Jackson, Miss.—Mayor Chokwe A. Lumumba was back in court today with another lawsuit against the Jackson City Council regarding setting up a garbage disposal contract for the capital city. This time he was in Hinds County Circuit Court after a special judge in Hinds County Chancery Court reversed an earlier ruling that the mayor could veto the council’s “no” vote on his contractor choice, Richard’s Disposal.
In the first lawsuit filed March 9, 2022, Lumumba asked the Hinds County Chancery Court to declare that the council cannot negotiate a contract nor amend his order for a local emergency, and that he has the prerogative to negotiate emergency contracts and present the same to the council.
In the council’s legal response, it asked the chancery court to declare that the seven-ward council has the sole legislative rights, duties, and obligations in the capital city and that “votes and power can neither be usurped nor escheated to anybody, especially when there is no emergency.”
This legal scramble was at the tail end of the six-month emergency garbage-disposal contract that Houston, Texas-based Waste Management has held since October 2021 and ended on March 31, 2022. Waste Management is Jackson’s long-time garbage-removal vendor.
When the council twice declined to approve the mayor’s choice, Richard’s Disposal, for a six-year garbage-disposal contract following a months-long request-for-proposal process, Lumumba declared an emergency on Feb. 17, 2022. He signed a one-year emergency contract with Richard’s Disposal that day.
The mayor presented the emergency contract to the council for approval on Feb. 24, 2022. The council, however, replaced Richard’s Disposal with Waste Management.
Ward 5 Councilman Aaron Banks, while disagreeing that an emergency exists and wary that the mayor was using the emergency declaration to bypass the council, said it is in the best interest of the city to replace Richard’s Disposal with Waste Management.
“If there’s an emergency that has arisen, then now I think the choice has to be (a contractor that is) better positioned here in the city of Jackson to continue collections while we work out whatever we need to work out together over the course of the next year.” he said.
Waste Management sued the mayor on Feb. 25, accusing him of refusing “to engage in negotiations with the second-ranked proposer to the (request for proposal).” The company had offered to extend the emergency garbage-disposal contract by one month.
In his decision on March 31, 2022, former Mississippi Supreme Court Justice Jess H. Dickinson, acting as a special chancery judge, agreed with the mayor that the council cannot negotiate a contract. “The contract is not a binding contract that is enforceable against the City of Jackson unless and until the Council has properly approved it,” Dickinson wrote.
On April 1, 2022, the mayor placed a one-year emergency contract with Richard’s Disposal before the city council for ratification. The council voted it down once, and before voting against it a second time, Lumumba read a statement declaring his veto of that action.
In footnote 3 of his March 31, 2022 ruling, Judge Dickinson caveated his statement that “the contract is not valid, binding, or enforceable unless approved by the Council.” Then, he wrote: “For clarity, there does exist a possible exception not presented in this case thus far, where the Council rejects an emergency contract presented by the Mayor, the Mayor exercises his veto of the rejection, and the Council overrides the veto. The Mayor then would have the option of engaging the judicial system, claiming the Council was arbitrary and capricious in overriding the veto.”
Lumumba reasserted his veto when the city council voted down an order to ratify the emergency one-year garbage disposal contract with Richard’s Disposal a second time in the same meeting on April 1. He said that the council could vote to override his veto.
The council did not take up that offer, which will require a two-thirds majority vote—five votes. Four council members—Ward 1’s Ashby Foote, Ward 3’s Kenneth Stokes, Ward 5’s Vernon Hartley and Ward 6’s Aaron Banks—had voted against the emergency order. Ward 2 Councilwoman Angelique Lee, Ward 4 Councilman Brian Grizzell and Ward 7 Councilwoman Virgi Lindsay voted for it.
Waste Management immediately on Friday went back to court to ask the judge to amend his judgment. The company, represented by attorney J. Chase Bryan, argued that Dickinson was wrong to rule that the mayor can veto the city council’s action rejecting an order.
“Respectfully, the ‘exception’ referenced in Footnote 3 does not comport with the law and rather than providing clarity, it has emboldened the mayor and Richard’s to engage in reckless and unlawful conduct—Richard’s picked up trash today in spite of a long series of no votes from the City Council,” Bryan wrote. “After the council voted down the Richard’s contract twice the mayor ‘vetoed’ the no vote, which is both nonsensical and of absolutely no legal effect whatsoever. Mississippi law is crystal clear that a negative vote cannot be vetoed.”
About That Footnote 3
Bryan said that footnote 3 in Dickinson’s March 31 judgment had caused harm and cited an 1898 Mississippi Supreme Court judgment, State v. Holder, and three attorney general opinions.
Quoting from the 1898 ruling, Bryan wrote, “The executive, in every republican form of government, has only a qualified and destructive legislative function, and never creative legislative power. If the governor may select, dissent, and dissever, where is the limit of his right?”
“A number of opinions issued by the Mississippi Office of the Attorney General have interpreted the limited veto power of mayors as only positive in nature,” he added, citing Mississippi Attorney General Opinions No. 2001-0532, No. 2007-00538 and No. 2009-00558.
The city council, via its attorney, Deshun Martin, also rushed to court after the mayor exercised his veto. “A failure to ratify a contract cannot be vetoed,” Martin wrote in his brief. “This seems to be an effort by the Mayor to seize on footnote 3 of the Court’s March 31, 2022 Order.”
“Either the Mayor’s reading of the footnote is incorrect or the footnote is incorrect. As a matter of law, the mayor cannot veto a no vote,” Martin continued. “In essence, the Mayor claims that he can veto a no vote and run the city by minority rule-this would allow the Mayor to veto and void City Council approval on every contract there was not a super majority of council members to override the veto—this is not the law (in) Mississippi, or anywhere else.”
“The court must declare that the ‘veto’ is an illegal and meaningless act by the Mayor and the contract remains invalid due his failure to obtain approval of the contract by a majority of the City Council of Jackson, Mississippi.”
The city council wanted the judge to declare that Lumumba’s veto was illegal, but that same day, Dickinson altered his judgment and vacated the previous one. He fell short, though, of declaring Lumumba’s veto as unlawful and acknowledged that the question was not before him in the complaints for him to rule on.
The judge explained his rationale for footnote 3 and referenced a statute that indicated that an ordinance of the city council can be any official action, with some exceptions based on Miss. Code Section 21-8-47.
He also noted that Miss. Code Section 21-8-17 (2)—the statute that provides for a mayoral veto and a council’s override of the veto—speaks only of “[o]rdinances adopted by the council.”
“While the court is persuaded that a council vote to reject a contract is ‘an official action of the council’ and, therefore, an ‘ordinance’ as defined in Section 21-8-47, the question remains whether a vote to reject a contract submitted by a mayor is an ordinance that has been ‘adopted’ by the council,” the judge wrote.
“Upon review of the pleadings, the court recognizes that this precise question was not presented to the court, and the court should not have addressed it in dicta,” he added.
On April 4, 2022, lawyers Bryan and Martin told the Mississippi Free Press that the new judgment went in their clients’ favor.
“The court’s ruling is very clear—the Mayor cannot enter into a contract without Jackson City Council approval. Therefore, Richard’s contract is void,” Bryan wrote in an email to the Mississippi Free Press.
Martin said over the phone this afternoon that Dickinson was right to vacate his March 31 opinion and judgment and substitute it for another.
“The opinion needed to be modified because it included in it an error essentially about the ability to veto a bill that’s dead,” Martin said. “This is the opinion that we want.”
“As far as I’m concerned and what the opinions state, the city council of Jackson on behalf of the citizens won this thing again,” the council’s attorney added. “We’re still fighting. You know, power concedes nothing without a struggle; we continue to press on and get this thing right.”
“We live in a representative democracy, and the majority wins; we pray that the mayor and his lawyers and city legal (team) return to regular order and regular order is the majority wins. That’s what we’re working toward and that’s what we intend to get for the citizens, the people of Jackson.”
Felecia Perkins, the lawyer Mayor Lumumba hired for the case, does not think this is a victory for the council. She says that the March 31 ruling still stands.
“The dicta contained in footnote 3 of Judge Dickinson’s original opinion and judgment was correct,” she said in an April 4 email to the Mississippi Free Press. “Specifically, the Mayor can veto both affirmative and negative actions of the City Council.”
“Judge Dickinson only vacated the original Opinion because the issue was not before him, not because it was an incorrect statement of the law,” she added.
Mayor: Judge ‘Merely Clarifies’
In a press conference today, Mayor Chokwe Lumumba said he agrees with his attorneys that Richard’s Disposal has a contract because of his veto.
“Let me begin by first informing you that when it comes to the final decision of the judge, it is in no way in contradiction to the action that we took, and we are still operating under the law,” he said. “In fact, what the judge did prior to his final decision was merely to point to the law so that we would have clarification as to the veto rights of the mayor.”
“Now, his final order merely clarifies that he didn’t believe it was his prerogative to weigh in on that issue because he didn’t believe that that issue was before him.”
Attorney Gloria Green, representing Richard’s Disposal to protect its interest in the suit, told the Mississippi Free Press over the phone today that the new opinion changes nothing.
“I read the opinion that was vacated, and the law is still the law, and the judge did not really say anything other than that the issue regarding the veto was not before him,” she said. “So he was vacating that part of the opinion, but everything else remained the same in terms of all contracts have to be negotiated and selected by the mayor.”
This reporter pointed her attention to the fact that the judge also said that a contract is not valid until the council votes affirmatively on it. “Our reaction is the way it has always been that even if the city council does have the approval or disapproval of the contract, that the approval or disapproval would have to be based on cause and cannot be arbitrary and capricious,” she answered.
Felecia Perkins wrote to the Mississippi Free Press that “this morning we filed (an) Emergency Complaint in Hinds County Circuit Court against the City Council to clarify any remaining issues.”
In the April 4, 2022, emergency complaint, the mayor is asking the Hinds County Circuit Court to declare that he has authority to veto both affirmative and negative actions of the City Council. The suit is before Judge Eleanor Faye Peterson.