Mt. Juliet – A City Commission without ethics

What conclusions should a citizen draw when elected officials create a bureaucratic system which discourages and threatens citizens who have the temerity to suggest that something might be wrong? When a model ethics code drawn up by consultants is repealed and replaced with one that allows five “friends of the Commissioners” to dismiss an ethics complaint unless four out of five vote to pursue it?

The changes to the Mt. Juliet City Ethics Code, enacted in September of 2007 are far worse than any of us at RFMJ imagined. We’ve had to imagine, because, even now, the City’s Ethics Code is not available on the city website. We have however obtained a copy and devoted some time collectively in analyzing it.

Its bad.

Background: In the January 2006 special session of the Tennessee state legislature, the state legislators responded to the ethical crisis (See this article on Operation Tennessee Waltz for details) by passing a law that required all cities and counties to adopt an Ethics Code. Cities could either pass a model code developed by MTAS, in which case they only had to notify the newly formed State Ethics Commission that they had done so. If they drafted an Ethics Code of their own, they had to file a copy of their Ethics Code with the State Ethics Commission. The State Ethics Commission does NOT review or approve a municipality’s Ethics Code. But by law, each municipality has to adopt the MTAS model code OR file a copy of the Ethics Code they have adopted with the State Ethics Commission.

Mt. Juliet initially adopted the MTAS model code in August of 2006 and notified the State Ethics Commission that they had done so. But then, in September of 2007 the City Commission repealed the MTAS model code and substituted a new code. And as of February 21st, 2008 they still had not notified the State Ethics Commission or filed a copy with them.

There might be a reason for that. The new local custom Ethics Code adopted by the City of Mt. Juliet is awful.

Here are a few highlights:

  • There’s a 30 day statute of limitations. If a complaint is not filed within 30 days of the violation, it’s not valid and will be dismissed.
  • A complaint can only be based on “personal knowledge.” So if 12 city employees told you they saw the Mayor take an envelope full of cash from a developer, you can’t file a complaint and ask for an investigation. Basically, unless you already have proof, your complaint will be dismissed as not valid.
  • Under the MTAS model code, the City Attorney had an obligation to investigate any credible complaint against an employee or elected official. Under the new Mt. Juliet No-Ethics Code, the words “elected official” have disappeared. The City Attorney is only obligated to investigate credible complaints against employees.
  • There’s a special sentence added under outside employment that specifically allows an elected official to take ANY outside job, so long as they have the option to refrain from voting on issues involving their employer. Just in case the Mayor wants to work for a Mt. Juliet developer again, we guess.
  • A citizen’s complaint of un-ethical conduct no longer goes to the City Commission to determine whether it has merit or not. Now it must first go to an Ethics Commission, consisting of five citizens picked by the five Commissioners, who can vote to dismiss a complaint on their own. The Ethics Commission can only refer a Complaint to the City Commission for action if it gets four out of five votes.
  • Those filing false complaints are threatened with prosecution for perjury.
  • An elected official or employee who falsely accuses another official or employee can be charged with a violation of the Ethics Code.

It is truly awful.

But don’t take our word for it. Here is the text of the 2006 model City Ethics Code as adopted by the Mt. Juliet City Commission in August of 2006. Here’s the text of the September 2007 Ordinance that repealed the model Ethics Code and substituted a new one – a MUCH different one. We’ve annotated the new one to show and comment on the differences.

Comments?

– Publius

Advertisements

8 Comments

Filed under ethics

8 responses to “Mt. Juliet – A City Commission without ethics

  1. Pingback: Volunteer Voters » New Rules In Mt. Juliet

  2. Butch Huber

    Wow, where does one start?

    I visited city hall yesterday to obtain a copy of the new ethics ordinance. I subsequently have read the new ordinance and I am appalled by what it says and by how it is written!

    The first thing you need to do is to look at this ordinance from the thirty thousand foot view. From there you will see that the new ordinance modifies the MTAS model in such a way that it creates a new method of dealing with elected officials, but for all intents and purposes leaves the employees of the city under the guidelines of the MTAS model. It makes it extremely hard to qualify an ethics complaint against anyone, but when an ethics complaint is found to be a qualified complaint there are two distinct channels through which the complaint is handled; if the complaint is against anyone other than an official or the city manager it appears as though the complaint will be investigated by the city attorney, however, if the complaint is against the city manager or an official the ethics commission acts as a screen…in other words, there is an additional level of protection against a complaint provided to the city manager and officials that is not provided employees. Amazing.

    So, what we have here at the thirty thousand foot level is one system for underlings and one system for the city manager and officials.

    Now, let’s look at how hard it would be to file a complaint under the new ordinance. First, you have to have actually seen or heard the violation with your own eyes or ears. If someone discovers wrong doing by an official, but that person lacks the courage to file a complaint (Considering that just about everyone who challenges this city government ends up losing their job it is understandable why someone would be afraid), tells you about what they saw you cannot file a complaint under the ethics ordinance!

    First, let’s be clear…there is a distinction between “Charges” and “Complaint”. By filing a complaint a person is not charging an official of a crime…they are notifying the government that there is a cause under reasonable suspicion that an offense has been committed. That is a big, big distinction. That distinction is exactly what the ethics ordinance is about! Tennessee Code Annotated already covers just about anything that the ethics ordinance covers already…the ethics ordinance is to ensure that there is a functional and appropriate means of handling situations where reasonable suspicion of an offense has occurred. The term “Reasonable” is important and you will see just how important in a moment.

    So, let’s assume that there is reason to believe that an ethics offense has been committed. So far, if you are in possession of knowledge that leads you to believe that an offense has been committed, and you are a reasonable person, unless you are able to perceive with your own sense the commission of that questionable act, you can’t file a complaint.

    It gets worse!

    Let’s say that you do have first hand knowledge of the commission of the questionable act…under the new ordinance you have 30 days from the commission of that questionable act to file your complaint and if you do not do so within 30 days of the commission of the questionable act you forevermore are barred from filing a complaint! (Unless your complaint is about personal interest “and” there is ample evidence that the personal interest was concealed or was not disclosed, in which case you have six months from the date that you “should” have discovered the violation after due diligence on your part. What does that mean!? Does that mean that if someone commits an offense, and you {Who knows who determines “should” have discovered} “could” have looked into the matter but didn’t and six months elapse you can never file a complaint?)

    So far, you have to have seen or heard the offense with your own eyes and/or ears “and” you have to take action and file your complaint within thirty days of the offense (It doesn’t matter that you didn’t discover evidence one year after the event) or you cannot file a complaint.

    Under the new ordinance you have to take an oath stating that the statements you make are true…remember this is supposed to be “reasonable suspicion”! You have to sign the complaint and place your address and phone number on the complaint….so anyone who wants their phone number unlisted and private has to now expose their phone number to public. In addition, you have to submit evidence that would be accepted in a court of law, and (here is a strange one) show that you are competent to testify as to the facts set forth in your complaint! Then, if you have crossed the personal knowledge hurdle and you have crossed the 30 day statute of limitations hurdle, and you have proven yourself competent to testify and you have assembled the evidence in such a manner as a court of law would accept it, but “IN THE OPINION OF THE CITY ATTORNEY” you have made any error or omission what-so-ever he can return your complaint and you will have 7 days to amend and/or correct the error and/or omission and resubmit your complaint.

    Then, they threaten you…the inform you that if you file a false complaint you will be officially charged…this sounds like five people who are tired of being held accountable trying to turn the tables on the public! This is, in my opinion, use of threat and intimidation to discourage anyone from filing a complaint.

    Now, if you cross all the hurdles guess who gets to handle your complaint> …you guessed it…friends of the commissioners! There is a very big distinction to be made here…Elected officials and attorneys have very strict guidelines and a long history of case law regarding how they conduct themselves. If they don’t do their jobs right there are potentially severe consequences…including possible prison sentences, ouster from office, and, in the case of the city attorney, he or she could be disbarred. What is the consequence of an ethics commission officer not conducting himself properly? Removal from the commission? Wow!

    Now, you have an ethics commission that is made up of friends of the commissioners and mayor looking into allegations of violations against their friends. The commissioners on the ethics commission can protect their friends without much risk because it would be hard to hold them accountable for following procedures for handling evidence and such when they are not trained in law. But, it gets better. It takes four out of five ethics commissioners to vote for a complaint to make it out of the ethics commission. So if two commissioners conspire to commit an offense all it would take is for their friends on the ethics commission to vote a complaint down and your time, effort and money is wasted. And they would be not only protected, but exonerated! How they would crow! The Ethics Commission dismissed the complaint! The whole Ethics Commission idea is TOTALLY inadequate to deal with any unethical conduct that involves more than one Commissioner.

    Now, it appears as though this ordinance limits the city attorney from investigating activities of officials or the city manager without being told to do so by the ethics commission. If I am right about that this ordinance is a violation of law because the city attorney works for the city manager and because both the city manager and the city attorney are obligated to look into anything to which they have reasonable evidence that a violation has occurred.

    It gets worse…if you happen to get a complaint across all those hurdles, and the ethics commission determines that there is reasonable cause to launch an investigation, the ethics commission has all of $10,000 to conduct its investigation. If the ethics commission requires more than $10,000 to conduct an investigation guess who they have to go to for more money…you guessed it, the city commission. Now, suppose there are several commissioners involved in the investigation…do you think the ethics commission will get the money to continue an investigation?

    Now, let’s take a look at how seriously this city takes this ordinance. You have read Ray Justice’s comments here talking about anyone having a complaint should take their complaint to the ethics commission…then when challenged he told me to take the complaint to the city manager…but if you notice it is actually the city attorney who should receive my complaint, (If I were to submit one) not the city manager. Notice his signature on the ordinance. Shouldn’t he have known that?

    Now, let’s look at the date this ordinance was passed on second reading…9/24/07. Now, look at Section 2 of the ordinance…it says that The City Recorder is hereby directed to provide notice to the State Ethics Commission of the adoption of this ordinance…notice when the City Recorder certified this as a true and exact copy of the files and records of the city of Mt. Juliet….2/19/08! I called the ethics commission yesterday and according to the person I spoke with (Who went and pulled the file for Mt. Juliet), Mt. Juliet had not submitted this ordinance.

    Now the city has a federal lawsuit being brought against it, the mayor and Sheila Luckett by Bobby Franklin because, as Acting City Manager, Sheila Luckett accused Bobby of committing fraud against the State of Tennessee – oh, and not doing his job. The requirement forcing the city to adopt an ethics ordinance states that they must comply or the elected officials could be removed from office. The city had to adopt an ethics code by a certain date “and” notify the state ethics commission of any modifications or amendments to the city’s ethics ordinance as soon as “practicable”.

    If five months is “as soon as practicable” then there is no hope for an ethics complaint in this city…read the wording closely and you will have to agree.

    I wonder how much we paid Paula Flowers to write this ordinance!

    I am having a hard time getting my mind wrapped around all of this…but I feel confident that there is a real attempt to cover something up and make it impossible, or nearly impossible, for anyone to do anything about it.

    The MTAS model was good enough for hundreds of other municipalities across the state…but our commission, that is made up of three people who have been censured, found the need to do away with the MTAS model and create this mess.

    Folks, the problem wasn’t that people were bringing complaints against elected officials…the problem was that elected officials were conducting themselves illegally!

  3. Butch Huber

    Hey Commissioner Justice,

    Turned out I was right, didn’t it? So, where is my apology? It was interesting to note the date on the ethics ordinance….I mean the date when it was sent to the ethics commission…I have heard that it was finally sent anyway. Dated 2/19/08. Hmmm.

    To the Mt. Juliet Board of Commissioners;
    Could you have made it any harder for citizens to hold you accountable? What at first glance seems like nothing more than a confusing, irrational, unprofessional mess called an ethics ordinances makes it almost impossible to hold an official accountable, and if two of you act in concert the odds of a there ever being an investigation against you are about one in ten million! If what you were attempting to do is to create a situation through which you can be as corrupt as you want to be without having to fear someone will file an ethics complaint, well then, this is the most successful thing you have ever accomplished as a commission…so, I guess congratulations are in order…congratulations.

    Now, what do are you going to do for your next act? I have a suggestion, perhaps you could figure out a way to render the State Constitution of no force or effect on Mt. Juliet’s government!

    You have successfully taken something that was meant to be an alert to government that that something improper may have occurred and you have created a situation where someone would have to withstand substantial personal risk “and” invest a considerable amount of their own time and money in order to bring to the attention of government that there is reason to believe a violation may have occurred. In fact, if I were to want to bring a complaint now I would have to either be an attorney or hire one. Wow…if I were a corrupt government official I am not sure I could have thought up a better plan! Brilliant! At first I thought that this was a piece of garbage…but upon second thought, I conclude that it is a masterful work of art! Magnificent! Bravo! Quite impressive!

  4. Uncommon Sense

    Ok folks. What are the elected officials thinking? In May of 2007 the commission publicly censures the Mayor due to testimony of Bobby Franklin in an ethics complaint. The Mayor was caught trying to intimidate a Department Head in order to benefit a developer who was her employer! Two months later Bobby Franklin is fired by the interim City Manager, Sheila Luckett (another Department Head). Within a week Mr. Franklin sends e-mail to the Commission denying all allegations of Sheila Luckett. (see False Allegation link) https://radiofreemj.files.wordpress.com/2007/08/false_allegations.pdf

    Ok, lets get this straight. The elected officials must have thought that Elam was guilty or they wouldn’t have censured her. They appoint a Department Head to temporarily run the city and she fires Franklin. Not one commissioner thought the Mayor might have been pressuring her? Remember, they had just cesured the Mayor for pressuring a Department Head – Franklin! Isn’t it odd for a temporary manager to fire someone anyway? Especially someone who had just testified in an ethics investigation! Could she possibly have been influenced by the Mayor in some way? Intimidated perhaps? Ya think?

    So what does the commission do? Do they ask to see Mr. Franklin’s personnel file? No. Do they authorize an investigation? No. Do they appoint another interim City Manager to get to the bottom of this? No. Do they even ask to see a copy of the grant application Mr. Franklin is accused of defrauding the State with? No. Not one Commissioner asks any questions about the sudden firing of Mr. Franklin.

    Instead they choose to repeal their ethics ordinance and adopt one designed to stop any complaints from ever being filed again. They then wait 5 months to let the State know about it.

    Is this City Commission begging for people to sue them?

  5. John Reitz

    I just wonder where the money is going to come
    from to pay for all the law suits coming forth.
    I think there’s four so far.

  6. Butch Huber

    Speaking of money!

    Did you read the Mt. Juliet News? Ed Haggerty and Ray Justice are putting forth a proposal for the city to purchase the old Elementary School site and then donate it to the YMCA.

    I believe the way they are planning to do it is to purchase it from the county for somewhere around 1.1 or 1.2 million plus the county gets credit of $950,000 toward road construction from Beckwith Road to the high school. Basically, we are purchasing the property for 2 million to 2.2 million dollars and then giving that land to the YMCA.

    In the article one of the commissioners, I believe it was Ray, said that they had figured a way to do this without costing the taxpayers any money. I always find that statement to be interesting. I proposed a way to build out a city hall, a community center, a senior center, a teen center, etc without “costing” the city money…ironically my proposal was for the same site…yet they ignored me! My proposal would have used market forces to pay for the project…their proposal uses taxes. Whenever you use taxes it costs the taxpayer. What they are doing is taxing society and putting the taxes in different accounts and making it seem like it isn’t our money. Then when they use money out of one of the accounts they have made to look like it isn’t our money they say “it isn’t going to cost the tax payer anything”.
    Here is what I am talking about. The two commissioners plan to use the new hotel/motel tax revenue to fund this proposal. Okay, so when that money comes in it goes into the city coffers…however, according to Ray (or whoever said it) that money doesn’t then belong to the taxpayers. I say that no matter what that money is earmarked for it belongs to the taxpayer, and when it is spent, it is spent at a cost to the taxpayer. However, when that money is spent to purchase land, and then the land is “given” away, it really costs us. You see, if the city were to purchase this land and then give it to the YMCA a valuable asset would be conveyed from the city to another party. That means that the city no longer has the asset…we can no longer sell that asset to generate revenue if we need to raise funds…the value of that land doesn’t show up on the city’s list of assets for other things like perhaps borrowing money or floating bonds, etc. Later on, if the city needs additional tax funds to do other projects guess who now gets to pay that bill…you guessed it…the taxpayer. So, please, don’t squawk about how this proposal won’t cost the taxpayer.

    And before you “Educate” me about how the hotel tax is allocated to parks…that doesn’t mean it is allocated to donate land to the YMCA!

    Don’t think that I am down on the YMCA…because I am not. I have personally spoken to the person in charge of bringing the YMCA to Mt. Juliet and I asked him the were to get out of the way, if they were not going to be involved in this project, would you come to Mt. Juliet anyway…his response was “Yes”. I knew the answer before I asked it, but I just wanted to hear it from him. This commission is just dying to be able to print in the paper that it had brought the YMCA to Mt. Juliet. Fact is, the YMCA is here already and the commission had nothing to do with it. The YMCA sent out a survey to determine if there was enough interest for them to build a YMCA here and the result was twice the level of interest required for them to build a Y. Folks, if the city commission were to get out of the way we would have a YMCA here anyway.

    Now, for the sake of anyone who cares, or who is interested in figuring out a way to truly build a project in a way that does not cost the taxpayer money…read my next post.

    Sorry to put this in this place…but I want you to see where you tax dollars are going so that when the city is sued out the gills and then we have to pay property taxes again you will know “why”. (See, you knew I would connect the dots somehow.)

  7. Butch Huber

    Now to tell you how the city can build a senior center, teen center, community center, sport center, city hall, police department, fire department, public works department and do it without “Costing” the taxpayer any money.

    First there are the presumed expenses the city will naturally have to cover if nothing is done. The city will eventually have to build a new facility to house the city government…or at least parts of it anyway. There will be costs to move the government to the new facility. The city needs to upgrade its facilities for the police department anyway (Unless you still want to chain people to a bench in the passageways of city hall.), so there is an associated cost to the city that will have to be paid anyway.

    Instead of going through all the “have to pay”s, let’s assume that there are costs that the city will have to cover regardless of whose plan they follow.

    Now, let’s look at the land around that intersection for a minute. There are several pieces of land there that could be included in a cooperative effort to build a municipal center/retail center at that location.

    The city should approach each of the land owners around the old Elementary School site and negotiate with them for the purchase of their property. The purchase of their property should be contingent on the city being able to secure the required land from each of the other landowners. The land could be put into a trust or land bank at first so that the city doesn’t have to come out of pocket for the purchase of the land. (The land owners would receive a lot more money for their land than they would if they tried to sell it on their own as is.)

    The city could subdivide the land into the metro center project and a retail center project. Think of the new retail center area in Green Hills with a metro center included! This could be about a 40 or 50 acre project right in the heart of Mt. Juliet!

    The second floor of the retail project would be office space, which would help anchor the project and ensure its profitability. The city would be able to situate its offices above the retail and/or to the back of the project on what would otherwise be unused property if these properties were sold separately. (Or at least could potentially be unused.)

    If you look at the land surrounding that intersection you will see that a lot of land there is unusable due to layout of the property or due to flood plane…but if you expand the vision out to include the surrounding properties you can see that a lot of otherwise unusable property now becomes usable. By putting the properties together the city would increase the value of all the properties….that is where part of the city’s profit comes in. Then by subdividing off the retail portion of the project from the municipal center portion the city would be able to ensure that it develops the town center project in a way that they (the commissioners) all agree with, the city would realize a net gain that could be applied to building a municipal center project, and the shared parking between the two projects would cut costs for the city….additionally, the retail project would be responsible for paying for ingress/egress points, traffic lights, and road expansion and turning lanes. The city could build a multi-story building toward the back of the project area that is large enough to house the city government 30 years from now when the city is fully built out. The additional office space could be rented out for profit until needed by the city at a future date. This reduces cost to the taxpayer because the city would not have to move again. Moving is expensive. Additionally, the city could build a wing on the municipal center to house things like a community center, senior center, teen center, sports center..etc. There is ample room to build a public works center, a fire department, and a police department on the project. To the extreme back end of the project there would be a road that extends from East Division all the way to Mt. Juliet Road which would provide additional ingress/egress to and from the center, allow people to go to the municipal center without going through the parking lot, it would reduce traffic at the intersection of Mt. Juliet Road and Division, and it would provide quick access to the police and fire departments so they can respond to calls.

    The city could sell some of its current assets, including city hall, public works, the fire department building, the four acres along Mt. Juliet Road, etc to fund the project even further. It could float a bond for some of the project (Which would be paid back through rents on the additional office space that is owned by the city rather than through tax dollars.) The city could sponsor a non-profit with seed money so that the public can support the senior center, teen center, sports center, community center projects through charitable donations rather than through direct taxation. (The city could donate the seed money from funds it receives from the development project so that the Taxpayer is not responsible for having paid the seed money.) In addition, the city would be helping to foster retail growth in the city, which brings tax dollars. The city would certainly be helping the commuter rail project, especially at Christmas time.

    The city could work with the county on this project and enable the county to have offices in the municipal center, house the library there, and participate in good will projects in return for even further reduction in cost for acquisition of the elementary school site. The county could sell its current library site and move the library to the new site and not have to pay rent.

    You can have all of that and more…”OR”…you can give a two million dollar gift to the YMCA.

    My plan give the city an identifiable town center, amazing retail, charm, draw, and room for future growth. It allows developers to bid on the construction project which contributes to the economy. It supports the commuter rail. It centralizes government. It provides traffic relief. It makes use of otherwise unusable land. It reduces costs of construction. It enables the city to ensure that the town center project is developed according to the ordinances and resolutions of the city. It utilizes the city’s assets. I would ensure that the city provides a senior center, sports center, teen center, community center, etc.

    So, when these lawsuits hit, and the city has no money, and you and I are paying a property tax…you will know why.

    Hmmm…I just thought about it, this eleven acre lot at the intersection of Mt. Juliet and Division are for sale for more than 2 million…I wonder how much the 8 acres adjoining the paddocks are worth? If we don’t give this land back to the builder, as I believe we should, perhaps we should sell the land back to him and use the money to build out a project like this.

    Obviously, the city would have to have a land use attorney, and engineer, and others look at a project like this to ensure that it is legal, ethical, and practical…but I believe it is a much better idea than giving away two million dollars at a time when the city is cash poor.

  8. Pingback: Will Sellers and the Chronicle - What did the Commissioner say, and when did he say it? « Radio Free Mt. Juliet

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s