Metro Finance and Legal Decide Who Gets Paid (It's Everyone, This Time)
Did Metro Arts Commissioners Decide Who Got Funded? Depends who you ask.
Today a memo was released from the Mayor’s Office announcing that the Metro Arts quagmire was effectively resolved — according to them at least. The eight-months-long-debate as to who should be primarily funded with the limited Metro Arts monies, either large (mostly white) legacy organizations or small (more heavily BIPOC) organizations, was resolved by pulling an Oprah.
The Mayor’s Office, along with Finance Director Crumbo, released a statement that all awardees would receive 100% of the funding they were promised in the conflicting decisions.
By funding everyone, the administration seemingly avoided picking a side in the increasingly litigious feud between its own departments: Metro Legal, Metro Finance, Metro Arts, and Metro Human Relations Commission.
The Nashville Banner released today a comprehensive timeline of the events, compiled expertly by Connor Daryani, which will catch you up.
The decision is being received as “bittersweet victory” according to a now fully funded arts organization leader I spoke to after the decision was announced. While she will now be able to implement programs that had been put on ice for the last eight months, it provides little faith that this won’t happen again.
What perhaps shouldn’t go unseen is that in the Administration’s throwing up their hands with a “just pay them all” solution shows a very wide interpretation of Metro Finance’s and Legal’s spending authority. Here’s Mr. Crumbo’s account of why the funding decision is what it is:
Metro Finance seems to be indicating they will honor all funding decisions made in those conflicting votes, as advised by Metro Legal, because the Executive Director's actions have ostensibly committed them to this course. However, they also claim ignorance of all the facts that would necessitate this stance.
This takes funding decisions out of the hands of Council approved and democratically backed commission processes, and perpetuates a precedent that a few people in power decide who gets funded and how much.
The proper chain of command and spending authority for Metro Arts Funding is:
(1) Public Tax Dollars Collected;
(2) Funding placed in the City Budget for the Metro Arts Commission;
(3) The City Council1 Approved Metro Arts Commissioners (not the Executive Director) to vote on the allocation of funding;
(4) Metro Finance releases funds under the particular scrutiny detailed in the Metro Charter as I detailed here.
There’s more intricacies tied up in “excess funds” from the previous year that Finance needs to review, but the point is that the Finance department is not legally entitled to decide where funds are spent, because, you know, democracy.
There are extremely important tasks that Metro Finance is supposed to undertake over ALL DEPARTMENTS. But Mr. Crumbo doubles down in his document that the purview of his office is limited.
Look, I get they can’t review day-to-day activities, the “can we order a pizza?!” of it all, but what they should have visibility on according to the Finance Director's chartered job description, Crumbo is saying he unambiguously did not have that. But that is not presenting that as a systemic issue to be concerned about.
Job description of Metro Finance Director: Examine all contracts, purchase orders and other documents which would result in or involve financial obligations against the metropolitan government, and approve the same only upon ascertaining that there is an unexpended, unencumbered and unimpounded balance in each such appropriation and allotment to which they are applicable, sufficient to cover such potential obligation.
Mr. Crumbo is concerning himself, however, in the personnel conflicts of the office, and making demands of Council about who should run departments.
Little of the scrutiny that Metro Finance has been placing, nor the conditions that they seem to be presenting the Council, are connected to their chartered authority. These are the conditions that Crumbo puts forward to move forward with his funding proposal.
This author does not think it pertinent for the Finance Department to be making demands regarding the personnel who run a department, and connecting that, be it perhaps implicitly, to release of funds. Nor is it appropriate to request of them to make no further allocations until they are satisfied by vague conditions.
If the finance department can credibly demonstrate a lack of spending authority for funds, or a lack of appropriate funds to pay particular invoices, their chartered authority allows them to decline particular payments. And I encourage the investment in a financial system and system of operating capable of doing such tasks as mandated by the charter.
Whatsmore, the assertion by Metro Legal that the Metro Arts Director “promised” an unknown quantity of artists, and somehow also extended this authority unilaterally to a bunch of non-.gov contractors, doesn’t make sense by the Bylaws of the Metro Arts Commission.
A. The Executive Director shall be delegated responsibility for the programs of the Commission under policies and directives of the Commission and shall provide staff support to all meetings of the Commission. The Executive Director shall be an exofficio and non-voting member of the Commission. The Executive Director shall attend all Full Commission and Executive Committee meetings or shall designate a member of the staff to attend. The Executive Director (or a staff member so designated by the Executive Director) shall give staff support to all Commission committees.
B. The Executive Director shall be delegated responsibility for the employment, supervision and removal of professional and clerical staff.
The Executive Director of the Arts Commission is not able to promise anyone funding, so the allegation that his actions made Metro liable for all of this is illogical. If this happened, it would be helpful under such “highly unusual” circumstances to present this evidence, and also to explain how this would even be binding since the ED doesn’t have this type of spending authority.
Not to ascribe 4D chess motivations to a situation that seems rife with players that barely make it out of the demo level of Candy Crush, but it seems like there’s an attempt to make this a pyrrhic victory on behalf of the grantees and advocates of equitable funding.
As it stands, Finance and Legal still assert their role to determine who gets what funding, regardless of what any commission votes. A situation of which all commissions and boards should pay high attention to and be wary.
It’s a move that’s reminiscent of the legend that Pope Pius VII, knowing that Napoleon would declare himself Holy Roman Emperor, covertly placed the crown on Napoleon himself before he could take it. “Here,” the move goes, “have your victory. But I am the more powerful for having given it to you.”
Will Rogers: “Make Crime Pay. Become a lawyer.”
The real winners in this situation appear to be, as they always tend to be in capitalism, the lawyers. Someday a FOIA request and industrious pivot tablers might be able to tally how much is being spent on outside counsel to get this four million odd dollars out the door.
Take Mr. Crumbo’s account of it:
Absent of this analysis is an acknowledgement of the role that the actions of departments of Legal and Finance have taken that are the reason for these expenditures. Also not mentioned is that Metro Legal is the primary party in lawyering up with public monies to investigate other departments, despite themselves being, you know, lawyers.
To date, the following departments have hired private lawyers with public money to litigate against other departments on this topic.
Metro Legal retained Luther Wright Jr., Esq. of Ogletree Deakins to investigate several HR complaints against the Metro Arts Director Singh, which were presented here. Mr. Wright’s commentary on the origins of the tension in the Metro Arts Department is illuminating, and do some degree exonerating to Singh. Wright Jr. argued that the underlying tensions relevant to the complaint arose from misalignment on the office’s goals to implement either a modest DEI agenda, or a more intensive and financially meaningful anti-racist equity centered agenda. This misalignment he stated was to various degrees present among staff, the Executive Director, and the commissioners, and led to the hostile workplace claims filed against Singh.
Metro Legal retained David Maher of Griffin, Strong & Young to review the constitutionality of a decision legal had made six months earlier with Metro Arts in a private executive session that purportedly violated TN sunshine laws. Griffin Strong & Young confirmed the unconstitutionality of the July Arts Commission vote (and need to overturn it), in a 4.5 page opinion that supported Legal’s interpretation of the overturning of race-based college admissions as applicable to Arts Funding.
Metro Human Relations Commissions retained Melody Fowler-Green of Yezbak Law to investigate the constitutionality of the Art Commission’s July Vote, which in combination with an extensive investigation by MHRC staff, including interviews, the review of transcript records, and grant allocation models from the time of the July vote, supported the initial funding model. This legal review did not take as an outlaying opinion, like the Griffin, Strong & Young ruling, that race was the deciding factor in the July vote, but rather looked to the record of what was written and discussed. Fowler-Green also asserted Legal’s actions in overturning the July vote, and defunding the minority organizations specifically in the August vote, may have facilitated a Title VI violation by the Metro Arts Commission.
Metro Legal retained Tim Garrett of Bass, Berry & Sims to investigate Metro Art’s Director’s Family & Medical Leave Act (FMLA) absence, a leave from which Mr. Singh has asked to return to oversee his department.
Metro Legal retained Rita Roberts-Turner of Klein Solomon Mills to refute the MHRC report and Metro Legal’s liability in the Title VI Complaint.
UPDATE: [since publishing I’ve been notified of another firm hired] Metro Arts has hired Tyler Chance Yarbro of Dodson Parker Behm & Capparella to represent the department regarding the Title VI complaint as Metro Legal is also a potential defendant in this issue, however Legal’s outside counsel, Roberts-Turner, has claimed the are not liable parties in this issue because “Metro Legal cannot lawfully be a part of the complaint because it does not receive Title VI funding.”
These ungodly billable hours don’t include the private counsel retained by at least two of Metro’s Executive Directors who are finding themselves on the end of other Metro departments’ ire, and spending out of pocket to defend against these accusations.
Using Humans as Resources
The Metro Human Relations Commission Executive Director, Rev. Davie Tucker, was made aware on the business day before his commission’s report was to implicate Metro Legal in Title VI violations that two Metro Employees filed a Human Resources (HR) claim against him for aggressive behavior that was alleged to to take place in the Juror Assembly Room in City Hall on 2/26/24.
As the Nashville Banner reported: “Tucker revealed that he is being investigated over allegations from three Metro Arts employees of assault, intimidation and coercion. He accused Metro Legal of weaponizing Metro Arts employees. [Metro Legal Director Wally] Dietz called this accusation ‘categorically false.’”
A Metro City Council Member, a vocal advocate for the release of the Metro Arts funds, is also reported to have a complaint against her for aggressive action to a person at this same event.
The contents of these complaints have not been made public, nor has this writer aware of any security footage from these alleged incidents (as there are cameras in this room within City Hall), nor supporting testimony from witnesses (of which there were allegedly dozens in the room at that time).
I wanna address the HR claims of this all.
I am not one to dismiss anyone’s HR claims outright. I did not live through the #MeToo movement under a rock. It is not hard for me to be convinced that toxic workplaces exist in government. I have worked in them here in Nashville and in government adjacent capacities in Jersey City.
I don’t know who the people are who filed these claims and what their experiences were.
Where my incredulity arises is when departments like Metro Legal and Finance become inordinately interested in these claims in ways that have little to no precedent.
Just on the face of it, Metro Legal hiring outside counsel to investigate an HR complaint — HR, being “Human Resources”, the purview of a whole other department called “Metro Human Resources”, with their own budget, processes and staff — is weird.
Scrutiny like this could be interpreted as pressure to back down from their positions of promoting equitable funding, funding that is not in line with ethically murky preferences of people like Mr. Crumbo.
Mr. Crumbo, a very recently former Board Chair and Treasurer of the Nashville Symphony, a group that received reduced funding in the July vote, and the spouse of a current member of Board of Director of Cheekwood, another such organization, the room for impropriety and retaliation is immense.
Equity Lives to Fight Another Day
I’ll be writing more about what this means for the state of equity in a state that is doing its best to make it illegal.
I want to cite some thoughts from Metro Legal’s outside Counsel, Luther Wright Jr., Esq., Ogletree Deakins.
“There is a distinction between Anti-Racism work, and Diversity, Equity and Inclusion and Accessibility work. And it was apparent to me… that from Director Singhs perspective and the perspective of certain staff members and probably certain commissioners, he was tasked with operationalizing Anti-Racism.
But it was also clear to me that from the perspective of some Commissioners, and perhaps, even some staff members, that he was tasked with a Diversity Equity, Inclusion and Accessibility mandate to improve historic dysfunctionality.
And that starts the tension that i think the confusion around all of these issues that I think led us to this point where it was even necessary for me to conduct an investigation.”Luther Wright Jr., Esq., Ogletree Deakins
I would categorize the distinction that Mr. Wright is making as between valuing “equality” vs valuing “equity,” something that’s been highlighted a lot the last half decade, but also the last half century.
…it’s important to distinguish between equity and equality. To build equity into your DEI initiatives, you must realize that each person comes to their role with a different set of needs. While equality means giving everyone the same resources, equity means giving individual employees the resources and opportunities specific to their needs so that they can reach the same level of success as their colleagues.
TechCrunch (2021), Candice Bristow
You can feel what you will about Metro Arts Executive Director’s Daniel Singh’s leadership, but what he unabashedly did was drive the ball forward for equity, rather than just the shadow of progress, “equality.”
People can shiver at this concept, they can retreat to the state capitol and try to make it illegal, and they can train up Heritage Foundation backed judges to pack the Supreme Court with folks who’ll do everything they can to stop the process of putting our money where our nice liberal mouths are.
But when we talk about the “arc of history bending towards justice”, this is what it means. It’s not something Daniel brought to Nashville, and it won’t be leaving with him when he goes.
Equity is giving resources to the people who need it, not just those who are used to it.
I know enough of human nature to know that people do not give up power to those they don’t care about willingly. But I also know that stooping to essentializing and dehumanizing rhetoric might get us to where we want to be — but we won’t be who we want to be when we get there.
Metro Arts is the first department in Metro to have an equity statement. Let it also be the first place in the city where we are truly able to grapple with the existential horror and transcendent joy which is integrating the humanity of those with whom we share this delicate experiment of democracy.
A standing correction: This post refers to the Nashville Metro Council as a “City Council”. It is, in fact, a City-County Council, known colloquially as the “Metro Council.” More information on this distinction can be found in this previous post.