Category: Uncategorized

After Charlottesville…

Words are failing me after Charlottesville. There are too many emotions and thoughts to make sense of. I know this post doesn’t cover it all, but this is where I am today…

A core American strength is our marketplace of ideas. A robust freedom of expression allows room for passionate, open debate with the best ideas rising to the top. A core American weakness is our long history of racism and slavery. The founders of our country couldn’t resolve the tension between these and had to settle on the three-fifths compromise where enslaved people were only counted as three-fifths of a non-enslaved person. Eighty years after that, we fought the Civil War, with the Civil Rights Movement coming another century later. Is America cleansed of our original sin — our history of racism?

The answer is no, and we didn’t need the weekend’s violence in Charlottesville to prove it. Racism and so-called “white supremacy” persist. It is reprehensible. It is intellectually and morally bankrupt.

I remain optimistic, however. Society continues to make progress, even if it is painfully slow. I believe that it is America’s strength — a robust freedom of expression — that keeps the arc of the moral universe bending toward justice for all.

I am bothered by the idea threaded into some of the coverage on the violence in Charlottesville that this is a problem that happened somewhere else. We should be careful with that. Nationalism tinged with racism, and a willingness to overtly threaten people, exists here in Tennessee too.

When I was pursuing immigration-related legislation in June, I experienced some hate firsthand. I decided to not talk publicly about the level of hate then because the legislation wasn’t about me. But I think I should share my experience now.

I received one clear death threat that included my home address, one more generalized threat about having a target on my back, and lots of emails from angry people talking about their rights as citizens and how they think I am a traitor. I know that an immigrant-rights advocate also received a death threat while the bill was pending. In July, I also had someone throw a brick through my office window.  To sleep comfortably without worrying about loved ones and co-workers has required concluding that the email senders would not act on their threats, and that the brick thrower was a random vandal.

To be clear, I am not complaining. I signed up to be a public figure. I choose to take positions that I know make some people angry. I choose to keep talking and acting after receiving these few threats. None of this is noteworthy compared to the daily struggle by minority groups in America who live their lives being the “other,” and having to fight, scratch, and claw for success.

In our modern American society, racism and bigotry continue to roil. Issues like poverty, housing segregation, and policing bubble and churn on or just below the surface of our culture. Just a few weeks ago, I wanted to view the few threats I and others experienced as exceptions and not noteworthy. Now I see them as twitching on a seismograph; a warning of what might be coming. Was Charlottesville the eruption, or just a bigger bounce on the seismograph? Will there be a bigger eruption, or will we find our way again and force that arc to keep bending toward justice.

I can’t know for sure. But my faith is in America. My faith is in our freedom of expression, and in our belief that all people are created equal. In all of our major faith traditions, faith without action is meaningless. The same goes for our great American experiment. Each in our own ways, we must act in support of our faith in America. When we exercise our rights, knowledge and ideas and debate beat hate.

 

 

Soccer Stadium

Over the next six months, the Council will be asked to take positions on several important issues. Before these debates come to a head, I want to share my current thoughts about each of them. This post is about the potential soccer stadium. I have also posted separately about the possibility of a transit referendum and the commercial development proposed for Ft. Negley Park.

Here’s what I think I know (all based on second or third hand information I have heard):

  • I think the proposal will be to build the stadium on the hill at the Fairgrounds where most of current buildings are. I think it will have one or two restaurants and build in some conference and office space (that would presumably be operated by the Fairgrounds Board??).
  • I think the MLS bid team would like Vanderbilt to play its football games there. That implies a stadium with seating for at least 35,000 to 40,000. And the project cost amounts I hear range from $150 to 200 million. I hear that Vanderbilt hasn’t decided yet what to do, but I am not confident about that one way or another. If Vanderbilt declines, I assume the stadium will be smaller and I don’t know what that would do to the price.

Here’s what I don’t know:

  • What is the total expected price tag? Does the stated price include any expected infrastructure, parks, greenways, or other improvements that might get folded into the project?
  • How much will Metro pay?
  • When there are overruns (like with the Sounds stadium and most large projects), who will pay for the overruns?
  • What is the source of funding for the Metro part?  In the budget process a few months ago, this project was listed to be supported with revenue bonds. In turn, this suggests using sales tax revenue from tickets and stadium concession sales to pay for Metro’s portion of the cost. The details will matter, but this revenue seems like it might not be enough to pay the cost of the debt. If not, what will the annual losses be, and how will we pay for that?
  • How are nearby neighborhood groups going to interact with the stadium for parking and noise, especially for night games.

My position on Metro contributing to build a soccer stadium will depend largely on the economics of the deal.

Transit Referendum

Over the next six months, the Council will be asked to take positions on several important issues. Before these debates come to a head, I want to share my current thoughts about each of them. This post is about the potential transit referendum. I have also posted separately about the possibility of a soccer stadium and the commercial development proposed for Ft. Negley Park.

Here’s what I think I know:

  • The Mayor has proposed a Gallatin Pike light rail line into downtown.
  • There is talk around the courthouse of a referendum to approve a dedicated funding source for transit-related development and infrastructure as early as the May 1, 2018, local primary election.  That is less than 9 months from now.
  • Any referendum would need to be approved by the Council before going on the ballot. I don’t know what the exact deadline is for getting Council approval, but there is talk around the courthouse that the Council decision could be as late as January 2018 for a May referendum. It is really up the administration to decide when they want to present this to the Council.  I have assumed that the administration will seek approval for funding a soccer stadium before approaching us about the transit referendum…but that’s just a guess.
  • Elements of the business community are organizing a group to lobby the Nashville community to vote yes on the referendum.  I don’t know exactly who is involved, but I hear that the organized private effort to support the referendum will launch after Labor Day. And I imagine there will be an organized campaign against the referendum, but I don’t have any visibility into those efforts.

Here’s what I don’t know:

  • What tax, and in what amount, will be proposed? I am also curious to see exactly which Metro agency will be proposed to spend the money, and to approve specific plans.
  • How will a Gallatin Pike rail line cross the Cumberland River? The word I hear is that it will be on the center, reversible lane on the James Robertson Bridge.  But that’s rumor as far as I can tell.
  • Where will the rail line drop riders off  downtown? Again according to rumor, it will be somewhere on the north side of downtown, but not at the existing MTA bus station.
  • How will riders get around downtown? This is important to me. I would argue that the lack of a circulation system with dedicated lanes for people to get around downtown is what holds back the Music City Star ridership. This is a tough problem because our streets are so narrow downtown. But to me, this issue isn’t going away. No matter how many train lines we run into downtown, if people have to walk a half mile up hill in the heat or the cold, I think we’ll have ridership problems. I am hoping that this first rail line proposes something bold about how to get people around downtown better.  (And for the love of all that is good in the world, don’t say ‘golf carts.’)
  • There is a golden rule with transit systems — the bigger they are, the more money they lose. Sometimes people shy away from saying that. I’m not one of those people. The transit system itself will always lose money and the bigger it gets, the more it will lose. The question is about what other gains will be realized. What level of property tax increases are expected around new train stations, for example? Someone needs to model out what the expected losses will be from our new bigger transit system, talk about how to fund these increased operating losses, and predict what the related revenue gains will be.

I am supportive of building a better transit system. I will need to get reasonably good answers to these questions in order to support putting a transit referendum on the ballot.

Ft. Negley Park (aka “the post you can’t even name without taking sides”)

Over the next six months, the Council will be asked to take positions on several important issues. Before these debates come to a head, I want to share my current thoughts about each of them. This post is about the commercial development proposed for Ft. Negley Park. I have also posted separately about the possibility of a soccer stadium and a transit referendum.

There is ongoing debate about what should happen with Greer Stadium. This is one of those debates where no side is willing to even agree to the language used to describe the problem.

Saying “Ft. Negley Park” instantly suggests that you are opposed to any commercial development on the site of Greer Stadium, which is physically located in Ft. Negley Park. Or, it at least says that you don’t want development to happen as currently proposed.

Using “St. Cloud Hill” or more frequently “Cloud Hill” instantly says you are refusing to use the word “Negley” in an effort to deflect from the historical significance of the fort on top of the hill and/or the encampments and potential graves on the southerly slopes of the hill.

I am using “Ft. Negley Park” because I had to choose one. And, that is the name of the property. And, I do oppose the development happening as proposed.

I have looked at period drawings and photos. I have looked at topographical maps of the hill and surrounding slopes. It seems clear to me that one of two things is true — either the remains of a Civil War-era African American encampment and possibly graves are under some portion of the stadium and its parking lots, or those remains were removed when the stadium and parking lots were first built.

I think figuring this out is too historically and culturally sensitive to outsource. Metro should do the archeology itself to figure out what physical or human remains exist before signing any contracts for what happens with this site.

I am not dead set against any development on the site. It has after all already been a baseball stadium for decades. However, Nashville deserves a clear, complete answer about what is on the site before making any decisions about a planned 99 year lease.

Finally, for your information, here is the letter the five At-Large Council members sent to the Mayor about this issue last month. And here is her response to us.

Knowles Assisted Living Facility Audit

On July 18, 2017, Metro’s Internal Audit department published its report about the Bordeaux LongTerm Care and J. B. Knowles Assisted Living facilities. The audit covered the period after Metro privatized day-to-day operations of these facilities. In 2013, the management of the Knowles facility was taken over by a private operator, Autumn Assisted Living Partners, Inc.  In January 2017, Metro removed Autumn due to poor performance and its inability to pay the operating expenses or maintain the facility. Several Council members asked Metro Internal Audit to examine what happened.

You can see the full report here.

It is worth reading, but the important takeaways are:

  • Internal Audit forwarded the report to the DA and to the State Comptroller. I’ve been on the Metro Audit Committee for almost two years and this is the first referral like this that I recall.
  • The report summarizes: “Management of Autumn Assisted Living Partners, Inc. mismanaged the fiscal affairs of the former J. B. Knowles Assisted Living facility. Vendors were not paid timely, financial reports were not prepared, resident trust fund accounts were not maintained, and corporate and 1099 tax returns were not filed.”
  • The summary continues: “Contract performance oversight was lacking by the Metropolitan Nashville Hospital Authority and Metropolitan Nashville Government.”

I think it was a reasonable decision to privatize the day-to-day management of these facilities, but the execution went really, really badly for the Knowles facility. The private operator wasn’t up to the task, and Metro didn’t maintain enough oversight.

I have no idea whether the poor management by Autumn rises to the level of criminal activity. But it is noteworthy that the Metro Auditor Mark Swann felt required to provide a copy of the report to the DA and to the Comptroller. Regardless of how this shakes out, Metro must do better if it is going to outsource a job that impacts the health and lives of our citizens.

“City Heights”

There was an article today in the Tennessean about gentrification inside of 440 and north of Charlotte.  The addresses in the article are a few minutes walk from Swett’s and barely a mile from Meharry and Nashville General Hospital.

I have written before about the hospital. From the perspective of my day job as a lawyer where I often help companies and non-profits work their way through financial distress, I have long-thought there are three basic possible solutions for the hospital’s financial problems — go big, go home, or kick the can down the road.  For at least a decade, Nashville has chosen to “kick the can down the road” by chronically under-capitalizing the hospital both for day-to-day operations and long-term improvements. The “go home” solution would be to close the hospital. I’m definitely not arguing for that; I’m just saying that’s what the “go home” solution would be.

The “go big” solution, in my mind, would be to team up with Meharry and leverage the inevitable development coming out along Charlotte from one direction and out Jefferson from Germantown from another direction.

The collective needs (NOT in order of importance) as I see them include: helping to preserve the cultural importance of Meharry and it medical school for Nashville, the practical need for Meharry to have a teaching hospital, honoring and respecting the unique historical importance of North Nashville as an African American community, the need to act now to make sure that current residents can afford to stay in the neighborhood as the inevitable development gets closer, and help find a way to put a cap on Metro’s annual investment in the hospital.

If Nashville goes forward with no meaningful plan in place for the area, the neighborhoods surrounding Meharry and Fisk will gentrify. And I mean “gentrify” in the worst sense of the word. A grievous sin was committed against North Nashville when the interstate cut the Jefferson Street corridor in half. I think there is a moral obligation for Nashville to preserve this historically African American neighborhood.

So what would the “go big” solution actually look like? First, I think Meharry (and Fisk) need to be put in a position to get as much benefit as possible from the coming increase in real estate values. Maybe this means a redevelopment district and tax increment financing around the universities. If done right, the hospital would become better and more competitive. That would shore up Meharry’s long term need for a teaching hospital. The objective would be to help Meharry capture some of the economic value of its neighborhood the way Vanderbilt does the same in its neighborhood.

The “go big” solution also would certainly mean comprehensively canvasing the area and having a rock solid commitment to making sure that every version of the future has as much or more “workforce” and “affordable” housing as there is now. The area is already getting more diverse (i.e., less African American). There has to be a firm commitment to maintaining or better yet growing the African American population in the area. Neighbors who live there now deserve the opportunity to stay, and have their families stay, there for the very long term.

Some will say that I am dreaming an impossible dream. But here’s the deal — right now, the market is transforming the Charlotte corridor out to 440. It is happening before our eyes. The time to help Meharry, help the hospital, preserve North Nashville’s African American heritage, and protect the ability of long-time to residents stay in their neighborhood is now.

Immigration Bills in line with State and Federal Law – would not create “Sanctuary City” status

Along with co-lead sponsor Colby Sledge and a growing list of additional co-sponsors, I have submitted two bills to guide Metro’s role in federal immigration enforcement. First reading will be on June 6.

This afternoon, the Tennessean put up a story about the two bills, and describes a letter I wrote to Sheriff Hall to give him a heads up about the legislation and to explain the bills. This post is to provide more information about the two bills.

Here’s the letter I sent this morning. Here, here, and here are three other letters we exchanged in March. We also met in early April. Our exchanges on this topic have been cordial and professional. I don’t know what his position, if any, will be about the two bills. I am providing these letters because they provide a detailed explanation of the issues.

One of the bills would require Metro to immediately exercise its rights to terminate a 1996 contract with the U.S. Marshals Service, and also require Metro to use its best efforts to negotiate a replacement contract subject to the approval of the Council. Under the 1996 contract as written, and as approved by the Council, Metro has authority to hold unsentenced adult males and females charged with federal crimes or who are federal material witnesses in exchange for a daily fee. That contract expressly excludes people who already have been sentenced for crimes, juveniles, and “aliens” (which means non-citizens).

In practice, the Davidson County jail is being used as a regional ICE holding facility for non-citizens (or “aliens,” as described in the contract) who are not charged with any state or federal criminal offense. This contract has been in place for 21 years with no legislative oversight. The new legislation would require Metro to exercise its rights to terminate the contract, and negotiate new terms subject to Council approval.

The only principled push back I have heard so far about this bill is that the contract also allows Metro to house people who are charged with federal crimes. The argument is that we shouldn’t want to undercut Metro’s ability to house citizens charged with federal crimes. My response to this is simple: it has been 21 years since this contract was reviewed. Going that long without review is bad policy and bad practice. It is time for the terms of the 1996 contract to be reviewed by the Council. Otherwise, would this contract really just go on forever?

The other ordinance is intended to facilitate compliance with federal immigration laws within the limited resources of our local government. This ordinance would require that, unless required by federal or state law or a court order, Metro may not use its money, resources, or facilities to assist in enforcing federal immigration laws, or to share information about a person’s custody status or court dates. This ordinance would also prohibit Metro from requesting information about a person’s immigration or citizenship status. Finally, this ordinance would prohibit Metro from honoring an immigration-related voluntary detention request unless it is accompanied by a federal criminal warrant.

Everyone rightly should be concerned about how this ordinance fits with other existing law. First, this ordinance does not make Nashville a “sanctuary city.” Earlier this week on May 22, the Department of Justice issued a memo specifically defining what it means to be a “sanctuary jurisdiction.” There is nothing in the new ordinance that triggers the DOJ’s definition. As an additional precaution, the new ordinance expressly requires Metro to follow all federal law, state law, and court orders including federal criminal warrants.

I have heard through the courthouse rumor mill that there are a few objections floating around. I’ll go ahead and address those here.

One argument claims that this legislation will be harmful to immigrants. I recommend that anyone wanting to explore this argument go locate some immigrants in our community and ask what they think. I am confident that Nashville’s immigrant population will be strongly in favor of this bill.

Another argument is that Metro doesn’t have the power under state law to tell the Sheriff’s employees what to do about anything. I have only heard this objection in the last few hours, and I don’t know who is making the objection. But my initial reaction is that I believe it is long settled law that the Sheriff is bound by the functional, budgetary, purchasing, and personnel provisions of the Metro Charter. So I don’t understand this objection.

Another argument is that this will somehow impact public safety. This argument doesn’t make sense. The bill would require Metro to honor all existing federal and state law. Metro simply would have to stop holding non-citizens unless they are charged with a criminal offense.

In the coming days and weeks, I’ll provide more information about the moral imperative behind these bills. All of Nashville’s residents add their own note of individuality and spark to who we are. When our immigrant neighbors are silenced or muted by fear, Music City is out of tune. These bills will help us celebrate all our voices.

 

 

 

 

Unfunded OPEB Obligation Going Over $3B in 2018?

Between now and the end of June, the Metro Council will approve our budget for the 2018 fiscal year. Before we get too deep into that process, it is worth remembering where Metro stands on its financial obligations to Metro retirees.

The financial obligations to retirees have two components – pension obligations and what is called “Other Post-Employment Benefits” or “OPEB.” The OPEB component is the health insurance coverage that Metro retirees have.

Metro has never set aside any money for the OPEB obligation. Instead, each year, Metro pays for the post-retirement healthcare obligations out of operating funds for that year. At the end of FY16, actuaries calculated Metro’s total unfunded OPEB obligation at $2.79 billion. There are several points to make about the unfunded OPEB obligation.

First, it is an enormous number. In fact, it was 1.4 times the entire Metro budget for 2016.

Second, this number has been growing rapidly. Back in FY12, the unfunded OPEB obligation was $2.23 billion. This means that, during Nashville’s historic growth from 2012 to 2016, the unfunded OPEB obligation grew by just over a half billion dollars ($560 million).

Third, there has been predictability in these numbers for the last 5 years. In both FY12 and FY16, the unfunded OPEB obligation was 1.4 times the Metro budget. The main takeaway is that, for every $100 Nashville has been able to grow its revenue/budget over the last 5 years, our unfunded OPEB obligation has grown $140. This is probably Metro’s worst financial statistic.

Here is a chart that shows Metro’s budget, unfunded OPEB obligation, and the OPEB obligation as a percent of the budget for 2012 to 2016.

I did the same analysis for the pension obligation. Here’s the chart for that. For the pension, there is money set aside already, although not enough to cover all future obligations. For the pension, the accountants calculate the “net pension obligation.” To do this, they look at how much money is set aside and then make some assumptions about inflation and how much money Metro will earn on the invested funds. Based on this data and assumptions, they calculate how much the shortfall will be over the long run. And that “net pension obligation” is how much Metro should anticipate having to pay for all current and former employees in addition to what is already set aside.

The good news is that the net pension obligation numbers are much smaller. For FY16, the net pension obligation was $401 million (or 20% of the FY16 Metro budget). That’s a big number, but manageable compared to the $2.79 billion unfunded OPEB obligation.

On the chart, you’ll see that it looks like the net pension liability quadrupled from FY13 to 14. But there was a complex accounting rules changes that went into effect that year, which forced the net pension obligation to be calculated differently. Since the rules change, the net pension obligation has ranged from 14 to 20% of the Metro budget.  So for every $100 that Nashville has grown its revenue/budget over the last 3 years, the net pension obligation increased by just under $20.

It is hard to put just the right context on numbers this large — especially the $2.79 billion unfunded OPEB obligation. I mean, panic isn’t the right response. But, Metro does need a serious plan for addressing the trend lines. The Mayor just proposed a $2.21 billion budget for FY18. If that 1.4 multiple holds true, the unfunded OPEB obligation will go over $3 billion in 2018.

Math is hard

For the 2017 fiscal year, Metro’s general obligation bond debt service was either 10.1%, 10.85%, or 11.35% of the budget — depending on what document you look at.

According to the 2017 Budget Presentation given a year ago, it was 10.85%. See page 17.

According to the 2018 Budget Presentation given a few days ago, it was 11.35%. See page 35.

According to the Council Director’s analysis for our meeting two weeks ago, it was 10.1%. See page 2.

It seems like there are different methodologies being used to calculate a single metric. These numbers really aren’t too terribly different, but there is a roughly 10% swag factor depending on which of these is correct. I’m working with the various Metro folks involved trying to understand the differences.

Jackson Law – rubbish or not?

Last November, CM Nick Leonardo introduced an ordinance for Nashville to adopt the State’s “Jackson Law.” If adopted, the Jackson Law would require new and expanding landfills to be approved by a Metro Council ordinance before a state permit could be issued. The legal and policy ins and outs of this proposal are complex. I don’t really have a good reason, but I have put off getting fully up to speed until the bill reached 3rd reading.

Now, 3rd reading is scheduled for May 2. So, I spent the time to learn what I needed to learn. I have decided to support adoption of the Jackson Law. I am going to let you read the ordinance on your own. Council Director Jameson has also provided deep analysis — you can go herehere, and here and search for “Jackson” to see what he has to say. Metro Legal Director Cooper has at least one memo about the Jackson Law also. I am going to run through the major differences. For each issue, I’ll let you know whether I think the existing law or the proposed Jackson Law is better policy for Nashville.

More vs. Less Factors For Council To Consider: Existing law: (1) allows the Council to consider only one factor — location; (2) if the Council’s decision is challenged later, it is easier to uphold; (3) in addition to the Council having one reading, the Board of Zoning Appeals would need to have a public hearing; and (4) there is no way to avoid the Commissioner of a State agency (TDEC) controlling one step of the appeal process.

The Jackson Law would: (1) allow the Council to consider many more relevant factors (GOOD); (2) if the Council’s decision is challenged later, it is more difficult to uphold (BAD); (3) the Council would have three readings (GOOD), but the BZA wouldn’t be involved (BAD); and (4) the TDEC Commissioner would be required to automatically approve the Council’s decision (GOOD).

My perspective is that, if we had parallel universes — one with existing law, and one with the Jackson Law, and everyone performed their respective roles properly, there would be little or no difference in the results under the different laws. However, we know that not everyone will act perfectly, and I simply can’t predict whether the weak link in any future hypothetical scenario would be the Council, the BZA, our Solid Waste Region Board, the TDEC Commissioner, a Davidson County trial court judge, or a State of Tennessee Court of Appeals. Without a crystal ball telling me who among these is going to possibly mess up, I can’t predict what extra protections I prefer. Either of the two technical processes might turn out to be better, or worse, than the other in some unknown future scenario. For this reason, this issue is a TIE.

More vs. Less Formal Notice Mailed To Neighbors: Existing law does not have a strong notice requirement. The Jackson Law has a very strong notice requirement. Obviously, more notice is better than less notice. However, when a landfill is involved, word gets out fast and thoroughly. Practically, I don’t consider a difference in notice provisions significant enough to pick one law over the other. This issue is a TIE.

What Kind Of New Landfills Must Go Before The Council: Existing law requires a Council resolution approving a new Class I landfill (municipal solid waste), but NOT for Class II, III, or IV landfills (industrial, and construction and demolition waste). Under existing law, new Class II, III, and IV landfills get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, new Class I-IV landfills all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

What Kind of Landfill Expansions Must Go Before The Council: Under existing law, if a landfill wants to laterally expand its footprint, the Council does not get a say in the process. These expansions get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, lateral expansions of existing landfills all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

Solid Waste Transfer Stations: A transfer station is a local site to temporarily store waste until it can be shipped, usually in larger vehicles, to a permanent landfill. Under existing law, a new solid waste transfer station must get the same Council/BZA approval required for a new Class I landfill.

Under the Jackson Law, a new solid waste transfer station is exempt. The advice I have received tells me that the most likely result is that our existing law would continue to apply to requests for a new solid waste transfer station. Because this is “most likely” and not a certainty, this issue goes slightly in favor of existing law.

Solid Waste Processing Facilities: A processing facility is used to change the physical characteristics of the waste, or to remove particular components from the waste. Under existing law, the Council does not get a say in the process of approving a solid waste processing facility. These get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, processing facilities all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

The Jackson Law Is All-Or-Nothing: State law does not allow us to pick and choose which parts of the two laws we like. We have to take all of the Jackson Law or none of it. Because the balance of the other factors weigh in favor of the Jackson Law, this issue also goes to the Jackson Law.

Overall, I think the Jackson Law is the better policy for Nashville. If nothing else, adopting the Jackson Law will give the community and the Council more control over new Class II, III, and IV landfills, lateral expansions of existing landfills, and solid waste processing facilities. This makes the Jackson Law the better choice.

April 4 Council Agenda

For the April 4 Metro Council agenda, here’s what I am looking at:

For public hearing

There are two bills (-641 and -642) that were disapproved by the Planning Commission. Since the media coverage in January about how the Council approaches disapproved bills, I don’t think we have passed any disapproved bills on 3rd reading. Usually, disapproved items get approved on 2nd reading on the night of the public hearing, or the sponsor defers to do some more work on the bill. Here, the sponsor of both of these bills is CM Robert Swope. I do not believe he has previously asked the Council to go against the Planning Commission.

CM Angie Henderson’s sidewalk bill (-493) is also set for a public hearing. I am one of twenty-two co-sponsors. Henderson has done an incredible amount of work on this. The bill is complex. I’ll quote Council Director Jameson’s summary of the bill:

The ordinance under consideration would amend these Code sections to support walkable neighborhoods and access to and use of Nashville’s transit system. Overall, the ordinance would close a loophole wherein sidewalk installation has not been required for single- and two-family infill development on major and collector streets in the USD and on neighborhood streets in the UZO or within ¼ mile of a center designated in the general plan. For multi-family and nonresidential development, it would also reduce instances where “in-lieu” payments may be applied and require more physical construction of sidewalks throughout the city as development occurs.

You can read Jameson’s full analysis here (see page 3 for discussion about -493).

Resolutions

There is a non-binding resolution asking Judge Moreland to resign (-642). Since Moreland has now resigned, I am not sure if the sponsors will go forward with this. If they do, I’ll need to abstain from voting. As I explain here, I have had a formal role as a neutral fact-finder in an attorney disciplinary proceeding where Judge Moreland was a witness. I need to maintain that neutrality.

2nd Reading

I am a co-sponsor of CM Jeremy Elrod’s bill that would require additional Council approval for any construction that would require closing or obstructing a Metro right-of-way for more than a year (-498). For me, the goal it to try to address the fact that it remains nearly impossible to walk across downtown without getting stuck having to backtrack to a pedestrian crossing that you already passed, or to cross the street mid-block. We can do better.

We’ve got CM Freddie O’Connell’s bill requiring U.S. Presidents and candidates for the office to provide Metro with their tax returns before they can use Metro facilities (-644). I’ll need to talk to the sponsor about this before I can support it. I’m all for fighting the good fight…but I’m not sure this is it.

CMs Pardue and VanReece have a bill that would allow alcohol to be consumed by passengers in horse-drawn carriages (-645). I want to hear more about this one also. I’ve seen some ‘pedal tavern’ groups that were clearly over-served and pretty boisterous. I’m not sure that level of partying and horses fit well together. I haven’t made my mind up on this one either way.

CM Dave Rosenberg has a bill that would regulate the use of surveillance devices by Metro in the public right-of-way. I’ll say this for CM Rosenberg, I appreciate him thinking about evolving technologies and how they might be used in Metro. This bill is worth reading. Jameson’s analysis says that Rosenberg has been in touch with MNPD about this, and that we should expect a “comprehensive amendment.” I’m looking forward to seeing that.

3rd Reading

CM Erica Gilmore and I are the lead sponsors (along with 24 other co-sponsors…thanks to all of them) for a bill requiring annual reporting by MNPD about traffic stops in Nashville (-483). Instead of having private third party groups trying to compile relevant traffic stop data, Metro would provide the information. This bill passed 2nd reading on a voice vote (so — it was unanimous…), and I expect this to pass 3rd reading.

Our bill to update storm water fees (-588) has reached 3rd reading. I am a co-sponsor. I expect this to pass.

Not on our agenda, but important…

If you are interested enough in the Council to read this post, then you also saw the story in the Scene last week about the impasse between Chief Anderson and the TBI. The bottom line is that the TBI (supported by District Attorney Glenn Funk) want the TBI to be able to conduct a truly independent investigation of any use of force situation involving MNPD. And Chief Anderson disagrees — he wants his officers to be able to conduct a simultaneous parallel investigation at the same time as the TBI’s investigation.

I have three positions on this. First, MNPD clearly has excellent investigation skills. I think we have the best police force in the State of Tennessee. There’s no question about that.

Second, despite MNPD’s capabilities, the best practice in law enforcement is for there to be a single investigation. To say you want parallel investigations is the same thing as saying you don’t want the TBI involved. That can’t be — the Mayor wants the TBI involved, our DA want the TBI involved, and our citizens want the TBI involved. I would bet that our MNPD officers want the TBI involved. I would urge Chief Anderson to accept a single independent investigation by the TBI in these situations.

Second, speed matters. Having this impasse linger is bad for everyone. Let’s get to the finish line on this now.

Latest STRP scam

I’ve stumbled into learning about a scam to get Metro Codes to issue an improper owner-occupied short term rental permit when the property is really a large investor-owned hotel-like property.

Here’s how it works. There is a corporate development company that is setting up multiple LLCs each to own a single property.  In one example, the LLC has a 95% owner and a 5% owner.

The 95% owner is yet another company related to the corporate developer. And the 5% owner is an individual person employed by the development company or related to the owner of the development company. Then the individual 5% owner applies for an owner-occupied permit in parts of town where there are no more investor-owner permits available. This violates the spirit of the law by pushing the number of corporate owned units higher than allowed. This also violates the letter of the law because the individual who is applying simply is not the owner — the LLC is the owner.

These LLCs can’t even keep their story straight about where they “live.”  Every LLC in Tennessee has to provide a “principal place of business” to the Secretary of State.  In two examples I have seen, the supposed owner-occupying LLC listed the parent development company’s downtown business address as the LLC’s principal place of business. So for the State of Tennessee, these LLCs operate principally from a downtown address. But for their short term rental permit application, each “resides” in a different home around town.

These units push the envelope and break at least the spirit of the law in other ways too.  At least one of these homes is being advertised online in a way that indicates the rental is for the whole house, 5 bedrooms, and 10 beds — for nearly $800 per night. The advertisement mentions that 12 is the maximum capacity. But when you list 5 bedrooms and 10 beds, you are clearly sending the message that more than 12 guests is acceptable.

Amazingly, this scam has worked at least twice that I know about, and Codes has issued owner-occupied permits for these properties!

I don’t know whether to more bothered by the clearly intentional efforts to sneak by Nashville’s laws, or Metro’s inability to sniff out a scam before a permit is issued.

It doesn’t matter, I guess.  Either way, the whack-a-mole character of short term rental enforcement continues. I am asking Codes to tighten up their processes to enforce our laws, and not allow an LLC to have an owner-occupied permit.  I am also asking for these two owner-occupied permits to be revoked because the owner (an LLC) doesn’t reside there.

 

Statement about Judge Moreland

I’ve been asked whether I will join the list of Councilmembers asking Judge Casey Moreland to step off the bench while the Tennessee Board of Judicial Conduct investigates recent allegations. I will not be taking a position on this – let me tell you why.

Since before I was elected in 2015, I have served as a hearing panelist for the state board that oversees the conduct of lawyers. When the Tennessee Board of Professional Responsibility charges a lawyer with breaking our ethical rules, the Board appoints a panel of three local lawyers to act as the judge. At any given time, I typically am serving as an appointed hearing panelist for two or three lawyer disciplinary cases.

In 2015, I was appointed to be a hearing panelist in a disciplinary case against Bryan Lewis. Judge Moreland was identified as a witness in that case. We were scheduled to begin a three-day hearing on February 13, 2017. The media has reported that the week before the hearing, the case was resolved when Mr. Lewis agreed to accept a “public censure.” My job in Mr. Lewis’s disciplinary case was to be impartial toward Mr. Lewis, the witnesses (including Judge Moreland), and the facts. Even though Mr. Lewis has accepted a public censure, I am obligated to maintain that impartiality.

According to media reports, the challenges facing Judge Moreland now are connected to Mr. Lewis, and are at least tangentially connected to the situation that led to Mr. Lewis’s disciplinary case. Because of my role as a hearing panelist in the Lewis case and the mandatory impartiality that goes along with that, I won’t have any comment about whether Judge Moreland should continue to serve as a judge in Nashville.

Council Meeting Protest Tonight

The Metro Council meeting tonight was brought to a halt by protesters demanding a response to the shooting death of Jocques Clemmons by an MNPD flex officer. The protest is covered in the Tennessean already, and I expect to see a Scene article soon. You can also follow what happened @joeygarrison and @iamstevenhale. I want to share a few thoughts myself.

First, though, goodness, there’s a lot going on these days. The federal government appears to be on the verge of trying to deport every non-citizen charged with or convicted of a crime. I fear that the DACA kid detained in Seattle, and the domestic violence victim detained in El Paso, soon are going to be the norm and not the exception. For those who might somehow be unmoved by the human and family tragedies that will unfold, be prepared for public safety issues as non-citizens stop reporting crimes, and be prepared for economic consequences as real live human beings get disappeared from our economy.

Then there are the Russians, threats of violence against the Jewish community, inflamed anti-Muslim sentiment, and another season of scorn from the State legislature. Oh, and a public hospital working through financial distress, and short term rentals too. I’m not complaining because I volunteered for this Metro Council gig, but it’s a lot.

Back to tonight. It’s tragic. Jocques Clemmons is dead. The TBI is conducting an investigation, with the FBI riding shotgun. People — residents and law enforcement alike — are on edge. And, it is essentially impossible to describe these events in a way that makes everyone happy. On one side, anything short of saying that Mr. Clemmons was murdered is perceived as an insult. On the other, anything short of saying police officers have the hardest job in the world and this was a justified shooting is perceived as an insult. Although it feels like our language, our words, are failing us, and failing to convince the “other,” we can’t shut down the conversation.

I don’t have all the answers. I do feel though that if an argument doesn’t work, maybe a story will. Here’s one story — it is a story that most of white Nashville needs to hear — and I mean really hear and feel and believe. If you gather together a group of African American Nashvillians and ask them to tell their stories about nephews, sons, uncles, cousins, and husbands getting pulled over by MNPD, you will absolutely believe that African Americans get pulled over at significantly higher rates than white drivers. I can’t be any more plain than this — you can look at the statistics, but they are flat and easy to gloss over. But hearing a group of average Nashvillians who happen to be black look you in the eye and tell you about their experiences is moving. It is a truth that all of us need to hear.

Of course, this isn’t the only story that matters. MNPD didn’t create chronically bad education for minorities in Nashville. MNPD didn’t create poverty that unfairly impacts minorities. MNPD didn’t create the desperation that can sometimes lead to drug use or crime. For too many Nashville citizens, the “It City” is just the place on the horizon where you can catch a glimpse of a skyscraper. “It” isn’t real. “It” isn’t home. Yet, officers have to operate in that environment. It is a very hard job.

After a report last fall about traffic stops in Nashville, Council Member Erica Gilmore and I filed two pieces of legislation. I linked to the legislation when I wrote about it in December 2016. My perspective is that Nashville will find its way through these issues by talking about our stories. The Scene recently had a story that made the point that there is a history of racial strife in Nashville and we skim over that at our peril.

There has to be a public discussion that acknowledges the reality that much of Nashville’s African American population feels either over-policed or unfairly policed, and also acknowledges that we have to figure out how our entire community can be policed fairly and safely. This won’t be easy. It will be hard. But we absolutely have to be willing to have hard conversations in order to find the best way forward.

The Council is full of Type-A leaders. We saw that while the protest was starting. I saw at least a dozen of my colleagues trying to jump in to figure out something. I wanted the protesters to be able to speak — I think having them speak at the end of the meeting was a good result.

My legislation about traffic stops was never supposed to be contentious. Honestly, having Metro simply respond about whether it agrees with the data presented in the traffic stop report, and having Metro update the data once a year, was never going to be anything more than a first small, modest step toward shining a light on the conversation we need.

My guess is that we’ll soon see additional legislation — maybe to move body camera funding into this fiscal year instead of next. No matter what legislation gets filed, my primary objective is to take steps toward having a conversation where stories from the entire community are heard and acted on. There will always be some who simply deny that race ever plays a role, and there will always be some that paint all police officers as racist. But I’m willing to bet that the majority of people who hear everyone’s stories can work together in good faith to move Nashville forward.

Feb 7 Council Agenda

The Metro Council has a long agenda on February 7. I am guessing that the short term rental bills will generate the most public interest. I have put those items in bold so you can skim for them easily. Here’s what I am looking at:

For public hearing

There are two bills (-491 and -555) that were disapproved by the Planning Commission. After some recent media coverage about how the Council approaches disapproved bills, it will be interesting to see if the dynamic changes. Usually, disapproved items get approved on 2nd reading, or the sponsor defers to do some more work on the bill.

There’s another (-559) where the Planning Commission made no recommendation. This one is inside baseball. Currently, for a property owned by Metro, an application to change the zoning can only be initiated by the Mayor or the head of the department to which the property is assigned. This bill would add Council members to the list. One side of this would argue that the executive branch is in the best position to manage Metro’s property as a whole. The other would argue that the legislative branch should be able to start a zoning change on Metro owned property.

Resolutions

At our last meeting, the Council voted to defer consideration of a contract with a software company to help with short-term rental enforcement. That was Resolution -519. Since then, the Mayor’s office canceled that contract and they are putting it out for a competitive bid. I think -519 will be withdrawn.

The Barnes Housing Fund has awarded $8+ million in new funding (-536). I expect the Council will approve this award.

We are being asked to approve up to an additional $16 million for Nashville General Hospital (-538). I have written about this previously. This should be approved.

We are also being asked to approve $540,000 for the Knowles Assisted Living Facility (-539). There has been media attention to this also. Basically, Metro’s effort to privatize the facility has stumbled because the new operator was not up to the task. Metro is trying again. These funds are necessary to pick up the slack from the failed operator while Metro works on getting a qualified transition operator in place.

1st reading

Usually, 1st reading isn’t very interesting because most everything gets passed on to 2nd reading more or less automatically. Let me briefly put a few of the new bills on your radar.

The legislation that created the Downtown Central Business Improvement District is expiring. Bill -580 would extend the Downtown CBID. I haven’t gotten all the details yet, but I understand the boundaries are changing a little, and I understand that the district would become automatically renewing under the new bill.

There is a bill to update Metro’s storm water fees (-588).

There is a bill to provide a financial incentive to Ryman for their new indoor water park facility (-589).

There is a bill to authorize the use of eminent domain to acquire the real estate necessary to realign the intersection of Crestmoor Road and Hillsboro Road in Green Hills (-590).

There are three new short term rental bills (-608, -609, -610). You can read my post from last week about these new bills.

2nd Reading

I have sponsored a short term rental bill (-492). All of the new short term rental bills seem to assume that -492 will pass. That’s good. I filed -492 for two reasons — to fix a few definitions that a Court thought were vague, and to move the short term rental legislation to “Title 17” which allows us to have much-needed public hearings about any changes to the short term rental rules. I hope this passes.

Council Member Jim Shulman has a bill that would have MNPD providing quarterly reports about their extensive community service activities (-525). A few have criticized this bill as somehow creating more work for MNPD. I don’t see it that way. As it is, MNPD is engaged in significantly community relations work. And, if you attend one of their weekly COMSTAT meetings, you can get an update on this work. CM Shulman’s ordinance would demonstrate that the full Metro government stands behind this important work, and that it should be more widely publicized.

This one isn’t super-interesting, but it’s my bill…so, I’ll mention it. Bill -560 updates two parts of the Metro ethics ordinance. In both places, there were incorrect citations to statute sections that had been changed over the years.

3rd Reading

There is one bill (-297) that was disapproved by the Planning Commission by a narrow 4-3 margin. I don’t recall opposition at the Council public hearing, and I have not been getting emails about this from the community. I’ll need to hear out the sponsor and Planning about this.

Council Member Freddie O’Connell has a bill that would require contracts for correctional facility management to be approved by the Council (-542). I am a co-sponsor. CM O’Connell has talked to Sheriff Hall about this, and he is okay with it. I expect this to pass.