Officeof City Attorney

America's First Settlement Established 1559

MEMORANDUM

TO: FROM:

Mayor and City will-iam D. we.

Council'c--

ciry Arrorney'%-DATE: RE: August 7, 2OO9 the Charter Review Commission's

Comments Regarding Proposed Charter

the proposed I review that. has requested Mayor Wiggins in the scheduled Council to assist and be prepared Charter that may In doing so, I have found several- provisions workshop. t.he Councilbecause discussion by and attention require not or provision incomplete, ambiguous, appears particular understood or implement.ed. clear as to be readily sufficiently My comments are as follows: MAYOR
the Mayor to allows 4.01(a) (7) - This provision 1. Section just without cause" head "for or remove a department discipline hreads are department Council. Currently, of the consent Manager and may be discj-plined of the City employees contractual just is an the State of Florida cause, since or removed without heads are conLractualstaLe and department wil-l-" employment "at protectj-on. fn the Service and are exempt from Civil employees whether head over by a department of a dispute event "just whether provisi-on specify does not Charter exists, this cause" Courts that determine the Mayor, Council or the the it is of what the definition exists or cause" whether "just "jusL cause" is going to be.

PO. Bor 12910

32521

180Gouernmenta.I Center

F'lorida (850) 435-1615 FAX (850) 595-1290 Pensacolq,,

Mayor and City Council August. 7, 2OO9 Page 2

alIows the Mayor to 2. S e c t i o n 4 . 0 1 -( a ) ( 9 ) - T h i s p r o v i s i o n ordinance, item in a budget or appropriat.ion veto any line of al-l- of the vetoes "would be to cause effect unless the total .." in which case all of the to exceed revenues expenditures if the here is that The lack of clarity vetoes become void. proposed to it is difficult. expenditures, vet.oing is Mayor process of in result a lowering how that could understand would ever be triggered. revenues or whether this provision that the Although the Charter specifies Section 4.01 3. and a City Attorney a City Administrator, Mayor is to appoint it does not specify who has the power to hire, department heads, and fire City employees below the rank of department. discipline administrative type of intermediate head, or whether any other above the personnel but below the position of Administrator The current, Charter position of department head are authorized. provides that t.he City Manager "shall- have the power to appoint in t.he administrative and employees officers and remove all services of the City."
CITY COUNCTL

authori-zes the City 4. Section 4.02 (a) (3) - This provision to determine t.he organization of the City and the Council itself however, the departments; power and duties assigned to various with the would seem Lo be in conflict exercise of this authority (a) (1) to exercise power provided to the Mayor in Sect.ion 4.01powers of the Cit.y and supervise all- departments. the executive between the Mayor and the City Council, In the event of disputes in provisions ambiguity create a substantial these two Charter of the Mayor and Council-. the aut.hority Sect,ion +.02(c) provides 5. each year in the own compensation voting an inherent order to avoid of a governing body determine the after t.heir current to t.ake effect
CTTY COUNCTL PROCEDURES

that the Council- must set its in Normally, annual- budget. members confl-ict of j-nterest, offices compensation of their has ended. term of office

City 4.02(a) This section requires the 6. Section Experience over time Council to meet at l-east twice each month. for that it may not be practical or feasible has demonstrated meetings to occur in this manner, because of the press of other and involving calendar conflicts, Councj-1, seasonal business

Mayor and City Council August 7, 2009 Page 3

hurricanes. Ful-f illment of this Charter provj-sion would not an impossibility; however, it, would appear on many occasions be unnecessary.

be to

7. Section 4.03 (c) This provision pertains t.o the City Council's voting and quorum requiremenLs, and I have two observations. proposed Charter First, t.he requires a ..rol1 ca11" vote with the resul-t.s to be .'recorded in the j ournal . ,, process currently This is an antiquated followed in Congress and it has been long superseded in the City with our el-ect,ronic tally devices and the Clerk's Reports of Council- Action that are written and permanently recorded. A ro11 call- vote merely contributes Lo the length of the meeting. Also, subsection provJ-des Lhat an actj-on of Council this can be binding upon Council when it is adopt.ed by a majority of a quorum present.. This means t.hat of a seven member Council, t.hree members may bind the Council as a whol-e, unl-ike the present procedures which require a majority of Council to bind Bo matter how many members may be present. Council,
8. t.ypographical SecLion error, 4.03 (e) "appropriate" The third should be line contains "appropriation. "

PROHIBITTONS

prohibit 9. Sectj-on 4.04 (a) and (b) These provisions the members of City Council from interfering with t.he officers and the Mayor. employees of City except through the However/ unlike t.he present Charter, significantly, the proposed Charter provides no penalt.y for a Councilmember's violation of these prohibitions. The currenL Charter provides that a viol-ation by a member of Council shal-I constit.ute resul-t in a misdemeanor and the forfeiture of office. CITY ADMINISTRATOR
10 . provides Section This section 5 . 02 f or a Cit.y Administralor to appointed be by Mayor,. however, the this not section is clear as to whether of t.he posit.ion City (as is the positj-on is mandatory Administrator of City C1erk) or discret.ionary.

Mayor and August 7, Page 4

City Council 2OO9

DEPARTMENT HEADS

provides 1l-. 5.04 This section that department Section residency heads musL be residents of the City or establish proposed Although wj-thin s j-x monLhs of appointment. this would be a l-awful- requirement, it. is unclear Charter requirement whether this provision is to apply to those department heads who are incumbenLs at t,he point. in time when this Charter woul-d take In addition, the section provides that the City Council effect. and shall determine the organization of the City and the duties which has responsibilities assigned to the various departments, with the power of the Mayor to exercise a measure of conflict powers executive of the City and supervise all departments reflected in Section 4.01 (a) (1) . CfTY BOARDS This section requires that all 12. Section 5.05 (a) report it boards shall to the City Council, but does not for what purpose. The Civil Service Board and Fire indicate Pension Board are established by Special Act and are expressly independent of the City Council- in many respects. 13. Section 5.05 (b) This provision requires that members any City board wil-1 aut.omatically f orf eit t.heir board of membership if they are absent three during times a calendar year, in the event that the board meets monthly. Experience has generate shown that this requirement will a much greater previously frequency board appointments has been of than experienced. MAYOR AND COUNCIL QUALIFICATIONS 1-4. Section 6.03 (a) provides for the qualifications for Mayor and City Council. The current Charter requires a six period month residency reguires and the proposed Charter a one year residency requirement, and the proposed Charter states that possess if a Mayor or member of Council ceases that to qualif ication posit j-on j-s during a term f ice, of of the J-mmediately forfeited. Although t,his provision sLaLes that the Council "shal-I remove him or her from office, " a significant provision missing element of this is an identificatj-on of the whether entity that determines a candidate for Council 1s qualified or not. This issue comes up more frequently than may musL ident.ify whether it is be assumed, and the Charter Lhe

Mayor and City Council August. '7, 2OO9 Page 5

(as t.he present Council itself Charter provj-des) or some other entity such as a circuit c o u r t r , that makes the deLerminat.ion of qualif icat.ion.
ELECTION PROCEDURES

15. Section 6.04(f) This provision specifies that names of candidates shall be placed on the bal_lot alphabeticalorder, but it does not provide an indj-cation incumbency if one of the candidates is an incumbent.
QUALIFYTNG OATH

the in of

15. Section 5.05 (b) The form of notary provided by proposed is defective Charter under Florida law in that does not certify notary that the oath the person executing proper provided identification or is personally known to notrary. QUALIFYING BY PETITION 1-7 . qualifying reference otherwise

the the has the

process f or f or a petit.i-on Section 6 .06 provides proposed makes Charter as a candidate, and the population" or defining without to "the ideal district what. that phrase is intended to mean. explaining

REDTSTRICTING

pertains the to This provision 6.08 (c) 18. Section for process and makes reference to a requirement redistricting what this without. defining or stating representation" "effective phrase is intended to mean. ' 7. O 7 a n d 7 . 0 8 . These secLions lay 1-9. Section 7 .05, 7 .06, to apply, time l-imits out the steps to be fol-l-owed, and certain of the City an action for a referendum where voLers can overturn David for Supervisor of Elections leave it f will Council. can conduct to provide his input on whether his office Stafford by Council. within sixty election days of notification City a process is the absence current in this However, a major defect which is being by t.he Council- action triggered of a deadline petit.ions, for gathering Although there are deadlines opposed. there is a disconnect them and conducting an election, verifying and the date Council- action between the date of the challenged Charter in. The current petitions must be turned by which the

Mayor and City Council August. 7, 2009 Page 5

provides for the petitions (60) days to be in hand "within sixty of effective the date of any action by the City Council.,, Without such a specified deadline, dD open invitation is extended t.o challenge any Council action at any time without cl-osure, and the effects upon the need for finality, particularly in the awarding of contracts and issuing of bonds, would be chaotic. 20. Section 8.03 This section provides for the repeal of continuation as ordinances of provisions the current Charter with Rat.her t.his "which are not inconsistent. [new] CharLer. " repeal than leaving the continuation current or of Charter provisj-ons to future disputes not over what. is and what is practice would be simply to identify the inconsistent. a better few sections that of the current Charter should be carried forward as ordinances. 10.02 provides 21,. Section that the Council shal1 not toferate or that. woul-d condone, adopt any measure or policy of encourage "discrimination, " but the nature or characLeristic is not identified and there is or specified that discrimination penalty. This Lype of undefj-ned general statement no specified t,o a basis for a wide-range of challenges may serve to provide in may feel is, that. some citizen many types of Council action some manner, "discriminatory."

const.it.ut.e the sectj-ons of The above enumeraLed paragraphs ambiguous, proposed Charter that I believe are conflicting, the may require improvement some type of defect that or contain provision applied or could be effectively before the particular provisions of however, several other There are, implemented. and proposed may warrant some discussion that Charter the process. your deliberat.ive Councilby during consideration length, this memorandum to any significant Without extending are: these provisions which It is ironic that this Council, 1. greater government in the lengths to create public participation is and transparency, a form of government that. relies upon consider out. of the Sunshj-ne, Councilmember meetings process. legislat.ive has gone to great Sunshine and more to being asked one-on-one MayorEhe to accomplish

Mayor and City Council August 7, 2009 Page 7

2. The current (including strucLure of three at-large the mayor) and seven single member dJ-stricts, dj-st.ricted in a manner provide to f or thirt.y percent of t.he erected seats of the governmental body to be predominantly minorj-ty districts, was the result of a consent decree resolving a longstanding voting rights challenge which was approved by the federal court and has subsequently expired. The proposed change to seven single member districts provide may likeIy the basis for a Voting Rights Act challenge of voter dj-lution if the minority districts are reduced to two out of seven, or subject to challenge in the minority percentage event t.hat the is of vot.er strength significantl-y enhanced by allocating three out of Lhe seven to predominantly minority districts. The Charter Review Committee proposal did consj-der a for retaining seats in two at large with conjunction the exist.ing seven single member seats which proportion would produce a 33 I/32 minority voting strength and would likely withst.and any challenge that was made; however, by the Charter Review Commission upon this proposal was rejected a divided vote. in the proposed Charter 3. There are a number of details For example, this for by ordinance. are commonly provided that detail-ed proposed and highly contains an extensive Charter must foIlow in future conducting which Councils requirement proposal This the to come. reviews over decades Charter how many members of precisely occur, when they will specifies wil-l- be, how t.he Chart.er Review Commissions there t.he future a period of seven months vacancies will be fil-l-ed, it allocates CRC Lhe current CRCs to complete t.heir work (whiIe f or future that the and a requirement L7 months), required approximately placed on a baIlot no input from the as-is, with be CRC report and Given the extent of some of the ambiguities City Council. proposed Charter, after 17 that appear in the current defects appear to be months of hard work and st,udy by the CRC, it would to make the opportunity to allow fut.ure Councils very desirable proposals before and improvements in future Charter corrections accomplish this task is to One option to they are finalized. have what many municipalities include in t.he proposed Charter Charter for a mandatory simply to provide is done and that in the future, attempting to unduly without review periodically j-t,1zens long af ter you Councils and c tie the hands of future have lef t. of f i-ce.