Thu
Apr 3 2008
06:16 am

Is it me, or has this Constable Patton case gotten too weird? Now Patton's attorney Chris Cawood, noted for being a different duck in his own right, wants to see the phone records and text messages of the County Commissioners.

Frankly, I am a champion of sunshine in government but Cawood is simply fishing with a big hook and no bait. Besides...How many of the Roane County Commissioners even know how to send a text message in the first place?

Commissioner Public Records

This issue is also going on in Knox County, where a commissioner's letters from constituents were requested.

Is that different from

Is that different from asking for phone records, which would have nothing to indicate what they were about?

There are two acts: the

There are two acts: the Public Records Act and the Open Meetings Act (also referred to as the "Sunshine" Act). The phone records could be relevant to whether the Sunshine Act was followed, but the text messages sought are arguably covered by the Public Records Act.

Regarding the merits of the request, in my personal opinion, commissioners don't need to be calling each other and should limit their discussion to talking about public matters in public meetings for exactly this reason. Records of phone calls -- even if they don't show a violation -- could be relevant to whether the commission violated the Sunshine Act. Therefore, phone records were a major part of the Knox County Sunshine Act proceeding (filed by the News Sentinel).

So, even if a particular call between commissioners was an innocent one about the UT Vols game, it could force the County to expend funds explaining what the call was about.

I have no idea whether Cawood is on a fishing trip, and it very well could be that the response to his request will be that there were no such phone calls.

I think Mark raises an interesting issue...

"So, even if a particular call between commissioners was an innocent one about the UT Vols game, it could force the County to expend funds explaining what the call was about."

Last time I looked a violation of criminal law required proof beyond a reasonable doubt to establish legal guilt. Absent a way to prove the content of a conversation, so long as a participant in the conversation testified it was about the UT ball game (to carry Mark's example), it is beyond me how the existence of a conversation could be assumed to prove it was, in fact, an illegal conversation discussing county business. It is not unreasonable to assume that county commissioners, given the close relationships they are thrust into by their position, could develop friendships and speak to each other about their hobby of fishing or the topic that ALL East Tennesseans talk about - UT Sports. I think it is absolutely ludicrous and an abridgment of THEIR rights of free speech and assembly to say that that are prohibited from any conversations with each other merely by the fact that they are elected as county commissioners. That is taking a good thing - open government - and perverting it into something that was never intended and never should be.

We should not have to "sign away" our rights of free speech and assembly because we got elected to city council or county commission. That is too much of a stretch.

Cawood demonstrates a bit of technical lack of acumen, methinks, in thinking that he can get copies of text messages between cell phones. When they are erased from the individual cell phone, they are, for practical purposes, gone. How can you get a text message off a commissioner's cell phone months after he's erased it. The servers that transport the messages for the cell carriers don't hold a message indefinitely. Once they've DELIVERED the message to the intended handset, those servers are free to over-write that portion of the server's disk with somebody else's message. If they didn't do that, they'd go broke replacing storage media on their message servers.

WC, I think your comment is on the money... this has gotten too weird.

RB

RB, You are right that a

RB,

You are right that a record of one call between commissioners may not prove a violation. But a civil suit under the Sunshine Act only requires proof by a preponderance of the evidence, not proof beyond a reasonable doubt.

A phone record could be highly relevant if it showed a pattern of calls, such as calls by one commissioner to a series of other commissioners, or several commissioners consistently calling each other before public meetings on contentious issues (then not debating the issues in the public meeting). Knox County commissioners got so far afield on this type of Sunshine Act violation that they were ultimately enjoined to follow the law.

That is why my personal opinion is that commissioners, if they want to do the best possible service to the County, should decide to refrain from making calls to other commissioners -- even UT Vols calls. That way, no one could even speculate (in a Sunshine Act suit or otherwise) that there was a violation.

Hi, Mark -

What you say makes sense from a legal standpoint... the letter of the law and all that. I understand what you say - at least I think I do - about a pattern of a lot of calls going from one commissioner to the other, etc. I could see how that would be more relevant around certain dates, or as certain dates approached, etc.

I appreciate your clearing up for me that Sunshine Act is not a part of criminal law, but civil. And I do understand the difference between preponderance of evidence versus beyond reasonable doubt.

I remember one time in this forum I said something about not disagreeing with you because you're a lawyer, and someone - I believe it was WC - said to go for it because he argues with lawyers all the time :-) Maybe I'll kinda take a middle road... I don't doubt or disagree with your assessment of the legal issue.

What I DO have problems with is a law that is crafted in such a way as to be very inviting of an interpretation that could so invade private lives as to make simple conversation have the appearance of being illegal, even if it is not. That is a travesty to me. It is an assumption of guilt with the requirement to prove innocence, and is repugnant to what I consider to be a constant and necessary principle of the fabric of American law, be it civil or criminal law. The degree of libertarian in me revolts at the hint that I give up my right to talk to someone because I had the audacity to get elected as a commissioner or city councilperson or whatever.

I have no problem with the concept of not talking "outside of school" on governmental deliberations. But, by God, if someone wants to accuse me of improper conversations, THEY better carry the burden of proof of guilt, rather than requiring ME to carry the burden of proof of innocence!

Yet the kind of application of the Sunshine Act we seem to be talking about turns normal American jurisprudence on its head and imputes guilt that must be disproven rather than the other way around. It may be legal based on the statute (doesn't guarantee the constitutionality of the statute), but it ain't RIGHT.

If we've got to the point that to be elected to such a legislative or deliberative body means abrogating basic rights of free speech and association, we've gone too damn far.

RB

And Now Robinette wants in on the game

The most contenious race is likely to be for property assessor, where Steven Robinette is challenging incumbent Teresa Kirkham.

Robinette filed a lawsuit against the county on March 31 over Kirkham's cell phone records.

"It's a public records request, and I'm going to look at the law and Roane County will do whatever law dictates," Roane County Attorney Tom McFarland said Thursday.

Pursuant to this conversation...

Which involves a discussion of Tennessee's so-called Sunshine Law (TCA 8-44-101 et seq) I found this neat site with a Q&A type teaching format to help explain some basic principles of the TN law.

See: (link...)

It's interactive - kinda neat.

RB

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