Rutherford County’s search for a new Elections Administrator has been postponed for at least a month because of a lawsuit that was filed.
“There’s a lot of things to consider and I didn’t want to defer it indefinitely because of how things are going to shake down,” Election Commission Chairman Tom Walker said.
The election commission voted to defer reviewing applications submitted for the elections administrator job until its August meeting after current Elections Administrator Hooper Penuel filed a federal lawsuit this week placing a stay on the search until the case plays out in court.
In the suit, Penuel named the Republican members of the election commission – Walker, Doris Jones and Oscar Gardner – in their official capacity for allegedly breaking state law by attempting to replace him with another appointee.
“This has a direct impact on whether the representatives (election commission) in Rutherford County can terminate for political reasons and replace for political reasons Hooper (Penuel),” Gary Blackburn said. He is the Nashville attorney who is representing Penuel along with seven former county election administrators from across Tennessee who have been fired this year since the Republicans took control of election commissions statewide.
The election commission also voted, 3-2 with Democratic appointees John Taylor and Denice Rucker dissenting, to hire Chattanooga attorneys Wes Kilner and J. Christopher Clem to represent the Republicans in the case.
Taylor and Rucker voted against the measure because of confusion over who would be responsible for legal fees and whether the commission can enter into a binding contract.
“The election commission has been told in the past when making contracts … the election commission can not make a binding contract,” Taylor said, explaining it has to be approved by the county commission.
He suggested sending the contract through the committee process and seeking approval from the county commission instead of voting on the matter.
Walker said his understanding is the election commission has the right to sue the county for payment if the county commission refuses to pay.
Taylor countered the election commission can sue for payment to run elections, but he wasn’t sure if that covers legal fees associated with lawsuits against the commission members.
According to the contract with Kliner and Clem, the election commission is responsible for legal fees at $250 per hour and will submit bills to Rutherford County government for re-imbursement. Kliner said the fees will be prorated between Rutherford and the four other Middle Tennessee counties that have approached him for representation.
To complicate matters, Walker said he approached County Mayor Ernest Burgess and County Attorney Jim Cope for representation and they declined, suggesting he retain outside counsel.
Although Penuel still has his job, he joined the suit and is seeking stop the election commission from firing him until the case is resolved.
Penuel was asked to reapply for his post along with 90 other applicants.
Blackburn explained local election commissions may have violated the First and Fourteenth Amendments of the Constitution, as well as the Tennessee Constitution by firing Democratically appointed administrators for Republican appointees.
The main issue is a Tennessee Attorney General opinion issued earlier this year, which said it is against state and federal law to fire an employee based on political affiliation, unless they are in a policy-making position and elections administrators are not policy-making posts.
Michelle Willard can be contacted at 615-869-0816 or firstname.lastname@example.org.