Backing into a Term-Limit Referendum: How the Commission Reached Agreement 

The end result of Wednesday morning's two-hour special meeting of the Shelby County Commission --the second this week -- was that two referendum proposals for the November ballot were adopted -- one to reconstitute five formerly constitutional county offices under the county charter and another limiting the officials holding those offices to two consecutive four-year terms.

But the story behind the story -- or, more properly, the several stories beyond the stories -- provided an object lesson for commission members henceforth, one more or less summed up in lines from the Kennedy Rogers ballad, "The Gambler," concerning how to play one’s cards. Namely: "You've got to know when to hold 'em/ Know when to fold 'em/ Know when to walk away/ And know when to run."

The background of Wednesday's proceedings was the defeat in last week’s countywide general election of Ordinance 360, a charter-revision proposal which was placed on the August 7 election ballot so that the affected five county offices – sheriff, trustee, assessor, county clerk, and register – might once again function under legal sanction. Their status under the state constitution had been nullified by the state Supreme Court in January 2007, in a ruling affecting both Shelby County and equivalent positions in Knox County.

Cross-Purposes

Months of deliberations had seen the eruption of cross-purposes both on the commission and in the community at large. Shelby County Mayor A C Wharton had made no secret of his preference for re-chartering the five affected offices as appointive ones, and he had limited support on the commission for the idea – particularly from commissioners Steve Mulroy, Deidre Malone, and Henri Brooks, all of whom were open at one point or another to the idea of appointment of some or all of the five officials – by the mayor, subject to commission approval.

In the course of public forums conducted by the commission, however, strong opposition materialized to the appointment concept –both in the inner city and the county’s suburban rim. Long after the idea had been shelved, the managerial-minded Wharton would comment, “That’s the problem,” when someone noted that a side effect of subjecting the offices to popular election was the empowerment of them vis-à-vis the county administration.

But proponents of the appointment concept knew when to fold their cards, and the idea died a peaceful death – abandoned, as it were, of life supports.

The issue of term limits proved less tractable. Conservatives, especially in the suburbs, brought to public discussions their traditional suspicion of government, while people in the inner city tended to look with disfavor on creating new impediments in the public sector. Some commissioners – notably longtime political broker Sidney Chism and Henri Brooks – stoutly opposed any term limits at all. Others – like commission chairman David Lillard and Wyatt Bunker – were just as staunch for limiting the five reconstituted officials to two consecutive four-year terms.

Term limits provoked serious and prolonged disagreement on the commission, a fact complicated by Wharton’s insistence, late in pre-election discussions, that the five officials have the same limitations on their tenure – or lack of them – as applied to the mayor and the 13 county commissioners. As of a 1994 countywide referendum, the mayoral and commission limits had been fixed at two consecutive four-year terms.

The long and the short of it: ultimately, after months of serious wrangling, the commission settled on a compromise proposal for a limitation of three four-year terms, applying not only to the five reconstituted county offices but to the mayor and commissioners as well (though Wharton himself and the commissioners currently serving were grandfathered out of the expanded version of term limits).

Mounting Opposition

While all of this had been going on, serious opposition was developing -- to both Ordinance 360, which contained the new term-limits proposal, as well as to companion Ordinance 361, one of whose features was a controversial proposal for recalling officials, fixing the number of petition signatures necessary at 15 percent of the county’s registered voters.

Two of the leading opponents of the two ordinances were a pair of citizen activists -- John Lunt , who had taken the lead in organizing community sentiment on behalf of revising the city charter; and Joe Saino, proprietor of memphiswatchdog.org, a declared foe of runaway government and an exponent of total transparency. Their highly public activities – and those of their associates and sympathizers – proved instrumental in the narrow defeat of Ordinance 360 , especially since “Vote No” signs began to sprout in public-domain areas everywhere, while evidence of pro-ordinance efforts was limited or non-existent. (Ordinance 361 passed easily, suggesting that term limits had been the main obstacle for 360.)

In pre-election discussions, both Lunt and Saino had concentrated their displeasure on the change in term limits for the mayor and commissioners. They were less avid about the five newly configured county offices, and, in fact, both delivered encomiums to the late trustee Bob Patterson suggesting they would have been in favor of Patterson staying in office indefinitely.

click to enlarge the charter resolution on the commission's big screen - JB
  • jb
  • the charter resolution on the commission's big screen

The distinction is crucial, since the commission’s action on Wednesday, resolving the matter by equalizing all county elected officials within the limits of two four-year terms, was as much a defeat for Lunt and Saino as it was a victory. There had never been much of a public groundswell among their adherents for limiting the terms of the five reconstituted officials—the sheriff and trustee, especially.

In the two special meetings this week, the commission, racing against the clock, ended with the two-term compromise largely out of miscalculations by opponents of term limits. Prominent among those was Chism, who dropped his pre-election support of a three-term compromise in the apparent hope that a new deadlock on the commission might result in no statement whatever concerning term limits. (That had been the case when Knox County reconstituted its own invalidated officers.) Commissioners Joe Ford and James Harvey were of similar mind. They, like Chism, also believed strongly that the increased Democratic vote expected in November would be antithetical to term limits.

Kenny Rogers might have advised a different strategy than stonewalling against any compromise –whether for two terms or for three – inasmuch as Democratic Commissioner Steve Mulroy, a key exponent of compromise along with his Republican opposite number, Mike Ritz, had signaled clearly on Monday that, rather than risk failure to meet an Election Commission deadline for a new ballot referendum in November, he would be prepared to vote for the two-term limit.

The End Game

Ultimately, on Wednesday, Mulroy played that card – an action that was magnified when, somewhat surprisingly, fellow Democrat Henri Brooks followed suit. That tipped the balance in favor of a two-term limit, leaving Chism, Ford, and Harvey with no hole cards to draw on. Like Lunt and Saino, the three commissioners would end up with both less and more than what they had sought.

click to enlarge Commissioners Malone and Brooks talk it over. - JB
  • jb
  • Commissioners Malone and Brooks talk it over.

Chism would protest later on that he had been led to believe that Republican commissioners George Flinn and Joyce Avery, along with Democrat J.W. Gibson, had promised him the same support for a three-term limit in the event of a deadlock that they had come to in the final pre-election session that had produced Ordinances 360 and 361. He felt that Mulroy, Malone, and Brooks had given in prematurely.

Whatever the case, there had been no public intimation whatsoever that Flinn, Avery, and Gibson were a part of any such understanding. All had consistently held out for a two-term limit in this week’s deliberations, and it had been Flinn, in fact, who first moved to include the two-term limit in a revised referendum for November.

The bottom line: Shelby County voters will have two referenda to vote on in November – one that merely re-establishes, more or less, the five formerly constitutional officers as chartered officials, and a second one that imposes the stricter two-term version of term limits upon them.

All is not lost for Chism and other term-limits opponents. If they play their Get-Out-the-Vote cards right, they can re-focus public opposition to the new term-limits referendum while leaving the other one alone. An additional complication, however: In November, the two county referenda will be sharing ballot space with a plethora of recommendations on city government emanating from the city Charter Commission.

What was already complicated enough could turn into a game of veritable 52 Pick-Up.

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