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To: Mayor Wiggins and City Council MembersFrom: Crystal C. Spencer, Chair Pensacola Charter Review CommissionDate: August 10, 2009Re: Response to Comments by Rusty Wells, City AttorneyOn Friday at 3 p.m., Rusty Wells forwarded to Margaret Stopp and me Comments to theCharter Review Commission’s Proposed Charter. Below is the response to each item that heraised.MAYOR 1. Section 4.01(a)(7): Rusty Wells’ observation relates to who has the power todetermine “just cause.” The first sentence of the Section states “The mayor…shall have thefollowing powers and duties:” It is the mayor who has the power to suspend, reduce or remove adepartment head for just cause without the consent of City Council members. Thus, the languageis clear that it is the Mayor who determines “just cause”. A discharged employee could challengethe discharge in court.2.Section 4.01(a)(9): If the veto power of the mayor is not clear, then the cityattorney can suggest some clarifying language. As it is stated in the proposed Charter, if the totaleffect of line item vetoes in a budget or appropriation ordinance result in expenditures whichexceed revenues, then all of the vetoed line items are null and void. The vetoed items wouldremain in the budget. As a result, if the mayor exercises the line item veto power, the mayor must do it in such a way that expenditures are not greater than revenues. There is a similar  provision in the St. Petersburg, Florida Charter, §4.04(d).3.Section 4.01: The question is who has the power to appoint/hire City employees,other than department heads. Section 5.02 of the draft Charter states the City Administrator shall be in charge of the daily operations of the City.CITY COUNCIL4.Section 4.02(a)(3): As I recall the discussion of the CRC, the intent was to createa balance of power within a Mayor-Council form of government (not “strong” mayor form of government). Margaret and I do not see the ambiguity that is observed by Mr. Wells. Thelegislative branch creates the administrative structure and the mayor as the executive branch runsthe City departments pursuant to that structure. If the mayor finds that there is a problem withthe structure established by City Council, the mayor can work with the Council to change theordinance establishing the structure to remedy what does not work. This requires collaboration between the branches of government and is in line with the CRC's desire to have a mayor-councilform of government (not a pure strong mayor form of government).
 
5.Section 4.02(c): Mr. Wells’ observation is that City Council setting members’salaries in the annual budget is normally an inherent conflict of interest. The question to beconsidered is, does that preclude annual consideration of salaries? Hialeah, Florida has a similar  provision in Section 2.02(e) for Council members, and Section 4.02 in the St. Petersburg Charter states the Council fixes the compensation for the mayor. Margaret Stopp and I reviewed section112.3143 of the Florida Statutes and do not think that this section prohibits setting of salaries andraises in annual budgets.CITY COUNCIL PROCEDURES6.Section 4.02(a) [
 sic
], Section 4.03(a): For practical reasons stated, it might be better to state the City Council “shall meet regularly at least once every month.” The Proceduresof the City Council state the Council normally meets the second and fourth Thursday of themonth. The current Charter states City Council must meet at least once each month.7.Section 4.03(c): Roll call does not have to be read narrowly and can encompasselectronic devices. However, if this is a debatable issue, the language can be changed to reflectthe use of electronic devices.A majority of the Council is four and is a quorum under this Section. The proposal is that action items must be approved by a majority of the City Council, or four. As it iswritten, if only four Council members are present, three could approve action items.8.Section 4.03(e): Typographical error noted (“appropriate” versus“appropriation”).PROHIBITIONS9.Section 4.04(a) and (b): The observation is that there is no penalty for a Councilmember dictating the appointment or removal of an administrative officer or employee or for interfering with the duties of employees. A penalty provision could be adopted by ordinance.See also §6.03(a) of the draft Charter “…if he or she violates any express prohibition of thisCharter, he or she shall forthwith forfeit the office, and council shall remove him or her fromoffice.”CITY ADMINISTRATOR 10.Section 5.02: If there is any question that the City Administrator was intended to be mandatory position (“The City Administrator shall be in charge of the daily operations of theCity.”), then the sentence “There shall be a City Administrator” can be added.DEPARTMENT HEADS11.Section 5.04: Mr. Wells’ first observation is that it is not clear whether themandate that current department heads be City residents. See §8.05 of the draft Charter. No
 
rights of current employees at the time of the effective date of this Charter are to be impaired. If that is not clear enough as to the residency requirement, language can be added to this section.The second observation is that City Council determines the organization of theCity and duties of departments, causing a conflict with the power of the mayor over departments.As Margaret and I recall the discussions of the CRC, this is another example of creating a balance of power (checks and balances). The mayor-council form of government as proposed isnot a pure “strong mayor” form of government. See §3.01 of the draft Charter.CITY BOARDS12.Section 5.05(a): Since the Civil Service Board and Fire Pension Board arecreated by Special Act, they are not within the purview of this Charter. For clarity, the phrase“except as otherwise provided by Florida law” could be added.13.Section 5.05(b): The observation seems to be that more members of Boards will be automatically removed for failure to attend at least 9 of 12 meetings a year (assuming 12meetings a year), and thus cause more need for Board appointments. This goes to the issue of the important work of boards and assuring adequate attendance and meaningful participation. If a person is unable to attend and meaningfully participate, then he or she should be replaced.MAYOR AND COUNCIL QUALIFICATIONS14.Section 6.03(a): If an elected Council member or Mayor no longer meets thequalifications set forth in the Charter, then the office is forfeited and the Council has the duty toremove that person from office. The current Charter, Section 11(e), states that if a member of council ceases to possess the specified qualifications, a member of council "shall immediatelyforfeit his or her office." The draft Charter adds to this language, requiring the City Council toremove that person, so there is no question as to whether the office has been forfeited or not.Section 6.03(a) also contemplates that a candidate will file an Oath (swornAffidavit) that the candidate meets the qualifications to run for office. It is perjury to lie in asworn Affidavit, and can be prosecuted.ELECTION PROCEDURES15.Section 6.04(f): If incumbency needs to be on the ballot, this detail might be partof an ordinance that more fully details election procedures. It could also be added to the draftCharter without changing the intent of the document.QUALIFYING OATH16.Section 6.05(b): This provision was taken from the current City Ordinance, §2-5-6(b), including the Notary provision. It is also the form provided for in §99.021 of the Florida
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