Coup d'Ville?

Last Tuesday, our City Council, at the request of the Mayor's office, usurped -- swiped -- power from the citizens of Memphis. They did it by contravening the City Charter -- specifically ordinance 5063 -- and the will of the citizens who voted for it in November 2004. The ordinance states:

ORDINANCE NO. 5063
A) “HEREAFTER ALL PERSONS, EMPLOYED SOLELY
BY THE CITY OF MEMPHIS OR ANY OF ITS
DEPARTMENTS, BOARDS, BUREAUS OR COMMISSIONS,
SHALL BE REQUIRED TO LIVE AND MAINTAIN A
RESIDENCE WITHIN THE BOUNDARIES OF THE CITY
OF MEMPHIS, AS NOW DEFINED OR AS MAY BE
HEREAFTER DEFINED AND EXCEPT THAT THE CITY
COUNCIL MAY EXEMPT THEREFROM EMPLOYEES OF
ANY DIVISION, BOARD, DEPARTMENT OR BUREAU
WHOSE DUTIES AS EMPLOYEES OF SUCH
DEPARTMENTS, BOARDS, BUREAUS OF COMMISSIONS
REQUIRE THEM TO PERFORM SERVICES FOR THE
CITY OUTSIDE THE TERRITORIAL LIMITS THEREIN.”
B.) FAILURE OF ANY OFFICER OR EMPLOYEE TO
COMPLY WITH THE PROVISIONS OF THIS SECTION
SHALL BE CAUSE FOR REMOVAL OR DISCHARGE
FROM CITY EMPLOYMENT, EXCEPT THAT NO
INDIVIDUAL EMPLOYED BY THE CITY AS OF THE
EFFECTIVE DATE OF THIS ORDINANCE, INCLUDING ANY
APPOINTED EMPLOYEE WHO MAY BE LATER
REAPPOINTED, SHALL BE DISCIPLINED OR DISCHARGED
FOR FAILURE TO COMPLY. NEW EMPLOYEES SHALL BE
ALLOWED SIX (6) MONTHS AFTER THE DATE THEY ARE
HIRED OR APPOINTED TO COMPLY WITH THIS SECTION.

The emphasis mine, but the text is the complete referendum from the sample ballot of November 2004 [pdf!]

This was put on the ballot by the vote of the City Council in June of 2004 [p-d-f!].

ORDINANCE TO AMEND THE CHARTER OF THE CITY OF MEMPHIS, SAME BEING CHAPTER 11 OF THE ACTS OF 1879 AS AMENDED, PURSUANT TO THE PROVISIONS OF ARTICLE 11, SECTION 9 OF THE CONSTITUTION OF THE STATE OF TENNESSEE HOME RULE AMENDMENT SO AS TO AMEND THE RESIDENCY REQUIREMENT OF THE PERSONS EMPLOYED SOLELY BY THE CITY, SECTION 190 AND TO SUBMIT THE PROPOSED ORDINANCE TO THE QUALIFIED VOTERS OF THE CITY OF MEMPHIS AT THE FIRST GENERAL STATE ELECTION TO BE HELD NOVEMBER 2, 2004, UP FOR T H I R D AND FINAL READING.
Ordinance No. 5063
MOTION: Marshall
SECOND: Holt
AYES: Ford, Holt, Hooks, Lowery, Marshall, Mitchell, Peete and Chairman Brown
NAYS: Chumney and McCormick
Taylor recused himself
Jones and Sammons did not cast a vote
APPROVED

So when it was approved by Memphis voters in November 2004, it became part of the City Charter.

The City Council voted 9-3 to relax this residency requirement in order to increase the pool of police officers. As the bold text should make clear, this referendum and therefore the City Charter in no way gives them this power. It reasonably gives them the power to exempt employees whose job duties for the city take place outside of the city limits. The power to exempt is explicitly limited to this. This exemption would be for, say, a city lobbyist in Nashville or Washington, or an city economic development officer in New York or Los Angeles -- because their duties require them to live elsewhere. Unless the MPD plans on patrolling Collierville or Bartlett or Millington, police officers do not qualify.

The City Council illegally replaced the bedrock of the City Charter and the explicit will of the voters with the quicksand of their discretion.

You might not think it's a good idea to have a residency requirement. Let's re-open the debate then. But we can only decide the issue by repealing or amending the referendum in another referendum, or legally replace our present Charter with another. The City Council got it on the ballot once, they can put it on the ballot again.

But they can't repeal it. They're officers of the Charter, not rulers.

I have to add that the Commercial Appeal has been lax in its duty as a member of the Fourth Estate. This article states that the City Council voted to "relax its mandatory residency requirements" [emphasis mine, again]. There is no possession by the City Council. It is the City Charter's requirement, not the City Council's. Secondly, the article doesn't even mention that the ordinance is part of the Charter. The CA's editorial on the subject the next day makes the same "its" assertion, then adds

"[Joe] Brown, who voted against the measure, said the council "broke the law" since the issue already had been decided by voters. But the ordinance states clearly that the council may exempt employees from the residency requirements."

The ordinance states very clearly under what circumstances they may exempt, and it is not a blanket power of exemption.

So why I am getting all bent out of shape and boring you with it? Progress in this world is aligned with democracy and the rule of law, in opposition to hierarchy and fiat. Memphis, historically exclusivist and hierarchical -- with lots of bullet holes and empty lots to show for it -- has much, maybe everything, to gain from jumping into the river of progress. In a couple of years, we'll vote on a new City Charter that may allow us to do just that. But if our leaders can "repeal" our present Charter and public referendums at the behest of really bad counsel, they can do the same to our new City Charter as well.