Public Records Battle Goes Down To The Wire In Tennessee Legislature

Image: Sen. Todd Gardenhire has filed a lawsuit to obtain access to writings by the Covenant School shooter. Image Credit: John Partipilo

By Sam Stockard [Tennessee Lookout – CC BY-NC-ND 4.0] –

More than a year after The Covenant School mass shooting, the House will take up a measure this week prohibiting third parties from getting involved in public records lawsuits.

The Senate passed the measure 32-0 in mid-March, but it’s entangled in a separate brouhaha between Republican Sen. Todd Gardenhire of Chattanooga who filed an open records lawsuit last year to gain access to the shooter’s writings, and Metro Nashville and Covenant School parents, who want the records to remain closed.

The Tennessee Coalition for Open Government sought the legislation, House Bill 2419, sponsored by Republican Rep. Jody Barrett of Dickson and Gardenhire, because it believes third parties can muck up public records challenges and increase court costs for the person seeking government documents.

“The process may become untenable for a regular citizen to endure, and it wasn’t anticipated,” said Deborah Fisher, the coalition’s executive director.

The measure was on the brink of being killed last Thursday on the House floor until Barrett postponed it. Consideration will come after a hearing before Davidson County Chancellor I’Ashea Myles on the public records case between Gardenhire, The Tennessean and Metro Nashville government.

Meanwhile, a group of Covenant parents filed an ethics complaint against Gardenhire claiming he holds a conflict of interest by sponsoring the bill and failing to declare publicly he filed the open records lawsuit to obtain the shooter’s writings, according to the Associated Press. 

The Senate’s rules require ethics complaints to remain confidential until the committee finds “probable cause” that a violation took place, and then it could hold a public meeting, according to Adam Kleinheider, spokesman for Republican Lt. Gov. Randy McNally of Oak Ridge. 

Two factors could help Gardenhire in the case: the fact the bill wouldn’t make the rules retroactive and the likelihood he doesn’t stand to gain any money.

Gardenhire, who chairs the Senate Judiciary Committee, held up all gun-related bills during last August’s “special session on public safety”, saying he wanted to see the shooter’s writings before considering those matters. One of the Senate’s few semi-independent voices, he remains a wild card, sponsoring other bills for the Coalition for Open Government and taking on the bill at the group’s request. He had not seen a copy of the ethics complaint when he spoke to the Lookout last Thursday.

Gardenhire further defended himself, saying, “There is no way on God’s green earth I could profit or benefit from that bill.”

A little wrench

The National Federation of Independent Business is lobbying against the House version of the franchise tax break as the two chambers try to reach session’s end with this massive reduction a major sticking point.

Both versions would eliminate the property value alternative on the franchise and excise tax, costing the state $400 million in annual revenue and allow only the net worth calculation, in addition to setting up a refund program, which NFIB says is “suspect constitutionally.”

The organization, though, points out the House version would make the company’s name and the amount of all refunds public, a violation of the Tennessee Taxpayer Bill of Rights and confidentiality clauses in state law. The House measure also limits refunds to one year instead of three, which would make Tennessee the only state with that policy.

The Senate refused to concur with the House’s version last week, and the measure was scheduled for the House’s message calendar Monday, when a conference committee likely will be appointed to work on differences. One compromise could be to list the companies seeking rebates and put ranges for the refunds, not an exact figure.

It must be noted the Department of Revenue usually doesn’t give opinions on matters, on the facts ma’am, when it makes budget presentations. But it opened eyes this year when Commissioner David Gerregano notified lawmakers the franchise tax presents “significant legal risk.” Ultimately, we found out 80 companies raised the specter of lawsuits.

Thus, we entered the 2024 session with warnings the state was going broke. Since then, though, the Lee Administration found $1.56 billion, including a reported $3 billion in interest funds from federal infusions, to hand out, sans litigation.

Speaking of loopholes

We’ve seen extensive reporting by The Tennessean’s Vivian Jones on the shortcomings of Education Commissioner Lizzette Reynolds, including a revelation that she received a tuition waiver to take education courses at UT-Martin, even though she hadn’t been a six-month resident of Tennessee — as required — and signed it under the threat of perjury. Also signing the form was Education Department COO Shannon Jordan.

The Department of Education released a statement saying, “This was an administrative error, which immediate action has been taken to correct. Upon realizing the mistake, Commissioner Reynolds personally covered the cost of all classes that were ineligible for the state waiver, in accordance with language in whe waiver application. The commissioner is dedicated to serving the students of Tennessee and is excited about continuing her work on their behalf.”

Yeah, that’s the ticket. She had her administrative assistant fill out and sign the form. She’s too busy dodging reporters and handing off questions in front of Senate committees.

Apparently, she and Gov. Bill Lee knew all along she wasn’t qualified to be the state’s education commissioner, so they hatched a plan for her to take an education course. But heck, if they can find $1.56 billion to pay off the state’s biggest companies, they could have come up with a better plan to (secretly) pay Reynolds’ tuition. 

Note from The Tennessee Conservative: Per The Tennessee Lookout’s republishing guidelines, this article has been edited for style and length.

About the Author: Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state’s best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association. Follow Stockard on Twitter @StockardSam