By Jeff Keeling
A Washington County government committee wants to clarify whether the county zoning administrator is an employee or an official. The answer could impact the county’s finances.
Zoning Administrator Mike Rutherford isn’t elected, or regularly appointed by the county commission, as all other local county officials are. Based on interpretation of 25-year-old private legislative act, he has functioned and been treated as a county official for more than two decades.
Since he began in the position in 1989, Rutherford – who lost a bid to unseat Eldridge as mayor earlier this year – has taken time off at his own discretion, but has not accrued any vacation or sick time. This practice is something the county’s Zoning Administrator’s Oversight Committee wants to clarify. The group discussed Rutherford’s position, and some of the vagueness surrounding it and rooted in a private act passed in 1989, at its Oct. 7 meeting.
The committee voted to ask interim County Attorney Tom Seeley to wade through the seemingly conflicting opinions surrounding the position here in Washington County before discussing his findings with them next month.
“I need direction,” County Mayor Dan Eldridge, who put the discussion on the meeting agenda, told committee members Tom Krieger, David Tomita, Skip Oldham and Joe Wise. “There has been considerable confusion within my office, payroll, and the actions of the county commission over the last couple of years,” Eldridge said.
The primary reason he wants clarity, Eldridge told committee members, relates to whether Rutherford might ever qualify for leave time – vacation, sick time or paid time off. Most county zoning administrators in Tennessee are treated as employees.
“I think it’s important that this be answered,” Eldridge said. “Mike’s understanding is that he is an official, and as such he does not accrue paid time off.” Adding that at some point Rutherford will retire, Eldridge said “At that point, I don’t want there to be any question about accrued paid time off.”
Rutherford’s status stems from a private act passed by the state legislature in 1989 that, apparently, left the zoning administrator position considered a county official. That act immediately raised questions, as evidenced by a June 1989 letter from then-county attorney Mark Hicks to then-bookkeeper Bobbye Webb regarding payroll and whether Rutherford should submit time sheets.
That letter was among information Eldridge uncovered as he himself sought clarity about Rutherford’s employment arrangement after Eldridge took office in 2010. In it, Hicks stated that the private act, in his opinion, deemed the zoning administrator a county official and that the act was “clearly intended to create a county office accountable only to the County Commission.”
Rutherford doesn’t, however, meet two primary tests applying to county officials, according to emails sent to Eldridge in 2012 from County Technical Advisory Services (CTAS) officials. He doesn’t have a set term of office, and he doesn’t take an oath. Rutherford also doesn’t come up for reappointment every four years like the other non-elected county official, Highway Superintendent Johnny Deakins.
Rutherford himself said he has always been told he was an official, and that while he didn’t accrue benefits, “if I have been sick, I have been able to take off and come back and have a job.”
The discussion meandered around Rutherford’s understood status, quarter-century old private acts and the relative wisdom of having an unelected administrator report to a 25-member body (committee members seemed to agree it didn’t make a lot of sense).
Ultimately, the group supported Wise’s suggestion that it would be best to get the attorney involved.
“The issue I see is, it’s very difficult – because there are all these exceptions and carveouts – to create an environment where Mr. Rutherford can be treated fairly and know he’s being treated fairly,” Wise said. “I think that’s also a potential for liability to the county at some point if all of a sudden the zoning administrator says, ‘hey, I’m due all this back (sick or vacation time), check out your employee handbook,’ and now you’ve got dueling documents.”
Wise said there was reason to “clean this up” out of fairness to Rutherford, the commission and taxpayers.
“What should be expected of us, what should be expected of him, and (let’s) be real clear about what those rules are going to be.”
The committee tabled the issue and will meet with Seeley, including potentially in executive session, at its next meeting.