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VOL. 124 | NO. 170 | Monday, August 31, 2009

All in Favor: The forces behind the latest push for city-county consolidation

By Bill Dries

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Shelby County Mayor A C Wharton Jr. -- PHOTOS BY LANCE MURPHEY

For the first time in 30 years, government consolidation is moving to the ballot.

Although a firm plan doesn’t exist yet, the Shelby County Commission and Memphis City Council are poised to vote on creating a metro charter commission, possibly as early as next month. And the votes to make it a reality appear to be there on both bodies.

The timing, after decades of talk, couldn’t be more deliberate.

A metro charter commission could be appointed in advance of the Oct. 15 Memphis mayoral election by two of the leading contenders. The charter commission could go to work a month after the winner of the election takes office, and its work could be ready by the county general elections in August 2010. But it won’t go to voters until November of that year.

If approved – a big if – the new consolidated city and county government could negate the need for city elections in 2011 or at least make the need for them questionable.

What it might look like

The charter commission would come up with a specific proposal for citizens to vote on in a pair of referenda, one in the city and the other in the parts of Shelby County outside Memphis. By state law, the proposal must pass in each referendum.

A metro government would not affect the boundaries or the existence of the six towns and cities outside the Memphis limits. But whatever plan might emerge would almost certainly affect the delivery of what are now county government services to those municipalities – Arlington, Bartlett, Collierville, Germantown, Lakeland and Millington – and how they are paid for through the tax base.

“We continue to exist no matter what happens with this referendum,” said Bartlett Mayor Keith McDonald. “We’ll still be chartered communities. We’ll still have the same power and authority that we have today. We understand that. But county government exists to serve everybody, (including those with) limited (services).”

Those services differ from town to town. Bartlett, Germantown, Collierville and Millington have their own police and fire departments.

The last time a consolidation quest got this serious was 1971, when a consolidation charter went to voters in a pair of referenda. The plan passed in the city but was defeated in the county. The proposal was a plan to create urban and rural taxing districts to deliver services from a unified local government.

Political distractions also played a role in the two other consolidation efforts that reached voters.

The 1971 consolidation bid came in an election year for city government, featuring an open race for Memphis mayor. Four years later, a restructuring of Shelby County government created the office of county mayor.

The 1962 consolidation bid in which a majority of voters in the city and county rejected the plan quickly devolved into questioning whether Albert Rickey, head of the charter group, would become head of a consolidated government. Rickey had to state repeatedly that he was not interested in becoming the mayor of such a government.

Grand pronouncements

The road to what could be the first consolidation charter proposal to reach the ballot in 38 years began last October.

Then-Memphis Mayor Willie Herenton showed up that month for an education funding summit at the University of Memphis. But he didn’t come to talk about education. Herenton changed the subject, announcing that he was passing leadership of the consolidation question to County Commission Chairwoman Deidre Malone, City Council Chairman Myron Lowery and Shelby County Mayor A C Wharton Jr.

Shelby County Commission Chairwoman Deidre Malone

Malone was planning a bid for county mayor in 2010. Wharton was interested in Memphis mayor in 2011. Lowery was prepared to run for interim city mayor if Herenton resigned before 2011.

“I don’t want to take the leadership,” Herenton told Lowery as the two huddled later. “But where in the hell is the leadership going to come from? I want to be a follower.”

Herenton conceded his continued advocacy for total government consolidation, including the city and county public school systems, had become polarizing.

Malone, Lowery and Wharton dutifully set up a series of 15 town hall meetings across the county that ended with a recommendation earlier this month to create a metro charter commission.

A recent legal opinion from County Attorney Brian Kuhn and Assistant County Attorney Craig Willis, sought by County Commissioner Mike Ritz, offered a few surprises.

The alternatives to consolidation short of a charter proposal have always included a surrender of the city charter. Some consolidation proponents have wielded a city charter surrender to combat unwavering suburban opposition to a merger. In other words, suburban leaders should try to negotiate terms for a consolidated government or face a charter surrender in which they would get no concessions.

In the 21-page legal opinion issued earlier this month, Kuhn reversed an earlier legal opinion from his office stating the city charter could be abolished by the city provided the Tennessee Legislature went along with the repeal. The reversal is based on a 2002 Tennessee attorney general’s opinion that says a charter surrender doesn’t apply to Memphis because the city charter was approved as a private act by the Legislature – that is, the charter was approved as an act applicable only to Memphis. The charter itself includes no surrender provision.

The charter surrender option in state law applies only to charters approved under general state law.

“There is no mechanism for surrender of the city of Memphis charter, with or without a referendum,” Kuhn concluded. “Therefore, consolidation cannot be attained in this fashion.”

That leaves the route that begins with the appointment of a metro charter commission.

If the County Commission and City Council approve such a group in a matching resolution, the Memphis and Shelby County mayors will appoint the charter commissioners.

The Shelby County mayor would appoint 10 members to be confirmed by the County Commission, and the Memphis mayor five members to be confirmed by the City Council.

If Wharton wins the Oct. 15 special election for Memphis mayor, he could be in a position to make the first 10 appointments in his old job and the other five in his new post.

“I’m not looking forward to trying to make all of the appointments,” Wharton told The Memphis News. “I would not let that result come about. I would make sure that somebody else is involved in those appointments.”

Malone said even if neither Lowery nor Wharton wins on Oct. 15, they and she will remain involved in the elected positions they currently hold.

“If we’re going to meet that timeline, the checks and balances as I see it are the legislative bodies,” she said. “I think it will be a very transparent process.”

No excuses

The consolidation charter commission would go to work in November.

Given all the other political events that have unfolded since October, some involved in the planning questioned whether it was wise to float a consolidation plan now.

The other political events include:

  • Herenton’s resignation.
  • Herenton’s continuing influence and possible return, although he now claims he doesn’t intend to run for his old seat.
  • Lowery’s status as mayor pro tem.
  • The bitter political estrangement between Herenton and Lowery.
  • The special election scramble to succeed Herenton that includes Lowery and Wharton.
  • A potential succession scramble for county mayor that could follow Wharton’s election to the city’s top office.
  • A single-source local funding proposal for city and county schools.

While some who talked with The Memphis News on condition of anonymity said they initially questioned the wisdom of moving ahead once the town hall meetings ended this summer, others argued there might never be a path to consolidation that is free of other political distractions.

Bartlett Mayor Keith McDonald

“Does it make sense for us to do it now?” is the way some expressed the concern, according to Malone. “There will never be a good time for us to tackle this issue. I think now is the best possible time to do it. At least we’re engaging people in the discussion. We have an opportunity to build a brand-new charter and let the people decide if this is what they want or not.”

But that decision won’t be made in isolation even if the special election for Memphis mayor is decided.

“If the scenario were to play out that Wharton wins Memphis … this whole thing of who’s really speaking on behalf of the citizens of the different jurisdictions – the dust on that is not going to settle until the 2010 and 2011 elections,” McDonald said. “There’ll just be a continued running for those offices. … There aren’t a lot of things you can say with a great deal of confidence that this is the way it’s going to be because you don’t know who the leadership is going to be.”

City Council Chairman Harold Collins said the verdict on any consolidation plan could be decided before it’s put on paper.

“I think it depends on who gets elected interim (Memphis) mayor,” he told The Memphis News.

Collins is a consolidation proponent. He’s also realistic about the prospects of passing a plan that might set up a new way of delivering county services for the suburban towns and cities – a general services district in which those residents could end up paying more taxes. Memphis services could be provided in an urban services district with a different tax rate.

“That may be a deal breaker for some of the people in the county. We’ve got to be honest about it,” Collins said. “The people who moved out into the county or the suburbs moved out because they didn’t want to be taxed. So, if you tell them that if they choose this kind of government they may have to pay a little extra for fire or police or whatever the case may be, what do you think they are going to do?”

Lowery said he doesn’t think a metro move would increase taxes.

“I don’t think so. I think we’re going to have more efficient government, more accountable government,” he said. “We’d have one metro mayor and one legislative body. We’d have smaller (local legislative districts), so we’d have to have a larger legislative body but everybody would be represented. This is going to create no excuses in government. We won’t be able to pass the buck.”

McDonald doesn’t buy tentative early pledges of no tax increase.

“It might not be the first day. I think it’s foolish to think that wouldn’t be something that would happen relatively quickly,” he said. “I think, in fact, taxes will have to go up even in the urban services area. … The cost of doing government, especially in Memphis and Shelby County, has to do at the appointed-officials level and all of the lawyers that they both have on their payrolls. Just the change in the governing structure – that’s not where the money is.

“The money is in your labor force and I don’t see that reducing one person.”

McDonald said consolidation proponents will have to prove a single metro government won’t be more expensive for taxpayers.

“There’s been nothing said that indicates that there would be something better for the suburban and unincorporated areas out of this,” he said. “There’s been some who have promised no new taxes. But that’s impossible.”

Yes, no, maybe – not sure

This is the point where Collins points to the alternative: single-source local funding of education under a scenario called “Plan B,” in which Shelby County government would be the single source and the city of Memphis’ commitment to city school funding would be phased out over three years. The city property tax rate would decrease during the phase-in period as the county property tax rate would increase to fund an extra $80 million to $100 million a year.

An ad hoc study committee recently drafted and approved Plan B. The committee did not include any elected leaders of the suburban municipalities. It has been endorsed by the Shelby County Commission. The Memphis City Council and Memphis school board are still considering the plan. The Shelby County school system is opposed to it.

Interim Memphis Mayor Myron Lowery

“Everybody should be recognizing that if the county takes on single-source funding, people in the suburbs are going to begin seeing an increase in their taxes for education,” Collins said. “That will help them understand the value of a metro form of government.”

McDonald, who watched unhappily from the sidelines during the ad hoc committee debate, calls it “smoke and mirrors.”

“They keep waving this consolidation issue. Don’t look behind the curtain at Plan B,” he said. “I think those two are moving together and I don’t think it’s by coincidence.”

Lowery summarized to suburbanites fearful of a single-source tax hike as he talked to the Downtown Neighborhood Association (DNA) this month.

“If we were a metro government, we wouldn’t even be having this discussion,” he said.

He and other consolidation advocates say the financial toll of maintaining two local governments may be the most powerful factor working in favor of consolidation.

“Dual government is a broken model,” Lowery said. “We’ve got competing divisions. We’ve got fragmented law enforcement. We’ve got cumbersome decision-making. … We’ve got uncoordinated planning, weak accountability.”

McDonald doubts one government is the answer.

“The bottom line is the business community wants to streamline government to make it easier to get some business decisions made,” he told The Memphis News. “And that’s not all bad. But we could probably do that with some regional cooperation and some mutual agreements without having to go through the gyrations of consolidation.”

County Commissioner Mike Ritz said the plan has to have support from business leaders to have any chance of winning at the polls.

“I don’t believe there’s much of a chance this matter is going to get a lot of public support unless somebody is prepared to spend the money to market the plan,” Ritz told Malone. “If we do not hear from some group of businessmen or otherwise … I’m not going to be able to support this. I do not think we should take the citizens through the process, the grief, the debate, if there’s not going to be an effort to market the plan.”

Malone said she has already talked with business leaders who are ready to support a metro push after looking over the fine print.

Arlington Mayor Russell Wiseman is a business leader, a vice president at First Capital Bank, who probably isn’t being counted by Malone among supporters.

“I’ve been mayor since 2003, six years that everybody’s been talking about consolidation,” Wiseman said. “In six years, you could have written a plan by now, but I haven’t seen one. I’m in banking. If one bank’s going to buy another bank, they don’t just buy the bank and pick up the pieces and figure out what they’re going to do. … Until that happens, I can’t get behind it. I think it’s silly.”

Everybody’s club

Malone, Wharton and Lowery included the suburban towns and cities in their town hall meeting schedule, and Wiseman’s response was what they got from the audiences on those stops. They wanted to see a plan.

McDonald said he and other suburban leaders should nevertheless have a voice and place on a metro charter commission.

“While I don’t believe it will pass out here, it’d be foolish for us not to participate in the discussion,” he said. “... We need to make sure that it is something that creates the least amount of damage if it were to pass.”

Consolidation opponents are not without their own allure in rallying “no” votes to the polls: It’s the fear that a metro plan of government will include a consolidation of the two public school systems. That fear already exists even though Wharton, Lowery and Malone have been adamant that the school systems should remain separate and left out of any metro charter proposal. Wharton has even offered to enact such a freeze, including attendance boundaries for the two school systems.

The opposition isn’t limited to the suburbs, either. The still-forming pack of candidates in the special Memphis mayoral election are of differing opinions.

The most vocal consolidation opponent so far is Memphis school board member Kenneth Whalum Jr.

“It will not happen. It’ll never happen. It should never happen,” he told The Memphis News. “And if it does happen, it ought to include the schools. That’s why it’s not going to happen.”

Whalum, who is running for Memphis mayor in the Oct. 15 special election, also questions giving up the identity of city government.

“There was a time when electing a black mayor was a victory,” he said. “But after 20 years, black leadership ought to be able to produce excellent results. We don’t have excellent results. What we’ve got to do is prove that.”

And attorney Charles Carpenter, also a candidate for Memphis mayor, told The Memphis News he thinks the “whole concept of consolidation is tainted at this point.”

“We’re going to spend a lot of time and effort talking about consolidation. … Consolidation is not a panacea,” he said. “I think that to have something substantive with consolidation will take years. As citizens of Memphis, we don’t have that period of time.”

Carpenter makes a distinction between consolidation and tax equity – the popular local political movement to shift the burden of taxation for countywide services to county government. The movement has resulted in changes since last year in which local government pays for what services. City Council members and county commissioners have also questioned whether suburban municipalities should pay a share of the costs for such services beyond their share as county taxpayers.

“I think we can move efficiently with tax equity and from a business standpoint; since the city of Memphis is the hub for all of our regional partners, we have to talk about sustainability,” Carpenter said. “And with the current taxing structure that we have, we cannot sustain our government.”

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