Transcript Document

WELCOME TO
COOP 2014
CTAS Website Tour
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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
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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
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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
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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
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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:
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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
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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
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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
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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
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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.
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• 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
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Ethics Laws
Prohibition of Consulting Services
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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.
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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.
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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.
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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.
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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).
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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).
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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.
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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.
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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).
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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).
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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).
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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).
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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