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HomeMy WebLinkAbout09-26-2013 Parliamentary Procedure - Mayor Not Authorized by City Charter or City Comission Rules of Procedure to Make or Second MotionGARGANESE, WEISS & UAGRESTA, P.A. /lttoraeys at Law 111 N. Orange Ave., Suite 2000 P.O. Box 2873 Odando, Florida 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 September 26, 2013 (Via Email Only) Honorable Mayor Charles Lacey and Members of the City Commission 1126 E. State Road 434 Winter Springs, Florida 32708 Anthony A. Garganese � CwOW CUy. Count/ & Lml Re: Parliamentary Procedure — Mayor Not Authorized by City Charter or City Commission Rules of Procedure to Make or Second Motions Mayor and City Commission, This letter follows our discussion at the September 23, 2013 City Commission meeting. During the meeting, we discussed whether the City Charter authorizes the Mayor to make or second a motion in order to formally introduce matters before the City Commission for a vote. Interestingly, the issue has never come up before during my tenure as City Attorney, which commenced in 1999. During this time period, and likely before, it has traditionally been the custom under the City Charter that the Mayor does not have the ability to make or second a motion because the Mayor is not a full voting member of the City Commission. Notwithstanding, you have now requested my opinion on the issue. Executive Summary As I opined verbally at the meeting, consistent with the custom and practice of the City Commission in furtherance of the terms of the current City Charter, law, and City Commission Rules of Procedure, it is my opinion the Mayor does not currently have the right to make or second a motion in order to introduce matters or motions before the City Commission for a vote. However, as presiding officer of City Commission meetings, the Mayor may participate in discussions of matters before the Commission and suggest or recommend a certain course of action (including motions) in accordance with parliamentary procedures adopted by the City Commission. The basis of my opinion is explained in more detail below. Ft. Lauderdale (954) 670-1979 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 Website: www.odandolaw.net a Email: firm@orlantdolaw.net Honorable Mayor Charles Lacey Members of the Winter Springs City Commission September 26, 2013 Page -2 — City Charter — Powers of the Winter Springs Mayor and City Commission A. Powers of the Mayor Going back to colonial times, the powers held by mayors were not uniform and they varied substantially depending on the jurisdiction. As such, the power of the mayor could range from being merely an ornamental figure in some jurisdictions to a person that exerted a controlling power in the management of a particular jurisdiction. See McQuillin, Mun. Corp. § 1:15. The scope of the mayor's authority and power depends almost entirely on the proper construction of the particular charter or law under which the municipal corporation is organized and the mayor performs his or her duties. See McQuillin, Mun. Corp. § 12:73; see also Savage v City ofAtlanta, 251 S.E. 2d 268 (Ga. 1978). Therefore, the powers of the Mayor of Winter Springs must be expressly derived from the Winter Springs City Charter. Although Section 4.01(a) of the City Charter provides that the "governing body [is] composed of the mayor and five (5) commission members,"' the Mayor's powers are enumerated separately and distinctly in the City Charter from those of the City Commission. In Blake v Partyka, 731 So. 2d 749 (Fla. 5d DCA 1999), the Fifth District Court of Appeal analyzed the power granted to the Winter Springs Mayor under the City Charter and stated that the "mayor has a unique role on this city commission. He or she acts as its leader but lacks some of the power given to an ordinary commissioner in that voting, other than by veto, is allowed only when the commissioner's votes result in a tie." The Court categorized this actual voting power as "special and limited." Id. at 752. This special and limited power is specifically enumerated in the City Charter and includes the power to cast a vote to break a tie vote of the city commission, to preside at meetings of the city commission and to veto ordinances. Further, the Mayor represents the City in intergovernmental affairs, presents an annual state of the City message, and performs such other duties specified by the commission. The Mayor is also recognized as the ceremonial head of City government and by the governor for purposes of military law. Furthermore, Section 4.16 of the City Charter requires the Mayor to authenticate by signature all ordinances and resolutions adopted by the City Commission. The Mayor may also nominate, along with commission members, persons to serve in the charter offices of city clerk and city attorney. See §§ 4.10 and 6.02, City Charter. Lastly, Section 4.13(a) authorizes the Mayor to call a special meeting. No other powers or duties are prescribed or privileges granted to the Mayor under the City Charter. Further, Section 4.05 of the City Charter expressly provides that the Mayor has no administrative duties. The delegation of certain powers and duties does not mean, however, that the Mayor is a member of the City Commission. Whether the Mayor is a member of the City Commission is one of legislative intent and construction of the City Charter in its entirety. In Reeder v Trotter, 215 S.W. 400 (Tenn.1919). the court quoted from the treatise Dillard on Municipal Corporations, as follows: i This Is the only reference to the term "governing body" In the entire City Charter. Further, as explained below, it Is important to note that the City Charter makes a distinction between the "governing body" of the City and the "city commission." Honorable Mayor Charles Lacey Members of the Winter Springs City Commission September 26, 2013 Page -3 — The question whether the mayor of a city shall be regarded as a member of the council is one of legislative intent. It is within the power of the Legislature to confer upon him the functions of a member of the council in every respect, and if the legislation on the subject calls for that construction he will be so regarded. But in American jurisprudence the mayor is not necessarily a constituent part of the legislative power of the municipality. His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find Its authority in some positive statute. In this view, in the absence of a statute necessarily Implying that he has the same standing in the council as any other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council, sub modo, and to the extent of the powers specially committed to him. (emphasis added) Although the Winter Springs Mayor, along with the City Commission, is considered part of the City's "governing body," and the Mayor has the right to preside over Commission meetings and cast tie breaking votes, the Mayor is neither impliedly nor expressly made a member of the City Commission. To the contrary, the City Charter provides that the City Commission expressly consists of "five (5) commission members" and that "not more than one shall reside in each of the five (5) commission districts." § 4.01, City Charter. Therefore, the plain and ordinary reading of the references to the "city commission" in the City Charter should not be interpreted to include the Mayor. Rather, the term "city commission" used in the City Charter refers to the five (5) commission members residing in the five commission districts. See, e.g., Savage v City ofAdlanta, 251 S.E. 2d at 272 (The fact that mayor is presiding officer of council and has power to cast tie - breaking votes does not make him a member of the council if city charter provides that he is not to be a member.). From the standpoint of interpreting other provisions of the City Charter, this last point is extremely important for properly interpreting many other provisions of the City Charter. As such, whenever the City Charter refers to the term "city commission" or "commission," the term city commission or commission will mean the five (5) commissioners residing in the five commission districts and not the Mayor. B. General Powers of the City Commission While the Mayor's authority is "special and limited," the City Commission's authority is not. Section 4.06 of the City Charter provides that "all powers of the city shall be vested in the commission, except as otherwise provided by law or this Charter, and the commission shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law." In addition, "the commission shall determine its own rules and order of business." § 4.13(b), City Charter. Further, three (3) members of the commission shall constitute a quorum and no action Honorable Mayor Charles Lacey Members of the Winter Springs City Commission September 26, 2013 Page -4 — Of the commission shall be valid or binding unless adopted by the affirmative vote of three (3) or more members of the commission. § 4.13(c), City Charter. In every one of the aforementioned provisions which are crucial for understanding the fundamental governance powers of the City, the City Charter references the `commission" and not the Mayor or governing body. Therefore, applying the principles of the aforementioned legal authority to the powers of the Mayor and City Commission set forth in the City Charter, the reasonable and logical conclusion is that while the Mayor is part of the governing body for certain "special and limited" purposes, the Mayor is not a member of the City Commission and does not act in the capacity of a city commissioner. Instead, he presides over the meetings of the City Commission and only exercises those powers which have been delegated to the Mayor under the City Charter including the power of performing such other non -charter enumerated duties properly specified by the City Commission. C. City Commission Voting Relevant to the issue at hand, no action of the Commission shall be valid and binding unless adopted by the affirmative vote of three members of the Commission. In the event of a tie vote, the Mayor shall cast the deciding vote to break the tie.Z The City Charter does not expressly address who has the right to make or second a motion at Commission meetings. However, Section 4.13(b) of the City Charter expressly provides that the City Commission "shall determine its own rules and order of business" These rules address who has the right to make a motion. i+iules Adopted by the City Commission The most recent version of the City Commission Rules of Procedure was adopted at the last meeting by Resolution 2013-29. Section I. B provides that the "underlying foundation" of the rules shall be Robert's Rules of Order. Section 1 of Robert's Rules of Order, I & Edition, provides that: A member of an assembly, in the parliamentary sense, as mentioned above, is a person having the right to full participation in its proceedings — that is, as explained in 3 and 4, the right to make motions, to speak in debate on them, and to vote. Some organized societies define different classes of "membership," not all of which may include this status. Whenever the term member is used in this book. it refers to full particioatina membership in the assembly unless otherwise specified. Such members are also described as "voting members" when it is necessary to make a distinction. (underlined emphasis added) 2 When the Mayor, as presiding officer, exercises the express power to cast the deciding vote granted by the City Chanter, the Mayor's deciding vote will be legally considered a vote of the Commission on the particular item being voted upon. See, e.g., Reeder v. Trotter, 215 S.W. 401(explaining numerous legal authorities which discuss the common law power of a "casting vote" granted to the presiding officer in event of a tie vote of the deliberative body); see also, McQuillin, Mun. Corp. § 13:32; 43 A.1.11.2d 698, § III (1955) (citing numerous cases determining when the casting vote of the presiding officer is included or excluded from a council vote). Honorable Mayor Charles Lacey Members of the Winter Springs City Commission September 26, 2013 Page -5 — In parliamentary law, a motion is the formal mode in which a member submits a suggestion or a proposed measure or resolve for the consideration and action of the meeting, which if adopted, becomes the resolution, vote, or order of the body. 67 C.J.S Parliamentary Law § 6. With respect to who has the authority to make and second a motion during the assembly meeting, section 4 of Robert's Rules provides that "a member makes a motion" and "another member seconds the motion." (underlined emphasis added). Therefore, pursuant to Robert's Rules and generally recognized parliamentary law, only a "member" of the assembly can make a motion. As mentioned above, in order to be a member, a person must have the right to fully participate in the assembly including the right to vote on matters brought before the assembly. In this instance, the Mayor is not a member of the City Commission. Further, the Mayor does not have the right to vote on matters presented to the City Commission unless the vote of the city Commission results in a tie vote; in which case, the mayor can cast the deciding vote to break the tie. As such, under Robert's Rules, the Mayor would not be considered a "member" because he does not have the right to vote unless there is a tie vote. Because the mayor is not a "member," he does not have the right to make or second a motion because motions are required to be made and seconded by members.3 Therefore, under the Rules of Procedure adopted by the City Commission, it is my opinion that only members of the City Commission can make or second motions at City Commission meetings. If there was any doubt about this matter, it has been effectively clarified by the City Commission when it exercised its City Charter authority to revise the rules for City Commission meetings on September 23, 2013. Pursuant to Resolution 2013-29, Section I. E. of the City Commission Rules of Procedure now expressly provides that "[mjotions shall only be permitted by members of the city commission." Therefore, the Mayor does not have the right to make or second motions during City Commission meetings under the current rules of procedure adopted by the City Commission. As an aside, it is worth noting that this issue is not just about parliamentary semantics. The Power to make or second motions before a deliberative body is substantive and substantial. There are instances, should the Mayor be allowed to make or second motions, that the rights of commissioners not to hear or consider an item or particular motion would be diluted. For example, it is fundamental parliamentary procedure under Robert's Rules that it requires a motion and second of two members to place an item or motion before the deliberative body for a vote. Thus, currently, if four (4) out of five (5) city commissioners do not want to vote upon a matter or a particular motion, the matter or motion is not taken up and voted upon in any fashion. If the Mayor had the right to make or second a motion, the Mayor and one (1) commissioner could effectively then force an item or motion to be taken up and voted upon by the City Commission even though a super -majority of 4/5ei of the City Commission has no desire to do so. No provision of the City Charter, or the City Commission Rules of Procedure, expressly grants or impliedly authorizes the Mayor to exercise this 3 However, it is axiomatic, and supported by City custom and practice, that as presiding officer of City Commission meetings (with the additional right to veto ordinances and to cast a vote to break a tie), the Mayor may participate In discussions of matters before the Commission and suggest or recommend a certain course of action (Including motions) In accordance with parliamentary procedures adopted by the City Commission. Honorable Mayor Charles Lacey Members of the Winter Springs City Commission September 26, 2013 Page -6 — power over the governmental affairs of the City Commission. In my view, such power should be expressly granted by the voters pursuant to a City Charter amendment or by the City Commission pursuant to an amendment to its rules of procedure. It should not be implied given the non -voting status of the Mayor as presiding officer of City Commission meetings. 1 trust this letter clarifies the governance structure of the City as set forth in the City Charter and my views on the same. 1 would be happy to entertain any additional questions on the subject should the Mayor or members of the City Commission have any. Sincere] Anthony A. Garganese City Attorney Cc: City Manager (via email) City Clerk (via email)