MICHELLE WILLARD, Post Staff Writer
Posted: Tuesday, August 4, 2009 11:43 am

Rutherford County’s Election Commission appointed a new attorney Monday night and tasked him with finding out who will pay his fees.

So far County Mayor Ernest Burgess and County Attorney Jim Cope have refused to give the commission any legal advice about a lawsuit pending against its Republican members.

“At one point they decided to let us fend for ourselves,” Chairman Tom Walker said.

Walker said Burgess thinks the election commission is a state body, so the state should pay for its defense. But the state thinks the counties should pay. And state law is unclear about who is responsible for the legal fees.

“We are not in any way in an adversarial role with the county or the state, but this is something we need to get decided,” Walker said.

So, the commission voted three for and two abstaining, along party lines to hire attorney John Harris of Nashville to first petition Rutherford County Chancery Court for a ruling on who is responsible for paying his fees – the state or the county.

The commission then charged Harris with defending Republican members, Walker, Doris Jones and Oscar Gardner, in a lawsuit filed by Rutherford County Elections Administrator Hooper Penuel, which preempted a search to possibly replace him.

Chattanooga attorney Wes Kliner had been hired last month, but he withdrew from the case when he couldn’t secure any clients from the five other counties named in the suit.

Kliner’s abandonment left the commission high and dry during two preliminary hearings for the suit, with Walker even representing the county at one.

“It was an unnerving experience,” Walker said about being in federal court.

The commission also voted 4-0-1 with Denice Rucker abstaining to keep Harris on retainer for future questions.

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. He was asked to reapply for his post along with 90 other applicants.

The federal lawsuit contends 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.

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The commission also approved the ballot for the Aug. 27 primary election to fill the unexpired term in Tennessee House of Representatives 62nd District.

On the Democratic ticket, Ty Cobb II is the only candidate.

On the Republican side, Joseph C. Byrd, Pat Marsh, Bobby Scott and Casey Walters are running.

Early voting will be held from 8 a.m.-4:30 p.m. Aug. 7-22, Monday through Friday. Extended hours will be from 8 a.m.-7 p.m. Aug. 13, 17 and 20 and 8 a.m.-4 p.m. Saturday, Aug. 22. All early voting will be held at the Rutherford County Election Commission office on the Historic Square in Murfreesboro.

The primary election will be Thursday, Aug. 27 in the following precincts: Blackman United Methodist Church, Eagleville Community Center and Rockvale Community Center.

The general election will be held Tuesday, Oct. 13.

Michelle Willard can be contacted at 615-869-0816 or mwillard@murfreesboropost.com.