Lowrey, Others Mainly Interested In How State
Law Should Be Applied
BY KRISTEN BUCKLES
The exchange between political activist PK Lowrey and 3rd Judicial District Attorney General C. Berkeley Bell that began as an ouster petition against a local official is increasingly focusing not on that official himself but on getting an authoritative answer to the petitioners' main question:
Can citizens acting by petition -- independent of officials such as district attorneys or even judges -- force the ouster prosecution of an officeholder?
On Oct. 8, Lowrey submitted to Bell a petition signed by himself and 16 other citizens calling for Bell to file an ouster suit against Greene County Commissioner Tim White because of White's alleged involvement in a conflict-of-interest situation.
However, Lowrey stated in an Oct. 9 letter to Bell that the purpose of the petition was not so much to remove White from office as to determine whether Tennessee's ouster law provides a way for citizens to remove government officials from office without the approval of other government officials.
On Nov. 5, Bell returned the petition to Lowrey, noting that it was addressed to the Tennessee Attorney General, not to him as 3rd Judicial District Attorney General.
"If you did intend to file your petition with this office, I am nevertheless returning your petition because I do not concur in your allegations that Mr. White violated TCA (Tennessee Code Annotated) 12-4-101, nor do I concur that TCA 8-47-101 applies," Bell said in his reply, which Lowrey provided to The Greeneville Sun.
The background to the exchange was that, in February of this year, a company in which White is a co-owner, A&W Farms Excavating & Hauling, LLC, won a formal bidding process administered by W & W Engineering to install a new sewer line in connection with the new fieldhouse being built at Chuckey-Doak High School.
A week later, White voted as a member of the County Commission to authorize a transfer of $62,000 from county school system savings to a county school system Capital Projects line item.
The purpose of the transfer was to pay for two parts of the overall C-DHS fieldhouse project, including the $22,190 sewer line installation that White's company was going to handle.
The motion to permit the transfer was approved unanimously by the County Commission.
A few days after that, the County Board of Education formally accepted the recommendation from the board's Bid Committee to award the sewer line contract to White's company. Later, the company performed the work, and was paid.
On Monday, Nov. 19, a majority of the County Commission debated the issue at length and then decided in an 11-7 vote that White did not have a conflict of interest in the situation.
INSISTS ON INNOCENCE
After the petition from Lowrey and the other citizens was presented to Dist. Atty. Bell, White vehemently insisted in an interview with The Greeneville Sun that he was innocent of any wrongdoing in the situation.
He also said that he would take legal action against any signers of the petition if an ouster suit was prosecuted against him and failed.
In Bell's Nov. 5 letter replying to Lowrey, the district attorney repeats earlier explanations he had given in an interview with the Sun in September as to why his office does not intend to prosecute White.
To begin, he notes that the basis on which Lowrey made his petition was White's Aug. 13 vote on the 2012-2013 county budget, which did not include any funds related to White's work for the school system.
"You have not presented me with, nor am I aware of, any evidence that he has any interest, direct or indirect, in such vote," Bell wrote.
As for votes White had previously made on budgets, Bell said the Greene County Board of Education is the authority over the county school budget, with the County Commission accepting the school board's recommendations.
"It is then up to the Greene County Board of Education to order warrants drawn on the county trustee and to expend such money -- in this case for construction -- by a competitive bid process," Bell said.
He went on to explain that W&W Engineering oversaw the bid process, and later recommended A&W Farms' bid to the school board.
"Commissioner White had no duty, as a commissioner, to vote for, let out, overlook, or in any manner to superintend any work that was performed for the Greene County school board," Bell wrote, echoing the language of TCA 12-4-101.
"Nothing he did, or could do, as a commissioner affected his contract with the school board, an independent, duly-elected body, which awarded the contract based upon competitive bidding overseen by an independent engineering firm hired to supervise the work."
Bell goes on to detail both state and case law, noting that a Tennessee Attorney General had opined in the past that a "commissioner cannot contract with a county school board under any circumstances," based on "an expansive interpretation" of what it means to "superintend" a budget.
However, Bell said, the Tennessee Court of Appeals later did not agree with this interpretation in a case similar to White's, and took the position in that case that the commissioner did not "vote for, let out, overlook or in any manner superintend" the work or contract.
"Therefore, due to this uncertainty, I do not believe that Commissioner White is subject to ouster pursuant to TCA 8-47-101," Bell wrote.
"In pertinent part that statute requires for ouster that Commissioner White '... knowingly and willfully commit misconduct in office ...';
"I find nothing in Commissioner White's actions in this matter that accounts to misconduct, much less knowing and willful misconduct."
Bell concluded that Lowrey and his co-signers can, pursuant to 8-47-110, file their petition with the State Attorney General, with Greene County Attorney Roger Woolsey, or file it in a court of competent jurisdiction "after giving the usual security for costs."
This cost responsibility would only apply if the petition-signers were to file the lawsuit without any official's involvement, Bell explained in a follow-up interview.
For Lowrey, however, Bell's extensive reply did not address the matter at the heart of his concern -- whether citizens can compel an official (in this case, District Attorney General Bell) to oust another official (in this case, Commissioner White).
In an interview with Lowrey after he had received Bell's Nov. 5 letter, Lowrey said that, if the other signers of the petition concur, he would "likely not pursue" any effort specifically designed to oust White.
In a written reply to Bell's response to the petition, Lowrey said, "Your analysis of the Tim White situation appears thorough, according to state statutes and case law. I have no argument with your work."
He did note, however, his feeling that a jury "might have a more common-sensible idea of conflict-of-interest."
The remainder of Lowrey's response to Bell's letter addresses Lowrey's concern that Bell said he does not "concur that TCA 8-47-101 applies." (TCA 8-47-101 is a state law pertaining to conflict of interest by public officials.)
"I read this [Bell's statement] as your explicit position that your approval (or the approval of whomever the petition is properly submitted) is required before the complaint [prosecution] is filed," Lowrey wrote.
METHODS OF FILING
He then cites his understanding of the four ways an ouster complaint can be filed, according to state law:
* "The first method (TCA 847-102) is institution on the prosecuting attorney's own initiative.
* "The second method (TCA 8-47-103) is institition by the prosecuting attorney after investigation based upon written allegations.
* "The third method (TCA 8-47-108) is institution by the prosecuting attorney upon direction or request in writing from the governor.
* "The fourth method (TCA 8-47-110) is institution by the prosecuting attorney upon the relation of citizens."
'WHAT'S THE DIFFERENCE?'
"What is the difference between the second method and the fourth method?" Lowrey then asks in his letter to Bell.
"The fourth method must be different from the second method, or it would not have its own entry or be followed by TCA 8-47-111, an entry which provides supporting information."
(TCA 8-47-111 states, that it is "the duty of district attorneys general and county attorneys," upon "request of relator citizens and freeholders," to "aid and assist in the prosecution of such proceedings against county officers.")
"Surely," Lowrey continues, "if the petition detailed in the fourth method was merely a written allegation, then the second method would obtain, and there would be no reason to include the fourth method in the law."
"The second method clearly permits the prosecuting attorney's discretion in filing the complaint, while the fourth method clearly specifies the complaint be filed 'without the concurrence' of any other officeholder.
"Confusion exists, and your thoughtful, reasoned analysis of the Ouster Law wold benefit all concerned citizens and officeholders alike."
Bell emphasized in a follow-up interview with The Greeneville Sun that he does not believe state law allows citizens to force officials by petition to file an ouster suit.
"That's exactly how [Lowrey] feels, but that's not correct," Bell said. "I have to assess any given situation to see if the law applies and then act accordingly, which I've done in this situation."
WHAT ABOUT A JURY?
In Lowrey's letter to Bell, Lowrey also raises the question of whether citizens can specify that an ouster suit resulting from a citizen petition be presented to a jury rather than to a judge.
"Of course, without a jury trial, the case would be decided by a judge -- another government officeholder. That defeats the idea of independent citizen action," he wrote.
However, Bell said he is not certain if court officials would grant such a request (that a case forced by citizen petition be heard by a jury rather than by a judge).
"As I understand it," Bell said, "[an ouster suit] is filed in Chancery Court and, ordinarily, in Chancery Court a jury is not utilized."
"[Whether such a request would be granted] is up in the air really."