The turmoil around the Tennessee Ethics Commission continues today, but apparently criticism of the commission's conduct is falling on deaf ears.
Former Tennessee Lobbyist Association president Courtney Pearre, who also served in the administration of former Gov. Don Sundquist, has written a letter to Ethics Commission Donald J. Hall criticizing how rank-and-file staff have conducted themselves at scheduled ethics meetings.
Here is the copy of the letter sent to Hall:
Dear Chairman Hall:
As you know, your last meeting was the first I have attended in some time. I wish there was some diplomatic way to say what I am about to say, but I am afraid there is not. Let me also add that this letter is my personal opinion, and not the opinion of the Tennessee Lobbyists Association.
I have been practicing law since 1974. During that time I have appeared before and/or been in attendance at countless City Council meetings, County Commission meetings, meetings of state commissions or regulatory agencies, legislative committee meetings and legislative sessions. Not once in all these meetings have I ever seen staff interject themselves into the deliberations, let alone debate and argue with members of the governing body. Input from staffs can be invaluable, but that input should only come after a specific request.
In addition to the unprecedented participation of the staff in your deliberations, I was shocked and appalled at the tone of the participation by the staff. I have been advised that in some recent meetings the tone has been even worse than what was exhibited at your last meeting.
I urge the Commission to conduct its meetings as other similarly situated bodies conduct their meetings. Besides improving the civility of your meetings, it should have the added benefit of shortening them.
Very truly yours,
Courtney N. Pearre
While the letter was sent to the commission leadership seeking relief, it appears likely to fall on deaf ears.
Earlier this week, NashvillePost.com reported that the current TLA leadership – comprised of chair Anne Carr and lobbyist Mark Greene – have been encouraging lobbyists to refrain from asking for advisory opinions. Carr told NashvillePost.com that she feared commission staffers were "drifting away from interpreting the law and towards making policy."
In response to that article, NashvillePost.com received this e-mail from the commission's executive director, Bruce Androphy:
Dear Nashville Post:
As the Executive Director of the Tennessee Ethics Commission, I would like to respond to your recent article about TLA Chairperson Carr calling upon her members to refrain from seeking advisory opinions from the Commission for the foreseeable future.
First, Ms. Carr recognizes the exceptionally helpful Commission staff. The staff handles numerous and complex inquiries from lobbyists, employers and public officials on a new and difficult law. Both Chair Don Hall and I are extremely proud of the work of the staff in assisting the regulated communities in navigating the Ethics Law and its many mandates.
Throughout the first year and a half of its existence, the Commission staff has worked closely with the TLA in such areas as random lobbyist audits, lobbyist training, and recommending changes to the law. I, personally, made myself available to conduct mandatory lobbyist training at the TLA's annual retreat at Montgomery Bell State Park. And in response to the lobbyist complaints about the cost of the mandatory training class, the Commission lowered the training fee for 2008 as well as making lobbying training more available by video-conference. While we have agreed to disagree at times, the level of communication and cooperation between the Commission staff and the TLA has been exemplary.
The Commission staff is not authorized under the law to issue formal advisory opinions which must be voted upon by the Commission members at its public meetings. In the spirit of openness, the Commission makes draft advisory opinions available on its website prior to Commission meetings although it is not legally obligated to do so. The Commission has liberally permitted TLA members to address the Commission, again in the spirit of openness, although the Commission is not legally bound to do so.
The Commission would certainly subject itself to criticism and it would run counter to the Reform Act's mandate that the Commission be an independent body if it permitted the TLA to vet opinions before they are issued. A more vexing problem is that it would be hard to determine if the TLA was speaking for all lobbyists, only for lobbyists with many clients, or contract lobbyists, for in-house lobbyists, or some combination of these groups. The majority of registered lobbyists may not even be members of the TLA. On many issues facing the Commission, such as whether lobbyists may sign campaign contribution checks for PACs or whether indirect lobbying requires one to register, I have heard different opinions from members of the lobbying community.
Finally, Ms. Carr says that the staff's legal analyses are "drifting away from interpreting the law and towards making policy," yet there is no specific criticism of the methods used in those analyses. This criticism has been leveled for years against courts and agencies at all levels including the United States Supreme Court. Such criticism can be valid or invalid depending on the specific analysis in question. However, when the blanket statement is made without identifying any fundamental flaws in the legal analysis, the criticism is not worthy of serious consideration.
The draft opinions use canons of statutory interpretation which are accepted by the courts of Tennessee. Regardless of the results reached, I am proud that a number of opinions issued by the Commission have cited case law and made use of these canons as appropriate.
Thank you for sharing my response with your readers.
According to sources, Androphy then copied the subscriber-only NashvillePost.com article and sent it to members of the ethics commission and other individuals. He also attached a copy of his e-mail to NashvillePost.com.
What Androphy got in return was an e-mail of support from some members of his commission and dismissal of the TLA's concern.
Yesterday, ethics commission member Benjamin S. Purser sent an e-mail to Androphy that stated:
"I find it ironic that the commission instructed staff to make available materials on the website prior to a scheduled meeting so that interested parties could see the a.o.'s [advisory opinions] and prepare for comments at a commission meeting. Now, that all draft a.o.'s are available and the lobbyists association does not agree with some, they accuse staff of "drifting away interpreting the law and towards making policy." This is a classic example of no good deed going unpunished.
Frankly, I care not what the TLA, their chair, or their lobbyist think. We commissioners should not allow this petty criticism of commission staff to distract us from the business at hand. Especially now, we should support our staff, they do not deserve this unwarranted accusation."
Approximately an hour after Purser sent out that e-mail, ethics chair Hall responded:
"I agree with Ben's comments without reservation."
The next meeting of the ethics commission is scheduled for the week of May 15.
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