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VOL. 129 | NO. 132 | Wednesday, July 09, 2014

Brooks Residency Issue Grows More Political

By Bill Dries

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Shelby County Commissioners seemed to settle one question Monday, July 7, about the residency challenge of Commissioner Henri Brooks.

Shelby County Commissioners voted Monday, July 7, to make their own determination about whether Commissioner Henri Brooks violated the county charter’s residency provision. Brooks leaves office at the end of August when her term of office ends.

(Daily News/Andrew J. Breig)

They voted to make a determination of their own on whether she violated the residency clause of the county charter by moving out of the Midtown house she listed as her home address for years and continuing to use the address.

Still to be determined are such basics as at what point between now and Aug. 30 – when Brooks’ term on the commission runs out – they will meet on the matter.

Commission chairman James Harvey will set a date for the special meeting after conferring with attorneys on all sides of the complex and unprecedented political and legal question.

Meanwhile, attorney Andre Wharton, representing Brooks, said he and co-counsel Michael Working will participate in the meeting and hearing but are not conceding that they accept it as valid for purposes of the Chancery Court litigation over the attempt to declare Brooks’ seat vacant.

“We cannot concede this is the right way,” Wharton told commissioners.

Wharton and Working said any meeting will have to include procedures all sides accept on such important issues as who testifies and what the burden of proof is.

“The county’s position has already changed three to four times in the last three to four days,” Working said.

Shelby County Attorney Marcy Ingram said an outside counsel for county government would likely present the points she made in her report, which concluded Brooks’ seat was vacant. She said it was “not in the best interest” of her office to present the evidence to the commission.

Ingram also ruled at one point Monday that Brooks could not participate in voting on the matters related to a commission hearing about her residency.

Several commissioners pointed to the ruling last week from Chancellor Kenny Armstrong that Armstrong put in the form of a written order Monday. Part of that ruling says Brooks remains the commissioner representing District 2 Position 2.

Armstrong ruled from the bench last week that the commission could not declare Brooks’ seat vacant and appoint a replacement until or unless it made a determination that she did not live in the district she represents and had thus violated terms of the county charter.

Armstrong also said Ingram’s investigation declaring Brooks has violated the residency standard by no longer living at the Midtown house she’s listed as her address for several years is not a determination the commission can act on for purposes of declaring a vacancy. He specifically pointed out that Ingram’s report could not determine where Brooks lived and from there concluded she violated the residency clause.

“We don’t have to prove where she lives,” countered Commissioner Terry Roland during Monday’s debate. “All we have to do is prove where she don’t live.”

Assistant county attorney Danny Presley told commissioners there is no provision in the charter giving them “investigative authority.” But it does allow them to be a fact-finding body.

“You cannot go forward on this item today because you’ve been enjoined by the chancellor,” he said, adding that Armstrong concluded the investigation has not been completed.

But Ingram had a different take on it.

“The court did not say that you all are restrained from taking action on this matter,” Ingram said, pointing out the commission couldn’t fill the vacancy but can make a determination.

“I’m getting some cognitive dissonance here,” Commissioner Heidi Shafer observed after the exchange. “I’m trying to find harmony.”

Before approving the question and answer session some time later this month, moved by Shafer, the commission voted down a proposal by Commissioner Mike Ritz to refer the residency matter to the district attorney general’s office.

“I don’t think any of us anticipated being policemen of each other,” Ritz said. “This is not something we are equipped to do.”

When that failed, however, there was sentiment on the commission that the matter had gone too far for the commission to drop it entirely – even with the short time Brooks has left in her term.

“I think the public expects us to do something,” Commissioner Steve Mulroy said. “I actually think public confidence in us may suffer.”

Commissioner Walter Bailey argued there was a lack of due process in the discussion about how to structure a hearing of the matter by the commission. He termed it “almost a witch hunt.”

Ritz countered there are different standards for elected officials.

“I don’t recognize due process for elected officials,” he added.

Brooks had little to say during the discussion, at least publicly. After Commissioner Steve Basar, who sits next to Brooks, again called on her to say definitively where she lived and present evidence, Brooks talked to him privately away from the microphone – at one point wagging a finger at him.

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