The City Council voted unanimously on Tuesday to block an effort by Mayor Ron Littlefield to hire former Councilwoman Marti Rutherford for three days so she can qualify for city retirement health benefits.

A resolution and an ordinance presented by Councilman Leamon Pierce directs that the city administration not be allowed to hire anyone who has resigned and then had an ouster lawsuit filed against them.

The council also hired its own attorney - Roger Dickson - to advise it on the issue. City Attorney Randy Nelson said he could not represent either side in the unusual clash between the council and the mayor.

Also at the session, Councilman Jack Benson took issue with the mayor on his statement that similar exceptions have been made for other city employees. He said, "To me that's a bigger problem if we are making arbitrary decisions. Then let's change the policy so everyone knows exactly what the limits are and what the grace periods are."

He added, "I hope it's across the board and not based on friends and relatives."

That prompted Donna Kelley, longtime city personnel director, to come to the podium. She said her department has well-defined policies and she would not allow the besmirchment
of longtime employees.

Afterwards, she said she was insulted by the Benson comments. She said employees in her department "seek nothing but fairness and uniformity. I won't stand by and see this happen to them."

The resolution and ordinance were passed on first reading 7-0. The council currently has just eight members. Linda Bennett was absent.

The second and final reading will be next Tuesday night. Attorney Dickson, who got his first look at the documents after the meeting had started, said he will review them prior to the next council meeting.

He said, "I don't know if it will work or not. At the worst, you would have an invalid ordinance."

Councilman Pierce said the documents were drawn up by "my attorney" at no cost to the city.

Councilman Manny Rico said, "I think everyone knows how we stand on this issue. But it has already happened across the street (mayor's office). Are we trying to undo something?"

Councilman Pierce said the council needed to work quickly. Ms. Rutherford remains on the city payroll through the end of October. Mayor Littlefield said she would be a city employee for the first three days of November - in order to reach her 62nd birthday, which is Nov. 3.

Councilman Pierce said in the coming week that attorney Dickson "can study it and see if it is workable."

City Attorney Nelson was asked about requiring Ms. Rutherford to give up back pay based on the fact of her not being a valid resident of District 6 while she served on the council.

He cited Tennessee Supreme Court cases in 1943 and 1944 that said those who take the oath of office and fulfill the duties are considered valid officeholders until ruled otherwise.

Councilman Benson noted there had now been a decision in the Rutherford matter. Attorney Nelson said another state Supreme Court case required Memphis to pay both a person who held office and then was ruled ineligible as well as the person who had been entitled to the office but did not serve.

Floyd Kilpatrick, community activist, said the city ought to seek a state attorney general's opinion on Ms. Rutherford having to give back her salary.

Councilman Pierce challenged Mr. Kilpatrick on his stance, saying he needed to come before the council with clean hands if he was going to ask that money be returned to the city. He said, "What goes around comes around. He later said he was referring to a group involving Mr. Kilpatrick getting a city contract, then having it canceled when it was not fulfilled.