Friday, September 28, 2007

The harsh constitutional reality

Whether a person buys former Knox County Commissioner Phil Guthe's story about having his Commission seat "stolen" from him because in his view the "Gentlemen's Agreement" (that said that in matters affecting an individual Commissioner's district, the wishes of the Commissioner is question would be respected) was not honored, his testimony did bring to light the harsh legal reality of the situation: There could be no special election to fill the eight Commission seats about to be vacated.

“I think the only way to get accurate public participation is having an election,” Guthe said. “Outside of that, if you allow public forums, candidates’ stump speeches, you are pandering to the public, trying to make the public feel good.

“For the public to think their voice is going to be heard in that appointment process — it wasn’t going to happen,” Guthe testified. “Ultimately, the decision (on an appointee) was mine as to who I would vote for. As unsavory as that is, that’s just the way it was.”

Under Article 7, Section 2 of the Tennessee Constitution, we see that Guthe is correct:

Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified.

The State Constitution is clear when it says that the county legislative body-the County Commission-is charged with appointing members to fill vacancies that occur in the midst of a term, which is the situation as it was on January 31. Hence, Commissioners had the Constitutional right to appoint whoever they chose to these seats. Whether the Open Meetings Act was violated may be an issue, but the manner in which these Commissioners were appointed was completely legal. Even if the jury in Knox County Chancery Court were to rule that the Sunshine Law was violated, the most that can be done is a "re-do" at which the same eight people will likely be appointed again.

This is the harsh reality that the News-Sentinel hasn't even touched in its coverage of its lawsuit against the County Commission. Regardless of whether the Sunshine Law was violated, the way the Commission made the appointments is legal. It can be argued that justice compels us to amend the Constitution to allow for special elections in these circumstances, and if the events of the last 18 months or so have taught East Tennesseans anything, it is that such an amendment may be necessary.

There is no such provision presently in force, however-and there was not on January 31. Hence, it can be argued that the Sunshine Law was violated-maybe-but the method the Commission used to appoint members to vacant seats was (perhaps unfortunately) Constitutionally sound.



At Monday, October 01, 2007 12:08:00 PM, Blogger Sour Persimmon said...

It is certainly true that the commission and fee office seats had to be filled by appointment, but you go too far in claiming the method used was sound. The commission could have and should have devised a more orderly process.

They could have held two special meetings, one to take nominations, then another to choose from the nominees after hearing from their constituents. They could have deliberately chosen the order of appointments. For example, they could have first repaired the commission, then had the new commission appoint candidates to the fee offices.

Instead, they left the process disorganized and took advantage of the lack of structure by plainly manipulating the rules as they went along. It was a gross failure of leadership from the chairman.

At Monday, October 01, 2007 6:50:00 PM, Blogger Dave Oatney said...

I don't disagree in the least that the process could and should have been done more orderly and similar to the manner you describe.

The problem is that the Constitution makes no specifications.


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