Model Policy can be adopted as is or with modifications. The entire Model Policy can be seen here.

Here are a just few abbreviated highlights.

Section 1: The definition of "County" is broad.

The definition of "officials and employees" who are covered by the policy includes elected and appointed county officials, county employees, and members of county boards, agencies, etc.

The Ethics Reform Act mandates disclosure of personal interests that impact or appear to impact the discretion of officials and employees.

A personal interest that must be disclosed is a financial interest of the official or employee or a financial interest of a spouse or child who lives in the same household with the official or employee.

Section 2. Conflicts of interest. A person whose duty it is to vote on county matters must publicly disclose any personal interest that they may have in a matter to be voted upon if that personal interest affects the person’s vote or if it would lead a reasonable person to believe it affects the person’s vote.

Section 3. Matters where a vote is not involved but which require the exercise of discretion. Officials and employees must publicly disclose any personal interest that affects or would lead a reasonable person to believe it affects the person’s exercise of discretion even when there is no vote.

Section 4. Prohibition from accepting gifts by employees and officials.

Section 5. Creation of a five-member County Ethics Committee to receive and investigate complaints of violations of the policy and to refer matters to the appropriate person or agency for further action, if appropriate.

**The Ethics Reform Act does not contain any provisions regarding a local Ethics Committee or enforcement of the ethical standards or specific penalties.

Although the state act does not require an Ethics Committee, the CTAS Model Policy does include creation of such a committee to receive complaints in section 5.

In Hamblen County, there is a commissioner who is a county employee, there are commissioners who serve on multiple boards and agencies, and there are commissioners who vote on budgets and appropriations that financially affect their spouse or other relative.

County Attorney Rusty Cantwell will be the key. If he decides that current commissioners do not have financial interests that create conflicts of interest, then the Model Policy might be adopted as is.

If, however, he decides that the wording of the Model Policy might affect certain current county commissioners due to conflicts and various personal financial interests, you might see county commission asking Mr. Cantwell to make changes that would remove commissioners' conflicts of interest by simply re-defining the term.

Add a few words, remove a few words.

Poof! No more conflicts of interest on county commission or anywhere else!