Who should pay to defend the three Election Commissioners named in the recently filed lawsuit? The County? The State? Each Individual?
Are they employees of the state? Of the county? Or are they not employees at all in the context of this lawsuit?
These questions must be resolved, apparently, in the next two days in order to respond to the civil action lawsuit filed on behalf of Nancy Boman and other ousted commissioners across Tennessee.
Three commissioners, Jean Cody, Terry Herrin and Joan Ross, have been named with 20 other commissioners in the middle Tennessee region in a civil action lawsuit filed by 8 previously seated commissioners.
Six of the commissioners lost their jobs as a result of the election commission actions. According to Terry Herrin, it is a matter of record that Boman retired with full benefits based on her accruals of sick days and other benefits.
The lawsuit states that Boman was “terminated only weeks prior to her completion of of thirty years of public service.” Based on these statements, it is unclear what damages she incurred or is seeking in the case.
The lawsuit additionally states that “Ms Boman’s replacement had arrived at the meeting (April 23, 2009) with an election law book and binder and informed the commission that she had already quit her previous job in apparent reliance on Defendants’ representations that she would be hired as the new administrator of elections.” One prominent Democrat who prefers not to be named stated “It wasn’t what they did, but how they went about it.”
Today, the Putnam County Election Commission met to consider their options and made some decisions in the matter.
The major question of financial responsibility for defense was discussed prior to motions and voting on the matter of legal counsel.
In other counties across the state, the Election Commissions are being treated as County employees, but the Putnam County commissioners are in “no man’s land” according to Terry Herrin.
Commissioner Herrin referenced section 2-12-210 of the Political Parties and Primaries state procedures that asserts “Status as county employee unchanged. Nothing in Acts …shall be construed as conferring upon any county election commission….status as a state employee.”
The legal opinion of the Attorney General is in agreement: Putnam County Election Commissioners are Putnam County employees.
County Commission attorney Jeff Jones, however, delivered a different legal opinion and referenced a decision made in a Bradley County case as precedent.
Jone’s opinion stated “Given this suit is against you in your individual capacity, as well as the previous federal court decision regarding the county’s responsibility, at least at this point, it is my opinion that Putnam County does not have to provide for the payment of fees and expenses associated with the legal defense of you in this matter.”
It is interesting to note that in the body of the civil action suit, the “Statement of Facts” states that “County election commissioners are county employees.”
Joan Ross’s voice was unsteady as she made a motion to the committee, “I’m very nervous, I’ve never been sued before…. I’d like to make a motion that the election commission retain John Harris as an attorney to represent the commission in filing a lawsuit against the county to determine
a) whether the election commission are employees of the state, county or some other governmental entity
b) whether the state, county or some other governmental entity has a duty to provide legal representation for an election commissioner if he or she is sued as a result of actions taken as a commissioner.
c) whether the state, county, or other governmental entity has a duty to provide legal representation for an election commissioner if he or she is sued as a result of actions taken as a commissioner.
d) whether the election commission is entitled to hire an attorney of its own selection even if the state or county provides legal representation in a lawsuit involving the lection commission and/or a commissioner in his or her individual capacity.
e) any other matter that may be appropriately raised in such action.
Ross’s motion passed with a majority of 3 (for) to 2 (against).
Said Herrin in the meeting “Only until I was sworn in do I have any power, so the notion of being sued is ludicrous. Some say we’re county employees, some say we’re state employees, some say we’re not employees….we need to know the answer to that to know who gets the bill (for our defense).”
Said Commissioner Perry – “We’re appointed to the state, but my check comes from the county.”
Ross preceded two additional motions with the statement “Personally, I feel that this lawsuit is much more than it seems on the surface and that any decisions we make…that we may be sued again.”
Continued Ross, “I’m going to make a motion to retain Sam Harris on a retainer basis to advise the election commission as to any legal needs or lawsuits that may arise which involve the election commission and/or one or more election commissioners”
Terry Herrin added, “Since the county is refusing, we feel we need an attorney to help us through election time and through anything that comes up. We’re not getting help anywhere else, so I feel we need to do this.”
This motion passed unanimously.
The third motion presented was to retain John Harris as counsel to represent the Commission and/or individual commissioners in any pending or to be filed action if such action is based upon any claims relating to the Election Commission, its duties, functions, actions or omissions.
This motion also passed unanimously.
Commissioner Herrin said “It’s very troubling to deal with this kind of stuff and we have only two days remaining to answer this lawsuit. Once they figure out who is responsible, we’ll move forward from there.”
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