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Not clear if Council must vote on school charter

With the City Schools board’s vote to dissolve the MCS charter still dangling, a court battle may now loom. by Tony Jones
Special to the Tri-State Defender

Memphis City Council member Shea Flinn says a petition signed by 25 Memphis citizens can direct the City Council to call for a special referendum election that gives citizens the choice of whether to order Memphis City Schools to keep or surrender the charter to operate the city system.

Flinn on Wednesday showed up at a special called meeting of the Shelby County Election Commission to make his point, presenting a letter outlining his opinion. His position stood in contrast to the state election chief’s ruling – released Wednesday – that the City Council must rule in favor of a referendum before a special election can be ordered.

Meanwhile, eligible voters for a potential election also had to take in a 2003 state attorney general’s advisory opinion circulated by Council Chairman Myron Lowery. That opinion seems to throw mud on a 1961 statue that State Election Coordinator Mark Goins cited in telling the Election Commission by letter that the City Council must approve a referendum.

While there was some thought that the Election Commission might settle on a date for a referendum at Wednesday’s meeting, such was not the case. And with the City Schools board’s vote to dissolve the MCS charter still dangling, a court battle may now loom.

Shelby County Election Commission Chairman Bill Gianini viewed Goins’ ruling as a victory for his stance that the proposed referendum had not been thoroughly researched.

“I have stated all along that I have no interest except making sure that we do not hold a referendum election and then have to follow it with court cases and lawsuits,” said Gianini. “This is a bi-partisan board and I don’t think we have made more than six decisions that have not been unanimous.”

The state decision was forwarded in a letter from Goins to Richard Holden, Administrator of Elections for Shelby County. It was based on Tennessee Code Annotated 49-2-502 and Ch. 375.  In summary, here’s what the letter conveyed:

 “Without a court order finding that Ch. 375 of 1961 contains an unconstitutional condition upon the surrender process, this office and the election commission must give effects to its requirements…In that regard, based upon the language of Ch. 375 of 1961, the appropriate conditions have not been met to place the question of surrendering the charter on the ballot.”

In closing, Goins writes, “However, if the Board (of Elections) can identify a subsequent act which affects the quoted language, this office will reconsider the advice given. Also if the Board obtains a judicial order finding that the requirement of Ch. 375 is unconstitutional or unenforceable, the election commission may proceed with the call for the referendum.”

But the people have the power to overrule all involved, according to Flinn.

 “The surrender and transfer of control are separate issues,” Flinn said, acknowledging that his opinion has not been verified legally.

 “It is time that this city quits fighting to grow up,” said Flinn. “This is a real opportunity to create a 21st century education system. It doesn’t have to be one side win and one side loses. Drop the politics and engage the issues.”

Fellow council member Wanda Halbert said amidst the uncertainty there has been little talk about the jobs impact.  

“The supporters of the surrender have not informed the public well enough of how this will affect us economically,” said Halbert.

“What if your family member loses a job, how will they pay the house note?  What can we expect for our children without elected representation on the county board?  There are just too many questions that should have been considered and well laid out before the surrender resolution was proposed.”

Still to come, Lowery has said, are opinions from the city attorney and the city council attorney that counter the state election coordinator’s ruling.

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