Resolutions would allow Tennessee voters to change the state’s Constitution for merit-based appointment system for state’s Supreme Court and Appellate Judges with retention vote

(NASHVILLE, TN), April 12, 2012 –  Action in the State Senate this week was highlighted by consideration of two proposals that would allow Tennesseans to vote on whether or not they want to use a merit-based appointment system for selecting the state’s Supreme Court and intermediate appellate judges, followed by a retention vote of the people.  Senate Joint Resolution 183, sponsored by Senate Majority Leader Mark Norris (R-Collierville), and Senate Joint Resolution 710, sponsored by Senator Brian Kelsey (R-Germantown), were approved by the Senate Finance Committee on Tuesday and moved to the full Senate for the first and second readings on Wednesday and Thursday.  A final vote on the matter is scheduled for Monday. 

The action follows an announcement made earlier this year by Governor Bill Haslam, Lt. Governor Ron Ramsey (R-Blountville) and House Speaker Beth Harwell (R-Nashville) that legislative action is needed under the present system for selecting appellate judges in order to be constitutionally correct.  Article VI, Section 3 of Tennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate.  Under the state’s current Tennessee Plan for selecting Supreme Court and other appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration.  The governor must then appoint one of the nominees or reject the panel and request a second panel.  After being appointed through this process, the appellate judges must stand for approval by the voters after completion of their term, with the people deciding whether to “retain” or “replace” them.
Senate Joint Resolution 183 provides that as an alternative to contested elections, the legislature is authorized to establish in the law a system of merit-based appointments with retention elections for judges of the Supreme Court and the intermediate appellate courts.  The changes set out in the resolution would only go into effect if the Constitution is amended by a vote of the people.  First, the resolution must be approved by a simple majority of the legislature this year after three readings and must receive a two-thirds majority of both chambers in the following General Assembly.  Then it would go to a vote of the people in 2014.

“This is the correct course of action for those of us who believe the Constitution means what it says and should be interpreted as written,” said Leader Norris.  “We think that either the qualified voters of the state should elect the judges as it is written or if it is a merit-based system of retention, which is what we have or something similar to it, then the Constitution should be amended to reflect that – if that is the will of the people.” 

“There are variations on what people would like to see in a merit-based system,” Norris continued.  “This proposal does not get into that specificity; rather it gives the legislature the prerogative as to what the second step would be.”

The other proposal, Senate Joint Resolution 710, calls for appointment of state appellate judges in a manner similar to the federal model by allowing Tennessee’s Governor to appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly, for eight year terms. 

“This plan follows the tried and true plan designed by our nation’s Founding Fathers. Judges are appointed by the executive and confirmed by the legislature,” said Senator Kelsey.  “The resolution even improves upon the federal model by correcting for its one flaw: inaction by the legislature. The plan puts a 60-day clock on the legislature to act or the nominee will be confirmed by default.”

“The importance of a highly functioning and independent judicial branch is crucial to the small, efficient government our unified Republican majority continues to bring to Tennessee,” said Lt. Governor Ramsey. “Our current method of choosing judges is a very good system, but it is not constitutional. This effort will ensure that we finally have a constitutional method of choosing judges.”

Bills aim to make state government more efficient and effective

Several bills advanced through the State Senate this week aiming to make Tennessee’s state government more efficient and effective, including legislation to revamp the Tennessee Regulatory Authority (TRA) which regulates utilities across the state.  The TRA is currently governed by four full-time members, called directors, with salaries of $152,000 per year. Senate Bill 2247, sponsored by Senator Mark Norris (R-Collierville) and Senator Mike Faulk (R-Church Hill), would replace them with five part-time members who are paid in the mid $30,000 range and a full-time executive director to manage the agency’s day to day operations.

The proposal for part-time directors follows deregulation of many industries previously governed by the TRA, including the trucking and phone industries and most electric utilities.  The TRA does not regulate the Tennessee Valley Authority (TVA) or other utilities owned by local government.  As a result, only 19 rate cases have come before the agency since 2003.  The legislation also follows a comptroller report which showed the TRA needs a better management structure to optimize functions of the agency.
Under the bill, TRA directors would be appointed by the governor and the speakers of the House and Senate.  The directors would then elect a chair and vice-chair from among themselves.  The legislation requires monthly meetings unless waived by a majority vote.  It also creates an executive director position to be appointed by joint agreement among the governor and the speakers of the House and Senate for the initial three-year term and establishes the minimum qualifications to ensure a high level of competency.

“Thirty one other states have an Executive Director at the helm of their similar agencies,” said Senator Faulk.  “We want the new Executive Director to also do a top to bottom review of the TRA to see where further savings can be realized, while emphasizing a more effective agency for Tennessee rate-payers and the industries who come before them.”

Boards and Commissions / Efficient and Effective Government – In another effort to operate state government in a more efficient and effective manner, Senate Bill 2249, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senator Mike Bell (R-Riceville) was presented for consideration to the Senate Finance Committee this week.  The bill focuses on performance, accountability and effectiveness by making structural changes to 20 boards, commissions and licensing programs.   

“We continue to streamline state government,” said Leader Norris.

Over the past year, heads of many of the state’s departments and agencies conducted a top to bottom review to thoroughly analyze operational and organizational efficiency.  The review was fueled out of concerns that Tennessee must practice greater fiscal constraint due to cuts that will likely come from Washington and the need to downsize state government as state revenues are still below pre-recession levels.  Through this comprehensive review, the departments were also asked to establish a culture of customer service, efficiency and effectiveness.

 “With Tennessee facing significant budget challenges, we must reduce the size of government to make it work more efficiently and effectively,” said Chairman Bell.   “At the same time, we are emphasizing customer service for Tennesseans who must access a wide array of state services, from driver’s licenses to TennCare.  Senate Bill 2249 works to accomplish this.”

Currently, Tennessee has more than 200 boards and commissions, many of which have independent hiring and spending authority with little oversight.  The legislation merges six boards into three for increased efficiency including the Conservation Trust Fund Board, which will absorb the Conservation Commission.  The Oil and Gas Board and Water Quality Control Board would be combined to form the Board of Water Quality, Oil and Gas.  The Petroleum Underground Storage Tank Board and the Solid Waste Board would be combined to form the Underground Storage Tank and Solid Waste Disposal Control Board.  The proposal would eliminate 138 board positions, a move which will save money and increase effectiveness. 

In addition, the legislation gives a Cabinet level commissioner oversight over five boards for increased accountability.  They are the Peace Officers Standards and Training Commission; Tennessee Corrections Institute and Commission on Firefighting Personnel Standards and Training within the Department of Commerce and Insurance; the Council on Career and Technical Education within the Department of Education; and the Conservation Trust Fund Board within the Department of Environment and Conservation.

Finally, the bill gives the Governor hiring authority for four Commission’s executive directors including the Commission on Aging and Disability, Commission on Children and Youth, the Arts Commission, and the Higher Education Commission.

A vote is expected on the proposal in the Finance Committee on Tuesday.

State Government Efficiency / TEAM  Act –  The full Senate has approved legislation to update and reform the state’s antiquated employment system.  Senate Bill 2246, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senate Commerce Committee Chairman Jack Johnson (R-Franklin), is called the TEAM Act (Tennessee Excellence Accountability and Management Act). 

A report released by the Comptroller’s Division of State Audit suggested Tennessee’s civil service system is inefficient, unfair and outdated.  The system was also identified as cumbersome and inefficient by all departments in the Top to Bottom Review report ordered by Governor Bill Haslam.

“Passage of this Act prioritizes performance rather than seniority,” said Leader Norris.  “It brings Tennessee into the 21st century and keeps our workforce competitive.” 
Tennessee has just over 40,000 employees, of which 6,000 are executive service who do not have civil service protection, with the remainder as career service who do have certain protections under the system. Approximately 40 percent of Tennessee’s state employees will be eligible for retirement in the next five years.

“There are currently 549 registers for Tennessee State Government with over 100,000 applicants,” said Senator Johnson.  “In most cases, applicants have remained on the register even though they may be deceased, found other jobs or moved to another state, which is a huge impediment for those who may legitimately be seeking employment or for existing employees applying for promotion.” 
Johnson said the purpose of the TEAM Act is to establish a system that will attract, select, retain and promote the best applicants and employees in Tennessee state government.  He said it also aims to give agencies greater flexibility in personnel management and would increase customer-focused effectiveness for citizens who access a wide variety of state government services. 

Key provisions in the bill include:
• Renames civil service as state service and career service employees as preferred service employees
• Establishes methods for rewarding merit pay.
• Creates a new hiring system where agencies will be required to identify minimum qualifications for an open position and specify the specific knowledge, skills, abilities and competencies needed
• Position openings would be announced for a minimum of one week
• Newly hired employees in the preferred category will have a one year probationary period, upon completion of which they will obtain the preferred designation 
• Referred list of eligibles would include all applicants meeting the pre-established minimum qualifications
• Agencies would be required to interview a minimum of three candidates with one of the three hired
• Veterans will continue to be given preference in hiring and promotions for state jobs
Reduction in Force (RIF)
• Employees affected by a RIF would receive a minimum of 60 days notice beginning Oct. 1, 2012 – Dec. 31, 2013 and will go to 30 days thereafter
• In a RIF, the order of layoff would be based on performance first, then seniority, abilities and any disciplinary record
• Veterans will get an additional 60 months added to their service
• Covered employees affected by a RIF would be granted an interview for positions in the same classification they held prior to the RIF for a period of one year
• Provides a new mediation system to improve the lengthy and complicated process for appeals for those state employees who feel they have been treated unfairly 
• All preferred employees would have the right to appeal a dismissal, demotion or suspension identifying the law, rule or policy concerning the employee. 
• The bill sets up a 9-member Board of Appeals
• The appeal process would have three steps, each with a time limit, ending with the Board of Appeals 

Government Accountability / Reporting Fraud – The State Senate gave final approval to legislation this week that would require officials of any state agency to notify the Comptroller of the Treasury upon having knowledge of any act of theft, forgery, credit card fraud or any other unlawful act regarding public money, services or property.  Senate Bill 3331, sponsored by Senator Bill Ketron (R-Murfreesboro), provides for state agencies to establish guidelines for the reporting of fraud to the Comptroller of the Treasury. 

Legislation advances strengthening penalties against child sex offenders

The Senate Judiciary Committee worked late into the night on Tuesday and Wednesday, approving many anti-crime bills, including legislation that strengthens penalties against child sex offenders. 

Aggravated Rape / Multiple Offenders – The Judiciary Committee approved Senate Bill 2349, sponsored by Chairman Mae Beavers (R-Mt. Juliet), which requires a person convicted of aggravated rape on or after July 1, 2012 to serve 100 percent of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. In addition, the proposal adds an “aggravated rapist” to the list of persons who must serve their entire sentence undiminished by sentence reduction credits.

Minor Victim / Undercover Officer – Judiciary Committee members voted to advance Senate Bill 2605, also sponsored by Chairman Beavers, which corrects an error in current law to ensure that prosecution and conviction is authorized for displaying sexual activity to a minor via electronic communication.  The law would apply regardless of whether the victim is a minor or an undercover police officer posing as a minor.

Sex Trafficking – Two bills regarding sex trafficking were approved by the Judiciary Committee during the two-day marathon meetings.  Senate Bill 2590 states that it is a defense to prosecution when a person charged with prostitution is charged for conduct that occurred because a person was a victim as defined under the federal Trafficking Victims Protection Act.  Similarly,  Senate Bill 2371 was approved which would make it a Class B felony for a sex trafficker to advertise the sale of a sexual act with a minor, except when the victim is a child between ages 13 and 15, which would be a Class A felony offense.  

Sex Offenders / DNA – The committee voted to approve Senate Bill 2922, sponsored by Senator Doug Overbey (R-Maryville) that provides for a procedure to ensure law enforcement has a DNA sample for a sex offender when that person is on the Registry but is not incarcerated.

Sex Offenders / Indecent Exposure — Senate Bill 3076, sponsored by Senator Jack Johnson (R-Franklin), was approved by Senate Judiciary Committee members.  The bill revises the punishment for the offenses of public indecency and indecent exposure.  It specifies that indecent exposure would be a Class E felony if the defendant is 18 years of age or older and the victim is under 13 years of age and the offense occurs on the property of any public school, private or parochial school, licensed day care center or other child care facility during a time at which children are likely to be present.  It also provides that if a person is charged with such Class E felony offense and the court grants judicial diversion, the court must order, as a condition of probation, that the person be enrolled in a satellite-based monitoring program for the full extent of the person’s term of probation in a manner consistent with the requirements of the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.

Sex Offenders / Registration – Another bill is pending action on the Senate floor on Monday, sponsored by Senator Kerry Roberts (R-Springfield), calls for judicial forfeiture of a registered sex offender’s automobile if they are found to be in violation of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act.  Senate Bill 3635 would allow judges to consider forfeiture when the registered offender violates the terms of the Registry Act by being at a day care, school or other places in which he or she is banned.

Bills to curb drunk driving advance in Senate Judiciary Committee

Three bills, sponsored by Senator Doug Overbey (R-Maryville), progressed through the Senate Judiciary Committee this week to curb drunk driving in Tennessee.  Senate Bill 2913  would require the use of an ignition interlock device as a condition for obtaining a restricted license for those who are stopped on a DUI offense but who refuse testing.  “Research shows that ignition interlock devices are one of the most effective ways to keep drunk drivers from continuing to drive drunk,” said Senator Overbey. 

DUI / Testing – The Judiciary Committee also approved Senate Bill 2914 which clarifies that the provision regarding not administering the blood alcohol content (BAC) test if the person refuses to submit, does not apply if testing is mandated by a court order or search warrant.  It also applies to testing mandated under present law regarding a law enforcement officer having probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another is driving under the influence of drugs or alcohol.  Under present law, if a person is placed under arrest and, after being requested by a law enforcement officer to submit to testing to check the amount of drugs or alcohol in the person’s body and having been advised of the consequences for refusing, refuses to submit, the test to which the person refused will not be given, and the person is charged with violating the implied consent law.

DUI / Prescription Drugs —  In addition, Judiciary Committee members approved Senate Bill 2915  which brings clarity to Tennessee’s law regarding driving while under the influence of prescription drugs.  The legislation ensures that state law does not provide an excuse or a defense for offenders who do not have physical control of their vehicle due to being under the influence of an intoxicant drug prescribed lawfully. 

Legislation calls for transparency in use of public funds by charter schools

State Senators gave final approval to legislation on Thursday designed to enhance transparency in the use of public funds by charter schools.    Senate Bill 3345, sponsored by Senator Bill Ketron (R-Murfreesboro), provides additional information for families who might be exploring a charter school option for their student.

“Public charter schools, like public schools, use taxpayer money.  It is a statement of preference that in charter schools, like LEAs (local education agencies), that public money is used to hire American workers,” said Senator Ketron.  “The funding disclosure provision of the bill is intended to provide transparency in the use of public funds so that parents have information and can make informed decisions about where they want to send their children to school.”

The legislation does not prevent foreign-born refugees, green card holders or any other immigrant residing in the U.S. with work authorization from being employed by or volunteering in Tennessee charter schools.  The bill addresses a situation where a charter school would direct its recruitment overseas at workers who are neither present in the U.S. nor yet eligible to apply for a H1B visa.  Further, the limit for foreign worker recruitment is only applied at the discretion of the chartering authority, typically the local school district.

“The bill does not limit participation in charter schools by anyone, including parents, living in immigrant communities in Tennessee, seek to eliminate diversity in charter schools or obstruct any parent or anyone else with an international background from volunteering or working at charter schools,” added Ketron.  “In fact, Tennessee provides adult English Language Learner services to help non-English speaking adults living in Tennessee to develop the skills which will enable them to communicate in all aspects of community life including participation in their children’s schools.”

Drug Abuse legislation continues to highlight action in 2012 legislative session

Legislation to curtail illegal and prescription drug abuse in Tennessee continued to headline action on Capitol Hill this week as it remains a top issue for the 2012 session of the General Assembly.   Lawmakers have numerous bills traveling through the legislative process to address the growing problem of synthetic drugs and meth, as well as abuse of drugs prescribed legally. 

Prescription Drug Abuse — The Senate Finance Committee approved a proposal to curb prescription drug abuse by requiring doctors or their designees to check the state’s Controlled Substance Monitoring Database for patients’ prescription history before initially prescribing an opioid or benzodiazepine substance or at every six months thereafter for the same episode of treatment.   Senate Bill 2253, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senate State and Local Government Chairman Ken Yager (R-Harriman) and is included in Governor Bill Haslam’s legislative package.  The legislation requires pharmacies to collect a patient’s prescription information and report that information to the database within seven days.  Currently it must be reported within 40 days.  The bill also enhances penalties for doctor shopping from a Class A misdemeanor offense to a Class E Felony when it involves 250 or more pills.  The stiffer penalties allow law enforcement officials to go after dealers who distribute the drugs illegally.  The bill is sponsored by Senator Ken Yager (R-Harriman). 

Synthetic Drugs / Methcathinone — Senate Bill 2507, sponsored by Senator Jim Tracy (R-Shelbyville), was approved by the full Senate on Thursday. The bill adds chemical compounds considered to be derivatives of methcathinone to the Class A misdemeanor offense of production, manufacture, distribution, possession or sale of synthetic derivatives or analogues of methcathinone.  This drug is a Schedule I psychoactive stimulant which is highly addictive and illegal in the United States for clinical use.  The legislation removes the intent requirement from the offense of possession of synthetic derivatives or analogues of methcathinone.

Prescription Drug Abuse / Hospital Employees — The full Senate also approved Senate Bill 2407, sponsored by Senator Randy McNally (R-Oak Ridge), to authorize the Controlled Substance Database Committee to provide a hospital an employee’s prescribing information.  The information could be forwarded to that hospital’s Quality Improvement Committee if there is suspicion that the employee was writing prescriptions for his or her own personal use. 

Issues in Brief

Change in method to select state’s Attorney General — Legislation sponsored by Senate Judiciary Committee Chairman Mae Beavers (R-Mt. Juliet) that would allow Tennessee’s Governor to appoint the State Attorney General was approved by the Senate Finance Committee on Tuesday.  Senate Joint Resolution 693 would amend the state’s Constitution to allow the Governor to appoint the Attorney General for a six-year term subject to legislative confirmation.  Tennessee is the only state in the nation that allows the State Supreme Court to select the attorney general.  Other states either call for popular election or the Attorney General is selected by either the popularly elected Governor or the state legislature. 

Illegal Aliens / Risk of Flight — The Senate Finance Committee voted to approve Senate Bill 2604 that allows the court clerk to set bail for traffic violations at a higher amount than normally permitted for a defendant who is unlawfully present in the U.S. and is deemed a risk of flight.  The legislation is sponsored by Senate Judiciary Committee Chairman Mae Beavers (R-Mt. Juliet). 

Jaclyn’s Law / 911 Responders – Legislation received final Senate approval this week that makes it clear that emergency responders have immunity if they force entry into a home after someone calls 911 and then doesn’t answer the door.  Senate Bill 2480 is named Jaclyn’s Law, for a California woman who died after first responders failed to use forcible entry because of liability concerns.  The legislation was brought to lawmakers by the woman’s sister who is a Tennessee resident.  The bill seeks to clear up any gray area regarding the right of first responders to force entry after receiving a 911 call to render emergency medical assistance if no one answers the door, without fear of criminal or civil charges.  The bill is sponsored by Senator Jack Johnson (R-Franklin). 



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