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HomeMy WebLinkAbout2010 10 25 Regular 602 Legal Opinion Of Proposed Lame Duck City Charter Amendment COMMISSION AGENDA Consent ITEM 602 Informational Public Hearing Regular X October 25, 2010 MGR /DEPT. , Regular Meeting Authorization l�l t� I REQUEST: The City Attorney presents his formal written legal opinion regarding the application of the proposed "Lame Duck" City Charter Amendment on the incumbent Mayor and City Commissioners if approved by the City Electors on November 2, 2010. SYNOPSIS: The City Commission proposed a City Charter Amendment which will require that future newly elected mayors and city commissioners be sworn in at the next' special or regular City Commission meeting after the election ( "Lame Duck" Charter Amendment). The City Attorney's opinion which is attached to this agenda is that if Lame Duck Charter Amendment is approved by the voters on November 2, 2010, the amendment shall be effective immediately and shall apply to the incumbent mayor and city commissioners resulting in their terms being shortened by approximately one month. CONSIDERATIONS: 1. The City Attorney's written legal opinion is attached to this Agenda Item. FISCAL IMPACT: None. COMMUNICATION EFFORTS: No communication efforts beyond the advertising of the Commission Agenda are necessary in conjunction with this Agenda Item. Advance copies of this Agenda Item were distributed to the Mayor, City Commission, City Manager, City Clerk, Mayor- elect Lacey and Commissioner -elect Resnick on October 15, 2010 by email. RECOMMENDATIONS: The City Attorney recommends that the City Commission accept the attached legal opinion. In addition, if the "lame duck" charter amendment is approved by the city electors, the City Commission should direct the City Manager and City Clerk to schedule the swearing in of Mayor -elect Lacey and Commissioner -elect Resnick after the November 2, 2010 election, but on or before the next scheduled City Commission special or regular meeting. ATTACHMENTS: City Attorney letter dated October 15, 2010 B BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. lor Attorneys at Law 111 N. Orange Ave., Suite 2000 Anthony A. Garganese P.O. Box 2873 Board Certified City. County & Local Orlando, Florida 32802 -2873 Government Law Phone (407) 425 -9566 Fax (407) 425 - 9596 agarganese@orlandolaw.net October 15, 2010 Mayor John F. Bush and Members of the City Commission City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 Re: Application of the "Lame Duck" Charter Amendment if Approved by the Voters Dear Mayor and City Commission: This letter addresses the future application of the proposed "lame duck" city charter amendment if approved by the citizens of Winter Springs on November 2, 2010. That proposed amendment (if approved) would amend Article IV, Section 4.01(a) and 4.03 of the City Charter and require that newly elected mayors and commissioners be sworn into office at the next special or regular city commission meeting rather than the current requirement of the first Monday after the first day of December. In essence, the proposed amendment eliminates the one month "lame duck" status of any outgoing mayor or city commissioner. A consequence of approving the proposed amendment will be to reduce the term of office of any mayor or city commissioner elected prior to the effective date, of the "lame duck" amendment by approximately one month because the swearing in of the newly elected mayor or city commissioner would occur at the next special or regular meeting of the City Commission in November and not in December. Given this shortened term, I have examined whether it is legally permissible to apply the "lame duck" amendment to the existing mayor and city commissioners or whether the "lame duck" amendment would have to be implemented over two election cycles so that terms of the existing mayor or city commissioners are not reduced. For the reasons expressed below, it is my opinion that upon approval of the "lame duck" amendment by the citizens, it should be applied immediately to the existing mayor and city commissioners. A city charter represents the will of the people regarding their city government. With several minor exceptions, a referendum of the city electors is required to amend a city charter. §166.031, Ft. Lauderdale (954) 670 -1979 • Kissimmee (321) 402 -0144 • Cocoa (866) 425 -9566 Website: www.orlandolaw.net • Rmail: firm@aorlandolaw.net �> October 15, 2010 Page 2 Fla. Stat. Terms of elected officers and the manner of their election are set forth in the city charter and must be approved by referendum. See § 166.021, Fla. Stat. An elected official does not have a vested, personal, or contract right to a particular elected office. See Crenshaw v. United States, 134 U.S. 99 (1890). Thus, a term of a charter officer which has been established by city charter can generally be shortened or lengthened by charter amendment and. referendum. See 3 McQuillin Mun. Corp. §12.114 (3'd ed.); See also, 63C Am. Jur. 2d Public Officers and Employees §139 (a legislature that creates a public office has the power to modify the term of such office in the public interest even if such change is done during an incumbent's term in the absence of constitutional inhibition); Higginbotham .v. City of Baton Rouge, 306 U.S. 535 (1939) (recognizing the "familiar principle" that a legislature with respect to officers within its reach can abolish, modify, shorten or lengthen the terms of such officers unless constitutionally prohibited). Several jurisdictions around the Country have upheld shortening or abolishing the terms of incumbent mayors and council members. For instance, in City of Birmingham v. Graffeo, 551 So. 2d 357 (Ala. 1989), the Alabama Supreme Court upheld shortening the terms of council members due to legislation that converted the city's at -large voting scheme to single member districts. Similarly, a Pennsylvania court upheld shortening a four year term of a city council member in light of a charter amendment which changed the city's at -large voting scheme into several single- member districts. Further, in Town of Glenarden v. Bromery, 262 A.2d 60 (Ct. App. Maryland 1970), a Maryland court upheld a number of charter amendments that resulted in a mayor and a set of councilmen being replaced by a new mayor and a new set of councilmen in the beginning of their new terms. While I could not find any similar Florida cases that address the "shortening" of the term of a mayor or city commissioner by charter amendment, the Florida Attorney General has opined that a city charter amendment can "extend" the terms of a current mayor and commissioner by one additional year in order to stagger terms from 2 to 4 years. See AGO 2009 -47. Notwithstanding the lack of specific Florida cases involving a mayor or city council member, there are several applicable Florida cases that specifically address the shortening of terms of other kinds of elected offices. For example, in Hall v. Strickland, 170 So. 2d 827 (Fla. 1965), a Dade County charter amendment was adopted that changed the method of selecting municipal judges. Upon voter approval of the charter amendment, the positions of the incumbent judges were terminated and new judges subsequently selected under the new method. The Florida Supreme Court upheld the amendment because the amendment made such a substantial change to the method of selecting municipal judges as would justify terminating the tenure of incumbent judges prior to the expiration of their terms. In addition, the case Reynolds v. Roan, 213 So. 2d 425 (1968) provides guidance regarding the validity of shortening the terms of incumbents. In Roan, the Florida Supreme Court considered whether or not a particularly worded constitutional amendment could shorten the term of a school superintendent. Although the Court found in this case that the wording of the constitutional amendment could not shorten the term of an incumbent superintendent, the Court relying on Hall v. Strickland applied the general principle: October 15, 2010 Page 3 [Tjhe sovereign power creating the office -in this case, the people speaking though the Constitution -can abolish it at will, or the term of office may be shortened, including that of the incumbents, when this becomes necessary in making a fundamental change in office. (citations omitted). But we think that an intention to apply the shortened term of an office, or the changed qualifications thereof, to an incumbent, resulting in his ouster from the office before the end of his term, must be clearly expressed in the statute or constitutional amendment making the change before it will be given that effect. Id. at 428. (bold emphasis added). The Hall and Roan decisions are consistent with the general principles and cases cited above that a charter amendment can legally shorten the terms of an incumbent elected charter officer. Therefore, in accordance with Hall and Roan, a court will likely uphold the shortening of an elected charter officer's term if the charter amendment makes a "fundamental change in office" and it is "clearly expressed" in the amendment that the change is intended to apply immediately to an incumbent. In this instance, the "lame duck" charter amendment is a fundamental change in office and if approved, it is intended to apply immediately upon adoption. Unless otherwise provided in a city charter, a charter amendment approved by the city electors is effective on the date specified in the charter amendment. See § 166.031(2), Fla. Stat. In this case, the "lame duck" charter amendment is proposed in Ordinance No. 2010 -19. Section 17 of the Ordinance clearly expresses that any charter amendment approved by the city electors "shall only become effective, independent of any other ballot proposal, if a majority of the registered electors of the City of Winter Springs, Florida, who vote at the referendum election required by this Ordinance, approve the specific ballot question." Therefore, there is a clear intent that all of the proposed charter amendments set forth in Ordinance 2010 -19, including the "lame duck" amendment, shall become immediately effective (without delay) if approved by the registered electors of the City. Further, the "lame duck" amendment also does not exempt incumbents from its application. Had the Charter Review Committee and the City Commission intended to exempt incumbents from the "lame duck" amendment, they could have easily proposed the exemption and incorporated it into the proposed amendment. They did not. As such, it is my opinion that the "lame duck" charter amendment, as well as any of the other charter amendments, is intended to apply immediately to the incumbent mayor and city commissioners. Turning now to whether the "lame duck" amendment is a "fundamental change in office," it is my opinion that it is because it goes to the heart of governance decisions of the City Commission. If approved, the "lame duck" amendment will prohibit any outgoing City Commission from acting on any matter that could potentially bind the incoming City Commission because the swearing in of the newly elected mayor of commissioners must take place at the next special or regular commission meeting. This is a fundamental and very significant change in the way future City Commissions will conduct City business. In addition, although lame duck bodies can lawfully act within the scope of their authority until lawfully replaced, actions by lame duck bodies have a long history of being questioned as a matter of bad or unwise public policy for a variety of reasons. For example, the Twentieth Amendment of the United States Constitution adopted in 1933 was October 15, 2010 Page4 intended to abolish lame duck sessions of Congress because ofthe long- standing popular outcry over the actions of defeated or retiring officials during the period after an election and before the inauguration of their replacements. See Copeland, A Twentieth. Amendment Parable, 72 N.Y.U.L.Rev. 470 (May 1997). Members of lame duck Congresses suffered from perverse incentives and once defeated, members were unaccountable to the electorate. Id. at 479. More importantly, the actions of lame duck Congresses were seen as inconsistent with representative democracy. Id. at 480. Additionally, the court in in Cucci v. Introcaso, 527 A.2d 960 (N.J. Sup. Ct. 1986) commented on the "unwise public policy "of a "lame duck" mayor and city council to approve appointments before a new administration takes office. In support of its policy view, the court cited by way of example, the closing days of President John Adams' term where he appointed 50 Federal judges at "midnight" before President Thomas Jefferson took office. Id. at 424. Accordingly, it is my opinion that the "lame duck" charter amendment is a fundamental change in the office of the mayor and city commission and it is intended to apply immediately upon approval of the electors of Winter Springs even though the result will be to shorten the term of the incumbent mayor and city commissioners by approximately one month. Consequently, if the "lame duck" charter amendment is approved by the city electors, it is my recommendation that the City Commission direct the City Manager and City Clerk to schedule the swearing in of Mayor -elect Lacey and Commissioner -elect Resnick after the November 2, 2010 election, but on or before the next scheduled City Commission special or regular meeting. I look forward to discussing this opinion at the next City Commission meeting. Sin el , Anthony A. Garganese City Attorney cc: City Manager (via email) City Clerk (via email)