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…