Nashville referendum fight runs up legal fees for Election Commission
Historic Metro Nashville Courthouse (Photo: Nashville.gov)
The Davidson County Election Commission spent $214,927 on attorney fees in its lawsuit last year stemming from the failed effort to put an anti-tax charter amendment on the ballot.
The election commission hired former Tennessee Supreme Court Justice and Nashville School of Law Dean Bill Koch on a no-bid contract in September when it considered putting the measure on the ballot for a voter referendum. The proposal would have reversed the 34 percent property tax increase passed by Metro Council and signed into law by Mayor John Cooper.
The proposal by the citizen group 4GoodGovernment was rife with legal criticisms that it was clumsily worded and violated state laws that give local governments power to set property tax rates and issue bonds. Because of those legal concerns, the election commission did not know whether it had the power to reject the proposed referendum, which collected enough signatures to qualify for a special election.
In response, the commission elected to hire Koch, who then recommended adding attorney Junaid Odubeko from the Bradley law firm on Sept. 29.
Time was of the essence as Cooper’s administration also filed suit seeking to have the measure struck down by the courts, which ultimately happened when Chancellor Ellen Hobbs Lyle ruled the referendum proposal was unconstitutional and could not go on the ballot.
Election Commission chairwoman Emily Reynolds defended the decision to hire Koch and the Bradley law firm. Reynolds pointed out that state statute authorizes election commissions to hire outside legal counsel as needed, and there is no competitive bidding requirement.
“In my view as the commission’s chairman, I was pleased with the professional services they provided as we sought guidance from the court,” Reynolds said. “Our attorneys obtained a ruling that gave us the legal guidance we needed at the time.”
Because the commission finalized its legal team on Sept. 29 and the ruling by Lyle came on Nov. 5, the attorneys earned their legal fees in about five weeks. Reynolds indicated the expense was necessary in part because conducting the special election would have come with a price tag as well.
The breakdown in fees was $143,326.60 for the Bradley firm and $71,600 for Koch.
“As I said from the beginning of this important conversation, we had to get this complex issue right for the taxpayers and for our city, and that’s why we asked the court for clarity before we committed taxpayer dollars for a referendum election,” Reynolds said. “Spending $800,000 on an election only to have it challenged in court would not have benefited supporters or opponents of the referendum.”
The issue of the legal expense incurred by the city is relevant since 4GoodGovernment has embarked on another effort to put a similar anti-tax measure on the ballot. This time, the proposal would not unwind last year’s property tax increase for the current budget, but would reset the rate for the 2021-22 budget year beginning July 1.
The measure also seeks to make it significantly easier to recall a Metro elected official by reducing the number of signatures required and blocking the targeted politician from appearing on the ballot in the recall election.
4GoodGovernment, which is led by Nashville attorney Jim Roberts, needs about 32,000 signatures to possibly trigger the special election. The group sent signature cards to voters without regard to saving extra expenses. For instance, voters living in the same household received multiple signature cards even though each mail piece has room for multiple people to sign.
“The Davidson County Election Commission has the duty and responsibility to ensure any referendum proposal complies with local and state laws,” Cooper spokeswoman Andrea Fanta said. “This new petition will simply run up the costs of what the court has already ruled: this proposal is invalid. Ultimately, these are city dollars Nashville could otherwise be spending on urgent priorities and needs.”
The group has until early March to file its signatures. Although some of the legal questions raised by Lyle’s ruling remain, Metro charter experts have said the renewed proposal remains legally flawed.
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