VIEWPOINT: Rethinking Power 

City charters, old and new, may give the council more leeway, says new member.

On January 1, 2008, nine rookies and four veterans will be sworn in as Memphis City Council members. It is the largest number of first-termers since the original council in 1968.

Since the elections, the nine of us have been undergoing an extensive educational process on the substance of city government and the procedure of the council. Fulfilling our campaign promises will be more difficult than making them and depends on relationships with council members and the administration and the merits of our positions.

The most interesting area of my education has been the opportunity to review the city charter. Among the things I - and we - have learned: The 1966 Home Rule Amendment changed much of the 1930's-era charter, but many of the articles of the older charter are still in effect because the newer charter did not revoke them.

Enter Dr. Stephen Wirls, a Rhodes College professor who has studied the charters exhaustively and led our review of them. Dr. Wirls disputed the widespread public understanding that the charters provide for a "strong Mayor" form of government. On the contrary, he opined that, in some ways, the Home Rule Amendment Charter ("HRA") gives more power to the Council than the U.S. Constitution gives to Congress.

The HRA provides that the Mayor "shall be responsible to the Council for the administration of all units of the City government under his jurisdiction and for carrying out policies adopted by the Council." The Council "shall have full power [my italics], as now provided, to pass, for the government of the City, any ordinance not in conflict with the Constitution or laws of the United States, or the State of Tennessee, within the specific limitations set forth herein below...."

Further, the Council has approval power of the appointment and removal of division directors, the President of MLG&W, and members of all boards and commissions. The Council has Athe right...to approve and adopt all budgets."

Of special interest: :[T]he Council shall be vested with all other powers of the City not specifically vested in some other officer or officers of the City." This catch-all provision appears to give the Council a great deal of unexpected authority. (One problem: no one on hand for the orientation could identify any "powers of the City not specifically vested" in some other office.)

Just think of the implications of the first proviso quoted above: The Mayor shall be responsible for carrying out policies adopted by the Council. On the face of things, it would appear that the Council could adopt "policies" and the Mayor would have to follow them.

Ay, but there's a rub. "The Council shall not, however, exercise executive or administrative powers nor interfere in the operation of the administrative divisions." On one hand, the HRA gives the Council the power to set "policies," but on the other hand, the charter prohibits intrusion into "executive or administrative powers."

The HRA also gives the Mayor the power to contract and prohibits council members from "suggesting or promoting the making of particular...contracts with any specific organization."

It is not hard to imagine that a Council's definition of a "policy" interfering with a Mayor's definition of an "administrative power." At the orientation, we discussed a scenario whereby the Council might pass an ordinance mandating that every public school have a police officer assigned to it full-time. Dr. Wirls opined that the Council had such power, but warned that a Mayor could dispute it as an intrusion on administrative decision making.

Many issues may fit into this grey area, and both sides would appear to have a good faith basis for their respective positions. As one of our facilitators suggested, conflict is not so bad if it involves a serious and respectful disagreement as to public policy.

However, such conflict, and the resulting court battle, should be avoided if possible with the council and the administration working together. The mayor and each member of his administration with whom I have met has expressed the desire to work with the new council.

At this early stage, I do not have an opinion as to the correct interpretation of the charter, but I am optimistic that we can avoid the conflict and come together for the betterment of our city.

(Jim Strickland, a lawyer and former Democratic chairman, will represent the city's 5th District.)

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