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VOL. 126 | NO. 4 | Thursday, January 6, 2011

No Election Date Yet For MCS Charter Surrender

By Bill Dries

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The Shelby County Election Commission met Wednesday and adjourned minutes later without putting the Memphis City Schools (MCS) charter surrender on a special election ballot.

The five-member body refused based on a legal opinion from Tennessee Elections Coordinator Mark Goins delivered an hour before the meeting. The opinion says the Memphis City Council must approve having the referendum before the item can go on the ballot.

Meanhwhile, at the same meeting, Memphis City Council member Shea Flinn submitted paperwork to take the charter surrender proposal to the ballot by another method – a petition signed by 25 Memphis voters.

And Flinn confirmed that City Attorney Herman Morris and City Council Attorney Allan Wade have said they disagree with Goins’ reading of state law.

“I don’t see how it would be possible,” election commission chairman Bill Giannini said of speculation about a special election in February. “February would be tough.”

Giannini also acknowledged there is a conflict on the interpretation of state law that governs how the initiative is to go to the ballot. But he and other election commissioners say the legal advice of the state elections coordinator governs what they can and cannot do.

“He’s the next pay grade higher than us,” Giannini said. “There are conflicts in the law. We saw that. We recognized that. We sought the opinion. He has ruled.”

Election Commission attorney Monice Hagler said if the city differs with that ruling it could seek a declaratory judgment in Chancery Court.

All sides in the controversy have acknowledged that at some point the dispute would result in one or several lawsuits.

The rapidly changing dispute with multiple political fronts may have reached that point.

Goins cites a 1961 state law on school charter surrenders.

“Although there may be an argument that the approval of the board of city commissioners is not constitutionally required, neither this office nor the election commission has the discretion to ignore the requirement,” Goins wrote in the three page letter.

A 2003 legal opinion from the Tennessee Attorney General’s office appears to differ on the subject. And the difference appears to be the private act that created the Memphis City Schools system as a special school district. It also deals with the 1961 law.

“By private act, administration of the Memphis City Schools is vested in the school board, a governing body that is independently elected,” the opinion by then Attorney General Paul Summers reads. “Under the proposed interpretation, a city council would be authorized to initiate the transfer of a system it does not directly control and, in effect, deprive an independently created governmental entity of its powers.”

The 2003 legal opinion was requested by Democratic state Representative Barbara Cooper.

But Giannini said the election commission is bound by Goins’ opinion.

“It pretty much ties our hands until such time as the city council does its business,” he said.

Flinn’s submission of a petition is something he is doing on his own and he told reporters it is not an action that speaks for the city council as a body.

“That would also trigger the election,” he said of the petition.

“It’s created a flashpoint in our community,” Flinn said of the MCS board’s Dec. 20 vote to surrender its charter. “I think it’s important to give citizens a right to vote. I’m not telling people to vote for or against. But I’m saying let’s get away from the politics and start talking policy.”

The Shelby County school board meets Thursday at 1 p.m.

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