Three members of the Tennessee Ethics Commission voted against penalizing veteran political operative Tom Ingram, a lobbyist colleague and a client Wednesday after their lawyers agreed during a hearing to file the paperwork for 2011 registration immediately.
But that was one vote shy of the four votes needed for any action by the commission, which is authorized six members but now has one seat vacant. The vacancy is on a seat to be filled through appointment by Gov. Bill Haslam, who retains Ingram as his top political advisor.
One of the commissioners present, Nashville lawyer John Gregory Hardeman, recused himself from voting, saying he personally knows both Ingram and Marcille Durham, who works with Ingram and also faced a possible civil penalty for failing to register.
Another commissioner, Keith Norman of Memphis, voted against dismissal, saying he was concerned about setting a bad precedent and at least wanted to get more specific information than was presented at the hearing. Norman said he might reconsider and vote for dismissal later.
The upshot was that further action on the case was postponed until the Ethics Commission’s September meeting. No date for that meeting has been set.
At the hearing, attorney Dick Lodge, who is also a lobbyist and a former chairman of the Tennessee Democratic party, argued that Durham made an honest mistake in failing to file lobbyist registrations for herself and Ingram for work they did in 2012 and 2013 on behalf of Hillsborough, which is negotiating for the right to mine coal on the state-owned Catoosa Wildlife Management Area near Crossville.
As soon as she learned of the “inadvertent mistake,” said Lodge, Durham promptly filed registrations for those two years. And under commission rules, he contended, a lobbyist who “self-reports” an accidental violation, then corrects the error is not to be penalized.
The commission has followed that rule in other cases, he said, and the only difference in the matter at hand was “the unusual media attention this has received.”
But Lodge said the Ingram Group and its attorneys had decided Ingram and Durham, who did not attend the hearing, were not legally required to register as lobbyist for 2011. In that year, he said, they were simply consulting – not trying to influence officials – as required to trigger registration requirements.
But he said the consulting included contacting state officials to set up meetings with Hillsborough executives.
Commission Chairman James Stranch said that “using one’s influence to set up the meetings” seemed “close (to lobbying) if not there.” He then proposed that Ingram and Durham registered for 2011 as well – and Hillsborough registered as the employer of a lobbyist – he would be “comfortable”with dismissing the charges without penalty.
The goal of the state law and the commission, Stranch said, is to promote transparency in informing the public about who lobbyist are and who is hiring them. That had been accomplished with filing of the 2012 and 2013 forms, he said, but a question remains about the 2011 activity.
After discussion with Lodge, the commissioners agreed to allow attorneys for The Ingram Group and executives of Hillsborough Resources LLC to go into a separate room while the commissioners dealt with other matters. In the separate room, they filled out registration forms for 2011 and returned about a half an hour later.
The case was then brought back up, leading to the inconclusive vote with Stranch joined by Commissioners George P. Jaynes, a former Washington County mayor, and Tammy White of Knoxville in voting to dismiss. The the vote was proceeded by some further discussion.
Norman said he was concerned that the Ingram Group’s “self-reporting” came only after a Nashville TV reporter contacted Durham and asked why she and Ingram were not registered.
“It appears the self-reporting is closely aligned with the time in which media began to report it,” Norman said. “It’s the trigger that I’m concerned with in this particular instance.
“I think what the sequence of events is that we got an inquiry from the press that, ‘Hey, you’re not registered.” And we said, ‘We are.’ And then we went to check on the computer and lo and behold, we weren’t,” said Lodge. “That was the incident that caused us to do the research and then immediately self-reported.”
Lodge said that, legally speaking, the trigger for self-reporting does not matter – so long as the violator reports the problem to the commission and corrects it, the panel is obliged to impose no penaltiy under relevant rules.
The commission’s own attorney was absent because of illness on Wednesday. Norman said he would like to hear the commission lawyer’s view on the question and more information, before being willing to vote to dismiss.
Under state law, the commission has six members – three Democrats and three Republicans – and a four-member majority is required for any vote. The vacancy in question is a seat reserved for a Democrat to be appointed by Republican Haslam from a list of nominees submitted by the state Democratic party.
The vacancy was created when former Commissioner Pamela Martin resigned March 13.