Council approves TOSHA Settlement involving former employee-Attorney maintains documents not public.

Crossville city council approved a settlement over an as yet unreleased Tennessee Occupational Health and Safety Administration (TOSHA) complaint filed by a former city employee.

Even though there is no provision for a document protection under the “attorney-client privilege” as has been put forth by Crossville city attorney Will Ridley, the documents involved have still not been released.

According to Ridley, who said he had spoken to each council member privately in place of holding a closed executive session last week, he had received a letter from the Tennessee Attorney General on November 1 that gave the city a deadline of November 6 to respond but the city was given an extension to be able to meet.

City Attorney Will Ridley

“We've tried to keep this confidential for two reasons,” Ridley told the council, “One is attorney-client privilege at this point and two the former employee that is the subject of this, per the order of the attorney general, we're trying to protect that person.”

The complaint in question was made to TOSHA several months ago and the state agency did an investigation of the complaint. Ridley said the city tried to enter into an agreement at that time but the former employee wouldn't sign a release. Now that the Attorney General's office has taken up the case, and told the city if they will enter into a settlement agreement they won't sue the city, the city won't have to admit any guilt or wrongdoing toward the employee, and agree to pay the employee $7,170.24 in back pay less standard deductions.

Ridley reminded the council that the city's deductible is $5000 and he had spoken to Tennessee Municipal League the insurance is through and their attorney recommended the city make the settlement. The total cost to the city would be that $5000.

In addition, the city is required to post TOSHA safety posters. The employee's file will also be purged of any documents related to their termination and that no bad recommendations are given.

Finally, Ridley said, “The Attorney General's office will require the former employee to sign a release of any and all claims she has against the city arising out of this complaint.”

Councilman J. H. Graham moved to accept the settlement and that was supported by Councilman Danny Wyatt. The motion was unanimously approved.

We requested copies of the Original TOSHA complaint as well as the Attorney General's letter to the city and as given the following response from Ridley: "Both are attorney client privilege and neither should be released. Neither are a document of record in any court and have not became (sic) a public record. The only reason Leah has a copy is to help work with TML and our insurance attorneys."

While TOSHA can protect the identity of a complainant or whistle-blower, typically the name would be redacted from a document and the rest of the information released.  

Ridley said privately after the meeting the documents would eventually become public, but under the Tennessee Open Records Act law, the following items are listed as confidential records that can be protected according to the Municipal Technical Advisory Service. There is nothing about “attorney-client privilege.

In general, city employees’ personnel records and most other city documents are subject to public inspection under the Tennessee Public Records Act. Some exceptions that affect local government are:

• Employee assistance program records that apply to counseling or referrals for mental health, marriage, alcoholism, and similar personal problems may remain confidential if they are maintained separately from personnel records. T.C.A. § 10-7-504(d).
• Personal cell phone and home phone numbers, bank account information, Social Security numbers, and driver’s license information (except when driving is part of or incidental to the employee’s job), emergency contact information, residential street addresses and personal, non-government issued email addresses of applicants, current and former employees are confidential; the same information for the employees’ immediate family members and household members is confidential. T.C.A. § 10-7-504 (f)(1).
• City hospital medical records and records of patients receiving medical treatment paid for by a municipality are confidential. T.C.A. § 10-7-504(a)(1). (The Americans with Disabilities Act requires that all employee medical records be confidential and kept in a separate file.)
• Library records identifying a person who requested or obtained specific materials are not open to the public. T.C.A. § 10-8-102.
• Financial statements filed by cities as evidence of their ability to pay workers’ compensation claims are confidential. T.C.A. § 50-6-405(b)(3).
• Certain "books, records, and other materials in the possession of the Office of the Attorney General and Reporter which relate to any pending or contemplated legal or administrative proceeding in which the Office of the Attorney General and Reporter may be involved" are not open to public inspection. T.C.A. § 10-7-504(a)(5).
• All files, reports, records, and papers relative to child abuse investigations are confidential. T.C.A. § 37-1-612.
• The Tennessee Rules of Criminal Procedure contains a section that "does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with the investigation or prosecution of the case or of statements made by state witnesses or prospective state witnesses" (Tenn. R. Crim. P. 16(a)(2)). This rule is an exception to the rule of discovery, which requires the state to allow a "defendant to inspect and copy or photograph any relevant written or recorded" statements, records, objects, etc., that are material to the defense’s preparation (Tenn. R. Crim. P. 16(a)(1)). [1]
• Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 2000) (permission to appeal denied June 19, 2000) holds that a city attorney’s work product prepared in anticipation of litigation or in preparation for trial is confidential and is not subject to disclosure under the Public Records Act.
• Unpublished phone numbers possessed by emergency communications districts are confidential until there is a contract to the contrary between the telephone customer and the service provider, T.C.A. § 10-7-504(e).
• Information about law enforcement officers, firefighters, emergency medical technicians, correction officers, dispatchers and paramedics who seek help for job-related critical incidents through group counseling sessions led by mental health professionals is privileged and is not subject to disclosure unless the privilege is waived. This includes all memoranda, work notes, work products, case files, and related communication. T.C.A. § 10-7-504(a) (13)(A).
• Certain taxpayer information, returns, reports, and audits are confidential. T.C.A. § 67-2-108, T.C.A. § 67-4-722, T.C.A. § 67-5-402, T.C.A. § 67-1-1702.
• The identity of an informant who provides information resulting in an eviction for violation of drug laws or for prostitution is confidential. T.C.A. § 66-7-107.
• Home and work telephone numbers, addresses, social security numbers, and any other information that could be used to locate an individual who has a protection or restraining order are not (utility) and may not be (other governmental entities) open to the public. Such an individual may request this protection and present a copy of the order to the record keeper of the municipality or utility. T.C.A. § 10-7-504(a)(15) and T.C.A. § 10-7-504(a)(16).
• Any information pertaining to the location of a domestic violence center or rape crisis center is confidential when the director requests such in writing. T.C.A. § 10-7-504(a)(17).
• Security codes, plans, passwords, combinations, and computer programs used to protect electronic information and government property are confidential. T.C.A. § 10-7-504.
• Filing documents required in order of protection cases, except forms required by the courts, are confidential but may be transmitted to the TBI, emergency response agency, or law enforcement agency. T.C.A. § 10-7-504(a)(16).
• Records that would allow a person to identify areas of vulnerability of a utility service provider or that would permit unlawful disruption of utility service are confidential. Documents relative to costs of utility property or its protection are not confidential, but confidential information must be redacted when the record is made public. This provision does not limit access to these records by other government agencies performing official functions nor does it preclude any governmental agency from allowing public access to these records in performing official functions. T.C.A. § 10-7-504(a)(21).
• Contingency plans for responding to terrorist acts are confidential. T.C.A. § 10-7-504(a)(21).
• Credit card numbers, social security numbers, tax identification numbers, financial institution account numbers, burglar alarm codes, security codes, consumer-specific energy and water usage data except for aggregate monthly billing information, and access codes of utilities are confidential. This information must be redacted when possible when the rest of the record is made public. The requester must pay the costs of redaction. T.C.A. § 10-7-504(a)(20).
• Photographs and recordings of juveniles by law enforcement officers are confidential. T.C.A. §§ 37-1-154 and 37-1-155.
• Financial records filed for income verification under the local option property tax freeze are confidential. T.C.A. § 67-5-705.
• Competitive sealed proposals are confidential until the intent to award is announced. Then the proposals will be open to public inspection. T.C.A. § 12-3-1207.
• Records addressing marketing strategies and strategic plans of public hospitals are confidential until seven days before the strategies and plans are adopted. T.C.A. § 68-11-238.

State Comptrollers office and MTAS agree removal of items by Hill from personnel file wrong

The State of Tennessee Comptroller's office open records counsel has weighed in on the actions of interim city manager Steve Hill concerning the removal of items from his own city of Crossville personnel file.

Interim city manager Steve Hill

After the incident that reportedly occurred on August 30 when manager Hill ordered city HR administrator Leah Crockett to remove several disciplinary items from his file that were placed there during his time as director of parks and recreation and give them to him. The Municipal Technical Advisory Service (MTAS) was contacted about several aspects of the action as the files are considered public records.

MTAS consultant Elisha Hodge who previously served as the state's open records counsel wrote to the city records custodian, city clerk Sally Oglesby, “I do not advise that any disciplinary record be removed from a personnel file or destroyed until such time as the records retention schedule calls for the destruction of the record. I agree, there might be some additional documentation that needs to be attached to the discipline once it expires or if it is rescinded, but I do not think that the original discipline needs to be removed or destroyed until the retention period runs,” she concluded.

The current comptrollers office open records counsel Ann Butterworth wrote to Oglesby in an email saying, “I reviewed the advice given by MTAS regarding the oral reprimands in an employee file. It appears to be that the city policy only directs where the record is to be stored and not when it is to be destroyed. I am assuming the reference is to a written or recorded record of an oral reprimand. Since the city has not adopted separate retention schedules the city needs to comply with MTAS recommended schedules.”

The MTAS schedule K-35 indicates that personnel files should be retained for 7 years post termination.

Based on earlier information, city attorney Will Ridley previously advised Mr. Hill to return the removed documents to his personnel file. When checked last week, the documents had not yet been returned to the file.

It is unclear what, if any repercussions may come from Hill's actions.

Previous articles:

MTAS recommends changes to personnel file oversight and document retention in light of recent events

Items removed by order of interim city manager Steve Hill from his own personnel file called into question

MTAS recommends changes to personnel file oversight and document retention in light of recent events

The Municipal Technical Advisory Service (MTAS) has made some recommendations in connection with the recent action of interim city manager Steve Hill removing records from his personnel file of the time he was director of Parks and Recreation.

After reviewing the city charter and ordinances, MTAS Human Resources Consultant John Grubb said that it is his opinion that under the current situation, the city manager is in charge of personnel records, including his own, and that the city clerk is in charge of public records requests and the production of of handling those requests, including for personnel files.

Human Resources Administrator Leah Crockett sought some additional clarification from Mr. Grubb including what procedure should be used for a city manager to maintain his or her own file and should action memos and reprimands be removed from the file on the timeline in the city's personnel policy and is that policy in line with open records regulations?

Mr. Grubb responded that the city manager is in charge of all personnel files including his/her own. He further states, “The city may choose to adopt an ordinance to change who is in charge for future purposes.”

Mr. Grubb forwarded the remainder of the question to Elisha Hodge. Ms. Hodge was formerly the open records counsel for the Tennessee Comptroller's office and now works for the Institute of Public Service of MTAS.

“I do not advise that any disciplinary record be removed from a personnel file or destroyed until such time as the records retention schedule calls for the destruction of the record,” wrote Ms. Hodge. “I agree, there might be some additional documentation that needs to be attached to the discipline once it expires or if it is rescinded, but I do not think that the original discipline needs to be removed or destroyed until the retention period runs,” she concluded.

The MTAS recommended retention schedule for personnel files is for 7 years after termination and any medical records or (environmental) exposure records for 30 years. Documents in a file that include demotion, transfer, layoff or termination should be retained for at least 5 years. It is also noted that the statue of limitations on personnel actions is 5 years.

City Clerk Sally Oglesby is seeking an opinion from the current comptroller open records counsel on the matter as well.

Exclusive Interview with J. R. Blankenship--”I did not intend to break the law.” From Council meetings to Court to Yard Signs--the saga continues

The saga of J. R. Blankenship, where it stands now, 

and how it is sparking further discord in the city council.

What started, according to J. R. Blankenship, as a way “to inform elected officials of something they should be concerned about” has turned into a dispute that stretches across multiple courts, numerous accusations and numerous signs.

This reporter had an exclusive interview with Mr. Blankenship, has spoken to Crossville Police Chief Rod Shoap and sat in on Crossville municipal court held June 14 where motions from Blankenship concerning his citation and fine were heard.

The man, J. R. Blankenship, who gives his address as 279 Mockingbird Drive first came onto the public radar when he spoke at the end of the March 10 regular city council meeting with a very brief statement claiming he had evidence of council members who were “in breach of their fiduciary duty.” He continued that he had “polled 25 law professors” and added that he would make the information public after he heard back from them.

J. R. Blankenship's comments at March 10 council meeting

Distributing unsigned material

The next time Mr. Blankenship's name came up was a day or so after the council meeting when some fliers (and no one seems to be able to determine exactly how many) were reportedly found posted on downtown businesses offering “a reward” of up to $500 for photos of any city elected or appointed official doing something wrong. The flier promised anonymity for the informant and that the evidence would be published. The flier was signed “Sam at the Daily Bull” with a phone number. According to Blankenship, he is known to some people as Sam.

The "unsigned flier"

The first reports of the fliers are believed to have come from city councilman Jesse Kerley who reportedly said he'd had several complaints about the fliers from downtown businesses. As the investigation moved forward, there were more emails flying between councilman Kerley, former city manager David Rutherford, city attorney Will Ridley and police chief Rod Shoap.

Emails from Mr. Kerley went to the city attorney and city manager. The city manager was asked to forward Kerley's email to the police chief suggesting the perpetrator should be charged with littering. Kerley's email to Ridley asked if someone distributing fliers needed a permit. Ridley responded that it appeared the action could be in violation of two city ordinances and Ridley said he had informed the police of his findings.

According to Police Chief Rod Shoap, Mr. Blankenship was quickly developed as a suspect and a copy of the ordinances was delivered to the house on Mockingbird Drive. Shoap said that Blankenship called the department and offered to turn himself in.

In an exclusive interview between this reporter and Blankenship, he said he had researched state and federal law before distributing the fliers but said he had not considered local ordinances. Said Blankenship, “I had no intention to break the law.”

Blankenship said that emails between Shoap and Rutherford indicated to him that Shoap felt there should not be prosecution. An email from Shoap to Rutherford said, “the culprit has confessed-he understands what he did was wrong and will be willing accept the cite, however, if we just warn him I am hoping he does not make a return visit.” Blankenship concluded that he would not have been cited except for direction by councilman Kerley.

We spoke with Chief Shoap and he said Blankenship's conclusion was inaccurate. According to Shoap, a council member can not direct his action.  Chief  Shoap stated that he would not allow that to happen. Shoap stressed that Blankenship had always been respectful to him and his officers but he said that he had received a call from a downtown business manager about the flier. Shoap described the complainant as “put out” telling the chief that he did not allow anyone to put fliers in his windows. Shoap said because of that complaint, on March 24, 2016 his department issued a single citation, not 30 citations as has been reported elsewhere.

Shoap commented on the situation, “I do want him (Blankenship) treated fairly.”

Shoap told this reporter that he only saw one flier and he said four were actually documented by his department. Shoap also said that Blankenship himself did not know how many fliers had been distributed. Shoap told us that he wanted to be very cautious on the action taken as he felt he needed to consider how charges might affect other fliers distributed for things such as fundraisers that kids might put out.

Shoap added that up to this point he and his officers had spent some 40 hours on the matter of the fliers, time he felt could have been better spent protecting the public.

Blankenship stated in our interview that he didn't know how many fliers had been put out but he had 50 of the fliers printed and he still had a stack of them at his house.

From Council to Court to yard signs

Blankenship's anger is generally directed at councilman Kerley who he feels has pushed the prosecution of him through his position on the council and friends that, according to Blankenship, include city judge Ivy Gardner. Blankenship's feelings come through in the yard signs at the Mockingbird Drive house and the signs he has brought to city council meetings in the back of a pickup truck. In our interview he described Kerley's actions in the flier case as “official misconduct and oppression.” His comments mirror comments in a memo from councilman Pete Souza to city attorney Will Ridley dated June 1, 2016 that questions the actions taken in the case against Mr. Blankenship and Mr. Kerley's involvement.

Two page memo to city attorney Will Ridley outlining Pete Souza's concerns about Kerley's actions

It appears that some of the animosity currently between Councilman Kerley and Councilman Souza stem from this issue as well with Kerley accusing Souza of assisting Blankenship with the plywood signs he put up in his yard on Mockingbird Drive. Souza has also sent a letter to the Tennessee Open Records office after Blankenship filed several open records requests and received no information. Form letter responses indicate there are “No such records exist.”

Letter from councilman Pete Souza to State Open Records office

Blankenship faced his citation on the fliers May 10 in Crossville city court before city judge Ivy Gardner. After hearing about the case, Gardner found Blankenship guilty of 30 counts of “distributing unsigned material” from a single citation and fined the maximum $50 fine on each count totaling $1500. Blankenship also has questioned the ordinance under which he was cited and it appears that no one except Mr. Blankenship has ever been charged with the offense since the ordinance has been on the city books since the 1960's.

As this situation has further played out, city judge Ivy Gardner has filed a request for a restraining order against Blankenship claiming in a court filing that he “has engaged in a pattern of conduct to harass and unnecessarily alarm” Ms. Gardner. The action was filed for Ms. Garner by attorney Kevin Bryant.

Complaint against Blankenship (left) filed by city judge Ivy Gardner and temporary restraining order pending the next court date of July 7, 2016

Prior to the initial hearing on the matter, a temporary restraining order was issued by General Sessions Judge Larry Warner. At the court appearance, a continuance was granted for Blankenship to hire an attorney to defend him. The next court date on the mater is July 7 at 1 PM.

It appears that the restraining order request comes from the sign in Blankenship's yard on Mockingbird Drive that says, “Twerley Trash=Quid Pro Quo 107 143 68” The numbers correspond to house numbers of property owned by councilman Jesse Kerley, his brother Joseph Kerley and a house owned by Joe B. Gardner, Jr.

279 Mockingbird Drive with yard signs including one some perceive as a threat

When asked about the numbers on his sign, Mr. Blankenship said it was a joke and they were the combination to his safe. He said he was willing to let anyone contact the man who keeps his safe. Crossville Police Chief Rod Shoap said that a safe combination was also what Blankenship told him the numbers represented.

Blankenship's Latest Court Appearance

Even though he is under a temporary restraining order, J. R. Blankenship appeared before Crossville city judge Ivy Gardner in Crossville city court on June 14 concerning motions he made following his guilty finding on distributing unsigned material and fined $1500. Blankenship filed a motion for discovery seeking documents, records and more related to his case. In addition Blankenship is seeking written “finding of facts” and “conclusion of law” for his case related to Judge Gardner's decision on her refusal to recuse herself, dismissal of Blankenship's counter claim and the fine imposed.

Gardner told Blankenship that her court was a municipal court and was not a court of record meaning that civil procedures do not apply and she was not required to provide the information he was requesting. Stated Gardner, “If a higher court tells me to do so I will do it gladly.” She said that she currently has no jurisdiction on the case as it was on appeal to a higher court.

Blankenship also asked that Gardner recuse her self from the case saying she “bore false witness against me.”

The city court fine has been appealed to circuit court and is scheduled be heard by Judge Jonathan Young on August 29, 2016.

Blankenship Appeal Notice to Circuit Court

Vandalism of Blankenship's Yard signs

Blankenship shared an image from the infrared camera in his yard that shows a person wearing a hoodie, shorts and tennis shoes wielding what Mr. Blankenship says is a sledge hammer that was used to knock down the signs that were nailed to a tree. While the face is unclear, Blankenship would like to know who the person is that damaged his property

Unidentified vandal in Blankenship's yard destroying signs