Jeremy's Notebook

Messer: ‘Reevaluate the Role’

January 28, 2013

jim messerCity Attorney Jim Messer sent an email to various Pensacola officials this morning concerning the parameters of his role. The email seems to have been triggered by the recent questions which arose during the city’s process of selecting a representative to sit on Escambia County’s RESTORE advisory committee.

In the email, Messer states that it is not his job to interpret policies and procedures pertaining to city council. The attorney also says he needs to ensure his office “is not politicized by either the executive or the legislature.”

Messer informs the email recipients that he no longer plans to answer questions from individual council members pertaining to “parliamentary procedure or council policy.” He will, however, offer non-binding, advisory opinions when asked by Council President P.C. Wu.

Last week, members of city council expressed concerns after City Administrator Bill Reynolds—acting on behalf of Mayor Ashton Hayward—called a special meeting for 12 hours after a meeting during which the council decided to hold off on approving David Penzone as the city’s RESTORE representative. The council adjourned the early-morning engagement quickly, after deciding that the city administrator did not have the authority to convene a Committee of the Whole meeting—President Wu later scheduled a meeting for this afternoon to discuss the appointee selection.

Here is Messer’s email:

________________________________________
From: Janet Matteson On Behalf Of Jim Messer
Sent: Monday, January 28, 2013 8:56 AM
To: Ashton Hayward; City Council; Bill Reynolds; Ericka Burnett; John Asmar; Lila Cox; Derek Cosson; Tamara Fountain; Dick Barker Jr
Subject: Parliamentarian

Like many things assumed in the transition to the new form of government, it has been assumed that the City Attorney acts as the Council Parliamentarian.  The recent controversy concerning the Mayoral appointment to the County RESTORE Committee has caused me to reevaluate the role of the City Attorney as Council Parliamentarian. More particularly, it is incumbent upon me to ensure that the Office of the City Attorney is not politicized by either the executive or the legislature.

The Charter imposes the legal duty on the City Attorney to be the “legal adviser.”  That duty does not encompass interpreting the very policies and procedures that the Council themselves wrote.  Section 4.03(b) of the Charter states that “The City Council shall determine its own rules of procedure and order of business ….” Council is an elected body that regulates itself.  The procedures of Council are whatever the majority of Council decides; they are not subject to the opinions of an unelected third party appointed by the Mayor.

There is neither a legal duty imposed on the City Attorney by the laws of the State of Florida nor by the Charter to act as Council Parliamentarian.

Furthermore, Council has already determined how such issues should be resolved. The Rules and Procedures of the City Council clearly state that “… [The President of City Council] shall … decide all questions of order, subject to appeal to the Council by any member.  On points of order, no member may speak more than once, and no other business shall be in order until the question on the appeal is settled by vote on the question … A vote of six (6) members of the Council shall be necessary to overrule a decision of the presiding officer regarding a point of order.”

A point of order is any question involving parliamentary procedure.

To ensure that the integrity of the Office of the City Attorney is maintained, that precedent is established for future City Attorneys, that ethical considerations involving representation of multiple clients are effectuated, and that the letter and spirit of the Charter is implemented; henceforth, I respectfully decline to answer any question from an individual Council member involving either Parliamentary procedure or Council policy.

Out of my inestimable respect for the current President of City Council I shall consent to render a non binding, advisory opinion on any question of procedure that he asks me.

  • What a Joke January 28, 2013 at 5:18 pm

    Gee — why have all previous City Attorney’s managed to provide this advice to both the council & City Manager? Guess the City Council needs to hire its own attorney. What a waste of money. Just how much is Messer making? I know about his contract pay, but he receives additional compensation for representing the City in trial. The overhead on the 7th floor is outrageous.

  • HazeMotes January 28, 2013 at 2:47 pm

    Any city attorney is wise to limit his advice. Too often this city attorney is asked to offer legal advice on politically charged matters. He must refuse to respond. Moreover, one attorney as a public servant cannot be expected to serve multiple masters, especially when the different masters are attempting to gain political leverage over the other masters.

  • jeeperman January 28, 2013 at 1:36 pm

    Messer’s course of action as stated above will be short lived.
    He won’t be able to resist answering questions.

  • CJ Lewis January 28, 2013 at 11:56 am

    Section 5.03 of the Charter does not give the City Attorney the authority to decide on his own that he will only give his legal opinion on certain issues to the Council President but not to another Council Member.

    When the Council meets as the governing body of the City during a regular, special or joint meeting, it meets as a group. It takes collective vice individual action.

    Section 4.03(e) of the Charter directs, “The president shall perform the duties consistent with the office and as otherwise imposed by the City Council.”

    If the Council wants to decide that only the Council President may ask a question to the City Attorney, someone needs to make that motion, someone else needs to second the motion and a majority need to vote to do as the City Attorney wants.

    The better solution has always been for the City Council to retain its own City Council Attorney as in Tampa, not beholden to the Mayor in any way, and make the City Counicl Attorney the City Council Parliamentarian.

    In the interim, Council President Wu needs to read the Rules & Procedures of the City Council for a first time. He needs to do so prior to 1 pm today. He can read them a second time later tonight.