Business and Economy Liberty and Justice News

‘English-on-the-Job’ Bill Advances

Legislation that would allow employers to require that their employees speak English in the workplace passed a House subcommittee on Wednesday, but not without some back-and-forth between the bill’s sponsor and the Tennessee state government’s human rights overseer.

The bill would shield Tennessee businesses from some discrimination lawsuits. It is designed to serve the interests of “business necessity and safe workplace environment,” according to the chief sponsor, Rep. Matthew Hill, R-Jonesborough.

But Tennessee Human Rights Commission Executive Director Beverly Watts initially spoke against the legislation, in part because she said her agency doesn’t have funding to deal with the possible fallout from the bill.

“We believe that it will increase our workload,” she said. “Right now we’re about 2,000 calls above what we were last year. And this bill will also create some language requirements that we cannot necessarily fulfill with our current staff. We have staff (members) that are bilingual in Spanish only, but there are many, many more languages.”

Watts also said training employers about the proposed law would be another additional cost for the agency.

The big snag, however, was Watts’ opposition to the portion of the bill that read, “it shall not be unlawful” for English to be required to be spoken in the workplace. But an employer could only make it a requirement if speaking English is a safety factor or if it is necessary for doing business. “If you read ‘it is not unlawful,’ I might just look at it and decide, ‘I can do this,’ whatever ‘this’ may be, and not look at the controlling parameters,” she said.

“To determine if it is unlawful or not, in my opinion, would require us to do an investigation because (a case) cannot on its face be determined to be discriminatory or non-discriminatory just by viewing it,” Watts said. “There might be some additional factors that need to be looked at.”

“So, when it’s written this way, I think it’s broader than if it is says, ‘it’s allowable,’” Watts continued. “In essence, we want employers to know what they can do.”

Watts’ concerns drew an impatient response from Rep. Hill.

“There was a representative or a member from the Human Rights Commission at every single meeting that we had,” he said. “She still has not talked to me about the legislation directly this year, and, of course, at the last second, she comes and opposes this legislation.”

Subcommittee Chairman Mike McDonald, D-Portland, then suggested Hill and Watts get together to discuss their differences. Hill initially refused.

“We’ve had enough meetings,” Hill said. “I have met with every single person about a half a dozen times now and I’m really tired of being hijacked at the last second on something as important as this piece of legislation.”

“We can play ‘what if’ scenarios all day long with the director’s previous comments,” he continued. “The bottom line is ‘it might do this; it could do that’ and (Fiscal Review Committee Executive Director Jim White) and his fiscal staff said it would not.”

Watts said she had not been in town for the meetings, and she maintained that representatives from the Human Rights Commission who did attend never agreed to the language of the bill.

After Hill and Watts huddled while the subcommittee handled other legislation, Hill agreed to an amendment that changed the words “it shall not be unlawful” to “it shall be an allowable employment practice.”

The bill now heads to the Consumer and Employee Affairs Committee, which meets Wednesday at 8:30 a.m.

Liberty and Justice Transparency and Elections

AG Says Traffic Cameras Pass Constitutional Muster

The state attorney general has issued another opinion stating that red-light traffic camera citations are constitutional.

The main question Tennessee Attorney General Robert Cooper’s office examined was whether or not the admission of photographic evidence violates the “Confrontation Clause” of the U.S. Constitution, which guarantees that citizens accused of crimes have the right to confront their accuser in court.

“The Confrontation Clause embraces testimonial statements,” the Attorney General’s Office wrote in the opinion. “Photographs are not testimonial statements.”

The attorney general later expanded on that statement by citing the court case State v Williams.

“Because a camera is not a witness that is amenable to cross-examination, and because a photograph of a vehicle is not a ‘testimonial statement,’ introduction of the…photographs into evidence does not violate the Confrontation Clause,” the court ruled in that case.

The attorney general went on to say in the opinion “both the federal and state constitutional confrontation provisions are restricted, by their own terms, to ‘witnesses’ and do not encompass physical evidence or objects such as photographs.”

Cooper’s opinion is not considered binding law, but represents the government’s best guess as to how a court would rule if such a question would come before a judge.

Rep. Tony Shipley, R-Kingsport, who requested the opinion said the attorney general’s staff seemed to have given the issues involved “a good, thorough looking.”

“I don’t know that he answered all of the questions I asked, but he answered enough for me to say that at this point (the cameras) are constitutional.”

“There’s no case law, so it’s difficult for him to opine any other way,” Shipley continued. “Once there’s case law, that may change the dynamics. As I told the mayor and Board of Alderman here (in Kingsport), I’m just going to listen to Chairman (Bill) Harmon’s subcommittee until there are federal rulings to know if it’s constitutional.”

Rep. Shipley said it is possible that he may ask Cooper for another opinion, since he does not believe the most recent opinion answered all of his questions.

Shipley’s request for an opinion included a dozen questions, including whether or not the camera systems replace the presumption of innocence with the presumption of guilt, and whether the systems create a lack of uniformity in state law among municipalities throughout the state that could potentially create a lack of equal protection.

The attorney general’s office did not address every one of Shipley’s questions directly, but instead melded them down into three questions: the Confrontation Clause, whether the penalties are civil or criminal in nature, and whether the ordinances create owner liability.

The attorney general’s office answered the latter two questions by referring to an AG’s opinion from 2008.

In that opinion, the attorney general cited City of Knoxville v. Brown, which said the red-light camera systems “did not violate due process by creating an impermissible presumption that the owner was the guilty party, did not violate owner’s right against self-incrimination, and did not violate owner’s right to equal protection.”

“Brown remains good law,” the attorney general’s office wrote in the most recent opinion.

Rep. Bill Harmon, D-Dunlap, is sponsoring legislation that would prevent a municipality from entering into or renewing a contract with a private red-light camera vendor for two years. In addition, fines for first time violators would be reduced from $50 to $10.

Harmon has delayed pushing the legislation until a number of interested parties can meet as a subcommittee. They’re planning to have recommendations ready for the legislature by April. Among those involved in the talks are the Department of Safety, the Department of Transportation, The Tennessee Municipal League, the Police Chiefs Association, the Sheriffs Association, and traffic engineers.

Shipley said he’s neither for nor against the traffic camera systems, per se. He just wants to make sure that they are constitutional.

He believes the cameras have done “a remarkable job” of preventing certain types of accidents.

“We’ve not had a T-bone accident in a couple of years,” said Shipley. “Across the city, T-bones are down dramatically. We’ve had more rear-end crashes, but (the cameras) have safety benefits you can’t ignore.”

“Now that the attorney general has ruled they are constitutional, I just think we need to establish guidelines so the laws are uniform across the state, and then we need to get out of the way and let the municipalities handle it, and if people don’t like (the cameras), then they can deal with their mayor and aldermen at election time.

While Shipley seems satisfied the essential constitutionality of the cameras, he’s still not entirely trustful of the systems.

He tells a story of a 76-year-old man who paid a ticket he received in the mail. When his daughter checked her father’s finances, she noticed the violation took place while her father was undergoing a colonoscopy.

It turned out that he had left his car at a mechanic to have its brakes fixed, and the mechanic ran through a red light when he was testing out the new brakes on the car, according to Shipley.

“I also don’t like the idea of ‘guilty by convenience’ because someone doesn’t want to take the time or spend the money to challenge a ticket,” Shipley said.

Health Care

TennCare Cuts Coming Soon

TennCare officials told lawmakers earlier this week they have no choice but to initiate significant cost-savings measures to the state’s Medicaid program.

The planned program-reductions include capping annual in-patient hospital-stay reimbursements at $10,000, and limiting the number of lab and X-ray services a person can seek per year at eight.

“We tried to put forth as best recommendation we can under an incredibly ugly set of circumstances,” TennCare Director Darin Gordon told the legislature’s TennCare Oversight Committee. “The alternative would be cutting direct services to offices and hospitals, and I’ve already gone into that well fairly deeply.”

Gov. Phil Bredesen has said there’s little alternative but to trim around 9 percent, or about $201 million, from of TennCare’s budget to balance the state’s books in the coming fiscal year. The agency is trying to reduce its total state-and-federal budget from about $7.6 billion to $6.8 billion.

Gordon said the decisions as to what to cut have been based on trying to “affect the least amount of people.” None of the proposed cuts would affect children or pregnant women, which he said make up the majority of the program’s enrollment, he said.

The proposed cuts could be softened somewhat by a federal Department of Health and Human Services decision last week to re-work a formula used to determine how much money the state owes the federal government in “clawback” funds, which are reimbursements for prescriptions by certain people in the program.

“It equates to about $120 million,” Gordon said. “I’ve already shot off a recommendation to the governor on how to appropriate those funds.”

Lawmakers nonetheless expressed concern that the cuts are going to hit many Tennesseans hard at a time when TennCare enrollment is increasing as a result of the prolonged recession. Scott Pierce, TennCare’s chief financial officer, said there were a few months last summer during which the program grew by over 8,000 enrollees per month.

Tennessee is not alone in its struggles with its Medicaid program. According to Gordon, 43 states have already implemented reductions in the program.

A Kaiser Foundation study found that “nearly 3.3 million more people (in America) were enrolled in state Medicaid programs in June 2009 compared to the previous June. It was the biggest ever one-year increase in terms of absolute numbers, and boosted the June monthly Medicaid enrollment by 7.5 percent to 46.9 million people nationally.”

Another TennCare cost-cutting proposal on the table, a potential 7 percent reduction in reimbursements to health care providers, is going potentially put some of them out of business, said Sen. Charlotte Burks, D-Monterey.

“Then my people are going to do without hospitals,” said Burks.

Dr. Wendy Long, TennCare’s chief medical officer, said the agency has already done all it can to reduce costs in other areas, including closer case management for patients, more pharmacy controls, and an increased emphasis on the prevention and detection of fraud and abuse.

“It’s not going to create immediate budgetary reductions we need to balance this year’s budget, but they are very important to minimize expenditure growth over time,” she said.

Liberty and Justice News

Courts Could Decide Disputed Primary Election Results

Lawmakers are working toward an agreement on legislation that would change the way contested primary elections are handled in the state.

Currently, the political party’s state executive committee decides disputed elections, although their decision can be appealed to the court system.

Under HB3019, sponsored by Rep. John DeBerry, D-Memphis, a candidate who wants to challenge a primary election result would file an appeal with the Tennessee Secretary of State, who’d then appoint an administrative law judge to hear the grievance.

The bill was scheduled for a vote before the House Elections Subcommittee this week, but was delayed after two representatives raised objections about the current draft.

Rep. Gary Moore, D-Joelton, wants language inserted that requires the secretary of state to act in a timely manner when a challenge is filed. “What I can see potentially happening here is (after someone files an appeal)…the secretary of state not doing anything with it until six months later,” said Moore.

Another subcommittee member said the bill should also outline a balanced and consistent decision-making framework to aid judges hearing contested primaries. “The judge is going to need some standards with which to measure the challenge,” said Rep. Harry Tindell, D-Knoxville. “Do we want it to be the party’s bylaws, or do we want some other objective standards to be in there?”

DeBerry’s bill is an attempt to address concerns raised after the 2008 Democratic primary for the District 22 state Senate seat, which represents Cheatham, Houston, and Montgomery counties.

Then-Sen. Rosalind Kurita, of Clarksville, faced a primary challenge from Tim Barnes after Kurita, a Democrat, cast the deciding vote to make a Republican, Ron Ramsey, speaker of the Senate.

Just shy of 10,000 votes were cast in the primary; Kurita won by just 19.

Barnes contested the election, and the state Democratic Executive Committee declared Barnes the winner of the election.

Some Democrats said they had evidence a significant number of Republicans voted in their primary to sway the election for Kurita as payoff for supporting Ramsey. Others said angry partisans on the party executive committee were the ones engaging in political payback — that their decision was comeuppance for Kurita straying from the party line.

Kurita appealed to the courts, but she found no relief there.

“I didn’t really agree with that (executive committee) decision,” Tindall said at the subcommittee meeting Tuesday. “I was a little skeptical of the idea that the party could overturn the decision of the voters of that district.”

DeBerry said his bill is aimed at preventing a similar situation from happening in the future.

The bill, DeBerry said, would not go so far as to ask a judge to determine the true party affiliation of voters in a primary, but it would attempt to remove extreme partisanship from determining contested primary elections.

The bill doesn’t differentiate between “who is, and who is not, a Democrat, who is a Republican, an Independent, Green Party, or whatever.” Rather, it seeks to prevent the will of the public from being overturned unless a judge finds a legal reason for the candidate to be disqualified, DeBerry said.

“We can’t just say, ‘We don’t like you, we think you’re not a good enough Democrat or a good enough Republican, therefore we’re going to declare the loser the winner,” he continued. “That’s what we need to get at.”

Liberty and Justice News

Traffic Camera Legislation Promised, But Not Before April

The House sponsor of a proposal to regulate red-light traffic cameras made assurances this week that he’ll try to pass some form of the bill this year.

However, nobody should expect any legislative action for another six weeks, said Rep. Bill Harmon, D-Dunlap.

He made the announcement Tuesday as he asked the Public Safety Subcommittee to forward the current version of the bill to the full House Transportation Committee.

Harmon said he wants to sit on the bill until April 1 so that agencies and groups like the Department of Safety, Department of Transportation, the Municipal League, sheriff and police chief associations and traffic engineers can attempt reaching an agreement on a final version.

Whatever they come up with will be made available well enough in advance so lawmakers can study it before having to vote on the bill, said Harmon.

Harmon said if the group does not finalize recommendations by April 1, he’ll push all bills related to traffic cameras.

“If that’s not putting the pressure on, I don’t know what,” he continued. “I’m disappointed we can’t move this bill as-is, to be honest with you.”

Rep. Chad Faulkner, R-Luttrell, asked Harmon if he’s fully committed “to do something after April 1.”

“If I do not have something brought to this committee by April 1, I’ll be asking you pass the bill I had originally without their recommendations,” Harmon responded.

Under Harmon’s current proposal, no government would be allowed to enter into, or renew, a contract with a private red-light camera vendor for two years, except for the traffic camera on Hixson Pike in Chattanooga. In addition, fines for first time violators would be reduced from $50 to $10.

In the end, the legislation could hinge on a state attorney general’s opinion Rep. Tony Shipley, R-Kingsport has requested.

Among Shipley’s questions for the Tennessee Department of Justice:

  • Do alleged red-light violators have a right to confront their accusers, as guaranteed by the Sixth Amendment of the U.S. Constitution?
  • Do the camera systems replace the presumption of innocence with the presumption of guilt?
  • Do the systems create a lack of uniformity in traffic laws throughout the state, which could potentially create a lack of equal protection?

Shipley, who submitted the requested opinion on January 9, said he’s received no word as to when the opinion will be delivered.

A spokeswoman for the Attorney General Robert Cooper declined questions, saying all requested opinions are “confidential” until they are released on their web site.

Shipley, who said red-light camera systems are operating in his Kingsport-area district, indicated he’s neutral on whether or not they ought to be banned in Tennessee.

“I’m against them if they are unconstitutional,” he said. “Anecdotally, they have saved lives.”

Liberty and Justice

Inmate-Reported Sex Abuse High at Nashville Youth Prison

State lawmakers asked Department of Children’s Services officials Monday to explain why a juvenile detention facility was listed in a federal government report as having one of the highest rates of sexual abuse in the nation.

Last month the U.S. Department of Justice released a study which found that 26 percent of the juveniles housed at the male-only Woodland Hills facility in Nashville claimed to have been sexually abused while at the facility.

Members of the joint Select Committee on Children and Youth questioned DCS officials for well over an hour during a hearing at the Capitol.

“How can this happen?” asked Rep. Sherry Jones, D-Nashville, who chairs the committee. “Isn’t there supposed to be another staff member there all the time? Are there security cameras in place? Are there preventative things in place? I just don’t understand how this happened.”

Woodland Hills Superintendent Albert Dawson maintained that the juvenile inmates are supervised at all times. Surveillance cameras have been installed in the last six months, he added.

“(The cameras are) not in the students’ rooms and they’re not in the shower areas, but they are in all of the common areas,” he said.

DCS Deputy Commissioner Steve Hornsby downplayed the report’s findings, saying it does not necessarily mean there are major problems at the facility.

“(The report) is based on allegations — it’s not based on substantiated cases,” he said. “It’s based on allegations as part of an anonymous survey that was conducted.”

“We want to find out what it is (that led to the results of the survey), and we want to get to the bottom of it,” he added. “We have nothing to hide.”

In the past year, there were about 130 investigations for physical abuse, sexual abuse or lack of supervision, according to DCS officials. Of those, eight were “substantiated.”

Not all the legislators on the committee indicated they were satisfied by those numbers or the department’s explanations.

“It just seems curious that there were 130 investigations and there were only eight that appeared to have sufficient evidence,” said state Sen. Thelma Harper, D-Nashville. “That really seems far-fetched, unless they had some kind of game going on.”

In fact, even that number may be “over-reported,” Dawson said.

“If a child gives any hint that there’s anything wrong going on with him, then it’s reported to Child Protective Services, (and) it’s reported to Internal Affairs, to go through the procedure,” he said.

Hornsby promised DCS was taking the report “very seriously,” and that department officials are “looking at what we can do” to address the allegations and the well-being of inmates.

“I take it personally, and you’ve got my assurance we won’t be on there the next time if we can do anything about it. And we are doing things about it,” he said.

Lawmakers on the panel suggested they may move to intervene or further investigate, though.

“Whatever we’re doing is not working,” said Rep. Chad Faulkner, R-Luttrell. “This is something we need to address now and fix. This is something we don’t need to really sit on. This is pretty embarrassing for me, and I know all these other members (of the committee), and (DCS) as well. We need to do whatever it takes to fix it.”

The federal study was mandated by the Prison Rape Elimination Act that Congress passed in 2003. It requires federal corrections authorities to conduct a yearly “comprehensive statistical review and analysis of the incidents and effects of prison rape.”

Information-gathering for the analysis was conducted between June 2008 and April 2009, and involved 166 state-owned or operated facilities and 29 locally or privately operated facilities.

The facilities examined house about 26,550 youth inmates nationwide. “Overall, 91% of youth in these facilities were male; 9% were female,” the report stated.

“Among the 13 high-rate facilities, most reports of sexual victimization involved non-consensual sexual acts with another youth and serious sexual acts with facility staff excluding touching,” according to the report.

Business and Economy

State Eager for More Federal Transportation Funds

Tennessee transportation officials told lawmakers this week they’re hoping the Volunteer State will get another round of federal stimulus-type money for road and highway construction projects.

“There is talk of a second, what they call a Jobs Bill,” Commissioner Gerald Nicely told a state House committee Tuesday in Nashville. “It passed the (U.S.) House in December and would be about the same size as the stimulus that passed in February of 2009.”

Tennessee’s chunk could be about $27 million for roadway projects and another $9 million for public transit initiatives and efforts, he said.

“I think we’re going to know something in the next three or four weeks whether or not it’s going to fly because the whole idea is to get jobs created just as quickly as possible,” Nicely said.

The state’s unemployment rate, which had seen declines every month from a peak of 10.8 percent in June, jumped back up to 10.9 percent in December, an increase of 0.7 percent from November.

Nicely claimed that the work-making effects of new stimulus funding would be seen almost immediately. Under the draft language of the bill, Nicely said, states would have to obligate the money to construction contracts within 90 days. Governments were given 120 days to obligate the funding after receiving last year’s stimulus money.

“That would be a challenge, but we’re prepared to do it,” Nicely added. “We’re already looking at projects.”

He said 315 projects across the state were paid from the last round of stimulus money.

Nicely added that not all of the money the state received in 2009 has been assigned to projects yet, but assured the House Transportation Committee that plans are in place to spend the remaining funds by the federal government’s March 2 deadline.

A portion of the money went to the 11 Tennessee Metropolitan Planning Organizations in the state, which handle local and regional projects in urban areas of 50,000 or more. The MPO’s have yet to obligate a little over $800,000 in stimulus funds.

If the MPO’s fail to finalize their spending priorities by the federal deadline, TDOT’s state projects will take their place to prevent the state from losing stimulus funds, said Nicely.

The areas in which the stimulus funds were spent were guided by the language in the federal bill, TDOT spokeswoman Julie Oaks said in an email.

“The Recovery Act bill encouraged the use of funds in Economically Distressed areas,” she wrote. “TDOT developed a selection criteria for projects and did look at those in ED areas, however the biggest requirement was that a project be ready to go to contract. We also worked to balance the funds across the state in every way (north/south; east/middle/west; urban/rural).”

Nicely told the committee that 72 percent of funds are going to “economically distressed” areas throughout the state where the unemployment rate is higher than the national average, or average incomes are no more than 80 percent of the national average.

“A lot of states used a great deal of this money for just basic maintenance stuff like paving,” he said. “We had a good variety…road projects, bridge projects, and we distributed it across the state.”

Tennessee Department of Labor and Workforce Development Communications Director Jeff Hentschel said it is impossible to tell exactly how many construction jobs were directly created by the stimulus funding due to the way statistics are gathered by the department.

If Congress passes the latest jobs bill, the spending of the latest round of funding would again be guided by the language in the federal bill, Oaks said.

U.S. Senate leadership announced Thursday that they think they’re close to an agreement on the bill and expect to bring the legislation to the floor next week.


Labor Commissioner Wants Federal Loan to Avoid Unemployment Tax Hike

If the state’s unemployment fund goes in the red, a top Bredesen administration official suggested Tuesday that borrowing money from the federal government was preferable to a second round of tax hikes on employers.

Department of Labor and Workforce Development Commissioner James Neely told the House Consumer and Employee Affairs Subcommittee Tuesday that the business community may have agreed to a tax hike to help make up for the shortage, but that’s unlikely this year.

The fund’s solvency is now in doubt. Benefit payments to unemployed Tennesseans during the deep and lengthy recession have exceeded the amount of unemployment taxes paid into the unemployment fund.

The state’s unemployment rate in December was 10.7 percent, up from 10.0 percent in November, and up 3.3 percent from December of last year.

The legislature last year changed the amount employers are taxed from the first $7,000 of an employee’s pay to the first $9,000. Lawmakers also raised the tax rate by .6 percent.

“This time when we talked, the economy is in such a state that it’s not prudent to go back to the employer community and say we need to raise taxes,” he said. “I told them it’s our expectation to be able to manage through this short-term.”

Neely said a loan from the federal government would be interest-free if the state chooses to borrow money from the federal government to keep the unemployment fund solvent.

“On this particular draw-down, there are no strings other than to pay it back,” he said.

Some lawmakers weren’t so sure.

“I was under the impression that (the tax hike) was the fix-all and we wouldn’t be back here again,” said Rep. Gary Moore, D-Joelton. “And last year, I recall hearing from you, if we borrowed, we would have to pay excessive interest rates, and now you say the sky’s the limit. What changed between last year and this year?”

Neely said that when about 40 states last year claimed the need to borrow money to make their budgets, the federal government “realized they needed to do something to help those states,” and began to offer interest-free loans through 2010.

“All of the states around us except Mississippi have drawn down money,” Neely said.

In fact, the Bredesen administration is counting on projections that suggest the “blips” of unemployment fund shortfall are short-term. The unemployment fund might become overdrawn for a couple months in the coming year, he said.

Private-sector business executives and administrators are predicting a third quarter turnaround and fourth quarter gains, Neely added. He cited Ford Motors’ announced plans to call back 150,000 workers to handle construction of a redesigned vehicle.

“That’s what all major corporations are saying, so I do see some light at the end of the tunnel,” he said.

While unemployment rose in December, Neely also said there are some encouraging signs in looking at the unemployment statistics. The numbers for those unemployed for the first time is down about 15 percent from this time last year, he said.

“Some months, it’s as high as 20 percent,” he said. “A number of employers I talk to, they’re calling people back.”

Asked Rep. Jimmy Eldridge, R-Jackson : What if the administration is wrong and unemployment doesn’t turn around?

“We would up the amount we would ask the federal government to loan us,” Neely responded.