This memo was sent Tuesday, May 8 to Pensacola City Attorney Lysia Bowling from Council Executive Lysia Bowling:
FROM THE DESK OF DON KRAHER
COUNCIL EXECUTIVE
To: Lysia Bowling – City Attorney
From: Don Kraher – Council Executive
Date: 05-09-17
Re: Councilman Wingate’s inquiry regarding questioning a nominee for appointment
Madam City Attorney:
I offer the following for your consideration regarding this matter:
The question pro-offered is, “Will the City Council be able to ask questions of the Police Chief Nominee at a Council meeting wherein consent to his appointment is requested.â€
On the agenda for the May 11, 2017 City Council meeting is the following item:
APPOINTMENT OF POLICE CHIEF
Recommendation: That City Council consent to the appointment of Tommi Lyter as Chief of the Pensacola Police Department.
The City Charter, Section 4.01(a) (7) – Mayor – Powers and Duties states, (7) “To appoint the head of each department, with the consent of the City Council by an affirmative vote of a majority of City Council Members.â€
Section 4.02 (a)(3) – City Council – Powers and Duties states, (3) “To inquire into the conduct of any municipal office, department, agency or officer and to investigate municipal affairs, and for that purpose, may subpoena witnesses, administer oaths and compel the production of books, papers, or other evidence.â€
Notwithstanding other pertinent and available case law, I believe a trial court decision and order given by the Honorable J. Scott Duncan, Circuit Judge in the First Judicial Circuit for Escambia County, Florida in the case Sherri F. Myers v. Ashton J. Hayward, 2012 CA 001527 (2012) may speak to this question.
In this case, the question posed involved the Mayor’s authority to prohibit all of City Council’s communications with employees of the City of Pensacola. In its review, the Court also cited City Charter section 4.04 (b) which states, “Except for the purpose of inquiries and investigations made in good faith, the City Council or Council Members shall deal with the City officers and employees, who are subject to the direction and supervision of the Mayor, solely through the Mayor. Neither the City Council nor Council Members shall give orders to any such officer or employee, either publicly or privately.â€
Within the analysis of this question, the Court found that the term inquiry, “is a request for information.†Id. 5. The Court further defined investigations as, “a formal inquiry conducted by a legislative body incident to its legislative authority. Id. 5. Further the Court went on to say, “While the City Council has the authority to subpoena witnesses, administer oaths and compel the production of books, papers, or other evidence in conducting an investigation, the Charter contains no provision limiting the City Council to conduct inquiries and investigations only in such a manner. Nor does the Court find that inquiries and investigations are limited only to issues of potential malfeasance.†Id. 5,6.
The Court cited cases wherein a legislative body’s powers of inquiry and investigation are “longstanding traditions of representative government, “ Myers at 6. Tenney v. Brandhove, 314 U.S. 367, 377, “The principle is longstanding that legislature is vested with all investigative power necessary to exercise its function properly.†E.g., McGrain v. Daugherty, 273 U.S. 135,174 (1927) and Chesek v. Jones, 959 A. 2d 795, 802-803 (Md. 2008), “The power of inquiry-with the process to enforce it- is an essential and appropriate auxiliary to the legislative function…â€.
In substantive part, the court stated the following, “…[T]he Court has considered whether the Mayor has attempted to properly limit the scope of his policy by requesting that individual Council member’s “requests†(as opposed to “requests†of the City Council as a legislative body) are affect by the policy. Yet there can be little doubt that individual City Council members may conduct inquiries and conduct investigations on behalf of the City Council as a legislative body.†(emphasis added).†Myers at 7,8.
The City Council convenes as a Legislative body, in order to meet its requirements under the City Charter. In this case, specifically the necessity to consent to the appointment of a department head and secondarily with the authority to “inquire and investigate,†all of this done under the Sunshine as required by Florida Statute.
Based in the definition provided by the Court for the terms, “inquiries and investigations,†I would submit to you that not only is the opportunity to question a nominee for appointment in an open meeting appropriate, it is an authorized “good faith†inquiry by the City Council and is consistent with both the City Charter and the Honorable J. Scott Duncan’s ruling in Myers v. Hayward.
I would therefore offer that, should a Council Member desire to question the nominee for Police Chief during the consideration of this Legislative Action Item, they be allowed to do so.
Respectfully Submitted,
Don Kraher
Council Executive
Maybe the City Council should refuse to approve the next Budget and see if they get more respect.
The process of confirming the Mayo’s nomination of a department head would not appear to qualify as either an inquiry or an investigation as those terms are used in the voter-approved City Charter.
The City Charter’s 4.01.(a)(7) is adopted from the Hialeah City Charter’s Section 2.01.(a)(4), “To appoint, subject to civil service rules and regulations, the head of each department, with the advice and consent of the city council by an affirmative vote of at least 4 councilmembers.”
The Hialeah City Charter is more detailed than the Pensacola City Charter “and” the Hialeah City Charter does not provide for a “Weak” City Council as we have here in Pensacola. As example, the Hialeah City Charter’ Section 2.01.(a)(5) also provides, “To suspend, reduce or remove a department head for just cause in accordance with civil
service rules and regulations. The removal of a department head by the mayor shall only become effective when ratified by an affirmative vote of at least 4 councilmembers.”
Probably because she anticipated that her husband Brian Spencer was going to be elected Mayor, Charter Review Commission (CRC) Chairwoman Crystal Spencer did not include the section about the City Council having to approve the suspension, reduction or removal of a department head. As I recall, there was no evidence that the CRC members were told and, in truth, none of them much cared as few knew anything about “municipal” government.
In the Hialeah City Charter, the two sections above are restated in Section 2.02. City Council.
If there is any question about whether the City Council is allowed to speak to a department head nominee during their confirmation hearing, much as takes place in other local, state and the national government, Kraher should pick up the telephone and call Hialeah. Each time that I and Councilwoman Myers have called Hialeah to discuss Hayward’s most recent tortured interpretation of the Charter – to include the voter-approved requirement that the Mayor “attend all meetings of the City Council” – they have been in shock. Perhaps by design, Pensacola has the most dysfunctional city government in Florida.