Sunday, December 30, 2012

Jones vs. Pickler, Part 56, or Part Bajillion, or Whatever

School Board Commissioners David Pickler and Martavius Jones are surely shocked to find that their names will be forever linked in the histories that people will write about what has happened in the school systems in Memphis and Shelby County.  We've watched their relationship play out in public over the course of the last two two or so years.  It's hard to say how well they knew each other before this merger mania overtook all civil discussion regarding education in this region, but they've spent a lot of time together since late 2010.  Poor guys.

They've debated each other.  They've negotiated with each other in Judge Mays' chambers.  They've served on the TPC together, jointly chairing the Administrative Organization Committee, and sat next to each other as one of the school board's "odd couples."  My read is that they mostly don't like each other, but that they are both professionals who manage to tolerate each other in public.

Whatever personal detente they managed to forge as other parties duke it out in federal court to figure out what the school district will look like in 2013-14 and future years, it will be interesting to see how they interact going forward in light of the bomb that Commissioner Jones dropped at the most recent school board meeting.  As I wrote previously, Commissioner Jones basically claims that Commissioner Pickler voted in a favor of a resolution that personally financially benefitted Commissioner Pickler, without any disclosure of what Commissioner Jones calls a conflict of interest.  Here, again, is a full copy of the resolution.

Commissioner Jones clearly believes that he's got something on Commissioner Pickler, and I was surprised to read that this little maneuver almost didn't happen.  Commissioner Jones is a smart, talented guy (whatever else you've heard), and he's politically minded enough that he would not take the drastic step of calling out Commissioner Pickler (also smart and talented) in this way unless he believed there was some "there" there.  So the allegations deserve a look.

The allegations are that Commissioner Pickler voted in favor of a resolution that invested $12 million in a Tennessee School Board Association trust - a trust managed by Commissioner's wealth management company, in an account that generates fees that financially benefit Commissioner Pickler's company (and Commissioner Pickler).  The crux of the alleged wrongdoing is that Commissioner Pickler failed to disclose, as he is obligated to do, that he would benefit financially if the resolution passed.  [January 6, 2013 update:  I didn't do a great job of explaining this issue in this post, but tried to better explain it here.]


As I said in my previous post, it comes down to whether or not Commissioner Jones is right about whether Commissioner Pickler is making any money on this $12 million investment.  It may very well be that Commissioner Pickler waived any fees (or other financial benefits) from managing this particular trust, and that his wealth management company manages the trust gratis.  The supporting documentation provided with the resolution only shows the opening of the accounts, and do not reflect any fees or payments collected by Commissioner Pickler or his company.  The supporting documentation only shows that Pickler Wealth Advisors, specifically Teresa Bailey (Executive Vice President and Senior Planning Partner) manage the accounts that make up the TSBA trust.

That's one possibility - and the only possibility where Commissioner Pickler comes out clean as a whistle.  Any other possibility - even the entirely legal ones - will likely cause Commissioner Pickler some grief.

Commissioner Pickler is an attorney, as well as the owner of a wealth management company.  The rules for attorneys and financial advisors are different, though there is some overlap.  In addition to abiding by those rules, and figuring out which of those rules to abide by at any given moment, Commissioner Pickler also has to abide by the ethical rules and obligations related to his public service.  Not making excuses, but it's important that we understand that even though something might be problematic for an attorney, it may be less problematic for a financial advisor.  And there may or may not be a relationship to the rules that govern Commissioner Pickler's public service.

The best practice is to disclose any fact that may indicate even the appearance of impropriety, and to recuse oneself from voting on matters that would provide a direct benefit.  That's not the exact rule for attorneys, financial advisor, or public servants - but that's what we should expect of all of them.

Among the other possibilities of what happened are:
  • Commissioner Pickler previously disclosed the relationship between his company and the trust to the old Shelby County School Board, but did not make the disclosure anew in front of the newly constituted Shelby County School Board.  At the time of the resolution, Commissioner Mike Wissman suggested that "everyone" knew about this relationship except Commissioner Jones.
  • Commissioner Pickler waived all fees that the wealth management company could collect, but did not waive the fees specifically due to Ms. Bailey as the manager of the account.  This would mean that an individual at Commissioner Pickler's company did benefit from the management of the trust.  This would also mean that while Commissioner Pickler would not have financially benefitted (directly) from holding the trust, he may have benefitted professionally from the prestige of managing a TSBA trust.  That probably would not run afoul of the rules for lawyers, financial advisors, or public officials - but would, nonetheless, be a benefit that I would argue that Commissioner Pickler should have disclosed.  Particularly, if the amount of assets that Commisisoner Pickler's company managed would impact his standing among or arrangements with the financial services companies with which Pickler Wealth Management is involved.
There are likely other permutations of the arrangement between Commissioner Pickler, the TSBA, the trust, his company and its employees, and the various disclosures Commissioner Pickler may have previously made.

I'm reassured that Vice-Chair Teresa Jones is on the Ethics Committee that will investigate the allegations - she's an attorney and will recognize the various sets of rules at play.  Commissioner Pickler should be relieved that his long-time colleague and political ally Commissioner David Reaves is also on the committee.  Commissioner Reggie Love is somewhat of an unknown, but we have no reason to doubt his ability to be fair in this matter.

Anything less than a complete refutation of Commissioner Pickler and his company making any money off of this arrangement - even if acceptable under the rules - will cause some problems for Commissioner Pickler.  In that scenario, even if he's not facing any discipline from any of the bodies that could discipline him, it could make it more difficult for him to operate politically in this very important next legislative session in Nashville.  So far, all of the parties involved have managed to avoid any taint of impropriety (beyond fundamental policy and factual disagreements).  Even the appearance of actual, financial impropriety will be unfortunate, even if it's legal.  Commissioner Pickler is also the president-elect of the National School Board Association - he's got a lot riding on this coming out in his favor.  And perhaps Commissioner M. Jones doesn't much care if Commissioner Pickler is officially cleared as long as the political connections to Nashville suffer.

I guess we'll find out . . .

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