Jul 06 2014

Defining the Residency Process

Posted by Steve Ross in elections, Shelby County, shenanigans
County Commissioner Henri Brooks filing her petition for Juvenile Court Clerk - via her Facebook Page

County Commissioner Henri Brooks filing her petition for Juvenile Court Clerk – via her Facebook Page

On Monday, the effort to determine if County Commissioner Henri Brooks does indeed live in her district will come before the County Commission again.

This time will be different, as the Commission will have to begin the process anew in the wake of a completely expected and predictable ruling by Chancellor Kenny Armstrong.

Reports of the ruling (which can be found here, here, here, and here) say Chancellor Armstrong gave Brooks the injunctive relief she was looking for (effectively stopping the current effort to declare her seat vacant), and call for the Commission to set up some kind of trier of fact (either the Commission itself, a designee, or a court) to: 1. Determine where Brooks actually lives, and then 2. Determine if the seat is, in fact, vacant…before going on to seek to fill the vacancy.

One of the problems of this whole affair is that the Commission relied on Administration policy to determine residency, believing that Commissioners should be treated as normal employees hired through the HR process.

But this is not the case. HR only handles paperwork for the purposes of payroll and other basic employee issues, not the hiring process. That duty falls to the voters, which is one reason this administrative investigation didn’t pass muster.

The other, of course is that the investigation didn’t actually determine where Brooks lived, which is problematic.

A third problem is that the investigation was treated as fait accompli instead of something that should be seen as the plaintiffs evidence, up for cross examination, and contestable by countering defense evidence…which would also be crossable by the County Attorney, some other plaintiff attorney, or even the Commission. Then, with the Commission acting as a tribunal…as set forth in Tenn. Code Ann. ยง 8-48-106, they could rule one way or another based on the facts presented.

Making the Rules Stick

One thing that we’ve learned from this affair, is the Commission (and likely all other elected officers) cannot fall under common employee standards or rules as set forth in County HR policy. The Commission has the power to set its own rules for dealing with issues relating to qualifications of its members…not the administration or any other administrative function.

This is a simple separation of powers issue.

So, the Commission must adopt a process by which these issues are to be dealt with, and pass it by a majority to avoid these complications in the future.

This could be done by amending the Permanent Rules of Order (which I could not find online by the way), or ordinance (either three readings or by vote of the electorate).

Regardless of how its done, standards must be put in place detailing due process (evidentiary rules, burden of proof, and the appropriate venue (who will be the trier of fact…either the Commission, or some external body designated by the Commission)).

Ultimately, the Commission itself would have to act on the recommendation of any external organ, which the Commission regularly does anyway.

The long and the short of it is, this isn’t complicated. This is the way legislative branches of local governments work anyway. It should be the way they work for the purposes of residency or even other membership qualifications as well.

And even though this process may be set up by ordinance or an amendment to the Permanent rules, it would still be up for Judicial Review, because that’s how things work in the good ole U.S. of A.

Starting Over

So the Commission will have to start this whole thing over on Monday. By the time they actually act on it, the issue will likely be moot.

The last Commission meeting before the next term is August 18th. Any action after that point would have no tangible effect other than making a show of it, and any action before that point will probably end up back in court unless the aforementioned rules are in place.

Also, Commissioner Brooks will be able to vote any rules going forward, because regardless of how you feel about her, people are still innocent until proven guilty in this country (though you’d be hard pressed to know that’s the case far too often), meaning Brooks could seek to gum up the works or amend the standards in such a way that is beneficial to her if she wanted to.

In any case, the incoming Commission, which will take office in early September, should seek to quickly address this issue and make rules for itself that would establish an internal administrative and final judgement process to clarify the boundaries of the issue. This would hamper frivolous charges from being brought based on personal or political vendetta, and make it simple for people to understand what was kosher and what wasn’t.

This process may already be set forth in the Permanent Rules, but if it is, and the Commission followed it up to this point, it doesn’t pass muster in the eyes of the Court.

Conclusion

Residency may seem like a simple issue, but as with so many things that revolve around the legislative branch of any division of government, it can get complicated quickly.

This is because legislators are loathe to make rules for themselves, and often set up easy outs in the rules, which makes them about as rock solid as swiss cheese.

Of course, we all expect people to be honest and forthright…especially if they are serving in public office. We’re not surprised when it doesn’t happen, or we perceive that it hasn’t happened.

Ultimately, until the rules for dealing with residency questions are defined for elective office the issue will continue to end up in court. Hopefully, the proposal Commissioner Ritz presents on Monday will set up a process that both meets the needs of the Commission for dealing with questions of residency qualifications for elective office, and addresses the due process concerns already ruled on by the court.

That’s the only way to get to an end game in this controversy…and even still, it may be that the Commission has enough bigger fish to fry that the issue rolls over to the next term.