VOL. 129 | NO. 129 | Thursday, July 03, 2014
Armstrong Rules Commission Can Weigh Brooks' Residency
By Bill Dries
Chancellor Kenny Armstrong ruled Thursday, July 3, that the Shelby County Commission can take up the question Monday, July 7, of whether Commissioner Henri Brooks lives in the district she represents.
But Armstrong said the commission should first make a determination that she does not live in the district and has forfeited her office before it moves to declare and fill a vacancy in that position.
The ruling came at the end of a two-and-a-half hour hearing in which Armstrong also said the commission should cancel plans to hold a special meeting an hour before the 1:30 p.m. Monday session to interview applicants for the vacancy.
Pressed by attorneys for the county on the point, Armstrong also ruled the county attorney is “not the appropriate body to make that determination” on Brooks’ residency. “She has no authority to make that determination,” Armstrong said.
He also told attorneys on both sides that if Brooks feels there hasn’t been a hearing and determination on her residency, the court would then take up the matter.
Parts of what Armstrong said from the bench were not court mandates or declarations, including whether the commission can ignore his call for it to make a determination.
“I’m not mandating that,” he said as attorneys on both sides of the dispute questioned him for more specifics. “I’m simply restraining them from filling a vacancy because they have yet to determine Commissioner Brooks lives outside the district.”
If the commission doesn’t make such a “new consideration” beyond the investigation and report of the county attorney’s office, Armstrong said, “I’ll rule they didn’t make a determination.”
Attorneys Andre Wharton and Michael Working, representing Brooks, argued that the county charter does not set out a process for making such a determination even though state law requires a “competent tribunal.”
Armstrong questioned why the commission couldn’t be that tribunal in the case of Brooks’ residency. But Working said that would apply such a specific remedy retroactively.
Wharton termed the commission’s actions in committee to put a vacancy resolution on Monday’s agenda “improper, illegal and invalid.”
Armstrong countered that acting retroactively could be permitted if it amounts to a procedural change in law.
Assistant County Attorney Jenny Bozeman argued that County Attorney Marcy Ingram made the determination, and that state law establishing the office of county attorney gives Ingram the authority to do so. She repeated what she said in an earlier hearing – that the commission’s action would not be an ouster or removal from office.
But as he did at a Tuesday hearing, Armstrong repeatedly asked who made that determination and repeatedly concluded it cannot be the county attorney.
“We have to have a finding,” he said. “Not an investigation, but a finding.”
Ingram’s report said Brooks did not cooperate in the investigation and also concluded that Brooks did not live in the district, even though the report said the investigation could not determine where she lives.
And Armstrong cited that as insufficient.
“I personally don’t know how anyone could be satisfied by that for the removal of an elected official,” he said from the bench. “It’s simply not enough. I think we should probably wait and see what happens on Monday.”
Brooks has since said, through her attorneys, that she moved from a house near Rhodes College to a house in South Memphis, also in the district, at the end of a relationship with the person who owned the house near Rhodes.