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Pressure Builds Over State-Local Control of Charter Schools

Republicans who laud government that stays close to the people are finding themselves in a pickle now that a local school board has bucked state law.

Metro Nashville Public Schools’ Board of Education ignored orders by the Tennessee Board of Education to usher the charter school Great Hearts Academies into the district last week — the second such rebuff in a month. The Metro schools board contends that the first of five schools, run by a Phoenix-based charter school operator, would lack diversity and pander to an affluent Nashville neighborhood.

The Great Hearts dispute has exposed Republican leaders to criticism that they espouse local control only when it suits their aims.

“This whole thing just flies in the face of Republican philosophy when you have the big bad state coming down telling the local school board they have to comply with the law,” said Jerry Winters, a lobbyist with the Tennessee Education Association, the state’s largest teachers union, which has been resistant to the emergence of school choice.

Charter schools have enjoyed favorable treatment at the hands of GOP Gov. Bill Haslam and his education department. The administration’s agenda for reform has included tougher standards for teacher tenure, tying teacher evaluations to test scores and an expansion of charter schools.

Metro schools’ refusal to grant Great Hearts permission to open a school has sparked statewide debate over whether local approval is best. Great Hearts announced that it would not challenge the Metro schools’ decision.

“It’s really been kind of shocking to watch a government openly acknowledge and violate the law,” said Matt Throckmorton, executive director of the Tennessee Charter Schools Association.

Disgusted by the ongoing feud, Throckmorton and other charter school advocates are pushing for the state to assemble an outside agency to review and approve charter school applications, allowing charter operators to leap-frog over the local school district.

Details on how that system would operate are still in the works.

Throckmorton says local school districts should still be involved with discussions about pending charter schools. But politics are getting in the way of opening quality schools that could find more effective ways to teach children, he said.

Opponents of the idea say locally elected school board members — rather than a handful of appointed officials in Nashville — should decide whether a charter school is the right fit for the district and the community.

“I think people are wanting to make this an example to justify their intent to make a statewide authorizer,” said Lee Harrell, a lobbyist for the Tennessee School Boards Association which is opposed to charter schools skipping over local officials. “Often you hear the best decisions are made on the ground. (State approval) would totally fly in the face of that mentality.”

Several top state officials are staying quiet on the matter, including Department of Education Commissioner Kevin Huffman, who in August said the state would take “appropriate action” to see to it that Metro schools approved the charter school.

He declined to comment on the latest denial for Great Hearts, although emails obtained by the City Paper indicate he was keenly interested in getting the application approved and has engaged in discussions about the need for a statewide authorizer.

The governor’s office has also been silent on the issue, although officials say they were waiting for Haslam to return from his economic development trip in Japan last week. Prior to Metro schools’ first rejection of the Great Hearts application, Haslam said he saw no need to develop a state panel to approve charter schools.

Senate Education Committee Chairwoman Dolores Gresham has also declined to comment.

But Republican legislative leaders who have repeatedly offered messages about the importance of local control hint that they’d be open to a plan giving the state more power.

“I am extremely dismayed that the Nashville School Board is focused on limiting parental choice and educational opportunity for children,” Senate Speaker Ron Ramsey told TNReport in an email. “It is unfortunate that the board seems mired in the old education politics while the rest of the state is moving forward.”

House Speaker Beth Harwell agreed, calling the decision by MNPS “simply a mistake for our children” and saying the Legislature “will revisit this issue” when they come back in January.

“We believe in local government and local school boards. But when they don’t give opportunities for our children, then that’s a problem,” she said.

Charter schools are privately-owned but publicly-funded. Supporters say they offer more flexibility to innovate and create choice and competition, while detractors say they drain public money and students, leaving traditional public schools with the students hardest to educate.

Charter school performance is generally mixed. Last school year, two charter schools ranked among the best performing institutions in the state, while five other charter schools reflected some of the worst student academic records statewide.

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Featured Liberty and Justice News

Governor to Appoint New Judges to Special Supreme Court Hearing Challenge to TN Plan

Gov. Bill Haslam said Friday he plans to appoint replacements to a special court assigned to rule on the constitutionality of the state’s judicial selection method after three former members recused themselves for fear of appearing biased.

The governor contends the three original appointees could have stayed on the bench despite challenges to their objectivity because they are entitled to their personal opinion about whether judges should be elected, the central issue of the lawsuit at hand.

“Judges have opinions on things all the time, and I honestly think each one of them could have still rendered a very impartial and fair decision,” Haslam told reporters before a ribbon cutting at Saks Fulfillment Center in La Vergne.

Meanwhile, Haslam’s adversary in the lawsuit is looking to knock off another one of the governor’s original appointees to the Special Supreme Court due to what he sees could be a potential conflict of interest.

John Jay Hooker, a longtime critic of the state’s merit-based system for selecting judges, filed the lawsuit against the governor and other high-ranking officials. He says the governor unconstitutionally appointed a judge to the Court of Criminal Appeals because the judge was not popularly elected.

He told TNReport he expects to file a motion challenging Special Court Justice Andrée Sophia Blumstein’s impartiality. He said her role on the editorial board for the Tennessee Bar Journal, a publication of the Tennessee Bar Association, poses a conflict because the association is in favor of the current practice for selecting judges, called the Tennessee Plan.

“I think the time has come for it to be obvious this is fixed, and it’s a battle between right and wrong,” Hooker told TNReport.

Blumstein declined to comment Friday.

The Tennessee Plan, which is now used to select appellate and high court judges, requires the governor to appoint judges, who then face yes-no retention elections every eight years.

Many, including Hooker, believe the Tennessee Constitution requires that judges at all levels be popularly elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

Three of Haslam’s five appointees to the Special Supreme Court recused themselves from ruling on the case last week, saying their ties to Tennesseans for Fair and Impartial Courts could taint the integrity of the court as it rules on the case.

TFIC is a vocal opponent of popularly electing judges, a practice the group fears would insert too much politics into a job that should be free of political strings.

Two of the original appointees, Judges William Muecke Barker and George H. Brown, are listed as members of the TFIC board of directors. A third, Robert L. Echols, works for a firm with close ties to the organization.

Haslam built the Special Supreme Court after justices of the state’s highest court recused themselves from hearing the case, saying their impartiality could reasonably questioned because they, too, are sitting judges.

The case is now at a standstill. Hooker has until late September to challenge the appellate court’s ruling that found Tennessee’s yes-no retention election practice constitutional. That move would send the case to the Special Supreme Court.

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Featured News Transparency and Elections

Haslam Administration Keeps Schedule-Planner Under Wraps

Gov. Bill Haslam isn’t too keen on letting Tennesseans in on who he’s meeting behind closed doors.

“There’s just a lot of discussions that we have, that any governor needs to have, as part of the decision-making process that we go through on so many different issues,” the governor said recently.

The administration rejected a request from TNReport in July to review or obtain copies of the governor’s calendar-scheduling planner dating back to his Jan. 15, 2010, inauguration through June 30, 2012.

Haslam’s office said his schedule falls under the protection of “deliberative process privilege.” The exception under common law allows for government secrecy in instances of communications, opinions and recommendations on policy issues.

However, the state government’s own open-records advocate, Elisha Hodge, says there’s no precedent under this exception in Tennessee to keep the governor’s calendar hidden from public view.

“In Tennessee, the deliberative process privilege has been discussed in a number of public records cases,” but never in the context of public officials’ calendars, said Hodge.

In the cases the judiciary did review, “the courts have never found the privilege to be applicable, based upon specific records that were at issue in the cases.”

Information like what’s on the governor’s schedule should be public, said Kent Flanagan, executive director of the Tennessee Coalition for Open Government.

“I don’t want to know when he brushes his teeth, and I don’t want to know when he goes to bed,” Flanagan said. “But when he’s acting in the official capacity for the state of Tennessee, the people of Tennessee need to see how he’s performing his duties.”

The only way to challenge the administration’s stance would be to sue the administration and take the governor to court, which is a costly option.

Haslam has something of a mixed history with government transparency since assuming the state’s highest office.

In his second executive order, which set ethics training requirements for his cabinet members, the governor said that “this Administration intends to set a high standard for openness, transparency and accountability.”

“It is the unwavering policy of the Executive Branch to facilitate the right of Tennesseans to know and have access to information with which they may hold state government accountable,” his executive order declared.

But his staff is now looking to standardize how agency officials respond to public requests for information, with an eye toward avoiding requests for public documents that amount to “fishing expeditions” that cost time and money to assemble.

His office also moved to let commissioners keep secret how much they earn from their various sources of income, and he advocated in favor of ensuring that companies winning millions of dollars worth of state economic development awards can keep their lists of business owners out of the public eye.

Past governors assented to varying levels of letting the public review their calendars, said Larry Daughtrey, a retired Capitol Hill reporter for the Tennessean. Daughtrey contrasted the general practice with the relative openness of Gov. Ned McWherter, who led the state from 1987 to 1995.

“With McWherter, you could get his meeting schedule, but you had to go to the press office and ask to see it. You could also walk into any meeting you wanted in the governor’s office,” he said. “I don’t remember any other governor who would let you see the meeting schedule, at least with any regularity.”

Haslam’s administration puts out a weekly public schedule, which includes certain public events reporters are invited to. Gov. Don Sundquist did much the same, said Beth Fortune, who was Sundquist’s press secretary. Sundquist served from 1995 to 2003.

“We issued a weekly calendar of Gov. Sundquist’s public events, not private meetings. Sometimes, we would open private meetings to the press, if requested, and depending upon the topic of the meeting and its participants,” she said via email.

Once their terms are over, governors hand over to the public hundreds of boxes worth of correspondence, records and scheduling information. The latest records in state archives are from the Sundquist administration and reveal flight schedules and appointments with various lawmakers and interest groups.

Records for Gov. Phil Bredesen, who was termed out of office in 2011, are still being processed into microfilm.

Governors in some other states, including the notoriously corrupt Illinois, allow their meeting schedules to be made public, including facts like who they met with, where and when. But officials there redact information on certain meetings.

Gov. Haslam offered that his administration may “re-evaluate” opening up his meeting schedule, but he wouldn’t say when.

“I can’t say it’s not a decision we won’t revisit as we’re here a little longer and get used to the different decisions and impacts that that might make. I think we just felt like coming out of the box, that there was a need just to protect that deliberative process for now,” Haslam told TNReport in an interview last month.

He said closing off his calendar now doesn’t mean the public is getting locked out of answers as to why certain decisions are made.

“(Citizens) really want to know where are you, what did you decide and tell me why you decided that,” said the governor. “And I think we do owe answers like that — whether it be issues we’re facing on health care issues, or whatever it is — to say here’s where we are, and here’s why we think what we do.”

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Business and Economy Featured Liberty and Justice News Transparency and Elections

Casada Looking to Jump Back into House GOP Leadership Role

Rep. Glen Casada says if he learned anything from his GOP leadership successor Rep. Debra Maggart, it’s to take nothing for granted.

Casada is considering a move to reclaim his seat as the House Republican Caucus chairman and replace Maggart following her fiery primary election defeat fueled by Second Amendment advocates who disapproved of her role in blocking a key gun bill.

“Being in leadership is very time-consuming, and if you’re not careful, it can overwhelm you with your responsibilities for the caucus,” Casada told TNReport in a recent interview.

“You can maybe put your district in second place — and just enough where it can cost you an election. I’m not saying that’s what happened to Debra, but it’s something you’ve got to be mindful of,” he said.

The Franklin Republican, who left the chairman’s post to run a failed bid  for speaker in 2010, brings to the caucus a conservative voice at a time when the gun-rights lobby is showing off its political strength. The GOP caucus lost seven incumbents including Maggart in this month’s primary election. Two others squeaked by,winning with margins as tight as four votes.

Casada is generally regarded as more in tune with House conservatives than Speaker Beth Harwell, who edged out Casada to win the gavel two years ago. Harwell typically works hand-in-glove with Gov. Bill Haslam, both of whom are centrists who’ve been criticized at times by party conservatives for being more attentive to big business interests than grassroots concerns.

However, Casada is himself loathe to criticize Harwell. The chief reason he’s uninterested in trying to make a grab at the speaker’s gavel again this year is that “Beth has done a good job,” he said.

“Things are well. We’re cutting taxes. Government’s small. Things are going well in the state of Tennessee so I see no reason to switch at this stage,” Casada said.

House Speaker Pro Tempore Judd Matheny, on the other hand, isn’t so happy with the status quo. The conservative Tullahoma Republican is mulling a run for speaker. Matheney told The Associated Press earlier this month that as a result of his conservative politics he feels he’s “purposefully been put in a box” by the caucus higher-ups.

For his part, Casada says House leadership has never made him feel like that. He said he feels he would “add to, not conflict with, the leadership team” of Harwell and GOP Leader Gerald McCormick, who says he expects Casada would fit naturally back into a leadership role, if he pursues the seat.

“We heal our wounds very quickly in the Republican Party and in our caucus, and I think you’ll see us come together again,” McCormick told TNReport. “I don’t sense any tensions there, and I think Glen and Beth will work really well together and be part of a good team if he choses to run for caucus chairman or another position and wins. I don’t think there would be any problem at all.”

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Featured Liberty and Justice News Transparency and Elections

Haslam’s Special Supreme Court Picks Have Ties to Group that Lobbies Against Judicial Elections

Two lawyers named to a state panel to decide whether Tennessee’s system for selecting judges meets constitutional muster also lead a group that lobbies against judicial elections.

George H. Brown and William Muecke Barker are both listed as board members of Tennesseans for Fair and Impartial Courts, an organization that fights against “misguided individuals and groups … pushing to replace our merit based system with state-wide partisan elections.”

Brown and Barker, along with three other lawyers, were handpicked by Gov. Bill Haslam to decide a lawsuit brought by Tennessee’s most indefatigable critic of the state’s merit-based system of judicial selection, John Jay Hooker.

“(Haslam)’s thrown down the gauntlet,” said Hooker, a two-time candidate for governor who has been fighting this issue in court through various lawsuits since 1996. “He’s said these judges are my people. He’s kind of got me cut off at the pass.”

Hooker is suing the governor and other high-ranking state elected officials to try and force them to revert back to a system of direct judicial elections. Currently in Tennessee, the governor appoints judges to the state Supreme and other appellate courts, with voters choosing whether to renew their eight-year terms.

A third lawyer Haslam selected to the special Supreme Court, Robert L. Echols, works for the Nashville law firm Bass, Berry and Simms. The telephone number listed on the Tennesseans for Fair and Impartial Courts website rings at Bass, Berry and Simms. H. Lee Barfield, a member of the firm’s state government lobbying arm, is also a board member for TFIC and is past president of the organization.

The results of the case, Hooker v. Haslam, could have significant implications for state lawmakers. Constitutional sticklers have long argued that the state system of merit-selection by appointment followed by yes-no retention elections plainly violates the Tennessee Constitution. They say the mandate that judges be elected is being openly flouted.

However, Tennessee courts have upheld the view that retention elections meet the requirement that judges “shall be elected by the qualified voters,” as the Constitution mandates.

Haslam last month handpicked all five members of the Special Supreme Court to rule on the case, a task he said his staff carefully pondered given that the governor himself is a named defendant in the case. He’s standing by his appointees in the face of a push by Hooker to disqualify the trio for the appearance of bias.

“We could have just gone in there and appointed five people who thought exactly the same way. But I honestly feel like we worked to put together a very good panel,” Haslam told TNReport in Clarksville last week.

Gov. Haslam has made no secret of his own opposition to direct judicial elections in the past, saying he fears it would inject excessive and undue political influence into Tennessee’s judicial system. He asked lawmakers early this year to constitutionalize the current appointment-driven practice of selecting judges to clear up any confusion.

When that plan began to fall through, Haslam backed another constitutional amendment proposal to model the state’s system of selecting judges after the federal system, with the Legislature getting an opportunity to confirm judges the governor appoints. The plan now awaits approval from the General Assembly before it can be put to the voters in a referendum in 2014.

Sen. Mike Bell, R-Riceville, who argues the state is currently stepping outside constitutional bounds by appointing judges, said he is wary about the governor’s appointments to the special court.

“I think it would have been nice if the governor maybe would have gone out of his way to choose somebody who didn’t have the appearance of bias. Not that those men are biased, but it leaves the appearances there because of their connections,” he said.

Tausha Carmack Alexander, TFIC’s lobbyists at the statehouse, said the group would rather see anything in place besides “direct partisan elections.”

“We believe that forcing appellate judges to run in contested elections is very costly, and it will introduce more politics into the judiciary,” she said. “Everybody wants to ensure that we have courts that are fair and impartial. You can look at other states — West Virginia, Alabama — where it costs millions of dollars to run in some of the Supreme Court races. We just don’t think that is the way to go for selecting an appellate judiciary member.”

“There is plenty of data out there that indicates how costly (statewide judicial elections) can be, and how political it can be,” Alexander continued.

Hooker is now waiting for Brown, Barker and Echols to respond to his request they recuse themselves because their “impartiality might reasonably be questioned.” A written answer is due “promptly,” according to new court rules.

Barker, also a former Supreme Court Chief Justice who now practices law in Chattanooga, declined to comment on his ability to be impartial when ruling on this case.

“I just don’t think judges ought to be talking about a matter that sits before the court,” he told TNReport, adding that his opinion will be shown in his upcoming response to Hooker’s request.

Attempts to reach Brown, who specializes in mediation and arbitration in Memphis, and Echols Wednesday morning for comment were unsuccessful as of this posting. (TNReport will update this post if we hear back from them.)

The tricky part is how to define “reasonable,” said Judge Alan Glenn, chairman of the state Judicial Ethics Committee.

“There are certainly hundreds and probably thousands of cases where there could be the appearance of a conflict,” said Glenn, who is also an appellate court judge. “The catchall consideration has got to be where the judge’s impartiality can reasonably be questioned, and that’s where minds can differ.”

Three Supreme Court judges recused themselves from the case on July 27, just as Supreme Court Justice Cornelia Clark and Justice William Koch had on July 16. That same day, Haslam appointed the panel, and the Court of Appeals issued its ruling on Hooker’s case, finding that the Tennessee retention election practices are constitutional. Hooker has until late September to ask the Special Supreme Court to hear his appeal to the Appellate Court’s decision.

Andrea Zelinski and Mark Engler contributed to this report.

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Education Featured News Tax and Budget

Governor Ruminating on Education Reform, Round 3

Tennessee students are heading back to class this month, and education reform is likely to be increasingly back in the news heading into the November elections and beyond.

So far, few solid policy directions and details have emerged, but the governor said this week he and his advisers are wrestling with issues ranging from school choice to expanding taxpayer-funded pre-K to better preparing post-secondary students for the workforce.

Here’s where things stand at present:

Vouchers Not a ‘Done Deal’

A contingent of legislative Republicans — among them the Senate’s most powerful member,  Lt. Gov. Ron Ramsey — have for some time asserted a commitment to expanding publicly funded choices available to parents who worry their children aren’t getting the highest-quality, individualized education they deserve through traditional government-run schools.

Their plan is to establish a system of “opportunity scholarships,” or vouchers, that will allow parents to put taxpayer resources toward the public, charter, private or parochial school of their choice. The Senate OK’d that plan in 2011 but it failed to gain similar momentum in the House.

But Haslam is still hesitant. He said that for the plan to come to legislative fruition a lot of complicated policy obstacles and political pitfalls will have to be negotiated. Last year the governor himself put the brakes on a school-voucher proposal, opting instead to appoint a task force to study the issue and report back in November.

The Tennessee-based free-market Beacon Center and a national group called the Friedman Foundation for Education Choice this spring released a poll they co-conducted suggesting that support for vouchers is solid in the Volunteer State. However, the governor told reporters this week he’ll need to be convinced a voucher system will result in more than just an “incremental difference” in the state’s education outcomes for him to put the weight of his administration behind it.

“I don’t think it’s a done deal,” he said of the voucher push. “That’s a political observation, not a personal observation.”

“In other words, whatever money is transferred with that child is enough to really provide the education but doesn’t wreck the existing school system. So getting that balance right I think will be the biggest challenge,” Haslam added.

The governor’s task force met Thursday and is expected to meet again Sept. 26.

Expanding Pre-K On Long To-Do List

Despite significant opposition from members of his own party, the governor has hinted he’d like to look into expanding the state’s pre-K program for low-income children.

But he’s not sure if that issue will make it into his legislative agenda come next year, he said.

“I’ve listed that as a possibility along with a whole gamut of other things that we should look at,” Haslam said.

“I still think its applicability is probably more in our low income high need areas. I don’t see a scenario where we’re going to have universal pre-K in Tennessee. Will we expand it or not? It’s in the list to be debated out among a lot of other worthy potentials,” he said.

Studies of Tennessee’s pre-K program show mixed results. A state-commissioned study released last year indicates the effects of Tennessee’s Pre-K program diminish by third grade. Vanderbilt University’s Peabody Research Institute is currently attempting to “study of the effectiveness” of Pre-K in Tennessee, and says students showed an average gain of 82 percent in early literacy and math skills.

Higher Education Front & Center

Haslam says he’s committed to finding ways to improve education systems in hopes of raising the quality of graduates it churns.

Whether that means through policy-tweaking efforts within the administration or new legislation, the governor said he’s as this stage unsure.

“I think the first thing it impacts is how we budget,” Haslam said. “Whether there will be other legislative proposals, I don’t know I have an answer to that yet.”

“At the end of the day the most important thing we do, I think, in government, is we allocate capital. We allocate where money goes. And we have to get that right if we want to be a great state,” he said.

He’s taken to the road on this issue, holding a series of seven roundtable discussions across the state and a summit in Nashville earlier this year to dive into the pitfalls of the state’s current system and what the needs are of local employers.

What appears to be coming out of the hearings is that the state needs to do a better job of linking state funding with programs in high-demand fields like welding, nursing and engineering, he said.

Haslam added that fiscal disciple is still a primary concern to his administration across the board in state government, including public education. Anytime there arises a possibility of making additional taxpayer-funding available to higher education, such discussions must be coupled with efforts to improve financial efficiencies, said the governor.

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Education Featured News Tax and Budget

Haslam: Not Yet Time to Give State Sole Charter-School Approval Authority

A battle is brewing in Nashville over who should have the final say in opening a local charter school. But Tennessee’s governor says it’s premature to consider taking local politics entirely out of the charter-school approval process.

Gov. Bill Haslam told reporters he believes the process of allowing the state to override local boards’ charter school rejections is working, and that more time is needed to know whether changes to the system are warranted.

“I think for now, I’m comfortable with the way we have it,” the governor said at Tennessee Technology Center Tuesday. “If there’s still a whole lot of school districts that have never approved a charter school, even though there have been great applications, then I think maybe you reevaluate” in the next two to three years, he added.

Just a few hours after Haslam’s comments to reporters, Metro Nashville’s school board refused to give the green light to Phoenix-based Great Hearts Academies to open a school on the city’s affluent west side. Instead, MNPS put the issue on hold indefinitely over board-member’s worries that the school wouldn’t have a diverse enough racial makeup.

The charter refusal flies in the face of the Tennessee Board of Education which last month directed the school board to approve the charter school at its next meeting.

Metro Nashville school board members acknowledged their move defies state law. Department of Education Commissioner Kevin Huffman issued a statement saying, “we will take appropriate action to ensure that the law is followed.” Attempts to reach department officials to determine whether the state would withhold funds from the school system were unsuccessful as of this posting.

The State Board of Education was none too pleased with the local school board’s decision, issuing a statement that the board is “disappointed” with MNPS.

“Needless delays, the unnecessary expenditure of MNPS resources, and posturing relative to this charter school approval do not benefit the students of Nashville,” the board said in a statement.

Charter schools are paid for with tax dollars but are run by private groups. The schools have more flexibility than traditional public schools, such as in setting hiring policies, defining curriculum and establishing transportation. In addition, the schools can be shut down more easily than a traditional public school if they fail to meet academic standards or mismanage their finances.

The political wrangling within the MNPS battle with Great Hearts points to a need to give charter schools more options on which agency would “authorize” their application, said Matt Throckmorton, executive director of the Tennessee Charter Schools Association.

“We don’t want every application becoming a political football,” he said. “Maybe it’s not a full blow statewide authorizer, but we do need to have authorizer reform.”

While the governor was cool to the idea of letting charter schools skip over local school boards to apply with a state panel, he defended the notion that the current system that allows the state to trump local board decisions still allows for local control.

“You have a unique situation here because you have both state and local money funding schools,” he said. “I think, because of that, you might have a school board who just looks at it from their point of view. Obviously the state, we have a bigger role.”

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Featured News Tax and Budget Transparency and Elections

Retiring, Defeated Lawmakers on Taxpayer-Funded Getaway

Updated Aug. 7, 2012: Sen. Roy Herron called and said he had planned to attend the conference but decided against it due to a family emergency.

Six Tennessee legislators leaving the General Assembly this year are expected in Chicago this week on what could amount to a taxpayer-funded junket.

Four retiring legislators and two state reps who lost their bids for re-election in last week’s primary have given the state notice they plan to get reimbursed for attending the National Conference of State Legislatures annual summit in the Windy City that began Monday, a trip that could cost as much as than $2,500 in registration, airfare, hotel stay, per diem and cab rides.

They are Rep. Richard Montgomery, R-Sevierville, and Rep. Jeanne Richardson, D-Memphis, who lost their primaries, and retiring lawmakers Sen. Mike Faulk, R-Church Hill; Rep. Bill Harmon, D-Dunlap; Sen. Roy Herron, D-Dresden; and Rep. Jimmy Naifeh, D-Covington.

One of the General Assembly’s highest-ranking Republicans says he trusts that the departing lawmakers have good reasons behind their decisions to make the trip.

“I know it will be beneficial to the others who attend to get the benefit of their wisdom and their years of service,” said Senate Majority Leader Mark Norris, R-Collierville. “I think discretion is the better part of valor with these things, and obviously they’ve exercised their discretion and think it’s fine to go. I’m not passing judgment on it.”

Legislators are permitted to let taxpayers foot the bill for out-of-state legislative trips, complete with a per diem, travel and lodging expenses. Even outgoing lawmakers are entitled, said Connie Ridley, director of Tennessee’s office of Legislative Affairs.

“Members of the General Assembly serve as a legislator until the general election in November,” Ridley said in an email. “They are no longer eligible for compensation of any form the evening before the November general election.”

Richardson says she may have lost her primary election, but she still has legislative responsibilities to handle at the conference.

“I signed up because I am one of the representatives, there’s just a couple of us, who represent Tennessee on the Health Committee,” she said. “These are working committees where we share what we’ve done, and find out what other states have done and make policy recommendations for states. So, because I represent Tennessee on the health committee, I still need to come to the meeting.”

Attempts to reach Montgomery for comment were unsuccessful.

A handful of retiring lawmakers are also on the trip, including Naifeh and Faulk, according to their offices. Herron and Harmon’s offices did not respond to requests for comment.

Legislators can collect a $173 per diem each of the four days of the conference, for $692 total. Registration to the NCSL event ranges from $549 to $690, depending on when lawmakers registered for the conference online. Guests were encouraged to reserve rooms in downtown Chicago with rates ranging from $199 to $227 a night if locked in prior to Aug. 1. Lawmakers can also be reimbursed for airfare, which runs about $300 roundtrip, and cab rides, which average between $25 to $42 from the airport to the convention site.

If lawmakers decide against splitting hotels and cab fare, the cost to taxpayers could approach almost $2,500 for the four-day, three-night trip.

But no money has left the taxpayers’ pocket yet, Ridley said. Lawmakers will have to submit receipts to have their travel expenses paid for once they return, although the conference’s registration will be billed directly to the state.

While the practice is legal and learning how other state legislatures are tackling difficult policy issues is valuable, sending outgoing lawmakers on an out-of-town trip is still “questionable,” said Dick Williams, chairman of Tennessee Common Cause, a government accountability advocacy group.

“I have mixed feelings about the appropriateness of those going who will not be coming back, whether by the election or their own choice,” he said. “If they’re going to continue to do something in public life, they could make good public use of that.”

Here are the other 22 lawmakers slated to attend, according to the office of Legislative Administration:

House of Representatives

Rep. Vince Dean, R-East Ridge

Rep. John DeBerry, D-Memphis

Rep. Lois DeBerry, D-Memphis

Rep. Jeremy Faison, R-Cosby

House Minority Leader Craig Fitzhugh, D-Ripley

Rep. Sherry Jones, D-Nashville

Rep. Mark Pody, R-Lebanon

Rep. John Ragan, R-Oak Ridge

Rep. Bob Ramsey, R-Maryville

House Finance Committee Chairman Charles Sargent, R-Franklin

Rep. Johnny Shaw, D-Bolivar

Rep. Mike Sparks, R-Smyrna

Rep. Curry Todd, R-Collierville

Rep. Joe Towns, D-Memphis

Rep. Mike Turner, D-Old Hickory

Senate

Sen. Stacey Campfield, R-Knoxville

Sen. Ophelia Ford, D-Memphis

Sen. Thelma Harper, D-Nashville

Senate Minority Leader Jim Kyle, D-Memphis

Sen. Steve Sutherland, R-Morristown

Sen. Reginald Tate, D-Memphis

Sen. Bo Watson, R-Hixson

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Courting Conflicts

Most defendants would love to have the power to handpick judges assigned to decide a lawsuit against them. Gov. Bill Haslam, it seems, finds himself in just that enviable position.

Late last Friday afternoon, Haslam announced he had chosen the members of a special ad hoc panel. The panel will serve as a temporary state Supreme Court to rule on a lawsuit that names the governor as a defendant.

The move became necessary after all the the sitting members of the Tennessee Supreme Court recused themselves from hearing the case of John Jay Hooker, on behalf of himself and others, v. Governor Bill Haslam, et al. The lawsuit on appeal is a challenge to the constitutionality of Tennessee’s “merit selection” appointment and “retention election” system of picking appellate and Supreme Court judges.

Asked at a press conference this week if he’d struggled with the potential appearance of a conflict of interest, Haslam indicated his administration had indeed discussed the matter and had decided that he was required by law to appoint the panel.

“We talked with our legal counsel about that,” the governor said after a higher education discussion at Scripps Network in Knoxville Tuesday.

“If the existing Supreme Court recuses themselves, somebody has to appoint them and that’s the governor’s role under the Constitution in the state of Tennessee,” he said.

The matter has been simmering in the background for years, with Hooker, an outlying but ever-enduring fixture on Tennessee’s political scene, tending the flame. The subject of judicial elections has taken on renewed prominence in the past couple years, as many majority-party Republican lawmakers have said they are committed to reconciling the practice of selecting judges with the state Constitution, which they see as at odds with one another.

Hooker told TNReport this week he knew from the get-go Haslam would have to choose members for the special court. But he says he has the right to question and challenge those appointments, for example that of William Barker, a retired Supreme Court justice.

“How can he possibly be impartial in the matter?” Hooker said. “He’s got a vested interest. What is the difference in his interest as a former member of the Supreme Court or the sitting member on the Supreme Court?”

The court system so far has no timeline for when the case would be heard, according to Casey Mahoney, the court system spokeswoman.

House Speaker Beth Harwell is also named in the lawsuit. Her office says there’s nothing worrisome about the governor appointing judges on the court to hear the case.

“It is a statutory duty of the governor to appoint a special state Supreme Court in instances such as this, and literally no one else in the state is given such authority,” said spokeswoman Kara Owen. “There is no reason to expect that this panel would be anything but fair and impartial in the proceedings.”

The outcome of the legal decision could be paramount in the ongoing fight over whether the state is truly “electing” judges.

High-ranking members of the judiciary are selected by the governor who then face “yes-no” retention elections to renew their eight-year terms. Critics of the current system known as the “Tennessee Plan” say the Tennessee Constitution calls for judges to be “elected,” much like lawmakers and lower-level judges are.

The state Constitution says, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

Haslam and the top two Republican legislative leaders are resolute opponents to high-ranking judges facing popular elections. The trio rallied around the idea of rewriting the constitution to reflect how judges are currently selected, but the Republican-led legislature was split on the idea and ultimately dumped that proposal, SJR184, late in the legislative session.

Instead, they agreed on SJR710, which stipulates that the General Assembly should first have to approve the governor’s judicial appointees, then send the judges on their way to retention elections.

House Republican Caucus Leader Debra Maggart voted in favor of legislative confirmation, although attempts to reach her for comment on the lawsuit were unsuccessful Wednesday.

Courtney Rogers, a Republican running against Maggart in Sumner County, maintains that the state ought to bring itself in line with a literal reading of the constitution and require judges to face popular elections, said her spokesman Jeff Heartline. Although he said she had no preference yet on how the constitution should assign judges to the bench.

“If we were following the Constitution, these questions wouldn’t come up,” said Rogers’ spokesman Jeff Hartline, when asked what Rogers thought about the lawsuit. “Let’s follow the constitution and let the people decide.”

The issue has divided Republicans in the Legislature and on the primary campaign trail. Sen. Doug Overby, R-Maryville, has stressed that people shouldn’t employ their own literal reading of the state’s guiding document to justify judicial election. They should instead look to the Supreme Court’s guidance on matters of interpretation.

Andrea Zelinski and Itzel Gonzalez contributed to this report.

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Featured Liberty and Justice News Transparency and Elections

They Play, You Pay

Tennessee taxpayers will fork over an estimated $4.5 million this week administering elections for the two major parties.

But as a matter of state law, the decision as to who can and cannot participate in the partisan festivities is ultimately left to party officials and not the government. For that matter, there’s no guarantee the majority will get to decide the winners and losers.

That reality of the fundamentally rigged nature of Tennessee’s primary system was on display recently in Rhea County, where election judges turned away at least 10 voters this month for trying to vote in a primary election in which they were deemed by local GOP bigwigs as not “bona fide” members of the Party of Lincoln. All were asked to swear their allegiance to the Republican Party, and nine were given no guarantees their vote would count.

Members Only

Tennessee GOP chairman Chris Devaney indicated the party’s primary concern in the primary is promoting long-term partisan fidelity.

“We encourage people who have good intentions, Democrats, independents, to come over and vote in our primary if they intend to stay,” said Devaney when asked about the voter challenges in Dayton, a town of 7,000 people.

“But I don’t want people voting in our primary if they just want to manipulate the election,” he said.

Tennessee’s primary election system is technically open, allowing anyone to cast a vote in any primary. But the fine print of the law gives political parties the power to challenge and discount an individual’s vote if they are not “a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote.“

Voters can get around that law only if they have “declared allegiance to the political party in whose primary the voter seeks to vote and (stated) that the voter intends to affiliate with that party.” If party election officials are convinced, voters can cast a ballot. Otherwise, those voters cast a rejected ballot that party leaders decide later whether to count.

Leading House Democrat Craig Fitzhugh says Democrats didn’t have a candidate to vote for in the Rhea County race. But no voter should stand accused of so-called “crossover voting” without evidence, he said.

“I just think that’s carrying that party tag a little too far,” he said, adding he was OK with Dayton Mayor Bob Vincent’s wife Maxine trying to switch from Democrat to Republican to presumably vote against incumbent Rep. Jim Cobb, of Spring City, who is running against Dayton businessman Ron Travis.

“I don’t think much of that at all. I think people cherish their vote a little more than that just to use it in that manner,” he said.

The Kurita Cure

That’s not what Democrats were saying a few years ago when the party’s State Primary Board chose to oust the people’s choice, an incumbent, in a state Senate race in favor of a hand-picked successor more to the party establishment’s liking.

If party officials believe a race was decided by voters who weren’t “bona fide” party faithful, the state party itself can decide to go with another candidate.

That’s what happened in 2008. Democrat Sen. Rosalind Kurita, who had earlier cast the key vote to name Republican Sen. Ron Ramsey as the Senate speaker, so infuriated the party brass that they gave her the boot in favor of the man she actually bested by a razor thin margin.

The party’s primary board reasoned that Kurita’s 19-vote victory was “incurably uncertain” because they believed voters of the wrong partisan hue jumped party lines in an attempt to sway the election in her favor. So the party’s executive committee sent her challenger, Tim Barnes, to the general election in her place, and he won despite Kurita’s attempt to run as a write-in candidate.

Kurita took her fight to U.S. District Court in Middle Tennessee where Judge Robert L. Echols dismissed the case in part on the grounds that primaries are technically private-party affairs.

“Simply stated, the manner in which primary election contests are handled is left to the parties,” Echols wrote in his ruling.

The power to select a nominee for a political party has never been reserved traditionally and exclusively to the State of Tennessee. In fact, just the opposite is true, as the Tennessee General Assembly expressly disclaimed any role of state government in resolving party nomination contests and instead reserved power exclusively to the political party to choose the nominee whose name will appear on the general election ballot.”

Kurita lost her latest appeal to that ruling last month in the 6th District U.S. Circuit Court of Appeals, agreeing with the lower court’s opinion that the parties themselves are the final arbiters of who gets to go on to the general election under the party banner.

Taxpayers Footing the Bill

Secretary of State spokesman Blake Fontenay said the tab for putting on the roughly four-and-a-half-million-dollar show for Republican and Democrat primary voters includes the cost to provide early voting, count ballots, staff election precincts and other duties — all paid for through county tax dollars.

One activist said that legislators should change the laws so voters can be confident they can vote for their favorite candidates in the primary election — regardless what party they belong to.

“This is going to sound funny, but there’s too much politics in our elections,” said Mary Mancini, executive director of Tennessee Citizen Action, a left-leaning civil rights group. “It’s the election by the people. They should have access to whatever ballot they want to choose during that process. It doesn’t get any simpler than that.”

But she declined to comment on what she thought about Kurita being bumped off the ballot for alleged cross over voting.

“People want us to believe we live in this hyper-partisan society. But I think there’s a lot of people out there who vote for the person, not the party,” she said.