Voters emphatically supported term limits yet again, but it does nothing to affect the “14th City Council Member” who is now in his 30th year.
14th City Council Member is the nickname often given to City Council Attorney Allan Wade.
As Council members have come and gone, his influence, impact, and authority have only grown to the point that visitors to Council meetings can be forgiven for sometimes thinking he’s a member of the body.
But while City Council members are limited to two terms totaling eight years, Mr. Wade has been in his parttime appointed position for 30 years. He has weathered controversy and conflict of interest complaints while City Council has never opened up the position so other lawyers could apply.
Some lawyers joke that Allan Wade 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.
Energy Expert?
Mr. Wade is now celebrating his 30th year in the $105,621 job where he wields considerable influence over the legislative body’s decisions through his legal – and often policy – opinions and his parliamentary rulings.
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 could cover the overhead of many firms, he receives full health and retirement benefits for the parttime job.
His influence can be seen with opinions related to the decision of whether Memphis Light, Gas and Water – his client – will remain with Tennessee Valley Authority. To top it off, City Council assigned him to recommend who the legislative body should hire as its energy consultant as the process continues.
On the surface, it seems a curious assignment by the City Council since there are professionals in city government with deeper experience and some consultants who could have done this for the Council free of intimations of conflict. It’s not hard to imagine that in other settings, his legal work on MLGW bond issues and lawyer in a utility lawsuit would be considered a conflict.
Yet More Secrecy
At last week’s Council executive session, Mr. Wade said he has vetted 21 companies for the Council’s energy consultant and has boiled the list down to two finalists; however, he refused to disclose their names to Council members – and the public. In truth, there is no reason that the finalists should not be made public but instead their names are hidden behind attorney-client privilege, which seems peculiar since he’s not their attorney, and proprietary information that needs to be protected.
It would be simple enough to tell the companies when they are approached that their names will be made public and if that is a problem for them in receiving taxpayer money in a contract from a public body, they should simply decline to apply.
This confidentiality issue has risen far beyond reason, as shown in Mr. Wade’s explanation to Council and also in MLGW’s refusal to release proposals it has received for electricity. Secret information and secret meetings in the MLGW/TVA process already defy fundamental understanding of the “public’s business” and taxpayers’ rights to transparency, and that is doubly true in what is the most important decision to be made in the recent history of Memphis.
A complication about selection of the energy consultant emerged last week when it became evident that Council Chairwoman Jamita Swearingen had conducted her own search for an energy consultant and Councilwoman Cheyenne Johnson had questions about Mr. Wade’s process and his finalists.
Mr. Wade’s response was essentially an ultimatum for the Council to choose – either allow Ms. Swearingen to go forward or let him continue. There was of course another option, which was for both processes to be merged but White Council members Worth Morgan and Chase Carlisle were quick to back Mr. Wade. They volunteered that he had no conflict of interest in his evaluation, which was a strange comment because it seemed to imply that the chairwoman did.
Back to the Beginning
It was a bravura performance by Mr. Wade, setting things up rhetorically to get his way and by making sure political support was in place for his position.
To understand his acumen, we need to go back 34 years to 1988 when then-Council Chair Michael Hooks was interested in the legislative body getting its own legal advice. Until then, assistant city attorney Bill Bateman who was appointed by the mayor attended City Council meetings and provided legal advice.
Encouraged by Mr. Hooks, Mr. Wade proposed a referendum to change the city charter so the Council would have more control over its operations, which by charter rested with the mayor. Mayor Dick Hackett put a stop to the referendum and stopped payments to Mr. Wade.
In 1992, when Mr. Bateman was not reappointed by Mayor Herenton, it fueled a new push for City Council to have its own attorney. This time, the Council acted, Mayor Herenton blinked, and Mr. Wade was appointed by the mayor to work as Council attorney. There is nothing in the public record that indicates anyone else was considered.
Since his appointment in 1992, he’s been paid extra to represent city government in court. Sixteen years ago, Memphis Flyer reported that his rate was $400 an hour as revealed in an audit of his firm’s fees ordered by Mayor Willie W. Herenton. The audit was undertaken after the mayor said he had “growing concerns” about Mr. Wade’s work for the City Council and suggested that Mr. Wade was “not an ‘independent’ contractor.” At the time of the audit, City of Memphis was setting aside $100,000 a year for potential contract work by Mr. Wade.
Dodging Bullets
In 1997, Mayor Herenton accused Mr. Wade of trying to undercut his authority and threatened not to reappoint him. The attorney’s sin was supporting a 1996 lawsuit challenging the mayor’s authority to move the Bluffwalk behind upscale housing on the river bluffs.
By March, 1997, a month after the kerfuffle, the mayor blinked again and turned over the appointment of an attorney to City Council itself. In return, Council dropped another proposed change to the city charter giving the legislative body more independent authority.
In 2000, eyebrows were raised by Mr. Wade’s representation of the daycare broker, Cherokee Children and Family Services, which was enmeshed in state and federal investigations into fraudulent mismanagement and corruption involving millions of dollars. State officials said he was instrumental in preventing its officials from auditing Cherokee.
Some Council members were concerned at the time that the case tarnished their image through his legal representation of the high-profile investigation against Cherokee, but no formal action was taken.
Ethics Questions
The most serious challenge to his invincibility as Council attorney was in 2005 when he was representing developer Rusty Hyneman. Councilman E. C. Jones accused him of a conflict of interest, saying: “If you’re representing City Council, I don’t think you should be representing people who come before the Council.”
The Commercial Appeal editorialized: “Here’s how bad the ethics situation is at Memphis City Hall. City Council members actually need to tell their attorney he has a conflict of interest, instead of the other way around…Hyneman is one of the community’s most prolific developers, which means his projects frequently must be approved by the Council. And as The Commercial Appeal has reported in stories this month, Hyneman has a well-documented habit of showering gifts and favors on various elected officials.
“Given Wade’s ties to Hyneman, is it any wonder that he hasn’t warned any of the Council members to steer clear of situations that created conflicts, or at the very least the appearance of conflict. Wade doesn’t seem to recognize when his own interests are conflicted. His sensitivity on ethical issues seems to be lacking in other words too.”
In January, 2004, the Council decided to investigate whether Mayor Herenton had improperly steered work on a $1.5 billion bond deal to friends and political allies. The editorial said: “Wade was paid more than $75,000 for work he did on the bond deal. Nevertheless, Wade said he didn’t believe he had a conflict that would prevent him from guiding the Council through the Investigative process. However, on the same day, the Council decided to launch the investigation, Wade proclaimed the bond deal to be a ‘legitimate transaction.’”
The editorial said that Mr. Wade was also an outspoken critic of the city ethics ordinance and said it would have “questionable value.” The editorial continued: “Council members should take steps to show citizens that they do take ethical matters seriously. If Wade is unwilling or unable to limit his outside work to duties that don’t conflict with the Council role, then Council members need to find themselves a new attorney. Assuming public perception matters to them, of course.”
One report at the time said that while Mr. Wade was involved in setting annexation areas for City Council, he was also representing Mr. Hyneman whose business would be deeply affected by annexation decisions.
Representing Council and MLGW at Meetings
Despite the controversy, Mayor Herenton hired him to also represent the administration in some court cases and from 2006 to 2009, Mr. Wade was paid $1.2 million.
As for bond issues, Mr. Wade has been co-bond counsel on several MLGW bond issues while acting as Council attorney. He says it is not a conflict with his City Council work. We are unable to find any record that shows that the City of Memphis Ethics Commission has ever been asked.
Mr. Wade has been co-bond counsel on 17 of 18 MLGW bond issues.
In 2003, he was co-bond counsel for a $1.3 billion revenue bonds sold by MLGW to buy electricity from Tennessee Valley Authority. In 2010, he was co-bond counsel for $460,050,000 in revenue refunding bonds for MLGW. In 2020, he was co-bond counsel for $354 million in bonds being considered by City Council. As expected, Council voted to approve his role.
We’re unable to find any evidence that Council members questioned potential conflict issues or asked the city’s Ethics Office to privately review the issue and to ensure that none of his private clients create conflicts. When the Strickland Administration took office in 2015, it raised questions but it’s not clear how that was resolved.
Councilman Morgan said back then, “he’s the most capable person to do it…I think we’d be foolish not to have him.” It was similar to his cheerleading last week when Mr. Wade’s process for selecting an energy consultant was questioned.
Volatility
In 2016, when the battle over the Greensward was headed to court, a lawsuit was filed that accused City Council and Mr. Wade of violating the Tennessee Sunshine Law with meetings behind closed doors. The lawsuit said that Mr. Wade called Council members to urge them to turn over the Greensward to the zoo. “I can make phone calls,” the attorney said. “I represent the people. I can talk and they can talk to their lawyer all they want.”
While some of his client choices don’t appear to be conflicts of interest, they do raise questions about judgement, considering last year’s attacks on Shelby County Mayors Mark Luttrell and Lee Harris.
Little more than a year ago, he fired off a letter in defense of an ethics charge lodged against Commissioner Edmond Ford Jr. who pushed a $450,000 grant for Junior Achievement and then sold it computers. Mr. Wade also opposed ethics reform being considered in county government, which was reminiscent of his opposition to the city ethics ordinance in 2005.
In an over-the-top response to County Commission Chair Eddie Jones, Mr. Wade attacked Mr. Harris, the county attorney, Daily Memphian columnist Otis Sanford and the Commercial Appeal reporters. He railed about reporters’ “biased and sloppy reporting of this situation but that is to be expected as incompetence is a hallmark of Mayor Harris’ administration.”
Conflict of interest aside, there’s something unseemly about City Council attorney berating county mayor because it is seen by many as tantamount to City Council agreeing with him.
Business As Usual
Public attorneys serve in a highly-politicized environment, but in Mr. Wade’s case, over 30 years, no politician in city government has displayed more political savvy than he has. After all, he’s needed to always be sure he had majority votes to keep his job, engaging in the give and take, if not the backscratching, that is part of City Hall politics.
While he has managed to keep his job, what’s most remarkable is that City Council, for more than 25 years, as new members have been elected, has never issued a request for proposals from other attorneys in Memphis.
Instead, they have ignored controversies, questions about conflicts of interest, bouts of petulant behavior, and ultimately, do not just ignore them but as Mr. Morgan demonstrated again last week, they leap to his defense when asked perfectly reasonable questions by two City Councilwomen.
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