By Daniel Connolly,
June 27, 2012

Shelby County commissioners suspended a public meeting earlier this week and disappeared into a break room for about 10 minutes to speak with attorneys about school merger litigation.

It’s not unusual for commissioners to hold closed sessions with lawyers, but what happened after Monday’s meeting was remarkable. On Tuesday, the attorneys filed a federal court motion to block the scheduled Aug. 2 referendums to start new school districts in Arlington, Bartlett, Collierville, Germantown, Lakeland and Millington.

They argued that the people who arranged the referendums are deliberately trying to discriminate against African-Americans by carving out better-funded, majority white suburban districts from the new unified school district.

What happened in the secret meeting? Some suburban commissioners are asking whether others approved a major new court filing in secret and violated the state open meetings law.

“A lot of it stinks, in my opinion, and wasn’t done properly, and I’m trying to find out if it was legal,” said Commissioner Chris Thomas. He said he didn’t even know about the meeting until after it happened.

Thomas and colleagues Wyatt Bunker and Terry Roland have asked the county attorney to rule on the legality of the action. The three represent County Commission District 4, a C-shaped swath of suburban territory that surrounds the urban core.

The situation illustrates the stark urban versus suburban tensions on the County Commission and in the broader region. The majority African-American Memphis City Schools system is scheduled to merge with the smaller, majority white Shelby County Schools in 2013. The suburban cities want to create their own municipal districts.

In an effort to find out what happened behind closed doors, The Commercial Appeal interviewed 10 of the 13 commissioners about the meeting on Tuesday and Wednesday.

Of the 10 interviewed, eight said they were in the meeting and two, Brent Taylor and Thomas, said they weren’t present.

None of the commissioners said that they took a formal vote in the closed session.

Of those who were in the meeting, Walter Bailey, Henri E. Brooks and Sidney Chism said the attorneys simply provided information. “They just gave us an update on the actions that they probably were going to take,” Brooks said.

However, Bunker gave a different account.

“The attorneys said, ‘We’re filing a suit unless a majority of commissioners object.’ I told them ‘Well, I object.’”

Bunker said he asked the other commissioners to object too. “And they just kind of laughed.”

Backing up this account were Roland and Heidi Shafer, who say they oppose the filing.

Steve Mulroy represents an urban district and supports the filing. He wouldn’t reveal what was said in the closed meeting. But he said Bunker and the others could have launched a formal objection when the commissioners left the backroom and returned to the open meeting. They didn’t do that.

“They knew that more than a majority of the commission supported what the lawyers were doing,” he said.

Nine of the 13 commissioners represent urban or mostly urban districts. The urban majority of commissioners has consistently pushed for policies that favor city interests in the school merger, over the objections of colleagues from the suburbs. Shafer, who represents a mostly urban district, has often sided with the suburbs.

In February 2011, the urban majority voted to hire attorney Leo Bearman Jr. of the Baker Donelson law firm to represent them in a federal lawsuit over school merger — the lawyers who led Monday’s meeting were Bearman’s colleagues, Lori Patterson and Matthew G. White.

Mulroy says last year’s vote to hire Bearman’s firm authorized the lawyers to take a wide range of actions, including Tuesday’s court filing.

The state open meetings law requires government bodies to do business in public. But there are exceptions.

A 1984 Tennessee Supreme Court case from Smith County established that lawyers may advise public bodies about litigation in closed meetings, said Frank Gibson, public policy director for the Tennessee Press Association, a trade organization that represents news media outlets including The Commercial Appeal.

The judges wrote that if the members of the public body begin to discuss what action to take, “such discussion shall be open to the public and failure to do so shall constitute a clear violation of the Open Meetings act.”

The question here is whether the commissioners made a decision in private to take a new legal action that wasn’t covered by the vote to hire Bearman’s firm.

The only penalty for violating the open meetings act is that a court can declare the action invalid. This time, though, there was no public vote to file the lawsuit and thus no action to void, Gibson said. It’s also unclear whether the discussion in Monday’s closed meeting crossed the line. “That would be a good way for a lawyer to make $150,000 taking that to the Supreme Court,” Gibson said. “Is that a vote? Is that a secret vote?”

Tuesday’s court filing alleges that the people who worked to facilitate the suburban school district referendum were motivated by racial bias.

State Sen. Mark Norris, who led passage of the bills last year and this year, bristled Wednesday at that claim.

“Candidly, I think it’s the lowest form of demagoguery there is. For them to assert that this effort to educate is motivated by race is reprehensible,” said Norris, R-Collierville. “That’s the old race card. It’s tired and it’s tawdry and it’s typical of this particular generation of public officials.”

Shelby County Mayor Mark Luttrell also objected. “I’m not surprised by the lawsuit. However, I was shocked by the language,” he said in a statement. “The lawsuit needs to be based on constitutional merits and not on race. Additionally, state law allows for these special elections. They should be held as planned.”

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