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MEMORANDUM

To: Mayor Francis Suarez


From: Eddy Leal, Esq.
Re: Veto Authority of the Mayor
Date: Wednesday, January 8, 2020

Question Presented

On December 24, 2019, the City Attorney for the City of Miami issued a legal
opinion holding that the Mayor’s veto power did not extend to “executive” or
“administrative” (including “directives”) decisions by the City Commission. You
have asked me to provide an assessment of the City Attorney’s legal memorandum.

Brief Answer

The City Attorney’s legal memorandum that attempts to draw a distinction


between legislative matters to curb the Mayor’s veto power is not supported by a
reasoned analysis of the law. The legal memorandum omits a published decision that
expressly holds that a mayor’s veto power extended to “executive” or
“administrative” actions of a commission. Furthermore, the plain language of the
Charter and Code for the City of Miami does not support the conclusion in the legal
memorandum. Upon review of the cited cases in the legal memorandum and
additional research, the veto power of the Mayor for the City of Miami extends to
“administrative” or “executive” decisions by the City Commission.

Analysis

1. Mayor’s veto power extends to “executive” or “administrative” decisions.

Section 4 of the Charter for the City of Miami provides an expansive veto
authority for the Mayor of the City of Miami.

The mayor shall, within ten days of final adoption by the city
commission, have veto authority over any legislative, quasi-judicial,
zoning, master plan or land use decision of the city commission,
including the budget or any particular component contained
therein which was approved by the city commission; provided,
however that if any revenue item is vetoed, an expenditure item in the
same or greater dollar amount must also be vetoed.
Section 4(g)(5) of Charter (emphasis added). The veto power shall also include
actions pursuant to section 29-B through 29-D of the Charter. Id.

The City Attorney’s legal memorandum holds that “not all decisions [by the
City Commission] are subject to veto.” It attempts to create a subset of legislative
actions, including “executive” or “administrative” decisions and directives of the
governing body, that are not subject to veto authority.

The plain language of the Charter for the City of Miami rejects the ability of
the Commission to issue an “administrative” decision. Section 15 of the Charter
provides that:

The city manager shall be the head of the administrative branch of


the city government. ... The city manager shall be responsible for the
administration of all units of the city government under the city
manager's jurisdiction, and for carrying out policies adopted by the city
commission.

Section 15 (emphasis added). The City Commission does not contain the power to
issue “administrative” or “executive” decisions, as that power is found in the city
manager.

Except for the purpose of inquiry and as may be necessary as provided


in section 14, the mayor, the city commission, any committees and
members thereof shall deal with the administrative service solely
through the city manager, and neither the mayor nor the city
commission, nor any committees nor members thereof shall give orders
to any of the subordinates of the city manager, city attorney, city clerk
and independent auditor general, either publicly or privately.

Section 4(d) (emphasis added). Section 4(a) confirms the plain reading of the
Charter: “city commission shall constitute the governing body with powers (as
hereinafter provided) to pass ordinances adopt regulations and exercise all powers
conferred upon the city except as hereinafter provided." (emphasis added). The
City Charter grants the “administration of all units of the city government” to the
city manager and therefore, the city commission does not have the power to issue
“administrative” or “executive” decisions.

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Furthermore, appellate courts in Florida have rejected the City Attorney’s
argument. For example, the Fourth District in Donmar Corp. II v. City of W. Palm
Beach, 740 So. 2d 48 (Fla. 4th DCA 1999) rejected the argument that the Mayor of
City of West Palm Beach was granted the power to veto only some ordinances and
resolutions.

To the extent that a comparison of the Charter between the City of Miami and
City of W. Palm Beach is necessary, the veto power for the Mayor of the City of
Miami is broader as it contains no exclusions unlike the charter for the City of W.
Palm Beach. Unlike the Charter for the City of Miami, the Mayor for the City of W.
Palm Beach does not have the “power to veto emergency ordinances or any
enactments relating to the emergency appropriations or emergency borrowing.” Id.
This explicit exclusion to the veto power (or any exclusion for that matter) is not
found in the Charter for the City of Miami.

The Donmar holding also questions the City Attorney’s rationale that Section
166.041 of the Florida Statutes somehow supports a reduction in the Mayor’s veto
power. Donmar held that the definitions found in Section 166.041 do not create a
“conflict with the mayor’s veto power.” Id. at 49. The Donmar court affirmed the
trial court’s ruling that any action of the legislative body which is not an ordinance
– whether a direction, motion, order or formal written resolution – is a “resolution,”
and is therefore “legislation” and subject to the power of the mayoral veto.

The legal opinion refers to the legislative item as a “directive.” However, no


basis exists for this description. Indeed, the legislation item is a “resolution” with
file number 6965 and resolution number R-19-0522. Furthermore, the written
documentation submitted to the Mayor for signature or veto referred to the item as a
“resolution.”

A legislative body’s use of semantics to circumvent the Mayor’s veto power


is improper. See 1979 Op. Att'y Gen. Fla. 48 (1979) (cautioning that a commission
may not avoid a charter requirement, which subjects’ ordinances and resolutions to
the mayor’s veto by calling the act a “motion” rather than a “resolution”). In short,
the attempt to draw a distinction between legislative actions to curb the Mayor’s veto
power has no legal basis.

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2. Section 2-36 of the Code of the City of Miami further supports that the
Mayor’s veto power extends to “executive” or “administrative” decisions.

Section 2-36 of the Code of the City of Miami provides as follows:

Each ordinance and resolution adopted by the commission shall


contain a place for noting mayoral approval or veto, and
commission override, if applicable. The mayor may indicate approval
of any ordinance or resolution by signing it in the place provided, or the
mayor may permit the item to become effective in accordance with its
terms by allowing ten days to elapse without exercising a veto.

Section 2-36(1) (emphasis added).

The City Attorney’s memorandum argues that “if applicable” in Section 2-36
of the Code of the City of Miami somewhat reduces the universe of legislative items
subject to veto power. No basis exists for this so-called “plain language”
interpretation. When using fundamental grammar rules, the term “if applicable”
modifies “commission override” (and not the veto power of the Mayor). That is, the
Commission passes an ordinance or resolution, the Mayor may exercise his veto
right, and the Commission may override the veto. Hence, the notation for
“commission override” is conditional depending on whether the veto is overruled.

Furthermore, Section 2-36 uses mandatory language; each ordinance and


resolution adopted by the commission shall contain a place for noting mayoral
approval or veto. Under a plain language reading of the City Charter, the Mayor’s
veto power is not restricted, and it is available in “executive” and “administrative”
decisions.

3. Moreover, the Commission’s attempt to fire the City Manager resulted in


stigmatizing information being published about the City Manager and thereby
triggering a quasi-judicial decision from the Commission and subject to the
Mayor’s veto power.

During the code compliance discussion and ultimate unsuccessful attempt to


terminate the city manager on December 12, 2019, members of the Commission
published stigmatizing information about the city manager. Buxton v. City of Plant
City, Fla., 871 F.2d 1037 (11th Cir. 1989) (holding that the presence of stigmatizing
information placed in the public employee’s personnel file constitutes sufficient

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publication to implicate the liberty interest under the due process clause of the 14th
amendment to the United States Constitution).

The due process requires notice and a hearing, and it therefore makes the
hearing judicial or quasi-judicial in nature. Modlin v. City of Miami Beach, 201 So.
2d 70 (Fla. 1967) (explaining that the difference between executive and judicial or
quasi-judicial power is more subtle; purely executive is power authorized to be
exercised on the personal judgment of the acting authority but where notice and
hearing are required and action is based upon the showing made at the hearing the
action is judicial or quasi-judicial). The Commission’s insertion of “stigmatizing
information” rendered the decision a quasi-judicial one. And Section 4 of the Charter
for the City of Miami expressly provides that the Mayor can veto quasi-judicial
decision from the Commission.

4. None of the cases cited in the legal memorandum hold that “executive” and
“administrative” decisions issued by the City Commission may not be vetoed
by the Mayor.

The City Attorney’s legal memorandum first cites to Barnes v. City of Miami,
47 So. 2d 3 (Fla. 1950) to explain the definition between “legislative” and
“administrative.” The selection of a decision published more than 50 years ago that
makes no reference to veto power is peculiar. The Barnes court reviews the ability
of a referendum to be submitted to the residents for approval. The challenging party
claims that the ordinance, which the voters will be called on to adopt or reject at the
election, is wholly administrative in nature and hence is not the proper subject for
an election under the charter.

The Court ultimately approves the proposed referendum, regardless of


whatever may be the extend of the City’s power under the initiative provision of its
charter. In other words, the Supreme Court of Florida refused to apply or
manufacture a distinction to the Charter of the City of Miami between “legislative”
and “administrative.” Here, the City Attorney now seeks to draw a distinction in the
veto power of the Mayor citing a decision that rejects such an invitation.

The City Attorney’s legal memorandum cites to a string of cases to support


the statement that “in certain circumstances such as in appointments, terminations,
and directives, the City Commission acts in a non-legislative capacity, which may
arise from the executive or administrative functions of the governing body.” See De
Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957); Bd. of Pub. Instruction of Dade County
v. McQuiston, 233 So. 2d 168 (Fla. 3d DCA 1970); Gershman v. Florida Elections

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Com'n, 127 So. 3d 686 (Fla. 4th DCA 2013); Fisher Island Holdings, LLC v. Miami-
Dade County Com'n on Ethics & Pub. Tr., 748 So. 2d 381 (Fla. 3d DCA 2000);
Tenney v. State Comm'n on Ethics, 395 So. 2d 1244 (Fla. 2d DCA 1981). None of
the cited cases discuss the veto power of the Mayor. The cited cases exclusively
focus on a governing body terminating a classified employee or dismissing appellate
review of a decision declining to exercise jurisdiction in an investigation. The cited
cases have no application to whether the Mayor can exercise the veto power and are
a “red herring.”

Conclusion

After a review of the cited cases in the City Attorney’s legal memorandum
and additional research, the veto power of the Mayor of the City of Miami extends
to “administrative” or “executive” decisions by the City Commission.

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