Attorney General opinion says counties must pay legal bill

By Gary Nelson / gnelson@crossville-chronicle.com

The Tennessee Attorney General has written 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.

Tennessee Attorney General and Reporter Robert E. Cooper, Jr. released Opinion No. 09-124 June 29, 2009.

" ... The county election commission is directed by statute to hire counsel when necessary to defend itself in a lawsuit arising out of the hiring or firing of the county administrator of elections, and reasonable expenses incurred for that purpose would therefore qualify as 'reasonably necessary for the discharge of the statutorily mandated duties of' the commission. Accordingly, it is the opinion of this office that, pursuant to TCA 2-12-109(a), the county has the obligation to pay for the fees and expenses associated with legal representation of a county election commission in such a lawsuit," Cooper writes.

The opinion was made after State Coordinator of Elections Mark Goins requested the opinion.

Last month Cumberland County Mayor Brock Hill and County Attorney Jim Thompson wrote a letter to Goins stating Thompson had a conflict in the case and the county felt the state was responsible for the legal fees in the case regarding former Administrator of Elections Suzanne Smith.

Attorneys for former Cumberland County Administrator of Elections Suzanne Smith filed two lawsuits in May seeking a total of up to $6.5 million, plus reinstatement of Smith's job and back pay plus benefits for the time she has been out of work.

The complaint filed in Circuit Court names the three new Republican election commission members, Denver Cole, Thomas Henderson and Calvin Smart, as defendants who voted to name Sharon York for the administrator of elections position, removing Suzanne Smith from the job, during its April 22, 2009 meeting.

Thompson reported that the county's insurance carrier has employed Mr. Jeff Beemer to defend the Circuit Court lawsuit. The county's carrier declined coverage and will not defend the county in the Chancery action.

"The county mayor has asked me to contact you and advise you the county feels it is not the proper party in the lawsuit. He feels since the State Election Commission seated the commissioners, the state is obligated to defend them, not the county. Therefore the purpose of this letter is to advise you the county will not defend the Chancery Court action," Thompson's letter concludes.

"Under Tennessee Code Annotated (TCA) 2-12-116(a)(1), the county election commission has a duty to 'appoint an administrator of elections, who shall be the chief administrative officer of the commission and shall be responsible for the daily operations of the commission office and the execution of all elections.' Thus, a suit against a county election commission arising out of its hiring or firing of an administrator of elections would be one involving 'the business of the commission' in connection with which the commission is directed by TCA 2-12-116(a)(4) to hire counsel to defend itself," Tennessee Attorney General Robert E. Cooper, Jr. writes.

"TCA 2-12-109(a) places upon the county the obligation to fund the operating expenses of a county election commission:

Except as otherwise provided by law, it is the responsibility of the county to fund the operations of its election commission. If a county fails to appropriate funds sufficient to pay expenses that are reasonably necessary for the discharge of the statutorily mandated duties of its county election commission, such commission may petition the chancery court of the county in which such election commission is located to compel the appropriation of such funds," Cooper writes.

Cumberland County Mayor Brock Hill responded to the Chronicle stating, "My opinion is that the Election Commission should have to sue the county to force us to defend them. Several county commissioners have indicated the same opinion to me."

A letter to the county from the University of Tennessee County Technical Assistance Service (CTAS) states, "This is a matter in which there continues to be a great deal of confusion. While the law is clear that the county election commission is a state entity (Abercrombie v. City of Chattanooga, 313 S.W.2d 256 (Tenn. 1958)), that is all that is clear. Whether the administrator of elections is a state employee or a county employee, who is responsible for defending lawsuits filed for wrongful termination of an administrator of elections, and who would be liable to pay any judgment in such a wrongful termination case are all issues that have yet to be fully determined."

"It's obvious to me that there is nothing but confusion over this mess," Hill said.

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