August 17, 2011 MUS Appointment (VIDEO): CPA Glenn Thompson Voted Down by City Council

George and Judy McGuffin showed up at yesterday's council meeting with the McGuffin flash mob  (employees, friends, and business associates).  The flash mob appeared to ensure that certain councilmen (Jinks and Bivens) voted against CPA Glenn Thompson's appointment to the Morristown Utility System (MUS) Board of Commissioners to replace George McGuffin.

The McGuffins want to prevent anyone--other than George McGuffin--from being appointed to the MUS Board. Yesterday, they were successful---for the second time.

Yessterday, Mayor Thomas renewed his nomination of Glenn Thompson to the MUS Board.  Councilman Bob Garrett, a former employee of MUS, made a motion to reject Thompson. Voting To Reject Thompson: LeBel, sidekick Garrett, Senter, Jinks, and Bivens.   Voting For Thompson: Brooks and Thomas.

The "only-George" group, led by LeBel, sidekick Garrett, and Kay Senter, and joined by recruits Jinks and Bivens is bent on preventing the appointment of anyone other than George McGuffin to the MUS Board. 

Now, some of the members of the "only George" group are toying with the idea of changing the City's Private Act on MUS. They want to alter the current process of Mayor's nomination (from a list submitted to him by MUS) and council's approval or disapproval.

Why does this group suddenly think that the current process of Mayor's nomination/council's approval needs to be changed?  Because they think that the only acceptable nominee that has been or will ever be sent to Mayor Thomas by MUS is George McGuffin and they are ticked off that Mayor Thomas has chosen other individuals.

Back in July, the Mayor nominated Mike Minnich who was on the MUS list.  He fell one vote short of election when Bivens abstained. Click here for that vote.

On August 2, the Mayor nominated Glenn Thompson, a local CPA, who was on the MUS list.  No vote was taken on Thompson on August 2. Click here.  Yesterday, Thompson came up for a vote and was voted down.

These five councilmembers apparently think that men such as Mike Minnich and Glenn Thompson are not good enough to serve on the MUS Board.  No one is good enough for these five except George McGuffin. The MUS Board must submit another list of three names to the Mayor within 14 days.

Some people have jokingly said that the next list of three will be George McGuffin, Frank McGuffin, and Patrick McGuffin.

[George McGuffin has already served on MUS for 30+ years. The five councilmembers apparently think McGuffin should have a lifetime appointment ---five years at a time].

It really looks like Warren Buffett or Bill Gates would be rejected by these five if the right calls were made by the right people--and the McGuffin flash mob showed up.

Sadly, Mr. McGuffin won't step aside graciously and acknowledge the great honor of having been allowed to serve for 30+ years on the Morristown Utility System Board.

Instead, McGuffin continues to pressure councilmembers and has his money/power friends inundate councilmembers with calls and appearances at council meetings as he desperately tries to get another 5-year appointment to keep anyone else from taking the "McGuffin" seat.

Money and power have a lot of influence. Money and power can change votes.

Very few people have the integrity and strength to withstand social, economic, and political pressure and  remain true to their core beliefs when it is so comfortable--and often very rewarding--to go along with the money and power group.

August 17, 2011 LeBel, Garrett, Senter, and Bivens Pass Resolution To Stop Use of City Staff and City Resources for Department Evaluations by Mayor Thomas's Top Down Committee

Prior to yesterday's city council meeting, I posted the resolution that some councilmembers had requested in an attempt to prevent Mayor Danny Thomas's top down committee from using any city resources or staff time to evaluate city departments. Click here.

At yesterday's 5:00 meeting, Councilman LeBel took ownership of the resolution and Councilwoman Kay Senter  voiced her firm support.  The resolution passed 4-3 (LeBel, sidekick Garrett, Senter and Bivens: YES. Thomas, Brooks, and Jinks: NO)

When asked by Councilman Brooks if there were any problems with this type of restrictive resolution aimed at the Mayor, City Attorney Dick Jessee replied that the resolution was on a "fine line," but that it probably could withstand a legal challenge as drafted.

Before the vote was taken, Mayor Thomas stated that the top-down committee was inactive.

L-R: Gene Brooks, Bob Garrett, Claude Jinks, Mayor Danny Thomas, Chris Bivens, Paul LeBel, Kay Senter

August 16, 2011 Unnamed Councilmembers Try To Limit Mayor's Committee

                             

Some City Councilmembers are sponsoring the resolution at left in an attempt to curtail Mayor Thomas's Committee that was formed to perform a top-down evaluation of city departments, looking for efficiencies and cost savings.

Click on the image to enlarge and read.

These councilmembers want to put a leash on Mayor Thomas and his plans to send the City, which has been plagued by years of fiscal mismanagement, on a different path.

The resolution states in part that "...City resources, including staff time, shall not be expended in furtherance of the Mayor's Committee in performing a top down evaluation of the City's departments, pending further official action of the City Council."

If they get away with this, next from this unnamed group will be a resolution stating that Councilmember Gene Brooks can not ask for documents and can not ask questions in council meetings. 

NOTE: While I support Mayor Thomas's attempt to review and evaluate the city departments, I think that the Committee is likely subject to the open meetings act, and I have told him this. And even if one could argue that the committee is not subject to the open meetings act, it is still wise to announce and open the committee meetings to the public that foots the bills.

August 12, 2011 State Attorney General (TN) on Traffic Camera Changes

Tennessee State Attorney General Robert Cooper has issued an opinion on the new state legislation regarding traffic enforcement cameras and the effect of the legislation on contracts between cities and red light camera companies.

Click here for Morristown's rushed renewal of its contract with RedFlex on June 7 in an attempt to beat the July 1 effective date of the new laws.

Click here for a brief discussion by Legislative Reporter Tom Humphrey.

Click here for the full opinion.

Click here for Sen. Stacey Campfield's blog with a link to an article about Oak Ridge and red light cameras and safety.

Click here for recent action by Los Angeles removing red light cameras due to problems in collecting on the citations.

August 4, 2011 "News"paper Puts Massey's Resignation Online 8 Hours After Blog Post

Yesterday morning, I mentioned Tommy Massey's resignation from Hamblen County Commission, 14th district. Click here. Massey had resigned several days before that, but the paper wasn't reporting it.

A little over 8 hours after my post went up, the Trib put out a short report in its online edition! Click here and you might catch the Trib's 5:39 PM article before they disable the link.

And today, you can look for this days old local "news" in the "news" section of the print edition.

Oddity: While the "news"paper wasn't able to run a "news" article about the resignation yesterday, it was able to run a paid public notice from the County about the resignation in the Classified section.

August 3, 2011 Commissioner Tommy Massey Resigns (14th District)

Commissioner Tommy Massey has resigned from the Hamblen County Commission. Massey represented the 14th district (Manley School voting precinct).

Massey's resignation letter was turned in several days ago but hasn't been mentioned publicly---probably so certain commissioners could get the replacement vote lined up before news of the vacancy was released by the "news"paper.

[I was elected as 14th district commissioner in 2002 and served until 2006 when I chose not to run for re-election. Click here. Massey ran unopposed in 2006 and was re-elected in a close race against Larry Carter in 2010.]

August 3, 2011 Mayor Nominates Glenn Thompson for Morristown Utility Commission Seat: Council Takes No Action

At yesterday's city council meeting, Mayor Danny Thomas submitted his nomination of Glenn Thompson to the Morristown Utility Commission Board to the City Council.

Thompson is a local CPA with the firm of Craine, Thompson & Jones.

Thomas asked for a motion to approve the nomination. There was none.

Thomas asked for a motion to disapprove the nomination. There was none.

At the previous meeting of council on July 19, Thomas had nominated Mike Minnich for this same position. While no motion was made, a vote on Minnich was taken and resulted in 3 FOR (Brooks, Jinks, and Thomas); 3 AGAINST (Garrett, LeBel, Senter); and 1 ABSTENTION (Bivens). Click here for the video of the vote.

The nomination by the Mayor is for the seat currently held by George McGuffin in what has turned out to be something akin to a lifetime appointment. McGuffin has been on the Board for over 30 years.

Just prior to the meeting, Attorney Ron Perkins, standing in for City Attorney Dick Jessee, provided the Council with a summary of the procedures for filling the position as outlined in the Private Act that established the Morristown Utility Commission. [Dick Jessee is the brother-in-law of George McGuffin.]

The important parts of the summary at this point:

A) The Mayor selects his nominee for the Morristown Utility Commission (MUC) from a list of three names provided to him by MUC. A majority vote of Council is required to elect the Mayor's nominee. Should Council fail to approve or disapprove a nominee within 30 days following notice to Council of the Mayor's nomination, the nominee is deemed to have been elected.

B) If a nominee is disapproved by Council or fails to receive a vote of approval by a majority of Council, the nomination procedure is repeated, except the Commission has 14 days from notice of the disapproval to submit the names of three more nominees--which list may include the two not previously selected by the Mayor.

There were numerous discussions taking place after the meeting regarding the effect of the lack of a vote on Thompson's nomination.

[Former Councilmember Frank McGuffin, son of George McGuffin, came to yesterday's meeting. Frank was also at the last meeting along with his father George and McGuffin supporters.]

You can bet there will again be visits and phone calls to the Mayor and councilmembers during the next two weeks--just like there were in the lead-up to the meeting on the Minnich appointment and in the lead-up to yesterday's meeting on the Thompson appointment.

This time the situation is clearer. 

If the Council continues to take no action to approve or disapprove Thompson, he will be deemed elected after 30 days. If Garrett, LeBel, and Senter want to continue to keep anyone else from ever taking the "McGuffin" seat, then they will have to take timely action to get a vote that gets Thompson out of the picture.

In one of the post-meeting discussions with other councilmembers and Attorney Ron Perkins, Kay Senter said she hoped there would be a consensus by the time of the next vote since, in her opinion, no one would want to take a position by "default," i.e. without a vote.

The Mayor has made the nomination. The election by "default" that Kay spoke of only comes about if Council fails to vote the nominee up or down within 30 days.

The ball is in the Council's court, but there are plenty of powerful coaches out there.

July 24, 2011 Joke--From Sen. Stacey Campfield's blog

Sen. Stacey Campfield of Knoxville, formerly Rep. Stacey Campfield,  has spoken at local anti-illegal immigration events in Morristown.

He has a blog, and this week he had a really good post/joke on government bidding. For your entertainment, click here:

http://lastcar.blogspot.com/2011/07/joke-of-week-building-fence.html

His serious posts make for interesting reading, too!

July 20, 2011 Council Meeting Starting Time Changed to 5:00 PM!!

There was some especially good news at yesterday's meeting of the Morristown City Council. Meetings in the future will take place at 5:00 PM instead of 4:00 PM.

The later starting time is a plus for citizens who are still at work at 4:00 PM.  The vote to change the time was 5-2 with Gene Brooks, Bob Garrett, Chris Bivens, Paul LeBel, and Kay Senter voting YES and Claude Jinks and Mayor Danny Thomas voting NO.  [Mayor Thomas voted YES on this measure two weeks ago, but voted NO today on second reading.]

The 5:00 starting time was proposed by Gene Brooks in 2009 but failed when only Brooks and Kay Senter voted YES. With three new members on the council after the May 2011 election, the vote was very different this time.

Oddity: Bob Garrett voted NO on changing the meeting time back in 2009, but voted YES in 2011. Click here.

July 19, 2011 Council Rejects Mayor's Appointment of Mike Minnich to the MUS Board of Commissioners

A routine appointment to fill a vacancy on the Morristown Utility System Board of Commissioners?  Nope. Bizarre? Absolutely!

Click on the video above to see the City Council vote on Mayor Danny Thomas's appointment of Mike Minnich to the MUS Board of Commissioners. [The appointment begins at 00:25.]

Bob Garrett decides he wants to talk about George McGuffin before he votes. Mayor Thomas points out that this is a mayoral appointment submitted for Council's approval or disapproval and calls for the vote. 

When the vote is taken on the Minnich appointment, it is YES: Gene Brooks, Claude Jinks, and Danny Thomas. NO: Bob Garrett, Paul LeBel, and Kay Senter. ABSTAIN: Chris Bivens.  With the Bivens abstention, Minnich didn't receive the required four council votes.  

Bob then wants to talk again about George McGuffin. Thomas states that Garrett is out of order, gavels Garrett down, and threatens to have him removed. Paul LeBel, Garrett's sidekick, steps in to take up for Bob.

According to City attorney Dick Jessee, who is George McGuffin's brother-in-law, MUS must submit another list of three names from which Mayor Thomas will again select a nominee and put that name out for an up or down vote. [The new list of 3 nominees may include the two not already voted on]

Bizarre! Watch the video again.

July 10, 2011 Morristown City Council Votes on Moving Meeting Times from 4 PM to 5 PM

There was an interesting and encouraging twist at the end of last week's City Council meeting.

Right before adjournment, Councilmember Paul LeBel moved to add an item to the agenda to move the council meeting time from 4 PM to 5 PM.

LeBel's motion to add this item to the agenda passed 5-0 (YES: Garrett, Bivens, LeBel, Senter, and Thomas; ABSENT: Gene Brooks, who was sick; and Claude Jinks, who had been hospitalized for heart problems.)

After getting the item on the agenda, LeBel then made his actual motion to change the council meeting time from 4 PM to 5 PM on first reading and to hold a public hearing and second reading on July 19, 2011.  Bob Garrett seconded the motion.  After a brief discussion, the motion passed 5-0.

[SIDENOTE: Bob Garrett voted against this same time change in November 2009 when it was brought to the floor by motion of Gene Brooks and second by Kay Senter.] 

This is a positive move by the Mayor and councilmembers to have meetings at a time when more people can, and hopefully will, attend.

July 4, 2011 Independence Day

The Declaration of Independence was adopted on July 4, 1776. 

Hostilities between the British and the American colonists had already begun over a year before when the "shot heard round the world" was fired at the beginning of the battles of Lexington and Concord on April 19, 1775.

Paul Revere's famous "midnight ride" to warn his fellow patriots that the British were coming is commemorated in the following poem.

The Midnight Ride of Paul Revere
Henry Wadsworth Longfellow (1807-1882)

Listen my children and you shall hear
Of the midnight ride of Paul Revere,
On the eighteenth of April, in Seventy-five;
Hardly a man is now alive
Who remembers that famous day and year.

He said to his friend, "If the British march
By land or sea from the town to-night,
Hang a lantern aloft in the belfry arch
Of the North Church tower as a signal light,--

One if by land, and two if by sea;
And I on the opposite shore will be,
Ready to ride and spread the alarm
Through every Middlesex village and farm,
For the country folk to be up and to arm."

Then he said "Good-night!" and with muffled oar
Silently rowed to the Charlestown shore,
Just as the moon rose over the bay,
Where swinging wide at her moorings lay

The Somerset, British man-of-war;
A phantom ship, with each mast and spar
Across the moon like a prison bar,
And a huge black hulk, that was magnified
By its own reflection in the tide.

Meanwhile, his friend through alley and street
Wanders and watches, with eager ears,
Till in the silence around him he hears
The muster of men at the barrack door,
The sound of arms, and the tramp of feet,

And the measured tread of the grenadiers,
Marching down to their boats on the shore.
Then he climbed the tower of the Old North Church,
By the wooden stairs, with stealthy tread,
To the belfry chamber overhead,

And startled the pigeons from their perch
On the sombre rafters, that round him made
Masses and moving shapes of shade,--
By the trembling ladder, steep and tall,
To the highest window in the wall,

Where he paused to listen and look down
A moment on the roofs of the town
And the moonlight flowing over all.
Beneath, in the churchyard, lay the dead,

In their night encampment on the hill,
Wrapped in silence so deep and still
That he could hear, like a sentinel's tread,
The watchful night-wind, as it went
Creeping along from tent to tent,

And seeming to whisper, "All is well!"
A moment only he feels the spell
Of the place and the hour, and the secret dread
Of the lonely belfry and the dead;
For suddenly all his thoughts are bent

On a shadowy something far away,
Where the river widens to meet the bay,--
A line of black that bends and floats
On the rising tide like a bridge of boats.

Meanwhile, impatient to mount and ride,
Booted and spurred, with a heavy stride
On the opposite shore walked Paul Revere.
Now he patted his horse's side,
Now he gazed at the landscape far and near,

Then, impetuous, stamped the earth,
And turned and tightened his saddle girth;
But mostly he watched with eager search
The belfry tower of the Old North Church,
As it rose above the graves on the hill,
Lonely and spectral and sombre and still.

And lo! as he looks, on the belfry's height
A glimmer, and then a gleam of light!
He springs to the saddle, the bridle he turns,
But lingers and gazes, till full on his sight
A second lamp in the belfry burns.

Scurry of hoofs in a village street,
A shape in the moonlight, a bulk in the dark,
And beneath, from the pebbles, in passing, a spark
Struck out by a steed flying fearless and fleet;

That was all! And yet, through the gloom and the light,
The fate of a nation was riding that night;
And the spark struck out by that steed, in his flight,
Kindled the land into flame with its heat.
He has left the village and mounted the steep,

And beneath him, tranquil and broad and deep,
Is the Mystic, meeting the ocean tides;
And under the alders that skirt its edge,
Now soft on the sand, now loud on the ledge,
Is heard the tramp of his steed as he rides.

It was twelve by the village clock
When he crossed the bridge into Medford town.
He heard the crowing of the cock,
And the barking of the farmer's dog,
And felt the damp of the river fog,

That rises after the sun goes down.
It was one by the village clock,
When he galloped into Lexington.
He saw the gilded weathercock
Swim in the moonlight as he passed,

And the meeting-house windows, black and bare,
Gaze at him with a spectral glare,
As if they already stood aghast
At the bloody work they would look upon.
It was two by the village clock,

When he came to the bridge in Concord town.
He heard the bleating of the flock,
And the twitter of birds among the trees,
And felt the breath of the morning breeze

Blowing over the meadow brown.
And one was safe and asleep in his bed
Who at the bridge would be first to fall,
Who that day would be lying dead,

Pierced by a British musket ball.
You know the rest. In the books you have read
How the British Regulars fired and fled,---
How the farmers gave them ball for ball,

From behind each fence and farmyard wall,
Chasing the redcoats down the lane,
Then crossing the fields to emerge again
Under the trees at the turn of the road,

And only pausing to fire and load.
So through the night rode Paul Revere;=
And so through the night went his cry of alarm
To every Middlesex village and farm,---

A cry of defiance, and not of fear,
A voice in the darkness, a knock at the door,
And a word that shall echo for evermore!
For, borne on the night-wind of the Past,

Through all our history, to the last,
In the hour of darkness and peril and need,
The people will waken and listen to hear
The hurrying hoof-beats of that steed,
And the midnight message of Paul Revere.

June 8, 2011 Morristown Extends Red Light Camera Contract

The red light camera contract with RedFlex was extended yesterday in a 5-2 vote. Councilmembers Brooks and Bivens voted NO.  Bob Garrett, Claude Jinks, Paul LeBel, Kay Senter, and Mayor Danny Thomas voted YES.

The contract was approved prior to the public comment portion of the meeting and without any prior notice in the paper of the upcoming vote. 

Councilmembers themselves only became aware of the proposed contract extension late last week when they received the agenda and information packets.

The contract apparently gives the City more of the money that is collected, moves the WalMart light to 25E at Cherokee Park, and allows the City to add more lights in the future. 

The City voted on the renewal yesterday with the stated purpose of avoiding the implementation of the new state law (July 1, 2011) which, among other things, requires traffic studies prior to putting up new lights. 

In a cash-strapped city that has been dubbed guilty of self-inflicted financial "malfeasance" by a federal judge, the vote was not surprising.

June 6, 2011 Administrator Tony Cox Surprises Council and Puts Red Light Camera Contract on Tomorrow's Agenda

The City of Morristown's current red light camera contract with RedFlex ends in August 2011.

Without holding a work session on the issue or giving the council at least 10 days notice, City Administrator Tony Cox has put changes and extension of the RedFlex contract on the Council's agenda for a vote tomorrow. 

[If the City is looking for more money, changes allowing installation of more lights and giving more of the red light revenue to Morristown and less to RedFlex will certainly do that]

The issue here is more of adequate time to review contracts and major contract changes. This is not an emergency situation. Will councilmembers rubberstamp this contract or decide that it's good business  practice and common sense to have at least 10 days to review and ask questions about a major contract revision and extension prior to voting on it---not to mention allowing the public to have some input?

Cox is apparently trying to get the RedFlex contract changed before red light legislation passed by the State Legislature takes effect on July 1, 2011.  Even if Tony is trying to "beat" the changes in state law, he could have put this item on work session tomorrow and then for a vote on June 21 instead of pushing for a vote tomorrow!

Tony gave the council only about four days notice (two of those days being Saturday and Sunday). If Tony gave notice to the press, I didn't see anything in Friday or Sunday's paper. As far as letting the public know about this agenda item, the city council's agenda (as of last night) was not posted on the city's website. Maybe it will be posted after this blog entry goes up. Maybe it's not in the same place as it used to be when it was on the front page of the website right above the "calendar of events." 

UPDATE: I have been told that the agenda is on the city's website, not where it used to be, and that you have to know where it is and how to get to it.  Not sure why the change was made, but I am sure that the change has made it harder for people who used to see the "agenda" link right on the front page as they now try to figure out where the agenda is.

Contrast this hurried/little or no discussion situation with the hours that Tony has spent in work sessions with council on signs, mattresses on the sides of the road, and a bust of Mama Bird Johnson to be erected at the new airport terminal.

Even those councilmembers who support the red light/speeding cameras should be willing to postpone this vote.

This is the time for the new Mayor and old and new councilmembers to step up and insist on having an absolute minimum of ten days in which to review a contract or extension of an existing contract--especially when it involves a contract that has raised considerable controversy in Morristown, across the state, and across the nation.

Click here to see my previous post on a recent Florida ruling on red light cameras and the different treatment of violators ticketed by cameras (small fine and no points on the driving license) and violators ticketed by the police (larger fine and points on the driving license).

June 4, 2011 Red Light Cameras Unconstitutional?

Many questions have been raised about the constitutionality of red light cameras.

Fort Lauderdale (Florida) Judge Fred Berman has cited constitutional issues in his recent ruling that police can no longer issue red light tickets as long as cameras are operating.

Berman's ruling maintains that it is not fair that red light runners caught by police face a stiff fine and points on their license, compared to those nabbed by the cameras, who face a smaller fine and no points.

"This violates the Equal Protection Clause of the United States Constitution, as well as the Florida Constitution," the judge wrote.

Click here for the video news report.

According to a Fort Lauderdale attorney with the "Ticket Clinic," red light tickets issued by police will be challenged in Fort Lauderdale and perhaps beyond with citation to Judge Berman's opinion.

The Florida attorney general will become involved: "In our view, Judge Berman did not apply the appropriate standard of review. From here, we will be weighing all of our options to challenge his ruling, including an appeal to the Circuit Court."

Click here for the Florida story and links to previous reports by the Florida news channel.

Thanks to Michael Silence who reports on the story here with comments from Knoxville PD department spokesman Darrell DeBusk and to Taxing Tennessee which has the story and a link to Silence's post.

June 3, 2011 Councilman Chris Bivens Works on City Budget and Saves the City Taxpayers $120,000

In a previous post, I mentioned the LeBel-Senter discussion on May 31 about council's $15,000 travel budget for 2012. LeBel wanted to see that item eliminated. Senter wanted to keep it. 

[Kay Senter has been a prolific traveler in the past on the city taxpayer's dime and may want to dip into that line item beginning in July 2011 due to her upcoming coronation as president of TML (Tennessee Municipal League)]

After the LeBel-Senter traveltalk, newly-elected Councilman Chris Bivens showed that he has jumped into his new job with hands-on budget research. For 2012, City Administrator Tony Cox had included purchase of a new articulating loader for the City--a $140,000 piece of equipment.

Bivens saved the City taxpayers $120,000 by going and looking at the current loader and talking to one or more of the city's mechanics. Bivens found out that the current loader is in excellent shape and would be "just like new" with a new engine at $10,000 or so.

Council discussed the matter and decided that they could get the new engine and even throw in a new $10,000 transmission and for $20,000---instead of $140,000--the City would have an excellent piece of equipment!

Bivens thought most other new equipment purchases were OK although there was some small discussion of purchasing new computers for Parks and Rec and eliminating one piece of equipment.

After Bivens came up with the $120,000 in savings, no one criticized Bivens for  "micromanaging" the city's budget. Now if every councilmember would get in there--like councilmember Bivens did--and come up with similar savings.  Of course, you can't find savings if you don't look and ask questions, and most councilmembers have not even tried to find savings in this year's budget.

June 1, 2011 City Councilmembers LeBel and Senter at Odds over Council "Travel" and "Slush Fund"

Yesterday, city council met in a brief special called meeting to address three items after which there was a short budget workshop.

SPECIAL CALLED MEETING
In the special called meeting, the City Council voted to appeal U.S. District Court Judge Ronnie Greer's decision in the Patricia Stephens, et al v. City of Morristown case to the U.S. Sixth Circuit Court of Appeals. The City will incur still more legal expenses in appealing the Judge's decision, but at least one goal is apparently to get the appeals court to eliminate or reduce the attorney fees that the City has to pay to the Plaintiff's attorney Gary Davis. See Judge Greer's decision on attorney fees here.

In action related to Judge Greer's order that the City rehab the Witt sewer line, the council voted to obtain two easements in South Hamblen County. One easement (Wallace Properties) will be obtained by agreement. The other (Kenneth McClanahan) will be taken by eminent domain if an agreement is not reached in the next few days.

BUDGET WORKSHOP
In the budget workshop, there was heated discussion over two items in the city council's budget. Paul LeBel questioned the council's proposed travel budget of $15,000. [Update: The proposed travel budget for 2012 is $15,000 up from $8,000 in estimated travel expenses for 2011 and up from $2,909 that was actual travel spending in 2010]  LeBel said that, as a businessman, he travels on 'his own dime." He also pointed out that county commissioners do not have a travel budget.  [LeBel serves on the county commission AND city council.]

When he mentioned that Councilmember Kay Senter has spent $22,000 on travel in the last four years, the temperature in the room began to rise. Kay countered that she and Claude Jinks had discovered a pipe bursting technology on one of their travels and had brought news of this technology to the City's engineering department saving the City lots of money.

LeBel stated that if the engineering department didn't know about this important engineering technology on its own then the City needs new engineers.

Kay then got to the real reason that the travel budget is so high and why it is so important to her. She said that she is in line, as current vice-president, to become president of the Tennessee Municipal League Board in the coming year.

[LeBel may not have known about Kay's TML position, but in the last couple of years, she has mentioned her soon-to-be-coronation as president of the TML Board a number of times. She has also noted on a number of occasions that her city taxpayer-paid travel has helped her to meet with leaders of other cities and work her way into her current position of leadership in TML.  Becoming president of TML is extremely important and significant for Kay.]

LeBel said that's great, but he still encouraged council to travel on its own dime.  The conversation went back-and-forth for several minutes with Mayor Danny Thomas criticizing LeBel for bringing Senter's name into the mix.

Somehow, you have to wonder about the importance of the Tennessee Municipal League being headed by a councilmember from Morristown who sat by while Morristown's finances burned, money was illegally shifted, taxes were raised, garbage fees were started, sweetheart contracts were approved, and on and on.

But nevermind all that, Kay Senter can put down that she is the first or nearly first head of TML from the eastern area of the state! 

Maybe instead of lots of "travel" with TML and other groups, councilmembers should have been tending to the City of Morristown's finances instead of rubber-stamping whatever was proposed.

LeBel also caused consternation when he mentioned the city council's $100,000 "slush fund."  "Slush fund" is LeBel's wording and just happens to echo my characterization of this line item which was added to the City's budget by Tony Cox last year.

Kay immediately defended the $100,000 "grants and subsidies" line item but admitted that maybe it should be called "contingency" instead. She said it helps council make "tough" decisions in the budget year when new items come up. 

What is really does is make what should be tough decisions on extra spending easier for council. Instead of having to make a decision to go back and pull from its fund balance to authorize additional mid-year spending, City Administrator Tony Cox comes to council and says that buying this or that is no problem because you can take it from your "grants and subsidies" line item.  Every time Tony came to council last year and said that the extra spending was "no problem," council went along. No tough decisions there.

LeBel might have succeeded on one item. There will be an examination of the Mayor's Diversity Task Force line item. The Diversity Task Force was created under former Mayor Sami Barile.

More later on how Councilman Chris Bivens saved the City $120,000 just by checking out Administrator Cox's proposed equipment purchases.

May 30, 2011 MEMORIAL DAY

Photo: free-stock-photos.com

TAPS at Arlington Cemetery:

http://www.youtube.com/watch?v=38wx8C7VmB4&feature=related

Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in our nation's service. There are many stories as to its actual beginnings, with over two dozen cities and towns laying claim to being the birthplace of Memorial Day. There is also evidence that organized women's groups in the South were decorating graves before the end of the Civil War.

Waterloo N.Y. was officially declared the birthplace of Memorial Day by President Lyndon Johnson in May 1966, but it's difficult to prove conclusively the origins of the day.

Memorial Day was first observed on May 30, 1868, when flowers were placed on the graves of Union and Confederate soldiers at Arlington National Cemetery.  It is now celebrated in almost every State on the last Monday in May.

A resolution establishing a "National Moment of Remembrance" was passed in 2000 which asks that all Americans at 3:00 PM local time "voluntarily and informally observe in their own way a Moment of remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to 'Taps'."

May 16, 2011 Judge Greer's 5/10/11 Order "reluctantly" Grants Additional Time for Witt Sewer Work and Notes that City's Actions "to get its financial house in order" Were the Result of its own "malfeasance"

Judge Greer's Order of May 10, 2011, (below) denies the City's requests regarding civil penalties previously imposed against the City and "reluctantly" grants the City's request for additional time to complete the rehabilitation of the Witt Sewer Line, a problem known by the City for approximately six years or more. In granting additional time for rehab of the sewer line, Judge Greer sets out specific benchmarks that the City must meet. Judge Greer also notes that the City's financial problems with illegal fund transfers, etc. were the result of the City's own malfeasance. The Order is printed below with omission of citations [].

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

PATRICIA STEPHENS, ET AL.

v. CITY OF MORRISTOWN, TENNESSEE      

ORDER

On April 28, 2011, this Court held a hearing on a portion of defendant’s motion to alter or amend the judgment, []. The defendant moved this Court to alter or amend its Orders,[], and its Judgment, [], in four ways. These include: (1) adopt a new schedule for carrying out the rehabilitation of the Witt Sewer Line in accord with the defendant’s newly proposed schedule; (2) grant the defendant 45 days to install odor filters on the manholes along the gravity line between the Witt 2 and Witt 3 pump stations; (3) reduce the amount of civil penalties imposed to no greater than those imposed on Koch Foods, a former codefendant; and (4) allow the civil penalties imposed to be waived upon the defendant meeting Court-established benchmarks for completing the rehabilitation of the Witt Sewer line.

This Court decided issues two through four in an Order filed on April 25, 2011, [Doc. 328]. Basically, issue two was moot because the City installed the filters, albeit late. As to issues three and four, this Court denied the defendant’s motion. Also, regarding issues three and four, the defendant asked at the April 28, 2011 hearing that the Court reconsider its decision. This oral motion to reconsider and issue one will be addressed in turn after setting forth a brief summary of the facts and the standards of review. For the reasons set forth below, the defendant’s oral motion to reconsider is DENIED and the motion to alter or amend the Order, [], and Judgment, [], is reluctantly GRANTED.

I. FACTS AND PROCEDURAL HISTORY

Many of the facts are set forth in this Court’s April 25, 2011 Order, [], and they will not be restated here. The City introduced additional evidence at the April 28, 2011 hearing as to efforts taken by the City to secure funding for rehabilitation of the Witt sewer line.

Again, the City’s financial condition is important in analyzing the issue of whether to alter or amend the judgment as to civil penalties and the rehabilitation of the Witt sewer line. Several letters submitted by the City show that Anthony W. Cox, the City Administrator, and Lamar Dunn, an engineer working with the City, have been communicating with the State Comptroller’s Office and the Tennessee Department of Environment and Conservation (“TDEC”) on satisfying the Comptroller’s conditions and TDEC’s requirements for securing the SRF loan, which will fund the rehabilitation of the line.

There was evidence and testimony that the City had included the funding for the rehabilitation of the line in its fiscal year 2011 budget; however, Mr. Cox explained that the budget reflected the amount of the SRF loan which had not been secured. Evidence showed that the City tried to get permission to use other funds from another SRF loan to fund the rehabilitation of the line. Nonetheless, TDEC did not allow this. There was also evidence that the City had placed a higher priority on other projects instead of the Witt sewer line.

Perhaps the most troubling evidence presented was a letter from Mr. Dunn to Bryan Fowler, the City’s Director of Wastewater Operations, on July 30, 2009. The letter was a cover letter to Mr. Dunn’s plans and specifications for the rehabilitation of the Witt line, which the City had requested. More importantly, it states that it is Mr. Dunn’s understanding “that the City has no desire to move forward with this project at the present time.”

This evidence is most troubling because it was represented to this Court that this particular document was not produced to the plaintiffs prior to trial. Nevertheless, there is evidence presented which showed the City, after the May 2010 hearing, did seek funding and was pursuing the project. Mr. Dunn testified to a proposed schedule for rehabilitating the Witt sewer line. He proposed the following schedule:

Loan package sent to City from TDEC 04-21-11

Council action to authorize the accpetance and completion of the loan package 05-03-11 Submittal of completed loan package 05-03-11

Submittal of construction plans and specification for by TDEC 05-03-11

Approval from TDEC to advertise project for bids 45 days after receipt of plans

Receive bids 40 days after approval

Review of bids by Engineer with recommendation 10 days after of award bids

Council approval award subject to approval of TDEC first council meeting after recommendation

TDEC approval of “Authority to Award” construction 45 days after contract c o u n c i l action

Pre-Construction Conference 21 days after ATA

Contract execution for construction with Notice to Proceed 10 days after Pre-Construction Conference

Construction complete/system operational 2 3 0 d a y s after Notice to Proceed

Mr. Dunn testified that his schedule is reasonable in his opinion as an engineer with experience in this type of construction.

II. RULE 59(e) STANDARD OF REVIEW

A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted (1) to correct a clear error of law; (2) to account for newly discovered evidence or an intervening change in the controlling law; or (3) to otherwise prevent manifest injustice. []. A Rule 59(e) motion cannot be used to re-litigate previously decided issues, reargue a case, or raise new legal theories. []These motions “are not the proper vehicle to attempt to obtain a reversal of a judgment by offering the same arguments previously presented.” []. Furthermore, Rule 59(e) motions are “‘extraordinary in nature’” and “‘should be discouraged.’” [] As such, these motions are “granted ‘ very sparingly.’” []

III. RULE 60 STANDARD OF REVIEW

A Rule 60 motion may be filed within one year after the entry of the judgment or order or within a reasonable time, depending upon the grounds upon which relief is sought. See Fed. R. Civ. P. 60(c)(1). Furthermore, Rule 60 motion may be granted only for certain specified reasons and is, thus, a significantly higher standard than that for granting a Rule 59 motion. [] Federal Rule of Civil Procedure 60(b) states: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Subsection (b)(6) should “apply ‘only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.’” []

IV. ANALYSIS

First, this Court will address the City’s oral request that the Court reconsider its April 25, 2011 decision regarding civil penalties. The City argued that the additional evidence presented should lead the Court to alter its conclusion that the City had made no effort to secure the SRF loan other than the initial request. The reconsideration of this conclusion, the City argues, should lead the Court to also change its conclusion as to the amount of civil penalties.

It is true that the evidence presented by the City at the hearing shows more effort on the City’s behalf to secure the SRF loan. However, the efforts the City had to undertake “to get its financial house in order” were a result of its own malfeasance. The State Comptroller’s Office required the City to meet certain conditions before the City was allowed to incur any new debt as a result of an illegal transfer and other issues found in an audit of the City’s finances. The Comptroller’s Office made this clear to the defendant on May 21, 2010, just 10 days after this Court’s hearing where the City represented to the Court that the rehabilitation of the line could be completed by June 30, 2011. The fact that the City could not incur new debt was reiterated to the City on June 21, 2010. Thus, it took time to satisfy the conditions, which delayed the SRF loan, and which delayed the rehabilitation of the line.

It is clear from the record that the City was aware as early as May 21, 2010, that it could not receive the funding to rehabilitate the line. However, the City did not inform this Court of the problems in receiving the funding necessary to rehabilitate the line. In the months thereafter, the City never communicated any difficulty in receiving funding to this Court. It never communicated to this Court that it could not meet the schedule it represented to the Court at the May 11, 2010 hearing. This failure is inexcusable. The City knew that its proposed schedule could not be met and that problems with the Witt sewer line would persist until the line could be fully rehabilitated. Evidence shows that overflows have continued, endangering the environment and human health. Such a failure to inform this Court cannot be ignored. For these reasons, the oral motion to reconsider the decision regarding the issuance of civil penalties is DENIED.

Second, this Court will address the issue regarding the rehabilitation of the Witt sewer line. The City bases its motion on newly discovered evidence and to prevent manifest injustice. See Fed. R. Civ. P. 59. Alternatively, the City argues to alter or amend based on Rule 60 for the “same reasons.” []. Despite the City’s specific written argument, it is actually asking this Court to alter the injunctive relief ordered in documents 307 and 312, namely that the City must rehabilitate the Witt sewer line by June 30, 2011. “A court has continuing jurisdiction to terminate or modify an injunction.” [] Modifications or dissolution of injunctions must take place under Rule 60(b). [] Rule 60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable that the judgment should have prospective application,’ not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Id. “Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous.” [].

In this case, the factual conditions suggest that a modification of the injunction is warranted. As stated above, the City presented evidence that it did make efforts to seek funding for the rehabilitation of the line after its initial request on February 15, 2010. It is also true, however, that the City knew as early as May 21, 2010, that it could not incur debt to fund the rehabilitation of the line. The City also represented to the Court at the April 28, 2011 hearing that the rehabilitation of the Witt line could not be accomplished without incurring debt in the form of the SRF loan. Due to the amount of time it took for the City to get its “financial house in order,” which the City did work actively and consistently to do, the securing of this loan was not possible. Thus, the line could not be rehabilitated by June 30, 2011. The plaintiffs do not dispute that the rehabilitation of the line by June 30, 2011 is impossible. However, they do argue for daily penalties after the June 30, 2011deadline until the line rehabilitation is complete. This Court declines to impose such penalties.

Moreover, despite the egregious error of not informing this Court of its efforts in securing the funding prior to the original Order, [ ], and Judgment, [ ], the City has apparently learned from its mistake. Since the entry of those orders, the City has consistently kept this Court informed of its progress. On May 3, 2011, the City informed the Court that it had completed all paperwork associated with the SRF Application. The package was then hand delivered to TDEC that same day. Therefore, it appears that the City is on schedule with the dates proposed in Mr. Dunn’s timeline, and it appears that it will continue to keep this Court informed of its progress on a timely basis. To be sure, however, this Court will order such updates as set forth below. In addition, the Court will order penalties if the City fails to meet periodic benchmark completions in fairness to the plaintiffs and to keep the City on track.

As such, the City is hereby ORDERED to comply with the following schedule in rehabilitating the Witt Sewer line. The City should note that this Court will likely not be forgiving as to any missed deadline, and the City must keep this Court informed of the progress. The amount of penalties for missing any deadline will not be determined at this time. Such penalties will be decided based on the benchmark missed and the specific reasons for failing to meet such benchmark.

Submittal of completed loan package May 3, 2011

Submittal of construction plans and specification for May 3, 2011 by TDEC

Approval from TDEC to advertise project for bids July 1, 2011

Receive bids August 10, 2011

Review of bids by Engineer with recommendation August 22, 2011 of award

Council approval award subject to approval of TDEC September 1, 2011

TDEC approval of “Authority to Award” construction October 17, 2011 contract

Pre-Construction Conference November 7, 2011

Contract execution for construction with Notice December 1, 2011 to Proceed

Construction complete/system operational August 1, 2012

As just stated, the City shall meet all deadlines listed above. A progress report shall be submitted to this Court within five days of each date listed. Any failure to meet the deadline will subject the City to penalties in an amount to be determined.

V. CONCLUSION

For the reasons stated above, the City’s oral motion to reconsider document 328 is DENIED. The motion to alter or amend Order number 307 and the Judgment, [], regarding rehabilitation of the Witt sewer line is GRANTED.

The Order and the Judgment shall be amended as set forth above. So ordered.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

May 10, 2011 Danny Thomas, Chris Bivens, Paul LeBel, and Claude Jinks Are Sworn In

The City of Morristown has three new faces. See previous post.

Pictured at left are the new Mayor and five of the six Councilmembers: Front Row (L-R)Councilmembers Kay Senter and Claude Jinks. Back Row (L-R) Councilmember Chris Bivens, Mayor Danny Thomas, Councilmember Gene Brooks, and Councilmember Paul LeBel. Not pictured is Bob Garrett who did not attend the council meeting/swearing-in ceremony.

Danny Thomas took the oath of office as the City's new Mayor yesterday before a packed city chamber room. [Thomas defeated 8-year councilmember Frank McGuffin in the May 3 mayoral contest.]

Chris Bivens and Paul LeBel were also sworn in as new councilmembers.  [Bivens handily defeated longtime councilmember Doc Rooney, and Paul LeBel won his seat with a narrow 24-vote victory in a 4-man race for the at-large seat]

Claude Jinks, who had no opposition in his council race, was the only incumbent to retain his seat on the City Council.

Before the swearing-in ceremony, the prior Mayor and Council met and certified the election results.

Retired Judge Eddie Beckner then swore in the new Mayor and Councilmembers.

Outgoing Mayor Barile graciously handed over the Mayoral office to Danny Thomas.

Outgoing councilmember Doc Rooney graciously handed over the 2nd ward council seat to his successor Chris Bivens. 

Unsuccessful mayoral candidate and outgoing at-large councilmember Frank McGuffin was not present for his last meeting and did not see Paul LeBel sworn in to the at-large seat that McGuffin held for eight years.

Councilmember Bob Garrett also did not attend the meeting or the swearing-in ceremony.

City Administrator Tony Cox congratulated outgoing Mayor Barile and outgoing Councilmember Doc Rooney and gave them a token of appreciation from the City for their years of service. McGuffin wasn't there to receive Cox's congratulations or token of appreciation.

[Councilmembers Brooks, Garrett, and Senter were not up for re-election]