Tennessee attorney general OKs campaign events on state property

Tennessee attorney general OKs campaign events on state property

January 6th, 2017 by Andy Sher in Local Regional News

Tennessee Attorney General Herbert Slatery III speaks to attendees at a Pachyderm Club meeting on Oct. 26, 2015, in Chattanooga.

Photo by John Rawlston /Times Free Press.

NASHVILLE — Holding campaign fundraisers at the Tennessee governor's mansion and other state property is legal, Attorney General Herbert Slatery said in an opinion.

Tennessee law "does not prohibit elected state officials from using state property, including the Executive Residence, for campaign-related activities," Slatery wrote in response to questions posed by state Rep. John Ray Clemmons, D-Nashville.

And in a second, unrelated legal opinion, responding to questions from state Senate Majority Leader Mark Norris, R-Collierville, Slatery said social media accounts such as Facebook and Twitter that are created and maintained by a municipality can be a matter of public record under the state's Open Records Act.

"To the extent a municipal social media account is made 'pursuant to law or ordinance or in connection with the transaction of official business,' that account and any comments posted on the account constitute public records subject to inspection under the Tennessee Public Records Act [sic]," Slatery's opinion reads.

With regard to the political fundraising issue, Clemmons requested the legal opinion after last year's use of the Curtiswood Lane mansion for a campaign fundraiser for U.S. Sen. Marco Rubio, R-Fla.

Acting on the request of U.S. Sen. Bob Corker, R-Tenn., Republican Gov. Bill Haslam allowed the mansion fundraising event to take place.

Both Clemmons and state Senate Democratic Leader Lee Harris of Memphis later blasted the use of the taxpayer- supported mansion for a campaign fundraiser.

Tennessee governors, both Democrats and Republicans, have for decades held or allowed political fundraising at the mansion. Campaign fundraisers have been held in the past at other state-owned venues by Republican and Democratic legislators, as well.

That's because Tennessee's "Little Hatch Act" specifically includes an escape hatch for the state's elected politicians.

The provision declares it illegal to use public buildings or facilities for meetings or preparation of campaign activity in support of any particular "candidate, party or measure."

That is "unless reasonably equal opportunity is provided for presentation of all sides or views, or reasonably equal access to the buildings or facilities is provided all sides."

In his response to a series of related questions posed by Clemmons, Slatery also said the state's Campaign Financial Disclosure Act "would require the disclosure of such [public] expenditures if they constitute either a 'contribution' or an 'expenditure' as defined under the Act."

It's unclear how a state campaign financial disclosure requirement would apply in Rubio's case. It's not known who or what entity footed the bill. Moreover, Rubio himself is a federal officeholder and presumably not covered by the state's campaign disclosure law.

Clemmons also asked whether state law requires public disclosure of the governor's "non-personal schedule, including non- personal events."

In his opinion, Slatery wrote "to the extent that the Governor's non-public schedule, including non-personal events at the Executive Residence, meets the definition of 'public record' as set forth" in state law, "then it is subject to disclosure under Tennessee's Public Records Act [sic], unless a state law provides otherwise."

Both Haslam and his predecessor, Democratic Gov. Phil Bredesen, have claimed they did not have to turn even their non-personal schedules over to news organizations.

Slatery, Haslam's former legal counsel, said in the opinion that "one state law that does provide otherwise [to disclosure] is the common law deliberative process privilege, also referred to as the 'executive privilege.'"

It "exempts from disclosure the deliberative and mental processes of the executive," Slatery wrote.

"Thus, to the extent that disclosure of events on the Governor's non-personal schedule would disclose the Governor's deliberative and mental processes, the Governor's non-personal schedule is protected from disclosure under deliberative process/executive privilege," he added.

Contact staff writer Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.