Some years ago, before the current city and county mayors were in office, the separation of powers within local government blurred and it’s been difficult to put the genie back in the bottle ever since.

The Shelby County Board of Commissioners are looking to muddy it even more with its vote to add a question on the November 8 ballot that would requires its concurrent for the Shelby County Attorney to be fired.  It’s a strange position, largely an effort to stick their thumb in Mayor Mark Luttrell’s eye, considering that it’s tangential to the commissioners’ burning desire to have its own attorney.

In Shelby County Government, the Board of Commissioners hypnotized themselves into believing they have many of the powers bestowed clearly with the executive branch in the charter.  Most of all, it’s manifested itself in the commissioners’ desire to have their own attorney – free from the Shelby County Attorney’s office – who will essentially treat them as a private client rather than interpreting decisions within the context of public law applying to county government as a whole.

As we have written before, Shelby County Mayor Mark Luttrell was right to resist this effort by the commissioners to elbow their way into authority that is clearly his, and with the hiring of a separate lawyer for Memphis City Council as a cautionary tale, he could foresee the problems that were likely to result.

The county charter, which, in many ways, is superior to the Memphis charter, clearly states that the mayor will appoint the county attorney with the concurrence of the board of commissioners and the county attorney “shall act as chief counsel to Shelby County Government, and he shall act as legal advisor to the county mayor, the county commission, and to all departments, officers, and officials…”

A Favorite Fiction

In this way, the aim was to ensure that individual elected officials did not get legal opinions designed to justify their whims independent of the framework of applicable a governmental law that applies to everyone else.  The commissioners’ motivation became obvious when one commissioner complained that she was tired of being ruled out of bounds legally and wanted a lawyer who would pursue her ideas.

What made the comment laughable to people in the various administrations is that most can recall county mayors railing against an opinion of the county attorney limiting a decision’s options, so the notion that the mayor gets the favorable opinions he wants is a favorite fiction in some parts of county government.

City Council got its own attorney when Memphis Mayor Willie W. Herenton approved it although the city charter does not provide for one.   Then again, Mayor Herenton also knew that through sheer force of personality, he would not allow City Council to drift too far afield, and we cannot think of a single instance when he stormed into a Council meeting that he did not get his way.  (Late in his terms, he even convinced them that their job was largely to approve zoning.)

When some county commissioners were intent on hiring their own lawyer, one of them read what he said was a charter provision in the City of Memphis charter that expressly allowed it, but that’s not what he read.  The city charter, according to Jimmie Covington, does not grant the City Council authority to appoint its own attorney, and the commissioner was actually reading a Council resolution adopted when Mr. Herenton allowed them to move ahead with the hiring, not the city charter.

Blame It On W.W.

In the years after Mayor Herenton left office, City Council, acting on the advice of its lawyer and without the pushback from the mayor, blurred the lines between the branches of government, and we contend that the best evidence of that usurping of executive authority was when the Council injected itself into the greensward controversy and with a legal opinion to back them.

Contracting authority has always rested with the executive branch, and the city mayor’s power has always been the envy of the county mayor.  We thought of when Memphis City Council said it was setting out the terms for Wiseacre Brewery’s lease of the Coliseum, which members said they were sending to the Strickland Administration for its approval.  We are assuming that the legislative and executive branches worked together on the proposal, but still, we believe the regular process with the mayor negotiating contracts and the legislative body voting them up or down is cleaner and provides checks and balances that ensure the strongest possible business deal for city government.

In looking across Main Street at the role of the City Council lawyer, many county officials see it as a clear lesson about how the legal process should not work.  There, it’s often unclear who is issuing the definitive legal opinions or who has that responsibility.  Also, there is the feeling that when an attorney answers to a legislative body, that person’s priority is keeping his votes in place rather than contributing to a cohesive, consistent legal framework for government operations.

All of this makes Mayor Luttrell’s case strong for why he has taken a hard line on the board of commissioners having its own lawyer and why he is intent on ensuring that Shelby County Government has a strong mayor form when he leaves office.  In fact, there’s no more important legacy for him than this.

The Charter Is Clear

Here’s the thing: City of Memphis government was intentionally established as a “strong mayor” form of government, and seminal to that is the contracting authority and other executive responsibilities for city government.  The first two county mayors – Roy Nixon and Bill Morris – understood that they had less authority than city mayors but that they set out to make the executive branch as strong as possible and to live up to the full promise of the Shelby County Restructure Act and later its charter.

However, by the time of Mayor Luttrell’s election, there was no longer what the first mayors called a clear, bright line between the branches of county government.

We don’t want to sound doctrinaire, but from where we sit, there is a reason that separation of powers is a fundamental principle of American government.  It is aimed at delineating clearly various branches’ responsibilities and it is to prevent the concentration of power and encourage checks and balances.

Back to Basics

This does not mean that the branches should not work together and act as partners for the good of the community.  It just means that when the process is followed for the executive branch to negotiate agreements and contracts and for the legislative branch to approve or disapprove them, it maintains that bright line that helps the public understand roles, responsibilities, and accountability.

That was one of the motivations when modern City of Memphis government was created almost 55 years ago and when Shelby County Government was restructured 40 years ago, because back then, the legislative and executive duties overlapped and discouraged clear accountability.

That said, we bet that an attorney whose paycheck depends on giving a legislative body what it wants could tell us why these improvements to government should be turned inside out now.


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