Ordeal to get public records
 
Jeremy Styron News Herald
 
Although a possible solution to a delinquent lot dispute between Loudon County and the Tellico Village Property Owners Association has seemingly been delayed at least until the next auction, details on how public officials attempted to broker a deal with taxpayer money have been slow to surface following a closed door meeting between Loudon County Commission and attorneys that took place more than five months ago.
 
Emails obtained Thursday as part of an open records request initially filed in mid-December revealed that POA Attorney Kevin Stevens provided some financial information about The Public Library at Tellico Village to Loudon County Attorney Bob Bowman but appeared to stop short of making any concrete requests to the county.
 
According to Bowman and county officials, however, the POA asked the county to contribute about $1.4 million to help pay construction costs associated with the library in order for the POA to take the lots and settle with the county.
 
POA officials have contended that no such specific arrangement was offered.
 
Some background
 
“We were answering questions put to us,” John Cherry, Tellico Village public relations manager, said about correspondence between the county and the POA. “What’s the note on the library? What’s the daily operating budget? — as part of preparations on discussion about what can be done to get this lot situation resolved.”
 
On Oct. 1, Bowman and delinquent tax attorney Terry Vann met with commission to discuss a potential settlement agreement with the Tellico Village POA ahead of a planned auction that was set for Oct. 20.
 
After a judge ruled in the county’s favor the morning of the sale to take the lots out of the auction, thus temporarily removing the county’s responsibility for any unpaid assessments on about 400 pieces of property, terms of an alleged settlement arrangement have remained unclear.
 
During an open meeting Dec. 15, Bowman told Loudon County Commission that the county was asked to pay the $1.4 million contribution for the library to settle with the POA, noting that he had correspondence from Stevens dated in early October that confirmed details of a potential deal.
 
“We were,” Bowman said at the time when asked if the county was asked to pay that amount. “And I have an email from Mr. Stevens that confirms the amount, the payoff schedule and all the terms.”
 
In an open records request filed Dec. 16, the News-Herald asked for the email Bowman referenced in the meeting. On Dec. 31, Bowman denied the records request, citing Tennessee Rule of Evidence 408 that pertain trials, current litigation or “related” litigation. On Jan. 9, Bowman’s office sent a supplemental denial letter, noting that the records could not be released due to Tennessee rules of evidence 408 and 502. Rule 502 deals with the “inadvertent disclosure of privileged information.”
 
Records denial ‘game’
 
In opinions Jan. 2 and Jan. 9 respectively, Deborah Fisher, with the Tennessee Coalition for Open Government, and Ann Butterworth, counsel with the Tennessee Office of Open Records, disagreed with Bowman’s request denial.
 
“These are the games that government officials will play when they don’t want to give out a record, and it’s not right,” Fisher said during an interview Monday. “Anybody can understand something taking three weeks. ... There are lots of reasons that things can take a long time to compile. One particular email that you asked for back in (December), that doesn’t make sense.”
 
On Jan. 21, Butterworth wrote Bowman stating her office’s objection to the denial.
 
“As indicated in my voice message, I have reviewed the records denial letter, and I do not agree with the grounds given for denying access to the records,” Butterworth said in January. “Please contact me at your earliest convenience so that we can reach a resolution that complies” with the Tennessee open records law.
 
Butterworth also said that a case Bowman cited in support of the records request denial, Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., was not pertinent.
 
“The case does not involve parties subject to government transparency laws and refers to Federal (not Tennessee) court rules,” Butterworth said in an email to Bowman. “The case has been subsequently negatively referenced: Matsushita Elec. Indus. Co. v. Mediatek, Inc.”
 
Chairman intervenes
 
On Feb. 27, the News-Herald made a second attempt to retrieve the email Bowman referenced Dec. 15. Commission Chairman Steve Harrelson contacted Bowman on Tuesday about the records request. On Wednesday, Harrelson said both attorneys, Bowman and Stevens, agreed to release the records.
On Thursday, Bowman forwarded two emails from Stevens dated the afternoon of Oct. 1.
 
After consulting with Bowman, Harrelson said other officials who attended a closed session meeting requested access to the emails regarding negotiations between Bowman and Stevens.
 
“He did mention that there were several others who were in the executive session that had asked to view the emails,” Harrelson said in a follow-up email correspondence about the records request. “Not sure who or how many. I’d say that everyone else including myself saw them as not being very important in any future matters dealing with the TVPOA because I haven’t heard any comments from anyone about the content of the documents.
 
“Our main concern is not any ‘he said this or they said that stuff’ but how do we deal with the delinquent lots issue in the future and how do we protect the interests of the taxpayers of Loudon County,” Harrelson added.
 
Loudon County Mayor Rollen “Buddy” Bradshaw said he was aware of the newspaper’s initial records request from three months ago.
 
“We were still in some negotiations, and there was a possibility of litigation at that point and time,” Bradshaw said. “... That was sensitive information at that point and time in December. I wish it (fulfillment of the records request) had been quicker, but in looking out for the taxpayers we had to be careful.”
In the more substantive email released by Bowman’s office, Stevens, on the afternoon of Oct. 1, provided information on the library’s debt, noting that the Friends of the Tellico Village Library, the nonprofit organization that supports the facility, took out a $1.5 million mortgage in 2011 on a 41-year term.

Stevens also told Bowman in the email that the mortgage payment is $6,475 per month and that the balance on the principal at the time in October was “not much less” than the original loan amount because of a “lengthy amortization schedule.”
 
In a follow-up email a few minutes later, Stevens told Bowman that the outstanding balance at the time was $1,484,274.59.
 
No additional emails
 
Bowman did not provide additional emails related to negotiations between himself and Stevens. He said the two emails from Stevens was the “complete thread” from that afternoon before the closed session meeting later that day.
 
“The e-mail from KS to me was in response to questions I posed to him in his office earlier that afternoon,” Bowman said. “The first question was what does the POA want from the County in order to take the lots. He (Stevens) said pay off the library. I then asked him to send me details on how much is owed on the building.”
 
In an email correspondence, Stevens said he and Bowman exchanged seven email threads between Oct. 1-7, and he said the POA never made a “single specific monetary demand” to Loudon County. He said the idea that the POA made a demand for a payoff on the library is “illogical” and “false.”
 
Stevens said he voluntarily withdrew himself from representing the TVPOA on the delinquent property tax sale issue to avoid “even the perception of conflict” with his representation of the Loudon County Solid Waste Disposal Commission.
 
Cherry said none of the other emails between Bowman and the POA indicate a specific dollar amount that the POA was requesting to settle with the county.
“We’ve been very consistent with here in the POA is we knew the county could not afford the $400,000 on assessments, so it makes no sense that we would come back and ask for $1.4 million to pay off the library note,” Cherry said. “It just doesn’t make any sense.”
Our effort to get records
 
Following is a timeline of events leading up to the production of a records request initially filed Dec. 16 by the News-Herald:
  • Oct. 1 — Loudon County Attorney Bob Bowman and Tellico Village Property Owners Association Attorney Kevin Stevens meet in Stevens’ office in Knoxville to discuss a potential settlement agreement between the county and POA related to hundreds of delinquent lots that were scheduled for sale during a public auction Oct. 20 at Loudon County Courthouse. Lots that did not sell at the auction would have reverted back to the county, and, by state law, Loudon County would have been responsible for any unpaid Tellico Village POA assessments.
     
  • Oct. 1 — Later that day, Bowman, Loudon County Commission and delinquent tax attorney Terry Vann meet in closed session to consider a brokered deal with the POA.
     
  • Oct. 20 — Chancellor Frank V. Williams rules in the county’s favor, and the disputed lots are removed from the sale the same day. The week before, the county filed a motion to remove the properties from the tax sale, which was followed by a motion to dismiss from the POA.
     
  • Dec. 15 — Bowman tells Commission during an open workshop meeting that Stevens suggested that the county could settle with the POA and take possession of the lots if the county would contribute $1.4 million to pay off construction costs associated with The Public Library at Tellico Village. Bowman asserts that an email from Stevens confirms his story about the negotiation.
     
  • Dec. 16 — News-Herald files an open record request seeking the email exchange.
     
  • Dec. 31 — Bowman’s office denies records request, citing a offer of settlement provision in Tennessee Rule of Evidence 408 pertaining to trials, current litigation or “related” litigation.
     
  • Jan. 2 — Deborah Fisher, executive director with the Tennessee Coalition for Open Government, provides an opinion that there is no legal proceeding related to Rule of Evidence 408 in denying the request.
     
  • Jan. 9 — News-Herald receives a supplemental records request denial from Bowman, citing provisions in Rule of Evidence 408 and 502. According to Rule 502, “Inadvertent disclosure of privileged information or work product does not operate as a waiver: (1) the disclosure is inadvertent, (2) the holder of the privilege or work-product protection took reasonable steps to prevent disclosure, and (3) the holder promptly took reasonable steps to rectify the error.” In support of the denial, the records request also cited the case of Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc.
     
  • Jan. 9 — Ann Butterworth, counsel with the Tennessee Office of Open Records, provides an opinion that the case referenced in the denial letter did not deal with parties that are subject to government open records law and pertained to federal, not state, law.
     
  • Jan. 21 — The Tennessee Office of Open Records writes Bowman’s office stating its objection to the records request denial.
     
  • Feb. 27 — News-Herald writes Bowman’s office in a second attempt to gain access to the email exchange.
     
  • Monday — Bowman’s office responds to request, noting in a letter that the document “will be available or a determination of accessibility and availability will be made regarding the requested records” by March 27.
     
  • Tuesday — Loudon County Commission Chairman Steve Harrelson speaks with Bowman after learning about the News-Herald’s second attempt to retrieve the documents.
     
  • Wednesday — Harrelson tells the News-Herald that both attorneys agreed to provide the requested documents.
     
  • Thursday — After consulting with Stevens and county officials, Bowman releases two emails from Stevens from 3:33 p.m. and 3:48 p.m. Oct. 1.

News Herald Editoral

County commits troubling breach in open government

The public has the right to know whether a county attorney, or any other public official, is being completely forthcoming in describing how they negotiate with taxpayer dollars.
 
That is why on Dec. 16 we requested to see an email that would verify Loudon County Attorney Bob Bowman’s story, which he confidently narrated to the public and in front of the full Loudon County Commission the day before, that  Tellico Village Property Owners Association officials asked the county to pay $1.4 million in construction costs associated with The Public Library at Tellico Village in order to settle a dispute over hundreds of delinquent lots.
 
With the issue effectively dead at least until the next public auction, the specific details of any alleged arrangement that may have existed is a moot point five months after the fact. What concerns us, and what should concern members of the public, is the labyrinth that we had to navigate in order to retrieve a single email correspondence that was, and always has been, a public record.
 
The county attorney, seemingly on his own volition, decided that it was within his purview to continue withholding the records, even after receiving a dissenting opinion from the Tennessee Office of Open Records Counsel that the requested documents should be handed over. Only after making another attempt to retrieve the records this past week, and subsequently getting Loudon County Commission Chairman Steve Harrelson involved in the process, were we able to obtain the emails in a little less than three months.
 
Obtaining a record that should be freely accessible to any member of the public who requests it should not take this long, nor require this much effort. We don’t claim any special privileges in this case. State law stipulates that public records not encumbered by a specific and narrow exemption should be delivered “promptly” on request to anyone who asks. Denying the records did not comport with state law, and any exemptions Bowman or the county attempted to claim were not relevant in this case as there was no contract or agreed upon settlement arrangement between Loudon County and the Tellico Village Property Owners Association on this issue.
 
Ironically, in one of his first public appearances, Loudon County Mayor Rollen “Buddy” Bradshaw said openness in local government was going to be a hallmark feature of his administration. A red flag should have gone up early in his tenure, however, when commission considered and then followed through with a closed meeting Oct. 1 that was unnecessary at best and illegal at worst, as commission, Bowman, a delinquent tax attorney and at least one other county official, Property Assessor Mike Campbell, were all present for the proceedings.
 
Had members of the public been allowed in the meeting, we dare say that months of confusion could have been avoided, and the county could have taken a decisive move toward more open government.
 
With the recent open records request, we provided another opportunity for Bradshaw, Bowman and the county to demonstrate their commitment to transparency in government. What we got instead were roadblocks, delays and officials hiding behind attorney-client privilege.
 
Now is the time for any leftover residue from closed government to subside, for the county to get serious about transparency and to hold its own attorney accountable for how he is managing public records on the county’s dime.
 
Openness in government should be the rule of the day today and every day going forward.

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3/11/15