http://www.knoxcounty.org/decision/decision.pdf

Amen

The KNS headline is inaccurate. It says Fansler "offers no roadmap" for filling the vacancies. Footnote 3 on page 11 does exactly that. The Chancellor refers to his guidance as "obiter dictum," so it's not part of the Order, but it certainly is persuasive authority on how to proceed.

What he says is that there are only 11 county commissioners at the moment. A majority vote of 6 is required to make the first appointment. As the appointments are made and, if desired, are immediately sworn in, the number of commissioners will increase and the number necessary to constitute a majority will increase with that (e.g., once you have 13 appointed and sworn in, a majority of 7 will be required to make the next appointment).

The county has sufficient guidance from this opinion on how to proceed. Eleven commissioners vote on an appointment and whoever gets 6 votes is sworn in and votes on the next appointment, etc.

The great part is that the 1/31 appointments are now void, which means that Tramel, Bolus, etc. are not, at this moment, county commissioners. Other great part- if Scooby or Lumpy violate the OM Act again, they go to jail.

This is clear and consisely written and leaves no unaswered questions that I could find after giving the opinion a quick once-over.

Of particular interest is the long footnote on p. 11 that answers all the questions about how to proceed:

" Counsel involved in this case and in particular the Law Director has urged the Court to specify the method by
which the County Commission should go about filling these vacancies. The Court advised counsel from the
bench on October 2, 2007, that this issue is not before the Court but the Court would respond to any
appropriate motions or actions calling upon the Court to issue an opinion in that regard. Nevertheless, because
of criticism of the courts for failing to specify how the original appointments should have been made and at the
urging of counsel involved in this case, the Court will, by way of obiter dictum, make the following
observations.

Under the Open Meetings Act, the Court is required to nullify the action taken by the County Commission on
January 31, 2007. Accordingly, each and every appointment made on that date has been declared void and of
no effect, thereby creating a vacancy in those offices pursuant to Tenn. Code Ann. §8-48-101.

Where the election of persons who had succeeded to occupy an elected office was adjudged void a vacancy
exists and the former incumbents are not considered de jur or de facto officers and are not entitled to resume
office. Tenn. Juris., Counties, §13. Shumate v. Claiborne County, 191 S.W.2d 441 (Tenn. 1946); Southall v.
Billings, 375 S.W.2d 844 (Tenn. 1963). The same reasoning should apply to void appointments. Accordingly,
the Knox County Commission currently consists of eleven (11) members with eight (8) vacancies.

§2.08. VACANCY., of the Knox County Charter provides that in the event of a vacancy in the office of a
member of the Commission, the remaining members of the Commission shall fill said vacancy. §2.05 of the
Knox County Charter defines quorum as a majority of the membership of the Commission. Membership is
commonly understood to mean the total number of members in a group. At present, with eleven members, a
quorum of the Knox County Commission would be six members.

This does not mean that for purposes of conducting business a quorum would be the majority of those present.
When a seat is filled, the person holding the seat is a member of the body. When the seat is vacant there can be
no member. It would be an absurdity to treat the vacant seats as if they were held by a phantom member for
purposes of determining the majority of the membership. Additionally, defining a quorum as a majority of
nineteen in these circumstances would in effect render the Knox County Commission ineffective inasmuch as
it would require ten votes of the eleven remaining members to conduct business.

11

Nothing precludes Commission from re-appointing the same individuals appointed
on January 31, 2007. However, should Commission decide to do so, that decision must be
based on a new and substantial reconsideration of the issues involved in which the public is
afforded ample opportunity to know the facts and to be heard pertaining to the action taken.
It was not the legislative intent to allow a body to ratify a prior violative act in a subsequent
meeting by a perfunctory crystallization of its earlier action. Neese v. Paris Special School
District, 813 S.W.2d 432 (Tenn. Ct. App. 1990).4
In accordance with Tenn. Code Ann. §8-44-106(c) the Knox County Commission
and its members are permanently enjoined from further violation of Tenn. Code Ann. §8-44-
101, et. seq.. More precisely the Knox County Commission and its members are enjoined
from engaging in any chance meetings, informal assemblages or electronic communications
consisting of, or between, two or more members of the Knox County Commission for
purposes of deciding or deliberating public business in circumvention of the spirit or
requirements of the Open Meetings Act."

"COULD result in punishments of imprisonment for a period not to exceed ten (10) days and/or a fine of fifty dollars ($50.00) for each violation."

I sort of doubt they would get worse than the $50 fine...

Thirty days was mentioned by John Owings during yesterdays workshop. He claimed that most rulings give thirty days before they become effective (or something along that order).

T.C.A. 8-47-123 on removal of officers: "Either party may appeal from the final judgment or decree, but such appeal shall not operate to suspend or vacate the judgment or decree, but the same shall remain in full force and effect until vacated, reversed or modified."

Here we have people who have been put on notice by Court Order that they have held office unlawfully from the beginning. In the Jordan case, the Supreme Court said we had a de facto government despite term limited individuals continuing to hold their seats. That will be a harder case to sell where the people holding the voided seats KNEW by Court Order that their positions were voided but continued in office. If the appointments were void at the time they were made, it is the same as it never happened and they're not in office. Even with a 30 day period until final judgment, they would be treading on dangerous ground if they continue in their seats.

Just one opinion, anyway.

What about actions / votes taken since 1/31 by the Commission? Do all the votes on everything from the budget to board appointments stand as recorded or are they null and void?

Given our current political climate, we need voters to bring county government back to the people. Voters will make the difference in transforming our government into a citizen driven vehicle. My campaign is focused on the February 5th election and engaging our community in decisions that affect our lives.

I will not seek an appointment to Knox County Commission. I will serve the Second District only when elected by the voters.

I appreciate the time and attention given to the Sunshine Trials. This event plays a key role in realizing our potential to become a truly citizen driven government.

I encourage people who are looking for a new generation of leadership to vote for me on February 5th. Visit my website at www.piperforcommission.com or call 455-4379 and learn how you can get involved.

Our votes will make a difference.

There is an effective date of the ruling, 12:01pm October 5, 2007, stated clearly in the opinion. The question would be: Did Fansler automatically or by motion issue a temporary stay of the ruling, pending appeal?

Mike Lowe- Trustee Again? According to KNS blog, Owings says the 12 are out of office immediately (told ya so), and that the 4 county-wide offices will be filled by their chief deputies. It goes on to say Mike Lowe will be acting Trustee given that he is Chief Deputy.

Don't think so! That would obviously violate the Jordan decision wherein Lowe was removed. Maybe they'll go ahead and give it to Leuthold- the public will love that.

Interesting that the chief deputies are all people who wanted the offices themselves but were passed over for the anointed. Spangler wants to be sheriff, Nick McBride wants to be register, Stooksbury wants to be Clerk, and Mike Lowe just wants a job. Interesting question will be will these Royal Accidencies (the chief deputies) be so willing to step down, or will deals be cut to appoint them on Oct. 22 to avoid the appearance of rubber-stamping, so they can keep the seat warm until the original appointees win election?

Very good man. But I don't believe he attended all those GOP mtgs with Hutchison (before JJ patched things up) for nothing. Independence would be a serious issue for me.

Hope not.

My favorite part of the ruling so far:

The term "re-do" has often been referred to as a possible remedy for an Open Meetings Act violation. Unless the Neese criteria are met, a "re-do" is insufficient and could result in an action for contempt.

Wonder what he meant in the WATE interview by "we'll be talking to people in other parts of the state to get their input"......surely he's not up to his same old antics.

I just read this quote from Spangler's press conference that, for me, confirms my comment on independence: “The Sheriff’s Office will continue to run as it always has.”

To be fair, I'm sure Spangler means it will be ran with the same degree of law enforcement professionalism, which is laudable. But politically it means the office will continue to be ran by Hutchison, who has done a masterful job of letting Scooby take the hits for the appointments mess. Anyone who thinks that Scooby wasn't taking directions on 1/31 from Hutchison and Valiant is naive.

I have to believe that Spangler is Stage II in the succession plan. JJ gets it first, and Spangler gets it in the 6th year of Hutchison's tenure as County Mayor.

Is anyone taking bets on what will happen with the re-replacements? My guess is that the fee offices and sheriff will be the same. 6 out of 8 for the commissioners. Any bookies in the crowd want to give odds?

The news in out, see AP headline: Tenn. judge ousts 12 elected officials.

Moncier quoted, "The people took back their government."

Watergate invoked.

Tennessee and most other states bar local government leaders from meeting in private to discuss public matters, except in limited circumstances. The laws were passed three decades ago in the wake of the Watergate scandal.

Maybe Knox County citizens take back their government. We'll see.

In the climate we are in, three commissioners seen eating lunch at Shoney's, by gosh we know they are talking about county government," he said. "I think it brings government to a halt," Moore said. "The Legislature is going to have to look at this and put common sense into it."

Makes you proud, huh?