Election 2020: Charter Amendment #1

Election 2020: Charter Amendment #1

Knox County voters will decide again whether they want to keep an elected law director — the only such position in the state.

by jesse fox mayshark • October 9, 2020

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Knox County law director david Buuck at the Republican party's primary election night party in March.

In all of Tennessee’s 95 counties, there is only one where the position of county law director appears on the ballot.

Knox County has had an elected county attorney of some kind since 1940.

According to the Secretary of State’s office in Nashville, there are a few other counties that elect a “county attorney,” although their roles vary. One is Campbell County, where private attorney Joe Coker has served in that part-time elected position since 1984, attending County Commission meetings, reviewing contracts and occasionally defending the county in lawsuits (although he said much of the legal defense work is performed by separately hired counsel).

But Knox County’s full-time county Law Department, with a staff of attorneys overseen by a separately elected law director, is one of a kind. In almost every other county and city in the state, local governments either hire their own in-house lawyers or — most commonly, particularly in smaller jurisdictions — contract out the work on an as-needed basis.

Whether Knox County retains its unusual structure is the topic of the first of two county Charter amendments on the ballot this fall. If approved, the amendment would convert the law director to an appointed position, chosen by the county mayor and approved by County Commission. It would also allow Commission and the school board to hire their own independent attorneys.

Those advocating for the change say legal counsel is a professional service and it makes sense for elected officials to be able to hire their own lawyers. They also note that a separately elected law director may have his or her own political agendas, which can affect the legal advice they give.

Defenders of the elected position say that it serves all the people of the county, not just the elected offices that are designated as its clients by the county Charter, and can serve as a check on other officials’ overreach.

For several reasons, including the way former (elected) Law Director Bud Armstrong wrote the language of the ballot question, even supporters believe the amendment has slim chance of passing this year. But the tensions underlying the proposal are unlikely to go away.

An Established Institution

Knox County has had some form of elected county attorney for 80 years. From 1901 to 1940, the position was a part-time job appointed by the county commission (at the time called the county court). In 1939, after some controversy over the billing of the appointed attorney, a private act of the state Legislature allowed Knox County to create an elected “county solicitor” position. It was budgeted as a part-time job, and the first election for the post was held the next year.

That arrangement persisted until 1968, when another private act allowed the county to create a full-time elected county law director. The county solicitor at the time, Earl Ailor, had appealed for the change on the grounds that the growing county now needed full-time counsel. Later that year, a young Republican lawyer named J. Anthony Brown became the county’s first elected law director.

Many other things about county government have changed in the 52 years since, including the name and size of County Commission, the title of the county’s chief executive (which became “mayor” in 2003), and the imposition of term limits for most offices (including the law director).

But the law director position has remained, surviving several proposals to change it. The idea of an appointed law director has been on the ballot three times before, although not on its own — it has been included in past efforts to create a unified city-county government, and in 2008 it was part of a package amendment that would have turned all of the county fee offices (trustee, clerk, register of deeds) into appointed positions.

The office has not been without its controversies. Under the county charter, it is designated as legal counsel to the executive and legislative branches of county government, as well as to the school board and the whole host of other elected county offices, including the sheriff.

Not all of those branches always get along, and the law director’s ability to keep their own thoughts and preferences out of those disagreements has sometimes been called into question. During discussions of a countywide school desegregation plan in the early 1990s, the school board was at odds with County Commission (not for the first or last time). Harry Moskos, then the editor of the Knoxville News Sentinel, wrote in an opinion column that then-Law Director Richard Beeler was hopelessly conflicted on the issue.

The right to legal counsel is a fundamental constitutional right,” Moskos wrote. “And Beeler's situation is complicated by the fact that he, as an elected official, has his own constituency.”

Moskos concluded, “The obvious answer is that we shouldn't be electing someone to a position that is clearly advisory in nature.”

The issue again raised its head in 2001 during another tussle between the school board and Commission, when the school board sought to hire its own attorney and accused the law director’s office of undermining its authority. (The board ultimately won the right to hire an outside attorney if both the board and the law director’s office agreed that the law director had a conflict of interest in a case.)

In 2008, the last time the question of appointing the law director was presented to voters, then-Law Director Bill Lockett wrote the language of the question in a way that supporters of the change said was deliberately phrased to torpedo it. Lockett’s ballot question asked if the county should “take away from the people the ability to vote” for the law director and other offices.

Lockett was forced to resign from office in 2010 after pleading guilty to stealing from his former law firm, but the language he wrote appeared to have its intended effect: The 2008 proposal was voted down by a margin of 72-28 percent.

The Armstrong Era

From 2012 until August of this year, the law director’s office was held by Armstrong, a former county commissioner who had been squeezed out of office when the size of Commission shrank from 19 members to 11 in 2010. Armstrong had earned his law degree just four years earlier from the Nashville School of Law, a night school that is not accredited by the American Bar Association.

Although previous law directors had ruffled feathers and courted accusations of political gamesmanship, Armstrong’s tenure was marked by an unusually aggressive approach. While he consistently denied having a political agenda, his high-profile actions often moved in sync with the editorial pages of the Knoxville Focus, published by East Knox County Republican powerbroker Steve Hunley.

For a few years, Armstrong was part of a Hunley-backed coalition that dominated a swath of county politics, with a shared enemy in controversial schools Superintendent Jim McIntyre. Between 2014-16, Republican representatives of East Knox County — the least populated area of the county — variously served as chairs of both the school board and County Commission, as well as holding the law director’s office, and were a major factor in forcing McIntyre’s resignation.

Armstrong and his attorneys challenged the school board on several occasions, declaring a contract extension for McIntyre illegal in 2015; raising concerns in 2017 about the legality of a new International Baccalaureate Program at Bearden Middle School; and in 2017 urging the school board to drop explicit protections for “sexual orientation” and “gender identity” from its anti-harassment policy on the grounds that it was going to encourage lawsuits (even though the language had been in place since 2012).

In each of those cases, the school board majority partly or completely disregarded the law director’s admonitions.

Similarly, a majority of county commissioners voted against Armstrong’s positions on a pension lawsuit in 2018 — forcing the law director to drop the case — and overrode his warnings about various consequences that could arise from leasing the Tennessee Valley Authority’s East Tower and moving the school system administration into it. (Armstrong, a former TVA employee, made no secret of his misgivings about entering into a legal agreement with the federal agency.)

The latter two cases pitted Armstrong against County Mayor Glenn Jacobs, who staked out a position opposed to Armstrong on the pension case within a month of taking office in 2018. Jacobs ended up hiring his own outside counsel on the pension case and relied heavily on private attorney Mark Mamantov to put together the TVA deal, which both Commission and the school board approved early this year.

Knox County Charter Review Committee members Mike Arms, John Valliant and Mark Mamantov at a meeting of the committee in March.

During the COVID-19 pandemic, the Law Department became a major player in the county’s response when it suddenly opined in June that the county Board of Health should be setting policy and regulations rather than county Health Director Dr. Martha Buchanan. (Of the six metropolitan counties with their own health departments, Knox County is the only one that has designated that power to the Board of Health.)

But having made that determination, the department then argued vehemently — again invoking the fear of lawsuits — that the health board should not in fact exercise its state-granted authority and should just adopt Gov. Bill Lee’s statewide “Tennessee Pledge.”

The board disregarded the advice and adopted a countywide face mask mandate, which Deputy County Law Director Myers Morton warned was “unconstitutional” — just a few weeks before state Attorney General Herbert Slatery issued an opinion that such requirements were “constitutionally defensible.” Morton has since been replaced as the Board of Health’s counsel by Deputy Law Director David Sanders.

A Mayor’s Vendetta?

After serving two terms, Armstrong was term-limited this year and could not seek reelection. His chief deputy, David Buuck, easily won his bid to succeed Armstrong (and like Armstrong, he enjoyed the strong support of Hunley). 

But just before he left office, Armstrong wrote the ballot language for the proposed amendment to change the law director from an elected to appointed position, at the direction of this year’s Charter Review Committee. The charter amendment on the ballot begins, “Shall the Knox County Charter be amended to take away from the people the ability to vote for the Knox County Law Director …”

Armstrong and Buuck have both said they oppose the change, which would take effect in 2024.

As in 2008, those who advocated for the change on the Charter Review Committee accused the law director — who is charged with writing charter amendments by state law — of deliberately sabotaging the measure with the ballot wording. Armstrong did not show the language to members of the committee before submitting it to the Election Commission.

Nick Pavlis, the former City Council member who sponsored the measure on the Charter Review Committee, said, “Obviously Bud is against this, and I get it. But there was a lot of work and effort. It was thoroughly vetted.” Former County Commissioner Brad Anders, who chaired the Charter Review Committee and supported the proposal, called the language “slanted.”

But other members of the Charter Review Committee said the question was pushed by Jacobs as payback for his conflicts with Armstrong, and argued that it was improperly presented because an initial proposal was voted down by the committee before a revised version was approved the next month. 

“I really felt that it was an initiative by the mayor,” said Lisa Starbuck, a citizen representative appointed to the Charter Review Committee by County Commissioner Richie Beeler.

She noted that during the committee’s public meetings on the issue, the only people to speak in favor of the change were Jacobs and school board Vice Chair Virginia Babb. Several citizens spoke against it, including both local Black Lives Matter organizer Constance Every and county Republican Party Chair Randy Pace.

“I feel like whenever you have an issue where both the left and the right are in agreement that you are probably hearing the will of the people of Knox County,” Starbuck said.

The Charter Review Committee is made up of 27 people, including the nine district county commissioners, nine citizens appointed by Commission, and nine more appointed by the county mayor. In the votes on the law director amendment, all of Jacobs’ appointees voted for it, along with some commissioners and their appointees. 

But if the amendment is a vendetta by Jacobs, it’s a quiet one. Apart from making one statement in support at a Charter Review Committee meeting, Jacobs has made no other public appeals and has said he was not planning to campaign for the measure. (It is possible that Jacobs read the political landscape and didn’t want to push hard for something that seems unlikely to pass.)

The most vocal proponent for the measure has been former County Commissioner Mike Arms, who has appeared before the school board and written letters to local newspapers in support of it. Arms, former chief of staff and current business partner to former County Mayor Mike Ragsdale, was one of Jacobs’ appointees to the committee.

Arms said an elected law director is inherently political, however much they may say they aren’t. He said that during the legal battles over county government term limits that led to the 2007 Black Wednesday scandal, the law director’s office did not intervene on behalf of the voters who had demanded term limits but on behalf of the threatened incumbents.

“The law director is the citizens’ attorney when he or she wants to be,” he said. 

Buuck disagreed, protesting that the office has no political agenda of its own. “We do not enter into policy decisions, period, end of story,” he said. “You want to hear what the law says, here’s what the law says.”

Arms said he believes the county could save money by streamlining an appointed law director’s office and letting the school board hire its own lawyers. Although he said he doesn’t expect the amendment to pass the way it’s written, he hopes the discussion stays alive.

“If nothing else, I hope County Commission starts looking at the budgets a little bit closer,” he said. “And if I was a school board member, I’d go to County Commission and say, ‘I want to hire my own attorney. I’ll save you some money.’”

County Commission Chair Larsen Jay was excluded from the Charter Review Committee because he’s an at-large commissioner. But he said he personally supports changing to an appointed law director.

“I’m just a firm believer that you should be able to pick your own lawyer,” he said, “and there are some checks and balances in there to keep it from being abused.”

Once appointed, a law director could be fired for cause by Commission. But Commission would also be able to hire its own separate counsel, just as Knoxville City Council does. In the city system, the mayor hires the city law director, and Council also has an attorney to help draft legislation and provide legal guidance.

“I believe that Commission as a legislative body should have our own independent legal source,” Jay said. “It’s good to have a cooperative tension between the legislative branch and the executive branch.”

With Jacobs declining to lead the charge on the amendment, it has no real organized push behind it. The same is not true on the other side. An organization has formed called Save Our Right to Vote, which has a website and is beginning to distribute yard signs around the county. Starbuck is the treasurer, and the group has a sizable ad in this week’s Knoxville Focus.