Anchorage Mayor Veto Power Opinion

OFFICE OF

THE

MUNICIPALTTORNEY

DATEJuly

10,2006

To:

Mayor Mark Begich

FROM:

Frederick

H.

Boness, Municipal Attorney

SUBJECT:VETOAUTHORITY

E:

A0AME~BMENTS

Law

Dept. Matter No. 05-0438

QUESTION:

You have requested

I

provide you with a gelieral discussion of the vetoauthority of the mayor, and to specifically address whetha you may veto a motionapproved by the Assembly which amends a proposed or$nance. If you have theauthority to veto a n~otion,you have asked me to indicaqe when the veto must bepresented to the Assembly.

BRIEF ANSWER:

Subject to the following Background and Discussion, my BriefAnswer is the mayor has broad general veto power. The mayor may veto an amendmentto

a

proposed ordinance. The timing of the veto is depeqdent upon the goal to beachieved by the amendment. Assuming your goal is to prlevent an amendment frombecoming part of the ordinance under consideration but not to prevent the ordinance itselffrom being further considered by the Assembly, the veto sh'ould be made immediatelyafter the Assembly votes to approve the amendment and bef4re the Assembly considersthe proposed ordinance.

DISCUSSION:

The Anchorage Municipal Charter section 5.02(c) provides:The mayor has the veto power. The mayor a140 has line item vetopower. The mayor may, by veto, strike or reduce $ems in a budget orappropriation measure. The veto must be exercised qnd submitted to theassembly with

a

written explanation within seven dais of passage of theordinance affected. The assembly, by two-thirds majqrity vote of the totalmembership, may override a veto any time within

2

1

ddys after its exercise.

I

The mayor of the Greater Anchorage Area Borough exercisa broad veto power over"any ordinances, resolutions, motions, or other actions ofOpinion No.

Mayor

Mark

Begich

July

10,2006

Page

2

of

3

75-29 at 3 (citing former AS 29.23.170(a)).'This expagsive veto power was notexpressly stated in the Anchorage Municipal Charter.

A.

Support for broad general veto power

Nevertheless, there is strong support to conclude the mayor of the Municipality ofAnchorage has the same expansive veto authority as the mayc)r of the Greater AnchorageArea Borough:

J

s

a. In Municipality ofAnchorage

v.

Repasky the Alaska Supreme Court declared:"[Tlhe language of charter subsection 5.02(c) is sweeping.It expresses no limiton the general veto power." 34 P.3d 302,307 (Alaska $001).b. An exhaustive opinion, which relies upon Charter soqrce documents, by formermunicipal attorney William A. Greene concludes the mlayor may veto amendmentsto ordinances. See Opinion No. 0 1-64.*c. In February 2000, Judge Eric

T.

Sanders of the Alaskq Superior Court upheld theveto by the mayor of the amended budget as approved by the Assembly, A0 99-124(S)(as amended). See Murdy, Carlson, Wohlforth

w.

Mystrom, Municipality ofAnchorage, Case No. 3AN-99-12398 CI.

,

d.

An

opinion written by former municipal attorney a d attorney to the CharterCommission and the Commission's Charter Producti

1

Committee, Richard

W.

Garnett, I11 states the mayor of the Municipality of An horage was to be a "strongmayor" and have the same veto power as the mayor of the Greater AnchorageArea Borough to veto "any ordinances. resolutions, motions, or other actions ofthe Assembly."See Opinion No. 75-29 at 3. Gamett asserted:

"A

strong mayorwith a miniature veto would not serve..

.

[this] purpod and is not, in my opinion,what the Charter created." See

id.

at

8-9.

e. In support of Garnett's opinion are letters from the Chair of the Anchorage CharterCommission, Frank Reed, Sr. and the Chair of the ChWer Production Committee,Shari T. Holmes, which both state the veto authority

bf

the mayor was to be thesame as existed under the Greater Anchorage Area Borough. Garnett's reliance onthe opinions of the chairs are supported by an early Alaska Supreme Court case:"[R]eports of committees and statements of chairmen o~f uch committees stand ona more solid footing, and may be resorted to indetiermining the intent of theenacting body."Starr

v.

Hagglurzd, 374 P.2d 3 16,319 (Alaska 1962).

B.

Limitations on broad general veto power

*

Further support of the mayor's broad veto powers are the few limitations expresslyenumerated in the Charier and state law:

(1)

Under Charter se~tion 6.03, the mayor maynot veto Assembly actions regarding the former Anchorage Telephone Utility;

(2)

theveto does not extend to an ordinance adopted under AS 04.111.501, he prohibition of thepossession of alcohol; and

(3)

under municipal code section 2130.100, the mayor may not

1

See

Attachment

A.

1

See

Attachment

B.

I

Mayor Mark BegichJuly 10,2006Page 3 of 3

veto actions of the Assembly concerning the adoption or abandonment of a manager planof government or actions of the board of equalization or the bcpard of adj~stment.~

C.

Application of the general veto power to amendments

tb

proposed ordinance

The mayor's broad veto powers apply to ordinances, resdlutions, motions, or otheractions of the Assembly.The veto of an ordinance, resolutipn, motion or other action,"must be exercised and submitted to the assembly with a mitten explanation withinseven days of passage of the ordinance affected." Charter 5.02(c).In the case of an amendment or amendments to an ordinance

by

motion: "[Tlhe Mayor..

.

[may] delete

an

amendment or..

.

eliminate an addition [to

ad

ordinance] when made bymotion.[Tlhe Mayor..

.

[may also] eliminate the substitytion of one ordinance orresolution for another." Opinion No. 01-64 at

1.

If the purpose of the veto is to prevent the amendment from becoming a part of theproposed ordinance the veto should be delivered immediately after the vote on theproposed amendment, and prior to a vote on the ordinance to which the amendmentattached.Doing so will allow the Assembly to vote to overdide the veto.

An

overridewill, of course, mean that the proposed ordinance is before the Assembly as amended.Failure to override will mean that the ordinance without the vetoed amendment is beforethe Assembly.If you wait to veto the amendment after the ordinance is pasged, the effect of your vetowill be to veto the entire ordinance. A veto of the amendr$ent will render the entireordinance void because there has been no vote by the Assembly to adopt the ordmancewithout the vetoed amendment. The options available to

the/

Assembly are to overridethe veto, adopt the original ordinance as submitted, or take no action which would resultin no ordinance taking effect.

See

Opinion No.

89-44

at

2

("After a veto the Assemblymust pass a measure over a veto or the measure dies").

CONCLUSION:

Under the general veto power, the rngyor is able to veto anyordinances, resolutions, motions, or other actions of the As~embly. The general vetopower is broad and has very few exceptions. If the mayor wishes to prevent anamendment from becoming part of a proposed ordinance, the mayor should veto thatamendment as soon as it is passed by the Assembly anq before the ordinance isconsidered by the Assembly. In that case the Assembly can ejther override the veto or ifit fails to do so, it can pass (or not pass) the ordinance without 4he amendment.

3

State law holds the veto does not extend to: appropriation items in a s$hool budget ordinance; actionsof the governing body sitting as the board of equalization, or the board of adjustment; or adoption orrepeal of a manager plan of government.

See

AS 29.20.270. These li&ts do not apply to home rulemunicipalities.

See

AS 29.10.200;

Repasky,

34 P.2d at 31

1

(holding the brohibition on vetoing a schoolbudget ordinance does not apply to home rule municipalities). Anchorae Municipal Code has adoptedtwo of these prohibitions in order to limit the mayor's veto power with re4ards to adopting or abandoninga manager plan of government, and actions of the board of equalization

ar

the board of adjustment.

See

AMC

2.30.100B. Certainly,

the

mayor cannot veto the Assembly's quasi~judicial ctions.

See SaundersProperties

v.

Municipality of Anchorage,

846

P.2d 135, 137 (Alaska 19