Saturday, April 30, 2011

With Failure of Mediation Process, Merger Case May Get Ruling

Posted By on Sat, Apr 30, 2011 at 5:30 PM

Judge Mays on break from courtroom during case
  • Judge Mays on break from courtroom during case
The attempt at mediating a settlement to the city/county school-merger case now being heard by U.S. District Judge Samuel Hardy Mays seems to have failed. When the attorneys for the various sides confer with Judge Mays on Monday in his chambers, they will tell him just that. And on Tuesday, when the next public hearing on the matter occurs in his 11th floor courtroom, Mays may issue his first ruling.

The question then will be whether to issue an injunction against the Shelby County Commission’s plans, dormant for the last month, to appoint the 25 members of an interim all-county school board for which the commission, back in March, interviewed some 200 applicants.

Shelby County Schools — backed by the state Education Department, which is committed to the merger formula spelled out in the legislatively enacted Norris-Todd bill — had requested the injunction. After a March 24 status conference on the showdown case involving multiple plaintiffs and multiple defendants, Mays had requested the parties to attempt to reach a settlement. Two weeks later, on April 4, he decreed mediation, and the parties agreed on retired state Criminal Court Appeals Judge Joe Riley of Dyersburg as a mediator.

The second of two sessions presided over by Riley came and went Thursday without result. Though participants in the sessions were obliged to public silence, enough has leaked out to make it obvious that at no point were the parties remotely close to a settlement of the issues — which, at root, involved a choice between the county commission’s plans for a fast-track merger of Memphis City Schools and Shelby County Schools, on the one hand, and the more deliberate formula of Norris-Todd, which allows an eventual special-school-district option for Shelby County’s suburban schools.

The merger crisis had been prompted by the MCS board’s post-election fears last November that SCS would seek special-school-district status. It continued with a vote by that board to surrender its charter and a subsequent vote by Memphis residents to approve de facto consolidation via a transfer of MCS charter authority to SCS.

The MCS board and the Memphis City Council, which in the wake of Norris-Todd voted to certify the charter surrender, were the original defendants in the federal suit by SCS; when the county commission launched its own initiative to complete the merger, it was added to the suit and became the de facto principal defendant.

Kelsey Cites Mediation to Stop Bill Modifying Norris-Todd

Despite the conspicuous lack of movement toward an agreement during the court-mandated month-long settlement effort, a Shelby County legislator succeeded this month in turning back a modest amendment to Norris-Todd by claiming that an accord was at hand.

This was state Senator Brian Kelsey, who, in a meeting of the Senate Education Committee on Wednesday, April 20, managed to bring about a reconsideration of Senate Bill 1594 by state Senator Beverly Marrero (D-Memphis), the House version of which was HB 1807, sponsored by Rep. Jeanne Richardson (D-Memphis).

The bill had only one provision, relating to the 21-member “planning commission” established by Norris-Todd:

“In implementing this subdivision (b)(2)(B), the respective appointing authorities shall aggressively seek racial, gender and ethnic diversity on the transition planning commission by enlisting ethnic, minority and female participation that reflects the racial, gender and ethnic diversity of the county as a whole. No person shall be excluded from participation on the transition planning commission on grounds of race, ethnicity, color or gender.”

As state Senator Dolores Gresham (R-Somerville) prepared to call for the vote, Kelsey objected that the various sides in the case being heard by Judge Mays were “very close to a negotiated settlement” and that passage of SB 1594 “could potentially upset the negotiated settlement.”

State Senator Jim Kyle (D-Memphis), the Democrats’ Senate leader, who was presenting the bill in the absence of Senator Marrerro (indisposed due to illness), disputed Kelsey’s interpretation and said that, in any case, the bill could be re-evaluated before a vote of the full Senate and could be withheld if there were real evidence that it might impact a settlement.

That seemed to settle the issue, and both Gresham and Senator Rusty Crowe (R-Johnson City) voted with Democratic members of the Committee to put it over.

But an hour and a half later, Kyle, who is not a committee member, stopped back by the committee hearing room in Legislative Plaza to inquire of Senator Andy Berke (D-Chattanooga) if he wanted to go to dinner. (It was 7:30 p.m.; the committee was keeping late hours in order to finish its work for the year, and the current session was the last one planned.)

A disbelieving Kyle is informed of bills reconsideration
  • A disbelieving Kyle is informed of bill's reconsideration
Senator Gresham, who in the meantime had been involved in further conversations with Kelsey, noted Kyle’s presence and announced that she intended, as a member of the prevailing side on the earlier vote, to invoke her privilege to call for a reconsideration of SB 1594.

Stunned, Kyle responded that he “wouldn’t have walked in here” if he’d sensed such an effort afoot and expressed disbelief that asking that the proposed planning commission be “inclusive on race and gender” could possibly interfere with a settlement.

Senator Kelsey then responded: “I have just made a phone call, and I have spoken to one of the attorneys in this case, and I now feel even more strongly now than I had expressed earlier that, yes, this bill could potentially harm the settlement of an issue that is being mediated right now. And I am told it’s very close to settlement.”

To that Kyle had a retort: “Senator, your actions tonight are damaging the chances for that settlement, and you know it.”

But in the resultant vote to reconsider, both Gresham and Crowe changed their votes, and, the second time around, the bill was defeated.

A visibly angry Kyle prepared to leave, but not without a parting shot: “I’ll not present this bill. Y’all have a Merry Christmas!”

With that episode in the Senate Education Committee last week vanished the one opportunity Memphis legislators appeared to have had in the current session to modify the Norris-Todd bill, passed by both chambers in January and signed into law by Governor Haslam.

Left unexplained were two aspects of the affair. Senator Kelsey referred to having a phone call with one of the attorneys in the case, all of whom were supposedly bound by an agreement not to discuss the ongoing mediation with anyone. The other puzzling fact was that the senator’s statement, suggesting that an agreement was near, was made two days before the first of two actual mediation sessions.

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