Well, you can’t say the past week has been boring!
Thinking about yesterday’s events (video and comments from other blogs follow) I am reminded of something I said in passing several years ago about “retirement”. Until recently, I could never imagine myself retiring. I always just assumed that I would work until I died. Until recently, the notion of having “free time” was so foreign to me that I reckoned any “retirement” forced or voluntary would pretty much kill me with boredom. Now with 5 months of “singledom” and 4 months of spotty work under my belt I think I’ll be fine in retirement, and hope I can figure out a way to do it soon (if I can just win the lottery).
That said, very few “type A personalities” ever successfully retire. If they do, they either drive everyone around them crazy or away, or they die of boredom. It’s easy to understand. They’ve been the movers and shakers all their lives. They’ve busted their humps to the point that they have little else but that hump busting, and after retiring they look around at the “all” they have and realize that aside from the material, it ain’t really all that much.
I don’t know if this is what our former Mayor is going through or not, but it stands to reason that for most type A personalities, 2 weeks with nothing to do is about all the time they can stand themselves.
So he pulled a petition and stirred up the media attention, and got just about every person in the city riled up to some extent. That’s what our former Mayor thrives on. But without the trappings of an office of import, eventually the media is going to figure out what the Memphis Flyer has figured out…that he’s just another wannabe.
The comments, particularly on Twitter have ranged from angry to pricelessly funny 140 character screeds. I won’t quote them here, because really picking just a few is unfair to the teeming throngs, but let’s just say it has been HIGHLY entertaining.
On the blogs, it’s been quite something else. I think many of us are still dumbfounded by the whole thing. Certainly, adanovi at Knoxviews is not only dumbfounded, but outraged:
Yes, that’s right. Willie Herenton who retired from Mayor of Memphis, has picked up a petition to run in the special election to replace himself….
…This guy needs to be out of politics. He should have to pay the more than 1 million dollars required to hold the upcoming special election. He DOES NOT need to be representing any constituency of Tennessee in Congress and Memphis CERTAINLY needs new leadership. (Source)
Our new friend The Memphis Liberal has some link love to several articles that are quite revealing.
But all pale in comparison to this post by Voice of Andromeda. Here’s a little sample
TO DR. HERENTON: We don’t need your help. You are not the ‘be all’ and ‘end all’ of Memphis politics. There are views and issues which deserve the air. There are problems you have ignored, including, most egregiously, your own African-American community which has not prospered under your reign. You poison race relations in Memphis and we need you gone in order to move forward. We love our city too and your continued involvement in our local affairs moves us backward, not forward.
Of course you have the legal right to resign and of course you have the legal right to re-file for the same office. People have all kinds of legal rights to do crazy things – doesn’t mean they ought to do them or that, in doing them, everyone else doesn’t have the right to question their sanity.
In 2007, you wasted a lot of taxpayers’ time, money and efforts in running for an office you didn’t want. Less than two years later, you resigned, causing we the taxpayers (you remember, the people you supposedly want to represent again) to foot the bill for a special election to the tune of $1 million-plus. Now you want taxpayers to foot the bill for this special election for no reason since you want your job back….THEN IF YOU WIN, YOU WANT US TO PAY FOR ANOTHER SPECIAL ELECTION WHEN YOU QUIT AGAIN NEXT YEAR TO RUN FOR CONGRESS. ENOUGH!!(Source)
I don’t think I have much more to say on the matter, other than “actions speak louder than words, but words have a pretty strong voice”. By repeatedly defending himself against charges of insanity, the former Mayor certainly raises the question of his sanity. Crazy is as Crazy does sir.
What follows are three of the interviews done by our former Mayor yesterday.
Several outlets have reported the Herenton has pulled a petition to run for Mayor, just weeks after retiring.
Maybe he was lonely…(NSFW)
Here’s his statement as reported in the CA
“My primary political goal is to represent the ninth congressional district in the U.S. House of Representatives. I have every intention of being a congressional candidate during the August 2010 election.
“However, during the interim, recent events have compelled me to step forth to provide leadership and express my sincere feelings on how our city can continue to move forward, despite our current dilemma.
“My recent retirement from the office of Mayor has created this situation and I feel obligated to seek alternatives to Myron Lowery and an ‘anyone can win’ mayoral race.
“The city I love deserves better.”
“Therefore, I am also preparing a referendum resolution that would allow the citizens of Memphis to rescind the current charter amendment that elevated Myron Lowery to the office of Mayor Pro Tem. This resolution would prescribe limitations on the powers of a non-elected mayor.
“It is clear to many citizens that my retirement from office created opportunities for Mayor Pro Tem Lowery and a puzzling list of mayoral candidates to turn our city backward. I am disappointed in Myron’s reckless style of leadership. He must be stopped.
“We cannot allow Mayor Pro Tem Lowery to be elected mayor during the upcoming special election. Unfortunately, it is difficult to predict a clear winner with a complicated array of mayoral candidates in the race.
“Therefore, I have pulled a petition to run in the upcoming mayoral special election.”
Maybe, that letter Jackson Baker reported on has a little more meat to it than he reported. Or maybe it just is what it is.
No matter, this is Memphis, and anything is possible. Still, I wonder what that letter says…
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…
Yes kids, that’s right, it’s time for another City Council Meeting. Even though I’m not in Memphis, I’ll be able to follow along with the fun via the intertubes (assuming the connection at this hotel in Jersey isn’t a piece of crap). I’ll be live tweeting the meeting on my twitter acct. Vibinc under the hashtag #memcc0721.
There are a lot of things on the agenda, but the thing that may be the most contentious is at the very top of the list, the approval of the minutes from July 7th.
For those of you not following along, that meeting, which I covered here featured an exchange between the majority of the Council, who sought to declare a vacancy in the Mayor’s office without a letter of resignation or retirement, and a very vocal minority of the Council, led in emotion, if nothing else by Janis Fullilove, who sought to let the Mayor leave before taking any action.
Both courses are sketchy.
I’ll delve further into that “sketchiness” in my next post. (I’m such a tease).;