Wednesday, September 19, 2007

What shall be gained by the suit?

Both before and since the News-Sentinel's lawsuit against the Knox County Commission began, the public mood has been one of justifiable anger at how the appointments of the term-limited County Commissioners were made. Few disagree that the entire process wreaked of back room dealing, especially since at least one Commissioner has already admitted that negotiations took place during recesses while the Commission was meeting to make these decisions.

The larger problem is not that the Commission may have broken the law, but that the law that Knox County Commissioners are accused of breaking has utterly no teeth. The Tennessee Open Meetings Act is worded grandly in demanding openness of public meetings and government business, but its wording is broad in definition. It does not make a distinction between freedom of speech and thought (two officials sharing an opinion with one another, for example), and a convened meeting. Perhaps worst of all (as I pointed out on yesterday's Halerin Hilton Hill Show), the Act does not provide any real penalties for its violation. What all of this really means is that the State of Tennessee has a Sunshine Law that can be broken on paper, but in a de facto sense, it is hard to determine what constitutes breaking a law that is broadly defined and clearly unenforceable. By the legal definitions provided in the Open Meetings Act, the General Assembly broke the law about once an hour during the two days that I was in Nashville this past March.

Knowing that the Open Meetings Act is not technically enforceable, the question should then be begged: What does the News-Sentinel hope to accomplish in its suit against the Knox County Commission? Does it seek a do-over of the appointment process? While a re-appointment meeting may go smother than the original one did in January, there is nothing to prevent Commissioners from appointing the same eight people that they did before. There is no provision in Tennessee law that would allow for a special election to fill the eight Commission seats before November 2008. Had there been such a provision, none of the issues which brought about this court case would likely exist.

How do the Plaintiffs propose that we punish the guilty? The law certainly gives no guidance on this point whatsoever. Shall Chancellor Fansler call the Defendants to the bench and slap them on the hands ("Bad Commissioners!" "Unruly children!" "Naughty boys and girls!")? Shall he take a paddle to their rears?

Had this kind of mess occurred when any State House or Senate seats or with any key State offices, I have no doubt that Governor Bredesen would have wasted no time in calling a special session of the General Assembly to more clearly define what it is to violate the Open Meetings Act and to give the law teeth by adding real punitive costs for breaking the law. In the next session of the Legislature, the House and Senate need to amend the Open Meetings Act to clear up any confusion as to what is and is not breaking the law, and stiff penalties need to be added so that judges in future cases can punish derelict public officials who ignore the legal perameters under which they are supposed to operate.

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7 Comments:

At Wednesday, September 19, 2007 8:35:00 AM, Anonymous Anonymous said...

Perhaps this lawsuit will do just what you are asking for, define the law that you say is not clear enough.

I am very glad that the actions of the commissioners leading up to and on January 31st are being brought up for the citizens of Knox County to see clearly the actions of our elected officials. For me, the trial itself is punishment for Scoobie and likely Lumpy once he gets to testify.

The people of Knox County want assurances that this type of behavior will not happen again. That is what this lawsuit is about.

 
At Wednesday, September 19, 2007 12:02:00 PM, Anonymous Anonymous said...

Part of the remedy allows for the courts to have judicial oversight in the process if they are allowed a "do over"

 
At Wednesday, September 19, 2007 1:50:00 PM, Anonymous Anonymous said...

Are you attending the trial?
So you attend Knox county Commission meetings, or even live in Knox County?
You appear to be holding yourself out as an "expert" on Knox County Commission issues. What are your qualifications?

 
At Wednesday, September 19, 2007 5:44:00 PM, Anonymous Anonymous said...

The law is not aimed at individuals but at acts of government. Its remedy is to reverse acts taken in violation of the law. This is civil law, not criminal law, and you seem to be wanting criminal penalties. The law simply defines how elected representatives should exercise their public duties. It is not intended to make criminals of commissioners, just to encourage openness and transparency.

It is not necessary that commission be forced to appoint other people, only that they make those appointments transparently, so those who they serve have some notion as to why they voted as they did. It would be interesting if the judge decided to disqualify some or all of the appointed commissioners, however!

 
At Wednesday, September 19, 2007 6:18:00 PM, Blogger Dave Oatney said...

"This is civil law, not criminal law, and you seem to be wanting criminal penalties."

Indeed, though some States do have criminal penalties for violation, Tennessee does not. In the end, the most that can happen legally is a "do-over," which means that the same people will be reappointed, except that it will be done in a way the Commission will say is transparent. As with January 31, the process will again be determined in advance.

Hence, what the suit is liable to actually accomplish is little or nothing.

 
At Thursday, September 20, 2007 12:35:00 PM, Anonymous Anonymous said...

I'm not sure how you see the future so clearly. There could be serious political consequences if the commission loses this suit and the redo is as contrived as the Jan 31 appointments. If Moore and some of the others care about restoring their credibility, they won't make the redo a carbon copy of Black Wednesday. They may not care, and perhaps that is what you know that gives you such confidence that nothing will change.

Again, the judge might take steps to assure the redo has more integrity. He could define the order in which appointments and swearings in are done, making vote rigging more of a challenge than it was on Jan 31, or he could disqualify some or all appointees from being reappointed.

 
At Thursday, September 20, 2007 11:38:00 PM, Blogger Dave Oatney said...

Anon;
What I do know is one of the most unfortunate political realities of our time, and that is that voter participation in local elections is incredibly low and that the electorate have incredibly short memories. We might see a seat or two change hands in 2008, but based on how local elections tend to function not just in East Tennessee, but all over the country, I'm not holding my breath for drastic changes.

Chancellor Fansler may very well be able to tweak the process of appointment, but I doubt that he will be able to do much that is going to change the situation of things fundamentally.

That doesn't mean that these changes shouldn't take place-if January 31 taught anyone anything, it is that change in Knox County is definately in order (from Ragsdale on down)-but again, based on previous trends, most recently the fact that four of the "Hell No We Won't Go Five" were re-elected in 2006, I am given to doubt that real voters are as hot on change as the opinion polls indicate.

 

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