Split vote in Smith ethics case

Friday, July 17, 2009
County Attorney Ginger Shofner, right, reaches for a document while conferring with Bob Binkley, legal counsel for former County Commission Chairman Sam Smith.

A former Marshall County Commission chairman shouldn't be sanctioned because of an ethics complaint, but the district attorney should examine the allegations raised by an environmental group.

That's the split decision Monday evening in the Courthouse Annex where members of the county Ethics Committee were led by Mary Ann Neill. She succeeded Sam Smith of Cornersville who's the target of a complaint from the Tri-County Environmental Association.

Ethics Committee members and their attorney emphasized the American principal that people are innocent until proven guilty and that some in the general public may falsely assume that where there's smoke there's fire.

The association raised questions about bribery and whether Smith should have declared a conflict of interests when voting on matters related to landfill regulations. There was a golfing trip to Tunica, Miss., and Smith was chairman of the commission when he voted on a measure to require two miles between landfills and schools, daycares, parks and medical facilities.

Smith and Mickey Cantrell of Cornersville sold to Waste Management Inc. an option to buy hundreds of acres for a proposed landfill, a plan that the company has since abandoned. Cantrell isn't accused because he's not a public official subject to ethics laws. But, Mike Waggoner, the agent in the real estate deal, is a member of the Marshall County Board of Public Utilities. He was accused, but absolved as without a conflict because the water board doesn't control landfill regulations.

Elizabeth Murphy, attorney for the environmental organization, described the committee's two votes as "a mixed message."

While she's "pleased that they referred it to the DA," Murphy was "surprised they didn't find an ethics violation in the failure of Mr. Smith to disclose ... that he had land for sale that would be affected."

Records released by the Ethics Committee show that on Aug. 21, 2007, planning commissioners recommended a change to zoning rules to require three miles between landfills and parks, schools, daycares and medical facilities. Two days later, the commission's Liaison Committee recommended the separation be reduced to two miles.

The property Smith and Cantrell had for sale through Waggoner's real estate office is just beyond the two mile radius defined by the Liaison Committee. Monday night, Neill pointed to a light blue part of a county map to show where the proposed landfill would have been developed.

County Attorney Ginger Shofner, Neill and other officials at the Ethics Committee meeting Monday said Smith presided at the Aug. 31 Commission meeting when the panel unanimously voted for the new rule, thereby indicating Smith voted for it. Smith's signature on an August 2007 document indicates he was aware of the measure.

The technical ethical question, however, is whether Smith should have declared a conflict of interest. He and Cantrell had land for sale just beyond a two-mile radius, and therefore unaffected by the two-mile rule. But that rule was adopted after the distance was reduced from three miles. The property in question would have been within a three-mile radius, but not a two-mile radius.

Smith resigned as chairman of the County Commission on Feb. 25, 2008, and from the Commission a month later, declaring that he had a pending deal with Waste Management and was separating himself from the government to avoid a conflict of interest.

That's insufficient, according to the Tri-County Environmental Association. It complained to the Ethics Committee, thereby prompting Smith to hire Lewisburg-based attorney Bob Binkley to protect his interests during various meetings and the ensuing votes.

Calls to reach Binkley on Wednesday were unsuccessful. Binkley also represents Lewisburg's Industrial Development Board, which has had extensive work this week as construction plans for a candle factory and its property tax abatement were being settled.

Ethics committee members were conflicted, as indicated by their votes.

Voting to dismiss the ethics issue and not send it to the Commission were Commissioners Linda Williams-Lee, Larry McKnight and Craig Michael, a member of the county school board. Voting to send the matter to the Commission were Neill and County Clerk Daphne Fagan.

Voting to send the matter to District Attorney Chuck Crawford were Fagan, McKnight and Neill. Voting no were Michael and Williams-Lee.

Attending the committee meeting was former Commissioner Jennifer Harris who commented before the meeting started: "Everybody has the right to be offended, but others have a right to justice."

Smith was absent. "I think he's on a tractor," Binkley said before the meeting. He left after the second vote.

Very little was said during the meeting about the Tri-County Environmental Association's mention of bribery in its complaint.

The county attorney counseled the committee to keep separate what might or might not be a violation of state law, as opposed to what might or might not be a violation of the county's code of ethics.

Shofner also noted that the committee does not have authority to direct or conduct an investigation.

However, after noting she took at face value the information provided by the Tri-County Environmental Association, made a "presumption of correctness" about the information and then advised: "As members of he committee, you may make a different determination of factual correctness."

Such latitude prompted Michael to suggest that the committee adopt a definition of the word fact.

"I see no facts that give a reasonable basis for this complaint," Michael said at another point in the discussion.

Neill said, "The only thing that was ever in question was the vote in August ... on the two-mile radius...

"Would a reasonable person ... with property within two miles, and not three miles ... have to disclose?" the effect of such a rule on their land, Neill asked as the committee deliberated toward its votes.

The result at a Commission meeting could be censure of Smith, although several commissioners and others have conceded over the last year that censure is a hollow act since Smith isn't on the commission anymore.

County officials routinely rely on advice from the University of Tennessee's County Technical Assistance Service and Shofner advised that CTAS says if there's a question about whether a crime might have been committed, then that should be sent to the state prosecutor.

Doing so does not make the committee's action a complaint, the county attorney said. "It's a pass through."

Michael asked if there was support for a conclusion about the question raised by the association and said it seemed unreasonable to forward that since it's supposed to be a valid complaint.

McKnight noted CTAS recommended that such matters be placed in the hands of the appropriate authorities, and so while the committee concluded there was no reason to forward the ethics complaint to the Commission, it also decided to send the association's concerns to the district attorney for a determination on whether the matter rose to something that deserves prosecution.