By Eric Gottlieb
It’s even worse than we thought.
The three referendums on the ballot in this election cycle have been widely criticized for being confusingly worded, for being contrary to the 2008 vote in which term limits and Instant Runoff Voting passed overwhelmingly, and for being a politically self-serving act by the Memphis City Council that put them on the ballot. Deceptive claims made by council members, such as trying to associate the implementation of IRV with the purchase of new voting machines which will happen with or without IRV, have raised additional doubts, as has the council’s decision to use $40,000 of taxpayers’ money to lobby voters to cast ballots against the very measure they passed ten years ago.
Members of the council have made dubious claims and distortions about the merits of IRV and term limits. They have ignored the fact that IRV would allow those with difficulty in getting to the polls a greater voice at the polls and the dangers of the plurality vote, which is what we will have if the third item passes.
These are reason enough to vote “against” on all three measures, but there are additional concerns that have not received widespread attention. Specifically, a careful reading of the first item shows that it would increase the number of allowed terms from two to four, not to three, as is commonly understood; that there are costs associated with the first and second amendments that have not been declared, as required by state law; and that members of the council stand to benefit not just politically but also financially if the first measure passes.
The first item states that “…no person shall be eligible to hold or to be elected to the office of Mayor or Memphis City Council if any such person has served at any time more than three (3) consecutive four-year terms…” (full text below). Someone who has served three terms has not served “more than three” terms, so would be eligible to run for and serve a fourth term. The council and the media has repeatedly stated that the measure allows for three terms, but that simply isn’t how the language reads.
It is possible to interpret the statement as saying that a person completing a third term could be “elected” again toward the end of the third term, not yet having served “more than” three consecutive terms, and could get sworn in, but could not thereafter “hold” the office. This requires a strained reading where “hold” and “elected” would preposterously be treated differently at the crucial time. The best case is that there is real ambiguity which could result in costly litigation. The worst case is that it would allow Council members to serve twice as long as they’re currently allowed— and four years longer than even the referendum’s proponents claim.Tennessee Code 6-53-105(c) says ballot language must include a statement that “…shall indicate the chief financial officer’s estimate of the net cost savings, net cost increase, or net increase or decrease in revenues, on a yearly basis, if any, that will be effected if the amendment is approved” (full text below). Both the first and second measures are in violation of this requirement.
The first item includes a statement by Interim Director of Finance Doug McGowen stating that the amendment “…shall have no impact on the annual revenues and expenditures of the City.” This apparently fails to take into account that city employees are vested for the purposes of retirement benefits after ten years. Thus, a mayor or member of the council is not eligible to collect the city’s contributions to their retirement if they serve for 2 terms (8 years) but is eligible if they serve for 3 terms (12 years) or 4 terms (16 years). The structure of Memphis’ retirement benefits is complicated because they were recently revised. Employees from before July 2016 (which includes 9 out of 13 members of the council) are on a tiered hybrid plan to which the city contributes more generously than to the flat plan for employees hired after that time. Extending the limit to three terms could cost the city up to $21,683 per year initially. If it is extended to four years, the initial cost would be up to $25,272 per year. As our elected representatives are gradually replaced with new hires, the cost would eventually drop to $8,432 per year. These figures do not include costs associated with any raises the mayor or council might receive, the costs of administering disbursements, or retirement benefits for members of the administration (many of whom are paid six-figure salaries) that often depart with the mayor. It is difficult to see how increasing the allowable number of terms would not impact the city’s finances. Under state law, the voters must be informed of these costs on the ballot itself. The ballot doesn’t so inform them. In the second item, Director of Finance Brian Collins states ” that without speculating about certain assumptions I cannot estimate whether the foregoing amendment will have any impact on the annual revenues and expenditures of the City” (full text below). Estimates, by definition, require speculation; the law thus requires Mr. Collins to speculate, which he explicitly declines to do. This is plainly contrary to both the letter and the intent of the Tennessee Code.
Voters have a right to know when their elected officials stand to benefit financially from the policies they advance. Because of the way the city structures its retirement policies, nine members of the council could reap personal financial benefits of $16,254 if they serve three terms, or $25,585 if they serve four terms, should the first measure pass. The four new members would take home $5,418 if they serve three terms and $7,224 if they serve four terms.
The numerous concerns about these ballot items give Memphians plenty of reasons to reject all three amendments on November 6th.
First referendum (City of Memphis Ordinance #5676): Shall the Charter of the City of Memphis, Tennessee be amended to provide no person shall be eligible to hold or to be elected to the office of Mayor or Memphis City Council if any such person has served at any time more than three (3) consecutive four-year terms, except that service by persons elected or appointed to fill an unexpired four-year term shall not be counted as full four-year term? I, Doug McGowen, Interim Director of Finance for the City of Memphis do hereby certify that the foregoing amendment shall have no impact on the annual revenues and expenditures of the City.
Second referendum (City of Memphis Ordinance #5669): Shall the Charter of the City of Memphis, Tennessee be amended to repeal Instant Runoff Voting and to restore the election procedure existing prior to the 2008 Amendment for all City offices, and expressly retaining the 1991 federal ruling for persons elected to the Memphis City Council single districts? I, Brian Collins, Director of Finance for the City of Memphis do hereby certify that without speculating about certain assumptions I cannot estimate whether the foregoing amendment will have any impact on the annual revenues and expenditures of the City.
Tennessee Code 6-53-105(c): On any ballot on which an amendment to the charter of a home rule municipality appears for approval or disapproval by the electorate, a statement certified by the chief financial officer of the municipality shall appear immediately after the language describing the amendment but before the questions “For the amendment” and “Against the amendment.” The statement shall indicate the chief financial officer’s estimate of the net cost savings, net cost increase, or net increase or decrease in revenues, on a yearly basis, if any, that will be effected if the amendment is approved. The statement by the financial officer shall be made readily distinguishable from the language describing the amendment itself.