Mississippi Advisory Opinions October 17, 2014: AGO 2014-00385 (October 17, 2014)

Advisory Opinion Text

AUTH: Leigh Triche Janous

RQNM: Amy Lassitter St. Pe’

SUBJ: Municipalities

SBCD: 142

TEXT: Amy Lassitter St. Pe’, Esq.

Attorney, City of Moss Point

Post Office Box 1618

Pascagoula, Mississippi 39568-1618

Re: Mayoral veto

Dear Ms. St. Pe’:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to whether a board of aldermen in a code charter municipality may delegate the authority to suspend an employee without pay to the mayor. Specifically, you provide, in pertinent part, the following:

I am the City Attorney for Moss Point, Mississippi and have been asked by the Board of Aldermen to request an opinion from your office on the legality of a recent Mayoral veto. The facts are as follows: At its regularly scheduled board meeting on August 19, 2014, the Board of Aldermen voted by a vote of 4/3 in favor of hiring a new police chief. There were two candidates for the police chief position. On August 20, 2014, the day following the regular scheduled meeting, the Mayor issued his veto to the hiring of the individual and stated as his basis that he felt that the other candidate was better qualified for the position. At the next regularly scheduled board meeting on September 2, 2014, an Alderman made a motion to override the Mayor’s veto . This Motion only received 4 votes instead of the required 3/5's (or 5 votes because it is a 7 member board) and therefore, the Mayor’s veto stood. In return, the interim police chief (i.e. the other candidate for the Chief position) stayed in the interim position. It should be noted that the original Motion to hire made on August 19, 2014 was a verbal motion and not a written “ordinance.” It should also be noted that the Board has not given the Mayor the authority to unilaterally approve minutes.

The Board has raised a concern with regard to the timeliness of his veto and would like clarification on whether the “verbal” motion made at the meeting is considered “received” by the Mayor at the time the Motion is made and, therefore, the ten days as set forth in MCA Section 21-3-15 begins to run from the meeting date or if the minutes from the meeting where the verbal motion was made has to be formally approved by the Board before the ten-day time frame to veto starts. In simple terms–

(1) May the Mayor veto an action of the Board (if he is present at the meeting when the action is taken) PRIOR to the minutes being formally approved by the Board when the action taken was the result of a verbal motion and not a written ordinance?

(2) Give examples of what would be considered “receipt” as contemplated by MCA Section 21-3-15 in a code charter municipality where the Mayor does not have the authority to unilaterally approve minutes?

(3) If you find that the Mayor’s veto was premature since it was presented prior to the minutes being approved, does this invalidate the veto?

(4) If your answer to #3 is that it does invalidate the veto–May the Mayor issue a second veto even though the initial ten (10) days has expired?

I realize that your office does not offer opinions on past acts, and there are numerous opinions that state “the determination as to whether the mayor has received an ordinance, as contemplated in Section 21-3-15, prior to the adoption of the minutes, is a factual determination” to be resolved by the Board of Aldermen. You further state that if the Mayor does not agree with the factual determination, then such determination is subject to review by a court of competent jurisdiction and the mayor may seek relief by filing an action in court. It is not my intent to inquire further than the Board’s request above, but I will need guidance on how to advise the Mayor and Board if this issue is taken to court as I have not encountered this scenario in the past. In this scenario:

(1) As City Attorney, I was hired to represent the City of Moss Point, which includes the Mayor and the Board of Aldermen. As such, what role would I play in the representation of the City in such an action? If I represent the Mayor then I am opposed to 4 aldermen and if I represent the 4 aldermen then I am opposed to the Mayor and 3 aldermen.

(2) Would the City be responsible for the Cost of such an action for both sides?

(3) Would the Mayor be allowed to veto an action by the Board finding that his receipt of the ordinance was not valid until such time as the minutes were approved? In Austin, you state “A mayor may veto any action of the board of aldermen, except for a negative vote.”

Response

We preface our response by stating that this opinion is prospective in nature only and does not address actions that have already been taken by the municipality. An opinion from this office can neither validate nor invalidate any such past actions. Therefore, to the extent that your request deals with a past action, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

A lawful veto of an action of the board of aldermen by the mayor, in accordance with Mississippi Code Annotated Section 21-3-15, must be recognized by the governing authorities, even if such veto is made prior to the minutes of the meeting being formally approved. While the question as to whether a mayor has “received” an ordinance is a factual determination, “receipt” may be in the form of a written ordinance that is presented to the mayor at, or after, the meeting, approval of the minutes, or any other action which constitutes “receipt” by the mayor. In the event that the mayor fails to properly submit his veto in accordance with the provisions of Section 21-3-15, within ten (10) days after he has received the ordinance, he loses his statutory authority to veto, even if he has previously declared his intention to veto.

A municipal attorney represents the municipality in its entirety, rather than individual municipal officers and employees and, as such, may not represent the mayor alone in an action against the board of aldermen nor vice versa. In accordance with Section 25-1-47, a municipality is authorized to pay for legal expenses related to the defense of a lawsuit filed against a municipal officer as a result of his actions while acting in the capacity of a municipal officer. In the event that payment is not authorized by the board of aldermen, a mayor may act to employ his own counsel and any resolution of the payment of expenses of the defense would be best left to the discretion of the Court. Likewise, a municipality could pay for legal expenses incurred by bringing an action while acting in the capacity of a municipal officer and, assuming the board does not authorize payment for expenses incurred in bringing said suit, resolution of payment of those expenses would be best left to the Court. A mayor has no authority to veto a simple factual finding of the board of aldermen without any corresponding official action as a mayor’s veto power is limited to affirmative actions of the board of aldermen. Whether a veto is valid or not is a factual determination to be made by a court of competent jurisdiction.

Applicable Law and Discussion

We have consistently opined that, as a general rule, the ten (10) day time period for mayoral veto begins to run from the date of the meeting in which the minutes are approved. MS AG Op., Miller (June 12, 2009); MS AG Op., Perkins (April 4, 2008); MS AG Op., Wiggins (April 21, 2006). Additionally, we have recognized other specific instances in which the veto time frame may begin prior to the approval of the minutes, i.e., veto time begins to run from the time the minutes are presented to the mayor for approval, veto time begins when mayor receives the ordinance from the board. MS AG Op., Austin, (May 21, 2012). In comparison, it has been the position of this office that actual knowledge of an action by virtue of the fact that the mayor is present at the meeting in which the action has taken place does not constitute receipt as contemplated in Mississippi Code Annotated Section 21-3-15. MS AG Op., Wiggins (July 29, 2005). In regard to what action would serve to trigger the mayor’s veto power, we concluded, in the Austin opinion referenced above, the following:

[w]e believe the Legislature intended that a written ordinance is to be presented to the mayor at or after the meeting, but before the next meeting of the board of aldermen. Once received by the mayor, he may affix his signature indicating his approval or return it to the board of aldermen by delivering a written statement setting forth his objections to the municipal clerk, which would signify his/her intention to veto said ordinance within ten days of receipt. It is now the position of this office that, once the written ordinance is received by the mayor, his/her authority to veto said ordinance is triggered and the ten day time frame begins to run. Having said that, if a separate written ordinance is not delivered to and received by the mayor, then it is, in effect, deemed received upon approval of the minutes. Naturally, the determination as to whether the mayor has “received” an ordinance , as contemplated in Section 21-3-15, prior to the adoption of the minutes, is a factual determination.

Regardless as to whether the mayor has delivered his/her veto prior to actual ‘receipt’ of such ordinance, a veto of an ordinance by the mayor must be recognized by the governing authority, assuming that such veto complies with the statutory mandates of Section 21-3-15.

Clearly, the veto time period would begin to run when the minutes are approved, unless some action has taken place before approval of the minutes which constitutes “receipt” by the mayor. The determination as to when the mayor has “received” the ordinance is a fact-specific determination. Once the mayor has received the ordinance, he has ten (10) days from receiving it to either approve the ordinance or return it to the board of aldermen by delivering it to the municipal clerk together with a written statement stating his objections to such ordinance. The veto power of a mayor is limited to ten (10) days after he has received the ordinance. As we concluded in the Austin opinion referenced above, a lawful veto of an action of the board of aldermen by the mayor, in accordance with Mississippi Code Annotated Section 21-3-15, must be recognized by the governing authorities, even if such veto is made prior to the minutes of the meeting being formally approved. In the event that the mayor fails to properly submit his veto in accordance with the provisions of Section 21-3-15, he loses his statutory authority to veto, even if he has previously declared his intention to veto. MS AG Op., Cockerham (June 11, 2012).

You inquire as to whether our responses to Questions 4 and 5 contained in your request are impacted by our previous position that a mayoral veto must be recognized, regardless of whether the mayor has delivered his veto prior to actual “receipt” of the ordinance, and that a municipality may not operate in such a manner as to circumvent the statutory authority of a mayor. We would note that your request did not include a Question 5. Therefore, we limit this answer to our response to Question 4, which would remain unaffected by our previous position. Without question, the Legislature intended on granting the mayor the authority to veto a measure, should he desire to do so. Such authority was clearly limited in time to ten (10) days from receipt of the ordinance. Should the mayor fail to comply with the mandatory provisions of Section 21-3-15 in the filing of his veto, he will lose his right to veto the ordinance. MS AG Op., Cockerham (June 11, 2012). With respect to the actions of the municipality, it should refrain from taking action on orders of the board of aldermen until the veto time period has lapsed. Otherwise, the statutorily established veto authority of the mayor is virtually eliminated should the municipality take action prior to expiration of the veto time period. In any event, delivery of a veto prior to receipt by the mayor of a written ordinance or approval of the minutes is, by definition, within the ten day time period and complies with the statute.

In response to your inquiry regarding the role of the municipal attorney in an action for relief filed by the mayor in a court of competent jurisdiction, the municipal attorney represents the municipality in its entirety, rather than individual municipal officers and employees. MS AG Op., McCaughn (November, 2009); MS AG Op., Stokes (March 5, 1999); MS AG Op., Fleuriet (October 18, 1995). In the instance in which the mayor and the board of aldermen have taken an adverse position from one another, the municipal governing authorities may appoint attorneys to represent the mayor and the board of aldermen, as separate parties. MS AG Op., Lawrence (July 26, 2006). Compare also MS AG Op., Ramsay (November 29, 2010)(attorney, other than city attorney, may be appointed to represent the civil service commission); and MS AG Op., Hilburn (April 8, 2005)(municipal governing authorities may represent civil service commission). In accordance with Section 25-1-47, the municipality is authorized to pay for legal expenses related to the defense of a lawsuit filed against a municipal officer as a result of his actions while acting in the capacity of a municipal officer. In the event that payment is not authorized by the board of aldermen, we have previously opined that “the mayor may act to employ his own counsel, and any resolution of the payment of expenses of the defense would necessarily be a matter left to the discretion of the Court.” MS AG Op., Lawrence (July 26, 2006). Likewise, a municipality could pay for legal expenses incurred by bringing an action while acting in his capacity as a municipal officer. Assuming the board does not authorize payment for expenses incurred in bringing said suit, resolution of payment of those expenses would be best left to the court.

In regard to your last inquiry, we reiterate our long-standing position that a mayor may veto any action of the board of aldermen, except for a negative vote. MS AG Op., Parker (May 29, 2012); MS AG Op., Butler (October 25, 2011); MS AG Op., Holder (September 25, 2009); MS AG Op., Cordell (October 13, 1987). A mayor cannot veto a negative vote and then affirmatively implement what the board of aldermen voted not to do. MS AG Op., Davis (August 13, 2004); MS AG Op., Brown (July 1, 2004); MS AG Op., Tanner (February 14, 2003); MS AG Op., Cordell (October 13, 1987). In other words, the only actions of the board of aldermen that are subject to the veto power of a mayor are those that are affirmative actions of the board of aldermen. MS AG Op., Freer (May 23, 1997). Whether the mayor may veto an action would depend upon the wording of the motion, whether the motion fails or passes and whether it constitutes an affirmative action of the board. Your factual scenario appears to inquire about the authority of a mayor to veto a factual finding made by the board of aldermen. We are of the opinion that a mayor has no authority to veto a simple factual finding of the board of aldermen without any corresponding official action, as a mayor’s veto power is limited to affirmative actions of the board of aldermen. See MS AG Op., Henderson (October 3, 1984). Whether a veto is valid or not is a factual determination to be made by a court of competent jurisdiction. MS AG Op., Perkins (April 4, 2008).

If we may be of further assistance, please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Leigh Triche Janous, Special Assistant Attorney General.

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Notes:

At the September 2, 2014 meeting, the Motion to override the Veto came after the Board had already approved the minutes from the August 19, 2014 meeting. The minutes are approved at the beginning of the meeting (in the consent agenda) and the “Action on Mayor’s Veto” was the last item on the agenda for September 2, 2014. (See amended agenda order attached hereto as Exhibit A) . The validity of the veto was not questioned at the board meeting, but it was later disclosed that the Board acted to override the veto because it feared that it would lose its right to override since the law requires any override attempt to take place at the next regular or special called meeting more than three days subsequent to the delivery of the veto message by the mayor. MS AG Op., Wiggins (July 29, 2005); MS AG Op., Sipes (February 15, 1995).

The act of returning the ordinance to the municipal clerk, along with a written statement outlining the mayor’s objections to the ordinance, within the statutory time period, constitutes a veto of the ordinance.

In the event that the mayor has approved the ordinance, there is no need to wait for the expiration of the veto time period.

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