They want a lawyer ‘hired by us’

Commission considers shift away from county attorney to own representation

Despite withdrawing a resolution on Wednesday allowing the Shelby County Commission to hire its own lawyer, commissioners say it’s something they may do in the near future.

In recent weeks, commissioners have butted heads with Mayor Mark Luttrell’s administration over issues that include his resistance to a one-cent tax cut and switching the employee’s deferred compensation plan from Nationwide Financial, which has contracted with the county for about 30 years, to Prudential Financial.

It was something the county charter allowed him to do, but commissioners didn’t like.

Pair that with some, at times, unsatisfactory answers from county attorney Ross Dyer, and commissioners have decided they’d like their own adviser.

“Ross Dyer’s got the hardest job in the world,” Commissioner Terry Roland said. “He’s hired by the mayor; he’s not hired by us. Let’s be realistic about this.”

Too often, Roland said, Dyer and his staff are telling them “what they can’t do” and not how to do what they want to do.

Roland submitted the resolution to hire an attorney, which he withdrew after extensive public discussion by the general government committee and a 40-minute executive session with Dyer.

“We found out that we can already hire our own attorney as long as he doesn’t litigate for us,” Roland said.

Still, Dyer, told the committee on Wednesday his office serves as the legal adviser for the county, including the commission.

But the commission wants what the Memphis City Council has in Allan Wade — an attorney paid by the council who advises them. Such a hiring would require a county charter change.

Dyer defended the integrity of his office, as he read from the county charter, noting the rule of law and ethics overrule anything else.

“The one thing you do have that trumps this book in front of me is our ethical rules that bind our attorney-client privilege so that when I’m advising you, even if you are adverse to the administration or adverse to juvenile court or whomever, this is a relationship you and I have,”

Dyer said.

Still, Commissioner David Reaves called it an inevitable conflict of interest.

“What if the mayor comes in and says ‘I’m going to fire you?’ ” Reaves said.

“Then I get fired,” Dyer said.

“You see what we’re talking about? That’s where the issue lies with us,” Reaves said.

The county attorney’s office is the “law firm” for the county, Luttrell said.

“His clients are all the elected officials. It just happens that the mayor, by virtue of being the chief executive of the county, has appointing authority and the County Commission has approving authority,” he said.

“So there is a balance in a sense that the person has to be approved by County Commission,” the mayor added.

Luttrell does not discuss with Dyer the attorney’s interactions with other elected officials.

“I know I’m very careful, and the county attorney is very careful,” he said.

“He does not discuss with me the conversations he has with other elected offices, and I’m careful not to ask him.”

It’s also a matter of trust, Luttrell said.

“If they don’t trust how the system works, they don’t trust me, it becomes more about personalties than the system,” he said.

The charter does allow commissioners to hire special counsel for a specific issue, as it did during the lawsuits filed over merging Shelby County Schools and the former Memphis City Schools.

That lawyer could be brought in advance to help commissioners get ahead in a controversial issue and not be caught “flatfooted,” Commissioner Van Turner, general government committee chairman, said.

“If we know the budget may be a hot potato or some other things may pose a conflict, I think we can get ahead of that rather than trying to do something spur-of-themoment,” said Turner, who is also an attorney.

For now, that’s the best option.

“I think we got what we want, short of changing the charter, and I don’t think anyone wants to go through changing the charter,” Turner said.