Process and Precedent – Completing the Term(oil)

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.