Tuesday, September 29, 2009

Gibbons Files "Ouster" Petition Against City Attorney Elbert Jefferson

Posted by on Tue, Sep 29, 2009 at 4:09 PM

Shelby County District Attorney Bill Gibbons announced Tuesday that the D.A.’s office filed in Criminal Court a petition for ouster against Memphis City Attorney Elbert Jefferson. The petition alleges that Jefferson “knowingly or willfully” committed misconduct in office or neglected to perform duties by expending city funds “for purposes other than lawful municipal purposes.”

Jefferson will be required to appear in Criminal Court Division 5 on October 6, 2009, at which time the District Attorney will ask the court to suspend Jefferson from performing any of the duties of his office until the final decision by the courts in the matter.

The ouster petition was filed after an investigation that included the review of subpoenaed documents from the City of Memphis and testimony of several City of Memphis employees. Based on that investigation, the District Attorney alleges the following in the petition for ouster:

While the city attorney exercises some discretion in approving expenditures under the Law Division’s annual budget, by state statute, all expenditures must be made for a lawful municipal purpose;

While former Memphis Mayor Willie Herenton came to believe he was under investigation by a federal grand jury in or before November 2008, the city had no indication or reasonable basis to believe that the city was the subject of that investigation or would ever incur any criminal liability because of the actions of Herenton;

In November 2008, Herenton engaged lawyer Robert Spence to act as his personal criminal defense attorney regarding the federal investigation, and in June 2009, Jefferson authorized the rushed payment of all of Spence’s invoices for representation of Herenton (a total of $55,734.47) from November 2008 through May 2009;

Jefferson later publicly tacitly acknowledged that payment of a city employee’s criminal defense would be unacceptable; and

Jefferson tacitly admitted to Bill Morrison, a member of the Memphis City Council, that at least $7,000 of the expenditure paid to Spence was not for a municipal purpose while defending the rest of the payment and promised to more thoroughly audit the invoices, although such audit has never been presented.

“This action is based on our review of the situation and the information available to us. We contend that Mr. Jefferson knowingly or willingly committed misconduct in office,” said District Attorney Gibbons. “We feel it is in the public’s interest to take the action to file this ouster suit,” he stated.

Under Tennessee law, the district attorney has the authority to file an ouster suit against a public official “holding any office of trust or profit” on his own initiative if upon investigation he finds that there is reasonable cause to believe that that the official has committed misconduct in office or has neglected to perform his duties. The ouster statute also provides one of the few instances in which a district attorney has the power to issue a subpoena without initiating a grand jury or court proceeding.

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