The JIPSD agenda for their next meeting on Monday, January 24 at 7:00 PM is on the website.
Included is:
7. Search Process for New Counsel
I believe that there are currently three Commissioners who support a search for a new General Counsel. I believe there are four who favor keeping Trent Kernodle as General Counsel. However, that includes his wife, Kay Kernodle, and she must recuse herself from any participation in this matter.
I have heard that Trent Kernodle's supporters plan to show up to the meeting Monday in force. What will happen?
In my opinion, Trent Kernodle resigned and is no longer the General Counsel for the JIPSD. Given the JIPSD's commitment to equal opportunity hiring, I believe it is obligated to an open search process. Since the JIPSD rules give the Commissioners authority to select the General Counsel, the Commissioners should see the resumes and participate in interviews before they vote on the new General Counsel (The Town has done this twice and both times ended up keeping Bo Wilson as Town Attorney.)
I believe that Trent Kernodle should be able to apply for what is now an open position. If he does apply for the position, then his wife, Commissioner Kay Kernodle can have no participation in the process of selecting the new General Counsel. That means no review of applications, no participation in interviews, and no discussions of the matter with other Commissioners.
At the last meeting, Commissioner Kay Kernodle properly recused herself from the vote regarding the removal of her husband as General Counsel. However, she participated in the discussion, which was an ethical violation. Really, she should leave the room during any discussions about this matter.
Interestingly, she claimed that the Ethics Commission said that she could not vote on raising her husband's salary. She mentioned that he does not receive a salary from the JIPSD, so that could never be an issue.
In fact, I think that the Ethics Commission approach to the question only applies if the JIPSD hired a general counsel as a full-time employee. If, as is the case, the JIPSD General Counsel bills the JIPSD for the time spent on JIPSD business and Trent Kernodle were to become General Counsel again, then Commissioner Kay Kernodle would be obligated to recuse herself from voting on any decision that would require attention from the General Counsel. Otherwise, her votes would involve an increase the amount the General Counsel bills the JIPSD.
Some of the JIPSD's votes obviously involve the General Counsel. For example, the Commissioners last year voted to have Trent Kernodle sue Charleston County so that the JIPSD budget would no longer be subject to County Council approval. If Kay Kernodle was a Commissioner at that time, she would have needed to recuse herself from voting, and further, could not have discussed the matter with other Commissioners at all.
More troubling is the fact that any vote by the Commissioners might lead to legal action against the JIPSD. Any such legal action would result in more billable hours for Commissioner Kay Kernodle's spouse. In my view, routine actions where the possible need for an attorney is remote should not be considered a conflict of interest. Unfortunately, there is no clear line, making the determination of whether Commissioner Kernodle should recuse herself complicated and something that would need to be considered with nearly every vote that faces the Commission.
The Ethics Commission seemed to be considering a much larger organization--such as the Charleston County--that hires a full time attorney. As County Council makes decisions, including actions that clearly involve the time of their attorney, the attorney would make no more money. The attorney, as full-time employee, would just continue to collect a salary. If the attorney's spouse were on Council, then as long as the spouse did not vote when the attorney was hired or fired, or when changes in the annual salary were determined, then voting on the use of the attorney's time would not be a problem. All the attorney's professional time would "belong" to the County.
The Ethics Commission is especially focused on Commissioner Kay Kernodle voting to increase the income of her family by impacting the amount her husband would earn. I think the problem is more in the other direction. To what degree would Trent Kernodle's advice to the Commission be colored by concern with the policy views and political fortunes of his spouse?
In 2012, Trent Kernodle applied to be Town Attorney. I told him that I would not support him as Town Attorney even before his son, Sam Kernodle, was elected to Town Council. However, after Sam Kernodle was on Council, I was even more opposed to having Trent Kernodle serve as Town Attorney. My concern was whether his advice would be colored by an interest in the political fortunes of his son. I thought that would be a conflict of interest, but I don't think that is what would worry the Ethics Commission.
Chairman Hollingsworth said that the State Ethics Commission wrote that retaining Trent Kernodle as JIPSD Attorney is "not illegal." In other words, if we can get away with it, then we should do it. However, I don't think that "not illegal" is the proper standard. Trent Kernodle has provided legal advice to the JIPSD Commissioners on matters relating to the Town despite having run for Mayor of the Town and lost and further having applied to be Town Attorney and rejected. Could anyone in that situation be expected to provide balanced and fair legal advice to the JIPSD Commissioners regarding legal issues relating to the Town? Trent Kernodle told me that if there were some legal conflict between the Town and the JIPSD he would have to recuse himself because of a conflict on interest. I have been puzzled that he has continued to provide legal advice to the JIPSD Commissioners on Town related matters.
In my opinion, the JIPSD Commissioners should choose as General Counsel someone who can help them with routine and simple matters, and also who has enough distance from James Island politics to give an objective perspective on any legal issues regarding the Town and the JIPSD.
If some major legal issue arises that the new General Counsel believes requires Trent Kernodle's special expertise, then he could be retained for that specific task. If Kay Kernodle was still a Commissioner at that time, then she would have to recuse herself about any decision to retain her husband, and also, about that entire case. Votes and discussions about whether the JIPSD should settle, go to trial, or appeal would all impact the total legal expense and so her family income. While this would somewhat reduce her effectiveness as a Commissioner, it is not nearly as problematic as making him General Counsel again.
I understand that this is a decision for the JIPSD Commissioners, but they all work for the voters of the JIPSD District, and that includes every voter in the Town of James Island.
What did the newly-elected Commissioners say in the campaign just a few months ago?
Please let them know what you think:
Chairman Donald Hollingsworth donaldh53@hotmail.com
Commissioner Inez Brown Crouch ibcrouch2006@yahoo.com
Commissioner Carter McMillian cartermac@aol.com
Commissioner Eugene Platt poet1326@hotmail.com
Commissioner June Waring waring1040@knology.net
Commissioner Bill Wilder wild7930@bellsouth.net
(Commissioner Kay Kernodle must recuse herself from this matter unless it is made clear that her husband will not serve as General Counsel.)
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