Mon
Nov 5 2007
08:09 am
By: WhitesCreek

I was thinking about the Constable situation and it boils down to a couple of things for me, but mostly about "Decision making capability" and its relationship to the job.

Near as I can tell...None of the folks involved seem to be able to make a good decision in a rational manner.

We have various decisions from the County Commissioners, Attorney, etc., etc.. But the real decision making instability seems to be centered around one person.

Our "Once, Ex, and possibly Future" Constable essentially says he should still be in his job because he couldn't actually figure out how to resign properly...

(Uh...He's the one with the gun, right?)

And we need a permalink at the RCN

I need to figure out how to link to stories at the Roane County News with permanent links. They have good info on this but I don't want to link to them and then have the link go bad later on. I have enough to fix.

Anybody?

RCN? You guys have plans to put a "permalink" on each post?

I Hope...

that he does not wind up being a constable again. It will only reintroduce instability and conflict that is needless.

It would be sad, IMHO, if he were to be put back in because, as WC so succinctly put it, he couldn't figure out how to resign properly. And from the case law he himself dug up - which had nothing to do with that issue - he was unaware of this technicality himself, so he could not have made his resignation faulty by his own design.

RB

Is the Real Problem the Position of Constable?

While in Knoxville, I worked on a similar case. A utility district board member resigned, the resignation was accepted, and then the board member "unresigned" and started working again. We filed an ouster suit, seeking to have the court declare that there was a vacancy and that the "unresigning" board member was not in office.

What Patton alleges is different here is that the resignation was never formally accepted. While I have not really looked into Patton's situation, or tried to "go behind" the new Attorney General opinion on his situation, my recollection is that the cases were pretty clear that, until there is a formal acceptance of the resignation by the person or entity which would fill the vacancy, the resignation may be revoked. If a resignation is revoked before it is accepted, it is treated as if it never happened.

Some may view this rule as a technicality, but, from what I have read so far, I predict it will be followed if Patton presses his case. I believe that is going to occur because the courts will want to follow precedent so that the law will remain clear as to exactly when a vacancy occurs in a resignation situation.

I don't know Patton and haven't looked into the facts enough to say whether it would be best for Roane County for him to be constable or not. But if there is a constable that is causing problems by exercising the powers of the office of constable, is the real problem the office of constable?

As many of you know, I am new to Roane, so I don't purport to have all the answers. Here is what I would like to know:

What do Roane County constables other than Patton do? What can a constable do? Is this office needed, or should it be abolished, as it has in many other counties?

If the office should be abolished, should Roane County be working towards that goal rather than fighting a legal fight that the Attorney General has opined is a potential loss? Or is Patton's case so extraordinary that it is worth the uphill legal battle?

Is there any basis for the argument that County Commission (as opposed to the Mayor) did accept Patton's resignation?

The Constable !!

I have asked this same question, several times: "What do Roane County constables other than Patton do? What can a constable do? Is this office needed, or should it be abolished, as it has in many other counties?"

The only answer I get is that he, the Constable, has the power to arrest the Sheriff. I have a problem believing that this justifies the position.

About Constables

Corvus,

There is a lot about Tennessee constables online. Here are a few tidbits from Google.

Tennessee law about constables from Lexis/Nexis: (link...)

Once at the above link with scripting turned on--it won't work otherwise--drill down as follows:

Tennessee Code
-- Title 8 Public Officers And Employees
---- Chapter 10 Constables

There is a lot there.

For a less formal account, see the part of this page at policeworld.net about Tennessee: (link...)

Also, there are a lot of links and resources at tennesseeconstablecouncil.org: (link...)

I hope this helps! :)

-- OneTahiti

Truth be told...

TCA 8-10-101 et sequitur does not contain provisions that allow a constable to arrest the sheriff.

The constable has specific duties, in his/her district, to serve process IF issued that process by the sheriff or by a court. The constable is considered in Tennessee to be a conservator of the peace, and, as such, is given generally broad law enforcement authority (inside his/her district) consistent with common law. There is a quaint part of the constable's oath which requires that he/she pursue and make hue and cry in accordance with the law if someone flees or resists a constable. The constable may serve a court if so appointed by court/sheriff.

The code concerning constables is in serious need of repair and reconciliation, IMHO. It is absolutely chock full of obscure definitions about what can or cannot be done by a constable in counties of certain populations (they'll define a population, for instance, as not less than 16,900 nor more than 16,950) as of or after a certain US Census date. It's all a result of private legislation from counties seeking to define what can or cannot be done by constables in their county without simply stating that in X county you can or cannot do thus-and-do. It's legal mumbojumbo and witchcraft and needs legislative attention to correct this archaic BS. Simply put, it needs legislative clarification for the benefit of both constables and citizens, so that its current confusing and convoluted nature is made clear and unambiguous.

Another thing is clear, however in the sections of the TCA concerning constables: the county governing body can remove all law enforcement powers of constables, leaving them as process servers to serve whatever process the courts or the sheriff decides to issue to them to serve. TCA 8-10-109(b)(1) says: "Notwithstanding any other provision of law to the contrary, a county legislative body may, by adopting a resolution by a two-thirds (2/3) vote at two (2) consecutive meetings of the county legislative body, remove any law enforcement powers exercised by the constables of the county." TCA 8-10-109(b)(2) has a table that excepts certain counties by population from this law, but Roane County's population does NOT fall within the populations excepted from (b)(1), so Roane County Commission COULD, in fact, remove any law enforcement powers from constables in Roane County.

For those interested, the person who can serve process - including arrest warrants - on the sheriff is the CORONER (cf TCA 8-9-106).

RB

I DID look at the population classifications again...

And Roane County fits NONE of them. The law states in the 1990 census OR ANY SUBSEQUENT federal census. Roane County's population, at about 52,000, does not fit in the ranges excluded from either abolishing the office of constable or limiting the law enforcement powers.

RB

Interesting questions, Mark...

Let me address your last one first: "Is there any basis for the argument that County Commission (as opposed to the Mayor) did accept Patton's resignation?"

The ultimate legal outcome remains to be seen, of course. But based on that movable legal target of what reasonable persons may reasonably believe, it appears reasonable to me that the County Commission's obvious and public moves to work on the process of REPLACING the resigned constable certainly indicates acceptance. I don't really believe a body such as the Commission moves to refill a vacant position without accepting the fact that the one who did occupy it no longer occupies it. It may not follow the AG's opinion, but it certainly seems reasonable to me to consider it a tacit acceptance that the constable's position is vacant. If it is vacant, how could it be so? Because he (the constable) himself said it was IMMEDIATELY vacant in his own letter. I think SILENCE would have indicated acceptance by the Commission. I think that it would have/should have taken definitive, affirmative acts and utterances to reject his application. But all that aside...

Is it the office or the man? Both.

As I have noted in another post on the subject, the statutes in Tennessee (concerning constables) are a confusing mish-mash of private acts piled upon private acts that obfuscate and confuse issues about an office-holder that CAN be a law enforcement officer. Laws about law enforcement should NOT be left obscure and confusing! This is legislative negilgence, and if I had the money and time, I'd start a process to file a writ of mandamus on the whole damn legislature to fix it! You remember the old but effective military acronym FUBAR? It doesn't take an experienced or licensed barrister to take one look at TCA 8-10-101 et seq to see that too many cooks have indeed spoiled the broth. Read the section and this becomes prima facie. RIL! (res ipsa loquitur!)

Given the history of the state and of law enforcement therein, the office of constable here, as in the UK, has an honorable and utilitarian past. So it is not per se a bad office. It is, given the current and improving state of law enforcement, and numbers of law enforcement officers, an obsolete office. That's not to say that the right person in the position of constable, at the right time and in the right circumstances, can't be of real assistance to the Sheriff's Department. They can - and in many cases have.

That fact notwithstanding, the office is obsolete. Unless the Sheriff says he needs constables on a repetitive basis in order to help his staff do the job, I can't see much need to retain the office.

This particular constable has been reported (I have not witnessed it) by persons who can and should be believed in a court, to have engaged in problematic behavior with other law enforcement officers and with members of the public. The City of Kingston is of the position that if he specifically is constable, they want him to be declared void of ANY law enforcement powers within that city. It is my belief that the Sheriff supports that, and that the Sheriff feels he does not need help from a constable who has behaved in the manner Mr Patton is reported to have behaved. It tells me something when a sheriff would not have another law enforcement officer as his own deputy. I don't know if the current Sheriff has ever felt the need to call on other constables to help him in their districts or not.

So, as you can see, the issue, and the problems, are bifurcated. Tain't one or the other. It's both.

That's my take on it.

RB

Indeed it would have impact...

The statute talking about the common law enforcement authorities of constable provide that they can be limited by the county legislative body, and the population classes of the exempt counties do NOT include the population class of Roane County.

RB

Update from Roane County News

A News article from Wednesday states that "[t]he whole issue has sparked a debate locally about the need for constables."

Unfortunately, I can't figure out how to link to a specific story at the News's new site.

I know what you mean, Mark...

In the old format for the RCN webpage, you could link to a specific story. Now it seems you can't.

I do believe the current need for constables is certainly debatable. As I said in a previous post, there was a time... But times have changed.

RB

I've made the need for a

I've made the need for a permalink known to the authorities at RCN, and they're going to look at it.

There are options for how a county empowers its Constables. They do serve a good function that unburdens regular deputies by serving papers, summons, and the like. I question the need for giving them enforcement powers in the current lay of the land.

I should note that I have a good friend who has served admirably as a Constable in Roane County for a number of years. He volunteers his time and has an unblemished record with no controversies, and also serves a great hamburger.

WC, we're breaking records again...

Here we go agreeing again!

If the constables can reliably and without stirring up trouble continue to provide service of process (civil process as opposed to criminal), and doing so would help our deputies be more free for duties requiring more law enforcement type activity, etc, why not indeed? Very sensible proposal, IMHO. As noted in one of my long posts, the county CAN limit their law enforcement powers without removing their office altogether. That's an option.

And I thoroughly agree with you about your former across-the-highway neighbor and purveyor of good burgers. They're about the best! And, as ou say, he has served with an untainted record. Most of 'em have served well. Sad what one can do to the group.

RB

The only thing I'd bet on is

The only thing I'd bet on is that the whole episode was mishandled from git to gone.

The issue is clouded by a written statement from the constable that his resignation is "effective immediately" indicating that he abandoned his elected position, and also clouded by a sloppy process at the County Attorney and Commission level that allowed this to remain unsettled.

Now we have a testosterone poisoned lawyerfest involving Tommy McFarland and Chris Cawood, and any discussion of that match up wanders off into ribaldries and indelicacies that have no place on this forum. One has to marvel at the fact that both attorneys face legal actions of their own for essentially the same transgressions.

I'm not sure how sloppy the process was...

Merriam-Webster defines sloppy: "2: slovenly, careless (a sloppy dresser), (did sloppy work)"

Whatever you think of Tom MacFarland's personal life, the man has a point. Neither the County Executive nor the County Commission knew the AG's opinion before he issued it. Neither had ever seen or heard of something that said only the Commission could accept such a resignation and that they were required to act affirmatively to accept it rather than just accepting it. They had no crystal ball to tell them that. The letter was to the County Executive. He was clear that he had no objection to the resignation and that he accepted it. He and the Commission together made clear moves to implement a process to refill what they all considered to be a vacancy. So I'm not at all sure a description of "sloppy process" applies here - certainly not a priori, even if you want to apply it in 20-20 retrospect. The issue even remained settled with Mr Patton for several weeks. Neither the County Attorney nor the Commission had anything other than precedent to go on, no findings of law (which an AG opinion is NOT), nothing - other than precedent. You don't get an AG Opinion until you ask for it, and, as happened here, it may not be what you expect. But you can't act now on an AG Opinion that hasn't been issued yet. SO I would classify the actions of the County's Executive, Commission, and Attorney as lacking in prescience, but not sloppy.

I also find it telling that the "legal grounds" on which Mr Patton based his appeal (a piece of old case law citation which he passed out to Commissioners right before they met) were NOT the legal grounds that the State AG presented him and his attorney as a gift. If he had had an idea of what grounds to appeal on, he would havea used them. The AG did not support him on the basis of the case law he handed out to Commission. The AG simply stated his opinion. And while we're at it, it is only that. Opinion is still opinion, even from an attorney. Any attorney, except one who is relying at the time on a specific opinion to support his own case, will tell you opinions do not carry force of law. Hence it is not outrageous when/if they are ignored or challenged. It is merely legal gamesmanship.

RB

Attorney General Opinions

RB, you are right that Attorney general opinions are not legally binding on courts.

They also are not always correct. Take, for instance, the opinion relied upon by Knox County in ignoring term limits -- an opinion that was ultimately rejected by the Supreme Court. That mistake (and Knox County's reliance on it) created the vacancies that led to the County Commission appointment problems Knox County is now facing.

However, that said, one would hope that attorney general opinions are usually correct and therefore they carry some persuasive, albeit nonbinding, authority.

Thanks, Mark!

I KNEW it was good to have you among us!

RB

RCNews Headline: "As Promised, Patton Sues Commission"

Today's "Dead Tree Edition" News Headline is: "As Promised, Patton Sues Commission." Haven't read it yet. Will do so at Junior's while eating breakfast.

Trenchant Analysis

He's sued everybody: the county, the commissioners, the mayor, and the "new constable" (quotation marks because whether the "new constable" is in fact properly in office is an issue challenged by the suit).

He also alleges that the open meetings act was violated. This is the same cause of action that the Knoxville News-Sentinel successfully prosecuted against the Knox County Commissioners earlier this year.

Important issues to be decided early:

If there is even arguably any merit to the open meetings act allegations, should Commission simply disclose its earlier discussions, and by agreement of all (except, perhaps, Patton), "redo" the disputed decision?

Is an ouster suit against Patton worth pursuing?

Who is going to represent the Commissioners individually and who is going to pay for it?

I haven't read Cawood's Complaint, but it may provide some additional information.

And, of course, regardless of the outcome of the litigation, the question remains whether the office of constable is worth keeping in Roane County.

I have detected...

In recent months a trend in the RCN to... well.. ride the coat tails of the News Sentinel on the issue of open meetings. Don't misunderstand me - I'm in favor of open meetings. But not everything that someone doesn't like happens because of a deep dark conspiracy to hide meetings and keep everything secret. I'm getting a trifle tired of some of RCN's righteous pontificating. And of course the willingness of the press to plaster anything anybody says or implies about closed meetings only adds fuel to the fire. So I think it was only a natural evolution that has Patton and Cawood adding to their mix the current cause celebre'. Surprise, surprise! NOT.

Good comments & analysis, Mark.

RB

Oh, do tell...

What "righteous pontificating" from the RCN are you tired of, RB?

Frankly, I don't think they do enough of it, althoug I would prefer "Lefteous" pontificating if I had the choice.

The Roane County News is a thrice weekly publication and can easily get beaten to the punch by a big well financed daily. I'm pleased with what we get from them, in that it is much improved over previous regimes. Not perfect or as hard hitting as I would like, but not bad given the treacherous climate of small town politics.

Well... good question, WC...

I mis-chose my words. "Righteous pontificating" was not the right phrase. I think they have engaged in trying to sell newspapers by grasping on anything they could to make it seem to the populace of Roane County that their government is just like Knox County's, and, that like Knox County's News Sentinel, there stands the RCN as the true revealer and arbiter of truth. In one sense, imitation is the sincerest form of flattery. In another sense, it's only wishful thinking on their part that they had a scandal as juicy to reveal.

Of course, there are things they could/should reveal that they choose not to. Such as delving into the millions of dollars the county could have derived the benefit from had a certain court clerk's office collected all the monies it was owed over the last few years.

I - and many, may others - have a big problem with the priorities and choices the RCN makes often on a weekly basis as to what to cover and what not to cover. I'm just tired of seeing them play like something they're not. I really like several of the people there and believe they want to do a good job.

Pleased with the RCN. Hmmm... I don't think I've heard anyone say that before.

Hard hitting... Interesting... when they ignore some of the things they ignore, and concentrate on some of the things they concentrate on, that's an interesting concept.

But I digress...

WC, I readily admit my choice of words was far from the best. But, as you have said before (or as I have at least inferred from what you have said here), this place probably should be like an ongoing conversation rather than requiring each and every word to have been perfected prior to typing. I'll take my lashes, and, please, sir - may I have another?

However, as someone who has been a journalist who is now a consumer, I'm not saying I'm pleased with RCN, regardless of my poor choices in wording sometimes. And as the place I practiced my journalism was a small low-budget place, I do understand the difference between big budget and low budget operations. Budget does not dictate quality, however. Often an editor does.

RB

(update: edited at the request of the poster)

RB...

Unless you can put up something specific on the RCN Editor, I would refrain from posts like that one. It's closer to gossip than anything else.

Frankly, most of what you allude to would fall under the province of the Publisher, anyway, and unless you've got something specific there too, the same caveat goes.

Tried to edit my last post...

After your comment, WC, but was unable to do so.

My intent was to remove, with notation that it had been edited, my remarks relaying what others had told me. Indeed, that could be classified as gossip.

Other things, that express my opinion, are not gossip, and are, I think valid for a post.

It is my understanding - if you have more facts about how the RCN is run than I do, correct me and I will stand corrected - that the Publisher at RCN does not dictate editorial policy to the editor, that she has a very free hand. I would be glad to be corrected.

I'm befuddled by the editing process on this forum. Many of my posts have the edit option. Many do not. I can't see the pattern or what makes the differences in which posts of mine I can edit and which I cannot.

RB

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