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 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 However, this was under the OLD Charter rules, meaning McCormick would have only served for 20 days, and then been replaced by a person of the City Council’s choosing, or the City CAO, Keith McGee if they could not decide.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!