Sumner County District Attorney General Will Not Prosecute Alleged Violations of State Election Laws Involving a Political Action Committee and a School Employee

Sumner County District Attorney General Ray Whitley has said he will not press charges in an instance of alleged campaign law violations involving mailers sent during the May 2018 primaries that were funded by a political action committee and arranged by a Sumner County school employee, even though he says state laws appear to have been violated, according to a report by The Gallatin News.

The May 1, 2018, county primaries in Sumner County came with a number of unusual situations including the invocation of the “Anti-Skullduggery Act of 1991,” intimidation tactics against first-time conservative Republicans candidates and challenges to candidates’ bona fide status as a Republican.

Also associated with the May primaries, there were several mail pieces opposing specific candidates that, confusingly, stated “Paid for by Sumner GOP,” which of course, is the nickname for the Republican Party of Sumner County.

While Sumner GOP is indicated as the “short name” of political action committee (PAC) Sumner County Government of the People on its campaign financial disclosure statements, the Sumner County Republican Party didn’t appreciate the intentional deception.

A Republican Party of Sumner County Facebook page post of April 27 admonished the PAC, “Once again, we feel it is necessary to remind visitors to our page that we are not associated in any way with the Sumner GOP P.A.C. (political action committee). We feel this group as chosen to be intentionally deceptive and use a name that most people associate with this Republican Party. Please know that we WILL NOT endorse or attack any Republican candidate in a Republican primary, and we would never endeavor to do so.”

Tennessee law 2-19-120 regulating political communications, advertising and solicitations requires that communication in opposition to a candidate shall clearly state in a “conspicuous manner” to give “adequate notice of the identity of persons who paid for” the communication and that “the communication is not authorized by any candidate or candidate’s committee.”  This information is known as a disclaimer.

In addition to the deceptive name, the name of the PAC was not clearly legible on the mailers and the name of the treasurer was omitted.

Whitley told The Gallatin News about the disclaimer, “The law says it has to be obviously visible to the reader which it wasn’t.”

A violation of the law is a Class C misdemeanor.

As reported by the Hendersonville Standard in May, the issue was brought to the attention of the District Attorney General who said he was “looking into the whole situation.”

The Sumner GOP PAC’s funding of $22,000 came in March from four local developers: $10,000 from Stratford Park; $2,000 from Robert Goodall, Goodall Builders; as well as $5,000 from David Luckey and $5,000 from Cal Gentry, both with Southeastern Building. Stratford Park is the name of one of the subdivision of TNHomesites, the developer of the highly contested Westbrook and Forest Park subdivisions.

According to the PAC’s disclosure statement, there was an expenditure on April 24 with Fox Printing located in Hermitage, Tennessee in the amount of $8,193.85 for printing and postage.

The PAC sent mailers against several candidates, including Jim Vaughn and John Isbell who challenged incumbent County Executive Anthony Holt; District 6 County Commission candidate Luke Tinsley; and District 11 County Commission candidate Jeremy Mansfield, who was also the target of intimidation tactics.

The story gets more complex as The Gallatin News review of the investigative files revealed, after the case was closed in November.

A central figure in the investigation turned out to be Sumner County Schools employee Don Long.

Long was a two-term Sumner County School Board member who, while serving as the Chairman, lead the effort to recruit and hire current School Director Del Phillips from the Columbus Municipal School District in Mississippi.  Long was defeated in the August 2014 election.

In 2015, under the direction of Phillips, the Sumner County School system added a $81,600 line item to the 2015-2016 Budget and created a new position of Senior Project Manager to oversee the $71 million in school renovation projects, relieving Phillips of that task.

Long started in the newly-created school system position on Monday, October 26, 2015, upon leaving the job of Hendersonville Mayoral Assistant and Economic Community Development (ECD) Director on Friday, October 23, 2015, a position he held for 11 years simultaneous, in part, to his school board post.

For months before his departure from the Mayoral Assistant/ECD Director position, Long had been coming under fire from local citizens critical of his questionable spending on city credit cards and use of time while on the City of Hendersonville payroll.

It is not known who else was considered for the school system’s new Senior Project Manager position or Long’s specific skillset or background that made him the most qualified candidate.

In the time since Long became the school system Senior Project Manager, an additional half Project Manager has been added to the departmental budget by way of a retired employee.

Now that the $71 million in school renovation projects are complete, it is unclear as to the job function and role of the 1.5 project management employees.

Neither played a visible role in the project status updates to the County Commission’s Committee and full board meetings or the multiple presentations related to the $103 million borrowing request for the infrastructure and construction of two of the three-school complex going on the 265-acre Upper Station Camp land.  All of that was handled by School Director Phillips.

However, according to the investigative files, Long was in contact with the contributors to the Sumner GOP PAC as well as the printers of the mailers under investigation by the district attorney’s office. And, at least one email sent by Long from a Gmail account to a printing vendor regarding a political mailer appeared to be during working hours.

Sumner County School Board Policy GCRF, “Non-School Activities of Support Personnel,” states, in part, that support personnel shall not engage in any political promotion or solicitation during school hours and that the use of school property for political purposes will not be condoned. Policy GF asserts that email, internet access and network resources are provided for authorized employees to perform school-related tasks and communicate with others.

The next regularly scheduled meeting and opportunity for the Sumner County School Board to discuss whether any violations of the policies occurred is January 8, 2019.

There is also a question of whether the federal Hatch Act was violated.

According to the University of Tennessee’s County Technical Assistance Service, the federal Hatch Act restricts the political activity of local government employees who perform duties in connection with an activity financed in whole or in part by federal funds, even if the person’s salary does not include any federal funds. The U.S. Office of Special Counsel has exclusive jurisdiction to investigate and prosecute complaints alleging a violation of the Hatch Act.

On the local level, at one point, District Attorney Whitley told the investigator that he had received a letter from Long’s attorney, Tom Lee, and to “hold off on Don Long for the time being,” according to The Gallatin News report. Whitley, however, would not disclose the letter, telling the reporter that the correspondence between the two attorneys is not public record.

“Whitley did say that Lee stated in the letter that he was representing Long and that he did not want Long to be interviewed unless Lee was present and unless he would give [Long] immunity,” The Gallatin News report went on to say.

The granting of immunity is at the sole discretion of the prosecution, which, in Tennessee, is the attorney general.

According to legal-dictionary.com regarding the definition of immunity, “co-criminals are often offered immunity from prosecution to testify against their fellows.” Since Long’s attorney requested immunity from the attorney general, and the communication is deemed confidential, it is unclear as to what Long has to offer in terms of information or evidence that could resolve the case.

However, District Attorney Whitley told The Gallatin News “he ended the investigation because, while the law appeared to have been violated, he couldn’t determine who was responsible for the violation or if it was even intentional because those associated with the PAC ‘weren’t talking.’”

Meanwhile, a Sumner GOP financial disclosure report showed that the PAC paid the law firm of Frost Brown and Todd $2,500 for “legal services.”  Long’s attorney, Thomas Lee, is the member-in-charge of the Frost Brown and Todd law firm’s Nashville office.

According to the law firm’s website, Lee’s practice areas include Government Relations and Lobbying.  A link under that heading goes to Frost Brown Todd’s lobbying subsidiary, Civic Point, where former Sumner County state representative for District 45, Debra Maggart, is a Senior Vice President.

The $2,500 expenditure for legal services was made after the May 1 primaries.  There were no other campaign-related expenses by the Sumner GOP PAC through the final November pre-general report dated October 30, 2018.

Indicating how unusual Sumner GOP PAC’s legal services expense is, a review of more than 60 individual PAC financial disclosure reports for the 2018 Election Cycle appearing on the Sumner County Election Commission website revealed that no other PAC reported an expenditure related to legal services.

Even at the state level, a look at the 6,587 PAC expenditures filed with Tennessee Registry of Election Finance for the 2018 report year revealed that just seven were related to legal services. The total spent for those seven legal services expenditures was $6,166.34 against PAC expenditure grand total of $45.5 million, or a relatively miniscule 0.01 percent.

By comparison, the Sumner GOP PAC had total expenditures of $11,498.67, of which $2,500 was for legal services. At 22 percent of the Sumner GOP PAC expenditures, the legal services line item is an extraordinary amount.

The PAC’s disclosure report does not indicate what specific legal services were provided or for whom.

When newly-elected County Commissioner and target of two Sumner County GOP PAC mailers, Jeremy Mansfield, read the Main Street Media report last week indicating no charges would be filed relative to the mailers in violation of state law, he called District Attorney General Ray Whitley to inquire what mailers were used for comparison against the Sumner GOP PAC mailers as to the standard of “clear” and “conspicuous.”

Whitley’s initial response, Mansfield told The Tennessee Star, was that he refused to share that information with Mansfield or the public. When Mansfield later learned that the information is indeed a matter of public record, he called Whitley back to tell him that.  Only upon Mansfield’s second push did Whitley agree to work through email to set up a time to review the documents.  As of this writing, the scheduling of the appointment between Mansfield and Whitley is in process.

The office of district attorney general, along with seven other court officials in Sumner County, is an elected position, the current eight-year term of which expires in 2022.