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VOL. 131 | NO. 153 | Tuesday, August 2, 2016

City Appealing Court Order Requiring Vendor To Reveal All Candidates for Police Director

By Bill Dries

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The city of Memphis is appealing a Chancery Court order issued Friday, July 29, requiring it or the International Association of Chiefs of Police to make public everyone who applied for the job of Memphis Police director.


The city’s strong stand, announced just hours after the order from Chancellor Walter Evans, seeks to describe the list of applicants kept by the IACP as “proprietary” information. It is an argument that if upheld in court could reinforce the decision in recent years by many government entities to use private search firms to take applications for positions and then turn over a smaller list of finalists to the public bodies that make the hiring decision.

Tennessee Attorney General Herbert Slatery issued a legal opinion in May that concluded the Metro Nashville Schools board had to release the names of all who applied to be superintendent of the school system even though a search firm was involved.

Slatery quoted the state’s public records act.

He specifically quoted the section that reads: “records, employment, applications, credentials and similar documents obtained by any person in conjunction with an employment search for a director of schools or any chief public administrative officer shall at all times, during business hours, be open for personal inspection by any citizens of Tennessee.”

Evans ruled Friday in the lawsuit filed by The Commercial Appeal against the city of Memphis and the IACP. The IACP fielded the applications for the city and then sent a list of six finalists it recommended to Mayor Jim Strickland.

Evans’ findings and order were immediate unless the city and/or the IACP file a timely appeal.

City chief legal officer Bruce McMullen said that same day that the city would appeal.

“The city is committed to casting a wide net for its police chief search, and will resist any efforts to hamper that process,” McMullen said in a written statement.

Strickland is currently interviewing six finalists selected by IACP for the position and intends to name a police director, subject to Memphis City Council approval, in August.

Strickland has said the city’s $40,000 contract with the association for the search specified that the city would not get a list of everyone who had applied, only a list of finalists.

McMullen referred to the list of those who applied as “proprietary information.”

“The city feels that protecting its vendor’s proprietary information is essential in that it helps secure a larger pool of vendors and thus more competitive services benefitting the city,” he said.

Strickland had said disclosing the names of all who applied could have a chilling effect on getting the best candidates for the job because some applicants would not want their current employers to know they were looking for a new job.

McMullen elaborated on that in his response Friday, saying “at least two candidates withdrew their names from this process because of this lawsuit, thus shrinking the pool for consideration.”

The response did not say how the city knew two applicants had withdrawn if the city did not get a list of everyone who submitted an application.

Evans considered the general argument and ultimately rejected it.

“While some candidate may experience problems with their current employer as a result of their names being made public, candidates assumed that risk by applying for the job,” Evans wrote. “If a candidate has been chosen as one of the top six, or even ultimately as the police director, his/her name knowingly would have been made public. As a result, this argument involving secrecy is not persuasive.”

He also returned to the section of the Public Records Act cited in Slatery’s legal opinion, which attorneys for The Commercial Appeal also used in their arguments to make the names of the applicants public.

Evans sided with the newspaper on that specific point, ruling that “the director of police position is comparable within the meaning of the Public Records Act to that of a Chief Administrative Officer.”

Evans also found that the IACP “performed a critical function typically performed by government” and was paid with public funds.

“Although the city does not regulate and control IACP overall business activities, with regard to the search for a police director, the city provided IACP with the job requirements and delegated important decision-making authority to IACP over the process,” he wrote.

Evans wrote that his determination of functional equivalency found that “not all factors weigh in favor of functional equivalency.”

“But the court finds that overall the factors weigh in favor of finding IACP the functional equivalent of the city with regard to the search for a police director,” he said.

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