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City Council Recap, January 6th – Last Part

 

Written by Councilman Bill Summers

City of ClarksvilleClarksville, TN – The city council met in its usual first of the month session, January 6th. The council was gathered for almost four hours that evening.

Here is the final installment of what went on at the council meeting Thursday and the CDE event of last week.

Nepotism Policy

You may recall that last year a council member’s spouse was hired by the police force. Right before the last dotted line was signed it was found that city policy was not to allow the hiring of council or mayor spouses/immediate family. The police chief had stated that the individual was a very good candidate and had beat out others (several other candidates were also selected within that review group for police placement) for selection by fair and honest tests and reviews.   The council was asked to make a decision and chose to override the policy, but review it again later.

That review took place last week. Mayor McMillan presented an updated nepotism policy be annotated in code versus policy. It is based on the state version with one addition. It added “The City shall not hire or appoint as an employee any relative as defined in this section, of the Mayor or any member of the City Council.” I have given the policy much thought and research.

The State of Tennessee does not see a need to exclude family of elected officials from potential employment. The county has no issues with it either. As a matter of fact, several county commissioners are employees of the county and vote and participate in all aspects of the county government as commissioners. One commissioner was hired to a county job although he sits on the commission. The city, by code, will not let an employee sit on the council. I have no problem with that.  However, since no other state or county function seems to have issues with family members, I did not believe it fair to have an exclusion apply only to the city.

Anyone that has relatives working for the city would be grandfathered under the new ordinance. The new proposed policy listed the following as relatives “parent, foster parent, parent-in-law, child, spouse, brother, foster brother, sister, foster sister, grandparent, grandchild, son-in-law, brother-in-law, daughter-in-law, sister-in-law, or other family member who resides in the same household.” That seems to be a very far-reaching exclusion. There are many in our city that are police and firemen whose family members find it an honor to follow in their parents footsteps. If a family member decided to run for office, then the rest of the family is excluded from joining these city services.

I requested the section related to council members relatives be deleted. The vote was 7-yes, 3-no and 2-abstain. I had voted yes. The section was removed.

Clarksville Department of Electricity  (CDE)

You would have had to been out of the country to not know that former Mayor Piper was selected by the CDE Power to lead that city function. There appears to be much debate on the topic. One council member has stated his phone and email lines were burning up with calls. I have had less than 10 emails and one call asking questions. There appears to be a large amount of misinformation or at least misunderstanding of how the CDE Power Board works and how the city itself oversees the function. I will list questions that I have read, received or heard and provide answers to the best of my ability. Hopefully this will help clear up some items.

1. Isn’t CDE a city function? 

Answer: Yes

2. If it is a city function, doesn’t the city have direct control to do what it wants with CDE? 

Answer: No

3. If it is a city function, doesn’t it have to follow and obey all city ordinances? 

Answer:  No

4. How can CDE be a city function and not follow city ordinances? 

Answer:  The city at least back to the 1960s (that is a s far back as we looked) had made the decision to utilize the Municipal Electric Plant Law of 1935 (MEPL). Per TCA 7-52-115 the City of Clarksville established a Board to manage CDE. Per TCA 7-52-115 the Board will make all polices, programs and plans to operate the electric plant. Thus the city took itself out of the direct decision making process on CDE decades ago.

5. Who appoints the CDE superintendent and what qualifications are needed? 

Answer: Power Board. Per TCA 7-52-114(b) “The supervisory body shall appoint an electric plant superintendent, referred to as “superintendent” in this part, who shall be qualified by training and experience for the general superintendence of the acquisition, improvement and operation of the electric plant. The superintendent need not be a resident of the state at the time of appointment. The person or agency appointing such superintendent shall fix the superintendent’s salary. The superintendent shall serve at the pleasure of the supervisory body and may be removed by such body at any time.”  This is why the city can neither hire nor fire a CDE superintendent.

6. Did Mayor Piper directly appoint the Board members? 

Answer:  No.  Two directives cover this. First, TCA 7-52-107(b) states that the chief executive officer (mayor), with the consent of the governing body of the municipality (council) can appoint persons to the board. The appointee must a member of the municipality for one-year prior and customer of the electric system.

In Part I, article VI, section 1 of the City Charter it also states that the council will create and elect members of the board. Thus, what happens is the Mayor nominates people to sit on these boards and the council votes to approval them.  There are no direct appointments by the mayor to this board. It is interesting to note that the same TCA code says an elected official cannot be appointed to the Board within a year of leaving office. However, it does not make that distinction about an elected official being selected as superintendent.

7. Some of the city council had to have voted against some of the board nominations or didn’t have a chance to vote against them? 

Answer:  Some of the seated council members, due to the staggered terms of the CDE Board members have not voted on every member. However, four of the seven current members have been voted and approved by the council during calendar years 2009 and 2010. Which means only two of the current council sworn in last week had not voted on those four.  All 12 council members voted “Yes” to all nominations. The city clerk and I researched the records of the meetings to confirm this. There was not a single “no” vote to any nomination made.

8. Were city laws broken since a mayor cannot be selected to head a city department for at least a year after leaving office? 

Answer:  Normally this is correct and that is where the issue gets lively. While CDE is a city function, the city long ago gave up it direct managerial authority to run CDE (reference questions #3 & #4). When the city gave the authority and responsibility to run CDE to the Board, then the city was pretty much out of the picture of operating CDE.  CDE has not followed city personnel procedures, financial polices, pay policies, organizational polices or much of anything else, unless the Board decided to “borrow” and approve such policies or directives for use within the CDE operation. However, it was the Board’s decision to do this. In addition, the 1935 law states how the Board will operate.  The city cannot amend or force its rules in place of state law.

9. Isn’t the law firm that did this review in error and was just providing the answer the Board wanted? 

Answer: No.  The Law Firm of Harvey and Silvus are often called upon to help the city and its functions with legal expertise. I have had the opportunity to work with both Mr. Harvey and Mr. Silvus on numerous projects to include issues brought before the Finance and Administration committee for four years and a solid 18 months on the rewrite of the city charter. As many may remember, there were those locally and basically all of our local state representatives and members of the state committee that reviewed the proposed city charter and loudly proclaimed that it was full of illegal actions. Both Mr. Harvey and Mr. Silvus had done hundreds of hours of legal research work, conferred with the Tennessee Municipal Technical Advisory Service (MTAS) experts and other state legal experts on municipal law, in analyzing the proposed city code and laws.  Our current charter is chock full of things that are no longer legal by state law or within the authority of the city to do due to being pre-empted by current state law. However, we were sure that the new proposed charter was legal, based on their work. You will recall that state Rep. Curtis Johnson asked the State Attorney General (SAG) to review the charter for legal issues. The SAG declared, in its legal opinion there were no legal issues or problems.

Because of the excellent record of Harvey and Silvus on city legal issues, the CDE Board, on Nov 9, 2010, asked them for a legal review on the question could a former elected official be made superintendent without regard to the length of time since he/she had served as an elected official.  Harvey and Silvus research the 1935 law, city ordinances, similar or related legal/opinion cases performed by MTAS and other legal sources that have worked with utility law.  Based on this review and research the bottom line answer is the Board has state sanctioned authority to select a superintendent without regard to local ordinance restrictions.  Local law cannot supersede state law.  Basically when Clarksville gave up its right to directly manage CDE and instead use state law to from a board and operate CDE through it, then operational procedures and polices were the Board’s to develop, accept and apply, within the guidelines of state law.

10. What is the city going to do about this? 

Answer:  Mayor McMillan has requested that the State Attorney General (SAG) review the applicable state and local laws in relation to the authority of the Board in making the decision that was reached. She awaits his answer before taking further action, if any.

11. Why did some council members and the mayor request that Councilman Redd’s resolution on “expressing the sense of the city council” in the hiring of the ex-mayor to the superintendent job be withdrawn?   

Answer: Within Councilman Redd’s resolution it states “that City Council finds that a violation of the law…” has occurred.  Neither Councilman Wallace, the city legal staff or the Law Firm of Harvey and Silvus has shown that a violation of law has occurred at this time.  Councilman Redd points to the city code as the source of the violation.  If, as pointed out in the local legal review, local law cannot override state law, then this law has not been broken.  The SAG review will either affirm or deny this opinion. Until the city receives such an opinion by the SAG, it was not correct to claim such a violation has occurred.  In addition the mayor, who had only two working days on the job, was working the issue and it seem prudent to let her handle the situation.

12. Where do you stand on the hiring issue? 

Answer:  If the SAG confirms the finding of no violation of state law and that local ordinances on hiring former officials do not apply, then I do believe the spirit of the city ordinance that states that a mayor or council member cannot become a department head for one year after leaving office, has been broken.  If the SAG states that local law is in effect and that a violation of hiring policy has occurred, then I would see the Board having to dismiss Former Mayor Piper and select another superintendent.

I hope this provides more information on this issue. To the best of my ability I believe have provided the latest and correct data.


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