Thursday, November 21, 2002

City Attorney's Private Cases, Including Jones, Raise Little Concern

Commercial Appeal
By Blake Fontenay

As troubles continue to mount for former county mayoral aide Tom Jones, his attorney Robert Spence has been getting lots of media exposure.

Which may lead some observers to wonder: How can Spence, the Memphis city attorney, be involved in a case that deals with spending on county-issued credit cards?

Municipal attorneys elsewhere are often forbidden from doing outside legal work. But in Memphis, allowing the city attorney to maintain a private practice on the side is a longstanding tradition.

Mayor Willie Herenton acknowledges that Spence, who earns $109,064 annually, works under an unusual arrangement - and one that he's thought about changing.

Yet he and most of the City Council members interviewed by The Commercial Appeal say they aren't concerned about Spence's decision to represent Jones.

The former county mayoral aide is under a criminal investigation for using a county-issued credit card for private purchases. Jones said he's repaid all the expenses that weren't work-related.

The case has at times put Spence at odds with Shelby County Attorney Donnie Wilson. Last month, Spence wrote Wilson a blistering letter, essentially accusing county officials of piling up unwarranted charges against Jones.

It's a change from last year when Wilson and Spence worked together on the negotiations that brought the Grizzlies to Memphis.

Wilson declined to comment on how the Jones case might impact his future dealings with the city's attorney.

Most council members say they aren't worried about any possible tensions between the attorneys affecting their ability to work together.

"Lawyers can have a significant disagreement in the morning and then have lunch together and enjoy each other's company in the afternoon," said Councilman Jack Sammons. "Lawyers have a way of compartmentalizing disagreement."

But Councilman E. C. Jones said he's uncomfortable with Spence representing a former county mayoral aide because the city and county do work closely on many issues, sometimes as allies and sometimes as adversaries.

"I don't think a city attorney should be representing someone from the city or the county," Jones said.

"I've got a problem with the city attorney practicing law out there,'' he added. "It would be like the police chief running a private security company."

Generally speaking, Herenton said he's very pleased with Spence's performance since he replaced former city attorney Monice Hagler in 1997.

For example, Herenton said, Spence's work on those arena lease negotiations with the Grizzlies basketball franchise was "superb."

For his part, Spence says his duties as city attorney always come ahead of those in his private practice with the Hardison Law Firm.

Spence, 45, estimated that he spends about 80 percent of his time on city business, although the amount varies from week to week.

"I may go a month and never visit my law firm,'' Spence said. "Then I might go into my law firm two days in a row. It depends on what's going on."

When Spence was hired by the city, it was understood at the time that he would be allowed to continue his private practice.

Rick Masson, the city's chief administrative officer, said Spence isn't required to work a set number of hours for the city each week, provided he takes care of his responsibilities.

The city's rules do prohibit Spence from using city resources while he's doing outside legal work, though.

"It's a pretty broad-based conflict-of-interest policy,'' Masson said.

Spence said he never conducts private business from his office at City Hall. However, he said the converse is sometimes true.

He keeps a city computer at Hardison and occasionally asks lawyers there to advise him or assist with research on city matters.

Even if there weren't a rule against it, Spence said "I don't think I'd feel comfortable discussing a private practice issue with other lawyers at the city."
Although the city outsources some of its legal work to private attorneys, Spence said he's never referred a case to Hardison. Doing so would require approval from Masson and the council.

Spence said he is still involved in one case in which the city hired Hardison before Spence became city attorney.

Spence said he doesn't bill the city extra for that case, which involves a wrongful death lawsuit against city paramedics.

When the council confirmed Spence's appointment, four members were concerned enough about potential conflicts of interest to vote against him.

Councilman Brent Taylor said he was opposed to Spence's nomination in 1997 because he didn't like the idea of a city attorney dividing his time.

However, Taylor said he's never observed any conflicts since Spence took the job.
Taylor said he's sought help on several legal issues since the Jones case began - without detecting any dropoff in Spence's job performance.

"The situation does warrant monitoring,'' Taylor said. "The moment it becomes a problem, myself and other council members would raise that issue with the mayor. It has not been a problem to date."

Other council members said they don't see a conflict.

Said Councilman John Vergos, himself a nonpracticing attorney: "The problems he's helping Tom Jones with don't have anything to do with the city."

Clifford Pierce, who served as a "part-time" city attorney for 15 years under former mayors Wyeth Chandler and Dick Hackett, said having an outside source of income can actually help a city attorney give independent legal advice without worrying as much about possible political fallout.

Spence declined to discuss his private caseload, other than to say it has diminished considerably since he began working for the city.

Wilson, the county attorney, gets $102,948 annually. He represents the county full time.

And an informal survey found that Atlanta, Birmingham, Dallas, Indianapolis and Nashville all require their city attorneys to work full-time. In Nashville and Indianapolis, the city attorneys make less than Spence. In the other three cities, the city attorney makes more.

Annual salaries range from a low of $95,480 in Indianapolis to $195,211 in Dallas.

Herenton said he's re-evaluating the way Memphis provides legal services as part of a review of the cost-effectiveness of all the city's operating divisions.

"It is unusual - I recognize that," Herenton said of Spence's dual employment.

Friday, November 08, 2002

Future of Hyneman's Mud Island land remains murky

Memphis Business Journal [link]
by Kate Miller

Three months after an early morning landslide sent tons of dirt into the Wolf River just south of the Auction Street Bridge, the harbor is clear but the future of Kevin Hyneman's 21 acres on Mud Island remains murky.

"As we speak we're still waiting on a report from our geotechnical engineer, which is going to give us the reason for the cause of the failure," Hyneman says. "Once we receive that, then we'll be able to determine exactly what we can do with the property, then seek proposals from different contractors who specialize in this type of problem and they'll do a design-build for going in and actually fixing the problem."

Larry Cooley, principal in the Ridgeland, Miss.-based geotechnical engineering firm Burns Cooley Dennis, Inc., says he is still waiting on some data but a report should be released within a couple of weeks.

"We have determined the cause," Cooley says. "There is a way to remedy that."

He would not give details on either.

Hyneman says the prospect of future litigation is likely the cause of the delay, though no lawsuits have been filed to date.

Hyneman was within 30 days of closing on a sale of the land to a joint-venture development team consisting of Belz-Turley and the Riverfront Development Corp. when the landslide occurred. He had agreed to sell the land for $2.6 million plus interest and 11 city-owned acres on the north end of Mud Island, in an area where he has already built many single-family homes.

Henry Turley and RDC president Benny Lendermon say they are still interested in developing the land, but their future involvement is far from certain. The Harbor Town-like development previously planned might not be possible.

Lendermon says the mudslide actually affected only a very small amount of land in the planned development, possibly seven lots. But while it has a small impact on the total amount of land to be developed, the lost lots could make or break the deal.

"This project wasn't a gold mine to start with," Lendermon says. "It took a lot of time to put this together because the profits were very slim and you had to be very creative to make it work financially for everybody. So, saying that you take a piece out and take some lots out and take away some revenue -- it probably hasn't reduced the cost any -- it makes the situation that much harder to do."

Turley says the partners estimated each of the lots affected by the mudslide to be worth about $175,000 each, or $1.225 million for seven lots. But Turley says if the land where the mudslide occurred isn't developed, then the partners could charge more for the lots behind them since they would have the view of the harbor.

There would be no such way to make up for other costs.

One is the cost of carry, the interest, taxes and insurance payments that Hyneman is currently paying and would be transferred to the new owners. Hyneman has said he pays between $125,000 and $130,000 in interest a year and $20,000 to $25,000 in real estate taxes. The developers will have to carry this cost longer because of the delays.

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