City leaders postpone action, wait for new ordinance

Tammy Cheek News Herald
Action to re-establish the court clerk’s position to the city recorder/treasurer’s office remains in limbo despite lengthy discussion during Monday’s Lenoir City Council meeting. 

The council decided to postpone action until it can review the current ordinance. 

Monday, City Recorder/Treasurer Bobby Johnson Jr. asked the board to give his office back the court clerk responsibilities; however, some council members were hesitant.

During the election Johnson said he told people if he got elected he would come to the council and “ask for it back.” Opinions have been received from Municipal Technical Advisory Service (MTAS) and he said the council members also wanted one from the Attorney General. “The AG’s opinion came back in around January,” he said.  “Have you had any problems the way it is now?” Councilman Tony Aikens asked.

“No,” Johnson replied. “What I worry about more than anything is the oversight. If something does happen, the responsibility is going to fall on me, and I don’t feel that that’s fair.” As the position is now, he said he really doesn’t have any oversight over it. “Do I have a problem with anybody back there — no, sir,” Johnson said, adding city Administrator Dale Hurst would agree they all get along. “Administratively, I am concerned it (the clerk’s role) run smoothly,” Hurst said. He said Johnson told him it was not his intent to physically change anything and he wanted it to run smoothly as well. 

Council member Eddie Simpson recalled the council had to appoint a new clerk until they decided whether the recorder/treasurer position would be elected or appointed. “Now, where do we go?” Simpson asked.  “We did have an attorney general’s opinion, which I concur with, and we also have MTAS opinion, which makes a lot of sense and a lot of points,” city attorney Shannon Littleton said. 

Littleton noted though, there was another opinion from the Administrative Office of the Courts (AOC), upon which the city relied the night the council passed the ordinance (separating the two offices). That opinion turned on the word “notwithstanding.” “Whatever the interpretation of that word was, turned the whole landscape of what the decision would be and how you would handle the court clerk’s position, Littleton said. “At this point, regardless of whether you rely on the opinion from the attorney general or the opinion from the AOC, you are going to have to dispose or keep the ordinance intact,” Littleton advised. “You are going to have to deal with that ordinance regardless.” 

The present ordinance concerning the clerk’s position was passed May 12, 2008. It appointed a municipal court clerk upon recommendation of the court judge. 

“It depends on how council wants to deal with this ordinance,” Littleton said.  He asked for direction from the council in how it was to be handled — keep it as is or restore it back to Johnson’s position as senior court treasurer. “Shannon, how much trouble would it be to file something in chancery court and ask the chancellor to make a ruling?” Council member Tony Aikens asked. “It wouldn’t be difficult,” Littleton replied. “In years past we have filed territory actions to get opinions, and it depends on the chancellor’s schedule, you get them back fairly quickly.” “It looks to me like, in order to settle it, and the best thing is maybe to get the chancellor’s ruling,” Aikens said. “I really hate to clog up the court but if we can’t reach a decision then it looks like that’s what we need to do.” 

Johnson noted the council first got an opinion from MTAS then it got an opinion from the attorney. “I’m not trying to ruffle any feathers but it seems like this opinion is not good enough, this opinion’s not good enough … is the next one going to be good enough?” Johnson asked. “The dilemma in this particular case is that the court needs to decide it,” Mayor Matt Brookshire said. “The council has a clear direction as to which way it can go.” He then asked Littleton, “Is that correct?” Littleton said it was. “You can only change an ordinance with an ordinance, which means if you want to change it tonight, you couldn’t because you don’t have the ordinance in front of us to review,” Brookshire said. “I just want to put it to bed and to put it to bed the right way,” Aikens said. “I agree the state attorney general’s office is a powerful position, and there’s a lot of cities and counties that rely on his opinions, but it’s also an opinion, and that’s it. That’s all it is.”

Council member Bobby Johnson Sr., who is also the father of the city recorder, spoke up. “Let me ask a question. You talk about opinions, you started out with MTAS, and then went to attorney general. Now you want to go to court with this thing. How’s he going to act on it?” Johnson Sr. asked. Aikens said he didn’t know.“He’ll go by what the law says,” Johnson Sr. replied. “I feel like we’ve had proper paperwork on this thing to go ahead and move with this thing.” 

Johnson Sr. made a motion to postpone action until Littleton can draw up a new ordinance restoring the clerk’s position the way it was. Simpson also asked for all the opinions be included so council members can review them as well, however, Aikens challenged the motion. “We’ve seen conflicts with courts,” he said and referred to Council member Johnson Sr. and city recorder Johnson Jr. “I really mean this with all due respect, I really do, but I’ve got a problem. I think there’s a direct conflict of interest for you (Johnson Sr.) making a motion — not with just this particular item agenda — but with any item agenda involving your son’s office.”

“I’ll withdraw that motion,” Johnson Sr. replied.

The motion was restated by Simpson, and that motion was seconded by council member Douglas “Buddy” Hines. The vote was four to zero, with Johnson Sr. abstaining. 

After the vote, Johnson Sr. reminded Aikens, “I sat right here and voted to take it away from him (Johnson Jr.) and turned it over to the judge right there and you never said a word.” “He wasn’t city recorder then,” Aikens remarked.