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.

April 12, 2010 Burzell Appeals Termination To Civil Service Board

As I thought would happen, Ernie Burzell filed a complaint/appeal with the Civil Service Board over his termination as a deputy under the Civil Service Act. See previous post here. Burzell wrote a letter to the Civil Service Board (Joel Seal, Scott Purkey, and Tim Horner) on March 23, 2010, stating that he wants to "appeal" his termination by Sheriff Esco Jarnagin. He asks the Board to advise Jarnagin not to fill any positions opened as a result of "Sheriff Jarnagin's interpretation of the law regarding deputies running for Sheriff."

I can understand that Burzell and the other deputies (Rucker and Kitts) are upset. This whole matter has been a mess. 

But for Burzell to say that he or the other deputies were fired as a result of "Sheriff Jarnagin's interpretation of the law" is ridiculous. 

It was the STATE attorney general's interpretation of the law--as found in three different opinions--that said deputies who are covered under civil service can not run for sheriff.  The STATE AG also noted that the federal Hatch Act may also prevent deputies from running for sheriff.

It was HAMBLEN COUNTY'S attorney Rusty Cantwell who, after the third STATE attorney general's opinion came out, told Jarnagin that he (Jarnagin) had no choice but to dismiss the deputies (Burzell, Kitts, and Rucker) who were running for sheriff.

Civil service gives deputies protection from political firings BUT, according to the STATE AG, there is a trade-off for this job protection. The STATE AG has opined that deputies, who are covered under civil service, are not allowed to run a political campaign for Sheriff.

Prior to the adoption of Civil Service in Hamblen County, deputies could be hired without any detailed testing standards and could be fired for just about any reason or for no real reason.  

Prior to teh adoption of Civil Service in Hamblen County, there was no civil service board with whom a grievance could be filed when an adverse job action occurred. 

Prior to the adoption of Civil Service in Hamblen County, deputies could and were required or "strongly encouraged" by Otto Purkey and other incumbent sheriffs to campaign for their boss.

Not every county in Tennessee has adopted the 1974 Civil Service Act.  Hamblen County deputies, however, pushed for civil service in Hamblen County. During his last term in office (2002-2006), Sheriff Otto Purkey joined the deputies in asking the County Commission to adopt Civil Service and the Commission subsequently voted Civil Service in.

Now the deputies are seeing the flip-side of civil service. The STATE AG has interpreted the civil service act as requiring that a deputy resign or be terminated prior to announcing a run for Sheriff. The COUNTY ATTORNEY, after the third AG Opinion was released, advised the current Sheriff to dismiss the deputies running for office if they refused to resign.

Burzell is within his right to appeal his termination. He is flat out wrong, however, when he refers in his appeal to the terminations being "a result of Sheriff Jarnagin's interpretation of the law."  He should have said he wants the civil service board to review actions taken "as a result of three STATE AG opinions and as a result of the advice of County Attorney Rusty Cantwell."

Read the STATE AG's interpretation of the civil service act and deputies running for office here, here, and here.  Read County Attorney Rusty Cantwell's advice to Jarnagin here.

March 24, 2010 Watch for a Grievance To Be Filed Against Esco Jarnagin; UPDATE: Read Attorney Cantwell's Letter to Jarnagin Advising Jarnagin To Dismiss Deputies

It is very possible that one or more of the deputies who were recently fired by Sheriff Jarnagin will file a grievance with the Civil Service Board over the terminations.

Jarnagin was recently force to terminate the deputies on the advice of County Attorney Rusty Cantwell in order to comply with the Civil Service Act that was adopted in Hamblen County during the term of former Sheriff Otto Purkey. 

To read Cantwell's letter and his advice to Jarnagin to "dismiss" the deputies, click or double-click on the letter (below) to enlarge it. Cantwell's letter was issued after a third attorney general's opinion (March 2010) again said that deputies in any county that has adopted the County Sheriff's Civil Service Act of 1974 can not run for sheriff. 

Click here for a prior post on this topic and links to the prior AG opinions (October 2009 and January 2010) on deputies covered under civil service running for office.

If a grievance is filed, will Scott Purkey--who has been serving illegally on the Civil Service Board for several months--hear the grievance? Click here. Scott is former Sheriff Otto Purkey's nephew. He is also the nephew of current County Mayor David Purkey, and the son of Junior Purkey.

March 19, 2010 Civil Service: Commissioner Bruce, Sheriff Jarnagin, and County Attorney Rusty Cantwell Tangle over Recent Firings

There were some real fireworks at the end of yesterday's county commission meeting.

Commissioner Ricky Bruce had sent a letter to commissioners expressing his concern and displeasure at the recent firing of three deputies who are running for office in Hamblen and Jefferson Counties in violation of the Civil Service Act. The three deputies are Ernie Burzell and Roy Rucker who are running for Sheriff in Hamblen County and David Kitts who is running for Sheriff in Jefferson County.

Bruce had lots of questions and comments about the law itself (he doesn't like it) and about the handling of the entire matter. Bruce wanted to blame the Sheriff for putting the three on unpaid leave and then telling them that they had to resign or be fired because of state law TCA 8-8-419.

Sheriff Jarnagin stated that the blame lies with the three-man Civil Service Board (Joel Seal, Tim Horner, and Scott Purkey). Jarnagin said that it was the Civil Service Board that granted leave to Burzell, Rucker, and Kitts, and the Sheriff then signed off on the leave. Jarnagin added that the Civil Service Board should be responsible for knowing the civil service act under which it operates and should not have granted leave. [UPDATE: Scott Purkey has been serving illegally on the Civil Service Board for many months. Click here and here.]

Cantwell tried to defend himself as he explained that he had been involved in many discussions about the law going back many months. Bruce began to realize that the civil service act as written and perhaps even the federal Hatch Act give job security to deputies but in return the deputies give up the right to run for partisan office. Bruce complained that the law makes no sense, is unfair, and he wants it changed.

Next, Bruce pushed for Jarnagin to agree not to fill the three deputy positions and to hold the jobs open until after the election if necessary. Jarnagin said that he could not do that. Bruce then asked if the county could at least continue to pay insurance for the men until some future date. County Mayor David Purkey spoke up and said that as County Mayor he is in charge of insurance and he could continue their insurance as he had done before for other individuals. 

Now I am sitting there thinking, just a minute, buster, you can't violate the terms of the insurance contract just because you are "in charge" of insurance.  County Attorney Cantwell said nothing in response to Mayor Purkey's assertion that he could take care of continuing to provide insurance for employees that had been terminated. Thankfully, Commissioner Baker spoke up and asked Cantwell if the county really could pay insurance for employees who had been terminated. Cantwell said that the insurance contract would determine who is a  full-time employee and who is eligible for county insurance. 

[Neither the Mayor nor anyone else can just decide to pick and choose and arbitrarily continue to pay insurance for people who are no longer employees.  The insurance contract does matter.  County Attorney Cantwell said nothing about Mayor Purkey's admission that he (Purkey) had continued county insurance for certain people in the past or Purkey's claim that he could continue insurance for the three deputies with a wave of the Mayoral hand.  Of course, terminated employees may have the option of continuing insurance coverage for a period of time under COBRA provisions.]

After all was said and done, Ricky Bruce was right about one thing--the situation was handled poorly.

Apparently, County Attorney Rusty Cantwell and the Civil Service Board and Sheriff Jarnagin and the deputies thought that they could get around the Civil Service Act if the deputies took a leave of absence to run for office despite two AG opinions (October 2009 and January 2010) that said when you announce for office you have violated the civil service act and must be terminated--and that added that the Federal Hatch Act may also prohibit the deputies from running for partisan office.

Then the more detailed third AG's opinion came out on March 11, 2010, saying that the Civil Service Act and the Federal Hatch Act may separately or together prohibit deputies from running for partisan elected office. The third AG's opinion specifically added that taking a leave of absence doesn't make it OK for deputies covered by civil service to run for office. It also mentioned that it didn't matter whether the deputy was running for office in his own or another county.

Rusty pointed out that the civil service board's agreement with the Sheriff to break the law by putting the men on leave is void. 

Cantwell advised Jarnagin in writing on March 16 that Jarnagin had to follow the law and had to terminate the men if they did not resign.

It was an interesting evening.

March 17, 2010 County Attorney Advises Sheriff Jarnagin: Deputies Covered under Civil Service Can Not Run for Office

In their online editions, the News-Sentinel (here) and the local "news"paper (here) reported late yesterday that Sheriff Esco Jarnagin informed three deputies running for office to resign or face termination.  The local "news"paper stated that Jarnagin took the action as a result of a recent Attorney General's Opinion and upon the advice of County Attorney Rusty Cantwell.

The News-Sentinel noted that the Federal Hatch Act may also apply and prohibit deputies from running for partisan office. The Federal Hatch Act can apply to local and state employees where federal funding is involved. Click here.  How the Federal Hatch Act prohibits local and state employees from running for partisan office is here.

I mentioned the recent Attorney General's Opinion last week (here) and reported on similar prior opinions going back to October 2009 here and here. All said the same thing. The state law, as it is written, says that those covered under the Sheriff's Civil Service Act of 1974 obtain a measure of job protection and other benefits but they also give up the right to run for office.

Two deputies (Ernie Burzell and Roy Rucker) were running for Sheriff in Hamblen County. One (David Kitts) was running for office in Jefferson County. Apparently all three refused to resign and were terminated. 

As I have mentioned before, Attorney General's Opinion have persuasive authority but only a court of law can declare precisely what the law is, either rendering a decision that, in effect, upholds the AG's opinion or rendering a decision that has the effect of finding that the opinion is incorrect or that the law itself is unconstitutional.

Where the Civil Service Act has been adopted, many Sheriffs across the state have been forced to fire deputies who did not resign in order to run for office. It is unfortunate that the county attorney did not provide advice on this matter back when the October 2009 attorney general's opinion came out saying deputies covered by the Civil Service Act can not run for sheriff.

March 11, 2010 Another Attorney General's Opinion on Deputies Running for Sheriff

Click here for yet another in the continuing series of Tennessee Attorney General's opinions on deputies covered under Civil Service running for sheriff.

Although the opinion was requested by Rep. Chad Faulkner, several of the questions very closely mirror many of the situations in the Hamblen County Sheriff's race. According to the state attorney general, several deputies running for sheriff should have been dismissed from the sheriff's department after they announced their candidacies rather than being allowed to run while on leave without pay.

1. AG: If a deputy is covered under the Sheriff's Civil Service Act, he can not run for sheriff.

2. AG: If a deputy sheriff is covered by the civil service act in his county of employment, he can not run for sheriff in another county--even in a non-partisan election--because announcing his candidacy would be an endorsement of a candidate.

3. AG: A deputy covered under the civil service act can not solicit money for a political campaign (apparently, even his own) under any circumstances. 

4. AG: A deputy who is covered under the civil service act and who is dismissed for violation of that act (e.g. for announcing his candidacy for a partisan race or for soliciting money for his campaign or that of others) has no cause of action for being fired or dismissed for violation of the statute.

Hamblen County Attorney Rusty Cantwell was going to ask for an AG's opinion at one time--presumably to ask these and/or similar questions. Click here. Too late now. The attorney general keeps saying the same thing over and over. The attorney general's opinion is clear.

But....an attorney general's opinion is just an "opinion."  The ball has been tossed back into Hamblen County's court, the clock is ticking, and pretty soon the buzzer goes off. 

Where does the State or Local Election Commission stand on this? What does Hamblen County Attorney/Hamblen County Ethics Officer Rusty Cantwell say?  

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. 

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.

September 19, 2009 Hamblen County Website To Get An Update (Finally!!)

I have publicly asked county commission several times to update the county website and to make it easier to access information about county government. Here and here.

Commissioner Nancy Phillips and I pushed for a county website from the moment we took office in 2002.  A website was established with limited information provided at the start and the addition of a few features later.  Even though I did not run again in 2006, I have continued to attend commission meetings and I have continued to prod commissioners to enhance the website.

Finally, there is a response to my voice and to the voices of others who have asked for more information and online services on the website.

Yes, it looks like a more informative county government website is coming. See the current Hamblen County Government website here.

The one county official who has already made the most with her "section" of the website is County Clerk Linda Wilder. She has scanned in county commission minutes and has provided some online services.

One feature that would enhance the usefulness of the clerk's section and of the entire county website would be a key-word search feature. I have proposed this and county attorney Rusty Cantwell has previously agreed that this would be helpful not only to the public but to him in researching prior actions of county commission.

With a key-word feature, a word or words (e.g. "county budget") is entered in a search box and then the site provides a list where that word appears in the website, such as in Planning Commission documents, county commission minutes, agendas, etc.  A key-word feature is common on many websites. See the Knox County government website here with its key-word or search feature near the top of the page.

The improved Hamblen County government website will be updated with current information instead of letting old and inaccurate  information remain on the website for months after changes occur. Links to state government and local legislators as well as U.S. Senators and Congressmen will be included. A community calendar of events will apparently be added--with information about non-governmental happenings such as Mountain Makins, plays, etc. The website will continue to have links to job opportunities with the county--but frankly these are few and far between and many are filled by officials or department heads without any posting at all.

The newspaper reports that beginning in October, the Hamblen County website will post committee agendas AFTER THE COMMITTEES HAVE MET.  Posting agendas after the meeting has already taken place is of zero use to the public or to interested citizens who might attend if they could see an agenda and decide if a topic of interest to them is to be discussed.  Posting an agenda after the meeting is about as helpful as locking the barn door after the cow has escaped.

I haven't received an answer to the obvious question about the committee agendas. Why won't the committee agendas be uploaded and posted (or scanned) on the website BEFORE the committee meetings? The agendas are prepared, printed, and provided to commissioners several days BEFORE the committee meetings. Why can't those agendas be uploaded and posted (or scanned) on the website at the same time? The City of Morristown posts agendas on its website before council meetings. Surely, the county can do the same.

Also missing in the planned update of the website is posting the minutes of committee meetings. The minutes of committee meetings are prepared just a few days after the committee meetings take place and are put in commissioners' packet several days before the full commission meeting. Why can't the committee minutes be uploaded and posted (or scanned) onto the website at the same time they are prepared, printed off, and provided to commissioners?

A government website should absolutely include committee agendas, committee minutes, as well as times, actual dates, and places of all government meetings. I would think that both a community calendar and full governmental information could be posted on the county government website. But IF for some reason there is not time or a willingness to do both, I hope the Mayor will choose to place county government information, including agendas and minutes, on the county government website first and add a community calendar at a later date.

A government website is a wonderful means of providing governmental information to a large segment of the public. Let's hope that Mayor Purkey and his assistant Amber Shelton decide to provide full and timely information about meetings, agendas, and minutes.  Agendas should be posted on the website before the meetings. Minutes should be posted after the meeting just as soon as they are prepared.  The final approved county budget should be posted within 30-60 days of its passage.  And a key-word feature should be added so that citizens and taxpayers are not searching for an "information needle" in a "website haystack."
 
Next would be making the information and packets that are provided to committees and commissioners and the press available online to the TAXPAYERS!  Now there's an idea.

September 5, 2009 County Commission Stops Unauthorized Car Allowances in Order to (Finally) Comply with State Law

At its August 20 meeting of the full commission, the Hamblen County Commission voted 12-1 to stop three of the four car allowances that have been paid for several years in violation of state law. [Commissioner Tommy Massey was absent.]

This was a total reversal of what the Finance Committee had recommended on August 10. See my post on the August 10 Finance Committee meeting here.

At the August 10 Finance Committee meeting, I had asked the committee to stop payment of unauthorized car allowances. The Committee refused to stop these unauthorized payments and, instead, voted to study the issue again in September. The payments were going to continue despite state law that does not allow Hamblen County to pay car allowances, despite an April 2009 state attorney general's opinion on county car allowances, and despite the county attorney's May 2009 opinion (which was just a review of the state attorney general's opinion noting that Hamblen County is not among those counties authorized to provide car allowances).

After years of paying unauthorized car allowances and with the prospect of these payments continuing for still more months, I spoke to the full commission during the public comments forum on August 20 and, as I had done on August 10, I again asked that these unauthorized car allowances stop now and that Hamblen County come into compliance with state law now. Why continue to violate state law and pay out thousands of taxpayer dollars on unauthorized car allowances?

Despite state law and my request that the commission comply with state law immediately, Finance Chairman Joe Spoone made a motion to postpone any decision and to "study" the car allowance situation in September. Thankfully, one commissioner was listening and had the courage to question what was going on and to stand up for the taxpayers.

Commissioner Dana Wampler noted that Hamblen County is out of compliance---as I had stated---and Wampler then amended Spoone's resolution to stop three of the car allowances now (Ely, Hopkins, Young) and to pay mileage to those individuals if they use their car on county business. The situation is still set for review in September, but unauthorized car allowances will stop.

During discussion of the amendment, Wampler turned to county attorney Rusty Cantwell and asked about the unauthorized car allowances and when the county should come into compliance. Rusty said that there are three car allowances (the fourth car allowance is that of the County Mayor but Rusty doesn't think that the Mayor's $600/month car allowance is really a car allowance). As far as when the county should come into compliance with state law, Rusty said that was "up to you (the commission)." That response from the county attorney was a bit of a surprise.

Thankfully, Commissioner Wampler stuck to his guns and decided that the county should come into compliance with state law right away. The motion to stop unauthorized car allowances passed 12-1. Guy Collins voted no. I'm not sure if Collins' "no" vote meant that he wanted to keep paying unauthorized car allowances or if he just didn't understand what was going on. Tommy Massey was absent.

I appreciate Commissioner Wampler for doing the right thing. I'm guessing that he took some flak for that after the meeting. Stancil Ford doesn't really like for the public to have any input. He doesn't like a lot of discussion by commissioners at the full commission meetings, and he doesn't like to have changes from the original script.

When you watch the tape of the meeting, Ford turns to County Mayor David Purkey and to County Attorney Rusty Cantwell. Ford is not really happy with the question and comments and amendment by Commissioner Wampler, but in the end he can't stop the amendment and he himself votes for the amendment. Why? Because the amendment brings Hamblen County into compliance with state law and saves taxpayer money, too. How could you oppose that?

The real question is, why did it take four months to get a vote on coming into compliance with state law on the floor at a county commission meeting? Many thanks to Commissioner Wampler for doing "the right thing." Commissioner Wampler showed that one commissioner can make a difference when he or she just does "the right thing" and puts it out for a vote.

Joe Powell tapes the meetings for the county and they are shown on Charter Ch 7 (goverment/education channel) at 9:00 PM on Tuesday? and Saturday nights. [I watch on Saturdays, and I think Tuesday is the other day that the tape is shown.] You can call the county mayor's office (586-1931) to find out what other day the tape is aired.

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.

March 7, 2009 After Lawsuit Is Filed, Ethics Committee Wants To Correct Its Violation of Tennessee Open Meetings Act

In a previous post, I reported that the Hamblen County Ethics Committee violated the Tennessee Open Meetings Act (TOMA) by not providing notice to the "public" of its December 15, 2008, "public" meeting.

Commissioner Joe Swann, who is chairman of the Ethics Committee, Commissioner Stancil Ford, a member of the Ethics Committee, and Rusty Cantwell, attorney for the Ethics Committee, were put on notice of this violation during the public comments portion of the January 22 meeting of the Hamblen County Commission.

Fortunately, the TOMA provides a very simple way to fix such a violation--- just "re-do" the meeting with adequate notice to the public and then re-consider and fully deliberate again on the public business in a true public meeting. On January 22, the Ethics Committee was requested to re-do its December 15 meeting with proper notice to the public.

Unfortunately, the Ethics Committee chose to deny the violation and ignored the request to correct the situation. With the Ethics Committee stonewalling and refusing to remedy its violation, the only way left to enforce the Open Meetings Act was for a citizen to file suit against the violators.

After waiting weeks and weeks for the Ethics Committee to do the easy thing, the right thing, the "ethical" thing---call another meeting with proper notice to the public---Gwen Holden filed a citizen's suit against the Ethics Committee and its five members on February 17, 2009. I represent Ms. Holden.

After being served with Ms. Holden's lawsuit, the Ethics Committee rather suddenly decided that a "re-do" meeting sounded pretty good after all. The Ethics Committee "re-do" meeting to correct its violation of the Open Meetings Act is set for Wednesday, March 11, at 4:00 pm in the West Wing Conference Room in the basement of the new portion of the Courthouse.

The March 11 agenda includes review of the disciplinary actions taken by Mayor David Purkey against county employees Paul King and Frank Parker who were indicted for felony theft (Parker and King) and felony misconduct (Parker) in May 2008.

Government at its best. The Ethics Committee violates the law. Refuses to admit that it did anything wrong. Ignores a simple request to fix the violation with a "re-do" meeting. Then, after its bluff is called and a lawsuit is filed, suddenly the Ethics Committee thinks that a "re-do" sounds great after all!

It is ironic that a violation such as this would involve the Ethics Committee.

It is unfortunate that the Ethics Committee, faced with an obvious violation of the Open Meetings Act, got its back up and refused to admit the violation and simply correct it. This could have been taken care of right away--at no-cost to the taxpayers--if the Ethics Committee had said 'oops, we're sorry and we're going to fix this right now with a proper meeting with adequate public notice.'

Now, the Ethics Committee and its members will ask the taxpayers of Hamblen County to pay the legal fees that the Ethics Committee has incurred for a lawsuit that they caused by their refusal to correct their Open Meetings violation at the start.

The good news, however, is that Ethics Chairman Joe Swann and the other members of the Ethics Committee have seen the light ("Sunshine") and are now aware that you really can't have a "public" meeting without letting the public know about it.

Hopefully, other local governmental bodies will also be careful to make sure that the public is informed about their meetings.

The Open Meetings and Open Records Acts are Tennessee's Sunshine Laws and help protect and preserve the public's right to know what the government is doing. Visit the website of the Tennessee Coalition for Open Government.

[3/8/09 Special thanks to Taxing Tennessee for mentioning and linking to this post! Click Taxing Tennessee to see the complete website.]

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.

January 27, 2008 Mayor Barile Begs the School Board To Get on the Tax Bandwagon

Morristown Mayor Sami Barile sent the above 2-page letter to Hamblen County School Board Chairman Janice Haun on December 28, 2007.

In her letter, Mayor Barile asks the School Board to please, please, please come out in favor of increasing the sales tax. And she wants the Board to state "publicly how it plans to spend the money" because she thinks that would give the referendum a better chance of passing. Barile is saddened that the Board has not taken a position on this issue.

According to Mayor Barile, the City "wants to support education" and is very concerned that if the School Board doesn't come out for the tax increase, then the School Board will have little or no credibility with the County Commission.

The Mayor indicates that she has been talking to county commissioners, and she quotes "several" of them saying, in effect, "If the School Board won't help itself by supporting the referendum, they'd better not dare to come to us asking for money for a capital program."

The School Board and Dr. Lynch responded to Mayor Barile's request, calling a special meeting on January 8 to give their stamp of approval to higher taxes for all Hamblen County citizens.

Although the School Board finally endorsed the tax increase, it ignored one part of Barile's request, refusing to state how it would spend the money. And how about the $5 million extra BEP dollars that the Hamblen County schools received last year? Does Barile know how that was spent?

Click on the images and you can read the entire letter.

If the City is so concerned about education, maybe the Mayor and City Council need to realize that they can appropriate or donate part or all of their portion of the sales tax to the schools any time that they want to.

And don't forget this interesting tidbit that gives insight into who really makes the decisions, "Over the past several months, a small committee made up of representatives of the City, the County, and the School System, along with the attorneys for each body, has met to discuss the matter. Representing the County were Mayor David Purkey and Commission Chair Stancil Ford. Representing the School System were Dr. Dale Lynch and Mr. Hugh Clement. City Administrator Jim Crumley and I represented the City." Did School Board Chairman Haun and other Board members not already know about this "small committee"?

If the three attorneys (Dick Jessee- city attorney, Rusty Cantwell -county attorney, and Scott Reams -school board attorney) attended even a few of those meetings, those were some mighty high-priced meetings.

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.

December 12, 2006 Ethics Policy in Hamblen County

The Hamblen County Mayor had the CTAS (County Technical Assistance Services) Model Ethics Policy on the agenda for County Commission Committee meetings yesterday.

My December 10th post provided information on the Model Policy and a link where the entire policy can be reviewed.

County Attorney Rusty Cantwell suggested that action on the policy be postponed until the January meetings to allow more time for review. The committee agreed to wait and give all commissioners more time to look at the policy instead of taking a vote yesterday.

The Model Policy is a lengthy document. There should be a great deal of discussion and a lot of questions from commissioners and others because the policy will have an impact on commissioners, other elected officials, county employees, and members of county boards and agencies.

State law mandates that a county policy be in place by June 30, 2007.

The adoption of a Hamblen County Ethics Policy could be one of the most important actions that the current county commission undertakes. Here's hoping that there will be lots of questions, answers to those questions, and open and frank discussion about any new ethics policy.

As I have mentioned before, there are numerous conflicts of interest in both city and county government. Because Tennessee's conflict of interest laws are so wide that you can drive a truck through them, the local conflicts may or may not rise to the level of "legal" conflicts.

Despite the weakness of conflict on interest laws, the average person who works for a living easily sees everyday conflicts of interest when he observes elected and appointed officials hiring and supervising their own relatives, voting on budgets and appropriations that affect a spouse or child, serving on inter-related boards and commissions, and collecting two or three checks from the county and county boards and agencies.

There is a great opportunity now for the Hamblen County Commission to rise above partisanship and self-interest and to set the ethics bar at the highest level in Hamblen County.

Hopefully, commissioners will seize this opportunity and adopt a stringent ethics policy with the highest standards.

Wouldn't it be great to see articles across the state noting that Hamblen County adopted the most demanding ethics policy of any county?

If there's any area where it is clearly important to be #1, it would be in the adoption of an ethics policy that exemplifies the highest in governmental integrity and that demands that elected officials and governmental employees avoid even the appearance of impropriety in their actions!

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!

August 31, 2005 County Mayor David Purkey "blows a gasket"

The biggest news is the news that hasn't been reported yet. Isn't that usually the case?

What local news has not been reported? The "answer" from County Mayor David Purkey as to why he and the Finance Director have not come to Hamblen County Commission Audit Committee meetings and have not at least sent written responses to questions that were submitted months ago about the 2004 audit.

It's hard to find any hint of co-operation and answers to financial questions anywhere in the letter. It is easy, however, to find explosive anger and pent-up hatred in his vitriolic and venomous response.

What, you might ask, has prompted yet another outburst from the County Mayor? Financial questions. Now just why would financial questions cause the county's "chief financial officer" to blow a gasket?

The Audit Committee submitted written follow-up questions to the state auditors months ago about findings in the 2004 audit. The state auditors answered most of the questions. For audit questions that they could not answer, they referred the committee to the County Mayor and Finance Director. When the questions were submitted to Mayor Purkey, the county's chief financial officer, he just ignored them. Finally, the Audit Committee voted to have Audit Chairman Osborne send a letter to Commissioner Herbert Harville, a member of the Audit Committee and Chair of the Finance Committee, asking him to communicate with Mayor Purkey and attempt to get some co-operation and answers.

Here is the Mayor's reply to Herbert Harville's request on behalf of the Audit Committee for co-operation and answers. The letter was dated August 9, 2005, and provided on August 26. Even though Mr. Purkey was present at the Aug. 26 meeting, it was Commissioner Harville who read the letter to the Committee and to the public. It's long, it's threatening, and it's full of personal attacks. Since there were no financial answers in the letter, I asked Herbert jokingly, "Does this mean we won't get answers to the shifting of money?" Herbert didn't answer. He didn't have to because the answer is very clear. It's obvious that County Mayor David Purkey has taken the position that so many others in office take as soon as questions are asked: "I don't have to answer anything." His response to 04 audit questions is apparently, "Don't ask, and I won't tell" / "Do ask, and I still won't tell."
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August 9, 2005

TO: Honorable Herbert Harville
Chair Finance Committee
FROM: David W. Purkey
Hamblen County Mayor
RE: Response to Edwin Osborne' s Letter of August 8, 2005
_____________________________________________________________________________________

Thank you for sharing Mr. Osborne's letter which was apparently passed out at an unscheduled Audit Committee meeting yesterday. As you know, Mr. Osborne failed to provide me with a copy which has become standard operating procedure for Linda Noe and her cronies.

Mr. Osborne has publicly stated on multiple occasions that he will be a candidate for Hamblen County Mayor in the 2006 election. On one particular occasion, he appeared before the County Board of Equalization in an attempt to have his property taxes reduced. As a sitting county commissioner, Mr. Osborne responded to the Board's chastisement of this action by threatening to run for County Mayor. I join with the voices of other county commissioners and elected officials who have recognized Mr. Osborne's weakness as the Audit Committee Chair in allowing the processes of his committee to be tainted by his political aspirations. I can provide the names of others with whom he has declared his candidacy.

At any rate, Mr. Osborne states in his letter that his committee is at an "impasse". I would agree. The impasse has resulted from the blatant attempts by Ms. Noe and her cronies to utilize the Audit Committee as a political tool outside the parameters of state law. The Audit Committee's statutory authority is to recommend the employment of an independent auditor to examine the county's books. The committee then receives the audit document after the independent auditors have completed their work. Mr. Osborne is looking for a full-time job and I am sensitive to that. Clearly, his fixation on running for County Mayor has severely damaged his ability to lead the committee. I fully appreciate that he does not know how to proceed in this context.

Mr. Osborne's statement that "State Auditors indicated that they did not know Hamblen County had an audit committee last year" is puzzling since the committee has existed for over 25 years. In fact, Mr. Osborne's late father was the long time distinguished chair of that committee.

Mr. Osborne infers that there has been a "failure to follow up on and correct previously identified internal control deficiencies". The County Mayor's Office, the Finance Department, and the Road Superintendent received five (5) findings (one involved implementing centralized purchasing which we did immediately and was no easy task with existing resources). As detailed in our audit responses, all deficiencies have been addressed. Again, Mr. Osborne is posturing politically as he attempts to blame my office with findings in other offices. He and Ms. Noe know very well that the County Mayor does not supervise the school system, trustee's office, county clerk and others, where another elected official is in charge by state law.

Mr. Osborne states that the County Mayor has refused "to address certain repeat findings in the FY 04 audit." All findings have been addressed as they pertain to my office. He sees a finding and immediately throws blame. I see a finding and seize the opportunity to improve. That is a major difference in us. I would suggest that he read the state audit document.

Mr. Osborne accuses me of "urging other departments and elected officials to avoid audit committee meetings or provide responses". This is an absolute misrepresentation of the facts and he knows it. We all attended the meeting that Mr. Osborne himself called to sit down with state auditors and discuss the findings and responses within the audit document. His comment is an insult to every county-wide public official who attended that meeting and who is individually elected to office by the people of this county. I do not tell the other elected officials what they can and cannot do. I am a coordinator, not a dictator, as he alleges.

Mr. Osborne refers to "[my] willful decision not to provide requested information [which] compromise[s] the effectiveness of the Audit Committee in its oversight role." This is another untrue statement by Mr. Osborne. The state auditors have verified and said publicly at the very meeting that Mr. Osborne has developed amnesia about, that my office has done so and has been a pleasure to work with. My responsibility is to provide information and answers to the independent state auditors, not to his political campaign committee.

Mr. Osborne concludes by threatening all elected officials with a statement referring to, "future activities of the audit committee [as it] considers even more serious matters". Once again, let me be clear about the law. My responsibility is to the independent state auditors, not to Mr. Osborne as just another Linda Noe crony. He and Ms. Noe have clearly directed the committee outside of state law in a very selfish manner.

These people and others in their group appear to be dedicated to destroying the good name of this county. They never offer any solutions with their threats and conspiracy theories.

Mr. Chairman, I would both challenge and caution them to be ready to back up their lies and misrepresentations with actual facts when the time comes.

I can assure them that this time is coming, maybe sooner than they think...

Thank you.

DWP/kr

Cc: All County Commissioners
All Elected Officials and Department Heads
County Attorney Rusty Cantwell
Councilman Claude Jinks

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That's the answer from the "chief financial officer" of the county to financial questions from the Audit Committee of the Hamblen County Commission.