VOL. 132 | NO. 240 | Tuesday, December 5, 2017
County Commission Renews Opioid Legal Skirmish with County Administration
By Bill Dries
Shelby County Commissioners voted Monday, Dec. 4, to hire another attorney to represent it in an ongoing legal battle with county mayor Mark Luttrell over opioid litigation. And the commission approved a resolution declaring opioid abuse a “public nuisance” as an opening to legal depositions of opioid manufacturers and distributors.
Both actions were added onto the commission agenda during Monday’s commission session and were followed by intense debate among commissioners.
Attorney Allan Wade, who is the attorney for the Memphis City Council and also represents the city administration on individual matters, will continue to represent the commission in a Chancery Court quest to remove an injunction against the commission.
Chancellor Jim Kyle ruled last month that the commission overstepped its duties in the county charter by hiring a law firm and filing a lawsuit in Circuit Court against two dozen opioid manufacturers and distributors. Kyle said that is the responsibility of the county mayor under the county charter.
But Kyle refused to order the opioid lawsuit in Circuit Court to be withdrawn or voided. Instead he gave Luttrell until the end of the year to consider filing a motion for the administration to intervene in the Circuit Court case.
Luttrell and the county administration have filed a motion to intervene since then.
But county commission chairwoman Heidi Shafer has said the commission is negotiating terms of the administration’s intervention in the lawsuit. Luttrell has taken the position that the administration will intervene to oversee the direction of the case including possibly replacing the attorney hired by the commission in the matter.
“This agreement is solely to defend this commission in the lawsuit brought by the mayor against the county commission in Chancery Court – nothing else,” Wade told commissioners. “My approach is to end litigation as quickly as possible.”
Kyle is to hear a motion Friday by Wade to dissolve his earlier injunction against the commission.
The nuisance declaration includes a long list of opioid manufacturers and distributors the commission would like to question.
While the commission doesn’t have subpoena power on such a matter, Wade said it sets the stage for depositions in the Circuit Court lawsuit.
“You are utilizing the subpoena power to get the testimony you need to make your decisions,” Wade said. “You don’t have it independent of a lawsuit.”
But commissioner Mark Billingsley questioned the broad scope of companies including local employers.
“You are calling out some of the largest employers in Shelby County,” he said. “We’re pretty much being judge and jury here.”
Commissioner Steve Basar termed it a “laundry list.”
“These are major companies. We are a distribution center,” he said. “We are in essence saying that major employers who live in Shelby County and pay property taxes in Shelby County are illegally marketing opioids and I can’t stand for that at all.’
“This is the way you find your facts,” replied commission chairwoman Heidi Shafer, who directed the filing of the Circuit Court lawsuit that was later ratified by the commission. “This is the way you find your dollar amounts.”
Shafer contends the commission has to act because of the urgency of opioid addiction in Shelby County and Wade said the commission’s legislative function includes studying and acting on such issues.
“One of your legislative functions is to investigate and develop information from which you can make informed decisions on how to legislate,” he said.
But Billingsley distinguished between the urgency of the increase in people addicted to and dying from opioid overdoses and the lawsuits over the marketing and distribution of opioids.
“Every attorney in this county sees this as an opportunity to make more money,” he said. “I think of the poor victims of opioids who have been forgotten weeks ago.
Commissioner Terry Roland said the attorneys in the Circuit Court suit are “not costing the taxpayers anything.”
“The only thing costing the taxpayers is our attorney that we have to defend ourselves because the mayor sued us,” he said referring to the Chancery Court lawsuit. “All you want to see is through the rose-colored glasses of what the mayor wants you to see. The mayor doesn’t run me.”
In other action Monday, the commission revisited its final vote on proposed pay raises for the mayor, sheriff, trustee, register, assessor and county clerk that failed in a set of commission votes in November.
The commission resurrected both ordinances and raised the pay of the sheriff to $116,955 a year to $135,575. But the commission left the county mayor’s pay at $142,500 a year.
The pay of the sheriff and mayor are tied together in the county charter. By the charter, the sheriff’s pay must be no less than 80 percent and no more than 95 percent of the county mayor’s pay.
The pay raise to $135,575 is 95 percent of the county mayor’s current pay of $142,500.
Because the pay raise for the sheriff, effective with the winners of the 2018 county elections, is a substantial change from the original proposal’s pay raise to $154,890 a year the ordinance has its final vote at the Dec. 18 commission meeting. And on final reading, the ordinance needs a nine-vote two-thirds majority to pass.
Commissioner David Reaves said he plans to propose a county charter amendment at a later date that would break the charter’s connection of the pay of the mayor to the pay of the sheriff.
The commission voted down a bid to resurrect proposed pay raises for the trustee, county clerk, register and assessor.
Commissioner Walter Bailey considered moving to reconsider a third ordinance voted down in November that would have raised the pay of all 13 county commission positions from $29,100 to $32,100. But he never formally moved for reconsideration.
Meanwhile, the commission voted down a $4.4 million five-year contract with Aramark Correctional Services LLC for food service at the Shelby County Jail through the Shelby County Sheriff’s Office.
The commission delayed a vote on the contract in November after the newly appointed chief diversity officer to the commission, former county commissioner Shep Wilbun, said Aramark had failed to meet goals for locally-owned and minority-owned business participation in the contract.
Aramark’s attorney, John Farris, denies that is the case and said again Monday that Aramark made a “good faith effort.”
“We have complied with the county’s requirements,” he said. “We submitted a valid proposal.”
Commissioners Eddie Jones said what Aramark called locally owned and minority firms weren’t certified as such.
“How can you have a good faith effort if all of your people are not qualified?” he asked. “I cannot support this because I’m not going to vote to create a law and turn around and knowingly vote to violate the very law I created.”
The Sheriff’s office and the county administration have an agreement with Aramark to continue food service to the jail through the end of February.
The commission approved third and final reading of an ordinance creating a Binghampton Redevelopment Trust Fund to hold the property tax revenues from a tax increment financing – or TIF -- district in the area that would run for 30 years and generate $26 million over that time in city and county property tax increment to finance blight elimination including proposals for affordable housing.
The TIF district will be overseen by the city-county Community Redevelopment Agency.
The commission also gave final approval Monday to a hike in air emission fees that businesses pay. The fee per ton of emissions goes from $48 to $53. And the annual major source permit fee for non-automobile emission goes from $1,000 to $1,500.