Five reasons why the Mt. Juliet City Commission’s approval of the YMCA deal is voidable, void, ultra vires, illogical, unethical, and probably fattening

The Mt. Juliet City Commission (or, more accurately five individuals purporting to be the Mt. Juliet City Commission) met on Monday night at City Hall and approved a Master Development Agreement and Lease with the YMCA for eight acres of the old Mt. Juliet Elementary School site.

The action on Monday night is ridiculous and wrong-headed to start with. The County probably won’t sell the land to the City on the terms proposed, but aside from that the City Commission has once again revealed itself to be reckless and willing to violate state law, Roberts’ Rules, and common sense.

Why Ed “Davy Crockett” Hagerty (Commissioner-YMCA) has suddenly decided to park all of his small-government principles and lead the charge to approve this ridiculous deal is but one of many mysteries.

Former Commissioner Ray “Some people just shouldn’t be arrested” Justice (Commissioner-Little League) at least can claim to have consistently supported every hare-brained scheme to build a park in Mt. Juliet that has ever been presented to the Commission.

Will “I did NOT say ‘worry'” Sellers’ (Commissioner-Linda Elam) support for the project is another mystery.

But the action purportedly taken on Monday night is invalid for at least the following five reasons:

1. The failure to seat newly elected D1 Commissioner Ted Floyd renders any vote cast by Ray justice at the meeting void. See City Ordinance 97-03 where the terms of City Commissioners are set by ordinance to be “UNTIL the regular Federal November election.”
2. Failing to have written certification from either the City Manager or the Finance Director that the funds are available to undertake the expenditures authorized in the ordinance renders it void. See TCA 6-22-128.
3. Considering, on second reading, a version of the lease which restored language which had been amended out at the first reading renders the ordinance void. Mayor Elam tried to remind the Commission that they had deleted 6.1(i) and 6.1(ii) at the previous meeting by amendment. A review of the video of the October 27^th meeting shows they did amend the agreement, by a vote of 5-0. Yet, the language which had been deleted at the previous meeting was still in the version of the lease that they debated and voted on on Nov 10^th. Here’s what they voted on:
   
   Here’s the section of the minutes showing where the highlighted text was amended out at the Oct 27th meeting:
   
   In spite of this, the commission considered and voted on a version of the lease where the highlighted sections had NOT been amended out.
4. Amending an ordinance on second reading resets the consideration of the ordinance to first reading – meaning the action taken on Monday night is incomplete at best.
5. Approving a lease with a liquidation clause that states “In the event the YMCA willfully refuses to close this Agreement by failing to enter into the Ground Lease, then the YMCA, as its sole and exclusive remedy, may be reimbursed by the YMCA for . . . actual documented costs incurred by the City . . .” may not render the ordinance void, but it certainly ought to embarrass everyone who had anything to do with approving the lease. The City Attorney, the City Manager, and the City Commission are all either grossly negligent, or incompetent, or both.
   

The full text of the proposed Lease and Master Development Agreement has been posted on the City Website. It’s not pretty.

The City Attorney has (allegedly) carefully reviewed this lease before submitting it to the City Commission.

The City Manager has (allegedly) carefully reviewed this lease before submitting it to the City Commission.

The City Commission has (allegedly) carefully reviewed this lease before voting on it.

Lots of egg on lots of faces.

Mt. Juliet City Manager starts his own blog

Mt. Juliet City Manager Randy Robertson started his own blog last night, and began with a flurry of posts. Robertson’s blog can be found at http://citymanagerreport.blogspot.com.

Somewhat mysteriously, the blog has been taken from public to private status this morning. Attempting to access the blog leads to a screen that says that “This blog is open to invited readers only.”

The blog has now been reset for full public access.

Although it is no longer publicly accessible at that site, here is what Robertson said in his initial post:

Inaugural Posting

from City Manager Report by Randy Robertson

Hello MJ:

This is the first in what I hope will be an on-going narrative regarding events in our city. I recently had the opportunity to attend the International City Manager’s Association annual conference. One of the conference agenda items concerned how city leaders told their stories. Although Mt. Juliet has two award winning local newspapers, both are weeklies, often meaning important stories aren’t available for 7 days. We also do not have a Public Information or Public Affairs representative on staff, meaning we are not in a position to share timely information with our citizens. This forum won’t fix those issues, but it will serve as a another source of information for those we serve.

Headlines from The Chronicle & The Mt. Juliet News, September 24, 2008

The race is on. . .
There was a mayoral forum in Lebanon on Tuesday morning. Marlowe said, “he would not place a property tax until there was a clear understanding of needs and if they can be met with the current fund streams.”

No more signs in public rights of way
Report on the City Commission meeting from Monday, 9/22/2008
The City Commission substituted a new version of the sign ordinance between first and second reading and then passed it. By not voting twice on the substantially new version, the Commission’s action is null and void. Par for the course for this Commission. The major impact of the new sign ordinance is to completely ban ALL signs from the public right-of-way, effective Jan 1, 2009 – so as not to affect this year’s political campaign. The ordinance passed 4-1, with Commissioner Justice opposed. The pay raise for the Commission passed 3-2. Elam changed her vote from “for” to “abstain” between first and second reading. City Manager Randy Robertson was absent from the meeting.

MJ out of gas, MJPD saving on fuel bills
They’re using bicycles and doubling up (2 to a car) on the midnight shift. New chief commented that Lebanon has 83 police officers to Mt. Juliet’s 41 and Mt. Juliet “could use a few more officers.”

Bible Park could benefit MJ as well as Lebanon
Mt. Juliet City Manager Randy Robertson said, “We look forward to assisting Lebanon with securing the park and commend their citizens and leadership in this matter. An endeavor of this magnitude will certainly have positive economic and employment influences on Mt. Juliet.”

Lebanon mayor vetoes resolution to axe MJ fire service
Lebanon City Council’s resolution would have directed the city NOT to provide any mutual aid outside the city limits after April 1, 2009.

Cosby pleads not guilty after fired by MJPD
charged with two counts of aggravated assault and one count of aggravated perjury.

Elam still on administrative suspension
Law license, suspended on Aug 27, 2008 remains on suspension. “It was an administrative oversight,” she said. Elam added she is not currently practicing law but plans to keep her license current.

Firefighters speak out
Time for city to have its own fire service
WEMA paramedic and firefighter Brent Dyer, President of the Wilson County Firefighters Association addressed the City Commission: “I can’t think of any city the size of Mt. Juliet that doesn’t have its own fire department.” Mayor Elam believes “there is no reason to ask taxpayers to pay for a second command structure and dispatch. It’s a waste of money and duplicates,” she said. She added, “It’s unfortunate William Farmer is trying to win an election by appealing to the basest and most divisive instinct of Lebanon voters. This is nothing other than throwing gas on a fire.”
The MJ News reports in its story that “Last week, a home in Mt. Juliet burned while it took WEMA trucks 10 minutes to respond.” An inflammatory sentence, with a significant factual error. The house was not inside the city limits of Mt. Juliet – it was in unincorporated West Wilson Co.

City passes new signage law
Agrees to pay vacation buy-out in two lump sums

Completion of I-40 intersection calls for celebration
City Manager Randy Robertson called the special day “monumental.” “I’ve been here less than a year, and since I came, we’ve been fighting this traffic,” he said. “Someone had a vision a long way back.”

– Publius

“Someone had a vision a long way back . . .”

So said Mt. Juliet City Manager Randy Robertson at the ribbon cutting for the completed improvements to the I-40 / Mt. Juliet Road interchange, according to a story on the front page of today’s Lebanon Democrat.

That someone would be Mayor Kevin Mack (2000-2004), who signed the contract with the Tennessee Department of Transportation (TDOT) in February of 2004 (no doubt after some significant period of planning and negotiation with TDOT).

Here’s a copy of the contract, for those who want to see who started the projects that Mayor Elam now gets to cut the ribbons for. Just cause you woke up on third base doesn’t mean you hit a triple.

– Publius

All these Public Records Requests are upsetting the Colonel

The City of Mt. Juliet really doesn’t want citizens to request public records

Several months ago, in July, Butch Huber (aka Citizen Butch) made a request to the City of Mt. Juliet for the public records related to the city’s employee health insurance contracts.

Citizen Butch wanted to review the proposals that the City had received and read the correspondence (email and written) between the City and insurance agents and providers in April, May, & June of 2008.

What followed is a tortured saga that will make you laugh in some places, and want to scream in others.

The saga has gone on for some time, so the account is necessarily lengthy.

But it’s a story worth reading.

And it raises the question, “What is it the City, or more specifically, the City Manager, doesn’t want the citizens to read?”

There’s a permanent page devoted to this here at RFMJ. Click here, or click on Open Records2 in the menu bar at the top of the page.

– Publius

New Permanent Pages

The persistent refusal of the City of Mt. Juliet to abide by the Tennessee Open Records law as well as the City Commission’s blithe persistence in refusing to deal with their laughable “ethics” code have both been commented on at Radio Free Mt. Juliet.

Both issues are important enough to merit their own permanent reference pages, so they have been added into the menu bar at the top of the site.

Ethics2 contains information about the Commissions “ethics” code.

Open Records contains information about the hostility of the Commission and City Manager to Open Records requests.

– Publius

Mt. Juliet’s City Manager and City Attorney and Police Chief

Were all spotted at a hearing of the Advisory Committee on Open Government last Friday, September 5th, 2008. The topic of the hearing? The new Public Records law passed by the legislature this year – and how much local governments should be allowed to charge citizens who have the temerity to request Open Records.

The City Manager doesn’t look like he’s having a very good time.

– Publius

Mt. Juliet City Commission votes to halt ‘liberal leave policy’

The Mt. Juliet News reported in a story on September 3^rd about an action taken by the Mt. Juliet City Commission at their meeting on Monday, August 25^th.

At the prompting of their City Manager, the City Commission voted 4-1 to halt what city leaders described as a “tremendously liberal leave policy.”

According to City Manager Randy Robertson, implementing this new vacation leave policy will in the long run save the tax payers a lot of money.

The only way to describe the simple-minded actions of the City Commission and the recommendations of the City Manager on this topic is that they are “full of sound and fury, signifying nothing.”

In fact, the new policy will not save the taxpayers any money at all. We should have suspected their math skills after this year’s budget debacle, but City Manager Robertson and the City Commission have once again demonstrated that they are innumerate.

Before the change to the policy, employees were credited with 2, 3, or 4 vacation weeks per year, depending upon their length of service with the city. After the change to the policy, employees are still going to be credited with 2, 3, or 4 vacation weeks per year, depending upon their length of service with the city. The only difference being how much total leave time they are able to accumulate. There is now a cap of 10 weeks. If an employee’s total earned vacation time would exceed 10 weeks at the end of a calendar year, then they lose the amount in excess of 10 weeks.

How will this save the city any money? Any savings are illusory.

Imagine you have a teen-ager and tell him or her that you’re going to give her (or him) a clothing allowance of $100/month by depositing that amount into a bank account. BUT, at the end of the year any money in the account over $250 they will forfeit. Will this save you any money in the long run?

The City Manager and the City Commission appear to be incapable of understanding the consequences of this new policy. One consequence I can confidently predict – employees are NOT going to forfeit any vacation time. Faced with a choice of use it or lose it, employees will make the rational decision to use their vacation time.

The only scenario that the city will no longer face is a hard-working, faithful employee who has taken fewer days than he (or she) had earned, being paid for their vacation days when they retire. They will now have all of their senior employees, mostly department heads, taking their four weeks of vacation every year rather than lose that benefit.

With 13 senior employees already at the level where they earn 4 weeks of vacation each year, the city has just lost the services of a senior employee for a full year. The police chief will be gone for a month; The public works director will be gone for a month; The city recorder will be gone for a month. It is an illusion to think that this saves the city any money in the long run.

To put it another way, suppose a city has 12 senior building inspectors who each perform 100 inspections a month, and there are 1200 inspections that need to be performed each month. If each of the building inspectors takes a 4-week vacation each year, then the city will need to hire 1 additional building inspector – NOW. And that extra building inspector will need to be paid along with the original 12 each year. If, however, the building inspectors choose to accumulate their leave for 10-12 years, then the city will need to hire an extra building inspector only when each of them retires. The city is going to have to pay for the same number of building inspectors for the same number of months under either scenario. There is no money saved by hiring an extra building inspector now, rather than paying for an extra one later.

But there may be some serious downside to the city if they lose a month of productivity from their senior employees each year now, out of a misguided “use it or lose it” strategy.

The city commission and the city manager are flat out wrong in their description of what this new policy will accomplish. It will not save the city any money – in fact, its immediate effect has been to cost the city $158,000.

Sounds to us like somebody just got sour grapes and a case of envy because a faithful employee, who worked for many years without taking much of the vacation they were entitled to is now taking the vacation days that they earned over the years by dedicated service to the city.

The new policy is an un-necessary annoyance to employees. It takes away a choice they previously had. It doesn’t save the city any money, but we’re guessing that it makes the City Manager and the City Commission feel good because they appear to be doing something.

But the citizens of Mt. Juliet ought to be disgusted at the incompetence of the management of the city.

And the Mt. Juliet News is wrong in their editorial. It’s not “sound fiscal policy.”

– Publius

Will Sellers and The Chronicle – What did the Commissioner say, and when did he say it?

On the cover of the July 30th Chronicle, there was a prominent quote from D2 Commissioner Will Sellers – “They’ve got reason to worry.”

At the August 11th meeting of the City Commission, Commissioner Sellers approached the editor of The Chronicle, Tomi Wiley, and demanded a front-page retraction, claiming he never said that.

Wiley had her notes from the meeting and told Sellers he had said it.

Unable to get satisfaction directly from the editor, Sellers took the matter up again, a few moments later during the televised City Commission meeting – repeating his demand for a retraction and an apology. He said he had reviewed the “instant replay” of the City Commission meeting and “I didn’t say that.”

Wiley requested a DVD of the meeting (for which the City charged her $10). When Wiley got the DVD, it included a note which said that the video recorder had turned off during the taping of that particular meeting and the recording was in two parts. The part that was missing? The report from the City Manager and the Police Chief on the fire code problems in Providence residences.

Thankfully, Tomi was able to find a citizen who had recorded the entire meeting at home. The audio portion of that recording has now been uploaded to YouTube. The link below starts with Commissioner Sellers’ rant demanding a retraction. At the end of the rant, the recording plays Sellers’ comments from the July 28th meeting, where he is clearly heard saying, “They’ve got reason to be worried.”

We have three observations.

1. Will Sellers owes Tomi Wiley a public apology. In keeping with his own standards of fair play, this should come during his Commissioner’s report at the next City Commission meeting. A letter to the Chronicle would also be a nice touch.

Rose Mary Woods demonstrating how she may have erased tape recordings

2. It is extremely suspicious that ONLY this portion of the meeting failed to be recorded. Does anybody remember, Rose Mary Woods, and the infamous 18-minute gap from the Watergate tapes? She was Richard Nixon’s secretary and accidentally “erased” a long section of a key recording.

3. Since the recording happened on July 28th, the statute of limitations on filing an ethics complaint about possible misdeeds by the Mayor, the City Manager, the D2 Commissioner, and any other city employee who might be involved runs out next week. But unless you witnessed anything first-hand, don’t bother. Your complaint will be dismissed under the City Commission’s ridiculous Ethics Code anyway.

– Publius