vibinc

All the talk and media coverage surrounding what the Mayor will or won’t do, and why he’s doing it is designed to sell papers more than inform. This thing has turned into something that more resembles a TMZ report than anything else, which is unfortunate because there is a real substantive story here, if only the media would allow it to emerge.

Since we first learned of the Mayor’s retirement/resignation I’ve written about 4 posts. Almost all of these have dealt with process, or procedural flaws in one argument or another.

Surely the members in the majority understand that their decision to declare the office of Mayor vacant as of July 30th based on a verbal commitment made to the media is a shaky legal proposition at best. Surely the members in the majority knew that as soon as the minutes were approved the Mayor would make a move to challenge their authority, and more importantly, their shaky legal position. It was evident that this would happen from the beginning, and regardless of whether members in the majority of the Council “believe” the Mayor will retire/resign or not, they have been told, over and over again by legal council that they “can” do this, but that the consequences are unknown.

We can talk about a lot of supposed “reasons” the Mayor is doing what he’s doing. Lord knows I’ve played armchair psychologist for this thing for several weeks. But I don’t really think that’s necessary. You can call the Mayor’s methods what you want, I’ll go with unconventional, but in the face of a new “process” for Mayoral succession that was voted in last November, there is no legal “precedent” to fill the holes in the Charter, or support the position of the City Council. Herenton, as Mayor of the city, is duty bound to make sure executive authority is not usurped by the City Council. The Mayor has to make sure what’s happening now doesn’t become a legal precedent that will haunt future Mayors.

For those of you non-lawyerly types out there (and some of you who are lawyers but didn’t see this coming)

Precedent: noun |ˈpresid(ə)nt| – a previous case or legal decision that may be or ( binding precedent) must be followed in subsequent similar cases :

The “precedent” that the Mayor must fight is that a vacancy can be declared by the Council without the benefit of a formal and valid resignation/retirement letter.

I would suggest that the opposing parties (the Mayor and the majority of the Council) are at an impasse. The Mayor has publicly announced his intention to retire, but has not formally informed the Council (he rescinded all resignation/retirement letters before they were approved making them null and void), nor has that formal announcement been approved by the Council (because they were rescinded). What the Council approved is the legal equivalent of hearsay.

Perhaps the Mayor has communicated individually to Council members his intention to retire on date certain X, but until that communication is made directly, in writing to the body, and not rescinded before the body can act, the council is building a case on a shakier foundation than the Pyramid.

So, by voting to declare the office vacant, with little guidance from the charter on what constitutes vacancy, or the process for declaring such a vacancy, the Council has started down the path of creating a legal precedent that, if unchallenged, could weaken the office of Mayor for decades.

We can argue whether a weaker Mayor is a good thing or not, that’s not the point. The charter establishes the office of Mayor, just like it does the City Council, assigning duties and responsibilities to both. Because Mayoral resignations/retirements happen so infrequently, and any past precedent in the wake of the Charter Amendments are tenuous at best, the entire process is untested and past precedents are questionable. Further, there is NO precedent ANYWHERE that I’m aware of, that allows the City Council to vacate the Mayor’s office without notice or benefit of a document expressing executive intent to vacate (the only exception here would be death). If the City Council’s majority position stands, the office of Mayor could be vacated based on what amounts to rumor and innuendo.

Folks, this isn’t the Italian Parliament! We don’t just dissolve the government at the drop of a hat because we’re bored. There has to be just cause backed up by documentation. At this point I would submit that the Council has neither.

In case it’s not clear, I find myself siding with the minority of the Council on this question, though not for the reasons that many in the minority have arrived at their position. Like LWC I believe that the Collins resolution, which would have held the approval of the minutes on the Strickland resolution to declare a vacancy until 5pm on July 30th, would have, at least, given the Mayor the opportunity to leave office in a manner consistent with his position and prerogative.

Once the Mayor was officially off City payroll, as Atty. Wade said at the last City Council meeting, there would be no question as to whether he was still Mayor or not, the Council could act in a way that wouldn’t potentially establish any precedent that might be harmful in the long-term, or be up to a legal challenge in the future. Further, had the Collins resolution passed, the approval of the minutes on July 30th, despite the likely absence of Councilman Hedgepeth (who said he could not attend) may have been unanimous, uniting the Council and perhaps healing some fissures that have arisen through this process. Apparently, the majority wasn’t willing to take that chance.

So, here we are. The Council has approved the minutes of the Strickland resolution and in doing so, declared a vacancy, potentially establishing a precedent in city process that is well outside of the intent of the Charter. At this point, I want this question to go to court so it can be cleared up and settled in a rational way, rather than what’s going on right now. So far, all we’ve seen are opinions (which are like a certain body part that everyone has), I think it may be time for a decision, and that can ONLY come from a court. It’s unfortunate that a lot of money will be spent on this, but it is what it is. There’s no turning back now.

At the end of the day we have to look to the former members of the Charter Commission, two of whom are current City Council members, and ask why they removed provisions from the old Charter that defined resignation/retirement and death as a vacancy, but did not maintain these, or further define a process to follow. Hindsight is 20/20, but these individuals were tasked with foresight. In that task, they seem to have failed, and the city will suffer the consequences of that failure.

Today the Memphis City Council will vote to approve the minutes of the meeting from earlier in the month. This will officially declare a vacancy in the office of Mayor, if the minutes are approved, without an official letter of resignation. This legally tenuous footing is possibly made more tenuous by the way the charter ignores “resignation” as an official act vacating the Mayor’s office.

Section 38 of the Charter defines a Mayoral vacancy.

Sec. 38. Acts vacating mayor’s office. In the event the mayor, after his election, shall become interested in any contract with the city, or accept any office or agency of the United States, or of the State of Tennessee, or of the County of Shelby, or of quasi-public corporation, his office shall be thereby vacated. (Acts 1909, ch. 298, § 18; Priv. Acts 1937, ch. 122, § 4; Priv. Acts 1939, ch. 173, § 4)

I have stated, on several occasions that I am not a lawyer. However, do you notice the glaring omission in this text? I’ll make it easy for you, the word resignation or retirement. Neither of these are listed as “acts vacating the mayor’s office”.

Death isn’t mentioned either, though I doubt anyone would argue that death doesn’t constitute a vacancy. Still it’s interesting.

What about Section 27? I mean, I know that’s what most people will point to as a refutation, and I would generally agree, however, section 27 says NOTHING about the office of Mayor. Section 27 resides in Article 5, which establishes the City Council.

Sec. 27. Vacancy in office generally. Removal of residence by a council member from the City of Memphis shall constitute a vacancy on the Council, but removal from one council district to another shall not constitute such vacancy. Upon any vacancy occurring in the Council, including a vacancy in the office of Chairman, by reason of death, resignation, removal or otherwise, the remaining members of the Council shall have the power by a majority vote to elect a person to fill such vacancy and to serve until his successor is elected and qualified. Said vacancy shall be filled as soon as possible and within a period not to exceed thirty (30) days thereafter. Such elected member shall possess the requisite qualifications for membership for that particular position on the Council, including the requirement that he or she be a resident of said district from which he or she is elected in the event of a vacancy and shall take office immediately upon election and hold said office until his or her successor is elected and qualified. A successor shall be elected to fill out the remainder of the term of the Councilman whose seat was vacated in the same manner as provided in Sec.28, except that such special municipal election shall be held on the date of the next regular August or November election. In the event a person elected as council member shall be absent from duty without proper and reasonable explanation therefor being made for a period of ninety (90) days, his or her said office shall be declared vacated and said vacancy shall be filled as herein provided. (Acts 1905, ch. 54, § 6; Ord. No. 1852, 8-16-66)

What does this mean? Maybe nothing, but to my layman’s eye this is interesting. Resignation, as a cause for vacancy, applies to the City Council but not specifically the Mayor.

In searching the Charter, the word “resignation” appears 14 times. The only time it is mentioned in Article 6 is in Section 38.2

Sec. 38.2. Recall of Mayor Upon petition signed by a number of qualified voters equal to ten per centum of the total number of votes cast in the last municipal election for the office of Mayor and filed with the Election Commission (provided that no such petition shall be filed during the first two years of his term), the Election Commission shall call an election at the time of the next General Election after the filing of such petition at which said election the question shall be: “Shall the Mayor be Recalled?” If a number of voters equal to a majority of those voting on the question shall vote to recall the Mayor, the office shall be vacated when the Election Commission shall declare the results, and shall immediately be occupied by the person so designated to succeed the Mayor in case of his death, inability for any reason to serve, or resignation. (Ord. No. 1852, 8-16-66)

This really intrigues me, because since 38.2 falls after 38, it refers to things that should already be mentioned. Remember, 38.2 is not about resignation, but recall. The section assumes that “resignation” is a grounds for vacancy, but because it is not spelled out in Section 38, or anywhere else in the charter where it addresses the office of Mayor there could be some question as to it’s relevance.

In my experience, Charters and other documents establishing a government, organization or business define things before they refer to them. By not defining the popular understanding of the term “resignation” as a “vacancy” the city charter leaves a grey area that simply shouldn’t exist. What’s even MORE interesting is that in the old charter there was a section that further defined vacancy to include “resignation”. This section (Section 38.2) is not included in the current charter that I downloaded from the City site. Here’s the section from the OLD charter:

Sec. 38.2 Vacancy in office. In the case of the death, resignation, inability for any reason to serve, or recall of the Mayor or his removal from the City, his office shall be occupied by the Chairman of the Council for a period not exceeding twenty (20) calendar days, during which period the Council shall elect a successor to the Mayor from among qualified persons not members of the Council at the time of such elections. Such elected person shall take office as Mayor immediately on election and shall hold office until his successor is elected or qualified, which office shall thereupon be filled in the same manner as heretofore provided for vacancies on the Council. In the event the Council shall fail to act within the twenty (20) day period, the Director of Administration shall fill said office until such time as the members of the Council shall have elected a successor or until the next general or municipal election.

Now admittedly, this section falls after Section 38, which is the exact same verbiage in the old and new charters. Still, it clarifies what constitutes a “vacancy”, which the current charter does not. So the question becomes, why does the old charter deal with resignation, but not the new charter?

Because I’m not a lawyer, there may be some overriding state or federal definitions that supersede. I don’t know, but in any case, resignation is NOT a listed cause for vacancy under the current city charter as I read it. However, the definition of resignation in Section 27 may carry over to all city offices even though it is not specifically stated. Again, I’m not a lawyer, so I have to rely on a literal reading of the charter. From that literal reading, I have to ask myself if not stating something means that it isn’t recognized, even though it defies common sense.

Certainly, from a “common sense” perspective “resignation” or “retirement” vacates the office. I don’t think ANYONE would argue that. The fact that it’s not spelled out in a way that makes it plain calls into question the entire issue of Mayoral succession, something we thought we were correcting with the charter amendments that passed back in November.

This may be the “friendly lawsuit” Herenton mentioned in his letter of July 6.

I haven’t had time, or the opportunity to read Atty. Jefferson’s opinion, and don’t even know if he’s released it. Perhaps there’s something in there that I don’t know about. Also there’s the possibility that my layman’s eyes have missed something vital in the charter. It is, however, interesting that the section that would deal with vacancy doesn’t specifically talk about resignation as a cause.

Does it mean anything? Probably not. According to the charter, the Mayor’s reported business dealings with the city would have meant that he vacated the office years ago.

That didn’t happen either.

Ahh, the reasons I love process…

References: Current Charter
Old Charter
Really Confusing “3rd” charter that includes markups

Yesterday, flying high on a series of events that have turned the possibility of a change in leadership at the City Mayor’s office for the first time since I left college into a possible reality, there was more political coverage, opinion, and conjecture floating around since I moved here over 5 years ago. Honestly, it was a welcome change.

In the wake of all this, I made a list of things I wanted to write about today. Instead, I spent the majority of the day suffering from the effects of a sugar binge that seemed like a good idea at 2am. Haagen-Daaz and Carmel Corn at 2am is a bad idea, no matter how much sugar you think you can consume.

Anyway, in light of the events of the past couple of days, I thought I would go through some of the coverage of City Government, starting with the City Council meeting on Tuesday that fanned the media firestorm.

First I’ll start with my coverage of the Council meeting Tuesday. Several TV stations have played the more explosive parts of the meeting, but in order to really get a sense of the climate, you have to listen to the whole thing. It all started with Councilman Strickland’s motion to suspend the rules. Now I understand that not everyone is familiar with parliamentary procedure. Thankfully, Wikipedia has a good definition:

A motion to suspend the rules, in parliamentary procedure, is used to allow a deliberative assembly to do something that it could not normally do without violating special rules of order, rules contained in the parliamentary authority, the standing rules of the assembly,[1] or rules of order contained in the bylaws.[2] (Source)

Basically, this was a successful attempt to add Strickland’s resolution accepting the resignation to the agenda.

What happened from there was 45 minutes of impassioned debate (large audio file) not about suspending the rules, but the merits of the issue that would be brought if the rules were suspended.

From that point, only 30 minutes were required to pass the resolution and vote on same night minutes.

Again, for those not familiar with parliamentary procedure, had the Council approved the minutes that same night, the resolution would have a binding effect in its current form. Because they did not, there is an opportunity to amend the resolution should there be any need. Ultimately, this is a good thing, as I noted yesterday.

After I published my post about the proceedings, a flurry of interviews with the Mayor started coming online. It started with Memphis Daily News reporter Andy Meek’s report that the Mayor was packing boxes in his office.

Then there was this interview by Fox 13 (direct link).

Since this interview hit the internet, there’s been more and more and more, heating up the speculation and causing one commentator to say I told ya so. I think it’s all, as Councilwoman Swearengen-Ware said multiple times yesterday, “premature”.

There’s this one nagging thing that’s been banging around in my head that goes back to this whole parliamentary procedure thing that I’ve been talking about throughout this post. As the CA reported on the same day he announced his retirement, the Mayor’s pension was approved by the Pension Board. Something that wasn’t reported is the process. Just like the City Council, the Pension Board must approve the minutes of their last meeting for those actions to have any impact. Since the Pension board did not approve the minutes on the same night that the pension was set, any pension arrangement is still up in the air. When is the Pension Board set to approve the minutes? July 30, the same day that Mayor Herenton says he will vacate the office. Coincidence? Maybe, but I’d be willing to bet that the Mayor saw a potential point of weakness in vacating before the minutes were approved, and wanted to shore up that position.

So maybe he will retire on July 30. We won’t really know until July 30.

Between now and then we still have another City Council meeting. At that meeting, assuming the majority holds for another 12 days, they will approve the minutes of the meeting, making the Strickland resolution binding. If the Mayor doesn’t present the Council with another letter of retirement/resignation we’ll have a resolution that is, at best, on shaky legal grounds as noted by Atty. Wade at the Council meeting. Not that I think that will be an issue, but it could…especially if the Pension Board does something that puts Mayor Herenton’s pension in limbo.

There are some other things that, admittedly, are less critical, but still interesting about the whole series of events. I personally find it interesting that the Mayor changed his date of resignation/retirement on July 6th. Also I find it interesting that the language used since the 6th seems more closely tied to “retirement” rather that “resignation”. Could it be that the bizarre resignation of Gov. Sarah Palin on July 3rd, combined with the issue of the Pension Board, gave the Mayor pause, and led him to make this clarification in language as well as the change of date? After all the pundits in America called her resignation a “political disaster”, perhaps the Mayor chose to do something that seemed less like a non-quitting quitter, ala retirement as he begins his run for the 9th Congressional seat. Ok, I’ll take off my tinfoil hat now.

What’s most interesting, aside for all the “will he/won’t he” back and forth, is that underlying all this is a campaign for an office that is still yet to be announced as vacant, that is fully underway. Here is the “candidate’s forum” from earlier today as reported by the CA.

For those of you just following the Cliff’s Notes, the Election Commission declined a bid to start the process for a Special election today. Why? From the article:

…there will be no preparations for a special election until there is a clear mandate from the City Council, adding that he doesn’t want to spend any taxpayer money on the process until then.

The Election Commission, rightly, recognizes the shaky legal ground the Memphis City Council is on, and doesn’t want to play. I can’t say as I blame them.

But there’s more! A group has filed a lawsuit challenging the separation of powers that the Mayoral Succession charter amendment that passed last November with some 85% of the vote.

I wrote about this after Atty. Wade’s opinion was released. Unfortunately, this is just an opinion, in order for it to be anything more there has to be some case law to back it up, which there isn’t. The Charter Amendment we voted in last November hasn’t been around long enough to be litigated, so this will be it’s maiden voyage in the courts, should the lawsuit actually be brought.

If this seems chaotic to you, take a moment; walk around the block a couple of times, play fetch with the dog, maybe enjoy a good cigar and a fine single malt scotch. In any case, chill. This is all part of the process. Process is the thing that brings order to chaos.

The Courts are there to decide if the pending litigation has any merit. Since this is a new Charter Amendment, and the circumstances surrounding the situation are heatedly emotional and have little or no legal framework to stand upon, there’s nothing fundamentally wrong with getting a decision to settle it. In fact, it’s a better outcome because in the future, we won’t have these problems. That doesn’t mean I agree with the legal position put forward by, really anyone in the process, that just means that by litigating it we can find out what reality is, and move forward from there.

Yes it’s gonna cost us money, and money is tight. There isn’t anything about a succession battle that isn’t going to cost money. In the end, I think the courts will side with Atty. Wade’s opinion on the resignation and succession issues, and we’ll move on. Admittedly, I’m not a lawyer. I’m a guy with an opinion and we know what else everyone with one of those has. But from my time of being a goob reading all the stuff that no one wants to read and listening to all the stuff no one wants to listen to, I think this will turn out just fine. We’ll get it decision and we’ll go from there.

Remember, the law is your friend, and process is the thing that got us out of the caves. You can get emotional if you want to…God knows I have, but in the end what will you have? Let the system work through our unintended consequences and let’s move on from there. At least, in the end, we’ll know where we stand so we can come up with an action from a position of understanding, rather than a position of emotion.

UPDATE 2: The Memphis Daily News is reporting that Mayor Herenton is already packing boxes to vacate the Office of Mayor.

UPDATE: As luck would have it, something more popped up while I was writing the post. Apparently an Election Commissioner, Brian J. Stephens, feels that scheduling a special election based on “hearsay, rumor and conjecture” is premature (Councilwoman Swearengen Ware’s word of the day yesterday). Here’s the article at the Commercial Appeal.

As has been reported by every media outlet in the area, the Memphis City Council approved a resolution (pdf) to accept the resignation of Mayor Herenton last night. The problem? He rescinded his resignation BEFORE the Council action. There will, no doubt, be litigation to follow.

I live tweeted the Executive Session (audio), and the Council Meeting (audio starts about 7 min into meeting) yesterday. Folks, it was a barnburner.

The four-hour marathon meeting was punctuated by misunderstandings, snarky comments, legal opinions and probably, a lot of hurt feelings.

I’m going to try to distill the arguments presented, without getting into the normal personalities that dominate city business. I have some opinions, but I’ll wait until after the analysis before I get into those.

What caused the firestorm was a series of letters that; initiated the original resignation process, delayed the official date of resignation, then a third that came just hours after the second rescinding all resignations (pdf). The basis of the debate hinged on whether or not the Mayor could rescind his resignation and whether a verbally expressed intent to resign/retire was legally binding.

According to the testimony from attorneys Wade and Jefferson, it is within the prerogative of an individual to alter or rescind a resignation before that resignation is accepted. What clouds this issue is that the Mayor has expressed verbally that he intends to retire/resign on July 30. This verbally expressed intent was the crux of the arguments presented by many of those who voted for the resolution to accept the resignation.

Many on the minority side of the resolution vote felt that the Mayor should have the right to change that date regardless of any verbally expressed intent or a letter of resignation. Their argument hinged on the reality that the Mayor was elected for a four-year term, and that he had the right to delay his resignation until the end of that term if he so desired. Their argument also seemed to state that until the Mayor actually vacated the office, there was no vacancy.

This is, to my understanding, only partially correct. It is the opinion of both Jefferson and Wade that any resignation is not binding until the Council as a whole approves it. Because the Council had not accepted either the original resignation, or the delay before both were rescinded, there is some question as to whether any resolution to accept the resignation would be binding. Further, there is a great deal of question as to whether a verbally expressed intent would hold up in court should it be litigated.

In any case, 7 members of the 13 member body voted to approve the resolution (pdf). After the resolution was approved it was requested that the minutes of this resolution be approved immediately. This would effectively make the resolution binding even though there is no written resignation. This failed after Boyd changed his vote from yea to nay.

In the end, this was probably the best thing the council could have done under the circumstances. By not approving the minutes, the council left themselves some wiggle room, should the Mayor provide in writing, another letter of resignation with a date other than July 30 between now and their July 21 meeting. At that time the council could amend the minutes of their meeting last night to reflect the new date and the resolution would be legally binding officially noting a vacancy in the Mayor’s office by the date of any written resignation notice that may appear.

The biggest question is, if the Mayor provides no written resignation with a date certain, will the resolution that passed last night be legally enforceable? Hopefully we won’t have to find that out. Hopefully, the Mayor will deliver another letter of resignation, listing July 30th as his “date certain” and the minutes can be approved and all the pain and suffering and bickering will be settled.

I feel confident that this will not happen.

This is where the opinion comes into the post. It is my strong belief that the Mayor will not send any letter of resignation to the Council until AFTER the minutes are approved. This letter of resignation will have ANY DATE other than July 30th on it, just to press the issue.

What’s happening here, and I think some on the council may see it, is that the Mayor is playing with the emotions on the council like a cat plays with, and eventually kills a mouse.

Every provocative move the council, or its members make elicits another swat from the Mayor. From Lowery’s over eagerness to Strickland’s exploratory committee, it all prompts another action from the Mayor.

Think about the Mayor’s most recent statements about how he expects to be respected. Any slight, anything that would diminish the Mayor’s perception of his power as Mayor is seen as a sign of disrespect, from the reaction to the problems at MSARC to AC Wharton’s potential bid for City Mayor back in 2007. All of it, every single bit is designed to reassert that power to maintain that perception.

With all this in mind, the Council, as the mouse in my analogy, would do well to get back into their mouse hole and sit this out until the cat leaves. I’m not saying the Council should not act if the opportunity presents itself. I’m saying the Council should be more measured in it’s actions, working to diminish any perceived provocation, until such time as the Mayor deems he is being respected, tenders his resignation in writing, and the Council has the opportunity to then vote, and approve the minutes of that vote in one fell swoop.

I’m not saying it’s rational, I’m just saying it’s reality as I see it.

I think everyone on the Council, even the ones who don’t seem to have a freakin’ clue as to what’s going on other than a purely emotional response, are trying to do what’s right for the city. I don’t think the Mayor is. As Councilman Collins said last night in regard to another issue, there is such a thing as “too much help”, and right now the Council is trying to help the Mayor out the door too much.

If 7 members of the Council want the Mayor gone, they would do well to allow him to leave. Pressing the issue has always resulted in more pain than necessary. Stop allowing yourselves, as a body to get played by the Mayor. Let him get out the door, then you can kick him if you want. At that point there’ll be nothing he can do about it.

If you’re not tired you’re not paying attention.

Yesterday, Mayor Herenton issued a statement announcing his intention to delay his retirement until July 30th

As the CA reports, and the letter notes, there are, in Mayor Herenton’s mind “important city business matters”, “contractual matters” and, get this, a “friendly lawsuit”. Funny, these things didn’t seem to be an issue when Herenton issued his original resignation. What could have gone wrong? What could have happened?

Yeah, yeah, yeah…It really doesn’t matter because this is where we are now, and while the City Council may have some card up it’s sleeve that I don’t know (like maybe telling the Mayor that they still accept his original resignation and any alterations just aren’t gonna happen) we’re in for an ugly time until after the Mayor vacates the office…if and when he actually does.

While many may call the Mayor’s rejiggering of his resignation the height of political posturing, there is one issue raised by the Mayor that is kind of important. Succession and what happens to what when and where.

Last year when the Mayor put in his resignation which coincidentally was to occur on July 31, 2008, Scott McCormick was the Chair of the City Council and set to take on the duties of Mayor. However, this was under the OLD Charter rules, meaning McCormick would have only served for 20 days, and then been replaced by a person of the City Council’s choosing, or the City CAO, Keith McGee if they could not decide.

Ahh, but that was before the adoption of Charter Amendment 6 last November.

I supported this amendment, because I felt that it was more important for someone that had been elected to SOMETHING to serve as Mayor for the 3-6 months until the next election, than the possibility of having someone who had NEVER BEEN ELECTED TO ANYTHING, serve in the post for as many as 3½ years, depending on the circumstances.

Something I admittedly didn’t think about was the potential conflict of interest for the Council Chairman serving, potentially, in both an executive and legislative role in the event of a Mayoral vacancy.

Herenton is right to bring up this question in his letter.

In times like this I turn to history. Since I haven’t lived here all that long, I’m short on history, so I turn to friends who were. Thankfully, my good friend LWC answered my question in an email:

Oh boy. OK, as I remember, when Wyeth Chandler resigned to take a judgeship in 1982, the Old Charter applied, with Chair JO Patterson serving for 20 days, and then followed by CAO Wallace Madewell.

However, local attorney (and then-campaign manager for 7th District Democratic Congressional candidate Bob Clement) Dan Norwood filed a lawsuit saying that the citizenry would not be served by allowing Madewell to serve until the 1983 City elections.

The court agreed, and forced a special election that coincided with the 1982 November general elections. However, at that time, the 7th District came into the city all the way to freaking MENDENHALL, so the prospect of a black mayor (Patterson, playing the role of Myron Lowery, was up against Dick Hackett and Mike Cody) scared all the East Memphis voters into turning out in record numbers, which in turn sunk the campaign of Clement, and elected Don Sundquist to the 7th District seat. There would be a runoff between Patterson and County Clerk Dick Hackett (this was pre-decree), and Hackett would win, and serve until losing by 137 votes to WWH in 1991.

It would seem, assuming that this account is correct, that the current Charter deals with the problem of “unelected successors” quite well, giving people time to campaign (90-180 days depending). Further, Patterson didn’t have to vacate the seat.

Ahh, but that’s the NEW problem. Before it was just 20 days. Not that big of a deal compared to 90-180.

It seems that City Council Attorney Allan Wade shed some light on this subject today.

In the 6 page opinion Wade deals with a variety of issues, but of most pressing interest, the executive/legislative issue for the “Mayor Pro-Tem” who is the current Council Chair and whether the Council seat held by Mayor Pro-Tem Lowery would be considered vacant. First the vacancy issue:

Ed Note: This document was scanned into a PDF format. I am using screen captures because the text is not selectable.

The argument presented is pretty compelling. Because the Charter dictates that Lowery is to be the “temporary Mayor” for 90-180 days, his seat is not vacant under the rules set forth to define a vacancy. It is clearly an “excused absence”. This goes back to the original “Home Rule” and the more recent 6th amendment to the charter that was adopted last November.

The second issue is a bit more dicey. Even though it is somewhat covered in the prior section, this section gives us even more details as to whether the “Mayor Pro-Tem” can serve in both a legislative and executive capacity.

So, if we take these two opinions at face value, the “Mayor Pro-Tem” is not required to vacate, the conditions of service do not create a vacancy, BUT in serving as the head of the executive, the “Mayor Pro-Tem” would not be able to also serve as a member of the Council.

Now admittedly, this is but one opinion, but it seems reasonable…at least until someone gives me good reason to find otherwise. The arguments are laid out well, and address nearly all of the concerns in Mayor Herenton’s letter. I’m satisfied with this as an explination, but I’ll be happy to read and comment on any dissenting opinions that may be put forth by a legal professional.

This still creates the reality that for at least 90 days the voters of the 8th district will be without one member on the Council. There is no remedy that I’m aware of to deal with this in the Charter. There may need to be a remedy, but as we are seeing with the last amendment, the law of unintended consequences is at play here, and would likely be in play in any future effort to clarify the charter that doesn’t include a “vice-Mayor” or some other elected member of the executive that maintains succession through the executive branch of government.

Ultimately, it’s only Tuesday. The Council meets tonight, and there will likely be a great deal of discussion and hand wringing. I’ll be listening on the web. You can too by clicking here. The Executive Session is scheduled at 2pm, the regular meeting is scheduled at 3:30. The agenda looks light, but I bet it’ll be a hot one!