Nine months after opening an investigation into whether or not Sumner County Schools employee Don Long violated a state statute that prohibits school district employees from working on political campaigns during work hours, Sumner County District Attorney Ray Whitley says he has closed the case and will not bring criminal charges against Long.
Whitley closed an investigation into Sumner GOP, a developer-funded political action committee (PAC) formed just before the May 2018 county primary election, in November. During that investigation it was revealed that Long, a former school board chairman who now works as a project manager for the school district, was soliciting donations for the PAC as well as emailing a printer design and copy work for mailers that targeted several conservative candidates.
Although Whitley said some of the campaign mailers appeared to violate a state election law requiring disclaimers to be “clear” and “conspicuous,” he did not bring charges against the PAC because he said he couldn’t determine who was responsible for the violation, a Class C misdemeanor, or if it was even intentional.
In December, a reporter asked Whitley if Long violated a state statute known as the “Little Hatch Act,” after it was discovered that one of the emails sent by Long to a printer from his personal email account was sent at 9:01 a.m. on April 5, a day Long was working for the school system. The state statute prohibits state employees from engaging in political activity during work hours.
Three days later, Chris Spencer, who ran for alderman in Hendersonville in the Nov. 6 city election, filed a formal complaint with Whitley, asking him to look into Long’s role in producing a negative mailer during his campaign.
In a letter dated Sept. 24, Whitley said he thoroughly investigated both complaints and could not recommend criminal prosecution.
“Thousands of pages of other workplace emails and texts from Mr. Long have been examined in the investigation,” wrote Whitley. “There were none with any political content except for the two emails listed above. Therefore, no other communications have been identified as possible violations.”
Whitley said that his investigation found that an email Long sent on Oct. 22 was sent while Long was on vacation.
Long considered an exempt employee
In order to prove that Long violated the Little Hatch Act by sending the April 5 email, it must be established that Long was engaged in political activity during those hours of the day when Long is required to be performing his duties, Whitley wrote.
He added that since Long is considered an exempt employee and not an hourly employee, it could not be determined whether or not Long was working during the time he sent the email.
“This flexibility means that, as with many exempt employees in other jobs, he can take his breaks during the day at times of his own choosing,” Whitley wrote. “Under the facts, there is no way to prove Mr. Long violated the Little Hatch Act when he sent an email at 9:01 a.m. on April 5 nor at 1:44 p.m. on Oct. 22.”
Kelly Murphy, Whitley’s criminal investigator, interviewed Long’s supervisor, Director of Schools Del Phillips on Jan. 7, according to an investigative summary report.
Phillips explained that Long is classified as an “exempt/salaried” employee, according to Murphy.
“There are no time records that show the exact hours worked. The records will not show lunch times, breaks, etc. Dr. Phillips gave an example of Mr. Long being subject to working after normal hours due to property related issues or emergencies and therefore his schedule would be adjusted the following day or during the work week accordingly,” according to the report.
“Regarding the email account Mr. Long used for this investigation, Dr. Phillips confirmed that it was a personal email account and that Dr. Phillips stated he has no control over the use of it. Dr. Phillips stated the school system’s I.T. personnel could only produce emails related to the school board issued email account.
“In general Dr. Phillips and I discussed the Little Hatch Act and a government employee engaging in politics during a scheduled work shift,” Murphy wrote in his report. “Dr. Phillips stated that there have been previous discussions with attorneys concerning the impossible task of having to monitor almost 5,000 employees especially concerning their own private email use.”
Whitley also said that Long didn’t violate any campaign laws by helping former alderman Matt Stamper design a mailer endorsing Jonathan Hayes who ran against Spencer.
“The investigation has found no substantiated proof of any criminal activity and should be closed,” wrote Whitley.
When asked if Long was interviewed for the investigation, Whitley said that he wasn’t, and that he couldn’t be compelled to talk with the D.A.’s office.
The investigative file contained several text and email messages from Long’s school-issued accounts.
Whitley said his office did not get access to Long’s personal email account or text messages.
“The only way we could do that would be with a search warrant,” he said.
“Prosecutors must tread lightly when it comes to inhibiting someone’s speech and political activity,” Whitley wrote in the conclusion to his findings. “Lastly, I must observe that this case is awash in political animosity which makes prosecution more difficult… If prosecution had been undertaken to cite Mr. Long with a minor, technical infraction, the courts would likely be concerned that the criminal complaint had been brought due to motivations for political revenge rather than a real and reasonable belief in a substantial violation of Tennessee law…
“The acrimony and contentiousness of recent elections in this county has resulted in the expenditure of much time and effort in investigating and processing numerous complaints filed with the office; time that perhaps could have been better spent on other matters,” Whitley continued.
“It is my hope that in future political campaigns every candidate and every candidate’s supporters will take the tie and be aware of the laws pertaining to elections and will observe them accordingly.”
The Hendersonville Standard emailed several questions to Long and his attorney, Tom Lee following the closure of the PAC investigation in December. The questions included whether or not Long sought immunity in that case, whether or not he was working for the PAC on school system time and whether or not he sees a conflict of interest between working for the school system and working for political candidates who vote to fund the school system’s budget and construction projects.
"After a full and fair review, the Sumner County District Attorney determined, in recognition of Mr. Long’s constitutionally protected rights, there was nothing further to pursue and the matter should be closed,” wrote Lee. “That is how we regard it, as well—closed."
Lee added that he and his client would not comment further on the matter.