November 26, 2010 Final Judgment in Holden v. Swann: Hamblen County Ethics Committee and Its Members Violated the Tennessee Open Meetings Act

The Tennessee Open Meetings Act, like the Tennessee Public Records Act, is an extremely important law for those who truly support open and accountable government.

Ironically, the Hamblen County ETHICS Committee violated this law in December 2008 and failed to even attempt to correct its violation of the law until after a citizen, Gwen Holden, filed suit on February 17, 2009. I represented Ms. Holden in this matter (Holden v. Swann, et al)

The 3-page Final Judgment in Holden v. Swann was signed on October 1, 2010, finding that the Defendants (Hamblen County Ethics Committee, Joe Swann, Stancil Ford, Bill Brittain, James Harrison, and Jack Cartwright) violated the Tennessee Open Meetings Act.

The Judgment enjoins the Defendants from future violations of the Open Meetings Act and provides that the County pay all court costs ($282.50) in the matter and pay $1500 for attorney fees and discretionary costs incurred by Ms. Holden.

You can click on each page to enlarge, read, and print it out. 

Interestingly, the Hamblen County Ethics Committee was dissolved by the Hamblen County Commission on February 18, 2010, while Holden v. Swann was still pending and before any Judgment had become final in this case.  

When it dissolved the Ethics Committee, the Hamblen County Commission, in a divided vote, appointed the county's attorney, Frank "Rusty" Cantwell, as the "County Ethics Officer."  [Cantwell, acting as county attorney, represented the Ethics Committee and the individual defendants in Holden v. Swann, et al.]

All future Ethics Complaints against a county official or county employee will be referred to County Ethics Officer Cantwell.

Then County Ethics Officer Cantwell, who is also the county's attorney for county officials and employees, will decide what to do with any complaint against his client(s).  More on this set-up later.

February 19, 2010 Eight County Commissioners Vote To Abolish Ethics Committee and Make County Attorney Rusty Cantwell "Ethics Officer"

Not surprisingly, the Hamblen County Commission voted yesterday to abolish its 5-man Ethics Committee.  

Not surprisingly, Hamblen County now has an "Ethics Officer."

Not surprisingly, the new "Ethics Officer" is county attorney Rusty Cantwell.

Pushing hard to disband the Ethics Committee that was established in 2007 and give the title of "Ethics Officer" to Cantwell were County Mayor David Purkey and Commission Chair/one-time Ethics Committee member Stancil Ford.

How will this new set-up work? County Attorney Rusty Cantwell represents all county employees and county officials.

So an ethics complaint against a county official or county employee is supposed to be sent to that person's attorney for consideration and action?

Yes. The Commission has just created yet another conflict of interest. The county attorney charges the county $150/hour and now ethical complaints against his clients will be sent to him so he can be paid $150/hour to receive and read complaints (against his clients!); handle the complaint himself (conflict of interest); or assign it to some other attorney (without a conflict) that the county will have to pay.

I guess the first complaint that our new Ethics Officer will handle is the one filed by the Hamblen County Civil Service Board against Sheriff Esco Jarnagin. This complaint was originally filed with the old and now "officially" disbanded Ethics Committee.

[I say "officially" disbanded because the five members of the Ethics Committee who were appointed to one-year terms in 2007 were not legally appointed or reappointed when their terms expired in June 2008. No one was appointed in 2009 and no one had been appointed to date in 2010. The original Ethics Committee members from 2007 (Commissioner Stancil Ford, Commissioner Joe Swann, Trustee Bill Brittain, James Harrison -attorney and citizen member, and Jack Cartwright-citizen member) just kept serving and serving year after year as "holdovers" without legal appointment. It looks like the Ethics Committee that violated the Sunshine Law by having a meeting without notice to the public on December 15, 2008, was made up of five people who acted as Committee members despite the fact that their terms had expired 6 months previous.]

Will Cantwell recognize that he has a conflict of interest in trying to handle an ethical complaint against one of his government clients? Will he charge the county $150/hour as he decides to which attorney he will give this complaint? Or will Cantwell take off his County Attorney hat and put on his Ethics Officer hat and handle the complaint against Jarnagin himself and collect his fee?

Several commissioners are led around by Stancil Ford and David Purkey. Purkey and Ford want to keep everything close to the vest and in-house.  Ethics?   One person--County Attorney Rusty Cantwell--is going to make the ethical calls from here on out and that one person has a clear conflict of interest that is obvious in the very first complaint that he has to consider. 

March 12, 2009 Ethics Committee Meets To Correct Violation of Open Meetings Act

The Hamblen County Ethics Committee met yesterday at 4:00 PM.

This time around, notice to the public was provided.

Chairman Joe Swann stated that the re-do meeting was in response to a recent lawsuit "challenging the adequacy of the notice provided to the public of its December 15, 2008, meeting."

He didn't state that he was put on notice of the violation of Tennessee's Open Meetings Act on January 22, but simply ignored the violation and did nothing until AFTER the lawsuit was filed on February 17. More on the lawsuit here.

Ethics Chair Joe Swann noted that this corrective meeting was to "re-visit" the December meeting concerning the county's disciplinary actions involving county employees Paul King and Frank Parker.

Joe outlined the procedure for yesterday's meeting by saying that (1) he was going to read the minutes of the December 15 meeting into the record, (2) open the meeting for public comment on the disciplinary actions involving Frank Parker and Paul King, (3) take further comments, if any, from the Committee, and (4) then he "would ask for a motion that we approve, affirm, and ratify by its entirety the actions taken at the prior committee meeting."

The Ethics Committee is composed of Chair Joe Swann, Stancil Ford, Bill Brittain, James Harrison, and Jack Cartwright. Bill Brittain was not at the December 15 meeting. Bill was at yesterday's meeting but recused himself from voting after I pointed out a conflict of interest on his part.

During public comments, I presented information and documents concerning the Parker and King situations. I asked the Committee to not only consider the Victim Albert Walker this time around but to recognize that their recommendation in regard to Paul King and Frank Parker will set a standard for ethical conduct of employees and will have a far-reaching impact on future ethics concerns.

Gwen Holden stated her concern for honesty in county employees and mentioned that this was not King's first criminal violation.

Not surprisingly, the Committee then took a vote and unanimously approved, affirmed, and ratified the same actions it had taken in December.

Ethics?

In its very first vote of consequence, the "Ethics" Committee set a very low standard for county employees.

The Ethics Committee decided to recommend and approve the transfer of county employees who lie and steal to other taxpayer-funded county jobs--with a pay reduction in the process.

Should the Ethics Committee be faced with future ethics violation, its endorsement on March 11 of continued employment for those who lie and steal in the course of their county employment will be the standard against which all other ethics violations are measured.

Prior to the vote, I asked Trustee Bill Brittain to recuse himself from any discussion or vote because of his inclusion as reference #2 on Frank's initial diversion request. I suggested that Brittain's recusal would remove any appearance of impropriety or conflict of interest on his part.

After being asked, Brittain did recuse himself, stating that he agreed that it would be "proper" for him to step aside. Brittain then added that he had supplied "a letter."

Mayor David Purkey, who was listed as reference #1 on court documents filed by Frank and Paul, had earlier asked that the record reflect that "neither was I asked nor would I have provided a reference in a court of law for either of these employees."

Not exactly a ringing endorsement for Frank and Paul from their supervisor.

Purkey would not provide a "reference" for either employee? Purkey provided the ultimate reference for Frank and Paul in continuing to provide a taxpayer-funded job for each of them. Purkey's reference may not have been in a court of law, but it was the "reference" that Frank and Paul were most concerned with.

May 13, 2007 Hamblen County Ethics Committee Appointed But the Sun Wasn't Shining

There was a special called meeting of the Hamblen County Commission on Tuesday, May 8, but the public wasn't told or notified.

Officials and a few other individuals received e-mail notification about the meeting from the Hamblen County Mayor's Office around May 1.

[I just happened to hear about the meeting from a Hamblen County official a few days before the meeting was to take place. ]

There is a Sunshine Law in Tennessee. The Sunshine Law states that it is the public policy of the state that the business of the public must be conducted in public.

To make sure that public business is conducted in public, the Sunshine Law provides that there must be "adequate public notice" for regular meetings and for special called meetings.

Just prior to the start of the business portion of the May 8th meeting, I notified the entire commission that there had been only e-mail notification to a very limited number of individuals about this special meeting, and I expressed my concern over this apparent violation of the Sunshine Law.

Chairman Ford turned to Mayor Purkey, and the Mayor said something to the effect that they had complied with the notice requirements for public meetings.

When asked specifically whether an e-mail notification that only went to a very limited number of individuals in Hamblen County could be considered adequate notice to the 60,000 Hamblen countians who did NOT receive the e-mail or any public notice, Chairman Ford referred the question to County Attorney Rusty Cantwell.

Cantwell expressed no concern about the legality of public notice even when the only notice of the meeting was an e-mail that was sent to a very limited number of specific recipients.

While it may have been hoped or expected that the press would notify the public of this special meeting, that didn't occur. The Sunshine Law doesn't state that a hope or expectation that someone will provide notice of the meeting meets the actual notice requirement.

The Sunshine Law states that there must be "adequate public notice" for regular and special called meetings. T.C.A. 8-44-103.

How can you conduct public business in public if you don't tell the public that there is a public meeting and if you don't provide notice as to when and where the meeting will take place?

There wasn't any Sunshine at the May 8th meeting even though it was an especially important meeting--a special called meeting during which appointment of the Hamblen County Ethics Committee would take place. The only other item on the agenda was termites in the Courthouse.

Mayor David Purkey, as expected, appointed commissioners Stancil Ford and Joe Swann and Trustee Bill Brittain to the Ethics Committee. Joe Swann then jumped in and nominated Jack Cartwright and Jim Harrison for the "regular citizen" positions.

Right before the meeting, I talked with two commissioners and recommended Patricia Stephens and Steve Sublett for the Ethics Committee. Each was nominated and received three and four votes respectively. Both Ms. Stephens and Mr. Sublett attend commission meetings regularly, are thoughtful and conscientious individuals, and would have represented the citizens and taxpayers well.

Bonnie Oakberg was also nominated. She attends meetings regularly and would have served well. Bonnie had taken the initiative to submit her own list of possible Ethics Committee nominees to commissioners several weeks ago.

I know Mr. Cartwright and Mr. Harrison by name only. I don't know how many commission meetings they have attended in the past 4-5 years.

I trust that Mr. Cartwright and Mr. Harrison along with the other members of the Ethics Committee will serve honorably, recognizing that they have perhaps the most important jobs in Hamblen County. They are the gatekeepers of ethics in Hamblen County.

It is unfortunate and ironic, however, that the appointment of this new five-man Hamblen County Ethics Committee took place at a meeting of which the public meeting was not notified.

It is unfortunate, and that is putting it midly, that the County Mayor, the County Attorney, and Commission Chair Stancil Ford (who was appointed to the Ethics Committee) had zero concern about the lack of public notice for this meeting and zero concern about the apparent violation of the notice requirements of the Sunshine Law.

It is unfortunate, and that is putting it mildly, that the thirteen other commissioners, including Joe Swann (who was appointed to the Ethics Committee), had zero concern about the lack of public notice for this meeting and zero concern about the apparent violation of the notice requirements of the Sunshine Law in Tennessee.