The order could also impose a strong presumption that CLERB recommendations be followed. If the MPD Director wishes to disregard an investigative request or a disciplinary or policy recommendation, he would have to explain why, in writing, and communicate that to both the Mayor and the City Council. All such explanations would of course be public records. If the Mayor declines to act, the City Council could step in. It could pass an ordinance requiring the above. Some may object that such a Council ordinance would be counter to the recently passed state legislation requiring case-by-case action. But that is only in the context of a “subpoena”—this would simply be a City ordinance governing internal affairs and directing City employees. Others may object that this would raise separation of powers concerns regarding encroaching on the Mayor’s prerogatives. But the City Council passes ordinances which govern the conduct of city officials all the time.
But even if such bold City Council action were considered legally questionable, or considered a bridge too far politically, the Council could, at a minimum, require that the MPD Director justify each CLERB refusal in writing to the Council, teeing it up for case-by-case action. And the Council could amend its internal rules to provide that MPD-denied CLERB subpoena requests would automatically go on its consent agenda, where they would be teed up for routine approval. Given the current makeup of the Council, some Council members may very well exercise their prerogative to take it off the consent agenda. But that would still force the Council to an upor-down vote. We need a culture where cooperation with CLERB is the norm and refusal the exception. We need to call attention to each instance of obstruction, and force our elected leaders to say whether they’re ok with it. This by itself will not solve the problem, but it’s the least we can do.
Steve Mulroy is a former federal prosecutor and University of Memphis law professor, who teaches and publishes in the areas of, among other areas, criminal law and procedure. 12
