Clarksville City Council Session August 1st Recap – Part II

Clarksville, TN – Here are the rest of the items of note regarding Thursday’s (August 1st) regular council session.

Ordinance 6 (Transferring the funding of the director position of the Two Rivers Company (TRC) from control of the TRC to the city)

There was discussion as to why the TRC would want to give up full control of the position at the time when the city had fully funded the requirement and provided funding up to the amount of $350,000 for programs and projects.

Per a TRC Board letter, they believed they secured “increased predictability” in receiving annual funding for the director position. The TRC is not in a position to raise its own money (other than grants or donations) and will have to rely primarily on the city to fund it for the near future. The TRC board did not take a formal vote on the request.

The TRC was created to be a separate entity for greater flexibility to gain grants and act a bit more independently. Clarksville Mayor Kim McMillan had stated in a radio interview on June 15th that the position would become a city employee.

This was the first time that I am aware the mayor mentioned this action would take place. In an email dated June 18th to Mayor McMillan, the acting Director of Finance, City Attorney, and Council Members, I asked where was the TRC position located in the city budget. The mayor ignored my email request for information. Then with this August agenda item it was clear the position had not been included in the initial city budget action by the mayor.

An amendment to keep the position on the TRC “books” was proposed with a city guarantee to fund the position for five years. This would keep the independence of the position with funding. Interestingly, the argument against this was obligating the city to a five-year contract with the TRC to pay for the position.

Putting the position on the city books is no more or less of a financial obligation than the city signing an agreement with the TRC to fund it independently. Future city councils could refuse the fund the position and do away with the TRC since the city created it.

Another argument against the amendment was since it is city money the city needs to be in control. Perhaps the maker of this statement has not studied other city non-profits it has created. The mayor/city appoints the TRC Board. The Mayor is a voting member of the board (although she rarely attends the meetings), a council member is also a voting member, audit reports come to the council on TRC actions and spending, and the budget is reviewed and approved by the city.

The city provides hundreds of thousands of dollars to its other non-profit organizations (such as the museum) and no problems in oversight have occurred. Now the TRC director will have these financial review obligations along with working for the mayor. Seems a bit of overkill, unless the objective was to have full control over the function and have tighter control over the direction of project spending.

An argument for maintaining the director position on the TRC books was the methodology used on the current airport director. The Airport Board has the director reporting to them and not the city or county mayor. Both governments provide funding for that position.

It also turns out that if the TRC director is going to become a city employee position and since the person selected had not signed a contract, it needed to be advertised using all city employee hiring rules. According to the city HR, not all city rules were followed, as it was not a city employee position when initially advertised.

It appears the mayor will not address/correct the differences. Potentially, a current city employee that may not have known about the job, worried about the long-term financing of the position, but had the skills being looked for could raise issue with this hiring.

The amendment failed in a 5-yes & 7-no vote, but another amendment was proposed that the TRC would maintain the position as a full-time employee and answerable to the Board.  This opened more discussion. I asked the mayor if this position was on the city “books” would it report to her as any other city supervisory position would.

The mayor reminded me that every employee ultimately reports to the mayor (if you check my comments the week before on the executive agenda you will see that I already stated that). The mayor tried to relate how this was similar to the Parking Authority (PA) and the personnel relationships. The difference the mayor overlooked was the PA is not a non-profit and the chairman is not paid or hired, but appointed/nominated.

The mayor went on to support the earlier statement that the city needed to have oversight of the money and this would allow for it. However, the TRC would be fully equipped to provide guidance.

I asked the mayor if she would be doing the appraisals on the employee. The mayor said we do not do appraisals on individuals; we do appraisals on property (the mayor must not have spent much time on Personnel and Human Relations actions in prior jobs as the term appraisal is a perfectly appropriate term in reference to “performance appraisal”). The mayor stated that if I meant evaluations, she would see the TRC doing an evaluation to guide the mayor.

I tried to find the parameters of how the mayor viewed this position with another question/point asking if the Board would be an adviser to the Director. Before the mayor answered, Councilman Wallace Redd made a point of order, which the mayor immediately recognized. Councilman Redd could not see how this line of questions had any affect on where the position winds up. The mayor thanked Councilman Redd very much for his point of order and agreed with him. Thus, no further discussion would be allowed.

It appears the mayor was relieved that she would not have to further explain how she would be involved with the management and oversight of the TRC director position.

During the executive session I asked the TRC representative had they set the groundwork of how the position would be managed between the mayor and board if it were on the city books. The answer was no, so I believe the questions were very vital to the point in management of the position.

We have had major past issues with CDE in term of reporting, management and supervision and with the Parking Authority.  It appears lessons were not learned on these past experiences since at least one council member and the mayor were not interested in pronouncing some minimal management and supervisory guidelines.

This amendment failed 5-yes & 7-no. In the end, the proposal to move and fund the position as a city employee was approved in an 8-yes & 4-no vote. I voted no.

Resolution 5

(Borrowing $8 million dollars for various projects.)

I had concerns over past borrowed money not spent for project(s) as of this time (and may not be needed) and for new projects that have no plan or adequate explanation. The vote was 8-yes, 3-no and 1-abstain. I voted no.

Resolution 3 (extending the contract time for a marina restaurant development)

The marina operator had first crack at developing land that sits above the marina. He had proposed a restaurant and with council agreement he had a lease with the city to develop the land starting January 1st, 2012. He was to have the restaurant operational by December 2012. Around August 2012 the marina operator approached the mayor for an extension to May 2013 to have the restaurant operational. This was also approved by the council.

In the initial contract there was no rent requirement or performance penalty for the marina operator to pay until a restaurant opened. The restaurant was not completed by May 2013 and the operator was in breach of contract, although the city took no action on the breach.

Mayor McMillan wanted to give the operator until May 2014 to have the restaurant operational with construction to begin by December 2013. The mayor has no “teeth/penalty” or rent requirement on the additional contract time and the operator can miss this extension and it will not cost him anything.

I made an amendment to start the required rent payment as of September 2013 as a show of good faith by the operator. It appeared that any requirements for money or penalties would not be acceptable and he would walk away from the contract. Rent would be $1667/month as per the initial contract. In the initial contract rent would not start until the certificate of occupation was approved for the restaurant. I have not seen other leases that ran for this long and tied up property without some form of lease payment requirement.

The operator also stated the hope to expand the contract to allow leasing the remaining property for business and residential development. This sounds good; however, if the restaurant has had time compliance issues, then additional development could have concerns.

The mayor has given the council next to nothing in information regarding additional development, while the operator was more forthcoming and said he had provided the mayor some plans. If it is like usual, the council will see the plans in the newspaper before the mayor provides them to the council.

My amendment failed. The final vote to extend the contract was approved in a 10-yes & 2-no vote. I voted yes and we will see what happens. I believe it is a poor business practice to tie-up city property for an extended time without some form of rent or penalty.

Ordinance 7

(Removal of the requirement for Ethics Commission Background Questionnaire)

Councilman Redd made a proposal to remove the questionnaire citing (after initially supporting its inclusion in the original ethics ordinance) that it was basically an invasion of privacy. In discussions, I stated that if a potential ethics commissioner felt it was too invasive they could withdraw their nomination.

The questionnaire asks questions such as had potential commissioners provided money for or against campaigns of any sitting council members. It asks if they do business with the city. It asks if that person had any previous ethics complaints.

These are important questions for someone that will be reviewing the ethics of others. Some citizens do not realize the state had filed ethics charges and charged fines against a current sitting council member. If that current member was nominated to some position related to ethics, such information may influence any judgment for the fitness of that person to fill such a position.

The ordinance was defeated in a 5-yes & 7-no vote. I voted no.

Resolution

(Amending the City Charter)

Councilman Redd proposed amending the charter to eliminate the need to have seven (7) yes votes to approve an ordinance on its second mandatory vote before the council. He cited that he wanted the council to go back to the method it used in the past of a simple majority of however many council members showed up for a council session.

It takes seven council members to have a quorum. Thus, a vote of four (4) yes would approve an ordinance if such an event occurred. Councilman Redd was reminded that when the council had carried out such approvals previously with less than seven “yes” the council was in violation of the charter. He still thought that was the better way.

The resolution failed in a 5-yes & 7 no vote. I vote no for two reasons. First, requiring seven votes on the second review of an ordinance hampers a mayor or council members from calling a quick special session to pass or defeat something if a number of council members may or may not be available. Second, the charter has great many legal holes and out-of-date material. Piecemeal fixes are similar to putting lipstick and a wig on a pig. It is still a pig.

That’s a wrap.