City Attorney Investigates Memphis Mayor for Possible Ethics Violation
As I wrote in a blog entry nearly two years ago, Memphis has broken
records in terms of convicted public officials. But its mayor of
seventeen years, Willie Herenton, has stood above it all. At least
until now.<br>
<br>
One result of the many convictions in Memphis was a new <a href="http://www.memphistn.gov/pdf_forms/EthicsOrd060407.pdf" target="”_blank”">ethics
ordinance</a> in 2007 (not directly accessible via the city website
search mechanism). <a href="http://www.memphisdailynews.com/editorial/Article.aspx?id=36133" target="”_blank”">According
to a professor</a> from Rhodes College, the ethics ordinance is weaker
than the charter provisions on conflicts of interest. The ethics ordinance also provides for no penalty worse than a $50 fine or recommending censure (to the council).<br>
<br>
But worst of all, especially with respect to the current investigation
of the mayor, is the fact that the ethics ordinance gave the position
of Chief Ethics Officer to none another than the City Attorney.<br>
<br>
<a href="http://www.memphisdailynews.com/editorial/Article.aspx?id=36133" target="”_blank”">Last
year's charter commission</a> talked about changing this, but apparently did
not. The City Attorney is so excited about his role as Chief Ethics
Officer that it isn't even mentioned on <a href="http://www.cityofmemphis.org/framework.aspx?page=14" target="”_blank”">his part of the website</a> (the Board of Ethics doesn't even get a page). The
Board of Ethics can replace the City Attorney, but it apparently has
not.<br>
<br>
According to <a href="http://www.memphisdailynews.com/editorial/Article.aspx?id=40408" target="”_blank”">an
article in the Memphis </a><span><a href="http://www.memphisdailynews.com/editorial/Article.aspx?id=40408" target="”_blank”">Daily
News</a>, </span>the mayor refers to the "impartial" investigation
that's going on. In <a href="http://www.commercialappeal.com/news/2009/jan/14/i-always-have-served-w…; target="”_blank”">his
response</a> to a <span>Commercial-Appeal</span>
article on the investigation, the mayor wrote, "Before I began that
venture and any other since then, I sought opinions from the various
city attorneys."<br>
<br>
The same office that supposedly gave the mayor advice on his private
investments, the same city attorney that he appointed, is now going to
do an investigation of the mayor that Memphis citizens will actually
believe is impartial? No lawyer with pride would even consider starting
such an investigation.<br>
<br>
Who is representing the mayor in his grand jury and ethics
investigations? A former Memphis City Attorney, of course,<br>
<br>
What did the mayor allegedly do? According to <a href="http://www.commercialappeal.com/news/2009/jan/12/91000-question/" target="”_blank”">an
article</a> in the <span>Commercial-Appeal,</span>
in the midst of an attempt to move the downtown Greyhound bus station
out to the airport (to be paid for by the city to the tune of about $16
million), the mayor bought an option to purchase the Greyhound land
(which would, of course, be redeveloped by the city). The mayor sold
the option for a profit of $81,000. To whom? A city contractor, of
course, who had obtained $702,000 from the city through noncompetitive
road design contracts over several years. (For a past transaction
between mayor and contractor, read this <a href="http://www.commercialappeal.com/news/2009/jan/11/herenton-chapter-12/&q…; target="”_blank”"><span>Commercial-Appeal</span> article</a>).<br>
<br>
The mayor sees nothing unethical about this, not a single conflict of
interest (he mentions only the ordinance, not the stronger charter
provisions, of course). And it's likely that the "impartial investigator"
will conclude the same. But according to my reading of the ethics
ordinance, the City Attorney shouldn't even be doing an investigation;
that is the role of the Board of Ethics. His role is as follows:<br>
<br>
<div>Issue a report including a copy of the
complaint, concluding whether the facts alleged in the complaint, if
true, would give rise to a violation of the Code of Ethics<br>
</div>
<br>
That does not require an investigation, because it assumes the facts
are true. My guess is that no complaint was filed, so the investigation
is being done to determine whether to file a complaint. There's nothing
in the ordinance, as far as I can see, that allows an official to ask
for an investigation by the Chief Ethics Officer.<br>
<br>
There is a grand jury investigation going on, as well. But has the
mayor committed a crime?<br>
<br>
And what about the $16 million plan to build
another station with taxpayers' money? Would this have happened without
the mayor's involvement?<br>
<br>
It's sad that Memphis made such a pitiful effort to create an ethics
program. But it does show that doing it halfway, planning to improve it
in the future, is not necessarily the best way. And it shows how
important is the independence of an ethics program, and how important
not only the ethics provisions are, but also the process.<br>
<br>
It's not that
hard to do it right. When it's done wrong, like this, there's usually a
reason. Often incompetence, true, but there's a lot more information
available now so that the people drafting a code can know that they're
doing it wrong. That's one of City Ethics' principal goals.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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