Monthly Archives: January 2018

Metro’s Public Records Scandal: The Mayor’s Illicit Scheme to Hide Records of Her Administration’s Efforts to Close Nashville General Hospital

By Daniel A. Horwitz:

This morning’s front-page Tennessean story features a blockbuster scoop from Joey Garrison outlining Metro’s scheme to circumvent public records law by running hospital consulting services through Metro Legal Director Jon Cooper.  Garrison’s report details a questionable arrangement between Nashville Mayor Megan Barry’s Administration and “volunteer” hospital consultant Kevin Crumbo, an accountant who specializes in corporate restructuring.  According to Garrison, since 2016, Crumbo has provided “hundreds, if not thousands” of hours of “unpaid” consulting services to Metro in furtherance of the Mayor’s recently abandoned efforts to shutter inpatient care at Nashville General, the city’s longstanding safety-net hospital.

Beyond basic questions like what Crumbo—whose accounting firm has a business relationship with Metro—expected to receive in return for his thousands of hours in “free” consulting services, the whiff of scandal arises from the fact that:

“Details of Crumbo’s findings and recommendations about Nashville General remain unclear because his interactions with the city have been kept secret.  Despite requests from The Tennessean, Metro won’t release any correspondence Crumbo had with the city.”

The supposed justification for denying the Tennessean’s public records requests is clearly set forth in the article.  According to the Barry Administration, Crumbo “reports directly to the Metro law director.”  As a result, “city officials cite attorney-client privilege” as a basis for denying the paper access to Crumbo’s reports.  For reasons that are readily apparent from Garrison’s article alone, however, Metro’s privilege claim is a sham, and the city is legally obligated to turn over the records that they have thus far insisted upon keeping secret.

To begin, it should go without saying that the government cannot circumvent applicable public records law by running non-legal matters through its legal department and then claiming attorney-client privilege.  The Tennessee Supreme Court has expressly held that such a scheme would represent a gross “misuse of [the attorney-client privilege] exception in order to circumvent the scope” of Tennessee’s transparency statutes, and that “any attorney who participates, or allows himself to be used in a manner that would facilitate such a violation, would be in direct violation of the Code of Professional Responsibility and subject to appropriate disciplinary measures.”[1]

Whether the Barry Administration’s privilege claim holds water is subject to a fact-dependent inquiry.  As this author explained in a recent law review article, “[a]s a general matter, all governmental records in Tennessee are considered public records under the Tennessee Public Records Act unless the records are specifically exempt from disclosure by law.”[2]  Significantly, both the attorney-client privilege and the related work-product doctrine provide such exemptions.[3]

Notably, though, the Tennessee Court of Appeals has cautioned that “[t]he attorney-client privilege is not absolute, nor does it cover all communications between a client and his or her attorney.”[4]  Instead, the attorney-client privilege is limited to bona fide relationships between attorneys and their clients regarding actual legal matters.  To be protected by the attorney-client privilege, Tennessee law specifically requires that:

“(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”[5]

Based on Garrison’s report, Metro’s privilege claim does not—as Justice Kagan might put it—pass “the laugh test.”[6]  In this instance, there are several independent and glaringly obvious problems with the claim, which likely will not last through the week.

First, it is difficult to imagine how Metro Legal Director Jon Cooper could have been “acting as a lawyer” with respect to his receipt of Crumbo’s hospital consulting reports, or how the reports could even theoretically be construed as having been provided for the purpose of securing legal services.  We know this, because Garrison specifically quotes the Barry Administration as saying that Crumbo’s reports helped it “identify[ the] ‘financial and budgetary risks’ the hospital poses to the city.”

Rejecting a privilege claim in a similar case, Tennessee’s Court of Appeals held that “[u]nder our exercise of review, the correspondence that is the subject of this litigation does not contain any information of a confidential or secret nature.”[7]  “It cannot be said that as a general rule, [attorney-client privilege] applies to all documents written to an attorney or signed by an attorney,” the court noted.  “The Rule cannot have such a blanket application.”

Second, because the attorney-client privilege is (unsurprisingly) restricted to communications between attorneys and their clients, the privilege is waived when communications are disclosed to third parties.[8]  In this instance, we can also be quite certain that Crumbo’s consulting advice was not limited to Jon Cooper, because the Barry Administration has candidly acknowledged as much.  “Barry’s administration has credited Crumbo . . .  as key in helping Metro explore ways to improve the hospital’s financial stability,” Garrison’s story reads.  “[Crumbo’s] advice led Barry in 2016 to expand the hospital authority board from seven to 11 members,” it adds.  “[Representatives] from the hospital were called into a meeting in September by the mayor and Crumbo,” it explains further.

Plainly, then, Crumbo’s communications were not restricted to legal communications between him and the Metro Legal Director.  Instead, to the extent that the claim that Crumbo “report[ed] directly to the Metro law director” can even be believed, Crumbo’s reports appear to have been run through the legal department and then given directly to non-lawyer members of Megan Barry’s Administration—including to the Mayor herself.

It is likely, however, that Director Cooper actually intended to invoke the broader work-product doctrine as a basis for withholding the reports at issue, rather than the attorney-client privilege, which quite clearly does not apply.  “The [work-product] doctrine, which is not a privilege, permits an attorney ‘to assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.’”[9]

As a general matter, the work-product doctrine permits attorneys wide latitude to hire experts and assemble information in advance of potential litigation.  As the Court of Appeals has explained, “[t]he policy underlying the doctrine is that lawyers preparing for litigation should be permitted to assemble information, to separate the relevant facts from the irrelevant, and to use the relevant facts to plan and prepare their strategy without undue and needless interference.”[10]  “In order to qualify as work product,” however, “the party seeking protection must establish the following three elements: (1) that the material sought is tangible, (2) that the documents were prepared in anticipation of litigation or trial, and (3) that the documents were prepared by or for legal counsel.”[11]

Unfortunately for the Barry Administration, the work-product doctrine does not apply here, either.  For one thing, identifying “financial and budgetary risks” regarding a decidedly non-legal matter places Crumbo’s reports well outside the ambit of the doctrine, which is necessarily limited to documents “prepared in anticipation of litigation or trial.”  For another, the work-product doctrine is similarly subject to waiver, and acknowledging the existence of a consultant’s report and discussing its contents with third parties unmistakably waives its protection.  As the Court of Appeals explained in a similar case:

“By stating that this report existed and its findings supported the feasibility of the acquisition, the City has, in effect, selectively used the reports in a public relations offensive to convince the City Council and the general public that the acquisition was both economically feasible and beneficial. . . .  [A] party may not use a work product to publicly further its cause offensively as a sword, and then assert the benefit of privilege as a shield.   Accordingly, we hold that the City has waived the confidentiality of these documents.”[12]

Here, the Barry Administration has publicly disclosed that Crumbo’s reports “assisted Metro in identifying ‘financial and budgetary risks’ the hospital poses to the city.’”  In Garrison’s story, Metro Councilmember Tanaka Vercher—who chairs the Metro Council Budget and Finance Committee—also criticizes the contents of Crumbo’s publicly-withheld reports, stating that they “only looked at the ‘bottom-line numbers’ when a ‘holistic’ review is needed.”  Further, to support the Administration’s public relations efforts, Director Cooper has “characterized the criticism of Crumbo’s work as inaccurate.”  Despite disclosing their subject matter and defending their contents, however (which third parties appear to be aware of), Barry’s Administration nonetheless refuses to disclose Crumbo’s reports to the public—thereby using the privilege, as the Court of Appeals has characterized it, improperly as both a “sword” and “shield.”

In sum: the Barry Administration’s privilege claims are laughable.  The attorney-client privilege and work product doctrines cannot be used to shield non-legal government documents from disclosure under applicable public records law.  Further, even if they applied, their protections are waived when privileged communications are disclosed to third parties or to shape a media narrative.  Metro’s illicit scheme to skirt applicable public records law by having a hospital consultant report directly to the Metro Legal Director is, quite simply, a sham to avoid its obligations under the Tennessee Public Records Act.  Neither the press nor the public should stand for it.

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[1] Smith Cty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 335 (Tenn. 1984).

[2] Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following Tennessean v. Metro, 11 Tenn. J.L. & Pol’y 129, 131 (2016) (citing Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that section 10-7-505(d) of the Tennessee Code “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records”)).

[3] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *9 (Tenn. Ct. App. Apr. 27, 2007) (holding that the attorney-client privilege applies “with equal force to a government official who seeks legal advice in the performance of his duties,” and holding further that the work-product doctrine similarly exempts records from disclosure under the Tennessee Public Records Act).

[4] Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002).

[5] Armouth Int’l, Inc. v. Dollar Gen. Corp., No. 3:14-0567, 2015 WL 6696367, at *2 (M.D. Tenn. Nov. 2, 2015).

[6] Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015).

[7] Coats v. Smyrna/Rutherford Cty. Airport Auth., No. M2000-00234-COA-R3CV, 2001 WL 1589117, at *7 (Tenn. Ct. App. Dec. 13, 2001)

[8] Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992) (“the presence of a third party at the time of the communication or the client’s expectation that the substance of the communication is to be disclosed to others does not bring the privilege into play.”).  See also Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012).

[9] State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006)

[10] Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004)

[11] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *10 (Tenn. Ct. App. Apr. 27, 2007)

[12] Arnold v. City of Chattanooga, 19 S.W.3d 779, 788 (Tenn. Ct. App. 1999).

A Summary of Tennessee’s Expungement Law

By Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  It is not intended to be construed as legal advice.  If you are seeking to hire an attorney to expunge your record for you, you can click here instead.*

The most common legal question I receive has nothing to do with constitutional law, appellate litigation, or other staples of my standard law practice.  Instead, on an almost daily basis, somebody wants to know whether they—or their son, daughter, husband, wife, mother, father, brother, or sister—can get their criminal record expunged.

Usually, the reason for the inquiry is that someone is having trouble getting a job, renting an apartment, or is experiencing some other collateral consequence of their public criminal record.  It’s a huge problem in Nashville, because criminal records are unusually accessible via this public search tool.  After I filed this case back in 2015, the number of inquiries that I received about expungement eligibility was so large that I created a free FAQ on expungement law in an attempt to provide some much-needed public information on the issue.  Unsurprisingly, it hasn’t been enough.

Because the criminal justice system has metastasized to the point where it is the default tool that society uses to address even the most harmless wrongdoing, between 2000 and 2012, more than 128,000 people in Nashville alone—representing roughly a quarter of the city—acquired 350,000 separate criminal records for charges that were ultimately dismissed outright.  In a sensible world, the magnitude of that figure would be staggering.  As far as the American criminal justice system is concerned, though, it’s fairly standard.  Across the United States, approximately 70 million adults have a criminal record of some kind, meaning that roughly a third of our eligible workforce is bogged down by a prior interaction with law enforcement.

Fortunately, Tennessee is better than many other states in enabling people to expunge their criminal records and move on with their lives, especially when it comes to dismissed and non-violent offenses.  Recent changes to Tennessee’s expungement statute have also expanded the number of people who are able to take advantage of the many benefits that expungement offers.  Accordingly, this post is intended to be a current—but non-exhaustive—summary of the most common scenarios in which a person is eligible to have their criminal record expunged in Tennessee.  It is not, however, intended to be a substitute for case-specific legal advice.  If you are looking to hire a professional to evaluate your expungement eligibility or expunge your record for you, then you should contact a lawyer who provides the service.  The attorney who represented you after your arrest may handle it for you for free.  Other attorneys may quote you a small fortune to handle your expungement.  For my part, I charge $100 to conduct expungement eligibility evaluations in Nashville and between $100 and $350 per charge to prepare and file your paperwork, depending on the type of charge at issue.  As always, if you are able to do so, hiring an attorney is a better idea than attempting to practice law yourself.

With that disclaimer in mind, here are the four most common scenarios in which a person will be able to expunge their record in Tennessee—a formal process that has the legal effect of “restor[ing] the person to the position he or she occupied prior to the arrest or charge.”[1]

1.  Dismissed and Retired Charges:  Far and away the most common charges that are eligible to be expunged under Tennessee law are those that were either dismissed or retired.  Any other charge that did not result in a conviction—such as a nolle prosequi or a not guilty verdict—is eligible to be expunged as well.  Tennessee law also provides that such charges are eligible to be expunged without payment of an expungement fee.  If you were assessed court costs, however, then those costs must be paid or waived by a judge before the charge can be expunged.

2.  Diversions:  Tennessee law has various forms of diversion.  As a general rule, though, if you successfully completed a pretrial diversion program or a judicial diversion program, then you will be eligible to have your record expunged.  There is, however, a $450.00 fee to expunge charges that were resolved via a diversion program.

3.  Non-Violent Convictions:  Many non-violent convictions are eligible to be expunged under Tennessee law.  As long as you have no more than two non-violent convictions on your record (excluding traffic offenses, like driving on a suspended license), your non-violent conviction is probably eligible to be expunged five years after your sentence expired.

If you were convicted of a felony, then you may be eligible for expungement if your charge appears on this list.  Alternatively, if you were convicted of a misdemeanor, then you may be eligible for expungement if your charge does not appear on this list.  Notably, despite a lot of advertising from DUI lawyers intimating that DUI charges will stay on your record forever if you don’t hire them to acquit you, DUI charges that were pleaded down to the reduced charge of either reckless driving or reckless endangerment are eligible to be expunged.  There is also a mandatory $280.00 fee to expunge convictions in Tennessee, which will have to be paid in addition to any outstanding court costs before your charge can be expunged.

Where convictions are concerned, however, there are both exceptions and grey areas.  For example, a person who has three total convictions for simple possession of marijuana can sometimes get all three convictions expunged due to a drafting error in Tennessee’s expungement statute.  Conversely, people who are otherwise eligible to expunge a conviction may be denied an expungement if the District Attorney opposes it.  If you are wondering whether your situation falls within a potential exception, then you should contact an attorney to evaluate your eligibility for you.

4.  “Partial” Expungements:  In many cases, a person is charged with several offenses in the same indictment, but has one or more charges dismissed at the end of the case.  Under these circumstances, a person can have any charge in their indictment for which they were not convicted expunged from electronic databases.  This is known as a “partial” expungement, and the electronic version of it is new.

For most people, expungement is a valuable and important tool, because a person’s criminal record is no longer accessible to prospective employers, and “persons whose records have been expunged may properly decline to reveal or acknowledge the existence of the charge.”[2]  For some people, however, expungement may be harmful, or may require additional precautions like certification of a person’s expungement order.  Thus, there is no substitute for contacting a licensed attorney to discuss your own individual situation with you.  If you are seeking to hire an attorney to expunge your record for you, you are welcome to click here instead.

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[1] Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 231 (Tenn. Ct. App. 2007).

[2] Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn. Ct. App. 1994).

Sixth Circuit Upholds Vote On Amendment 1

In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution.  The amendment provided that:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race.  The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:

“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”

Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems.  Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history.  Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.”  The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.

The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect.  In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:

“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”

“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”

The Sixth Circuit’s decision in the case is available here.

Selected Case Documents:

Brief of the “Yes On 1” Campaign as Amicus Curiae

Sixth Circuit Opinion Reversing District Court

Selected Media Coverage:

-Yes on 1: Yes on 1 Files State Court Motion on Behalf of Disenfranchised Voters

-The Tennessean: Amendment 1 plaintiffs on shaky legal ground

-The Tennessean: Appeals court upholds vote count on Tennessee abortion measure Amendment 1

-The Tennessean: Fate of Tennessee abortion measure Amendment 1 now up to appeals court

-Pro Life News: Tennessee: Pro-Life Win as Judge Says State Counted Votes Correctly on Amendment 1

-News Channel 5: Vote Counting For Tennessee Abortion Measure Argued In Federal Court

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