VOL. 131 | NO. 225 | Thursday, November 10, 2016
View From the Hill
Why is It So Difficult for Tennessee To Oust Indicted Politicians?
BY SAM STOCKARD
Tennessee is lagging much of the nation when it comes to the ability to remove scoundrels from public office.
Rutherford County Sheriff Robert F. Arnold is facing public corruption charges after being named in a 14-count indictment that accuses him and others of benefiting from a scheme to sell electronic cigarettes to inmates in the jail he oversees. He has since had his bond revoked and is being held in a Kentucky jail.
(AP Photo/Mark Zaleski)
And, make no mistake, the Volunteer State has had its fair share of ne’er-do-well politicians who would likely have been thrown out of office if the proper procedures had been in place.
Instead, a few dramatic scenarios played out with the state in the embarrassing national limelight.
State legislator Tommy Burnett was re-elected from prison in 1984, proving perhaps that many Tennesseans have a high tolerance for bad behavior.
Gov. Ray Blanton was run out of office three days early due to a ‘cash for clemency’ scandal in 1979, moving newly elected Lamar Alexander into the job to clean up the mess.
Eleven lawmakers in Chattanooga and Memphis were charged in the two-year FBI sting, the Tennessee Waltz. Chattanooga Democrat Ward Crutchfield, who had been Senate Majority leader, went to jail in 2007. Crutchfield wasn’t ousted from the post, he simply was allowed to resign.
John Ford, Memphis Democrat, spent five and a half years in prison in the scandal.
Most states, with their own homegrown scandals, are worn out with bad behavior and are doing something about it.
From Alaska to California and Arizona to Georgia, Michigan and Montana, 29 states have provisions allowing the recall of public officials, including several, such as Oregon, which allows any public officer to be booted, according to the National Conference of State Legislatures.
In fact, Tennessee does have a procedure for voters to remove city council and school board members. But that’s where it ends.
Other locally elected officials can be removed only through an ouster lawsuit or felony conviction in the midst of an elected term.
The shortcoming could change in the 2017 legislative session, thanks to Rutherford County, where second-term Sheriff Robert Arnold faces a 14-count indictment on federal corruption charges. He’s being held in a Kentucky jail until a Feb. 7, 2017 trial after having his $250,000 bond revoked.
A group of Rutherford County residents filed an ouster complaint against him the day after a federal magistrate decided he should be jailed based on probable cause he committed domestic assault and tampered with witnesses.
Through the ouster filing, he could be suspended temporarily from office and lose his hefty $127,000 salary until the ouster is decided by a Davidson County chancellor.
But some local leaders and state legislators believe the sheriff’s case should spur a law allowing public officials to be suspended or removed without a protracted legal battle – something different from a civil ouster proceeding.
State Sen. Bill Ketron, R-Murfreesboro, is working with the Tennessee Sheriffs’ Association to craft a bill enabling commissions, councils and citizens to take action against constitutional officers such as the sheriff, register of deeds and county clerks if they are accused of breaking the law.
It’s early in the process, and, according to Ketron, the Legislature’s legal staff is studying state law regarding county commission options to remove constitutional officers such as clerks and sheriffs who receive protections under the state constitution, in addition to ideas for a bill he can propose when the General Assembly convenes in January.
Passing such a bill could prove to be an arduous task if it means amending the state constitution, Ketron says. Yet he says he believes some type of comprehensive bill is needed.
“If you were a police chief, the mayor or city council could fire them the next day. Whereas a constitutional officer, I don’t think it’s fair that, as in Sheriff Arnold’s case, he’s sitting in jail collecting benefits and pay,” Ketron points out. “But at the same time, he hasn’t been convicted of anything. We have to be very careful about how we approach that.”
The fact the sheriff is drawing his salary while in jail is one of the biggest problems, though a litany of concerns has been raised about the entire situation.
Rutherford County Commissioner Robert Stevens, a former state House candidate, says he wants legislation enabling local commissions and councils to suspend indicted elected officials until they go through the court system. If acquitted, the elected official could receive back pay, he says.
Stevens, a member of the Rutherford County Commission’s Steering and Legislative Affairs Committee, brought up the matter in light of Arnold’s bond revocation and looming trial.
“It’s very difficult to explain to constituents why we’re still paying someone under federal indictment and he’s sitting in prison,” Stevens says.
Arnold, Chief Administrative Deputy Joe Russell and the sheriff’s uncle, John Vanderveer, of Marietta, Georgia., are charged with benefiting from an unauthorized deal to sell e-cigarettes to county jail inmates and then cover it up by lying to county and state officials about the scheme.
All three were free on a non-secured $250,000 bond, meaning they didn’t have to a pay a penny, and Arnold would have stayed out of jail if he hadn’t gotten into a scuffle with his wife after a Labor Day pool party, at which he drank a 12-pack of beer and later took a sleeping pill.
The incident led to his bond revocation and a host of embarrassing revelations, all of which make Rutherford County voters look like a bunch of imbeciles.
Ketron is preparing to discuss potential legislation with Tennessee Sheriffs’ Association Executive Director Terry Ashe, a former Wilson County sheriff. Ashe says legislation could affect municipal office holders in addition to constitutional officers, mainly people who hold “positions of public trust. He points out district attorneys in Tennessee who have gotten into trouble as well for breaking the public’s trust.
“The hurdle here is not to have abuse. That’s the key. I don’t think you just oust based on an indictment. Sometimes you can indict a cucumber, OK,” Ashe explains.
“But at the same time, the seriousness of the event, the circumstances that surround those events, and I think the seriousness of it is one of those things you’re dealing with here.”
Ketron was expected to meet earlier this week with the County Officials Association of Tennessee at its yearly conference at the Embassy Suites Hotel & Conference Center in Murfreesboro. He predicted some “angst” over legislation potentially affecting them, and he says some of his colleagues aren’t too hyped about the prospects of public recall elections.
Jay West, the association’s executive director, declined to comment on the matter without seeing any legislation and having it go through the group’s legislative committee.
“Of course, like anybody else we want to make sure the people have a voice in whatever is done,” West adds.
This is the first time the subject has been broached legislatively, West says, adding the current system of removing public officials from office “has always worked.”
But Rutherford County Trustee Teb Batey, a member of the County Officials Association of Tennessee and someone well-versed in the Legislature’s workings, says the matter “ought to be looked at, as what’s appropriate when an official is guilty of misconduct in office.”
When someone is indicted and not been found guilty yet, certainly that makes the decision more difficult, he adds.
Still, Batey draws a distinct line on the subject.
“The public elects, and so we’re answerable to the public. And my thought would be, probably, if we’re put in by an election, that somehow through an election, if we have misbehaved, there ought to be some way to remove us by election,” says Batey, who also chairs the Rutherford County Ethics Committee.
Batey concedes a new law leading to public removal of elected officials could initiate political struggles. Yet, he notes such a problem could be outweighed by the wishes of constituents.
“I’m grateful for the people who elect me, which are the people of the county, and I feel answerable to those people,” he says.
The other side
In recent state history, plenty of sheriffs, mayors and other county officials have gotten above their raising.
Longtime Davidson County Sheriff Fate Thomas and Smyrna Mayor Sam Ridley come to mind, as well Sumner County Sheriff J.D. Vandercook.
Thomas, whose Sure Shot Rabbit Hunters barbecue was the biggest political shindig in Nashville for years, resigned from office in July 1990, just before pleading guilty to charges of misusing Metro money for personal needs, running a kickback system and putting together phone payroll accounts to benefit him.
Thomas maintained his innocence and stayed in office after his indictment, but lost a primary election before being fined $80,000 and drawing a five-year prison sentence.
He died 10 years later.
Ridley, considered by many to be the father of Smyrna, resigned from office in May 1987 just before a Supreme Court order took effect ousting him after it found he used city money for personal matters.
Neal Odom, who ran the Smyrna Water Treatment Plant, sued Ridley in 1980 claiming he violated the state’s conflict of interest laws by selling vehicles through Ridley Chevrolet to the town of Smyrna and repairing the vehicles.
The lawsuit also claimed he used the city’s credit card at local stores, restaurants, motels and for trips out of state, such as travel to his daughter’s wedding. He had a home in Florida, too, where he lived during colder months.
A judge ordered Ridley to be ousted in 1981, mainly for the misuse of town funds. But he appealed the ruling and wound up winning two more elections before the Supreme Court’s decision came down six years later.
Vandercook, also a former Sumner County commissioner, and his brother, Jerry, were charged in 2006 with mail and wire fraud, money laundering and misusing funds. The sheriff was accused of hiring his brother to build a maintenance garage without bidding the $48,000 project and then trying to conceal it.
Investigators said money at the sheriff’s office also went into an escrow account used for department purchases rather than into the county’s general fund, more or less creating a situation in which the money could be used at his discretion and with no oversight.
Vandercook opted against running for re-election in 2006 and pleaded guilty a year later to wire fraud, drawing an 18-month prison sentence. (On a personal note, the late Vandercook’s parents were my childhood next-door neighbors in Hendersonville. I grew up playing in the backyard with his kids, so it hurt to see him get into trouble.)
But any time large sums of money are involved, even good people can give in to the temptation to misuse public funds or to use public facilities to make some extra cash on the side.
In the Rutherford County sheriff’s case, Arnold and his two co-conspirators allegedly made tens of thousands of dollars by running JailCigs at the county jail.
Russell and Vanderveer are the company’s co-owners, and sheriff’s office emails show Russell was running the operation out of the sheriff’s office and using jailers to hand out e-cigs to inmates who bought them online through friends and family.
In fact, the first thing inmates received when booked into the jail was a sheet of paper showing them how they could purchase e-cigs, through JailCigs only, of course, and then a list of rules.
A yearlong investigation by the TBI and FBI led to their indictment this spring and the sheriff’s eventual unraveling.
Among the oddities of this case, after U.S. Probation and Pretrial found out about the Labor Day bout between him and his wife, he apparently misled federal officers about what happened and tried to dissuade his wife from making a statement to TBI investigators.
He also called a sheriff’s sergeant to his house the night of the incident in an effort to “mess with” his wife and make her think she could be charged with assault for pinching him on the nipple. That’s what started the tussle as they struggled at their bedroom doorway, according to court testimony.
But that’s not all. A statement the sheriff’s wife made to TBI, which she refused to sign, is corroborated by phone recordings made secretly by her boyfriend, the former Eagleville chief of police. And, her mother is employed part time at the sheriff’s office and talked about the situation with Arnold there at least twice.
Her testimony in an initial revocation hearing caused U.S. prosecutor Mark Cipolletti to turn, point toward Arnold and say, “You work for this guy?”
Since being jailed, Arnold has said gangster inmates at his Kentucky jail have put a hit out on him so they could earn a teardrop tattoo by shoving a shank in his neck.
In a hearing to review his revocation order, a U.S. District Court judge found he lied about everything except the weather and decided he couldn’t be trusted to abide by any conditions of release.
“The breadth of Defendant’s prevarication while on the stand is difficult to capture in written words. Time and again he was confronted with inculpating evidence but, true to form, he offered excuses or explanations that were incredible and oftentimes inconsistent with his other testimony,” Judge Kevin Sharp wrote in his order.
Arnold also threatened to write his wife out of his will, and he proclaimed he didn’t want his wife talking to a “good looking” TBI agent because he was afraid she might have an affair with him, though it later turned out he was really afraid TBI agents might persuade her to testify against him in the criminal case.
Good Lord, is that enough?
The rest of the country
Numerous states have laws in effect allowing voter recalls of public officials.
Arizona, not exactly a liberal bastion, allows recall elections for every public officer in the state. A recall can start after the person’s first six months in office, and no grounds for removal are required. Those trying to remove the official must gather signatures equaling 25 percent of the votes cast for that office in the last regular election, and they must do it within 120 days.
Colorado has a similar law, but it allows cities, counties and towns to set up the rules for the recall, though they can’t require petitions to be signed by more than 25 percent of the last vote in that office.
Florida allows recalls for any member of the governing body of a municipality or charter county. That doesn’t seem to affect sheriffs or clerks. But grounds for holding a recall are malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties and conviction of a felony involving moral turpitude.
Even Georgia allows all state and local officials who hold elective office to be recalled for conduct adversely affecting their administration. The signature requirement is 30 percent of registered voters in the last election.
The plaintiffs in Rutherford County are questioning the sheriff’s moral turpitude, use of his office to manipulate people and tamper with witnesses, and his inability to run the sheriff’s office while in a Kentucky jail.
They didn’t bring up drinking or sleeping pills, though the sheriff admitted in his most recent court hearing he’s been taking sleeping pills for about eight months and depression pills for about 18 months, about the time the TBI and FBI started investigating his office.
A temporary suspension could take effect as a result of the ouster complaint. But the citizens group is shouldering this burden on their own, financially and without help from the county commission or district attorney. They shouldn’t be put in the position of calling the sheriff’s hand.
Too many states have rules in effect that would have allowed for a recall of the sheriff months ago. Tennessee should join them, unless state legislators are afraid they could be recalled as well.
Sam Stockard can be reached at email@example.com.