Nashville Attorney to Represent Election Commission in Lawsuit

March 2, 2011
Dwayne Page
John Harris, III

Nashville lawyer John Harris, III has been employed by members of the DeKalb County Election Commission to represent them in a federal lawsuit brought in 2009 by the former administrator of elections, Lisa Peterson.

The three Republican members, Barbara Vanatta, Jim Dean, and Commission Chairman Walteen Parker voted to hire Harris during a special called meeting Monday night. The two Democrats on the commission, Nolan Turner and Kenneth Moore voted against it.

The decision comes after the county's insurance carrier recently withdrew its legal representation based on a December federal court ruling, and after the state attorney general, Robert E. Cooper, Jr., in a letter to Chairman Parker, wrote that the commission could not rely on the state to provide a defense and would have to hire its own legal counsel in the case. The cost of defending the election commissioners will have to be borne by the county.

Peterson filed the lawsuit only a few months after the Republican majority of the local election commission chose not to re-appoint her to another term. Another case involving the election commission, also filed by Peterson during the summer of 2009 in DeKalb County Chancery Court, is still pending.

Mary Ferrara, an attorney for the local government insurance carrier, had been providing the legal defense for members of the DeKalb County Election Commission but that all changed after U.S. District Judge Thomas A. Wiseman, Jr. found that the Republican election commissioners, in the counties of DeKalb, Hawkins, Weakley, and Putnam County, were not subject to liability for the monetary damages sought, in their official capacities as "state actors".

According to Harris, after the court's ruling that election commissioners were "state actors" the county's insurance carrier decided that it would no longer defend them. "When these administrators filed their lawsuits in federal court, they asserted that county election commissions and the county election commissioners were part of county government and as a result of that, in DeKalb County for example, the county's insurance carrier was providing a defense. In December 2010 the federal district judge ruled, based upon 60 year old Tennessee Supreme Court case, that the county election commissions and the county election commissioners are state officials. The court said they are state officials because they are not elected by the county voters and they are not appointed by county government, but they are, in fact, appointed by the state election commission to serve in each county so they are really an arm of state government. So what has brought us to this point is when the judge ruled that the county election commission and commissioners are actually state government officials rather than county officials, the insurance company said we only have a duty to represent the county and since these are state officials, we are withdrawing and you are on your own. The result of that was, the election commission still had an interest in the federal lawsuit. The named commissioners were still involved in the lawsuit, so it was determined that it was necessary for them to hire an attorney to continue to handle the case for both the commission and the commissioners."

However, according to Harris, had the county's insurance policy been written in such a way as to include the election commission as an insured entity of county government, just as county officials are insured, then the insurance pool most likely would not have withdrawn from the case. "That's an issue that the county commission and the county attorney may want to look at because by statute in Tennessee regarding election laws, the county is responsible for paying all of the operating expenses of the election commission with only a few exceptions which are written in the statute. The county is required by law to fund the operations of an election commission because the election commission is sort of like a school board in that they can't pass taxes, they don't have any way of collecting money, but they have to provide a service. And just like a school board the state says county, you have to fund a reasonable budget for the election commission which includes human resources issues if an employee claims I've been fired inappropriately or something of that nature. In this case, the insurance company has taken the position that the insurance only protects county government and county officials and because the trial court has found that the election commission is really apart of state government and that they are state officials, the insurance company has said we don't have to defend this case. Either one of two things has happened. Either the insurance company has sold a policy that is inadequate to cover the risks that the county might incur or they are just seeing this as an opportunity to get out, hoping that the attorney general perhaps would take it over. But the county may want to find out if they were sold an insurance policy that had a hole in it," said Harris.

Harris said the defendant election commissioners had also hoped that the state attorney general would come to their defense, but that too was not to be. "Early on, and then more recently on at least two attempts, the county election commissions have written and requested that the state attorney general, whose job it is to defend and represent state interests, undertake the defense of the election commissions and the commissioners since the federal court has found them to be state officials. The attorney general has some level of discretion in when to take on representation in a case. In this case, the attorney general, Bob Cooper, has written to each of these election commissions and declined to represent them which has caused a great deal of concern, not only to the election commissioners, but with quite a few legislators that I've talked to," said Harris.

Since the court has ruled that the election commissioners cannot be held liable for monetary damages, barring any successful appeal, Harris said the only significant remaining issue to be decided is the "injunctive relief" claim in the lawsuit. "There is a portion of the case which the trial court has not ruled on at this point and that is the issue of whether future election commissions will be allowed to take into consideration political party affiliation, if they choose to do so, in the decision to reappoint or select an administrator of elections. If the court takes up that issue and finds in favor of the plaintiff [Peterson], what the court could do is issue an injunction that says from this point forward, you do not have the discretion to take into consideration party affiliation. If the court does that, then the second prong of the potential problem for the county is that the court could order the county to pay the plaintiff's attorneys fees in the case which could easily be hundreds of thousands of dollars, in addition to paying its own defense costs since the state attorney general is not going to take it up. If the plaintiff wins on that, federal law allows the court to award attorneys fees to the prevailing plaintiff [Peterson]. It could award them to a prevailing defendant but it very seldom does so," said Harris.

Judge Wiseman's ruling on the monetary damages issue is being appealed to the U.S. Sixth Circuit Court by the plaintiffs in the case, although a challenge has been filed by the defendants as to whether the appellate court has jurisdiction.

DeKalb is among about a dozen counties in Tennessee where lawsuits have been filed by former administrators of elections asserting that they were not re-appointed to those positions because of their political party affiliation. Harris said whether or not that be the case, it doesn't necessarily give rise to a cause of action "because in Tennessee, every two years the county election commissions are reappointed and those reappointments are based on the political party affiliation of the election commissioners so that whichever party is in charge of the Tennessee General Assembly, that party gets three seats on the election commission and the minority party gets two seats on the commission. For the last 150 years, the Democrat Party has been in control of the election commissions in Tennessee, but that all changed in November 2008."

Meanwhile, legislation has been filed in the Tennessee General Assembly that if approved would require terms of county administrators of elections to expire when the commission's term expires. It would also allow county election commissions to consider political party affiliation, knowledge and experience when hiring administrators

Walteen Parker, Chairman of the DeKalb County Election Commission, issued the following statement on the developments that led to the commission's decision to hire its own attorney in this case. "The Election Commission has consistently been very astute in responding to this lawsuit. Initially, we chose to let the county's insurance carrier handle the matter, rather than seek an independent law firm. This proved to be a very wise decision. When the county's insurance attorney filed a motion to withdraw because we were deemed state agents and that motion was granted, we were required to file an appearance with the court within 30 days of February 4, 2011. Again, we agreed the next logical step was to contact Attorney General Robert Cooper and request his services. Unfortunately, AG Cooper decided not to provide legal counsel to any of the county election commissions involved in this lawsuit. After exhausting that avenue, we contacted an attorney who has the expertise in this matter, who has experience in election laws, who has a commitment to fairness and justice, and who can provide the best defense at a reasonable fee. That attorney is John Harris, III, whose references and recommendations were valid and very impressive. In procuring legal counsel, we are confident that we have been diligent in being mindful that neither the county nor the state should be responsible for the enormous legal fees of the plaintiff's attorneys. We will continue to choose the best course of action toward resolving this matter," said Chairman Parker.

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