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City Attorney Investigates Memphis Mayor for Possible Ethics Violation
Tuesday, January 20th, 2009
Robert Wechsler
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.
One result of the many convictions in Memphis was a new ethics ordinance in 2007 (not directly accessible via the city website search mechanism). According to a professor 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).
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.
Last year's charter commission 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 his part of the website (the Board of Ethics doesn't even get a page). The Board of Ethics can replace the City Attorney, but it apparently has not.
According to an article in the Memphis Daily News, the mayor refers to the "impartial" investigation that's going on. In his response to a Commercial-Appeal 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."
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.
Who is representing the mayor in his grand jury and ethics investigations? A former Memphis City Attorney, of course,
What did the mayor allegedly do? According to an article in the Commercial-Appeal, 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 Commercial-Appeal article).
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:
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.
There is a grand jury investigation going on, as well. But has the mayor committed a crime?
And what about the $16 million plan to build another station with taxpayers' money? Would this have happened without the mayor's involvement?
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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One result of the many convictions in Memphis was a new ethics ordinance in 2007 (not directly accessible via the city website search mechanism). According to a professor 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).
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.
Last year's charter commission 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 his part of the website (the Board of Ethics doesn't even get a page). The Board of Ethics can replace the City Attorney, but it apparently has not.
According to an article in the Memphis Daily News, the mayor refers to the "impartial" investigation that's going on. In his response to a Commercial-Appeal 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."
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.
Who is representing the mayor in his grand jury and ethics investigations? A former Memphis City Attorney, of course,
What did the mayor allegedly do? According to an article in the Commercial-Appeal, 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 Commercial-Appeal article).
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:
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
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.
There is a grand jury investigation going on, as well. But has the mayor committed a crime?
And what about the $16 million plan to build another station with taxpayers' money? Would this have happened without the mayor's involvement?
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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Comments
Alex K. (not verified) says:
Tue, 2009-02-17 13:34
Permalink
Corruption in government is a constant. The only way to make a dent in it is to create a culture where it's investigated and absolutely not tolerated. The tendency toward corruption is bad enough without emboldening people with a tolerant attitude.
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Alex K.
San Francisco lawyer