OFFICE OF THE MUNICIPAL ATTORNEY

DATE : July 10,2006

To: Mayor Mark Begich

FROM: Frederick H. Boness, Municipal Attorney

SUBJECT: VETO AUTHORITY RE: A 0 AME~BMENTS Law Dept. Matter No. 05-0438

QUESTION: You have requested I provide you with a gelieral discussion of the veto authority of the mayor, and to specifically address whetha you may veto a motion approved by the Assembly which amends a proposed or$nance. If you have the authority to veto a n~otion, you have asked me to indicaqe when the veto must be presented to the Assembly.

BRIEF ANSWER: Subject to the following Background and Discussion, my Brief Answer is the mayor has broad general veto power. The mayor may veto an amendment to a proposed ordinance. The timing of the veto is depeqdent upon the goal to be achieved by the amendment. Assuming your goal is to prlevent an amendment from becoming part of the ordinance under consideration but not to prevent the ordinance itself from being further considered by the Assembly, the veto sh'ould be made immediately after the Assembly votes to approve the amendment and bef4re the Assembly considers the proposed ordinance.

DISCUSSION: The Anchorage Municipal Charter section 5.02(c) provides:

The mayor has the veto power. The mayor a140 has line item veto power. The mayor may, by veto, strike or reduce $ems in a budget or appropriation measure. The veto must be exercised qnd submitted to the assembly with a written explanation within seven dais of passage of the ordinance affected. The assembly, by two-thirds majqrity vote of the total membership, may override a veto any time within 2 1 ddys after its exercise.

I

The mayor of the Greater Anchorage Area Borough exercis a broad veto power over "any ordinances, resolutions, motions, or other actions of Opinion No.

Mayor Mark Begich July 10,2006

Page 2 of 3

75-29 at 3 (citing former AS 29.23.170(a)).' This expagsive veto power was not expressly stated in the Anchorage Municipal Charter.

A. Support for broad general veto power

Nevertheless, there is strong support to conclude the mayor of the Municipality of Anchorage has the same expansive veto authority as the mayc)r of the Greater Anchorage Area Borough:

J s a. In Municipality of Anchorage v. Repasky the Alaska Supreme Court declared:

"[Tlhe language of charter subsection 5.02(c) is sweeping. It expresses no limit on the general veto power." 34 P.3d 302,307 (Alaska $001).

b. An exhaustive opinion, which relies upon Charter soqrce documents, by former municipal attorney William A. Greene concludes the mlayor may veto amendments to ordinances. See Opinion No. 0 1-64.*

c. In February 2000, Judge Eric T. Sanders of the Alaskq Superior Court upheld the veto by the mayor of the amended budget as approved by the Assembly, A 0 99- 124(S)(as amended). See Murdy, Carlson, Wohlforth w. Mystrom, Municipality of Anchorage, Case No. 3AN-99-12398 CI. ,

d. An opinion written by former municipal attorney a d attorney to the Charter Commission and the Commission's Charter Producti 1 n Committee, Richard W. Garnett, I11 states the mayor of the Municipality of An horage was to be a "strong mayor" and have the same veto power as the mayor t of the Greater Anchorage Area Borough to veto "any ordinances. resolutions, motions, or other actions of the Assembly." See Opinion No. 75-29 at 3. Gamett asserted: "A strong mayor with a miniature veto would not serve.. . [this] purpod and is not, in my opinion, what the Charter created." See id. at 8-9.

e. In support of Garnett's opinion are letters from the Chair of the Anchorage Charter Commission, Frank Reed, Sr. and the Chair of the ChWer Production Committee, Shari T. Holmes, which both state the veto authority bf the mayor was to be the same as existed under the Greater Anchorage Area Borough. Garnett's reliance on the opinions of the chairs are supported by an early Alaska Supreme Court case: "[R]eports of committees and statements of chairmen o~f such committees stand on a more solid footing, and may be resorted to in detiermining the intent of the enacting body." Starr v. Hagglurzd, 374 P.2d 3 16,319 (Alaska 1962).

B. Limitations on broad general veto power

* Further support of the mayor's broad veto powers are the few limitations expressly enumerated in the Charier and state law: (1) Under Charter se~tion 16.03, the mayor may not veto Assembly actions regarding the former Anchorage Telephone Utility; (2) the veto does not extend to an ordinance adopted under AS 04.111.501, the prohibition of the possession of alcohol; and (3) under municipal code section 2130.100, the mayor may not

1 See Attachment A. 1 See Attachment B. I

Mayor Mark Begich July 10,2006

Page 3 of 3

veto actions of the Assembly concerning the adoption or abandonment of a manager plan of government or actions of the board of equalization or the bcpard of adj~stment.~

C. Application of the general veto power to amendments tb proposed ordinance

The mayor's broad veto powers apply to ordinances, resdlutions, motions, or other actions of the Assembly. The veto of an ordinance, resolutipn, motion or other action, "must be exercised and submitted to the assembly with a mitten explanation within seven days of passage of the ordinance affected." Charter 5.02(c).

In the case of an amendment or amendments to an ordinance by motion: "[Tlhe Mayor.. . [may] delete an amendment or.. . eliminate an addition [to ad ordinance] when made by motion. [Tlhe Mayor.. . [may also] eliminate the substitytion of one ordinance or resolution for another." Opinion No. 01-64 at 1.

If the purpose of the veto is to prevent the amendment from becoming a part of the proposed ordinance the veto should be delivered immediately after the vote on the proposed amendment, and prior to a vote on the ordinance to which the amendment attached. Doing so will allow the Assembly to vote to overdide the veto. An override will, of course, mean that the proposed ordinance is before the Assembly as amended. Failure to override will mean that the ordinance without the vetoed amendment is before the Assembly.

If you wait to veto the amendment after the ordinance is pasged, the effect of your veto will be to veto the entire ordinance. A veto of the amendr$ent will render the entire ordinance void because there has been no vote by the Assembly to adopt the ordmance without the vetoed amendment. The options available to the/ Assembly are to override the veto, adopt the original ordinance as submitted, or take no action which would result in no ordinance taking effect. See Opinion No. 89-44 at 2 ("After a veto the Assembly must pass a measure over a veto or the measure dies").

CONCLUSION: Under the general veto power, the rngyor is able to veto any ordinances, resolutions, motions, or other actions of the As~embly. The general veto power is broad and has very few exceptions. If the mayor wishes to prevent an amendment from becoming part of a proposed ordinance, the mayor should veto that amendment as soon as it is passed by the Assembly anq before the ordinance is considered by the Assembly. In that case the Assembly can ejther override the veto or if it fails to do so, it can pass (or not pass) the ordinance without 4he amendment.

3 State law holds the veto does not extend to: appropriation items in a s$hool budget ordinance; actions of the governing body sitting as the board of equalization, or the board of adjustment; or adoption or repeal of a manager plan of government. See AS 29.20.270. These li&ts do not apply to home rule municipalities. See AS 29.10.200; Repasky, 34 P.2d at 31 1 (holding the brohibition on vetoing a school budget ordinance does not apply to home rule municipalities). Anchorae Municipal Code has adopted two of these prohibitions in order to limit the mayor's veto power with re4ards to adopting or abandoning a manager plan of government, and actions of the board of equalization ar the board of adjustment. See AMC 2.30.100B. Certainly, the mayor cannot veto the Assembly's quasi~judicial actions. See Saunders Properties v. Municipality of Anchorage, 846 P.2d 135, 137 (Alaska 19 3) (holding that quasi-judicial actions are not subject to veto). But it is doubtful that limitations on the mayor's veto may be

veto power to the mayor.

t accomplished through Municipal Code rather than through amendment of he Charter, which grants broad 1

.. . .@m* I

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+ e /f 7J- & MUNICIPALITY OF ANCHORAGE

ASSEMBLY MEMORANCIU&l

From. Municipal Attorney I

Subject : Mayor ' s Veto Power

In t roduct ion :

A ques t ion has a r i s e n a s t o t h e scope pf t h e Mayor's

ve to power. Some members of t he Assembly have a s s e r t e d t h a t

t he Char te r reduces t h e Anchorage mayor's v t o power below i. t h a t exe rc i sed by t h e mayor of t h e former e eater Anchorage

Area Borough. For a number of reasons I bekieve t h a t t h e

Char te r d i d n o t have t h a t e f f e c t .

Sec t ion 5 .02(c) provides: ~ The mayor h a s t h e ve to power. ~ h b v e t o must be exe rc i sed and submitted to t h e ~ s b e m b l y wi th a w r i t t e n explana t ion wi th in seven Bays of passage of t h e ordinance a f f e c t e d .

The ques t ion i s whether the second sen tence , dea l ing wi th

t h e mechanics of e x e r c i s e of t h e power, o p e r a t e s a s a l i m i t a t i o n

on t h e f i r s t s en tence which g r a n t s " t h e v e t o power" without

q u a l i f i c a t i o n . I

History:

The h i s t o r y of enactment of a law may e considered i n b i n t e r p r e t i n g the law. I n S t a r r v . Haagland, 3 7 4 P2d 316, t h e

Alaska Supreme Court d e a l t with use of conv n t i o n minutes i n

i n t e r p r e t i n g t h e S t a t e Cons t i tu t ion : t‘

This c o u r t has prev ious ly held t h t opin ions of i n d i v i d u a l members of t h e convent on gene ra l ly a r e k no t cons idered t o be a s a f e g u i d e i n a s c e r t a i n i n g t h e DurDose of a ma io r i tv of t h e convention when - L . - - adopt ing a p a r t i c u l a r provis ion . But r e p o r t s of committees and s ta tements of chaikmen of such committees s tand on a more s o l i d f o o t i n s and may -.

be r e s o r t e d t o i n determining t h e i n t e n f of the- enac t ing body. (p . 319)

The Char te r Commission minutes make no mention of changing ...

o r reducing t h e ve to power. The Chairman o t h e Commission E and t h e Chairman of t h e Char te r Production bommittee which

I

prepared d r a f t language f o r t h e Char te r , hake s t a t e d t h e i r

view t h a t t h e scope of t h e ve to was not chabged by t h e

Char te r . (See a t t a c h e d . 1

The Char t e r was w r i t t e n on a very cornptressed, almost f r a n t i c

schedule . About t h r e e and one-half months e l apsed from s t a r t

t o f i n i s h . By c o n t r a s t , t h e 1970 and 1971 b h a r t e r s took almost

e i g h t months ap iece t o complete. The Commi~sion used t h e 1971

c h a r t e r a s a b a s i s f o r i ts own wording. Unpess there was some

ques t ion about t h e 1 9 7 1 wording, t h a t wording was r e t a i n e d . . -

Accordingly, t h e p r e c i s e words of t h e Char t e r may not always

be taken a s expres s ions of t h e Commissions p p e c i f i c i n t e n t .

The wording on t h e v e t o power i s taken verbktim f r ? ~ t h e 1971

c h a r t e r , and was adopted without any c l o s e s c r u t i n y o r

cons ide ra t ion of i t s e x a c t import.

The Commission reso lved t o keep t h e Chbrter a s s h o r t

and simple a s poss ib l e . In most i n s t ances t h i s po l icy was

b e n e f i c i a l . On occasion, a s i n t h i s case , khe omission of words

c r e a t e d an ambigu i ty . However, t h e Charter; Commissioners were,

f o r t h e m o s t p a r t , i n t i m a t e l y f a m i l i a r w i t h t h e workings of

t h e former governments. Where t h e y intendeld t o make changes

from t h e b a s i c s t r u c t u r e o f t h e p r i o r goverlnment t h e y s t a t e d

t h a t i n t e n t c l e a r l y .

The Commissioners knew t h a t t h e mayor of t h e G r e a t e r

Anchorage A r e a Borough e x e r c i s e d a v e t o po e r o v e r "any o r d i n a n c e s , i r e s o l u t i o n s , mot ions , o r o t h e r a c t i o n s of t ~ h e Assembly"

AS 2 9 -23.170 (a ) . The form of e x e c u t i v e was t h e most h o t l y

deba ted i s s u e b e f o r e t h e Commission, t h e '!strong mayor"

or "weak mayor". A 1 1 of t h e t h e p u b l i c , knew

d e b a t e f r e q u e n t l y was couched i n t e rms o f "back Roderick" or t h e

"George S u l l i v a n " form o f mayor. I t i s i ncbnce fvab l e t h a t t h e

t h a t t h e c h o i c e was e s s e n t i a l l y between t h e mayor a s he ope ra t ed

omm mission would have chosen t h e s t r o n g maybr form, b u t

i n the borough and t h e mayor as he o p e r a t e d

d r a s t i c a l l y reduced t h e v e t o , t h e key f e a t u ~ e o f t h e s t r o n g

mayor form, w i t h o u t s o much a s a word o f i n t e n t o r d e b a t e on

i n t h e c i t y . The

t h e s u b j e c t .

I n t e r p r e t a t i o n :

I n o t h e r a r e a s , t h e C h a r t e r i s n o t a lways p r e c i s e i n i ts u s e

o f terms d e n o t i n g d i f f e r e n t forms o f Assembly a c t i o n . I n

Sec t i on 3.02 d e a l i n g w i t h i n i t i a t i v e and referendum, t h e C h a r t e r

u s e s a number of d i f f e r e n t terms. In S e c t i b n 3.02(b) t h e

C h a r t e r speaks o f a referendum which "suspebds t h e o r d i n a n c e " .

I n Sec t ion 3 .02 (c ) t h e Cha r t e r s t a t e s t h a t referendum suspends

t h e "ordinance o r r e s o l u t i o n " only i f f i l e d w i t h i n s i x t y days. I

Again i n Sec t ion 3.02 (d) t h e Char ter s tates t h a t a referendum

p e t i t i o n is vo id i f t h e Assembly r e p e a l s t h "ordinance". F i n a l l y , e i n Sec t ion 3 . 0 2 ( e ) t h e Char te r states t h a t t h e Assembly may n o t

r e e n a c t a "measureo r e j e c t e d by referendum.,

From t h i s example it can be seen t h a t pndue emphasis on

t h e p a r t i c u l a r word u t i l i z e d f o r Assembly a c t i o n would be misplaced.

I t is u n f o r t u n a t e t h a t an ambiguity was cre t e d on t h e v e t o power. a Never the less , a n imprec i s ion i n d r a f t i n g s h u l d n o t be permi t ted P t o o v e r r i d e t h e b a s i c i n t e n t of t h e c h a r t e r Corninsion and t h e

v o t e r s i n choos ing t h e s t r o n g mayor form. ,

Basic p r i n c i p l e s of l e g a l c o n s t r u c t i o n suppor t t h i s conclusion.

A home r u l e c h a r t e r is equ iva l en t t o a c o n s t i t u t i o n . It i s

organic law, d r a f t e d by an e l e c t e d body a n d r a t i f i e d by t h e

people , C o n s t i t u t i o n a l p rov i s ions a r e l i b e i a l l y cons t rued t o

ach ieve t h e i r b a s i c purpose. 1 . . I

The g e n e r a l r u l e i s summarized i n 16 ?!p J u r 2d "Cons t i t u t i ona l

Law", Sec. 62:

The r u l e t h a t c o n s t i t u t i o n s a r e t o be l i b e r a l l y construed i s a w e l l s e t t l e d one. This it i s ' sa id t h a t c o n s t i t u t i o n a l p rov i s ions should Blways r e c e i v e a broader and more l i b e r a l c o n s t r u c t i o b than s t a t u t e s .... See Carpente r v S t a t e , 1 3 9 NW 2d 541.

When a law i s e n t i t l e d t o l i b e r a l consk ruc t ion , t h e

meanings of p a r t i c u l a r words may be ex tende6 beyond t h e i r

u s u a l limits :

Words may h e o m i t t e d o r suppl ied by impl i ca t ion , and sen tences transformed t o render dhe s t a t u t e a c o n s i s t e n t whole and e f f e c t u a t e hhe l e g i s l a t u r e w i l l . The most comprehensive meaning of t h e terms employed should , i f necessary, be adopted t o accomplish t h e aims of the s t a t u r e . When a s t a t u t e i s t o be l i b e r a l l y constgued, t h e c o u r t may even c a r r y it beyond t h e n a t q r a l import of i t s words when e s s e n t i a l t o answer i t s purpose. 7 3 Am J u r 2 d 5272 " S t a t u t e s " . See a l s o , S t a t e ex re1 Minneapolis v . st. Raul M + M ~ q ' . Co., 98 Minn 3 8 0 , 108 NW 2 6 1 , Affd, 2 1 4 U S 497.

The C h a r t e r , l i k e t h e S t a t e c o n s t i t u t ' o n , confe r s p l ena ry 1 powers. Therefore , p a r t i c u l a r powers need n o t be "granted1' i n t h e

Char t e r . The Assembly has t h e " l e g i s l a t i v q power of Anchorage".

C e r t a i n powers a r e s p e l l e d o u t i n t h e ~ h a r d e r , bu t t h e s e I

enumerated powers a r e n o t exhaust ive. By t ~ h e na tu re of home r u l e

t h e Assembly e x e r c i s e s powers f a r more extelnsive than t h o s e

a c t u a l l y s p e c i f i e d i n t h e t e x t of t h e Chartler. I

The same idea a p p l i e s t o t h e powers o f t h e mayor. ' The

Char te r g r a n t s t o the mayor " the execut ive pnd a d m i n i s t r a t i v e

power of Anchorage." The Commission assume@ t h a t t h e s e t e r m s

had widely accepted meaning i n p r i o r l a w an$ i n popular

unders tanding. Accordingly, t h e Char te r leaves many p a r t i c u l a r s

of t h e powers of t h e Mayor t o impl i ca t ion .

It i s t r u e t h a t a p r i n c i p l e of s t a t u t o r y cons t ruc t ion

holds t h a t t h e enumeration of p a r t i c u l a r popers may be seen

a s a l i m i t a t i o n on t h e e x e r c i s e of o t h e r pokers. "Expressio

unius e s t e x c l u s i o a l t e r i u s " . However, t h e Char te r e x p r e s s l y

nega tes and disavows t h i s r u l e :

References i n t h i s Char t e r t o p a r t i c u l s r powers, d u t i e s and procedures of municipal o f f i c e r s and agencies may not be construed a s implied limitation^ on o t h e r municipal a c t i v i t i e s n o t p roh ib i t ed b y law. (S17.11b)

Po l i cy : I

There i s a very p r a c t i c a l d i f f i c u l t y i l i m i t i n g t h e n mayor 's v e t o power t o ord inances . HOW i s it determined

p r e c i s e l y what Assembly a c t i o n must be donel by ordinance?

The Char te r does n o t purport t o address t h i s requirement

exhaus t ive ly . Sca t t e red throughout t h e Char te r a r e requirements

f o r t h e u s e of ordinances . S10.02 enumeratqs some ordinance

a c t i o n s , b u t t h e s e a r e " i n a d d i t i o n t o othe? a c t i o n s which

r e q u i r e an ordinance1' . Since t h e Char te r d es not s p e l l o u t

a l l Assembly powers, it n a t u r a l l y does no t u r p o r t t o s p e l l

o u t a l l of t h e powers which must be exe rc i s4d by ordinance.

The d e c i s i o n s of t h e Commission a s t o which a c t i o n s should

be by ord inance were no t made wi th a view td t h e v e t o power, bu t

with a view .to $\he need f o r pub l i c hear ings o n those m a t t e r s .

For example,. t h e Chaster does not s p e c i f i c a J l y r e q u i r e t h a t

t h e budget be adopted hy ordinance. This i s so because t h e

Charter s p e c i f i c a i l y requires two public heqr ings on t h e

budget. Conversely, Sec. 4 . 0 6 r e q u i r e s thaq t h e Assembly

use an ordinance i f it wishes t o h i r e i t s own s t a f f . I f t h e

Commission had meant t o l i m i t t h e ve to , it qure ly would n o t have

subjec ted t o ve to the very b a s i c a u t h o r i t y qf t h e Assembly t o

engage independent s t a f f .

I n j u r i s d i c t i o n s where t h e mayo r ' s v e s l i m i t e d

to one form or a n o t h e r o f Assembly a c t i o n , t h e re i s f r e q u e n t

s t r i f e and l i t i g a t i o n between t h e mayor ant e Assemhly a s t o

which a c t i o n s fa l -1 i n which c a t e g o r y . See g., S r o g i v . C a h i l l ,

340 NYS2 764 . Doubtless, a desire t o avoit i s e n e r v a t i n g

s t r i f e i s a l a r g e p a r t o f t h e r e a s o n t h a t l e g i s l a t u r e i n . .

T i t l e 29 ex tended t h e v e t o power t o a l l A s ; ly a c t i o n .

Along t h e s e l i n e s it has been s t a t e d t h a t

I n t h e i n t e r p r e t a t i o n o f s t a t u t e s b e a s t u t e i n a v 0 i d i n g . a construe. p r o d u c t i v e o f much l i t i g a t i o n ant A p a r t i c u l a r c o n s t r u c t i o n w i l l a. it appea r s t o be t h e o n l y one wh: f i x e d , permanent and c e r t a i n ru l r whether a p a r t i c u l a r c a s e i s i n c : exc luded from t h e o p e r a t i o n of t l 73 Am J u r 2 d 5269 " S t a t u t e s " ; Set Bryan, 14 HOW ( U S ) 5 6 3 .

court shou ld which may be

z e r t a i n t y . . . . be favored where u i l l a f f o r d a a s c e r t a i n

3 w i t h i n o r t a t u t e . s o l i t t l e v.

A s no t ed above, T i t l e 2 9 c o n f e r r e d up( h e Borough Mayor

t h e power t o v e t o "any o rd inance , r e s o l u t i c not ion o r o t h e r

a c t i o n o f t h e ~ s s e m b l y . . . . I' and "by v e t o [I c b l 2

.reduce i t e m s - i ~ , . a p p r o p r i a t i o n o rd inances . . , AS 2 9.23.170 (a) . Under t h e s e c i r cums t ances t h e g e n e r a l r u l e that a new law

.... w i l l be presumed n o t t o over t e s t a b l i s h e d . p r i n c i p l e s of law, a1

w i l l n o t be s o c o n s t r u e d u n l e s s z so p l a i n l y a p p e a r s by express dec n e c e s s a r y i m p l i c a t i o n . 7 3 Am JUI

5181: See Koenegsberger v . Richmc Plininq Co., 158 U S 4 1 , 391, Ed 885

long- le e t a t u t e l t e n t i o n t o do l t i o n or " S t a t u t e s "

S i l v e r

F i n a l l y , when a c o n s t i t u t i o n i s am big^ I t h e a c t i o n o f

t h e l e g i s l a t i v e body i n implementing t h e PI ; ion may f u r n i s h

a guide to its interpretation.

The principle of contemporaneous ponstruction may be applied to the constructiop given by the legislature to the constitutional provisions dealing with legislative powers and provedure. Though not conclusive, such inter retation is generally conceded as being e n t i t ed to great weiaht. 10 Am Jur 2d,

The Assembly in its rules of procedure, A0 No. 13-75, adopted a

~ 8 5 : See, Greater Loretta Improvement v. State, 234 So 2d 665 (Fla 1970);

construction of the mayor's veto power w i c h mirrors the

Assoc. 42 ALR 3rd 632.

power spelled out in Title 29.

Conclusion:

For reasons discussed above, it seems unreasonable to

assume that the Commission or the voters me nt to limit the b veto power through an offhand reference to 'ordinances" in a I sentence dealing with the mechanics of exercise of the veto

power. If the Commission had intended to e&ct such an abrupt

and potentially' 'trouhlesome departure from the prior law, it

would have expressly so stated after consid$rable debate. I

By contrast, the Comm~:ssion and the people &hose a. strong mayor,

believing that form to present the hest sys$em of checks and

balances for the new government. A strong Fayor with a miniature

I

ve to would n o t s e rve t h e purpose and i s no$, i n my op in ion , what

the Cha r t e r c r e a t e d .

Respec t fu l ly submi t ted ,

Recommended by :

Richard N. G Municipal A t

George M . S u l l i v a n Mayor

''* - \ " December 2, 1975 .

Anchorage Assen~bl y . . . . . Box 400

Anchorage, Alaska 99513

Dear Assemblymen:

As you may know, I was privileged to serve a$ Chairman of the Anchorage Charter Cornnisslon.

I

In our deliberations, w e debated at great length whether we shculd have a strong mayor or council/manageq form of government.

I

The Conunission never discussed redccing the ?ayoris veto power in relation to the veto power of the fqrmer Borouyh mayor. I think the Commissioners all assumed that, if we adopted the strong lnayor form, the veto would be as it was previously in the Borouyh.

Yours very truly, A , ,

Frank R e e d , Sr.

December 2, 1975

Anchorage Assembly Box 400 Anchorage, Alaska 99510

Dear Assemblymen:

In the process of drafting the Charter, I se the Charter Production Committee. This corn Charter language for consideration by the fu

In this process, I do not recall any attempt change the mayor's veto power. My view is t intended to preserve the status quo on the v under the old Borough.

Thank you for your consideration.

Shari T. Holmes . ~

-- , I

STH: gml

red as Chairman of :tee drafted proposed L Commission.

:o do anything to i t the Committee 10 as it existed

+- C ?

MUNICIPALITY OF

OFFICE OF THE

DATE: October 15.2001 J TO: Assembly Member Tesche

FROM: William A. Greene, Municipal

SUBJECT: The Mayor's Veto Powers I

OUESTION: You have asked us to opine on the following q*tstion:

May the Mayor veto a motion made by the Assembly to amen the text of an ordinance or resolution where the Mayor does not wish to veto the entir ordinance or resolution as ultimately passed, but only the amendment itself e.g. the ssembly-approved motion amending the Port Plan. I BRIEF ANSWER: Subject to the Discussion and Conclusi contained in the attached Memorandum Opinion, incorporated herein by reference, our

Yes. I

BACKGROUND, DISCUSSION and CONCLUSION: ~ Your question, while specific, requests an analysis of the le/@slative history, pertinent case, statutory and other authority and relevant Charter co-entary. Accordingly, we have expanded our Discussion and Conclusion to include a comprehensive legal review and analysis of the Mayor's veto powers and such is aontained in the attached Memorandum Opinion.

You also requested we comment on prior advice of outside cbunsel in 1990 relevant to the specific question posed. We concur that a veto must be e~ercised within seven days of the Assembly action vetoed. We also concur with that 1 counsel's advice that the Mayor's line item veto does not permit the Mayor to reinstat4 appropriations deleted by the Assembly. However, for the reasons stated in the attachbd Memorandum Opinion, we do not concur with the 1990 advice that there is an absenbe of legislative history b warrant the veto power including the power to veto motions and other actions of the Assembly. The latter Assembly motion or other action as well as general veto power is in addition to the line

' , ' Assembly Member ~ e s @

The Mayor's Veto Powers October 15,2001

line item veto, the veto of a motion amending an ordinance passage may have the effect of restoring the version as it e motion. A veto override is available to obviate that result as

If you desire to discuss these matters further or desire addit glad to respond as soon as possible.

cc: Assembly Members

G:\MA'IWAG\MAYOR\ VETWsembly Covw for VEto Maw.doc

Page 2.

esolution before its final d prior to the amending with the line item veto.

1 information we will be

MUNICIPALITY OF AN~HORAGE

OFFICE OF THE MUNICIP ATTORNEY

THE MAYOR'S VETO POWER [The Excerpt ('Exc") sources referenced in footnotes are on request They are the references source documents for the statements to

The Mayor may veto ordinances, resolutions, motions and other actions of the Assembly. The Mayor may, by veto, strike or reduce items in a budget 04 appropriah'on measure.

A. TEFE VETO POWER. - I The General Veto. The legislative history of the maybral veto power in Charter

$5,02(c) clearly establishes that the Mayor may veto: (1) ordibances, (2) resolutions, (3)

motions and (4) other actions of the Assembly. The veto of or/dinances and resolutions is

a veto of the whole ordinance or resolution. A veto of a m$tion or other action of the

Assembly permits the Mayor to veto an amendment to an or nance, resolution, or other 4 action item. The motiodother action veto allows the Mayor todelete an amendment or to

I

eliminate an addition when made by motion. It also allows $e Mayor to eliminate the

substitution of one ordinance or resolution for another. I ~ i

The Line Item Veto. In addition to the general veto dhrcribed above, the Mayor

also has the line item veto-the power to strike or reduke items i n a budget or ~ appropriation measure. I

The line item veto applies only to specific item.: appropriation measure and should not be confused the Mayor to veto motions and other actions. motions and other actions has an effect similar to a power to veto motions and other actions should as a line item veto.

in a budget or with the ability oJ

Alt,~ough the veto oJ line item veto, the

never be referred to

Quasi-fwliciul Actions. While the veto power woulq appear to be sufficiently

broad to warrant its use in quasi-judicial proceedings, such a$ proceedings of the Board

of Adjustment, since the veto power is historically a legislati\ie act, the Alaska Supreme

Court has ruled that it may not be used to affect quasit-judicial decisions of the

Timing and Overrides. The Mayor has seven (7) dayp within which to exercise

his veto and the Assembly has 21 days thereafter to make one or more attempts to

override the veto by a vote of 8 Assembly members. The F i t day after the day of

Assembly passage and the first day after the day of veto is dajt one of the seven-day veto

period and the twenty-one day override period respectively.

& THE CONSTITUTIONAL AND STATUTORY BACKGROUND.

The Constitutional Convention anticipated, State stamtes provide for and the

Municipality's voters twice confmed their choice of 4 strong-mayor form of

government. The Alaska Constitution and statutes and the ~ h i c i ~ a l i t ~ ' s Charter direct

that the Municipality's governmental powers be liberally conshed.

A Strong Local Executive. While there is very liktle in the Constitutional

Convention minutes regarding the local executive, there is evi~dence that there would be

checks and balances similar to the relationship between oqer legislative bodies and

executive branches of government and there was a general favqtism for a strong, unified

executive system in local government.2 The Mandatory Bodpugh ~ c t ~ provided for a

strong borough exec~tive.~ I

Saunders Properties v. Municipality of Anchorage, 846 .2d 135, (Alaska, 1993) P '. Cease, Areawide b c a l Governmenr in the. State of ~ + k u , supra, pp. 164-165. Exc. pp. 686-687. I

The Mandate for Liberal Construction of Local ~ o v d m e n t Powers. All local

government powers are vested in boroughs or cities.' It is the purpose of Alaska

Constitution's Article X to provide for maximum local self-g~vernment.~ To promote

that end, the Alaska Constitution grants home rule municipalities, such as ~ n c h o r a ~ e ? ali

legislative powers not prohibited by law or charter.' To protect the constitutional

purpose of maximum local self-government, the Alaska Cobtitution mandates that a

liberal construction be given local government pwers? The constitutional mandate for

liberal construction is underscored by specific statutory mandates:

A liberal construction shall be given to ail powers and ~%ncsions of a municipality conferred in this title.''

3. Chapter 52 SLA1963 (CSHB 90)

4 . Cease, Areawide Local Government in the State of Alaska, supra, pp. 165-169. Exc. pp. 687-691. The executive and administrative power of b t h general law and home rule municipalities are vested in the Mayor. Alaska Stat. 29.20.220. In addition, Alaska Statutes 29.20.250 (executive/administrative power), 29.20.279 (veto power), 29.20.310 through 29.20.360 (appointment of boards and officials) and 29120.500 (hiring, budgeting, custody of property, law enforcement, etc.) devolve substantial Pditional basic powers on Mayors of general law municipalities, key among which is the vieto power.

'. Alaska Const. art. X, $2. I

I

6. Alaska Const. art. X, $1. I

7 . Charter $3.01 and Official Charter Commission Comrplentary thereon. AMC p. CHT -25.

8. Alaska Const. art. X, $1 1.

9 . Id. Kotzebue Lions Club v. Cify of Kotzebue, 955 ~ . 2 b 921, 923 (Alaska 1998) citing Liberati v. Bristol Bay Borough, 584 P.2d 11 15, 1121 (Alaska 1978); Bookey v. Kenai Peninsula Borough, 618 P.2d 567,569 (Alaska 1980); ~bflerson v. State, 527 P.2d 43 (Alaska 1974). See also dissenting opinion in Anderson v. lYfunicipality of Anchorage, 645 P.2d 205,2 13-215 (Alaska 1982) I ,

I

lo. Alaska Stat. 29.35.400. Italics added. I I

Unless otherwise limited by law, a municipality has and may exercise all powers and functions necessarily or fairly implied or incident to the purpose of all powers and functions conferred in this tit&.''

Specific examples in an enumerated power or functiopl conferred upon a municipality in this title is illustrative of the object a limitation on or exclusion from the exercise of the power or

As the Alaska Constitution is the organic law of the state,13 s'p too is the Municipality's

Charter its organic law14 for which a liberal construction is albo the long-prevailing rule

of statutory constructi~n.'~ I

References in this Charter to particular powers, dutiq and procedures of municipal officers and agencies may not be cumtrued a implied limitations on other municipal activities not prohibited by law.16

As used in this Charter "may" is permissive, "shall" is mandatory, and "may not" or "shall not" are prohibitive.17 I

'I. Alaska Stat. 29.35.410. Italics added.

12 . Alaska Stat. 29.35.420. Italics added.

13. Starr v. Hagglund, 374 P.2d 3 16,3 19 (Alaska 1962).

14. Alaska Stat. 29.10.080(a).

15 . Exc. pp. 105-107; Alaska Superior Court, Third Judqcial District, Decision & Order in First National Bank of Anchorage, et. al. v. lity of Anchorage, et. al, - Case No. 3AN-97-9296C1, Hunt, J . (May 26, 1998)

16. Charter 3 17.1 l(b). Italics added. I

17 . Charter Commission Commentary to Charter 8 17.1 1(b). ~

C. ANCHORAGE'S STRONG-MAYOR FORM OF HOME RULE - GOVERNMENT.^^

I

The Municipality of Anchorage is a home rule ~unicipality" and political I

subdivision of the State of ~ l a s k a . ~ It has a strong-~ayo?' formtZ of government with

an Assembly as its governing body.23

[The Municipality is also a school districtu and has the Statedelegated responsibility and authority for

establishing, maintaining and operating public schools within the ~ u n i c i ~ a l i t ~ . ~ The Municipahty's

School ~ o a r d , ~ established by ordinancez7 as required by State statutesq is charged with managing the

18. Courts look to a home rule municipality's charter to determine its authority. Municipality of Anchorage v. Frohne, 568 P.2d 3,5 (Alaska 1977).

19. Alaska Stats. 29.04.010 and 29.7 1.100(13); Charter q3.01 and Official Charter Commission Commentary thereto. Area G Home and LarPdowners Organization v. Anchorage, 927 P. 2d 728,729 (Alaska 1996)

20. Alaska Stats. 01.10.060(4) and 29.04.010 \

'I. Charter Article V.; Exc. pp. 109,251,246-247,262,266-267.

". Alaska Stats. 29.20.220 and 29.20.250.

23. Alaska Const. Art. X, 54, Charter 54.01. I

Alaska Stats. 14.12.010, 14.12.020(b), 14.12.030(b1, 14.14.065, 29.35.150, 29.35.160Ca) and 29.20.300, Tunley v. Municipality of Anc@rage, 631 P. 2d 67, 75 (Alaska 1980); Blue v. Stockton, 355 P. 2d 395, 396 (Alaska 1960); Charter $1.01 and Article VI; AMC 81.05.020 and Title 29. "Anchorage Scbwl District" means the Municipality of Anchorage School District. Charter 4 1 .O1 and bMC 5 1.15.030

25. Alaska Stats. 14.1 &.020(b), 29.135.150 and 29.35.160; Blue v. Stockton, 355 P.2d at 396.

26. Alaska Stats. 14.12.030(b) and 29.20.300.

". Charter 56.01 and AMC $29.10.010. I

28. Alaska Stat. 29.35.150

a 4 operationa of the Municipality's schools and providing a public

Municipality's school age children.31 The Municipality has an Asst

Advisory Commission (also "Commission") comprised of nine Anchc

Mayor and confirmed by the

D. THE MEANING OF CHARTER S5.02(C)'S MAY( - OF ITS PURPOSE AND LEGISLATIVE HISTORT

Charter $5.02(c) states in pertinent part:

(c) The mayor has the veto power. The mayor also power. The mayor may, by veto, strike or reduce appropriation measure." * *Ja

It is a settled principle of Alaska judicial decisions that the I

provision is determined by its language, legislative history anc

history, purpose and contemporaneous Assembly construction

establish the Mayor's veto power and authority.

". Alaska Stat. 14.12.020@), Charter @6.01 and 6.03, AN

30. Alaska Stat. 14.14.090(2). 31. Id.

AMC 04.50.070. The Schaol Budget Advisory Con technical advisory commission (AMC chapter 4.50) becau, budgetary and fiscal matters regarding school budgets and expertise and knowledge.

33. Charter $5.07 and AMC 84.50.070. Also herein the "Co

At unification, Charter 55.02{c) contained only the fii 417. The second and third sentences were added in 1990. El also history note to Charter 55.02 at AMC p. CHT-8.

6.

lucational programM for the

1blycreated3* School Budget

Ige citizens appointed by the

RAL VETO IN LIGW

ias line item veto :ms in a budget or

eaning of a constitutional

~ u ~ p o s e . ~ ~ The legislative

f Charter 95.02(c) clearly

ission is denominated a it advises on technical

hding requiring special

mission".

; sentence. Exc. pp. 109, , pp. 447, 455, 457. See

35. Muller v. BP Exploraion, supra, 923 P.2d at 787.

The Legislative History of the Mayor's Veto Power. 4 adopted at unifi~ation,~~

Charter 35.02(c) stated in pertinent part:

'The Mayor has the veto power."37

without further explication. Prior to unification the then goveining veto law was the law

of the Greater Anchorage Area ~ o r o u ~ h . " which prbvided in dsrtinent part:

(a) . . . the borough mayor may veto any ordinance, resolution, motion, or other action of the assembly and may, by veto, strike or reduce items in appropriation ordinances except for school budget iteml.* * * j 9

The veto power of first class city mayors was identical.@ The former City of Anchorage

had a manager form of in which the Mayor yas a member of the city

council and had no veto power.42 Consequently, the above-duoted veto power was the

36. Unification of the Greater Anchorage Area Borough q d cities within it (Charter g19.16) into the Municipality on September 16, 1975 (AMC fibface page xi.)

I

". Former Charter 85.02(c), Exc. pp. 1 09,417,447,455,4$7.

39 . Fonner Alaska Stats. 29.23.170 (1975).

40. Former Alaska Stats. 29.08.010 and 29.23.270 (197b). Since the education function had been devolved upon boroughs, such cities within qrganized boroughs had no education hnction and school budgets therefore were not preseinted to them for approval. Mayors in second-class cities were members of the city coudcil. Former Alaska Stat. 29.23.250 (1975).

41 . Fonner City of Anchorage Charter $1.2 (1974) and f b e r City of Anchorage Code 92.04.010 (1974). Borough mayors in boroughs with a manager-plan form of government also had no veto power. Former Alaska Stat. 29.21.170@) (1975).

". Former City of Anchorage Charter 8$3.4(b),(c) and (h) ((974)

e 4 or& veto power applicable to the fonner local goventmeal

well-known to the Charter Commkswn and t h e p ~ ~ . 4 4

While the Alaska Supreme Court generally refuses

individual legislators as to legislative intent:5 statements of u

of draftsmen, including legislative counsel, and authoring le

than their personal beliefs14' may be relevant, useful and have

contemporaneous constructions by the legislative body,49 con1

by executive and administrative officers are also entitled ti

particularly true where, as here, such statements are those of

Charter Commission chairmen, are reliably objective, con5

history, contemporaneous and confirmed by contemporaneous

43 . Charter819.16.

44. EXC. p. 104. 2B Norman J. Singer, Sutherlund Statutar Ed. 1992).

45. State v. Almka State Employees Association/AFSCME (Alaska 1996).

46. Starr v. Hagglund, supra, 374 P.2d at 319.

47. BrQdner v. Hammond, 553 P. 2d 1,4 at note 4 (Alas United States, 272 U.S. 52 (1926); 2A Norman J. Sin Construction, $48.11, p. 348 text at note 16 and $48.12 and 1992).

49 . 2B Singer, Sutherlund Statutory Construction, supra, ${

m. 2A Singer, Sutherlund Statutory Construcfion, suj Sutherlund Statutory Construction, supra, $49.03.

1 8.

b43 at un$cation and was

to consider statements of

mmittee chairmen:6 views

:islator's statements (other

probative value.48 As with

:mporaneous constructions

great weight." Such is

well-regarded citizens and

stent with the legislative

legislative constnrction.

a 1976) citing Meyers v. :er, Sutherlund Statutory 1999 supplement (5th ed.

49.01 and 49.11.

ru, $48.12; 2B Singer,

By letters of December 2, 1975, seventy-five &ys after unification, the

chairpersons of the Charter Commission and its Charter Prod ction ~omtnittee~' advised

the Assembly the Charter Commission had not intended to ch ge or reduce the mayoral Y. veto power from what it had been but intended it remain the sbme under the Charter as it

had been in the former Greater Anchorage Area Borough prior to unification?2 The two

chairpersons were initially on opposing sides of the "$trong mayor" vs ''weak

mayor/manager" debate." The Charter Production Committee Chairman subsequently

sided with the Charter Commission's Chairman to favor the "yeak mayor/manager" form

of executive* which failed to win approval.55 The Charter aommission and ultimately

the Municipality's electorate adopted the strong-mayor fdrm of executi~e.'~ The I

referenced letters were attacheds7 to legal analysis and adviqe given the Assembly by

then Municipal Attorney, Richard W. Garnett, III who had a1 o been the attorney to the f Charter Commission and the Commission's Charter Productioi committees8 and assisted

Mr. Frank Reed and Ms. Shari Holmes respective4y. Charter Commission Minutes, March 5, 1975, p. 6. Charter Commission members were elected by Municipal voters (Alaska Stat. 29.06.240) and they in turn elected the Charter Commission Chairman (Charter Commission Minutes, February 20, 1975, p. I.) who then appointed the Chairman and members of the Charter Production Commi/ttee with the consensus of the Commission (Charter Commission Minutes, March 5, 1975, p. 6).

53. EXC. pp. 23 1, lines 1-2; 236, lines 13-19; 240-241 ; 250125 1.

54. EXC. pp. 24 1,265, 266-267.

". EXC. pp. 109,262,266-267. I

I

56 . Exc. pp. 109,251,246-247,262,266-267 and Charter M c l e V.

". Exc.p.103.

. Exc. pp. 238,248,263,291,308. I

the Commission in drafting the ~harter.'~ Mr. Garnett concmd that the Charter had not

been intended to change or reduce the mayoral veto power frQm what it had been in the

former Greater Anchorage Area ~ o r o u ~ h . ~ His advice stated iln part:

The Commissioners knew that the mayor of the Greater Anchorage Area Borough exercised a veto power over 'any ord-ces, resolutions, motions, or other actions of the Assembly' AS 29.23.117qa). * * * All of the Commissioners, and the public, knew that the ch@e was essentially between the mayor as he operated in the borough at(d the mayor as he operated in the city. * * * It is inconceivable that the Eommission would have chosen the strong mayor form, but drastically rquced the veto, the key feature of the strong mayor form, without so much as a word of intent or debate on the subject.61

The Legislative Construction of the Mayor's Veto P o w . Although Courts are

the final arbiter of statutory meaning, constructions of constitutional provisions by I

legislative bodies are probative of that meaningG2 and are generally accorded great I

particularly contemporaneous constructions." Such is particularly appropriate

and probative where, as here, the legislative constructions favdr executive powers which

act as a check and balance of legislative authority.

59 . Exc. pp. 274 line 22,310,311. I

". Exc. pp. 102- 1 1 3.

61. Exc. p. 104.

62 . Area G Home and Landowners Organization, Znc, supra, 927 P.2d at 734,735.

63 . Whaley v. State, 438 P. 2d 718, 722 (Alaska 1968)l; 2B Singer, Sutherlund Statutory Construction, supra, 5 49.01.

a. 2B Singer, Surherlund Statutory Construction, supra, 88 k9.03 and 49.08.

On October 7, 1975, twenty-one days after unificatiob, the Assembly enacted a

mayoral veto ordinance identical to the State statute applicqble to the former Greater

r, 65 Anchorage Area Borough, except for eliminating the word "bdmugh .

The Mayor may veto any ordinance, resolution, motiod or any other action of the Assembly and may, by veto, strike or reduce itims in appropriation ordinances, except for school budget items. . . . 66

On April 15, 1978, less than three years after unificaGon, the Assembly, revised

and again enacted6' essentially the same mayoral veto provisiop to read in pertinent part:

A. The mayor has the veto power. The veto must be exercised and submitted to the Assembly. . . . * * *

B. The Mayor may veto any municipal ordinance, r olution, motion or other action of the Assembly, including in its en k ty, any budget or appropriation action. The Mayor may additional y, by veto, strike or reduce particular items in appropriation acti ns, except school

* * * * * * k budget items, in conformance with subsection A.

* * *

The Purpose of the Mayor's Veto Power. That the Voters of the Municipality

created a strong-mayor form of local government at unificatidn is well-e~tablished.~~ A

65. EXC. p. 075. Compare to Former Alaska Stat. 29.23.27q.

66. Exc. p. 075,084-085.

67. Anchorage Ordinance No. 78-49. Exc. p. 087. ,

68. Exc. pp. 094-095.

69. "Anchorage's Strong-Mayor Form of Home Rule Government", supra. The Municipality's Mayor is vested with the executive and a-strative power of the Municipality (Alaska Stat. 29.20.220 and Charter 85.01). The Charter grants the Mayor the exclusive power to appoint of the executive branch Charter pff~cers, department heads and most commission members subject to Assembly confirmaxion [Charter §5.02(a) and 5.02@)], the right to participate in Assembly meetings to extent as Assembly members except he may not vote [Charter §5.02(b)], power [Charter 9 5.02(c)].

key feature of the strong-mayor form is the Mayor's veto pov

and extent of the only veto power applicable to the former gov

It is inconceivable that the Commission would have mayor form, but drastically reduced the veto, the key 1 mayor form, without so much as a word of intent or deb

The 1990 Charter Amendment. Since Charter 85.02(

the veto power.", one of the questions posed to the 1990 Cl

was: "Should the Charter be amended to clarify whether or n

veto power? "73 The 1990 Charter Review Commission concl.

this issue is warranted and in the public interest."" It cc

"Clarifv the issue as it is warranted and in the public i~

amending Charter 85.02(c) difSerentfrom that recommended b

~ornmiss ion~~ was put before the Municipality's voter^,^ pa

$5.02(c) by adding the second and third sentences to make C1:

pertinent part:

'O. Exc. p. 104.

7'. Exc. p. 109.

". Exc. p. 104.

n. Exc. pp. 443,446. Underline added.

. Exc. p. 447. Underlined italics added.

75. EXC. p. 447. Underline added.

76. EXC. pp. 447.

". By ordinance A 0 No. 90-82(S) as Proposition 6 (Exc effective October 2, 1990. Charter $5.02(c).

I 12.

r 7 Knowing the nature

chosen the strong rature of the stron te on the subject. 7F

) stated: 'The Mayor has

lrter Review Commission

it the Mayor has line-item

ded: ". . . clarification of

lsequentiy recommended:

'erest. "75 A proposition

the 1990 Charter Review

;led and amended Charter

uter 85.02(c) now read in

pp. 457-458) and passed

(c) The mayor has the veto power. The mayor alsa has line item veto power. The mayor may, by veto, strike or reduce itqms in a budget or appropriation measure. * * * (New language in italics.)~

Certainly, the 1990 Charter amendment clarified and confirmqd that the Mayor had line-

item veto power. Given constitutional and statutory underpiqnings of Charter §5.02(c),

its legislative history and construction this 1990 amendment +o clarified and confirmed

the mayoral veto power was as it was understood at dfication and prior to the

amendment. I

CONCLUSION

The Mayor's veto powers are co-extensive with the Assembly's legislative authority.

The veto power preserves the integrity of the executiv4 branch in general law

municipalities and the electorate's twice-codinned choice of' a strong-mayor form for

Anchorage's home rule government. Thus is an equilibrium in the checks and balances

of governmental power maintained as a restraint upon hastd, unwise or ill-considered

legislation.* There is nothing to suggest those purposes are dot as valid today has they

have been since the concept of the veto originated.

I Wiliiam A. Greene Municipal Attorney Anchorage, Alaska

I I I October 16,2001

". Thomas v. Rosen, 569 P.2d 793,795 note 5. (Alaska 1 9 9 )