Published: July 28, 2009 04:42 pm      

3-2 vote settles legal expenses issue

The Cumberland County Election Commission voted Monday to treat legal expenses incurred defending the members in pending litigation as regular operating expenses of the office.

The 3-2 vote didn't sit well with the two Democratic election commissioners, Lisa Phillips and Bob Austin, in light of recent action by the Cumberland County Commission stating they will not pay for legal expenses in the matter unless forced to do so by a court of law.

"I had nothing to do with firing Suzanne or hiring Ms. [Sharon] York [interim election administrator], so I don't think I should vote to hire some attorney to take his expenses out of our budget," Austin said. "We need to decide where the expenses are going to come from first."

Lisa Phillips said, "The county passed a resolution Monday they will not be responsible for our expenses. Will it come out of our budget?"

Calvin Smart, commission chairman, said, "It will come out of our budget or the county will have to pay it."

Phillips responded, "The county said they won't pay for it."

"Then there's the potential for another lawsuit," Smart said. He also noted individual election commissioners could be responsible for the legal fees.

"I don't want to pay it out of my pocket," Phillips said. "I didn't cause this and this could get very expensive."

Smart said, "I don't want to pay it out of my pocket, either."

Smith is seeking up to $6.5 million in the two suits, as well as reinstatement to her position, back pay and benefits for the time she has been out of work since the April meeting of the election commission.

A complaint was filed in May in Circuit Court for Cumberland County naming Smart, Denver Cole and Thomas Henderson as defendants for voting to name York administrator of elections. A Chancery Court suit asks Chancellor Ronald Thurman to review the decision of the election commission April 22 and find the meeting "illegal and void" regarding the termination of Smith and to reinstate her to her post immediately.

The county maintains it is not responsible for the legal costs of the lawsuit. In a letter to the Cumberland County Commission, attorney Randal R. Boston said, "The county should not be responsible for legal fees for a matter that it does not oppose and that it has no control over who the commission chooses to be its administrator."

That opinion comes after the Tennessee Attorney General issued an opinion claiming counties are responsible for the fees and expenses associated with legal representation of the county election commissions in lawsuits arising out of the hiring or firing of county administrators of elections.

The commission had been represented by Jeff Beemer, of Nashville, in the litigation, but Beemer has since notified the commission of a conflict of interest and asked to withdraw from the case.

"To the best of my knowledge, he represents the county in other matters," Smart said. "He felt it was not right he represent the county in the Chancery Court suit."

Henderson moved to accept Beemer's resignation, seconded by Cole. The motion was approved with a 4-1 vote. Austin voted no.

The commission then voted to hire Jeff Ward of Munford, TN. Ward will also be representing York.

The contract states Ward will charge $200 per hour for time spent on behalf of the clients. The commission and York will also be responsible for other expenses, including travel expenses.

Phillips asked, "Do we have to get a lawyer so far away?"

Munford, TN, is located north of Memphis, about 300 miles from Crossville. When contacted by the Chronicle, Ward said he would need to discuss a lower fee for travel time to and from his home in West Tennessee, but that it would not be $200 per hour.

"That would be unfair," he said. "We have not discussed that."

Smart said Ward was recommended by Jim Thompson, county attorney, and Ward had agreed to work with the commission. Ward has five years' experience practicing law, though Smart said he did not know his experience in this particular type of law.

"As of this time, that is the person we have decided to hire," Smart said. "That is the person I have decided to submit to the commission."

Smart said Ward was planning to attend the regularly scheduled meeting Aug. 3, when the commission will interview applicants for the permanent position.

Phillips asked if Ward was aware the county commission has stated they will not be responsible for legal costs.

"Yes, and he's still willing to take the case," Smart said.

Phillips asked if Ward was aware of recent court rulings in the state which have barred Rutherford County from firing its election administrator. The injunction is part of federal lawsuit that includes eight current and former election administrators who have sued members of their counties' election commission, charging they were singled out for partisan reasons.

"I think that's going to make a big difference," Phillips said.

Smart said, "I'm sure this is being handled county by county and we'll let that judicial system take care of that matter."

Henderson moved to hire Ward, seconded by Cole. The motion was approved 3-2 with Austin and Phillips voting against.