Passing Off

Commissioners just say no, referring a $17.8 million settlement to court -- or to the city.



In the space of a week, sentiment on the Shelby County Commission shifted away from what had seemed to be a bare consensus in favor of a $17.8 million payoff to Clark Construction Group for convention center cost overruns.

By the time the commission got around to voting on the much-deferred matter at its meeting Monday, at least four votes had turned around -- one or two of them in the course of a spirited debate on the matter -- and Clark had suffered a stinging rebuff. The final tally was three ayes, two passes, and eight fairly resounding nos.

What happened?

One reason, clearly, was an increased media focus on the proposal -- including the Flyer's cover story last week and attention given the matter in The Commercial Appeal and on television news reports. Another, related factor was the dawning realization by commissioners that they were being asked to take the first hits on a controversy that, at least arguably, had more to do with another jurisdiction -- that of city government.

Four of the no-voters on Monday -- Republicans Tom Moss, Joyce Avery, and Linda Rendtorff and Democrat Joe Ford -- had done complete turnarounds since last week. The most striking was reversal was that of Rendtorff, who began a statement Monday in support of the position of Memphis mayor Willie Herenton and Shelby County mayor A C Wharton that the proposed settlement was in order.

But even as she professed to accept the mayors' reasoning -- including Wharton's stated concerns about litigation costs and risk to the county's bond rating from a lingering "contingent liability" -- Rendtorff pointed out that, technically, the contract was between Clark on one hand and the city and the convention center board on the other.

She also obliquely noted that the prime mover in the effort to settle with Clark was Herenton, who has pointedly declined so far either to make public his reasons for supporting the settlement or to submit the issue to the City Council. (Although it was Clark attorney Karl Schledwitz's impression that Herenton has already signed a memorandum of understanding with the company.) Again this week, as he has previously, Herenton declined to be interviewed on the subject.

Rendtorff, commenting on a proposal from Julian Bolton that a limited set-aside be established for an ultimate agreement ("Let's give Mayor Herenton something to work with," he said), then floated a novel solution -- that the city, in accordance with its contracting priority, should fund 70 percent of any settlement, leaving the county responsible for only the remaining 30 percent.

Moss, who made two unsuccessful attempts to get the issue deferred until the commission's meeting of May 17th, agreed with Rendtorff that "we [county government] shouldn't keep sticking our neck out on these things" and that the city should bear more of the burden for the convention center affair, both financially and PR-wise.

More than most, Moss felt the underlying tug-of-war. As a homebuilder himself, he is tuned in to the concerns of the development community, including the subcontractors who have been squeezed by the reluctance of Clark to pay them, and he remains convinced that some sort of settlement is in order.

But Moss is also a representative of District 4, an outlying suburban area whose generally conservative constituents are loath to spend out of the public treasury unless they get something tangible for it -- like the new Arlington school, subject of intense controversy on the commission all last year.

Avery, another District 4 commissioner, had clearly heard from her constituents during the week leading up to Monday's meeting. She also was made privy to findings of the Pearson Management Group, an advisory company hired by the city, which, as her colleague Bruce Thompson noted Monday, had advised against further payments to Clark. "I just have too many concerns, and I've learned too much that I wasn't aware of," she said after the meeting.

The commission's apparent consensus in favor of litigation owed much to the unanimity, crossing political boundaries, among the body's lawyers -- Walter Bailey, David Lillard, and Bolton -- that a settlement at this point, sans depositions and further legal discovery, was premature. And telling, too, was the appearance before the commission of Lance Fair, who reminded commissioners of the determined opposition to the agreement by his late father, former commissioner and convention center board chairman Morris Fair.

But the real determinant Monday was clearly a sense that the city -- and Mayor Herenton, in particular -- should go first. And go public.

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