Shelby County voters will decide in the August election (now in the early voting stage) if the Shelby County Board of Commissioners will have its own attorney.
We should vote no.
Put simply, it is a solution without a problem. Or said another way, it is much more risk than reward if it passes.
The cautionary tale for this vote can be seen across Main Street from the county commission chamber – where the attorney for the Memphis City Council appears appointed for life, where no other attorneys are ever asked if they are interested in the job, and where he has established a power base that regularly oversteps the position’s purpose.
With that in mind, voters are being asked to amend the county charter, which is its constitution, to give the commissioners the power to appoint their own lawyer.
So Many Questions, So Few Answers
It’s not like the language of the county referendum leaves many crucial questions unanswered on how this change in structure would be implemented.
- Will this person be a part-time or a full-time employee?
- What will this person’s salary be and how will it be determined?
- If the lawyer is part-time, will that person receive a county pension and county health insurance?
- What is the process for selecting this person and will it be open to all attorneys who want to apply?
- Does this person have a specified term of employment and will commissioners periodically issue an RFP for legal representation?
- Will this person have restrictions on who he/she can represent? Will suing other government agencies, city government, or the school district be considered a conflict?
- Is this person’s employment contingent on giving the commissioners the opinions they want instead of objective rulings on public law? After all, commissioners retain the right to fire this person without cause which could result in the lawyer’s focus being on currying favor in legal opinions to keep seven votes of support for the job.
Public Lawyers are Different
Many of these questions are prompted by the experiences in Memphis City Council with its attorney. Commissioners say questions will be answered when and if the amendment to the charter is approved.
That’s regrettable because changes to the county’s rules and structure should not be handled so cavalierly.
These are no small matters. Commissioners’ answers will determine the objectivity expected of a public lawyer. Now, all we have is the cold comfort that the commissioners will do what’s right.
Here’s the thing: Government attorneys are expected to serve the “public interest.” That is not guaranteed to happen when commissioners are treated more like private clients.
City Council’s Cautionary Tale
This is seen in City Council, where members are treated like they are private clients. Rulings often don’t feel like they are impartial readings of the law. Rather, they feel that they are about providing legal opinions that make City Council members happy in order to appease enough of them to keep his job.
It must work. After all, although the City Council members have term limits if eight years, its attorney has now been in that job for 38 years. There is no evidence during those almost four decades that City Council has ever opened the position for proposals from other lawyers for the parttime job paying him $139,000 a year.
It would seem logical that at least every eight years, an RFP would be issued by City Council so other attorneys could apply. It’s an attractive position because in addition to the salary which can cover overhead of a law firm, there’s the health and retirement benefits that go with it.
The Council attorney has created such a position of power he’s referred to as the 14th City Council member and regularly puts his thumb on the scale on a City Council decision. Some lawyers joke that he and Supreme Court justices have a lot in common: they were appointed for life and get to decide if they have a conflict of interest.
Creating a Power Base
Evidence of the exercise of his power has been shown numerous times. They’ve included injecting himself into the hiring of a CEO for MATA, injecting himself into the screening of energy consultants to consider alternatives to TVA, lobbying Council members to give the Overton Park greensward to the zoo; and acting as co-counsel on an MLGW bond issue that went before City Council along with his opinion that it was not a conflict.
The blame is not totally on him. It is also on Council members who use him as a smoke screen to legitimize votes and to give them political cover.
August 15, 2022 – City Council Members Limited to 8 Years; Attorney Now in 30th
From the first days of the new Shelby County Government in 1976, legal advice for the board of commissioners came from the county attorney’s office which was identified in the charter as the legal advisor for every elected official and department of county government. The county attorney’s office assigned an assistant county attorney to advise the commissioners.
Since county government was restructured in 1976 and reiterated when it became a home rule county in 1984, this has been county operating procedure pretty much since then although the commissioners have complained about not having a lawyer they appoint.
In 2015, the commissioners voted 8-5 to hire its own “special purposes” lawyer. The county attorney said that the charter required any lawyer hired by the commissioners to be a member of the county attorney’s staff. Keep in mind: The county attorney is appointed by the mayor but that person requires the approval of the county commissioners.
These were the days when the board of commissioners were engaged in a petulant tug of war with Mayor Mark Luttrell in its effort to take some of his authority. That was despite county government being restructured to end the blurred lines between legislative and administration functions; however, in those years, more and more, the commissioners were intent on usurping the mayor’s authority.
Friction is the Future
That’s where the hiring of former county commissioner Julian Bolton comes in. He was hired in 2015 by the commissioners in the midst of these turf battles. His reputation as a line-blurrier and his antagonism toward the administration was well-known and likely contributed to his hiring.
His first declaration was to state that the county charter subordinates the county mayor to the board of commissioners and that the board of commissioners is the county’s chief governing authority. It was a novel legal ruling which seemed to turn the county’s charter on its head since the purpose of the restructure of county government in 1976 was to create a “strong mayor” form of government.
Over the years, the commissioners have contended the county attorney delivers the legal opinions that the mayor wants. And yet, over those same years, mayors have erupted in fury because the county attorney played it down the middle, stating the law without fear or favor.
Commissioners have proven in the past that this is not what they want. They have wanted someone to tell them what they want to hear. They have wanted someone to fight with the mayor on their behalf.
It’s difficult to point to a good reason the commissioners need their own lawyer. The last thing Shelby County Government needs is more bureaucracy. More fighting over turf. And more friction.
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