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 He rescinded his resignation BEFORE the Council action.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.