VOL. 133 | NO. 146 | Wednesday, July 25, 2018
Shelby County Commission, Mayor Still Waging Legal Battle
By Bill Dries
Shelby County commissioners set the stage Monday, July 23, for a final showdown with Shelby County Mayor Mark Luttrell over who represents what part of county government in legal matters.
(Daily News File/Andrew J. Breig)
Commissioners added an ordinance amendment by commission chairwoman Heidi Shafer that would bar the county attorney from representing county government in civil litigation in which the county mayor or another part of county government is suing the commission.
It would also require commission approval for the county attorney to hire outside or special counsel unless the county attorney “certifies” to the commission chairman that the matter those attorneys are hired for will not go over $50,000 in hourly rates or contingent fees.
The ordinance got seven yes votes on the first of three readings. Under the commission’s rules, any ordinance automatically advances through first and second reading with the final vote on third reading being a binding vote.
The commission’s legislative policy adviser, Julian Bolton, described the measure as an amendment to an ordinance. But the heading of the measure calls it “an ordinance amending the Shelby County charter,” citing the article of the charter involving the county attorney.
Charter amendments require public approval in a referendum vote.
Third and final reading of the ordinance is scheduled for the last meeting of the commission in August – the last meeting of the current four-year term of office for the mayor and commission.
On Sept. 1, a new mayor elected in August will take office along with at least eight new commissioners on the 13-member body.
During the last two years of the current term, a majority of commissioners and Luttrell have been at odds over the commission’s move to hire its own legal counsel as the Memphis City Council does.
Luttrell has taken the commission to court over the matter, saying the county charter is different than the city charter. The county attorney is appointed by the county mayor and confirmed by the commission.
Luttrell contends the county attorney represents all of county government and not just the administration.
The commission moved to hire Bolton, a former county commissioner and an attorney who bills the county by the hour, under the ability of the chairman and commission to hire its own advisers. The decision triggered an initial Chancery Court lawsuit by Luttrell and then a veto by Luttrell when the commission voted to renew Bolton’s contract.
The commission then overrode Luttrell’s veto.
Meanwhile, an attorney for the Mechanical Contractors Association of Memphis has told county attorney Kathryn Pascover that the construction trade group intends to sue the county over a county program to provide a greater percentage of county government contracts to minority and women-owned business enterprises – known at MWBEs.
The program, which has been active for 18 months, followed a disparity study documenting racial and other disparities by categories in the awarding of county contracts.
“Ultimately, the MWBE program falls far short of its claim to ‘ensure that county contracts are awarded in a manner that promotes economic inclusion of all segments of the business population regardless of race,’” reads a draft of the lawsuit sent by attorney Edward R. Young to the county. “The Disparity Study does not provide a constitutionally sufficient justification for the MWBE program’s race-based ‘remedies,’ not in whole or in part. In addition, none of the race-based ‘remedies’ are narrowly tailored so as to otherwise survive constitutional scrutiny, not in whole or in part.”
The lawsuit draft, to be filed in Memphis federal court, contends the provisions of the plan “openly discriminate in both form and substance, as well as in practice and application.”
Young writes that the group has worked with the county on possible revisions but called on the county to suspend the MWBE program by Monday at 5 p.m. or the lawsuit would be filed.
The commission took no action to suspend the program.
“We are going to keep pushing,” county commissioner Van Turner said at the end of Monday’s committee session. Turner has been among the commissioners pushing for changes to the MWBE program to make some provisions clearer and more focused on minority business contracts.
The commission’s dissatisfaction with how the 2017 program has been interpreted by Luttrell’s administration led the commission earlier this year to impose a moratorium lasting to the end of August – the end of its term and Luttrell’s – on any budget amendments or contracts over $50,000. The commission must approve any exceptions to the moratorium.
In other action Monday, the commission extended five contracts for health insurance coverage for county employees for another year. The extension will include some cost increases.
County deputy chief administrative officer Kim Denbow told commissioners the administration should be able to handle the additional expense based on past experience. But if the administration can’t, Denbow said it would move toward bidding out the contracts. The first of the five contracts runs out in September without a negotiated extension.
The one-year extensions effectively make the ongoing competition for health insurance coverage a matter the new commission and mayor will deal with.
The commission also approved Monday the city of Memphis’ plan to redevelop the Fairgrounds so it can seek the approval of the Tennessee Building Commission in the fall for a Tourism Development Zone to help finance the project. The same plan goes to the Memphis City Council Tuesday for a vote.
The TDZ uses incremental sales tax revenue from in and around the Fairgrounds to finance public improvements.
And the commission approved the economic impact plan for the University District required for a tax increment financing – or TIF – zone to fund public improvements in the area by the University of Memphis, with incremental city and county property tax revenue captured in the area.