Sun
Jul 27 2008
01:42 pm
Swear In Officers As Required By Law
By: Herbert S. Moncier

Mr. Daniels wrote an op-ed in the July 27th News-Sentinel suggesting that persons elected August 7th not be sworn until 9/1/08. Mr. Daniels suggested there has been some custom or procedure in the past that officers elected to fill a vacancy until the next election take office on 9/1 rather than after being elected. To my knowledge this has not previously occurred and even if it did it appears contrary to the law. In fact, County Commission immediately sworn in those it appointed on January 31, 2007 and again on February 8, 2008.

The people will recall that Commission, when it made its appointments on January 31, 2006 and again in February 2008, swore in the appointees the same day immediately after the appointments..

The people have the right and deserve that those they elect on 8/7 be sworn and take their place in the peoples' government at the earliest moment. Any notion that a person elected on Aug. 7th should permit a person never elected to continue in that office until 9/1 is wrong and violates the trust of those who voted for that official.

KC Charter Art. 2, § 2.08 provides the 8 commissioners appointed serve until the next election and are sworn.

State law T.C.A. § 5-1-106(b) provides the 4 fee officers and law direcoter appointed serve unit the next election and are sworn.

After the election on 8/7/08, the Election Commission must certify the winners within 10 days, i.e., 8/17 or 8/18. After being certified winners those officers become officers elect.

After being certified, it is a MINISTERIAL duty of those officers certified to take their oath of office. Their failure to do so is subject to mandamus (an order to perform their duty) by a court under T.C.A. § 9-25-102 and can considered an unlawful act to remove them as officer elect pursuant to T.C.A. §§ 8-47-101 or 29-35-101.

Prior to 2006 the people of Knox County were the subjects of a political regime. Since 2006 the people of Knox County have lived under an appointed government.

As of 8/7/08 the people of Knox County will elect a new government.

I was impressed with Mr. Daniels during the Open Meetings lawsuit. Other appointed officials have served well and deserve our appreciation in addition to their compensation.

The installation of an elected government for Knox County has nothing to do with Mr. Daniels or any other appointed officer, including the Law Director. Nor does installing officerselected to fill a vacancy immediately have anything to do with any pending issues or work of the Commission.

This has to do with the core concept of a republic, i.e., the election by peoples' of those officials who will serve the people's government.

For the republic, we must do everything possible in our collective efforts to have an elected government in place at the first possible moment.

I call on the Knox County Commission at its July 28th meeting to set a swearing-in ceremony immediately following the Election Commission meeting certifying the winners for all officers elected by the people.

Herbert S. Moncier

Topics:
R. Neal's picture

Mr. Moncier, thanks for

Submitted by R. Neal on Wed, 2008/07/30 - 1:28pm.

Mr. Moncier, thanks for sharing your views, and for participating at KnoxViews. I tend to agree with your assessment. This is not an ordinary election.

bill young's picture

Do what the law says

Submitted by bill young on Wed, 2008/07/30 - 2:51pm.

Looks to me like the Tn Constitution(Art VII sec 2)is pretty clear..those appointed to fill a vacancy can not serve after their successor is elected.I would think once an election is certified the appointed county officers are prohibited to serve.

The key word is certified election..an election can be challenged & delay certification.

I don't think there is any point to asking those running ..if they become the elected successor to a county officer appointed to a vacancy under the Tn. Constitution will they be sworn.I think the question is can the appointed county officers carry out the duties of office?

Futhermore,can somebody help me with Art VII sec 5 of the Tn.Constitution?

1.Does "civil officers" include the Sheriff,Trustee,County Clerk,Register of Deeds,Assessor of Property & County Commission?

2.If so does this apply to the officers mentioned above:

"The term of each officer...shall be computed from the first day of September."after the 1st Thursday in August county general election?

3.If so is that why county officers elected in an August county general election are sworn Sept.1st?

4.If so the Assessor of Property could not be sworn till Sept. 1st?

Simply put is Sept 1st required by the Constitution for county officers to be sworn unless they are successers to a county officer appointed to a vacancy?

B. Paone's picture

My biggest question...

Submitted by B. Paone (not verified) on Wed, 2008/07/30 - 6:03pm.

...is whether there is a set time frame in which an elected official must take the oath of office.

Per John Owings, the term "qualified" in Article VII, Section 2's "elected and qualified" means "sworn in". Also (and I'm far from being a lawyer), there doesn't seem to be any set deadline for taking the oath of office, other than the language that states terms are calculated starting September 1.

I have to agree with Bill Young's title - Do what the law says. If the law doesn't specifically say that the newly elected replacements have to take their oath of office before September 1, though, then there doesn't seem to be a whole lot of sense in fighting a battle over whether the appointed replacements can't finish out August.

I mean, let's face it. They haven't done a bad job, really. Sure, there's questions about some seeking too much media attention or others aligning themselves with one faction or the other, but in the end, if you look at the effort and attention they've put into office, it's not like they've been *bad* at it.

If the law doesn't say they have to get out before September 1, my personal view is that there's no real harm in letting them stay on. Hell, we've got enough controversy in this town. Might as well head one off at the pass for a change if we can.

rikki's picture

Hell, we've got enough

Submitted by rikki on Thu, 2008/07/31 - 10:08am.

Hell, we've got enough controversy in this town. Might as well head one off at the pass for a change if we can.

Allowing the unelected to serve too long IS the controversy. It is elected officials who get to serve out a full term, from a Sept 1 to a Sept 1. The appointees have no rightful claim to that date. They were not sworn in on a Sept 1, and the law clearly provides that their terms be only as long as necessary. There is no basis for allowing them to hold power once a rightful holder of the seat has been chosen by the people.

No controversy could arise from making the commission whole, only from keeping the de facto commission in place. The appointees' have no right to serve until a certain date, and they should not be granted their baseless claim.

bill young's picture

I agree

Submitted by bill young on Wed, 2008/07/30 - 9:14pm.

If qualified = sworn I'm cool with those appointed folks staying for the August meeting.My nagging problem is for 2 1/2 years all kinda folks have been dead certain & ended up dead wrong.

It dawned on me..hell if the appointed folks stay till spt 1st..is everything they do between the election being certified & spt 1st void because the const says they cant serve & qualified means qualified for office not sworn?

The reason I ask the questions about Tn const art vii sec 5 is that I keep hearing Spt 1st is some kinda free floating deal...but it looks to me like it's in there..in the same sec the 1st thur in aug is when the county general is required & thats the way its been since the state const was enacted...

reform4's picture

I'm not sure I followed all that..

Submitted by reform4 on Wed, 2008/07/30 - 9:42pm.

.. but we didn't annul any of the actions of the Black Wednesday appointees. They serve until the electees are "sworn" by our charter, so I don't see why their actions would be void.

-----------------------------------------
Fighting for Reform and Representation, Fourth District
Steve Drevik, Commission Seat 4-B
(link...)

bill young's picture

supreme court

Submitted by bill young on Wed, 2008/07/30 - 10:50pm.

I think the Tn. Supreme Court said we had a defacto government. Plus again I think the Court ruled the actions of the defacto government were valid.

The Court's immediate remedy was to declare term limits valid & those seats are vacant & appoint per law.

The ultimate remedy was this county general election.

Not to kick a dead horse but my point is if the Tn Constitution and I may not be right says those appointed to a vacancy under Art VII sec 2 can only serve till their successor is elected...well then we made need to take a hard look at it.

I'm about damn tired of Courts telling us we just dont get it..Do what the &*%*#@* law says.

reform4's picture

Define "qualified" in Article VII

Submitted by reform4 on Wed, 2008/07/30 - 11:41pm.

Section 2 says until the replacement is "elected and qualified." Note just "elected."

Nobody else can seem to define what that term means, other than qualified = sworn (I think this is Owing's current viewpoint), which would match the Knox County Charter.

It's hard to do what the law says when it's not crystal clear. It would be nice if someone would step up and define "qualified."

Rachel's picture

Qualified

Submitted by Rachel on Thu, 2008/07/31 - 12:12am.

I assumed "qualified" meant certified. But goodness knows I'm not a Tennessee legal expert.

Anonymous's picture

being sworn after certified

Submitted by Anonymous (not verified) on Thu, 2008/07/31 - 7:55pm.

mr john ownings was not elected,he was appointed, did he say this applied to bill locket being sworn in on the same day that he and(mayor ragsdale)want? me thinks rags and john have had all they want of these folks that refuse to do as they are told by these two evil twins.

rikki's picture

Lockett should be sworn in

Submitted by rikki on Thu, 2008/07/31 - 9:04pm.

Lockett should be sworn in at first opportunity as well. Appointees should not be in office any longer than necessary. I'm sure most of the commission candidates have followed issues closely and are ready to hit the ground running, and if the new fee office electees need the appointees to stick around for a week or two, they can hire them temporarily.

It is quite absurd for Daniels to appeal to tradition as his rationale for wanting a Sept 1 swear-in. There is nothing traditional about eight appointees on commission at once.

Tamara Shepherd's picture

Agreed

Submitted by Tamara Shepherd on Thu, 2008/07/31 - 11:46pm.

I agree with Randy, Bill, and especially Rikki. We have had a "de facto" government for over a year and a half now!

Furthermore, I'm sure that newly-elected persons have been sworn in prior to September 1 in the past, even when they weren't replacing appointed seatwarmers. I distinctly recall Diane Jablonski commenting on it some years back.

(Jablonski served on the school board until 2002, so that August swearing-in would have occurred prior to September 1, 2002. I can't recall for what reason it took place.)

Tamara Shepherd's picture

2002 swearing in

Submitted by Tamara Shepherd on Fri, 2008/08/01 - 9:40am.

Ah, now I recall the reason for the early swearing in in 2002:

Following that election, September 1 fell on a Sunday and Labor Day was observed the following Monday, September 2. Newly-elected officials took their oaths in late August for that reason. Calendar here: (link...)

In any event, the practice is not without precedent.

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