Roy D.

Campbell, Ill
rcampbell@bradley.com
601.592.9934 direct
601.291.2590 cell
Bradley
MEMORANDUM
TO City Council of Jackson, MS
FROM Roy D. Campbell, III
DATE February 10, 2022
SUBJECT Solid Waste Collection Contract-analysis of perceived conflict of interest between
City Council and Office of City Attorney and other issues

ATTORNEY-CLIENT COMMUNICATION-PRIVILEGED &

CONFIDENTIAL

In executive session on February 4, 2022, the City Council voted to retain the Bradley law firm
to research, investigate and provide the Council with answers to the following questions relative to the
procurement of a contract for solid waste collection:

1. Whether the Office of the City Attorney has a conflict of interest arising out of that office's
involvement in drafting and implementing the Request for Proposals ("RFP"), subsequent
negotiations of contract terms with the most qualified bidder, and ultimate advice to the City
Council on whether that bidder's proposal should be accepted?
2. Because Richard Disposal's proposal failed to garner a majority vote from City Council
following votes at two separate meetings, does the City Council's "two-vote" rule prohibit
further consideration of that proposal for a year, absent a vote of two-thirds of the Council?
3. Under Jackson's mayor-council form of government, who are the "governing authorities" and
who has the authority to award contracts?
4. Does the City Council have the authority to hire its own separate attorney or law firm?

The short answers are as follows:

1. The Office of the City Attorney has not demonstrated any conflict of interest.
2. The "two-vote" limitation applies only to two votes taken in the same meeting, and it does
not restrict further consideration of Richard's Disposal's proposal.
3. The "governing authorities" consist of both the Mayor and the City Council; only the Mayor
negotiates and recommends a contract and the City Council only votes in favor of or in
opposition to it.
4. The City Council is not authorized to hire its own separate attorney or law firm.

A thorough discussion of each question and answer is set forth below. I trust that these
opinions are useful to the City Council and look forward to discussing them and answering any
questions the Council may have.

Bradley Arant Bault Cummings LLP I One Jackson Place I 186 East Capitol Street, Suite 1000 !Jackson, MS 392011601.948.8000 I bradley.com
February 10, 2022
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1. The Office of the City Attorney's Perceived Conflict1

This issue arises out of the involvement by the Office of the City Attorney (hereafter referred to
as "City Attorney") in drafting and implementing the RFP, subsequent negotiations of contract terms
with the most qualified bidder, and ultimate advice to the City Council on whether that bidder's proposal
should be accepted. The City Council's concern appears to be bottomed on the possibility that
involvement to that extent could interfere with the City Attorney's ability to objectively advise the City
Council that the proposal submitted for approval was the most qualified and should be accepted.

While deep involvement in the various stages of procuring the solid waste collection contract
could interfere with one's objectivity, that alone should not be cause for concern. Public procurement is
a potential minefield for the unwary and in almost every instance a public body should insist on its
attorney's close participation in the multiple steps required to comply with all that the law mandates.
That is nowhere more desirable than with a services contract, as here. And having participated in that
process, the public body's attorney is the one person best positioned to provide an opinion on whether
the law's requirements were met and the proposal is the most desirable one for the constituents.

Because there is nothing inherently suspect in the City Attorney's immersion in the procurement
process for the solid waste collection contract, whether or not any conflict exists can be determined by
examining the process employed. That is, ifthe process followed the law, if reliable public purchasing
practices were employed, and if the quintessential criterion-price-was assigned appropriate weight,
then a reasonable conclusion can be drawn that the City Attorney's involvement in the process did not
conflict with or impede her objectivity. Accordingly, I examined the process, beginning with the RFP,
continuing with the manner in which the proposals were scored, and concluding with the negotiation of
the contract terms.

The RFP was extremely well conceived. Approximately eighty-one pages in length, it was
comprehensive, well organized, easily understood, and included useful references and attachments. The
instructions made clear that proposals would be evaluated based on technical merit and price, to the end
that the proposal that provided the best value to the City would be selected. Specifically, the selection
criteria and assigned weight of each were: technical proposal-30%; provider's presentation/
interview-25%; EBO plan-10%; and fee-35%. Following determination of the proposal most
advantageous to the City, in accordance with state law applicable to municipal solid waste contract
procurement,2 the RFP explained that the City would negotiate with that provider to produce a contract
that could be presented to the City Council for its consideration. 3

1
At the outset it should be noted that the Mississippi Attorney General has in the past declined to opine on whether attorneys
representing municipalities have conflicts of interest, correctly finding that ''those matters are properly for the consideration
of the Mississippi Bar Association." 2006 WL 2789833 (Miss. A.G.). Any opinion expressed here on the existence or not of a
conflict is of course subject to a formal opinion from the Mississippi Bar.
2 Miss. Code Ann.§ 31·7-13(r).
3 While the statutorily mandated "Best Practices for Soliciting Requests for Proposals or Requests for Qualifications" apply

to all state agencies when issuing requests for proposals, those are not applicable to municipal governing authorities. Miss.
Code Ann. §§ 31-7-40 I, et seq. Nevertheless, it appears that the RFP complied in all material respects with those prescribed
best practices.

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The procedure that followed receipt of the three proposals likewise was aligned with
recommended best practices, as illustrated by the following steps. Step 1: In scoring the proposals, each
individual evaluator was given his/her own scoresheet together with each provider's technical proposal,
which was "blind", i.e., the evaluator did not know the identity of the provider. The evaluators were
required to conduct scoring without the assistance of any person or any docrunent, outside of the blind
technical proposal. Once the evaluators completed their scoring of the blind technical proposals, the
City Attorney collected the score sheets and the copies of the blind technical proposals. Step 2: For the
management portion, "Service Provider's Presentation/Interview," scoring was performed during
presentations held December 8, 2021. When the evaluators arrived each was given a copy of his/her
earlier scoresheet, but with the provider then identified. They were instructed that they were not allowed
to make any changes to the technical scores. Step 3: At the conclusion of the presentations, the City
Attorney confirmed that each provider met the requirements for the EBO plan, after which the
evaluators performed their EBO scoring. At that point the City Attorney retrieved the scoresheets from
the evaluators. Step 4: The final step was the only one of the four that involved purely objective scoring,
so the City Attorney could fairly perform that step. In that step the City Attorney first calculated each
provider's scores for the technical, management and EBO portions of the evaluation (by applying the
assigned percentages to the evaluators' scores), then applied the formula for price (that was applied
separately to each of the four prices submitted by each provider).

I examined each of the scoresheets of the six evaluators, the City Attorney's spreadsheet of the
pricing evaluations and the City Attorney's spreadsheet of scoring of all categories. The spreadsheet of
all categories before price was considered reflects this ranking: first-Waste Management; second-
FCC; third-Richard's Disposal. However, once the providers' prices for the four service options were
factored in, the overall results changed and the first-place finishers for those four options were as
follows: 1) Ix/wk no cart-FCC; 2) 2x/wk no cart-Waste Management; 3) lx/wk +cart-FCC; 4)
2x/wk +cart-Richard's Disposal. As you know, the service option selected by the Mayor was the
2x/wk +cart. Because of Richard's Disposal's lowest price for that option, the weight assigned to the
price factor, and Richard's other scores, its overall nrunerical score qualified that proposal as the "most
qualified" in accordance with the terms of the RFP. 4

Based on my examination as described above, I conclude that the process followed the law, best
practices were considered and employed to the extent required, and the single-most important
criterion-price-was assigned appropriate weight. From that I firmly believe that the City Attorney's
involvement in the process did not conflict with or impede her objectivity.

2. Application of the "Two-Vote" Rule

Following negotiations between Richard's Disposal and the City Attorney, at the Mayor's
direction, a contract was prepared, then presented to the City Council for consideration in meetings on
January 17, 2022 and January 28, 2022. On both occasions a majority of the Council failed to vote to
authorize the contract. Members of the Council have questioned whether, under a provision of the City's
Code of Ordinances, Richard's Disposal proposal can be considered a third time.

4
Under the statute that specifically addresses the procedure for bidding on a solid waste contract, the "governing authority
shall select the most qualified proposal ..." Miss. Code Ann,§ 31-7-13(r) (emphasie addred),

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The code section at issue is as follows:

Sec. 2-67. - Motion to reconsider.

Any member of the council may, before adjournment of the meeting at which the
question is under consideration, move to reconsider the vote. A motion to reconsider
requires a second. If the motion to reconsider passes, the former vote on the action is
considered null and void and the matter stands before the council as if no action has
been taken. Any item which has been considered and voted upon twice will not be
considered by the council for a period of one year, except upon vote of two-thirds of the
members of the council.

(Code 1971, § 2-105.8)

Because the two-vote limitation arises in the context of a motion to reconsider, whatever that
limitation is must be interpreted within the meaning of, and applied to, motions to reconsider. It is
therefore necessary to understand the nature of motions to reconsider.

My research makes clear that motions to reconsider can be used only for actions taken earlier in
the same meeting. They have no application to votes taken at prior meetings.

Robert's Rules of Order offers useful guidance on the nature of motions for reconsideration and
when they are allowed:

The making of this motion is subject to time limits, as follows: In a session of one day-
such as an ordinary meeting of a club or a one-day convention-the motion to reconsider
can be made only on the same day the vote to be reconsidered was taken. In a convention
or session of more than one day, a reconsideration can be moved only on the same day
the original vote was taken or on the next succeeding day within the session on which a
business meeting is held.

RONR (12th ed.), 37:10 (b).

Procedurally, the device for revisiting an action taken at an earlier meeting is a motion to
rescind. 5

A useful, layman's discussion of the distinction between a motion for reconsideration and
a motion to rescind can be found at Parliamentary procedure: What is a motion to reconsider? -
MSU Extension and Parliamentary procedure: What is a motion to rescind? - MSU Extension:

According to Roberts Rules ofOrder, 1Jlh Edition (RONR), there are two ways a
decision of the board can be changed. If a member wants to change a decision made in
the same meeting they would use a motion to reconsider. If it is necessary to change a
5
A motion to rescind is subject to any intervening rights of third persons that may have arisen in the interim. 1979 WL 41251
(Miss. A.G.)

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decision that was adopted at a previous meeting a member would make a motion to
rescind. These two motions have some similar characteristics but it is important to
highlight their differences so that board members know when and how to use them
properly. This article provides a basic primer on the motion to reconsider....

The motion to reconsider can be made by a board member when he or she wishes to ask
the entire board to revisit a previous decision made at the same meeting . ...

The motion to rescind is one of a group of motions that bring a question again before the
assembly. It can be applied to any decision adopted by the board at any time (if it is
during the same meeting as the decision the motion to reconsider is used). It differs from
the motion to reconsider in that there is no time limit on making this motion and any
member regardless of how the member voted on the original question can make it. ... If
the original motion has been acted upon and that action cannot be undone the motion
cannot be rescinded. However, any unexecuted part could be rescinded or amended.

Sec. 2-67 of the Code appears in the part that governs the conduct of the City Council's
meetings-"DIVISION 2 - MEETINGS." In adopting those procedural rules for its meetings the
Council made clear that it would be guided by Robert's Rules of Order. 6 Sec. 2-74-Rules of order.

Notably, the first sentence of Sec. 2-67 makes clear that it is intended to be consistent with
Robert's Rules on motions to reconsider, limiting application of Sec. 2-67 to matters previously
considered at the same meeting: "before adjournment of the meeting at which the question is under
consideration." The last sentence of Sec. 2-67 imposing the two-vote limitation must be interpreted
within the context of motions to reconsider. As such the two-vote limitation applies only when a matter,
or "item", has been considered twice at the same meeting.

That interpretation comports with logic. Council members should be entitled to ask for
reconsideration of a vote taken earlier at the same meeting, as additional facts may have been presented
that change members' positions. At the same time, in the interest of efficiency there should be a
reasonable limit on the number of times the same matter can be considered at a single meeting. In
adopting Sec. 2-67, allowing only a single motion to reconsider, the Council adopted the logical position
that if a matter has been twice considered and twice rejected at the same meeting, then it is in the best
interest of good government to avoid investing more time in debating that same matter for a period of at
least a year. 7 As reflected in Robert's Rules, that logic has no application to votes taken at different
meetings. Events can occur and influences can change viewpoints in the interim, causing Council
members to want to change their votes on a matter. To address matters voted on in earlier meetings,
motions to rescind are available. If a matter was voted down at an earlier meeting neither Robert's Rules
nor Council's procedures restrict revisiting that vote.

6
Because the Code sections in DIVISION 2 are procedural in nature, they are not "ordinances" even within the broad
statutory meaning assigned to that term:
The tenn "ordinance" as used in this chapter shall be deemed to include ordinances, resolutions, orders
and any other official actions of the council, except those procedural actions governing the conduct of the
council's meetings ....
Miss. Code Ann.§ 21-8-47.
7 Subject, of course, to a two-thirds vote to waive that limitation.

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In conclusion, in my opinion the two-vote limitation recited in Sec. 2-67 restricts reconsideration
only of matters previously voted on at the same meeting. That limitation has no application to a vote
taken at a prior meeting and, accordingly, the Council is not restricted from again considering and voting
on the proposed contract with Richard's Disposal. 8

3. Who are the "governing authorities" and who has the authority to award contracts?

Because Jackson is a mayor-city council form of municipal government, by statute its

government or "governing authorities" are both the mayor and the city council:

Each municipality operating under the mayor-council form of government shall be

governed by an elected council and an elected mayor.

Miss. Code Ann.§ 21-8-7(1). The Attorney General has addressed that issue more than once:

All Mississippi municipalities have the power to sue and be sued; however, that
power must be exercised by the "governing authorities" of that municipality. Miss. Code
Ann. Sections 21-17-1 and 21-17-3. With regard to Mayor-Council municipalities, we
have held that the term "governing authorities" means the Mayor and City Council. MS
AG Op., Bardwell (May 3, 1991); MS AG Op., Cochran (August 9, 1996). The Mayor,
acting alone, cannot exercise powers granted to the "governing authorities." The Mayor
may recommend a certain course of action to the Council. Matters must be considered
and approved by the City Council, with the Mayor having the ability to veto any such
decision. Prior to taking action, whether it be entering into a contract on behalf of the
municipality or filing a lawsuit on behalf of the city, authorization must be given to the
Mayor to take such action. All approvals and authorizations must be accurately reflected
in the official minutes of the municipality, as the governing authorities of a municipality,
regardless of the form of government under which the municipality operates, speak only
through the official minutes.

2003 WL 21962295, at*l (Miss. A.G.).

The following, which I endorse, is to the same effect and is from an email forwarded to me from
Councilman Banks, which I understand came from the City Attorney:

8
It should be noted that, even if Sec. 2-67's two-vote rule were interpreted to apply to actions taken at earlier meetings, there
is a serious question whether it would restrict reconsideration of Richard Disposal's current contract. That uncertainty arises
from the ambiguity inherent in the meaning of"item" as used in Sec. 2-67. Does "item" mean only the agenda heading,
which was the same for all three iterations of the contracts listed for consideration at the three meetings (January 18, 2022,
February l, 2022, and February 4, 2022)? Or does "item" include the agenda heading together with the accompanying
material submitted through the City's MUNIS system (which I understand would include three different contract iterations)?
Because my opinion is that the two-vote rule has no application to separate meetings, it is not necessary to resolve that
question, but those different contract terms cast doubt on whether Council was considering the same "item" when it
considered different contracts.

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AG's Opinion stating that: "We should note that the city council, in its efforts to
establish municipal policies and procedures, should take caution to ensure that it does not
encroach or interfere with the authority of the administrative branch of the municipality.
2015 Opinion to Mr. Tyrone C. Hendrix."

2016 Miss. AG LEXIS 256 to Monica Joiner, Esq: "The city council may not issue a
resolution that results in an encroachment or interference with the authority of the
executive branch of the municipality. MS AG Op., Anderson (March 18, 2016); MS AG
Op., Hendrix (August 28, 2015). The authority to recommend a contract for approval by
the city cowicil rests solely with the mayor. MS AG Op., Anderson (March 18, 2016);
MS AG Op., Hendrix (August 28, 2015); MS AG Op., Teeuwissen (January 27, 2012);
MS AG Op., Hammack (December 13, 1996). While we have previously recognized that
both the mayor and the city council have implicit authority to engage in contract
negotiations on behalf of the municipality, the authority of the city council in this regard
is limited to approval of the recommended contract by the mayor. MS AG Op.,
Teeuwissen (January 27, 2012). Thus, in our opinion, the issuance of a resolution by the
city council which serves to select a particular vendor and/or extend a contract [*S] with
a vendor not recommended by the mayor would amount to an encroachment upon, and
interference with, the authority of the executive branch."

That discussion references a 2012 opinion from the Attorney General to Pieter
Teeuwissen, then the City Attorney for Jackson. The opinion to Mr. Teeuwissen concludes that
members of the City Council cannot mandate their participation in contract negotiations
conducted by the mayor and city departments-such negotiations are "within the sole discretion
of the mayor." 2012 WL 679170 (Miss. A.G.).

In short, the Mayor cannot contract without City Council, and City Council cannot
contract without the Mayor. It is the Mayor's administrative prerogative to recommend to the
City Council a particular vendor to contract with the City. In turn, the City Council's legislative
power is only to vote "yes" or "no" to that recommendation. 9 The Mayor is not empowered to
sign a contract unless and until the City Council has authorized him to do so.

4. Does the City Council have the authority to hire its own separate attorney or law firm?

As with the previous question, the answer to this lies in statutes, and it has been addressed
specifically by the Mississippi Attorney General. ·

The first of two statutes authorizing municipalities to retain attorneys addresses the issue in the
context of what "governing authorities11 are authorized to do:

9
Limited exceptions to this general rule exist, for example, actions taken in accordance with a proclamation of a local
emergency. Miss. Code Ann.§ 33-15-17(d).

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The governing authorities may annually appoint an attorney-at-law for the municipality,
prescribe his duties and fix his compensation, and/or they may employ counsel to
represent the interest of the municipality, should the occasion require. For services and
duties which the regular city attorney is not required to perform as a result of his
employment as such, and which are not covered by the regular compensation paid him,
such municipal attorney may be employed and compensated additionally....

Miss. Code Ann.§ 21-15-25 (emphasis added). The statute authorizes only the "governing
authorities" to hire the municipality's attorney, and because the law is clear that in a mayor-
council form of government the "governing authorities" are the mayor and the city council, as
discussed above, the hiring of the city attorney requires the combined actions of both.

The second statute addresses the issue slightly differently, authorizing the hiring not of a
single attorney but of "a firm of attorneys", and not by the "governing authorities" but by the
"municipal authorities":

The municipal authorities of any city or town, in this state, in addition to the authority
now conferred upon them by Section 21-15-25, may in their discretion employ a firm of
attorneys to represent them as their regular attorneys on the same terms, conditions and
compensation as now provided for employment of an attorney as their regular attorney.
However, there shall not be an attorney and a firm of attorneys employed at the same
time as the regular attorney for such municipal authorities.

Miss. Code Ann. § 21-15-27 (emphasis added). One might logically argue that the legislature's
use of a term different from "governing authorities" implies that the legislature intended
something other than the mayor and the city council. The problem with that interpretation is the
statute's phrase "in addition to the authority now conferred upon them by Section 21-15-25",
from which one can only reasonably conclude that the legislature intended the same "authorities"
in both statutes.

Any doubt about those statutory interpretations is dispelled by an opinion of the Attorney
General addressing this precise question raised by Councilman Stokes in 1999. In that opinion
the AG discussed both statutes, along with others, and concluded that:

It is therefore the opinion of this office that there is no authority for the city council
to appoint or employ a "council attorney" or attorneys to advise or render legal
assistance to the city council. With respect to the "city attorney" appointed pursuant
to Section 21-15-25, we have consistently held that such attorney represents and
advises the municipality. The attorney represents the municipality, not one or more
of its officers. MS AG Op., Thomas (July 26. 1989).

1999 WL 269199 (Miss. A.G.).

On the basis of those statutes and that reasoned opinion from the Attorney General's
office, I conclude that the City Council is not authorized to hire its own separate attorney or
attorneys.

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