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To: Mayor Wiggins and City Council Members

From: Crystal C. Spencer, Chair
Pensacola Charter Review Commission

Date: August 10, 2009

Re: Response to Comments by Rusty Wells, City Attorney

On Friday at 3 p.m., Rusty Wells forwarded to Margaret Stopp and me Comments to the
Charter Review Commission’s Proposed Charter. Below is the response to each item that he
raised.

MAYOR

1. Section 4.01(a)(7): Rusty Wells’ observation relates to who has the power to
determine “just cause.” The first sentence of the Section states “The mayor…shall have the
following powers and duties:” It is the mayor who has the power to suspend, reduce or remove a
department head for just cause without the consent of City Council members. Thus, the language
is clear that it is the Mayor who determines “just cause”. A discharged employee could challenge
the discharge in court.

2. Section 4.01(a)(9): If the veto power of the mayor is not clear, then the city
attorney can suggest some clarifying language. As it is stated in the proposed Charter, if the total
effect of line item vetoes in a budget or appropriation ordinance result in expenditures which
exceed revenues, then all of the vetoed line items are null and void. The vetoed items would
remain 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 COUNCIL

4. Section 4.02(a)(3): As I recall the discussion of the CRC, the intent was to create
a 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. The
legislative branch creates the administrative structure and the mayor as the executive branch runs
the City departments pursuant to that structure. If the mayor finds that there is a problem with
the structure established by City Council, the mayor can work with the Council to change the
ordinance 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-council
form 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 be
considered 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 section
112.3143 of the Florida Statutes and do not think that this section prohibits setting of salaries and
raises in annual budgets.

CITY COUNCIL PROCEDURES

6. 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 Procedures
of the City Council state the Council normally meets the second and fourth Thursday of the
month. 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 encompass
electronic devices. However, if this is a debatable issue, the language can be changed to reflect
the 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 is
written, if only four Council members are present, three could approve action items.

8. Section 4.03(e): Typographical error noted (“appropriate” versus
“appropriation”).

PROHIBITIONS

9. Section 4.04(a) and (b): The observation is that there is no penalty for a Council
member 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 this
Charter, he or she shall forthwith forfeit the office, and council shall remove him or her from
office.”

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 the
City.”), then the sentence “There shall be a City Administrator” can be added.

DEPARTMENT HEADS

11. Section 5.04: Mr. Wells’ first observation is that it is not clear whether the
mandate 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 the
City 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 is
not a pure “strong mayor” form of government. See §3.01 of the draft Charter.

CITY BOARDS

12. Section 5.05(a): Since the Civil Service Board and Fire Pension Board are
created 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 12
meetings 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 QUALIFICATIONS

14. Section 6.03(a): If an elected Council member or Mayor no longer meets the
qualifications set forth in the Charter, then the office is forfeited and the Council has the duty to
remove 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 immediately
forfeit his or her office." The draft Charter adds to this language, requiring the City Council to
remove 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 (sworn
Affidavit) that the candidate meets the qualifications to run for office. It is perjury to lie in a
sworn Affidavit, and can be prosecuted.

ELECTION PROCEDURES

15. Section 6.04(f): If incumbency needs to be on the ballot, this detail might be part
of an ordinance that more fully details election procedures. It could also be added to the draft
Charter without changing the intent of the document.

QUALIFYING OATH

16. 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
Statutes as the form for candidate oath. Section 117.05(13) of the Florida Statutes contains the
forms for notarizing documents and states in pertinent part “The specification of forms under this
subsection does not preclude the use of other forms.” The legislature chose another form for
candidate qualifying oath notary requirements.

QUALIFYING BY PETITION

17. Section 6.06(c)(ii): Use of the phrase “ideal district population” is from the
current Ordinance, §2-5-9(c). See also Section 99.09651 of the Florida Statutes. Note also that
this provision only applies in the election year after the decennial census.

References to the Supervisor of Elections could be changed to Qualifying Officers
because this is determined by Interlocal Agreements and Ordinances.

REDISTRICTING

18. Section 6.08(c): Redistricting is within the purview of the City Council.

19. Article VII: Under the current Charter (Section 15), citizens can institute
Referendum proceedings only if an ordinance is not more than 60 days old. The draft Charter
allows a challenge to ordinances at any time. This is in line with Hialeah Charter (Section 6.02)
and St. Petersburg Charter (Section 7.02). It gives more power to the people than the current
Charter provision.

20. Section 8.03: The City Attorney would be in the best position to identify
ordinances if Council thinks that is a better approach.

21. Section 10.02: If in the opinion of the City Attorney the section on “no
discrimination” could prove problematic, it does not have to be in the Charter. The provision on
nondiscrimination is similar to the one in the Hialeah Charter, Section 7.01.

OTHER COMMENTS BY CITY ATTORNEY

1. The non-voting mayor was thoroughly discussed by the CRC as well as member
of the public, including its implications in the governance of the City.

2. The decennial census will be available for the next election and can address issues
of minority versus majority representation with the location of district lines.

3. The specificity of the Charter review every ten years was in response to the failure
to have Charter review since 1931, and to provide a framework for Charter review based upon
this most current experience. It should also be noted that it took the CRC 18 months to review
the 1931 Charter because of the failure to have more regular reviews of the current Charter. If
the City Council wants to add a provision giving it review authority over amendments proposed
by the Charter Review Commission, this can be done but would seem to fly in the face of the
Citizen Commission process.
It should also be noted that Charter amendments could be initiated by Ordinance
and by Petition at any time.

SUGGESTED CLARIFICATION

See Section 6.04(a). For clarity, Margaret and I believe that the following phrase should
be added after "The general election for contests between two candidates" -- ", and the runoff
election for candidates receiving the greatest number of votes, but none receiving a majority,"
and then continue with "shall be held on the date…”. In reviewing the last draft, we believe the
phrase was inadvertently left out.

Respectfully Submitted,

Crystal C. Spencer, Chair
Pensacola Charter Review Commission

Margaret Stopp, Attorney
Pensacola Charter Review Commission