HomeMy WebLinkAbout1978 03 02 Advisory Legal Opinion- Authority to Appoint Department Heads.pdf..
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Advisory Legal Opinion
Number: AGO 78-31
Date: March 2, 1978
Subject: Authority to appoint department heads
12/11102
Gary E. Massey
Winter Springs City Attorney
Altamonte Springs
QUESTION:
Under the Charter of the City of Winter Springs, who has
the authority to appoint councilmen to head the departments
of the city?
SUMMARY:
A municipal charter which vests all powers of the city in
the governing body and which authorizes the mayor Ito
appoint a member of the city council to supervise and
direct any particular phase of the government of the city
..' contemplates a commission form of government wherein
executive and legislative power is vested in the city
council. Under such charter, the mayor is authorized to
select a councilman and assign or appoint him to supervise
and direct a particular phase of the municipal government.
As a general rule, the councilor other governing body of a
municipal corporation is the general agent of the
corporation for all purposes and exercises all the
corporate powers not expressly committed by law to other
boards or officers. 63 C.J.S. Municipal Corporations s.
153, p. 313. With respect to the power of appointment to
municipal boards or agencies, the general rule is that, in
the absence of a charter provision authorizing the mayor or
some other officer to exercise such power, the councilor
governing body is the only agency which may exercise the
powe4 to appointment. Ex Parte Stone, 192 P. 71 (Cal.
1920); City of Princeton v. Woodruff, 104 N.E.2d 748 (Ind.
1952); Foti v. Montero, 146 So.2d 789 (La. 1962). Thus,
unless the charter so directs, the mayor has no authority
to appoint municipal officers.
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The mayor, on the other hand, is generally deemed to be the
chief executive officer of the city. 63 C.J.S. Municipal
Corporations s. 542, p. 998. However, the actual functions
and powers of the mayor are derived from and depend
entirely on the municipal charter; the mayor possesses only
those powers expressly granted or necessarily implied
therefrom. Cr., Municipal Court, City of Fort Lauderdale v.
Patrick, 241 So.2d 195 (Fla. 1970), arr'd 254 So.2d 193
(Fla. 1971), in which the court held that a city charter
provision authorizing the mayor to take command of the
police force and govern by proclamation under the direction
of the city commission during times of grave public
emergency did not confer authority on the mayor to
establish a curfew in an area of the city affected by riot,
in view of another provision of the city charter which
vested the legislative power in the council and required
that enactments of a penal nature be effected by ordinance.
The mayor1s functions as prescribed in the municipal
charter differ in various municipalities. The mayor's power
may be legislative, executive, or judicial, according to
the particular governing law. In some cities, the mayor as
chief executive has supervision over the minor officers of
the municipality not expressly made subject to the control
of other officers or boards, while in others his powers are
primarily executive and administrative and, as the
executive head of the municipality, he has general
supervision over all the departments of the city
government. See 63 C.J.S. Municipal Corporations s. 543(a),
p. 999.
It would appear that an important factor in considering the
relationship of the mayor to the city council, and the
allocation of legislative and executive power between
elected municipal officers, is the form of city government
which is contemplated by the city charter. In McQuillan
Municipal Corporations s. 912, p. 643, the author lists
various types of municipal government, the most common of
which are the mayor-and-council or alder.manic plan, the
commission-manager plan, and the commission plan. Each of
these plans comprehends different powers and functions of
the mayor and the governing body.
In the mayor-and-council system, the executive and
administrative affairs of the municipality are in the hands
of the mayor, while the legislative power is vested in the
council. McQuillan Municipal Corporations s. 9.17, p. 655.
The municipal charter generally gives to the mayor the
power of appointment of all principal officers, except
those who are elected. rd.
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In the commission for.m of government, the commissioners or
members constitute a municipal board and exercise all
municipal powers, including legislative, executive,
administrative and judicial powers. McQuillan Municipal
Corporations s. 9.18, p. 661. The commission plan has been
held constitutional in most states, the courts reasoning
that constitutional principles of separation of powers are
not applicable to municipalities. Id; also see Kaufman v.
City of Tallahassee, 94 So. 697, 699 (Fla. 1923). In some
cities possessing the commission form, the electors vote by
name for an individual commissioner to take charge of a
department; in others, the commissioners as a body assign
the commissioners to various departments. Id. at 667. Each
commissioner then serves as the head of, and administers,
the departments for which he is responsible. rd.
The commission-manager for.m of government places the
executive and administrative functions in the hands of a
city manager. McQuillan Municipal Corporations s. 9.21, p.
678. 63 C.J.S. Municipal Corporations s. 543(b), p. 999.
The commission constitutes a legislative or policymaking
body which generally supervises the city manager. See
Bryant v. City of Lakeland, 28 So.2d 106 (Fla. 1947). The
city charter may authorize the city manager to appoint
department heads. See Glendinning v. Cherry, 14 So.2d 794
(Fla. 1943).
An examination of the Winter Springs City Charter (Ch. 72
718, Laws of Florida) reveals that the form of government
provided therein does not exactly conform to any of the
three forms discussed above. The charter provides for a
five-member city council and a mayor. Sections 4.01, 4.05,
Art. IV, Winter Springs City Charter. The general powers
and duties of the council are set forth at s. 4.06, Art.
IV:
All powers of the city shall be vested in the council.
except as otherwise provided by law or this charter,
and the council shall provide for the exercise thereof
and for the performance of all duties and obligations
imposed on the city by law. (EmphasiB supplied.)
In addition, s. 7.01, Art. VII. states that the council
may establish city departments, officers or agencies in
addition to those created by this charter and may
prescribe the functions of all departments, offices and
agencies. (Emphasis supplied.)
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The powers and duties of the mayor are provided in s. 4.05,
Art. IV:
At each regular election, a mayor shall be elected for
a term of two years. He shall preside at meetings of
the council, shall be recognized as head of the city
government for all ceremonial purposes. and be the
governor for purposes of military law. . . . [T}he
mayor of the city shall be the chief executive officer
of the city and shall act and serve as chairman of the
city council. The mayor shall not vote except in case
of a tie vote of the council. The mayor may appoint a
member of the city council to supervise and direct any
particular phase of the government of the city. Within
ten days after the adoption of any ordinance by the
city council, the mayor shall have the power to veto
said ordinance and return it to the council at the next
regular meeting with a written message. It shall
require a two-thirds vote of the city council to pass
the ordinance after the mayor's veto. (Emphasis
supplied. )
Other duties of the mayor are set forth in other parts of
the charter and include, inter alia, the authority and
duty, subject to the approval of the council, to appoint a
city clerk (s. 4.10, Art. IV), to appoint a city attorney
(so 7.02, Art. VII), and to prepare the city1s budget for
submission to the city council (s. 8.02, Art. VIII).
It should be noted that under Art. VI of the charter, the
city council is authorized, but not required, to appoint a
city manager who shall be 'chief administrative officer I of
the city. However. I have been infor.med that the city
council has not appointed a city manageri the town is
currently governed by the mayor and council.
When ss. 4.01 and 4.05, Art. IV of the charter are read
together, it is apparent that all power (executive,
legislative, and administrative) is vested in the city
council, except as otherwise provided by law or the
charter. Thus, although the mayor is designated Ichief
executive officer, I in reality the mayor possesses only
those executive powers which have been expressly granted
himi the council is vested with all other executive powers.
CE. s. 6.03, Art. VI, Ch. 72-718, Laws of Florida,
providing, inter alia, that the city manager shall be
responsible to the city council for all administrative
affairs placed in his charge by or under the charter and
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shall perform such other duties as may be required of him
by the council.
It appears, therefore, that the charter (absent
implementation of ss. 6.01-6.03, Art. VI of the charter by
the city council by appointment of a city manager)
essentially contemplates a commission form of government
where the mayor is authorized to determine which councilman
shall administer a particular phase of the municipal
government. There is no provision in the charter which
makes the mayor's assignment or appointment of the
councilmen to supervise and direct particular phases of
city government subject to the approval of the council;
therefore, the council is not authorized to approve or
disapprove the mayor's choices. CE. Indyk v. Klink, 297
A.2d 5 (N.J. 1972), holding that, where a governing statute
provided that all administrative functions were to be
allocated to one or another of the municipal departments
with the head of each department appointed by the mayor,
the town council was unauthorized to appoint a city
attorney or city manager. Moreover, it might further be
noted that the authority of the mayor to appoint a
councilman to supervise and direct any particular phase of
the city government relates to the form of government and
the distribution of powers among elected officers. See s.
166.021(4), F. S. Changes in the form of municipal
government and the distribution of powers among elected
officials cannot be made by the city council pursuant to
its home rule powers under Ch. 166, F. S., without approval
by referendum of the city's electors as provided in s.
166.031, F. S. In the absence of such approval, the cited
provisions of the charter act govern and control both the
city council and the mayor in this regard.
The foregoing analysis of the City of Winter Springs
Charter harmonized and gives effect to each of the subject
provisions of the charter and further permits the mayor and
the council to each possess their own 'lawful spheres of
operation.' See generally, Alsop v. Pierce, 19 So.2d 799
(F1a. 1942).
Prepared by:
Patricia R. Gleason
Assistant Attorney General
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