On January 1, 2008, nine rookies and four veterans will
be sworn in as Memphis City Council members. It is the largest number of
first-termers since the original council in 1968.
Since the elections, the nine of us have been undergoing
an extensive educational process on the substance of city government and the
procedure of the council. Fulfilling our campaign promises will be more
difficult than making them and depends on relationships with council members
and the administration and the merits of our positions.
The most interesting area of my education has been the
opportunity to review the city charter. Among the things I – and we – have
learned: The 1966 Home Rule Amendment changed much of the 1930’s-era charter,
but many of the articles of the older charter are still in effect because the
newer charter did not revoke them.
Enter Dr. Stephen Wirls, a Rhodes College professor who
has studied the charters exhaustively and led our review of them. Dr. Wirls
disputed the widespread public understanding that the charters provide for a
“strong Mayor” form of government. On the contrary, he opined that, in some
ways, the Home Rule Amendment Charter (“HRA”) gives more power to the Council
than the U.S. Constitution gives to Congress.
The HRA provides that the Mayor “shall be responsible to
the Council for the administration of all units of the City government under
his jurisdiction and for carrying out policies adopted by the Council.” The
Council “shall have full power [my italics], as now provided, to pass,
for the government of the City, any ordinance not in conflict with the
Constitution or laws of the United States, or the State of Tennessee, within
the specific limitations set forth herein below….”
Further, the Council has approval power of the
appointment and removal of division directors, the President of MLG&W, and
members of all boards and commissions. The Council has
Athe right…to
approve and adopt all budgets.”
Of special interest: :[T]he Council shall be vested
with all other powers of the City not specifically vested in some other
officer or officers of the City.” This catch-all provision appears to
give the Council a great deal of unexpected authority. (One problem: no one on
hand for the orientation could identify any “powers of the City not
specifically vested” in some other office.)
Just think of the implications of the first proviso
quoted above: The Mayor shall be responsible for carrying out policies adopted
by the Council. On the face of things, it would appear that the Council could
adopt “policies” and the Mayor would have to follow them.
Ay, but there’s a rub. “The Council shall not, however,
exercise executive or administrative powers nor interfere in the operation of
the administrative divisions.” On one hand, the HRA gives the Council the
power to set “policies,” but on the other hand, the charter prohibits
intrusion into “executive or administrative powers.”
The HRA also gives the Mayor the power to contract and
prohibits council members from “suggesting or promoting the making of
particular…contracts with any specific organization.”
It is not hard to imagine that a Council’s definition of
a “policy” interfering with a Mayor’s definition of an “administrative
power.” At the orientation, we discussed a scenario whereby the Council might
pass an ordinance mandating that every public school have a police officer
assigned to it full-time. Dr. Wirls opined that the Council had such power,
but warned that a Mayor could dispute it as an intrusion on administrative
decision making.
Many issues may fit into this grey area, and both sides
would appear to have a good faith basis for their respective positions. As
one of our facilitators suggested, conflict is not so bad if it involves a
serious and respectful disagreement as to public policy.
However, such conflict, and the resulting court battle,
should be avoided if possible with the council and the administration working
together. The mayor and each member of his administration with whom I have met
has expressed the desire to work with the new council.
At this early stage, I do not have an opinion as to the
correct interpretation of the charter, but I am optimistic that we can avoid the
conflict and come together for the betterment of our city.
(Jim
Strickland, a lawyer and former Democratic chairman, will represent the city’s 5th
District.)
