Constables May Not Lose Law Powers Saturday
KEVIN HALPERN, Courier Co-Editor
Monday, April 11, 2011 8:42 am
When the Cannon County Commission meets Saturday, it is scheduled to consider, on second reading, a resolution to remove the law enforcement powers of the Office of Constable in Cannon County.
However, that may not happen - at least not on Saturday.
At its last meeting, in January, commissioners passed the resolution, on first reading, to strip the county’s five constables of their law enforcement powers.
State law gives a county commission the right to take away constables’ powers, on the condition it does so by two-thirds vote of its members. Eight of Cannon County’s 10 commissioners voted in favor of the resolution in January.
The state law also requires the resolution to pass two readings. The second reading is on the agenda for Saturday’s meeting, but that may not occur.
That’s because the commission may have been in violation of the state’s Open Meeting Law when it took the action it did on Jan. 15.
After receiving numerous complaints/inquiries regarding the action taken at that meeting, Elisha D. Hodge, Open Records Counsel for the state, wrote the following in a letter to Cannon County Executive Mike Gannon in a letter dates April 6, 2011:
“I have not been able to find any cases on point n Tennessee that address whether or not a governmental entity has provided the public with adequate notice when a general notice stating simply the date, time and location of a meeting is provided to the public and issues of significant importance to the community are brought up under “other business” without being specifically mentioned in either the notice or the agenda. I strongly suggest that you confer with the attorney for the commission regarding whether or not the notice that was provided to the public relative to the meeting on January 15, 2011 was adequate based on the totality of the circumstances.
“Tenn. Code Ann. Section 8-44-102(b)(2) defines a meeting 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 on any matter.” Based upon the statutory definition for “meeting,” whenever two or more members of any governing body convene in order to make a decision or deliberate towards a decision regarding public business, a meeting has occurred. These meetings are required to be adequately noticed and open to the public.
“I cannot say whether or not a violation of the open meetings act occurred because I have no firsthand knowledge of what was or was not actually discussed by the commission members prior to the meeting on January 15, 2011; however, based solely upon the facts that have been presented to his office, it does appear as though a violation may have occurred if, prior to the meeting, multiple board members privately engaged in a conversation with one another about the resolution that was introduced. Again, I strongly suggest that you confer with the attorney for the Commission regarding this issue because pursuant to the Open Meetings Act, a citizen has the right to bring a lawsuit against an entity when he/she feels an open meeting violation has occurred.”
First District Constable Jim Gibbs believes commissioners did violate the Open Meeting law with the passage of the resolution.
“I have learned that at my request, (County Executive) Mike Gannon contacted CTAS and reportedly was advised a violation appeared to have occurred and they recommended that the vote on the resolution regarding constables be rescinded. He has informed me that he is going to make that suggestion to the commissioners April 16th, but has no idea if they will follow his suggestion,” Gibbs said.
Gibbs added his understanding of the law is, if they (commissioners) do not rescind their vote on the resolution, and a writ of certiorari is filed asking the Courts to review the meeting, that the penalty could be that any and all action (not just the resolution) taken by the commissioners could be void.
Second District Constable said any action to change the status of constables should be done by voters.
“We were elected to do a job, just like the commissioners were,” Ganoe said. “We are an asset that can be used, if the local politicians would allow it. Our bigger problem is that there was no real reason given for doing this, other than constables were using police powers, which they are allowed to use.”
According to Fourth District Constable Forrest Pitcock, the issue is also one of fairness.
“To take away the (law enforcement) powers, they should have a pretty good reason to do it,” Pitcock said. “We have spent a lot of money to comply with the criteria to be a constable. Whatever they do, they should have a good reason for overturning the will of the voters.”