Open warfare over Ethics Commission

Androphy takes a shot at one of his bosses on the Ethics Commission while lobbyists and legislators try to rein in controversy

Email | Print By Ken Whitehouse

To say that the relationship Ethics Commission Director Bruce Androphy and his general counsel David Himmelreich have with legislators and lobbyists is tense is gross understatement. It is now evolving into open warfare.

As reported in NashvillePost.com yesterday, the Tennessee Lobbyist Association has sent an e-mail asking all of its members to refrain from seeking advisory opinions from the staff of the ethics commission because TLA leaders were becoming increasingly alarmed that staff was "drifting away from interpreting the law and towards making policy."

Last night, legislators seem to have been in agreement and passed an amendment out of the State and Local Committee of the House of Representatives that would halt informal advisory opinions issued by staff. Instead, it would limit responses to be issued only in writing and only from either the commission's executive director or general counsel. Additionally, the amendment called for formal advisory opinions to be issued only by the appointed ethics commissioners.

The amendment was made verbally last night by Rep. Curry Todd (R-Memphis) and passed on a voice vote. Hard copies have been unavailable so far today.

This morning, in response to last night's amendment, Androphy sent an e-mail to members of the Ethics Commission telling them that he also has been unable to get a copy of the amendment, but that they might want to speak with Ethics Commissioner Dianne Neal.

Androphy noted for Neal's colleagues that she was in attendance at the committee hearing, but then took a shot at her by continuing, "however, as Commissioner Neal does not acknowledge my presence or speak to me in public, I am not privy to whatever information she might possess."

Neal, who previously served in the administration of former Gov. Ned McWherter and as general counsel for the Tennessee Regulatory Authority, was contacted by NashvillePost.com for comment on Androphy's e-mail, but "respectfully declined." (Many in Nashville also know her husband James F. Neal of the law firm of Neal & Harwell.)

Meanwhile, in response to yesterday's call to halt the flow of advisory opinions coming from the commission, lobbyist Robert Gowan attempted to withdraw his request for an opinion and was informed by ethics commission staff that they didn't know if they could do that and therefore would proceed until the next commission meeting.

Gowan, a former senior advisor to Gov. Phil Bredesen, had sought an advisory opinion months ago and has twice seen the commission delay making a formal decision. But clearly as evidenced in a letter he sent to the commission last week, he has become frustrated with the entire matter.

In his letter, Gowan told Himmelreich, "Since you have taken liberties to rephrase my original question in the worst possible light and in a way that is most advantageous to the reasoning in your opinion, please allow me to rephrase my original question in a way that hopefully clarifies and simplifies my original request."

Today, Gowan attempted to simply end the matter and sent the following e-mail to Himmelreich:

David -

With this email, I am respectfully withdrawing my request for an advisory opinion from the Ethics Commission.

During my research of the issues you have raised in your draft opinions, it has become apparent that the Commission has given ample direction in its previously adopted advisory opinions – and that there is ample clarity in the statute – in regard to the question in my request. The application of the Commission's previous opinions and the statute in regard to the question in my request is discussed in detail in my written response to your latest draft opinion, which I delivered to the Commission during last week's meeting.

I will continue to rely on the Commission's previous advisory opinions to conform my activities to the requirements of these opinions and the statute.

Thank you to the staff and the Commission for the considerable time you have spent on my request.

Sincerely,

Robert Gowan

Here is Himmelreich's response:

Thank you for informing me of your decision to withdraw the request. It was certainly considerate of you to provide this information in advance of the next Commission meeting.

I am unable to inform you of the effect of your decision. Whether withdrawal of your request necessarily forecloses issuance of an opinion to you, or to the regulated community in general, is a question of first impression for the Commission. Compare TCA 3-6-107(3) with TCA 3-6-308(a)(4). I cannot speak for the Commission, which will have to decide this question for itself. I will bring the issue to the Commission's attention and intend to place it on the agenda for the next public meeting on May 27.

If you have views on this question, please feel free to submit them in writing as far in advance of the meeting as possible, but in any event before May 12. I anticipate a revised draft of the proposed opinion will be going out to the Commissioners with the May meeting book on or about May 15.

It may not be possible to consider or respond to items received after that date.

David

It appears that the next meeting of the ethics commission will certainly be eventful.