City Attorney Jim Messer sent the following email to the Pensacola City Council stating that competitive bidding of the airport food concessions was a council policy and not a city ordinance. Therefore, the mayor is not required to do so.
He wrote, “When the airport requires a vendor to serve the public it is a Mayoral responsibility to select one, and if he chooses not to follow a competitive process, that is his prerogative under the Charter.”
From: Sonja Gaines On Behalf Of Jim Messer
Sent: Friday, March 14, 2014 2:46 PM
To: City Council; Charles Bare
Cc: Tamara Fountain; Stephanie Tillery
Subject: Response to your request for citations
Charles,
The City Council policy predates the 2010 Charter. It was not adopted as an ordinance, and was not a part of the City Code of Ordinances when the 2010 Charter took effect. In addition, it was not adopted as an ordinance which would have been “required to effect the transition†of the 2010 Charter as authorized by Sec. 10.07 of the Charter. During the Charter transition period there were scores of code provisions adopted or amended to accommodate the new Mayor’s authority. Following the Charter Referendum in 2009, two sweeping ordinances were adopted by Council to accomplish the transition to the new roles which the Council and the Mayor were to fulfill under the 2010 Charter. Significantly, the Council policies pertaining to airport concessions did not become ordinances which were expressly binding upon the Mayor.
By their terms, the Council policies pertaining to the airport were binding only upon the Council itself, and Council’s former employee – the City Manager. No Charter provision or revision has attempted to make these policies binding upon the Mayor, and they are therefore not binding upon him or the City workforce, who now work for the Mayor.
The Mayor has Charter-provided responsibilities “to exercise the executive powers of the Cityâ€, “to supervise all departments,†and “to enforce the Charter and ordinances of the City …..†Sec. 4.01 (a) (1) and (2). There is no inherent requirement to engage in a competitive process, and no state law requirement that the City do so. The only provision is the City Council‘s pre-2010 policy, which is not binding upon the Mayor and which intrudes upon the authority of executive to fulfill his Charter responsibility in the manner he deems most appropriate. Last, but not least, Section 10.04 of the Charter establishes the precedence of the Charter over any ordinance, and by implication, any resolution.
When the airport requires a vendor to serve the public it is a Mayoral responsibility to select one, and if he chooses not to follow a competitive process, that is his prerogative under the Charter.
Attachment 1 is Florida Statute 166.041 and sets forth the difference between an ordinance and a resolution. An ordinance is an official action of a governing body that is enforceable as a local law. A resolution is not.
Attachment 2 is Section 10-2-4 adopted by ordinance and grants the Mayor authority at all times to take any action necessary to manage the public at the airport. Additionally, the Council has delegated rule making authority to the Mayor by authorizing him to make any rules and regulations necessary and render any decision the Mayor deems appropriate in these matters.
Attachment 3 is Section 10-2-6 adopted by ordinance and should be read in conjunction with Attachment 2 and augments the Mayor’s authority by providing that no sale of refreshments or commodities shall be made at the airport without the specific authorization of the Mayor in writing.
Attachment 4 is the Allen Norton and Blue opinion on the matter.
For your edification, I have provided the requested legal opinion as supported by the dispositive legal resources to date attached.
Thank you.
Jim.
Attachments:
MX-5001N_20140314_131058
