Shots Across the Bow

A Reality Based Blog


The Verdict is In; Clean Sweep for the Plaintiffs.

3 weeks of testimony, pages and pages of phone records, hours of video and audio tape, all boiled down to 29 questions that would determine the outcome of the lawsuit filed by the Knoxville News Sentinel against the Knox County Commission.

29 questions put together by the lawyers for the plaintiffs and defendants that go to the heart of how Knox County government operates. Attorney for the plaintiff, Richard Hollow, made the case that sitting County Commissioners had violated the Open Meetings Act both before and during the January 31st meeting that filled 12 vacant seats. Herb Moncier, representing the 9 citizens allowed to intervene in the KNS lawsuit went further. He said that the sitting commissioners stole the government from the people of Knox County. Attorney for the defendants, Chief Law Director John Owings, said that the commission did nothing wrong, that it was just politics as usual.

12 men and women of Knox County had to answer 29 questions to determine which side prevailed.

And on every single question, they agreed with the plaintiffs. That makes County Law Directer Owings 0-lifetime regarding term limits and the Open Meetings Act, a fact I hope plays heavily in his upcoming battle for election. His early advice on the quorum defense killed the Commissions case before the trial even began. His anemic close, after letting Deputy Chief Law Director Mary Ann Stackhouse carry the burden of the three week trial certainly didn't help matters. I've said earlier that the commissioners were arrogant in their assumption that they could get away with this kind of thing, but that pales beside the arrogance of Owings, who tried to pass the back room deal making and vote trading as just politics.

But before the citizens of Knox County claim victory, there are few things to look out for.

First, Chancellor Fansler must decide the remedy for the situation. By law, he has two routes he can go. He can set an injunction against the commission,forbidding them from repeating their offenses. The principle benefit of the injunction is that if they do repeat, they can be charged criminally, instead of civilly. Unfortunately, the prosecution would face a substantially more difficult burden of proof, making it extremely difficult to prosecute. His second option is to nullify some or all of the appointments, and tell the County Commission to start over. What he cannot do is order a special election to fill the vacancies. That will require special legislation from the State. He can, however, issue rulings to force the Commission to amend the rules of the process to allow real public input, but as far as I know, there's nothing he can do to prevent the commission from putting the same people right back into the same offices. They would just have to do so in full view of the public, an act which would probably end their political careers.

I say probably because there is one more reason why the people of Knox County have no cause to celebrate just yet.

This whole mess is their fault.

The folks in Knox County elected commissioners they knew were term limited. Sure, now they want to sit back and jeer at the commissioners, but during the election, they either pulled the lever for them, or stayed at home on election day. What we can't be allowed to forget is that the twelve people who vacated their offices were openly elected by a populace who knew they were likely to be found term limited.

And given that only 8% of eligible voters voted in the City Primary a week ago, I don't see anything getting any better.

So if you're looking for huzzahs and hoorays, look elsewhere. The problem is still here and it's just as bad.
Posted by Rich
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Great post, particularly the part about how the people of Knox County need to look in the mirror when think ing about whose fault this is. I hope they do better in February and August 2008.

Two points, however, on your comments about remedies.

Although the Chancellor cannot require a "special election" as "special election" is defined under state law, he could require that an non-binding election be held, and that Commission appoint the replacements after this election is held. This was Commissioner Harmon's proposal in January. It is perfectly legal, and would in all likelihood have the same practical effect as a "special election". I would be very surprised if Chancellor Fansler did require this, but he could.

Similarly, you state that there's nothing the Chancellor can do to prevent the same people from being re-appointed to the same positions. I know of nothing that would prevent him from doing exactly this in his final order. According to the law, he has "jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part". In myopinion, this gives him broad powers to enforce THE PURPOSES of the law. Once again, I don't expect him to forbid re-appointment of any of the January 31 appointees, but I think he could.
Posted by Mark Siegel  on  10/03  at  01:45 PM

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