New election commissioners named in multi-million dollar suit

By Gary Nelson / gnelson@crossville-chronicle.com

Attorneys for former Cumberland County Administrator of Elections Suzanne Smith have filed two lawsuits 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 suits were filed Tuesday afternoon in Chancery Court and Circuit Court for Cumberland County.

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.

Democrats Lisa Phillips and Bob Austin of the election commission voted against the motion and are not named in the suit.

The suit alleges the election commission violated article 1 section 4 of the Constitution of the State of Tennessee. That section states "That no political or religious test, other than an oath to support the Constitution of the United States and of this state, shall ever be required as a qualification to any office or public trust of this state."

The three new commission members were appointed by state Republicans based on the recommendation of state Representative Eric Swafford.

The suit alleges there was a conspiracy and Suzanne Smith had performed her duties as administrator of elections in an "impartial and competent manner" since 1973, and that she was "terminated from her position solely because she was a Democrat."

The three new election commissioners had "each committed prior to their appointment that they would vote to replace Suzanne Smith and appoint a Republican administrator of elections."

"Prior to their appointments as commissioners, the three defendants each committed that if appointed, they would vote to terminate Suzanne Smith's employment as administrator of elections because she was perceived to be a Democrat," the suit alleges.

"Each of the defendants took an oath of office in which they swore to act impartially in the performance of that office and conspired and agreed before their appointment to act in violation of the Tennessee Constitution," the suit states.

The suit also alleges the group violated the Open Meetings Act (T.C.A. 8-44-101) because the members met, discussed and agreed regarding what they would do and how they would vote at the election commission meeting.

"The three Republican commissioners did not allow anyone to apply for the position of administrator of elections. They did not allow any consideration of an application or review process. Until corrected, they did not know the correct name of the person they were voting to appoint," the suit states.

According to a legal opinion sent to the county by both the Tennessee state attorney general and Cumberland County attorney prior to the meeting, terminating an employee under circumstances of political party affiliation is a violation of both the First Amendment and Fourteenth Amendment rights under the United States Constitution.

Tennessee Attorney General Robert E. Cooper Jr. on April 8 issued his opinion at the request of state Sen. Charlotte Burks.

On April 22, 2009, the Cumberland County Election Commission ignored both legal opinions, as well as a resolution passed by the Cumberland County Commission, urging the group not to remove Smith due to party affiliation.

"As a result of the defendants' wrongful actions, the plaintiff (Suzanne Smith) also suffered emotional distress," the complaint states.

The suit against the three defendants sues them collectively for a total of up to $500,000 for compensatory damages and each individual for punitive damages of up to $2,000,000 each with costs.

The second suit filed in Chancery Court makes the same claims against the Cumberland County Election Commission and Sharon York.

The suit seeks a writ of certiorari which requests Chancellor Ronald Thurman to review the decision made by the Cumberland County Election Commission on April 22, 2009, find the meeting to be "illegal and void" regarding the termination of Smith and to reinstate her job immediately with back pay and benefits for the time she was off.

There have been around 30 administrator of elections replacements named in counties across the state, with several pending, according to Tennessee Coordinator of Elections Mark Goins.

The suits were filed by attorneys on behalf of Smith by Jon E. Jones of Cookeville and Landon Colvard, Jr. of Crossville.

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