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WELCOME TO COOP 2014 CTAS Website Tour 2 COUNTY GOVERNMENT OVERVIEW OF OFFICES County Government • A collection of offices, boards and commissions with limited powers and duties defined by general law-- and in some cases modified by county or metropolitan charter -and supplemented by private acts • Cannot succeed without cooperation Tennessee Constitution • Limits power of Legislature • Few limits on what Legislature may enact regarding county and city government • Duties of officials set by Legislature • Constitutional requirements differ for counties with consolidated county/city government or county charters Three Forms of County Government • Basic Form (90 Counties) • Metropolitan Government (Consolidated County/City Government) (Davidson, Moore, and Trousdale Counties) • County Charter (Home Rule) (Shelby and Knox Counties) Basic Form • Constitutional Officers - Tenn. Const. Art. 7 – – – – – – – County Executive (Mayor) County Commissioners Sheriff Trustee Register County Clerk Assessor of Property Other Offices • Clerks of Court (Tenn. Const. Art. 6) – Inferior court clerks (elected) – Clerks and masters (appointed by chancellors) • Offices, positions created or authorized – General law – Private act Basic Form • • • • • Collection of offices and positions No hierarchy Most offices “independent” County Mayor has few statutory powers County Legislative Body has limited powers granted by statutes TCSA Officials • COUNTY MAYORS / EXECUTIVES • COUNTY COMMISSIONERS • HIGHWAY OFFICIALS County Mayor – Required constitutional office except in counties with a metropolitan government or county charter – One of several constitutional county officers – Popularly elected to a 4-year term – Tenn. Const. Art. 7, Sec. 1 County Mayor • Duties determined chiefly by general law • Private act may add duties not conflicting with general law • Must share many executive duties with other constitutional offices • Powers may be enhanced or lessened by county charter or metro charter, if office retained County Mayor • Powers and duties detailed in Tennessee Code Annotated and supplemented in some counties by private act • No implied powers • Power rests more on persuasion than law County Mayor • • • • • General agent of county Chief financial officer Legislative leader - chair or veto power Executive appointments - limited “Representative” of county County Mayor • Interacts with almost all county offices and entities – County legislative body chair or veto power – Budget preparation – Defends salary suits and signs letters of agreement – Signs warrants or checks in most counties County Commissioner • One of 9 to 25 members of the county legislative body (known as the board of county commissioners or county commission in non-metro counties) • Elected to a term of 4 years as required by Tennessee Constitution (Art. 7, Sec. 1) County Legislative Body • Powers given by general law codified in Tennessee Code Annotated • Private acts may supplement powers given by general law • Metro Councils have combined powers of city council and county commission County Legislative Body • Elects chair and chair pro tempore at first meeting after September 1 for one-year term • May elect one of its own members or county mayor as chair • County mayor may refuse election and retain veto power County Legislative Body • Levy of property tax rate and adoption of annual budget are most important duties • No upper limit on property tax rate, not subject to referendum • Must meet state funding requirements (schools, official salaries, court orders, etc.) • Must balance budget County Legislative Body • Has power to issue debt - sometimes subject to referendum • Has power over county property not in hands of school board, including power of condemnation, purchase and sale • Assigns space to county officials and courts County Legislative Body • Decides whether fee offices are on “budget” system -- all fees go to general fund monthly and all expenses of the office are budgeted -or “fee” system -- offices turn over only “excess” fees quarterly and salaries and expenses are paid from fee account • Sheriff is always under “budget” system County Legislative Body • Interacts with many offices – – – – – Approves budgets Approves county road list Confirms many executive appointments Fills vacancies in county offices Approves official bonds of many offices County Legislative Body • Regulatory Powers (where specifically granted by statute) • Examples: – – – – Zoning Building Codes/Permits/Inspections Animal control Upon 2/3 vote, may adopt certain city-type ordinances, e.g., nuisance regulations County Legislative Body • May adopt optional general laws by 2/3 vote • May approve private acts passed by General Assembly by 2/3 vote if private act calls for county legislative body approval instead of referendum approval Highway Officials • Chief Administrative Officer – Popularly elected – Appointed • Highway Board Member (some counties) – Most are popularly elected – Appointed Highway Officials • Most counties operate under a general state law known as the County Uniform Highway Law (CUHL) • Shelby, Davidson, Knox and Hamilton counties are not under the CUHL Highway Officials • Chief administrative officers in CUHL counties serve a term of 4 years whether or not popularly elected (as determined by private act) • Highway Boards are optional - most established by private act - members selected and serve according to private act Highway Officials • Under the CUHL, the chief administrative officer exercises general policy making powers over the road system • This includes general control over the location, relocation, construction, reconstruction, repair and maintenance of the county roads Highway Officials • Under the CUHL, the chief administrative officer has full personnel powers -- to hire, dismiss, and set salaries and wages within budget, even if there is an elected highway board • Purchasing officer for the highway department not determined by the CUHL Highway Dept. Budget • Under CUHL, county legislative body may not set budget line items in such detail as to limit ability of chief administrative officer to set pay for highway personnel • Salary of chief administrative officer set by county legislative body at or above minimum required by general law, 10% more than general officers (trustee, etc.) COUNTY GOVERNMENT BASIS OF AUTHORITY Basis of Authority • STATE OF TENNESSEE – Creates and empowers counties • UNITED STATES OF AMERICA – Does not empower counties, but limits power of the state and its subdivisions such as counties • Example: anti-discrimination laws Nature of Authority • COUNTY GOVERNMENT – Can only do what is authorized by state law – Must find authority in statutes • PRIVATE BUSINESS – Can do anything not prohibited by law Sources of Authority • GENERAL LAW - Public Acts of Tennessee General Assembly • PRIVATE ACTS of the Tennessee General Assembly approved locally • COUNTY OR METRO CHARTER County Authority • Granted by state statutory law • Counties and county officials have NO power to act outside of power granted through state statutes • Federal law may limit action but does not empower county officials General Law • Public Chapters enacted by the General Assembly (codified in Tennessee Code Annotated) – General Application or Local Application • Mandatory • Permissive – Local Option • Usually adopted by 2/3 vote of county commission or approved by referendum Private Acts • Source of authority when general law is silent (example: hotel/motel tax) • Constitutionally suspect if in conflict with a general law (Tenn. Const. Art. 11, Sec. 8) • Must be enacted by General Assembly and receive local approval by 2/3 vote of county commission or majority in referendum Metro Charters • Metropolitan Government merges a county with its most populous city with option for other cities in county to join • Under enabling general law, metro government has powers of a county and a city • Wide power granted to restructure local government through metro charter • Must be approved by majority votes both inside and outside most populous city County Charters • An alternative form of county government provided by Tennessee Constitution since 1978 as enabled by General Assembly and approved in county referendum • Enabling law gives power to restructure county government and adopt ordinances 95 Different Counties • Each county has different laws operating within the county – due to exceptions in the general law, optional laws, private acts and possibly county charters or metropolitan government charters, each of which can differ greatly • Officials must consult with their county attorney to determine what they can and cannot do COUNTY OFFICIALS BONDS AND OATHS Official Bond • A promise by the official to faithfully perform the duties of the office, pay over all monies and properties that come into the officer’s hands to the persons authorized by law to receive them, safely keep all records required by law, and turn over all property and records to successor Official Bonds • Forms prescribed by Comptroller • Made payable to state upon failure of official to keep promises made in bond • Bond is to protect county and state, not the official (surety may sue official to recover payout under bond!) • Surety premium paid by county Official Bonds • County legislative body or court approves • Recorded with Register of Deeds • Filed with the County Clerk within 40 days of election or 20 days after the term of office begins Official Bonds • Amount of bond may be increased by county legislative body • Corporate surety or individual surety – County legislative body decides • Blanket bonds – Separate rider for each official – Counties are required to have $150,000 (minimum) blanket bond for all county employees not otherwise covered by individual bonds Official Bonds • County Mayor – $100,000 – filed with County Clerk • County Commissioner - no bond • Highway Chief Administrative Officer – $100,000 – filed with County Clerk Official Bonds • Failure to file bond in the proper office on time results in a vacancy in office! – T.C.A. § 8-19-117 • It is a Class C misdemeanor to perform any official act before your bond is approved! – T.C.A. § 8-19-119 Oaths • Constitutional Oath and Oath of Office • May take any time after receiving certificate of election • Administered by judge, county mayor, county clerk or member of the General Assembly • Filed with county clerk • It is a Class C misdemeanor to perform the duties of your office prior to taking and filing your oaths. T.C.A. § 8-18-113. Oaths • Sample Oaths of Office may be found on e-Li (Reference No. CTAS-30) BREAK OPEN MEETINGS & MANAGING PUBLIC RECORDS Open Meetings The policy of the state is that the formation of public policy and decisions is public business and shall not be conducted in secret. T.C.A. 8-44-101. Four Requirements of the Open Meetings Act 1. Meetings of a governing body must be open to the public; 2. Adequate public notice of meetings must be given; 3. Minutes must be complete and open; and 4. All votes must be public - no secret ballots allowed. First Requirement • All “meetings” of a “governing body” must be open. • “Meeting” is defined by the act as “the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision.” • “Governing body” is defined by the act as “any public body consisting of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.” First Requirement – Cont. Two part test: 1. Whether the body’s origin and authority may be traced to state, city or county legislative action; and 2. Whether its members have authority to make decisions or recommendations on policy or administration affecting the conduct of public business. Examples of Meetings Subject to the Sunshine Law • • • • County commission meetings School board meetings Highway commission meetings County public records commission meetings Second Requirement • Adequate public notice must be given for all meetings. • What is “adequate” notice? • Depends on the importance of the meeting to the public – the more important to the public the meeting is the greater the public notice burden. Second Requirement – Cont. Three Prong Test: 1. Location(s) of notice; 2. Content of notice; and 3. Time of notice. Third Requirement • The minutes of meetings must be recorded and open to public inspection. • Record of persons present, motions and votes. • Strict compliance required. Fourth Requirement • All votes must be by public vote, public ballot or public roll call. • The law defines a “public vote” as a vote in which the “aye” faction vocally expresses its will in unison and in which the “nay” faction, subsequently, vocally expresses its will in unison. • No secret votes whatsoever. Exceptions • On-site inspections. • Chance meetings. • Single public official is decisionmaker. • Public participation limited. Exceptions – Attorney/Client Discussions • Limited exception for meeting with attorney. • Must concern litigation already filed or likely to be filed. • No discussion may take place between members of the public body. Exceptions – Electronic Communications • Limited exception for communications over an internet forum open to the public. • Only for county commissions and school boards. • Numerous requirements. • Cannot substitute for a meeting. Penalties and Remedies for Noncompliance • Courts are given broad authority to issue injunctions and impose penalties. • Action taken is void. • Cannot “rubber stamp” prior action. • Embarrassment and stigma attached. Managing Public Records Open Records, Disposal & Alternative Storage Formats Open Records • Records are public property. • Generally, public has access. • However, confidentiality of certain specific records also must be guarded. Tennessee Public Records Law T.C.A. 10-7-503 All state, county and municipal records shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. Definition of Public Records All documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency. Examples of Public Records • • • • • • • • • • Employee evaluations Contracts with vendors Emails Phone messages Financial or performance audits Annual reports Fee collection reports Meeting agendas/minutes Budgets Office policies Exceptions - Confidential Records • Some exceptions are in T.C.A. 10-7504, most are elsewhere (other statutes, court rules, under the common law, federal laws, and administrative rules). • Over 350 exceptions. Examples of Confidential Records • Medical records of patients in county hospitals or medical facilities • Student records • Much of the information in motor vehicle records • Credit card numbers of persons doing business with the county and any related PIN numbers or authorization codes • Adoption records • Investigative files pertaining to pending or contemplated criminal action Personal Information of County Employee • Most personal (i.e., not job related) information of county employees is confidential. • Phone numbers, residential address, social security number, etc. • Similar information of family and household members. • Includes information of former employees. Redaction • Record custodian is responsible for redacting confidential information. • Redaction process: (1) Make copy of original; (2) Redact copy; (3) Make copy of redacted copy; and (4) Provide requestor copy of redacted copy. Office of Open Records Counsel • OORC provides assistance to county officials and citizens with specific open records requests. • http://www.comptroller.tn.gov/openrecords/index.asp • Phone: (615) 401-7891 or 1-866-831-3750 • Fax: (615) 741-1551 • Email: [email protected] • OORC provides advisory opinions, training, forms and best practice guidelines for record custodians. Records Request Process • A citizen has the right to request during normal business hours. • If practical, must promptly make available for inspection. • If not, must within seven business days: – Make the record available to the requestor; – Deny the request in writing, stating the basis for the denial; or – Furnish the requestor an OORC form stating the time necessary to produce the record. Denial of Access • If denied access may sue. • Burden of proof rests on the county official. • The court may assess all reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against the county official if the court deems the denial “willful.” • Willful means in bad faith. • The law requires the court to consider guidance given to the official by the OORC. Charging for Copies • No charge to view records. • May charge actual cost for providing requested copies. • Must provide estimate of cost. • Some statutes provide for a specific copy fee. • OORC has developed a schedule of reasonable charges for copies of public records. OORC Schedule of Charges • • • • Located on OORC’s website. 15 cents for black and white copies. 50 cents for color copies. May charge hourly wage of employee(s) after the first hour. • Safe harbor if follow the schedule. • If don’t follow the schedule, must document actual cost. Limits on Record Requests • • • • • Confidential Records. Only TN citizens. Not required to create a document. Not required to compile information. Not required to produce a document for which you are not the custodian. DISPOSAL OF PUBLIC RECORDS Duty to Preserve Records Official bond insures: – Safely keep all official records; and – Safely turn over to your successor all official records. Goals of a Good Records Management Program • Records you need are preserved. • Records you don’t need are destroyed. • Records are properly catalogued and indexed. • Proper conditions are maintained for long term preservation of important records. Checks and Balances The disposal checks and balances include: – The official who has custody of the record; – The county public records commission; – The state library and archives; and – For court records, a judge. County Public Records Commission • Three members appointed by the County Mayor: a county commissioner; a judge of a court of record; and a genealogist. 84 • Three ex officio members: the county clerk and the register of deeds (or their designee), and the county historian. • Plus the county archivist if one is appointed. First Step in Disposal Process • Identify and classify the record. • Three classes of records: – Working papers; – Temporary records; or – Permanent records. • CTAS’ e-Library (e-Li) contains retention schedules describing many major types of records maintained in county offices and recommends a time period that each record be kept. Working Papers • Working papers are records created to serve as input for final reporting documents, and those records which become obsolete immediately after agency use or publication. • May be destroyed in accordance with the rules and regulations adopted by the public records commission. • These rules and regulations should be liberal, allowing county officials to eliminate these records as easily as possible. Temporary Records • If a record needs to be kept around for some reason after its initial use, then it is at least a temporary record. • Once retained for its useful term, then it may be destroyed. • The rules of the records commission should require the official wishing to destroy temporary records to notify the commission of the kind of record to be destroyed and the basis for its destruction. Continuing Authorization • Record commissions can provide “continuing authorization” to destroy temporary records. • When possible, it is recommended officials request continuing authorization. • Once granted, officials only need to notify the commission when records are being destroyed in compliance with the schedule, identifying the type, age and quantity of the records. Permanent Records • Permanent Records are records that are required by law or by their importance to be kept permanently. • If you can safely and successfully convert paper records into another permanent media that is easier to store, the original paper version of the records can be destroyed. • No original permanent public record may be destroyed unless a majority of the records commission agrees. • Must give 90-days notice to the State Library and Archives prior to destruction. • Additionally, prior to the destruction of any records reproduced onto electronic storage media, the records commission is required to provide public notice of the destruction in a newspaper of general circulation. Methods of Destruction • For many working papers and some temporary records of an office, tossing them in the trash or recycling bin is appropriate. • If there is a possibility that confidential information is included in the records, they must be disposed of in a manner that obliterates this information, such as shredding. Alternatives to Destruction • The records may be transferred to a local or regional public library, a local, regional or state college library, or a county or regional historical society, to be preserved for historical purposes. • Additionally, a county may establish its own archives or enter into an interlocal agreement with other local governments for the creation of a regional archives. Alternative Storage Formats for Public Records Microfilming • Trusted process over 150 years old • Advantages: – Space savings (98% reduction in storage space over paper records) – Archival quality (suitable for long term retention) • Disadvantages: – Expensive – Labor intensive – Requires expertise Microfilm and the TSLA • The TSLA may be able to provide some level of free microfilming services. • TSLA remains an excellent source of objective advice about microfilming if you have any procedural questions. Electronic Storage • Computers are being used both as a format for creating and maintaining records originally as well as for reproducing existing paper records onto other electronic storage media. • Host of issues: – Security – Access – Preservation Electronic Records Standards Records may be maintained in an electronic format if the following standards are met: – The information must be available for public inspection, unless confidential; – The record must be retained for the entire retention period; – All data must be copied to storage media daily and back-ups that are more than one week old must be stored off-site; and – Official must be able to provide a paper copy upon request to the public. Electronic Records: Advantages & Disadvantages • Advantages: – Incredible reduction of storage space – Speed of access and retrievability • Disadvantages: – Fragile – Storage and operating systems change frequently • TSLA states that it does not consider any existing format for electronic records to be of permanent archival quality. Dual Systems • Many officials are, through scanning or imaging, creating electronic duplicates of the record which are primarily used by the office during the active life of the record. • The paper version serves as a security copy which can be stored off-site. Records Management Do’s and Don’ts • Respect the right of the public to access records. • Find out which records are confidential and protect them. • Don’t destroy county records without proper authorization to do so (i.e., get permission from the Public Records Commission). • Make sure you have proper back-ups and duplicates of any records kept in electronic format. • Plan for ways to preserve records that must be “permanently” retained. Additional Sources of Assistance • The Office of Open Records Counsel – Open Meetings – Open Records • The Tennessee State Library and Archives • Local Historical and Genealogical Societies • Private firms and contractors Ethics Laws Affecting Local Government Officials 101 Ethics Laws Prohibition of Consulting Services 102 Prohibition of Consulting Services In 2005, when the General Assembly first began looking at ethics reform, it enacted laws that prohibit taking consulting fees (which are broadly defined to include receiving anything of value) for advising or assisting a person or entity in influencing county legislative or administrative action. This includes services to assist a person or entity in maintaining, applying for, soliciting or entering into a contract with the county. 103 COMPREHENSIVE GOVERNMENTAL ETHICS REFORM ACT OF 2006 The 2006 Ethics Reform Act amended the consulting fee prohibition passed in 2005 to clarify that the consulting prohibition applies only to the government represented by the official. For example, a county official could take a consulting fee for assisting a company in getting a contract with a municipality or another county without violating the law. 104 COMPREHENSIVE GOVERNMENTAL ETHICS REFORM ACT OF 2006 However, that county official is still prohibited from taking anything of value from a vendor in exchange for voting in favor of a contract with a vendor or for merely working to assist that vendor in getting a contract with his or her own county. The law prohibits monetary payments, but also prohibits “wining and dining” by vendors, including gifts, meals, trips, entertainment, etc. 105 CONSULTING SERVICES T.C.A. § 2-10-122(2) With respect to an elected county official, including a member-elect of a county legislative body, consulting services means services to advise or assist a person or entity in influencing legislative or administrative action, as defined in T.C.A. § 3-6-301, relative to the county represented by such official. Consulting services also means services to advise or assist a person or entity in maintaining, applying for, soliciting or entering into a contract with the county represented by such official. 106 INFLUENCING LEGISLATIVE OR ADMINISTRATIVE ACTION … … means promoting, supporting, influencing, modifying, opposing or delaying any legislative or administrative action by any means, including, but not limited to, the provision or use of information, statistics, studies, or analyses, but not including the furnishing of information, statistics, studies, or analyses requested by an official of the legislative or executive branch to such official or the giving of testimony by an individual testifying at an official hearing conducted by officials of the legislative or executive branch. T.C.A. § 3-6-301(13). 107 FEE, COMMISSION, OR ANY OTHER FORM OF COMPENSATION "Fee, commission, or any other form of compensation" and "compensation" do not include anything of value that may be accepted under T.C.A. § 2-10-116 or that is identified in T.C.A. § 3-6-305(b) or (c). T.C.A. § 2-10-122(3). Such fees do not include compensation paid by the state, a county, or municipality. T.C.A. § 2-10-124(a). 108 ACCEPTANCE OF HONORARIUM BY PUBLIC OFFICIAL T.C.A. § 2-10-116 The acceptance of an honorarium by a public official in such person's capacity as a public official is prohibited. "Honorarium" means a payment of money or any thing of value for an appearance, speech or article, but does not include actual and necessary travel expenses, meals and lodging associated with such appearance, speech or article. Acceptance of an honorarium for an appearance, speech or article by a public official in such person's capacity as a private business person, professional or tradesperson is not prohibited. 109 PERMITTED GIFTS & BENEFITS There are certain types of gifts and benefits listed in T.C.A. § 3-6-305(b) and (c) which are not prohibited. HOWEVER, most anything of value provided by a vendor to a county official for advice or assistance in influencing county legislative or administrative action, such as getting a contract with the county, is prohibited under the law. 110 PERMITTED GIFTS & BENEFITS continued Benefits resulting from business, employment, or other outside activities of a candidate or official or the immediate family of a candidate or official, if such benefits are customarily provided to others in similar circumstances and are not enhanced due to the status of the candidate or official. T.C.A. § 3-6-305(b)(1). Informational materials in the form of books, articles, periodicals, other written materials, audiotapes, videotapes, or other forms of communication. T.C.A. § 3-6-305(b)(2). 111 PERMITTED GIFTS & BENEFITS continued Gifts that are given for a non-business purpose and motivated by close personal friendship, but only to the extent such gifts are specifically defined and authorized by the rules of the ethics commission. T.C.A. § 3-6305(b)(3). Sample merchandise, promotional items, and appreciation tokens, if such merchandise, items and tokens are routinely given to customers, suppliers or potential customers or suppliers in the ordinary course of business. T.C.A. § 3-6-305(b)(4). 112 PERMITTED GIFTS & BENEFITS continued Unsolicited tokens or awards of appreciation, honorary degrees, or bona fide awards in recognition of public service in the form of a plaque, trophy, desk item, wall memento and similar items; provided, that any such item shall not be in a form which can be readily converted to cash. T.C.A. § 3-6-305(b)(5). 113 PERMITTED GIFTS & BENEFITS continued Opportunities and benefits made available to all members of an appropriate class of the general public, including but not limited to: Discounts afforded to the general public or specified groups or occupations under normal business conditions, except that such discounts may not be based on the status of the candidate or official; and Prizes and awards given in public contests. T.C.A. § 3-6-305(b)(6). 114 PENALTIES FOR VIOLATIONS AT THE LOCAL LEVEL It is an offense for any member of a county legislative body, member-elect of a county legislative body, or other elected county official to knowingly receive a fee, commission or any other form of compensation for consulting services, other than compensation paid by the state, a county, or municipality. T.C.A. § 2-10-124(a). 115 PENALTIES APPLY TO VENDORS It is an offense for any person or other entity, other than the state, a county, or a municipality, to pay a fee, commission or any other form of compensation for consulting services relating to a municipality or county if such person or entity knows the person to whom the compensation is paid is a member of the municipal or county legislative body, a member-elect of the municipal or county legislative body, or other elected municipal or county official in the county or municipality in which the consulting services are to be performed. T.C.A. § 2-10-124(b). 116 CLASS A MISDEMEANOR A violation of the provisions of this section is a Class A misdemeanor. Any person convicted of such offense shall forever afterwards be disqualified from holding any office under the laws or constitution of this state. T.C.A. § 2-10-124(c)(2). 117 CLASS A MISDEMEANOR Pretrial Diversion T.C.A. § 40-15-105 An elected or appointed person in any political subdivision of the state who commits any misdemeanor offense, which offense was committed in the person's official capacity or involved the duties of the person's office, is ineligible for pretrial diversion. 118 CLASS B FELONY If the conduct giving rise to a violation of the provisions of this section would also constitute the offense of bribery, prohibited by the provisions of T.C.A. § 39-16-102, then such violation is a Class B felony. Any person convicted of such offense shall forever afterwards be disqualified from holding any office under the laws or constitution of this state. T.C.A. § 2-10-124(c)(1)(A). 119 BRIBERY OF PUBLIC SERVANT A person commits an offense who: Offers, confers, or agrees to confer any pecuniary benefit upon a public servant with the intent to influence the public servant's vote, opinion, judgment, exercise of discretion or other action in the public servant's official capacity; or While a public servant, solicits, accepts or agrees to accept any pecuniary benefit upon an agreement or understanding that the public servant's vote, opinion, judgment, exercise of discretion or other action as a public servant will thereby be influenced. T.C.A. § 39-16-102(a)(1) & (2). 120 BRIBERY OF PUBLIC SERVANT (continued) It is no defense to prosecution under this section that the person sought to be influenced was not qualified to act in the desired way because the person had not yet assumed office, lacked jurisdiction, or for any other reason. Bribery of a public servant is a Class B felony. T.C.A. § 39-16-102(b) & (c). 121 DISQUALIFIED FROM HOLDING PUBLIC OFFICE Every person who is convicted under § 39-16102 of accepting or receiving any gift, promise, benefit, or gratuity, as an executive, legislative, or judicial officer, shall forever afterwards be disqualified from holding any office under the laws or constitution of this state. T.C.A. § 39-16-103. 122 DISQUALIFIED FROM HOLDING PUBLIC OFFICE Any person who is convicted after February 15, 2006, of an offense in another state or under federal law that would constitute a violation of § 39-16-102 if committed in this state shall be, from the date of such conviction, forever disqualified from holding any office under the laws or constitution of this state. If at the time of conviction for an offense specified in this section, the person still holds an office under the laws or constitution of this state, the provisions of this section shall apply to such person at the end of the person's term of office unless otherwise removed or expelled as provided by law prior to that time. T.C.A. § 39-16-103(b) & (c). 123 Disqualification from Public Office TCA § 40-20-114 Prohibits state and local elected officials from seeking elected state or local office after conviction of a state or federal felony related to public service, even if citizenship status is later restored. Furthermore, the conviction is grounds for removal from office and the person is forever prohibited from qualifying for, seeking or holding any public office in this state. 124 FORFEITURE OF RETIREMENT BENEFITS Under the 2006 Ethics Act, each time a person is elected to a public office, that person, as a condition of such election, is deemed to consent and agree to the forfeiture of that person's retirement benefits from the TCRS, any superseded retirement system or any other public pension system if that person is convicted in any state or federal court of a felony arising out of that person's official capacity, constituting malfeasance in office. This law applies regardless of the date the person became a member of the public pension system. T.C.A. § 8-35-124(a)(3). 125 COUNTY ETHICS POLICY COUNTY ETHICS POLICY UNDER THE ETHICS REFORM ACT OF 2006 The “Comprehensive Governmental Ethics Reform Act of 2006” is codified in T.C.A. § 8-17-101 et seq. Among other requirements, the Ethics Reform Act requires local governments to adopt ethical standards related to the acceptance of gifts and disclosure of conflicts of interest, and directed CTAS to develop a model policy. Provisions of state law, to the extent they are more restrictive, shall control. 127 COUNTY ETHICS POLICY Important Points in the Legislation 1. Local ethics policies were required to be adopted by the county legislative body in each county by June 30, 2007. 2. The policies are required to cover two things: (1) disclosure and/or limits on gifts and (2) disclosure of conflict of interests. 3. The policies cannot include personnel, employment, or operational regulations of local government offices. 128 COUNTY ETHICS POLICY Important Points in the Legislation 4. The policies apply broadly to all officials and employees in all offices, agencies, and departments of the county and to the members, officers, and employees of all boards, commissions, authorities, corporations, or other instrumentalities of a county. 129 UTILITY DISTRICT ETHICS POLICY Important Points in the Legislation T.C.A. § 8-17-102(c) provides that utility districts are considered separate governmental entities to be governed by ethical standards established by the board of commissioners of the utility district in conformity with § 8-17-105(b). Water, wastewater and gas authorities created by a private act or under the general law are considered separate governmental entities and shall be governed by ethical standards established by the governing board of the water, wastewater or gas authority in conformity with § 8-17105(b). 130 SCHOOL ETHICS POLICY Important Points in the Legislation T.C.A. § 8-17-102(d) provides that county, municipal and special school districts shall be considered separate governmental entities and shall be governed by ethical standards established by the board of education of the school district. T.C.A. § 8-17-105(a) provides that the Tennessee School Boards Association (TSBA) shall disseminate models of ethical standards for officials and employees of school districts and that such models shall be filed with the commission. Provides that school districts that adopt the ethical standards promulgated by TSBA are not required to file such policy with the commission but shall notify the commission in writing that the policy promulgated by TSBA was adopted and the date such action was taken. 131 COUNTY ETHICS POLICY Important Points in the Legislation 5. CTAS was required to draft and distribute a model policy to counties to provide guidance and direction. The county may choose to adopt the model or draft standards of its own. 6. The policies are filed with the State Ethics Commission. If the county adopts the CTAS model policy, then, instead of filing the policy, the county simply notifies the State Ethics Commission in writing that the county adopted the CTAS model policy. 132 COUNTY ETHICS POLICY Important Points in the Legislation 7. Enforcement remains as provided under current law. 8. A failure or refusal to adopt standards by a local governing body by the deadline subjects its members to ouster. 133 COUNTY ETHICS POLICY Violations - Enforced Violations of ethical standards by officials or employees of entities covered by this chapter shall be enforced in accordance with provisions of existing law. T.C.A. § 8-17-106(b). 134 CONFLICTS OF INTEREST AND OTHER LAWS Conflict of Interest T.C.A. § 12-4-101 The general conflict of interest statute that applies in all counties. It prohibits anyone who votes for, lets out, or in any manner supervises any work or contract from having a direct financial interest in that contract, purchase or work, and it requires disclosure of indirect financial interests by public acknowledgment. 136 SPECIAL RULES County Commissioners Who Are County Employees T.C.A. § 12-4-101(c) A county commissioner who is also an employee of the county and whose employment predates the commissioner's initial election or appointment to the governing body of the county may vote on matters in which such commissioner has a conflict of interest by reason of such employment PROVIDED he or she makes the disclosure contained in this statute. 137 SPECIAL RULES County Commissioners Who Are County Employees T.C.A. § 12-4-101(c) "Because I am an employee of (______county), I have a conflict of interest in the proposal about to be voted. However, I declare that my argument and my vote answer only to my conscience and to my obligation to my constituents and the citizens this body represents." 138 SPECIAL RULES County Commissioners Who Are County Employees EXAMPLE A county commissioner whose employment by the county predates his or her election to the county commission may vote on matters pertaining to his or her employment, including medical insurance, if he or she makes the disclosure contained in T.C.A. § 12-4-101(c)(1). 139 SPECIAL RULES County Commissioners Who Are County Employees T.C.A. § 12-4-101(c)(2) A county commissioner whose employment with the county began on or after the date on which he was elected or appointed to the county legislative body may not vote on matters in which he has a conflict of interest by reason of such employment. 140 SPECIAL RULES County Commissioners Who Are County Employees T.C.A. § 12-4-101(c)(2) There is no disclosure provision for a county commissioner whose employment with the county began on or after the date of election or appointment to the county legislative body. 141 SPECIAL RULES County Commissioners Who Are County Employees EXAMPLE A county commissioner/county employee whose employment began on or after the date on which the commissioner was initially appointed or elected to the CLB may not vote on his or her salary or other compensation as employee, including medical insurance benefits. 142 SPECIAL RULES County Commissioners Who Are County Employees EXAMPLE He/she cannot vote for any appropriation that directly or indirectly benefits him/her financially as an employee. 143 SPECIAL RULES County Commissioners Who Are County Employees AG OPINIONS Tenn.Op.Atty.Gen. No. 98-188 (Oct. 2, 1998) Tenn.Op.Atty.Gen. No. 93-73 (Dec. 28, 1993) Tenn.Op.Atty.Gen. No. 91-31 (Apr. 9, 1991) 144 Conflict of Interest T.C.A. § 5-1-125 Applies in all counties and prohibits county officials and employees from purchasing surplus county property except where it is sold by public bid. 145 Conflict of Interest T.C.A. § 5-14-114 County Purchasing Law of 1957 Prohibits the purchasing agent, members of the purchasing commission, and all county officials from having any financial or other personal beneficial interest in any contract or purchase order for any supplies, materials, equipment or contractual services for any department or agency of the county. 146 Gifts T.C.A. § 5-14-114 County Purchasing Law of 1957 Prohibits the purchasing agent, members of the purchasing commission, and all county officials from receiving anything of value, directly or indirectly, from anyone who may have or obtain a contract or purchase order with the county. 147 Conflict of Interest T.C.A. § 5-21-121 County Financial Management System of 1981 Prohibits all county officials and employees from having any financial or other personal beneficial interest in the purchase of any supplies, materials, equipment or contractual services for the county. 148 Gifts T.C.A. § 5-21-121 County Financial Management System of 1981 Prohibits the finance director, purchasing agent, and employees in those depts from accepting anything of value, directly or indirectly, from anyone who furnishes supplies, materials, equipment or contractual services to the county. 149 Conflict of Interest T.C.A. § 54-7-203 Purchasing Regulations Of Highway Dept. In Counties under the County Uniform Highway Law, a very strict conflict of interest statute applies. 150 Conflict of Interest T.C.A. § 54-7-203 Neither the chief administrative officer, county highway commissioner, member of the county governing body nor any employee of the county road department shall be financially interested in or have any personal interest, either directly or indirectly, in the purchase of any supplies, machinery, materials, equipment or contractual services for the department or system of roads for the county, nor in any firm, corporation, … 151 Conflict of Interest T.C.A. § 54-7-203 …partnership, association or individual selling or furnishing such machinery, equipment, supplies and materials. Note that this prohibition is so broad as to preclude all employees of the highway department, whether or not they have any discretion or control over the purchase, from having a direct or indirect interest in these purchases. 152 Honoraria T.C.A. § 2-10-116 Prohibits elected officials from accepting an honorarium (including money or anything of value, but not including reimbursement for actual expenses) for an appearance, speech, or article in their official capacity. 153 Court Sales T.C.A. § 39-16-405 Prohibits judges, clerks of court, court officers, and employees of court, from bidding on or purchasing any property sold through the court for which such person discharges official duties. 154 Consulting Fee Prohibition T.C.A. §§ 2-10-122 & 2-10-124 Prohibits officials from receiving compensation for advising or assisting a person or entity in influencing county legislative or administrative action. 155 Crimes Involving Public Officials Bribery T.C.A. § 39-16-102 Soliciting Unlawful Compensation T.C.A. § 39-16-104 Buying and Selling in Regard to Offices T.C.A. § 39-16-105 156 Official Misconduct T.C.A. § 39-16-402 Prohibits unauthorized exercise of official power, acting in an official capacity exceeding the servant’s power, refusal to perform a duty imposed by law, violating a law relating to the servant’s office or employment, and receiving a benefit not provided by law. 157 Official Oppression T.C.A. § 39-16-403 Prohibits abuse of power by a public servant. 158 Misuse of Official Information T.C.A. § 39-16-404 Prohibits a public servant from attaining a benefit or aiding another person in attaining a benefit from information which was obtained in an official capacity and is not available to the public. 159 COUNTY ETHICS COMMITTEE COUNTY ETHICS COMMITTEE The ethics legislation that was passed in 2005 and 2006 does not require a county to have an ethics committee. 161 COUNTY ETHICS COMMITTEE The “Comprehensive Governmental Ethics Reform Act of 2006” required each county to adopt an ethics policy which is to address the disclosure and/or limits on gifts and the disclosure of conflict of interests. See T.C.A. § 8-17-101 et seq. 162 COUNTY ETHICS COMMITTEE The term “ethical standards” as used in the Act does not include personnel or employment policies or policies or procedures related to operational aspects of governmental entities. T.C.A. § 8-17-102(a)(3). Accordingly, any complaints received by your county ethics committee that do not address either the acceptance of gifts or a conflict of interest need not be pursued by the ethics committee, which as I mentioned previously is not required under the Act. 163 COUNTY ETHICS COMMITTEE We advise county officials who serve on a county ethics committee to review ethics complaints to make sure that the complaint first addresses either the acceptance of a gift or a conflict of interest. If the ethics complaint does not address one of these two issues, we advise that they direct the complainant to the appropriate person or agency (if applicable) and proceed no further. 164 COUNTY ETHICS COMMITTEE If the complaint does address an appropriate issue, we advise the committee to try to determine if the complaint bears further inquiry. If the complaint states a valid criminal violation, we advise they turn the matter over to the district attorney’s office. 165 COUNTY ETHICS COMMITTEE If the complaint states a valid violation of the county ethics policy, we advise they turn the complaint over to the proper county official. Depending upon the stated complaint, that could be a county office holder if the complaint is against an employee, or the county attorney if the complaint is against an elected county official and the ethics committee needs further clarification of the law. 166 COUNTY ETHICS COMMITTEE Because the statutes in question do not mandate that a county have an ethics committee, we advise ethics committee members that they have no authority other than to make recommendations to the appropriate county official who could take action in the event that an actual violation of the county ethics policy is presented to the ethics committee. 167 Local Government Instances of Fraud Reporting Act T.C.A. §§ 8-4-501 – 8-4-505 Local Government Instances of Fraud Reporting Act A public official with knowledge based upon available information that reasonably causes the public official to believe that unlawful conduct has occurred shall report the information in a reasonable amount of time to the office of the comptroller of the treasury. 169 Local Government Instances of Fraud Reporting Act “Reasonable amount of time” means any amount of time that is reasonable under the particular circumstances, but shall not under any circumstances exceed five (5) working days. 170 Local Government Instances of Fraud Reporting Act If acting in good faith, a public official makes a report, as required by § 8-4-503, the person shall not be liable in any civil or criminal action that is based solely upon. (1) The person's decision to report what the person believed to be unlawful conduct; (2) The person's belief that reporting the unlawful conduct was required by law; or 171 Local Government Instances of Fraud Reporting Act (3) The fact that a report of unlawful conduct was made. No immunity conferred pursuant to this section shall attach if the person reporting the unlawful conduct participated in or benefited from the conduct. 172 173 THE END PERSONNEL ISSUES Personnel Management in Counties • HR management is not centralized • Financial aspects may or may not be centralized • Most counties do not have an HR director • HR management in counties is not uniform Whose Authority? • The county commission has no control over the day-to-day personnel decisions in county offices • The county commission does have control over issues requiring funding: • Overall budget for employee compensation and benefits (state law restrictions/court orders) • Health insurance and other countywide benefits Whose Authority? • Each county official is responsible for the employees of his or her office: – Hiring and firing – Discipline – Employee compensation (within budgetary limits) – Personnel policies – Work assignments – Hours worked – Compliance with personnel laws and policies Three Biggest Issues Now 1. Personnel policies 2. Personnel budget and authority to hire employees 3. Staffing issues Personnel Policies – Required • T.C.A. § 5-23-101 et seq. requires basic policies covering four topics: • • • • Leave Wage & hour Non-discrimination Drug testing (only safety sensitive employees) Personnel Policies – Required • All county employees must be covered • Policies may be countywide or office-specific • CLB approves countywide policies • If office files individually, CLB has no approval • Approved by attorney (county attorney or other attorney appointed by county mayor for this purpose) • Filed in office of county clerk Personnel Policies – Required • Policies may be changed – method depends on how policies were adopted • If separate policies adopted for your office, they may be changed at any time with attorney approval • If your office is governed by countywide policies, you may file separate policies with attorney approval on or before November 30 (or wait until next year) Personnel Policies – Other • Each official can adopt policies in addition to those that are required by law • Cover day-to-day operation of the office • No approval or filing required • Check with your county attorney to make sure nothing will cause problems How Employees are Hired • The number and compensation of employees in “fee” offices (clerks of court, county clerks, trustees, registers of deeds and sheriffs) is determined by one of two methods: – Salary Suit / Court Order – County mayor named as defendant – CLB must fund what court orders – Letter of Agreement – avoids lawsuit if official agrees with what CLB has budgeted How Employees are Hired • Highway Department • CAO has broad authority to determine number and compensation of employees within budget adopted by CLB (T.C.A. § 54-7-109) • Department of Education • School board hires employees within parameters set in Title 49 and within budget • Other departments • Look to applicable statutory authority To Fire or Not to Fire? • First Amendment issues • Employees cannot be terminated, demoted, transferred, or otherwise punished solely for their political beliefs or activities • Lawsuits often result • Personal liability is possible To Fire or Not to Fire? • Other rights • Personnel policies may require written notice, appeal, hearing or other procedures • Statutory/contractual rights • Consider cost of hiring and training new personnel • Consider loss of knowledge and experience To Fire or Not to Fire? • EVALUATE first, then act – – – – – Check your personnel policies Observe your current staffing arrangements Have a reasonable basis for all staffing decisions The most qualified person is the best choice A little extra effort now can save you a lot of time and effort later defending a lawsuit To Fire or Not to Fire? Consult your County Attorney before taking any action! Overview of Personnel Laws Federal Fair Labor Standards Act (FLSA) – Minimum wage is $7.25 per hour – If employee works overtime, employee MUST be paid overtime at 1½ times regular rate of pay – Compensatory time may be used if employee agrees prior to doing the work – Administered by the U. S. Department of Labor, Wage & Hour Division Overview of Personnel Laws Family and Medical Leave Act (FMLA) – Eligible if employed one year in county, and worked 1,250 hours in previous 12 months – 12 workweeks leave (paid or unpaid) – Birth or placement of child, serious health condition of employee or immediate family – Military family leave (qualifying exigency and military caregiver leave) – Administered by the United States Department of Labor, Wage & Hour Division Overview of Personnel Laws Americans with Disabilities Act (ADA) – Prohibits discrimination against qualified individuals with disabilities – Requires reasonable accommodation – Medical records CONFIDENTIAL – Prohibits medical/psychological exams prior to conditional job offers Overview of Personnel Laws Title VII and other anti-discrimination laws prohibit discrimination and harassment on the basis of: » Race » Religion » Sex » Color » National Origin » Age (ADEA) » Disability (ADA) » Genetic Information (GINA) Overview of Personnel Laws Discrimination on the basis of military service – The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) states: • A person who is in any manner connected to the armed forces shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. Overview of Personnel Laws Drug and Alcohol Testing – 4th Amendment – warrantless search – No law requires testing of employees except those with commercial driver licenses – Safety Sensitive = “fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences” – WRITTEN POLICY REQUIRED Overview of Personnel Laws First Amendment issues – Governmental employees have a First Amendment right to speak out on “matters of public concern” – Limitation: First Amendment generally does not protect employees complaining about office management issues Overview of Personnel Laws • Retaliation: Cannot take adverse employment actions against employees for exercising legally-protected rights or for participating in protected activities (Title VII, ADA, FMLA, worker’s comp, etc.) • Whistleblower Laws: Cannot terminate employees for refusing to participate in or remain silent about illegal activities • Other issues • • • • Form I-9 Workers’ compensation Health insurance Unemployment compensation Recordkeeping • Each official and department head is responsible for: – Maintaining all personnel records, unless recordkeeping is centralized – Distributing copies of personnel policies to employees – Ensuring that all required posters and notifications are posted and/or distributed • FLSA, FMLA, ADA, EEO, etc. • Check retention schedules • Good documentation is important! Liability Issues • Tennessee Governmental Tort Liability Act only applies to state law issues • Most employment law issues are federal law • Many violations of employee’s rights under employment laws can result in personal liability Where to find help • Your County Attorney • County Technical Assistance Service www.ctas.tennessee.edu • United States Department of Labor, Wage & Hour Division: www.dol.gov/whd • U. S. Equal Employment Opportunity Commission (EEOC) www.eeoc.gov Meet & Greet Network with CTAS Staff! 200