Moncier suit against appointments a fuzzy focus

Submitted by Tamara Shepherd on Thu, 2007/02/01 - 4:49pm

In the I'm-not-a-lawyer-but-I-play-one-on-TV department, here are some thoughts about the focus that Moncier's latest suit takes. (In a second disclaimer, I rely only on Barker's story, page A1 today, because the link to the complaint itself at the knoxnews.com site isn't working.)

It seems Moncier chooses an uphill, not to mention well-trodden, path in his attempt to temper or undo an existing supreme court opinion. That opinion has already defined, on the basis of *state* law, when an office is vacant and we need not rehash it.

Besides, our collective question now isn't whether vacancies existed, but what process should have been used to fill those vacancies. Since the court was virtually mute on that subject, they seemed, by implication, to validate the instruction available to Commissioners in our *local* law, namely the County Charter they upheld.

So, if the question of what constitutes a vacancy has already been answered in state law and if the instruction for filling vacancies lies in local law, why is Moncier posing this redundant question of vacancies and why is he looking to the wrong body of law, state rather than local, to undo a botched appointment process?

To wit, these are some matters of *local* law which should have guided yesterday's appointment process, but which Moncier fails to cite in his suit:

The Charter says nominations may be made by members of the Commission only. While the irony isn't lost on me, I think we saw Commission violate that instruction yesterday when they appeared, at least, to entertain nominations from the floor.

The Charter also says that each member of Commission may vote in favor of one nominee, by name, only. While that's ultimately what they did, I personally question Moore's repeated offer to Commissioners, after every Commissioner had cast a vote, to then change their votes.

Most compellingly, the Charter says that prior to voting, Commission *shall* (not may), by resolution or ordinance, establish the procedure for arriving at a majority vote. We didn't see a resolution or an ordinance either one, but we did see agenda-juggling, out-of-earshot discussion, and the appointment of two late-filing applicants.

I fear, then, that our would-be champion's focus is fuzzy.

Tamara Shepherd's blog

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Whaaa?

Submitted by Patricia on Thu, 2007/02/01 - 7:16pm.

I thought the brunt of Moncier's lawsuit stated the commission violated the Tennessee Open Meetings Act aka the Sunshine Act or Sunshine Law. They did this by taking all those recesses to twist arms in the back.

Open meetings, maybe; other points, not likely

Submitted by Tamara Shepherd on Thu, 2007/02/01 - 8:00pm.

Oh, Moncier cites open meetings violations, too--and they're his only points with any potential to stick, I think. Sorry if I seemed to discount that. Personally, I was just rolling my eyes at the rest of his content...

He's maintaing that the offices *aren't* vacant, after a supreme court decision said they *are*, only to argue in his next paragraph for "a manner of election" to fill these (not-vacant)offices? Huh? And he's arguing that Tindell, Jones, and Tramel weren't eligible to serve in these (not-vacant) offices? Tindell was immediately removed from the one office the moment he was appointed to the other. Jones and Tramel were employees of, not officeholders in, their respective county departments, so huh again. He takes exception to Bolus's swearing in (and I do, too), but Owings did offer that chance to all and even Schmidt conceded that the act had been legel, if deceptive procedurally. A judge will have to weigh the legality of the move, though, not the etiquette, wouldn't you think?

One last clarification,,,

Submitted by Tamara Shepherd on Thu, 2007/02/01 - 8:46pm.

...so as not to convolute as badly as Moncier does.

I only mean to suggest that he could have made stronger arguments to invalidate the appointments if he had focused on commission's failure to follow their procedural instruction for appointments, as outlined in the charter.

I think that Commission's real transgression was in failing to "establish the procedure for arriving at a majority vote" in advance of their meeting (by resolution or ordinance, in fact). If they'd followed that charter instruction, we on-lookers could have more readily called them on all the repeated tie-votes, the agenda-juggling, the multiple recesses, the arm-twisting in clear sight, the out-of-schedule swearing ceremonies, the nominees from nowhere, and the appointments of late applicants. Since Commission didn't cite any rules they'd be following, though, we couldn't maintain that they'd broken any.

That's the point Moncier fails to make and I think he might have argued it more easily than those he has chosen.