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Shipley Wants TBI to Release Records in Probe of Lawmakers

State Rep. Tony Shipley said he plans to push for a House committee to subpoena the Tennessee Bureau of Investigation’s files in the recently concluded inquiry into legislative actions by Shipley and Rep. Dale Ford.

Shipley and Ford were subjects of a TBI probe into whether they had exerted improper influence over a state nursing board that had disciplined three nurses from their East Tennessee area. This week Davidson County District Attorney General Torry Johnson announced that he had found no evidence of any crime and would not pursue charges against the two lawmakers.

Shipley, R-Kingsport, said he would use the House Government Operations Committee, on which he serves as secretary, to seek the files. He would need the support of a majority of the members, and Shipley said he would try to enlist one of them to introduce the matter.

But lawyers for the committee cast doubt on the likelihood of getting the records. Legislative subpoenas are rare, they said, and with TBI pushback the matter could end up in court before any documents were released.

TBI files are among the most secretive documents in Tennessee.

They are exempt from the state’s Open Records Act, a fact which has drawn renewed attention of late, especially with regards to the TBI’s investigation of Richard Baumgartner, a disgraced and disbarred Knox County Criminal Court judge who was abusing drugs and engaging in other illegal activity while presiding over cases.

In the wake of TBI revelations that Knox County court employees and other judges, as well as prosecutors in the Knox County District Attorney General’s Office, may have witnessed Judge Baumgartner engaging in ethically suspect or illegal behavior and did nothing about it, the Knoxville News Sentinel editorialized in favor of the public gaining access to TBI files once an investigation is wrapped up.

“Lawmakers should show courage…and side with the public and its right to know about closed police investigations by eliminating TBI’s exemption from the Public Records Act,” the News Sentinel editors wrote last month.

However,  state law already gives committees from either chamber of the General Assembly the power to subpoena all government records. According to state law, “investigative records of the Tennessee Bureau of Investigation shall be open to inspection by elected members of the general assembly if such inspection is directed by a duly adopted resolution of either house or of a standing or joint committee of either house.”

Once a committee obtained the files, Shipley said it would be his intention to make them open to the public.

“There’s nothing I do here that’s not completely aboveboard or open to the public,” Shipley said. “If I bring it to committee, at that point, I don’t have to call for anything. (It’s) wide open.”

Ford, R-Jonesborough, said he doesn’t care who sees the file, either.

“If you didn’t do anything wrong, why should you care if everything’s made public,” he said. “I couldn’t care less. But it better be the truth, I can tell you that.”

Shipley has turned his ire on Johnson, who said the lawmakers used “particularly heavy-handed” political pressure.

“I’m a huge supporter of the TBI. I’m a huge supporter of district attorneys. I’m a complete law and order kind of guy,” Shipley said. “But even in those organizations you can have jerks that get in there and mess with the constitution because they think they can. And they can’t.”

The TBI launched the investigation last June to determine if the two legislators and employees of the state’s Health Department had committed any crimes, including official misconduct and false reporting, and whether the lawmakers had improperly pressured the Nursing Board to reconsider its decision to discipline three nurse practitioners.

The nurses had been accused of over-prescribing medication at the Appalachian Medical Center in Johnson City, which has since been closed. Shipley and Ford through legislation attempted to shake up the nursing board and its oversight, and raised the specter of doing away with the board altogether. Ford had family ties to an employee and patient at the center.

The board eventually reversed its action against the nurses, though a TBI investigation into their actions remains open.

On Monday, Johnson announced that the state would not prosecute the two legislators. In a statement, he called the case one of “political hardball, but not political corruption.”

Shipley characterized the district attorney’s actions and criticism as a breach of the separation of powers, and the handling of the nurses’ case an “abortion of justice.”

“It is completely inappropriate for them to have stuck their hands into the legislative box,” Shipley said. “The DA made a statement: No criminality found. He should have stopped right there.

“His next comment was totally inappropriate: ‘Heavy-handed politics.’ Well, what was heavy-handed was the TBI’s DA-directed investigation that was blown from Mountain City to Memphis. That was heavy-handed.”

Shipley said he may initiate a legislative probe into where the allegations came from and whether charges could be filed against the individuals responsible for them.

He said the charges of official misconduct should have been seen as baseless from the beginning, because the three criteria for such a charge were impossible in his case. He said there couldn’t have been money or sex exchanged for a vote, because no vote was taken, and that no one’s employment could have been threatened, because he doesn’t have the power to fire anyone on the Nursing Board.

Gov. Bill Haslam recently announced he wants a review of Tennessee’s 22 state boards and commissions. In a statement outlining his 2012 legislative agenda released this week, Haslam expressed his desire to “eliminate duplicative functions and provide more accountability and oversight of these agencies.”

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Press Releases

Davidson Co. DA: No Charges Against Reps. Ford, Shipley

Press Release from the Office of Davidson County District Attorney, Jan. 9, 2012:

Davidson County District Attorney General Torry Johnson today announced he has completed a review of the investigation by the Tennessee Bureau of Investigation into the actions of two state lawmakers and employees of the Tennessee Department of Health. Johnson says the report shows that while there were questionable actions made by some individuals, there was no evidence that these actions could sustain criminal charges.

On June 22, 2011, General Johnson asked for a full-scale TBI investigation into the actions of State Representatives Tony Shipley and Dale Ford, as well as employees of the Department of Health. The TBI received complaints about possible irregularities in actions taken by Ford and Shipley in collaboration with certain Department of Health employees. This complaint was then brought to the attention of General Johnson. The investigation focused on whether the lawmakers illegally pressured the Board of Nursing to reinstate three nurse practitioners it had previously suspended from practice.

For some time, TBI agents in East Tennessee have been conducting an investigation into deaths of patients of the now-defunct Appalachian Medical Clinic in Johnson City, Tennessee. The Department of Health was made aware of the seriousness of these allegations, and commenced its own investigation into the nurses’ activities. Because of its own findings, on March 11, 2010, the Tennessee Board of Nursing took emergency action against the three nurses, who were accused of over-prescribing medications at the clinic. The report of the nurses’ actions was additionally reviewed independently by a peer panel that also recommended they be disciplined. All three were summarily suspended within the guidelines of the Administrative Procedures Act.

Over the next six months, lawyers representing the Office of the General Counsel (OGC) of the Department of Health and the nurse practitioners engaged in extensive settlement negotiations in an effort to resolve the serious complaints. Eventually all three nurses, along with their lawyers, signed consent orders, which contained numerous factual findings of unprofessional conduct that justified discipline. The three agreed not to contest the summary suspension of their licenses and to pay substantial civil penalties and the costs of the proceedings. In essence, the nurses were placed on a form of strict probation designed to allow them to resume practice in the future, provided they met numerous terms and conditions. Although the nurses and their lawyers had agreed to the discipline established by the Board, Representatives Ford and Shipley sought to overturn those orders and contacted various employees of the Department of Health in that effort. In addition, Representative Ford filed a bill that would have created an additional committee tasked with reviewing certain types of disciplinary actions taken against license holders. And Representative Shipley sought to stall legislation that would extend the life of the Nursing Board.

In an apparent response to legislative pressure, at the Nursing Board meeting on May 5, 2011, one of the OGC attorneys presented new consent orders that would essentially dismiss all previous disciplinary actions against the nurses. The attorney claimed that there were defects in the previous orders, and that there was compelling new evidence that justified setting aside the disciplinary orders. Because of these assertions, the Board voted unanimously to rescind the previous discipline and to reinstate the licenses of all three nurses. However, there is no record of any procedural defects or compelling new evidence.

“The Board of Nursing is responsible for protecting the public from the dangers of unfit, incompetent, or unprofessional nurses,” says Johnson. “In this case, the Board did precisely that, only to be subjected to heavy-handed tactics by two state legislators, aided and abetted by some former employees of the Department of Health. Regrettably, both the Board and the Department of Health caved to perceived political pressure and set aside the previous discipline that all parties had agreed to. This is not how government is supposed to work, but it is not a crime since these lawmakers did not personally benefit from their actions nor did they individually have the actual power to harm the Board, the Department, or its employees. In the end, this is a case of political hardball, but not political corruption.”

“Any time there is an issue of possible public corruption, it warrants our further investigation, as we take these complaints very seriously,” says TBI Director Mark Gwyn. “A number of TBI agents have been actively engaged for some time in interviewing witnesses and reviewing documents as part of this investigation. In addition, we have consulted frequently with representatives of the Davidson County District Attorney’s office, and the State Attorney General’s office.”

Several of the principals at the Department of Health left that office after the two legislators initiated their involvement. Others left at the conclusion of the TBI probe. The initial TBI investigation into the deaths of patients of the clinic was launched in 2005 in the 1st Judicial District. That investigation is still open and under review by District Attorney General Tony Clark. That probe is not affected by the findings of the review of the lawmakers’ actions.