Wednesday, March 15, 2017

Hayward Violates Charter with Illegal Veto

Pensacola City Charter:

"The City Council shall establish an office of the City Council and shall have as its staff the following who shall be responsible to the City Council through the President of the Council: (a) Budget Analyst.

The City Council is authorized to employ a Budget Analyst or an individual with similar qualifications pursuant to the City's position classification code to assist the budgetary matters of the City Council."

http://cityofpensacola.com/charter

170314-MEMO-Mayor-Veto-Statement-

He can't do that...clap...clap...clap,clap,clap
He can't do that...clap...clap...clap,clap,clap

The Charter gives him powers of veto of Ordinances and Resolutions. Not Council Actions!

Will Julius be the President of Council or the Mayor's whipping boy!

President Spencer, you claim you want to lead the City. Let's see if you can even lead this Council.

An action was taken.  It was approved.  The mayor has violated the charter.  What will you do?

Time to put up or shut up, Mr. President!


11 comments:

Anonymous said...

Now Let's See...

Anonymous said...

I would first love to hear a "legal opinion" from the bobble head on the legal significance of the word "shall". Now that would be comical.

Anonymous said...

What's new about this latest example of the Mayor's illegal governance? He has consistently violated his oath to follow the Charter and the COUNCIL has consistently let him do it. The citizen's don't care to recall the Mayor and they will pay for their collective acceptance of such behaviors.

Clearly, the Mayor is very concerned about the Council having any oversight of him and his actions.

CJ Lewis said...

City Attorney Bowling has advised the Council that use of the word "shall" with respect to positions expressly described in the Charter does "not" impose a mandatory requirement to fill the positions and so also not to fund the positions. I believe she is wrong but the Council has accepted her view. As example, if it wanted to play political hardball, the Council could not include funding for the City Administrator position in the next year's budget. (The Council could pretty much gut the entire Office of the Mayor if it wanted too.) Hayward cannot do anything about it because his veto power is limited to budget lines items that the Council puts in "its" budget and adopts by resolution. (If the Council wants to take Hayward's proposed budget and throws it in the dumpster, there is nothing Hayward can do about it.) As for this veto, When the Council approved the Charter Amendment proposed by then Council President Cannada-Wynn (drafted by Rusty Wells who worked for Hayward), they gave the Mayor this power to veto this ordinance. The Charter approved by voters in 2009 imposed no limiations upon the Council with respect to having a Legislative Branch staff as exists in both Mayor-Council "and" Council-Manager forms of government. Absent any limitation, imposed in the Charter, the Council exercises the power to do what it wants. Because the Council wanted to expressly describe this power in the Charter, I urged it to limit the language to just 13 words. Instead, the Council approved a badly drafted Charter Amendment that gave this and all future Mayors the power to override its decisions, much as the 2009 Council gave the Mayor the power to override the Council's own Rules & Procedures. The Council should vote to override the veto and then we can see where everyone stands. The Council will need five votes. I believe that Councilmembers Myers, Wingate and Cannada-Wynn will vote YES as will Council President Spencer. Wu, Johnson and Terhaar have all many times openly spoken in opposition to a separation of powers and checks & balances. Unless one of them reverses course, the Council is stuck in a constitutional minefield of its own making. By the way, Florida Attorney General Advisory Legal Opinion (AGO) 79-22 Veto Powers of Municipal Mayors is worth reading. As a quick way to push back, the Council can refuse to consider any items that Hayward wants put on the agenda. Both the Council President and the Council are free to ignore the Mayor to include refusing even to put the confirmation of a new Police Chief on the agenda, etc.

Anonymous said...

So everywhere the Charter states, "the Mayor shall" have authority to ______ or "the Mayor shall" have _____ powers, etc. is now also meaningless?

So I reckon all of the "Thou shalt not"(s) in the Bible are also optional. Where do we find these people?

CJ Lewis said...

Just to clarify, the City Council approved itself and then had voters approve the following sentence added to the Charter with respect to the Budget Analyst position: "The City Council, by ordinance, shall define the qualifications, pay and responsibilities of said employee in accordance with the City's classification code." There was no need to do so and as I objected at the time the City Council was putting itself at the mercy of the Mayor not only the first time it created the position of Budget Analyst but each time it wanted to change any matter pertaining to "qualifications, pay and responsibilities." Of the four positions expressly described in the Charter's Section 4.02.(a)(6) - (a) Budget Analyst; (b) Legal Aide; (c) Council Executive; and (d) Executive Assistant - the Budget Analyst is the only one for which the Council is required to act by ordinance. Why? I bet no one knows perhaps not even Rusty Wells. Because the Charter, the city's constitution, requires certain action be accomplished by adoption of an ordinance, the City Council's hands are tied with respect to this one position - "Budget Analyst." As a further complicating factor, the process for a local government is governed by a state law, specifically Section 166.041 Procedures for Adoption of Ordinances and Resolution, Florida Statutes. An ordinance has to be publically noticed in a certain way, it requires two votes for adoption, etc. In 2014, the Council did not know the difference between an ordinance and a resolution and was using the terms alternately. I provided a copy of F.S. 166.041. To judge by the looks on everyone's faces, that was the first time any of them had ever seen the law notwithstanding that it is part of the state's Municipal Home Rule Powers Act none of them have ever read. In this case, the Council tried to take the action using a "ministerial" action (not subject to veto) to accomplish what requires an ordinance (that can in this case be vetoed). I don't know if that was done on purpose or out of ignorance. Council Executive Don Kraher who has a law degree and presumably has read the City Charter should not have let it happen. City Attorney Lysia Bowling should not have let it happen but she has said she does not read the agenda items and it shows. I think there might be a way around Hayward. Section 4.02(a)(e) provides, "Other Staff. The City Council may create and fill other staff positions for the purpose of assisting it in the performance of its legislative function." I have always objected to the use of the term "Budget Analyst" because having once run a $700 million budget I know the City Council needs a "Budget Director" with the same qualifications as Dick Barker or Amy Lavoy. I think the Council should take use language from the position descriptions for Barker and Lavoy to tailor a new position for the City Council with a salary competitive enough to attract someone who is a real expert on budgets.

Anonymous said...

Maybe there's something in the budget that he is trying to conceal. Why is the Mayor suddenly concerned with paying a budget analyst when he pays an amateur picture taker $33,000 per year? I smell a rat.

Anonymous said...


We now know why Barnum and Bailey went out of business. It just couldn't compete with Pensacola City Hall.

Anonymous said...

What an absolute hot mess. Before I equated this administration and City council to a dumpster fire. I have changed my assessment. This is an unmitigated landfill fire with no apparent way to put it out.

Anonymous said...

Clowns just doing what clowns do. The City Hall Circus has become less and less entertaining by the day. There are many serious issues that need to be resolved and we have nothing but clowns making decisions that only circus clowns would make. #ready4thecircus2goaway

Anonymous said...

only in podunk L.A. or lower alabamer