When Chancellor Kenny Armstrong takes the bench Thursday, July 3, to resume his hearing on the effort to unseat Shelby County Commissioner Henri Brooks, he will likely have the same basic question he had when the hearing recessed Tuesday in his courtroom.
Who decides that Brooks no longer lives in the district she has represented for eight years and therefore has violated the county charter triggering an immediate vacancy on the commission?
“It’s clear to me … that somebody’s got to make that determination,” Armstrong said at the start of Tuesday’s brief hearing. “The issue is who would make that determination.”
Brooks filed suit last week seeking an injunction to prevent the commission from voting July 7 on a resolution that would declare her seat vacant because she no longer lives in the district she has represented for eight years.
The resolution is on the commission’s agenda following a report from Shelby County Attorney Marcy Ingram that concluded Brooks no longer lived in the district because she no longer lived at the house in Midtown she has claimed as her address.
Armstrong didn’t rule Tuesday on an injunction giving attorneys for Shelby County government time to file a written response to the lawsuit.
But he indicated that so far he doesn’t believe that Ingram is the person to make the determination about residency that could result in the removal of an elected official.
“We’re talking about somebody elected by the people,” Armstrong told assistant county attorney Jenny Bozeman. “There should be some kind of hearing.”
He even suggested that the commission might want to give some kind of notice of a residency hearing it would conduct at some point.
“Logically, somebody has to make that determination,” he said. “I think it’s an elected body. I don’t think it’s Ms. Ingram.”
Bozeman argued that the Shelby County Charter and state law, as well as a legal opinion from the Tennessee attorney general in another case, all make the point that no judicial review is required and that declaring a vacancy is immediate.
Armstrong didn’t dispute that but instead said there appears to be a gap between a question about residency and declaring a vacancy.
“How do you get to step two when we really haven’t gone through step one?” he asked. “When are we going to go through that step?”
Step one, by that example, is some kind of ouster. And Bozeman argued specifically that the action the commission could take and that Ingram recommended is neither a removal nor an ouster. It is a declaration of a vacancy and it’s automatic, she contended, under terms of the county charter.
The specific charter provision reads: “Any county official who shall voluntarily remove his or her residence outside the election district from which elected or appointed shall forfeit that office immediately.”
Armstrong said Ingram’s report on Brooks’ residency, which didn’t reach a conclusion on where she lives is not an automatic decision that she no longer lives in the district even though that was an outcome in the report.
“A finding that she doesn’t live on Crump Street is not a finding that she has removed herself from the district,” he said.
Bozeman argued that Brooks chose not to cooperate with the investigation and could have cleared up the questions.
Her attorneys said last week that Brooks moved from the house near Rhodes College to a house in South Memphis that is also in the district after her relationship with the man who owns the house on Crump came to an end.
Meanwhile, attorney Andre Wharton, representing Brooks, wanted Armstrong to restore Brooks’ privileges as a commissioner before the commission’s next meeting. He complained that Brooks no longer gets emails that go to all commission members and that the action has resulted in her district being under-represented.
Brooks is one of three commissioners elected in District 2, which is one of four multi-member districts on the commission. The multi-member districts come to an end when the winners in the August County Commission races take office Sept. 1 having been elected from a set of 13 single-member districts.
Brooks is running as the Democratic nominee for Juvenile Court clerk and has two months left in her second term of office on the commission. She is term limited and could not seek re-election to the commission.
Armstrong said he could not order Brooks’ privileges restored at least in ruling on an injunction until the broader issue can be decided in court.