Pensacola

Fleming: Mayor cannot veto Council hiring a budget analyst

April 6, 2017

Pensacola attorney Ed Fleming reviewed Mayor Ashton Hayward’s veto of the Pensacola City Council hiring a budget analyst. His client shared that opinion with Inweekly.

According to Fleming, Mayor Hayward did not have the authority to veto “the City Council’s administration of a duly-enacted ordinance addressing a power expressly, and exclusively, granted by the Charter.”

The ordinance that created the budget analyst position in 2016 was expressly authorized by Article IV, Section 4.02(a)(6) of the City Charter.

Fleming stated, “The Mayor has no authority to obstruct the City Council’s efforts to implement the duly-enacted ordinance.”

He compared the analyst position, which would directly work for the City Council, to the Congressional Budget Office, which works for and reports to Congress.

“The fact that the President has direction over the Treasury Department does not negate the right of Congress to have an independent budget analyst,” said Fleming. “The same is equally true with the City of Pensacola.”

He said that did not believe any Court would reach the conclusion that the Mayor can nullify the “Charter’s express provisions for the right of the City Council to have an independent budget analyst.”

The City Council meet on Monday to discuss whether it will override Hayward’s veto.

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3 Comments

  • Reply CJ Lewis April 7, 2017 at 11:34 am

    I think Ed Fleming missed the legal issue here. For reasons no one is likely to know, the City Charter’s Section 4.02.(a)(6) “expressly” establishing an Office of the City Council and four mandatory positions, imposes an addition “ordinance” requirement upon the process for hiring the Budget Analyst, and only the Budget Analyst. In November 2014, voters approved the charter amendment, barely. The City Council then squabbled amongst itself for more than a year. In April 2016, the City Council adopted a Budget Analyst Ordinance as Section 2-4-52 in the city’s Municipal Code. Oddly, the section has yet to be incorporated into the main text of the Municipal Code. Since April 2016, the Council President could have begun the process to recruit a Budget Analyst and the City Council could have hired a person. Instead, the City Council has squabbled amongst itself for more than a year. In February, Councilwoman Cannada-Wynn, a person who has often shown a lack of knowledge about municipal government and especially municipal law, proposed a so-called “Legislative Action Item” that even though approved by a 6-0 vote had no legal effect. She proposed three separate actions, two that would require amendment to Section 2-4-52 and one that would require amendment to the City Charter’s Section 4.02.(a)(6)(a) and then to Section 2-4-52. For reasons someone should ask her to explain, Cannada-Wynn did not comply with the requirements of state law. As such, the City Council’s vote has no legal effect and was a waste of time. As for the so-called “veto,” in addition to their being no action to veto, the City Charter limits the Mayor’s veto to ordinances and resolutions. Similarly, the veto has no legal effect. That said, if Cannada-Wynn were to revisit the issue and propose amending the Municipal Code’s Section 2-4-52 with respect to the “qualifications” and “responsibilities” of the Budget Analyst, that veto is subject to veto as was the ordinance adopted in April 2016. At some point, the City Council needs to propose a charter amendment to remove the phrase “by ordinance” as found in the City Charter’s Section 4.02.(a)(6)(a). Until voters approve that change, the City Council has to comply with the City Charter as written. If Cannada-Wynn still wants to make it harder for the City Council to terminate the Budget Analyst, her proposed charter amendment can be sent to voters at the same time.

  • Reply George Hawthorne April 6, 2017 at 5:24 pm

    The Mayor had better learn his lesson from messing with Ed Fleming. Ed is one of the finest and most competent attorneys in the South. I would hope that the Mayor heeds this opinion.

  • Reply James Scaminaci III April 6, 2017 at 2:46 pm

    Not only does the City Council need an independent budget analyst, but it also needs an independent legal analysis. The strong mayor City Charter specifically authorizes the City Council to hire a lawyer who would also serve as the assistant or deputy city attorney. Without this independent legal advice, the City Council constantly and repeatedly defers to the mayor’s decisions, many times based on poor legal advice.

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