Recently, we posted a commentary about how the Shelby County Board of Commissioners is trying to fundamentally change the form of government approved by voters and that subject sparked a discussion about the hiring of attorneys for local legislative bodies and the way that approval of the minutes have been used in inappropriate ways.
To elaborate on this, we asked Jimmie Covington, veteran Memphis reporter with lengthy experience covering governmental, school, and demographic issues for his expertise on these questions. Jimmie is now a contributing writer with The Best Times, a monthly news magazine for active people 50 and older. We are grateful to him for writing this post.
By Jimmie Covington
Because of a rule adopted decades ago by Memphis City Council members, citizens leave council meetings with no certainty that council actions they have just witnessed are final.
With a limited exception, no other governmental body in Shelby County operates in this manner. And there are probably few other local governmental bodies in the nation that treat (or mistreat) the public in this way.
Many or all the members of the current council may believe incorrectly that a council rule that items may be reconsidered until the point that the minutes of a meeting are approved is a part of Robert’s Rules of Order and stems from state law or is a practice commonly used by other governmental bodies.
Council members state that no action is official until the minutes are approved. This statement is an oversimplification and doesn’t correctly describe the situation. All matters are official at the time the votes are taken. It’s just that under the council’s rules they may be reconsidered at some future time as long as the motion to reconsider occurs before adoption of the minutes. And there is no time requirement for adoption of minutes.
A motion to reconsider must be made by someone who voted on the prevailing side. There have been numerous times through the years when a council member has voted on the opposite side from the one he or she favored in order to be on the prevailing side so that he or she could move for reconsideration at a later meeting.
Because of the way the council conducts its business, members of some other groups across the community have been misled to believe there is some general requirement that the minutes must be approved to make a matter official.
Robert’s Rules of Order was designed to allow groups to conduct business in an orderly and timely manner and allow differing viewpoints to be heard in a fair manner.
According to Robert’s, an action can be reconsidered as long as the reconsideration motion is made before the end of the meeting in which the action was taken. The rules do not permit a reconsideration motion to be submitted at a future meeting.
The council’s reconsideration rule obviously thwarts the timeliness goal.
A Tennessee appeals court has ruled in a Shelby County case that the keeping of minutes is a “ministerial act” and that minutes do not have any impact on whether a governmental body’s actions are official.
In Mississippi and perhaps some other states, a governmental body’s minutes have stronger legal standing than this but not in Tennessee.
It is unclear exactly why Memphis council members decades ago adopted the extended reconsideration rule. However, it is clear that the rule is for the benefit of council members themselves and does not serve the public well.
The procedure automatically gives council members a second shot on all items on which they have supposedly taken final votes.
The council is only able to do this because of a significant weakness in the city charter. The charter does not include a time requirement for items acted on by the council to be presented to the mayor for signing or veto.
The Shelby County charter on the other hand has a time limit that would prevent the County Commission from using a similar procedure at least on items that are approved.
The county charter specifies that the commission’s clerk has four days to get resolutions and ordinances that are passed by the commission to the county mayor. The mayor then has 10 days to sign or veto a resolution or ordinance. If he does neither during the 10-day period, the item goes into effect without the mayor’s signature.
Most commission meetings are two weeks apart and the county mayor can sign any item as soon as he receives it. On some issues that have needed fast action, the official document of the item has been prepared the same day the commission approved it and the county mayor has signed it thus completing governmental action on it that same day.
Aware of the procedure used by the City Council, commissioners several years ago approved a rule that if an item is rejected by the commission, someone voting on the prevailing side can move to have it reconsidered as long as the motion comes before approval of the minutes. Presumably this rule is still in effect. Commissioners should look at repealing it.
New members being elected to the City Council this year could provide a service to citizens by leading a move to repeal the council’s reconsideration rule.
That would bring the council’s fairness in dealing with citizens up to the same level exercised by other governmental bodies across the county and across the nation.
On another matter that has arisen recently, the County Commission has voted to appoint its own attorney despite an opinion by the county attorney that his office has the duty to represent and advise all branches of county government on legal matters. Some commissioners have pointed out that the City Council has its own attorney. At least one media outlet has reported that the city charter allows the council to have a separate attorney.
However, the city charter has no wording that allows the council to choose its own attorney. A review shows that the council has a separate attorney only because Mayor Willie Herenton agreed to the procedure when he was in office.
Mayor A C Wharton did nothing to change the procedure. It is unknown whether the new mayor, Jim Strickland, will deal with the issue or allow it to continue as it is. However, the charter appears to be clear that the mayor is in charge of all contracting and the hiring and appointment of all city employees including those who work for the council.
