Below are excerpts from the legal opinion of the Metro Director of Law John Cooper. The yellow highlighting is mine. The bold type and black underlining is in the original. Rod Williams
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Tuesday, June 27, 2017
Nashville Attorney: Metro Council Sanctuary City Ordinance is Not Enforceable
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Mayor Barry comes out aginst Scantuary City bill. Says Council should give serious consideratioin to negative factors.
Mayor's Office Press Release, June 27, 2017- Mayor Megan Barry has issued the following statement on Metro
Council bill BL2017-739 following the release of a formal legal opinion
by Metro Law Director Jon Cooper stating that the legislation could not
be applied to the Davidson County Sheriff’s Office: It is clear from this legal opinion that BL2017-739 does not apply to Sheriff Daron Hall, who has said he will continue to honor detainer requests from the federal government. Additionally, the Metro Nashville Police Department has concerns that the ordinance would prohibit them from recommending U visa applications for immigrants who are victims of crime and willing to help put dangerous criminals in jail. Losing that law enforcement tool could jeopardize public safety and would run counter to the intentions of the sponsors to make Nashville a more welcoming city for New Americans.
The Metro Council should give serious consideration to these factors and reconsider whether this legislation is appropriate or necessary at this time.
In his legal opinion, Law Director Jon Cooper determined that BL2017-739 “would not be legally binding on the Sheriff. Under state law, the Council cannot prohibit the Sheriff from cooperating with federal authorities related to immigration.About the U visa program
According to U.S. Citizenship and Immigration Services, the “U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.” In 2016, 189 U visas were recommended by the MNPD and District Attorney; so far this year, 169 have been recommended. This is an important tool for law enforcement to have the witness testimony necessary to arrest and prosecute dangerous criminals who are a threat to the community.
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Sunday, June 25, 2017
Sheriff Daron Hall said a "sanctuary city" ordinance will not stop his cooperation with federal ICE agents
"Davidson County Sheriff Daron Hall said a "sanctuary city" ordinance proposal will not stop his cooperation with federal ICE agents when it comes to inmates charged with crimes." To see the News Channel 5 report follow this link.
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Friday, June 23, 2017
What happened a the June 20th Council meeting: Sanctuary city bill passes 2nd reading, Budget adopted.
If you are going to watch the Council meeting, you need a copy of the Council agenda and the Council staff analysis or you really will not know what is going on. You can get the agenda and analysis and my commentary on the agenda at this link.
The big news of the night is that the Council passed on Second Reading BILL NO. BL2017-739, the controversial sanctuary city bill. To go directly to that portion see timestamp 1:45:05. This bill would prohibit Metro government from using city funds or facilities to assist in enforcing federal immigration laws. It would prohibit Metro from honoring a federal request to hold illegal immigrants in Metro jails until federal agents could pick them up. Even murderers and rapist would be released under this bill.
The bill only passed the Public Safety Committee by a vote of 3 in favor and 2 opposed. Metro legal and the Council attorney have not yet offered a final legal analysis of the bill but the Staff attorney says it is opinion, at this time, that the bill could not force the sheriff to comply with its provision. Sheriff Hall has said that if passed, he will not stop cooperation with federal authorities. The bill has 14 sponsors.
The argument in its favor is that this bill would cause illegal immigrants to have more trust in the police and immigrants would be more likely to cooperate with the police and thus it would improve pubic safety. The arguments against it are that we would be protecting criminals from capture and punishment. Another argument is that the State legislature is likely to punish Nashville for taking this action since the State already has a law prohibiting sanctuary cities and stronger legislation on the topic is pending.
 |
| Robert Swope |
Inn a prepared speech he says this bill will give illegal immigrant criminals preferential treatment not even available to American citizens. He says in such matters as being stopped for a traffic violation it gives illegals aliens preferential treatment and discriminates against U.S. citizens. He also says, "we are purposely provoking the State yet again." He says it will cost the city millions of dollars.
Councilman Davis makes a passionate plea in favor of the bill that gets prohibited applause from the visitors in the chamber. Councilman Bedne also speaks in favor of the bill as do a few other council members. Council member Sheri Weiner moves to defer the bill but that motion fails. The bill passes by a vote of 24 in favor, 8 opposed, 2 abstentions and 2 not voting. The consideration of this bill concludes at timestamp 2:42:18 in the video.
All appointees to Boards and Commissions are confirmed without objection except for one nominee who withdraws her nomination.
There is a ceremony presenting to a gay activist the resolution that the Council passed last meeting honoring homosexuals and the homosexual festival called "Nashville Pride." While the resolution may reflect the will of the Council, it is not an official action of the Metro government, since it was not passed in the manner prescribed by the charter. The mayor returned the resolution to the Council unsigned, which the Charter calls a "disapproval." For it to be an official position of the metro government, the mayor would have to sign it or the Council would have had to pass the resolution a second time by a roll call vote that got a two-thirds vote of the full Council. As a matter of policy, the mayor does not sign any memorializing resolutions. A resolution of this nature called a "memorializing resolution," represents the opinion of only those members who voted for it. To view that section of the charter that addresses how a resolution becomes "effective," follow this link. Despite a resolution not properly enacted is of no effect and therefore meaningless, I am very disappointing that not a single member of the Council voted to oppose this resolution.
The Budget
While the normal order of business is to consider resolution following the voting on nominees to Boards and Commissions, the Council takes the Budget out of order and it is the first legislative action of the evening. The budget is taken up at timestamp 19:28 in the video and concludes at timestamp 1:03:14. There was not a whole lot of drama surrounding the budget this year. For one thing, the mayor did not propose a tax increase and yet due to a massive increase in revenue the city had a lot more money to spend so there were fewer hard choices to make.
Many people do not understand how the process of passing a budget works. The mayor proposes a budget. Almost always (I do not know of a time when it didn't happen), the council substitutes their budget for the mayor's budget. The substitute may not be that much different but the council may shift some funds and tweak it here and there. In a year in which a mayor proposes a tax increase, the council usually offers a substitute with a lesser tax increase. Here is the important part: A "No" vote on the substitute has the effect of voting for the mayor's budget. There is not a clean "no" vote on the budget. The charter stacks the deck in favor of a strong mayor. Over the years, in years in which we had tax increases, some council members not wanting to raise taxes as much as the substitute does will vote "no" on the substitute and then claim they voted against raising taxes. They either don't understand what they did or they are being deceptive. The effect of a "no" vote on the substitute is a vote for the mayor's budget instead of the substitute. The effect of abstaining or not voting is to vote for the mayor's budget. The charter states that, "If the council shall fail to adopt a budget prior to the beginning of any fiscal year, it shall be conclusively presumed to have adopted the budget as submitted by the mayor," (sec 6.06). There is not an effective way to vote "no" on the budget before you.
The council substitutes the mayors budget by a vote of 35 in favor, one "no" and one "abstain" and then various amendments to the substitute are offered. To see the mayor's budget and have it explained see A Citizens Guide to the Metro Budget. The mayors budget is for $2.2 billion dollars which is a $122 million more than last years budget. It includes $7 million more for mass transit, $36 million more for schools,.a pay raise for Metro employees including a $8,100 pay raise for the Metro Council members, money for police walking patrols, and funding for various non-profits. The major change made by the Council is to fund about twelve school nurse positions.
An effort was made to increase the funding for General Hospital. It is not mandated that the city have a charity hospital and since poor people can almost always go to the hospital of their choice, there is little need for a city hospital. General can not fill its beds and keeps needing a greater and greater subsidy. I am pleased to see fail the proposed amendment to increase by $5 million the $35 million subsidy in the mayor's budget. The $5 million dollars would have come out of a reserve fund. In my view, in addition to opposing the subsidy, I think it is dangerous to rob the saving accounts at a time when the city is awash in money. We should be saving for a rainy day when there may be a drop in revenue. The vote on this amendment was 20 opposed and 15 in favor. In a latter post I will list how council members voted on this amendment.
Resolutions
Following the action on the budget, the regular order of business is resumed. All resolutions are initially on "consent." Below are the resolutions of mild interest.
RESOLUTION NO. RS2017-682 adopts the certified tax rate. Following a general reappraisal, the local governing body must adopt a tax rate that bring in no more money than would have been brought in prior to the reappraisal. Currently the combined General Services District (GSD), which in most places would be the "county," and the Urban Services District (USD or "city") is $4.516. The new combined lower rate is $3.155. The tax rate is applied to each $100 of assessment. It passes.
RESOLUTION NO. RS2017-685 adopts a new fee structure for animal control. Under the new schedule if you dog is picked up, the impound fee is $50 and the daily boarding fee is $18. It passes.
RESOLUTION NO. RS2017-717, RESOLUTION NO. RS2017-718 RESOLUTION NO. RS2017-719 adopt new pay plans for Metro employees, with the exception of the Board of Education. These provide a 2.0% across-the-board pay increase effective July 1, 2017, continue increment pay, and to provide for the possibility of merit pay increases for some employees. They all pass.
RESOLUTION NO. RS2017-759 relates to a zoning matter in Councilman Davis's district and to me appears insignificant and not of general interest but is the subject of considerable discussion and then passes unanimously. Why it was simply not passed on "consent," I don't know.
RESOLUTION NO. RS2017-764 approve an application to be submitted to the State for approval of an Adventure Tourism District for Fontanel based on their providing zip lining, road biking and mountain biking as outdoor adventure activities. This designation provides the businesses within an Adventure Tourism District to apply for State tax credits. It is deferred indefinitely.Bills on First Reading are all lumped together and pass by a single vote as is the norm.
Bills on Second Reading. Below are the ones of interest.
BILL NO. BL2017-726 would add a requirement for the Department of Finance to maintain a written debt management policy for the metropolitan government. While revenue has been increasing to Metro, we have at the same time been increasing our debt obligations. Our debt is manageable now, but if and when Metro's growth slows, along with insurance obligations to retirees and Metro pension obligations, much of the budget will be untouchable and essential services will have to be cut. My view is that now is a time we should be reducing debt, not adding to debt. This bill would require Metro to have a debt policy including pension liability and establishes certain criteria for establishing the debt policy. This alone will not bring fiscal responsibility to Metro Government; that takes courage and will, but this is a good step in the right direction. It passes.Bills on Third Reading.
BILL NO. BL2017-737 would subject "platform vehicles" in Nashville to the regulations of the Transportation Licensing Commission. This is vehicles like open deck buses are a trailer pulled behind a tractors. This does not adopt specific regulations but would make these vehicles subject to regulations to be adopted by separate future legislation. It passes on a voice vote.
BILL NO. BL2017-738 would prohibit motels from marketing or renting rooms for a period of less than ten hours. In my view, why you rent the room for less than ten hours, should be no ones business. For a city so liberal that it promotes acceptance of homosexuality among the youth of our city, this seems somewhat puritanical. It passes on a voice vote.
BILL NO. BL2017-743 is a companion to Bill 739. It terminate a contract the city has with the U.S. Marshal Service to house federal inmates. The intention of this is to negotiate a new contract that does not include Nashville holding illegal aliens. This is deferred.
BILL NO. BL2017-645 would allow passengers in horse-drawn carriages to drink and ride as long as the beverage was in a plastic or foam cup. It passes.
BILL NO. BL2017-724 establishes the low-income elderly tax relief program for 2018. This is a continuation of a program that has been in place for many year. The State provides a certain amount for tax relief for the low-income elderly and this program is Metro's expansion of the program to provide more tax relief than the State. The income limit to be eligible is $29,180 and applicants must be over the age of 65. This cost Metro $3.9 million. It is approved, I support it and its approval was never in doubt.
BILL NO. BL2017-725 establishes a Greenways Commission and a Conservation Assistance Grant Fund and appropriates $500K to the fund. The purpose of this is to preserve properties having great natural, cultural, and environmental importance. From what I know about it, I support this. As we grow, it becomes important to preserve certain features of our community that make Nashville livable and enjoyable and unique. The commission could not appropriate any funds without coming back to the Council. It is approved.
BILL NO. BL2017-735 creates 54 new positions in Metro Government. This have to be created by the Council in order to be included in the pay plan. Approved.
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Thursday, June 22, 2017
Rep. Black Slams Nashville City Council’s Vote To Endanger Tennessee Families
June 20, 2017,
Press Release ,
Washington, D.C. – Congressman Diane Black (R-TN-06), a member of the House Border Security Caucus and author of the Stop Dangerous Sanctuary Cities Act,
condemns Nashville City Council vote on bills to obstruct immigration
law, putting illegal aliens first and the safety and security of
Tennessee families last.
"First and foremost, as a mother and a grandmother, I implore the
Councilmembers to start holding illegal immigrants accountable for
crime and acts of violence. Sanctuary city policies to help and support
criminal illegal immigrants pose a direct threat to our citizens and
undermine the rule of law. In Congress, I'm working with my colleagues
to pass the Stop Dangerous Sanctuary Cities Act to cut off funding for
any municipality that helps illegal immigrants hide from the law. It's
time for Mayor Barry to stop borrowing liberal policies from California
and New York and start putting the safety and security of Tennessee
families first,” said Congressman Diane Black.
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Sen. Tracy says Nashville's sanctuary city bill will draw stong legislative response
Sen. Tracy, sponsor of legislation preventing any city in Tennessee from becoming a “sanctuary city,” says action by Metro Government to try to skirt state law will draw strong legislative response
Senate Republican Caucus, NASHVILLE, (June 21, 2017) — Senate Speaker Pro Tempore Jim Tracy
(R-Shelbyville), who passed a law in 2009 preventing any city in
Tennessee from becoming a “sanctuary city” for illegal aliens, said any
action taken by Metro Government of Nashville to try to skirt it will
draw a strong legislative response. The Metropolitan Council approved
the ordinance on Tuesday evening, setting the measure up for a final
vote next month.
The law sponsored by Tracy prohibits local governments in Tennessee,
or the head of such localities, from passing any ordinances or policies
that allows for a sanctuary city to be located in the state. It was
designed to be a preemptive strike to guard against adoption of any
policies to protect those who are in the United States illegally, like
the one adopted by the Metro Council yesterday. It also urged the State
Attorney General and local governments to pursue any federal funds
allocated to combat illegal immigration.
“There is a high cost to illegal immigration for our cities, counties
and state,” said Senator Tracy. “That is why we took action in 2009 to
prevent it. The ordinance passed yesterday clearly defies the letter and
the spirit of our state law.”
The law states: “A local governmental entity or official shall not
adopt any ordinance or written policy that expressly prohibits a local
governmental entity, official, or employee from complying with
applicable federal law pertaining to persons that reside within the
state illegally. An official shall not materially interfere with the
ability of a local governmental entity, official or employee of a
municipality or a county to comply with applicable federal law
pertaining to persons that reside within the state illegally.”
“Obviously, the Metro resolution is contradictory of the state
prohibition,” added Tracy. “The first response, should the ordinance
pass, is to request an Attorney General’s opinion. Then if any further
legislative action is needed, it will be filed immediately.
###
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Wednesday, June 21, 2017
Council passes Sanctuary City bill on Second Reading
Controversial immigration measures move forward in Nashville's Metro Council
After an intense debate, the council voted 25-8, with four abstentions, to advance an ordinance that would prevent Metro from using city funds and facilities to enforce federal immigration law, among other restrictions. It sets up a third and final vote on the bill next month. ..... Councilman Robert Swope, in an impassioned speech, said the bill would have "disastrous impacts" on Nashville and guaranteed the bill would lead to action by the Republican-controlled state legislature overturning the council's action. .....Metro Legal Director Jon Cooper said Metro attorneys are still finalizing a formal legal opinion on the bill. he said the department's current position is that Sheriff Daron Hall, a state constitutional officer who oversees the city's jail, would not have to follow the restrictions. (link)
For a more detailed report and the Council meeting video with the sanctuary city bill notated in the video and a listing of how individual council members voted, please check back. Rod
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Tuesday, June 20, 2017
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