So Peabody et al hadn't researched state law, to see whether anything there might trump, before filing that petition?

Where the county charter is concerned, we have both the direction in the enabling legislation for "home rule counties" AND the more recent Jordan decision on how/when our county charter may trump state law.

Don't know that we have any incidence of "home rule cities" in Tennessee, though, whether in the form of statute or legal precedent...

It's a conspiracy between Bill Haslam and the state election coordinator (with maybe some help from Scott Barker). :)

From the KNS article-

“However, according to Goins, Peabody would have to collect many more signatures than initially projected to get those questions on the ballot.
The standards are set out in state law, Goins said. He said Peabody would need 15 percent of those registered to vote in the city or 15,208 of 101,388 registered voters.
Earlier, election officials put the standard at 30 percent of those who voted for candidates in the last mayoral election. That would have been 30 percent — or 1,968 signatures — of the 6,560 voters who cast ballots in the 2007 mayor’s race.
“There is a significant difference,” Goins said. State law prevails over the city charter based on court rulings, he said.
“If (the city charter) had changed after 1997, then the city charter would have governed,” Goins said. No change has been made, however, he said.
“State law pre-empts the city charter,” Goins said.”

So, may I ask a couple of questions?

If “ election officials put the standard at 30 percent of those who voted for candidates in the last mayoral election. That would have been 30 percent — or 1,968 signatures”

Does this mean that Peabody’s group was given bogus information by said “election official” ?

If so, why? Seems like our local election officials should know how to read the Knoxville City Charter.

Does anyone else read this to mean that the City of Knoxville Charter has been wrong since 1997? If so, this doesn’t say much for the Haslam administration.

No

Enough government manipulation.

Let the People Vote.
Go to: stopthetyp@gmail.com and voluteer to help collect signitures.

Peobody said on TV that they will refile the corrected petitions on Monday, and Bob Bowman from the Election Board said that they will meet by Friday to approve the changes.

I interpreted earlier:

That is, a court's read on the sequence of legislation would be that Knoxville "acquiesced" to the 1997 state law when the city failed to somehow reiterate its own earlier/contradictory measure.

But I'd like to confirm my understanding with Greg Mackay.

And Nine, in all seriousness, if my interpretation of what Goins' comment means is correct, I really do share your concern for his meaning.

I don't support this particular petition effort, but if Goins is saying that the city must always stay abreast of changes in state law, and that it must continually "reiterate" via repeat votes its own pre-existing local law (when that local law contradicts anything new the state adopts), that's a problem for citizens going forward.

If I understand Goins' comments correctly, it would seem that this court decision he refers to puts the onus on the city to constantly repeat its intentions, and it leaves citizens unsure whether the city has taken this step to "reitererate" itself on each and every clause contained in its charter?

Hope Mackay pops up today to confirm or refute my understanding thus far.

Thought that the local Charter trumped the State Constitution? That is what we were told last time. Notice that the real trump card is what the Haslam's want. At some point people should think about what kind of Governor Haslam would make. Bowman tells Goins his people made a mistake? That's rich. The reason Peabody worked with the State Election Commission was to get it right.

Word is the City Law Director got involved in this and was the one who suggested to Goins that the City Charter could be declared invalid. Hope that isn't so. The City Law Director does take an oath to defend the Charter don't they? Or is that just in the County?

You have to wonder what they will pull next. This looks like a Ragsdale grade operation. Looks like when push goes to shove the City can play just like the County.

I don't have to support Ron Peabody's position to support his right to advance it via petition.

That being said, I might have added that I think Ron's group has an obligation to explain to voters how their petition, if successful, would impact on existing contracts relating to Flenniken.

I'm especially unclear on how his group's success would impact on the county's existing contracts (if any?) relating to Flenniken.

Big question mark.

I got this in an email a few minutes ago. The document at the bottom is from Ronald Mills, the Deputy Law Director who works for Knoxville City Law Director Debbie Poplin.

It shows that the City of Knoxville with deliberate forethought sought to surrender Section 709 of the City Charter and requested that the State TCA trump the City Charter.

When have we ever seen a local government actually attack their own Charter? The Mayor of Knoxville, Bill Haslam swore an oath to defend and uphold the City Charter. Yet it appears he instructed Debbie Poplin his City Law Director to attack the City Charter in order to keep these referendums off the August ballot for political reasons and to greatly increase the number of signatures required.

This is a serious action.

If Bill Haslam and Debbie Poplin will not honor the Knoxville City Charter, have they violated their oaths? I actually agree with Tamara that this is a serious affront. This is more important than the referendums that Mr. Peabody has brought forth. This is a much bigger issue.

I recall no time in this county that such action has been taken by any local government.

The City Charter is very clear to the number of signatures required.

(link...)

This was distributed at the Election Commission in the Friday meeting:

Greg Mackay
-----------------------------------------------------------
From: Ronald Mills [RMills@cityofknoxville.org]
Sent: Friday, May 21,20103:54 PM
To: cheagerty@hdclaw.com
Cc: Charles Swanson; Debbie Poplin; greg.mackay@knoxcounty.org; mark.goins@tn.gov
Subject: City of Knoxville Referenda

Mr. Heagerty:

This message is to follow up on my discussion with you, Greg Mackay and Scott Frith, my discussion with Mark Goins and Beth Henry-Robertson with the State Division of Elections, and City Law Director Debbie Poplin's discussion with Ms. Henry-Robertson Thursday afternoon. We have researched the history of § 709 of the Charter of the City of Knoxville, with regard to initiatives and referenda, and it is clear that the provision of §709(8) that sets the minimum number of signatures of registered voters required for a valid petition for a referendum (30% of the number of those that voted for any candidate in the last mayoral election) has been in effect since at least 1982. There was also a charter revision effort approved by the City Council in 1980, but it is unclear whether this measure was placed on the ballot or approved by the voters at that time, but either way, the provision in question predates the adoption of Tenn. Code Ann. § 2-5-151 in 1997. While § 709(6) was amended in 2003 to change the time allotted for City Council to adopt any ordinance proposed by referendum, the language regarding the threshold for signatures on a petition has not changed since its adoption in 1982. In fact, a version of that language containing a higher threshold and tying the threshold to the number of voters in the most recent election for City Judge appears in the Charter at least as early as 1971.

Mr. Goins and Ms. Henry-Robertson, as State Coordinator and Assistant Coordinator of Elections, have taken the position that since this provision of the City Charter has not been amended since 1997, it is preempted by Tenn. Code Ann. § 2-5-151, and that the correct number of signatures on a referendum petition is set forth in subsection (d) of Tenn. Code Ann. § 2-5-151: "Petitions shall be signed by at least fifteen percent (15%) of those registered to vote in the municipality or county." We read the statute the same way, and I am authorized to represent that Charles Swanson, as counsel for the Knoxville City Council, is also in agreement with that interpretation.

I have copies of the documents to evidence the statements made herein, should you wish to see them.
Ronald E. Mills
Deputy Law Director
City of Knoxville
(865) 215-2050
(865) 215-2643 (fax)

Peabodys referenda are about trying to get an ill-conceived, overbroad "fix" ensconced via a process he hoped would require a small number of poorly informed voters. It should take more than that. Now it seems that it will.

I agree with you that Peabody's "fix" is overly broad, I agree with you that most voters are (presently) ill-informed on this issue, and I agree with you that a government's allowing just 1000-ish city residents to make this decision affecting more than 100,000-ish city residents equates to too low a threshold.

However, I was speaking to the increasingly popular concept of referenda more generally--and to why it's increasingly popular.

Note that on that topic, Naisbitt observed:

We don't want to vote on every issue, only the ones that really make a difference in our lives.

I think we'll find that lots of people feel this issue is one that "really makes a difference in (their) lives," (whether or not it actually will in the end) so I fully expect that Ron's ranks will grow.

Ron's effort in and of itself doesn't concern me any more than the enthusiastic and successful effort to put a wheel tax referendum on the ballot concerned me some years back. I voted against those petitioners, too.

I wouldn't be surprised if Ron's effort plays out like that of the wheel tax petitioners, in that they win a spot on the ballot, but lose the vote on their ballot question.

But let's not try to squelch their ability to raise that question. Let's just team up, you and me, to see that as many as possible of the group's concerns are answered.

And what I'm saying with respect to this court decision Goins has cited is that I sure don't want to learn that the city's charter can't be relied on in the future, even if that should serve to answer this single question (on the TYP) in the here and now.

It seems to me that in the last 24 hours, multiple issues relating to this petition effort have begun vying for our attention...

Nine, let me clarify that I don't yet think that the Haslam administration has "attacked (its) own charter" simply in acknowledging the existence of some prior court decision that would seem to subjugate the charter to statute.

Did someone also copy you this morning on that court decision? I'm sure I'm not the only one who'd like to read it before venturing any personal opinion that Goins (and all these attorneys, really) didn't intrepret it correctly?

You'd share it if you had it, wouldn't you? I'm uneasy agreeing with you on much of anything, for fear you might withhold pertinent information.

I am not an Attorney, but I grew up on Perry Mason, LA Law, and Law & Order, and the way I read that message from the Deputy Law Director, I can see what Nine is saying.

According to my friend that was at the meeting last night, Peabody said when speaking to the commission, that the State Election officials had already approved the Petitions earlier in the week.

From the KNS-

Peabody said his petitions had been approved by the office of State Election Coordinator Mark Goins.
Greg Mackay, Knox County administrator of elections, said his office showed the petitions to the state, adding, "They said it looked fine to them."

If this is true, doesn’t this mean that this effort came from the City of Knoxville’s law Department?

According to the document above, the deputy director states:

This message is to follow up on my discussion with you, Greg Mackay and Scott Frith, my discussion with Mark Goins and Beth Henry-Robertson with the State Division of Elections, and City Law Director Debbie Poplin's discussion with Ms. Henry-Robertson Thursday afternoon.

Why is a City of Knoxville official, contacting the Knox County Board of elections, via phone, and email, to inform them of a State Board of elections issue? I take from Mr. Mackay's comment above that he generally talks directly to State Election officials.

So what is the deal? According to Greg Mackay, the state “said it looked fine to them”, if so, how in the world did the City Law Department, surrender the City of Knoxville Charter to the State of Tennessee?

I've always assumed that the principle of limited, decentralized government means that local law trumps state law and state law trumps federal law except where the higher government has specifically been granted superiority. What's the point of having a city government if the state can kick it around on something as arbitrary as signature requirements for referenda? I'd like to see Swanson and/or Goins at least attempt to explain why this is a matter on which Knoxville should defer to the state. Why is it anyone's business but a Knoxvillian's?

So far, whooshe, it seems we have just two pieces to this puzzle.

First, we have a fleeting reference Rebecca Ferrar made in her first edition of the KNS story (on Friday, 5/21 at 4:35 p.m.) to the sequence in which Goins says our local law and the state's law were adopted, here:

“There is a significant difference (in signature thresholds),” Goins said. State law prevails over the city charter based on court rulings, he said.

“If (the city charter) had changed after 1997, then the city charter would have governed,” Goins said. No change has been made, however, he said.

“State law pre-empts the city charter,” Goins said.

Second, we have a more concise description of attorneys' consideration in the letter from Deputy Law Director Mills to Local Election Administrator Mackay, here:

Mr. Goins and Ms. Henry-Robertson, as State Coordinator and Assistant Coordinator of Elections, have taken the position that since this provision of the City Charter has not been amended since 1997, it is preempted by Tenn. Code Ann. § 2-5-151, and that the correct number of signatures on a referendum petition is set forth in subsection (d) of Tenn. Code Ann. § 2-5-151: "Petitions shall be signed by at least fifteen percent (15%) of those registered to vote in the municipality or county." We read the statute the same way, and I am authorized to represent that Charles Swanson, as counsel for the Knoxville City Council, is also in agreement with that interpretation.

It therefore appears (to me, anyway) that what Goins and Mills are saying is that

(1) Knoxville had this measure (Section 709 of the City Charter) guiding local initiatives and referenda on its books prior to 1997,
(2) a contradictory state law (TCA 2-5-151) came into being in 1997,
(3) Knoxville never chose after 1997 to somehow reiterate its intention to apply its own charter's instruction rather than the new state law,
(4)So Knoxville essentially forfeited its right to deviate from the new state law.

That is, according to this court decision Goins and Mills reference, Knoxville's silence on the subject after 1997 may be interpreted as its "acquiesence" to the new state law.

Another piece of the puzzle is still missing, though, namely a copy of this court decision all these parties are apparently referencing.

Is that ruling applicable to the present situation, or isn't it?

Nine is ready to charge the Haslam administration with interfering in the Election Commission's business in an unscrupulous manner, simply for their having discussed the ruling with the State Election Commission.

I'm more uncertain if the Haslam administration has acted unscrupulously, though, because I don't yet know if the ruling is truly applicable to the present situation. If it is, I'm thinking "don't shoot the messenger," you know?

In either event, if the State Election Commission prevails with their assertion that the ruling means local governments must continually reiterate the instruction in their charters every time some state law to the contrary arises, that would seem to mean bad news for the locals.

It would seem to mean that, day to day, we couldn't necessarily rely on our charter's instruction having been reiterated recently enough!

To that extent, I'm quite sympathetic to TYP petitioners--even though I don't support their petition.

(Full disclosure: I'm a housewife, not an attorney. You will probably want to ask someone more qualified than I whether I'm understanding all this correctly :-)

Thank you, Bill.

What measure is taken locally, though, to periodically amend the city charter to reflect prevailing state law, so that city residents may always have confidence in its instruction?

Also, in those instances when city residents may adopt charter provisions differing from state law, what impetus exists locally to ensure that they get that opportunity?

In the question of this signature threshold, it appears that an opportunity for locals to deviate from state law was missed.

Charter amendments must go on the ballot.

I guess I'm not understanding why a provision in the charter that has been preempted by state law would have to "go on the ballot" to be brought into conformance with state law
.

If the local provision is inoperable, why wouldn't someone (in the Law Department, maybe?) just come along to strike the inoperable clause and instead insert the applicable state law (or at least insert "See TCA 2-5-151", for instance)?

As to what I meant here...

Also, in those instances when city residents may adopt charter provisions differing from state law, what impetus exists locally to ensure that they get that opportunity?

...I guess you answered this second question when you answered my first one.

You said that no one in local government actually combs state law looking for discrepancies between that instruction and the charter, so I suppose no one in local government is immediately aware of when voters may have opportunities to enact local charter provisions contrary to state law, either, as in this local provision we might have enacted after 1997 to keep a lower petition signature threshold.

No wonder, then, that inoperable provisions exist in the charter and voters miss opportunities to enact local law differing from state law (in those instances where it's allowed).

Then maybe the rest of us could agree on the meaning of the law... Thanks, Bill & Tamara, for your explanations. Maybe we should bring back diagramming sentences in school.

Have there been any petitions since 1997 that met the lower standard and that resulted in a referendum being approved by voters? If so, would it be technically invalid?

Also, could City Council resolve this by simply putting it to a referendum themselves?

(Not that they would be inclined or obligated to do so because of the previously mentioned concept of representative democracy and whatnot.)

I think you have it smithrob2010. From the 2003 action you listed above it appears that this move by the City Law Department, clearly on orders from Mayor Haslam, and the capitulation by Mark Goins is pure politics. This was a move to delay the vote and to increase the number of signatures.

Um, Nine? I don't know that Rob "has it" at all. Clearly, that 2003 amendment to Section 709 didn't "increase the number of signatures." That clause in the charter remains unchanged from 1982 (I think it was). This 2003 amendment addressed some other clause within Section 709 and we have no reason to suspect any insideousness in that action.

This may end up as another local Watergate. The cover up being worse than the crime. Mayor Haslam instructed his Law Department to surrender part of the City Charter. That is a gross violation of his oath to...

And there isn't any "cover up." Bill Lyons directed both of us to that clause in 2-5-151 that we'd both overlooked. Knoxville had (and still has, I guess) an opp to establish a sig threshold lower than that established in state law, we just haven't done it.

Is Bill Haslam going to keep riding roughshod over the voters?

And I'll go out on a limb here: I really wouldn't expect to find that the Ashe administration used to scrupulously review each and every new state law, meticulously striking any obsolete provisions from the charter and religously offering to Knoxville voters every conceivable opportunity to opt out of the state's instruction where possible--but that the Haslam administration recklessly abandoned this process.

More likely, I'd think, that such a process never before existed in any mayoral administration.

Can we just agree that it should exist, going forward?

Seems to me that MTAS and CTAS would (should?) alert local governments when state legislation affects them or their charters.

Tamara or anyone - is there a link where one can read the city and county charters online?

Folks, this excuse that the State ate the City's homework doesn't wash.

Either way you cut it this is gross malfeasance by the City Law Department. This is their job. They are supposed to keep track of this.

The City Law Department was told to fall on their sword and they did. This is pitiful. It is a blatant violation of their oaths. And what no one wants to talk about is this is just the kind of stuff Knox County does. So much for the theory that the City is pure and all.

Also the point that no one seems to see is that this is also a way to increase the number of signatures for recall. Which may be the actual intention of the various legal interpretations.

I thought Haslam was supposed to be above this kind of nonsense?

Hey Mike.Great stuff.Really great.Haslam is too naive to be governor.He did not even ask his law director to find a way around the rediculous 2% of registered that 1900 was.All because Haslam had no serious opponent and nobody voted in 07.We pushed that change in the state law to protect us.Ha Ha.I cannot believe it.But that oath thing is a real hoot.Cracked me up.You and your mean buddies are on the right track.We will not have any housing in OUR park.The gall of Haslam to put it where we live.You were bugging us for a while with all the accusastions you made that Big Jim told Tom what to do.Tom is the attorney helping Peabody but he messed up the petition.He would have gone to the meeting friday but he would be outed.But good luck on the.And lets by all means make sure the charter allows so few people to put stuff on the ballot.Think what we could do.We could get 2000 people to sign somethng segregating lunch counters in Knoxville.Think of the great mischief.We would make Knoxville the laughing stock of the country.We could outlaw spending on anything but streets.Ha Ha Ha.

This is so true. Haslam did absolutely nothing to get around the 1900 limit, not even to get his law director on the case to find a way around it. They had no reason at not to make this case from the get go.

It would be stupid and irresponsible to put the original 1982 language on the ballot so it could be reinstated. Turnout has gone way down since then and to let so few people put something on the ballot would be really dangerous Whoever in the General Assembly sponsored this bill to have the bar at 15% of registered was very wise. This shows why. I am thankful. So if Peabody can get 15000 then go for it. That is about the right number. This is a representative democracy.
We have come close to showing Knoxville as a horrid place. Look at todays paper. This kind of housing works in other places where the politicians have the guts to stare down the heartless. In America you dont get to keep people you dont like from living where they have a right to live. Zoning determines whether a housing complx for anyone is apppropriate. Not whether bigots dont like it. That goes for all areas of Knoxville. They are to be commended for trying to put it west.

Goins had given this the green light.

Sounds to me like Goins had originally looked in the charter text at these same parenthetical notes your friend Rob Smith looked at, here...

(Ord. No. O-408-03, § 2, 11-25-03, ratified 8-5-04; Ord. No. O-17-06, § 2, 1-31-06, ratified 11-7-06)

...and drew the same mistaken conclusion your friend Rob drew, namely that the charter's lower sig threshold had been "reiterated" via ordinance sometime after 1997, causing the city's provision to trump the state's provision.

However, when it occurred to him--or to one of his staff--that possibly neither of those two post-1997 ordinances to our charter had "reiterated" our lower sig threshold (which both Rebecca Ferrar and Deputy Law Director Ron Mills say they didn't), then he had to phone the Haslam administration to see exactly what changes the ordinances brought about (which Bill Lyons says they did).

Really, Nine, I have no further questions on this point.

I would like to understand a little better by what device the city learns of changes in state law that might impact on the charter, and whose decision it is whether or not to "opt out" of new state laws when we can--but those are my only questions remaining on this topic.

This whole thing smells. How does the state election commission approve the referendums one day and unapprove them the next without the city being involved? Less than 7,000 people voted in the last city election so now to have referendums people have to collect 15,000 signatures? That is more than twice the number of people that voted. Haslam ripped us off. No way he should be running anything. How is the heck can he do this? It doesn't make sense that it takes twice the number of people that voted.

What next? Will Haslam now try to have the Law Department declare null and void the Downtown Hotel Referendum? They have already gone to great lengths to make it null through other means.

What does it take to get some straight up government in this place?

This is why people don't vote. They perceive it is a rigged game so they wash their hands of it. The State standard on referendum rewards low turnout. The lower the turnout the more protection the politicians have. It actually rewards voter apathy in that it ties the number of signatures for referendum to registered voters. Which in a college town is ridiculous. How many long gone students and deceased people are on the voter rolls? Using registered voters is using an inflated number.

City Council has an obligation to fix this in their next meeting if the Law Department is correct in their interpretation. The idea you have to get twice the number of voters for referendum disenfranchises the people.

When you look at Flenniken you see a government that has thumbed its nose at the people from day one. Ignoring MPC twice. Ignoring the voters untold times. Then approving a one of a kind BZA variance on preliminary drawings. Is there any difference to this and what County Commission has done on Midway?

This is a government that refuses to hear the people.

How many long gone students and deceased people are on the voter rolls?

Be sure and piss off Greg Mackay, too.

I'm wondering if Haslam has sent the digit a thank you letter yet. He's one of those people you're delighted to have on the other side.

BTW, I'm confused by this "the City overruled MPC multiple times" stuff (Nine says twice; somebody at BZA last week said three times).

I readily admit my memory may be faulty, and I'm happy to have someone refresh it if so, but I recall MPC approving the Flenniken rezoning (which Council subsequently also approved) and denying the use on review application (which Council subsequently overrode and approved).

That would make ONCE that Council overruled MPC on Flenniken.

Can somebody tell me when the other time(s) was?

It looks like the Justise (as in B. T. Justise) is presiding on this case over at the KNS site this morning. Maybe you caught Bill Lyons' and Ron Peabody's "point-counterpoint" editorials?

Here's Bill...

(link...)

And here's Ron...

(link...)

...who's playing dumb as to why his group's petition was denied.

Sez Ron, "Sadly after the Tennessee State Election Commission had approved our referendums A LEGAL CHALLENGE HAS COME FORTH FROM THE CITY LAW DEPARTMENT. Because of this, the number of signatures required has gone from 30 percent of the last city mayoral election turnout, or 1,968 signatures, to 7.72 times that number, or 15,200 signatures."

I linked the state law on the subject, but what an asshole this Ron Peabody is.

"Sure he does, right here: "We have begun a series of meetings to better explain supportive housing and move beyond the stereotypes that so often degrade and limit dialog.""

Have you been to any meetings? Mr. Lyons' is not answering the questions Mr. Peabody's group has been asking. So you know. The questions are; "Who would provide those addiction therapy services, where they would be located and who would pay for them?"

Those are reasonable and needed questions and they need answers. Answers Mr. Lyons' and Mr. Lawler refuse to provide.

"That's what Peabody is doing, using stereotypes to degrade the dialog. He is redefining the problem so that the city's solution looks inappropriate, ignoring the full scope of the issue, fear mongering and inventing conspiracies. "Move beyond the stereotypes" is exactly the answer Peabody deserves."

Do you work for the Ackermann PR firm? That is nonsense. The stereotype excuse is little different from the nimby excuse. For $100k you should be able to do better. If this was a contest, Mr. Peabody won hands down.

Randy, can we get some goats?

(link...)

I like this because it applies at so many different levels. The words don't match the pictures and if you don't pay close attention you're not likely to understand any of it. Carry on.

Rikki,

The hotel petitioners in 2003 did just fine playing this "rigged" game. In fact, they got about 10,000 more signatures than they needed, and they did it without whimpering, blubbering, concocting wild conspiracy theories and generally acting like they are one synapse twitch from the loony bin.

Section 709 of the City Charter was amended in November of 2003 and again in 2006. The Hotel Folks were working on the Non-Amended 709, which was superseded by the State Law from 1997.

No rigged game then, Mackay told them they would have to collect the 15,000 plus signatures, as per the Mackay memo to Swanson, evidently Mackay had a "lapse of memory" with Peabody, and the Media of Knoxville back in April, when he told all of them the number would be 1968.

Get your facts straight.

In the Metro Pulse today, Jesse Mayshark talks about the Variance issue that is now a problem for the TYP. Looks like the TYP team is up to their old tricks. They must be really slow learners.

(link...)

It's very easy to sign the Ballot Referendums on the Ten Year Plan.

Go to:

(link...)

Everything you need is there.