No criminal charges will be brought against any parties listed in an ethics complaint forwarded to the District Attorney General on April 4 by the Wilson County Ethics Committee in a 3-2 vote.
On Friday, April 22, a letter was sent to Ethics Committee Chair Frank Bush, District 8 county commissioner, from District Attorney General for the 15th Judicial District Tommy Thompson and Assistant District Attorney General Jimmy Lea.
In summary, the letter stated “Therefore, it is the opinion of the Office of the District Attorney General for the Fifteenth (15th) Judicial Circuit that no criminal charges are warranted against any of the named individuals in the complaint forwarded for review by the Wilson County Ethics Committee on April 4, 2014.”
The 24-page complaint centered on a question of when individual commissioners’ seats become vacant when they move out of their district. (See sidebar, The Ethics Complaint, at the end of this article.)
The issue has been a topic of contention for some commissioners since December 2013, when former District 18 County Commissioner Adam Bannach resigned his seat due to moving out of his district.
At the December county commission meeting, the question arose whether Bannach, who had submitted his notice to resign to Mayor Randall Hutto in an email on Nov. 21, should be allowed to vote on any county business.
A great deal of discussion among the commissioners ensued, with some commissioners feeling that he should not be allowed to vote, while others felt he should.
Since that Dec. 16 meeting, the issue has been at the heart of three Ethics Committee meetings and at least one Rules Committee meeting, when a resolution that would have outlined the definition of residency and a set of specific steps to take to fill any vacancy proposed by the Ethics Committee failed to receive a second.
It also became an issue at the Jan. 27 County Commission meeting, when District 22 Commissioner Wendell Marlowe asked County Mayor Randall Hutto to consider changing some members of the Ethics Committee.
That change has not occurred, as Hutto told The Wilson Post he is working on proposals to present to the Rules Committee concerning not only specific steps regarding the residency issue, but also the appointment of committee members.
Ethics Committee Chair Responds to DA’s letter
In an email to The Post after the first article ran about the complaint, Bush said that the issue “is not about residency. It is about lying and cheating and consequences.”
When asked to expound on his answer, Bush submitted the following definitions:
- Cheating is the getting of reward for ability by dishonest means or finding an easy way out of an unpleasant situation. It is generally used for the breaking of rules to gain unfair advantage in a competitive situation.
- A lie is a false statement to a person or group made by another person or group who knows it is not the whole truth, intentionally.
- Consequence is something that happens as a result of a particular action or set of conditions.
Following the letter from the District Attorney’s office, Bush told The Post Tuesday morning that he was disappointed in the letter.
“I believe the investigation was flawed. I believe they ignored what appeared to be facts that should have changed their decisions,” Bush said. “The purpose of the DA’s decision was to determine the facts. They saw things that I didn’t see or alternatively, they didn’t see things that I saw.”
Bush said Thompson and Lea “made a big point about the fact that the issue of residency is complex in the state of Tennessee, and I will agree with that.
“However, in the case of Adam Bannach, I don’t believe there is any question that he changed his residency prior to the December county commission meeting.”
The District 8 Commissioner, who is seeking re-election against the current District 2 Commissioner Terry Duncan, said the DA “correctly noted that intention is very important in determining residency. And one of the advantages of looking at the situation in hindsight is the intention of the parties becomes relatively clear.
“Adam chose to complete his move to District 2 and run for county commission in that district. From my standpoint, that proves his intention.”
Regarding comments that District 14 Commissioner Jeff Joines made to another newspaper that he believed that politics were the basis for the committee’s decision to refer the complaint to the DA’s office, Bush said, “Joines views everything through a political lens.
“The Ethics Committee did its job honestly and honorably. There was no political agenda on the part of the Ethics Committee.”
County Attorney Mike Jennings, who was also named in the complaint, said he is pleased with the decision reached by Thompson and Lea.
“I still say this was a complaint that should not have been investigated by the District Attorney, and that none of the people accused were criminals.
“This confirms one of my biggest fears that an Ethics Committee would be used for political purposes. That’s not the purpose of an Ethics Committee,” Jennings added.
Advice from the DA
In the letter, the attorney generals advised the county commission to review “the rules, regulations and laws concerning removal, resignation and vacating a respective office and/or position,” stating that doing so “would be highly beneficial for the commission, its committees and officers” to be “clearly trained or properly educated.”
Additionally, they wrote, “Newly elected county members and officials as well as longstanding members of the legislative body would all profit from such orientation or reorientation as the case may be.”
In regards to the county commission receiving restitution for the pay received by District 22’s Marlowe and former District 1 Commissioner Stephanie McDonald, the district attorneys wrote that “is a matter left to the county’s discretion.”
The pay issues surround Marlowe’s service in 2007-2008, when by his own admission in a newspaper article in January 2008, he sold his residence in then District 1 in June 2007. However, he did not submit his resignation until November 2007, and it did not appear on the county commission agenda until January 2008.
Marlowe was re-elected to the commission for District 22 in August 2010 by more than twice the number of votes of each of his two opponents.
The issue with McDonald surrounds a direct deposit made in error by the county payroll department into her account for the month of August 2012 for service as a county commissioner. However, McDonald had resigned at the July 2012 meeting
Bush said he is considering all of the alternatives to the commission and the Ethics Committee regarding Bannach, Marlowe and McDonald.
Amelia Morrison Hipps is a correspondent for The Wilson Post. She may be reached at firstname.lastname@example.org.
Editor's Note: A word was inadvertently left out of a sentence in the above article which quoted County Attorney Mike Jennings. The sentence originally said "I still say this was a complaint that should have been investigated by the District Attorney, and that none of the people accused were criminals." That sentence has now been corrected to reflect that Jennings said the "complaint should not have been investigated." The Wilson Post regrets the error and is happy to set the record straight.
The Ethics Complaint
The issue has now led to the submission of the Ethics Complaint filed by Harold Huber of Mt. Juliet at the April 3 meeting.
The complaint names Hutto, County Attorney Mike Jennings, former county commissioners Stephanie McDonald and Bannach, 17 current county commissioners and Jan Jewell, who works in Jennings’ law office.
The 17 commissioners listed are: Becky Siever of District 1, Terry Duncan of District 2, Jerry McFarland of District 5, Kenny Reich of District 6, Terry Scruggs of District 7, Billy Rowland of District 12, Jeff Joines of District 14, Mike Justice of District 15, Gary Keith of District 17, William Glover of District 19, Annette Stafford of District 20, Eugene Murray of District 21, Marlowe, Bernie Ash of District 23, Paul Abercrombie of District 24 and Randy Hall of District 25.
The vote to send the complaint to District Attorney General Tommy Thompson for review was 3-2. Murray and committee member at large Earl Ray each voted no, while Bush, District 10’s Nathan Clariday and District 13’s Clint Thomas each voted yes.
The complaint, which had originally been brought by Huber at the Dec. 30 Ethics Committee meeting and rescinded to provide more factual evidence, alleges that “one or more persons are likely guilty of crimes against the administration of government, as well as other possible crimes, including, but not limited to, Official Misconduct, TCA 39-16-402, Official Oppression, TCA 39-16-403, and/or Misuse of Official Information 39-16-404.” (See sidebar.)
The complaint also states that Huber believes “that one or more public officials, and possibly county employees, have been guilty of dereliction of duty and are therefore subject to ouster from office or dismissal from employment pursuant to TCA 8-47-101.”
This section of Tennessee Code Annotated covers the grounds for dismissal of public officers and employees. It reads that “every person holding any office of trust or profit … who shall knowingly or willfully commit misconduct in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state, or who shall in any public place be in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of illegal gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such office and shall be ousted from such office in the manner hereinafter provided.”
Although Huber states several times that the complaint has nothing to do with the vote for a private act regarding a request to increase the hotel/motel tax to fund the proposed Expo Center at the James E. Ward Agricultural Center, he notes that each of the current county commissioners listed in the complaint voted in favor of the resolution, which failed at the General Assembly.
He states also in the complaint that Jennings “characterized my previous complaint as being a witch-hunt, this complaint is not a witch-hunt. This complaint is an attempt on my part to hold accountable those people who I sincerely believe are truly responsible for what I believe to be the commission of grievous wrongs.”