Activist Group Wants to See Text of "Mystery Memo"

Issue is whether replacement election can be held in November for departing Council members; Chairman Boyd and Council attorney Wade say no but have not released their legal basis.



UNDER CHALLENGE — Wade (left) and Boyd
  • UNDER CHALLENGE — Wade (left) and Boyd

Final voting for the county general election ballot is still four weeks away, on Thursday, August 2nd, but a serious battle is raging about the possible aftermath, as it affects three Memphis City Council seats.

Those are the seats now held by councilmembers Edmund Ford, Bill Morrison, and Janis Fullilove, candidates for Position 9 on the County Commission, Probate Court Clerk, and Juvenile Court Clerk, respectively. If any or all of the three win should win, the question then becomes one of how long the winning members will hold on to their council seats before resigning them.

Activists involved in the struggle to defeat a council-mandated referendum that would call off a scheduled trial of Ranked Choice Voting (aka Instant Runoff Voting) in the 2019 city election are taking on this issue as well: They want the three mentioned candidates to declare in advance their intent to vacate their council seats fairly immediately should they win their races.

The acrtivists, all members of Save IRV Memphis, fear that whichever seats are held onto by the winning council members for the full 90 days permitted by law before a resignation would then have to be replaced via appointment from the remaining members of the council.

That, as Save IRV Memphis sees it, would prevent a possible vote to fill the seat or seats on this year’s regular November election ballot.

An ambivalence on the point by the three council members in question is one problem confronting the activists seeking an early-resignation pledge by the three candidates; another problem has been the insistence by council chair Berlin Boyd, backed by council attorney Allan Wade, that scheduling a vote on any vacant council seat in November is precluded by the city charter, that such a vote would instead have to be held during the next regularly scheduled August election.

In effect, the Boyd/Wade formula would require any council seat made vacant as a result of this year’s county election to be filled by the aforementioned option of council appointment and to be voted on only during the regular city election of 2019. As the Save IRV Memphis activists see it, that would circumvent the people’s will and further overload the council with new members appointed by, and loyal to, a dominant council faction already too answerable to the Memphis Chamber of Commerce and the city’s business elite.

In a press release circulated Thursday by Save IRV Memphis, Carlos Ochoa sums up the fate of a public records request made by the group under the Freedom of Information Act for what they call a "Secret Mystery Memo."

“On June 19th, 2018, Chairman Boyd referred to a legal memo purporting to prove that City Council vacancy elections can only be held in August. A public records request was filed for a copy of this memo. Since then, the city has twice hinted that such a memo might not exist and finally stated that the memo was protected by attorney-client privilege:

“The attorney referenced is city council attorney, Allan Wade. And Chairman Boyd hides behind this secret, possibly nonexistent legal memo, written by the city council attorney. The city council attorney won't acknowledge whether the memo exists, but claims that at any rate it's secret. The city attorney and administration say they can't get involved to give an answer because it's a city council matter….”

The organization, which so far has not been the fount of a groundswell, hopes to become one. It urges:

“Save IRV Memphis is calling on all Memphians to contact their city council representatives and the mayor’s office to demand that Allan Wade and the city council confirm the existence of Boyd’s legal memo and to release its content to the public. We also call on Chairman Boyd to provide a copy of the memo.

“If the City will not provide the secret memo then they should provide a straight answer to whether a November election can be used to fill a council vacancy. If not, they should explain why not, given the unambiguous language of Ordinance No. 1852
[the mechanism by which the city council and its electoral means were enacted].”

Section 1 of that ordinance reads: "... on any vacancy occurring in the Council ... a successor shall be elected to fill out the remainder of the term ... in the same manner as now provided for filling vacancies on the Board of Commissioners, except that such special municipal election shall be held on the date of the next August or November election.”

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