To: Mayor and Board of Aldermen
From: C. Paul Smith
Date: May 9, 2009
Re: City’s Request for Opinion from Attorney General
I am requesting that the City withdraw its request of May 6, 2009 to the Attorney General, asking him to issue an advisory opinion as to three issues related to the ERIP (passed April 17, 2008). (Each of you should have a copy of the Mayor’s letter to the Attorney General together with the Legal Department’s memo.) This is not a matter that requires a vote of the Board of Aldermen, but, for the reasons stated below, I am requesting each of the Aldermen to express to Mayor Holtzinger your concurrence with me that the request be withdrawn. There is no reasonable expectation that an opinion from the Attorney General will be of any help to the City on any of the three issues, and the making of this request will merely be an embarrassment to the City for taking petty political issues to the Office of the Attorney General. Regardless of how the Attorney General responds to the City’s request, such response cannot be expected to provide any meaningful help in resolving the issues raised. Whatever opinions the Attorney General might render would merely be “advisory” opinions and they would not have the force of law to either confirm or repeal the City actions that they might address.
I would point out that the City has asked the Attorney General to address three separate questions. In the event you agree that one or two of the questions should be withdrawn, then please express this to the mayor. In my opinion it would be better for the City to withdraw even one or two of the questions than to withdraw none of them.
QUESTION NO. 1
Question No. 1: Is the intent of the Aldermen on matters not covered in a Board Resolution a part of that Resolution?
Answer No. 1: The simple and obvious answer to this is “No.” The very reason votes are taken on resolutions is to establish an official City position and to take a specific City action. It would totally undermine our government if someone could seek to establish an official City position without the safeguards and procedures present with respect to official votes on resolutions. It is inconceivable that the Attorney General could give any opinion other than this. And if he did, that advisory opinion would have to be disregarded.
In the event it should become necessary to determine the meaning of any ambiguity that may be found to exist in a resolution, then the expressed opinions of Aldermen on the substance of part of a resolution may become relevant. But no such opinion can be used to expand the scope and breadth of a resolution or to insert a condition into a resolution. The clarifying of an ambiguity in a resolution through the examination of statements by Aldermen is inherently problematic because the opinions of Aldermen can and sometimes does change in the course of a debate/discussion. Thus, even the identification of statements in support of one interpretation are not necessarily reliable to establish that interpretation as being the final interpretation held by a particular Alderman on a certain issue.
With respect to the particular factual question that is driving this issue for the Attorney General, it is my recollection that I for one voiced my opinion that while in general, no employee who might accept the buy-out should have any right to be rehired by the City, the City, on the other hand, should have the ability to rehire certain employees if the continued involvement of such employees was deemed very important to the City. It is my recollection that the Board of Aldermen did not discuss and reach a consensus on any specific terms, conditions and limitations as to such rehires.
Conclusion on No. 1: I suggest that the City withdraw its request that the Attorney General respond to this question. It would be a waste of the State’s time and money, and would not provide anything of benefit to the City.
QUESTION NO. 2
Question No. 2: What length of separation is required before an employee who took the buy-out can be rehired by the City?
Answer No. 2: The answer is that there is no required separation time for an employee, except that for those employees whose eligibility for the buy-out was met only by virtue of the “bridged years of service”—those employees must be separated from employment by at least 30 days before they could be eligible for rehire.
This answer is clear and unambiguous. Some may not like this answer because of its applicability to certain employees. But the result is clear. There is no legitimate issue to send to the Attorney General that challenges this result. This question is being submitted only because some people don’t like the result—not because any legitimate issue has been raised about it. If someone has some basis for challenging this answer, I would like to hear what it is. At this point I have not heard any reasoned challenge to this separation policy. Therefore, the City’s request to the Attorney General is merely asking him to think of some reason why this separation policy might be invalid. In my opinion that is not a proper basis for requesting the Attorney General to render an advisory opinion.
Conclusion on No. 2: I suggest that the City withdraw its request for the Attorney General to respond to this question. It would be a waste of the State’s time and money, and would provide nothing of benefit to the City.
QUESTION NO. 3
Question No. 3: What authority does the Mayor have to designate an employee to serve in an appointed position on a temporary basis without seeking the advice and consent of the Board of Aldermen?
Answer to No. 3: I would note preliminarily, that in my opinion this could be a legitimate question for the mayor and board because I do not find it specifically addressed in the Charter. I believe there is an inherent power on the part of the mayor to designate someone to do the work of someone in an appointed position on a temporary basis and for temporary and reasonable reasons and needs. Thus, depending upon the circumstances, it may become necessary for a Board of Aldermen to take some extraordinary legal action in the way of mandamus or injunctive relief if a mayor exceeded the implied scope of his authority in designating someone to temporarily fill an appointed position.
I fully expect that if the Attorney General were to respond to this question, he would give a general answer, similar to that which I suggested above. But such an answer cannot be expected to do anything to resolve the specific situations that are giving rise to the request for the Attorney General to give an advisory opinion. The limits and extent of implied mayoral powers can only determined by specific factual situations. And this can only happen if the Board of Aldermen should as a body take action to challenge something the mayor has done. For the reasons stated below, I don’t think that would be appropriate here. There is no practical reason to ask the Attorney General for an advisory opinion on this issue.
It is my understanding that this issue is being raised because of the dissatisfaction of some with the continued services of Ron Tobin and Earl Reed. Both of whom I understand took the buy-out, and both of whom have continued to work for the City. Both of these men were in appointed positions for which the approval of the Board of Aldermen was initially given. The argument is raised that since they accepted the retirement buy-out that they therefore cannot continue functioning in their appointed positions unless this is approved by the Board. I am not sure that this is a correct position. I am not sure that they need an additional board approval for continuing to serve in the positions to which they previously received Board approval. I understand that the mayor’s position is that even if Board approval would be necessary for approval on a permanent basis, their continued service is now only temporary, until the end of this mayor’s current term in office, and therefore that no Board approval is required.
If the Attorney General should eventually issue an advisory opinion that the mayor is mistaken, then where does that leave the City? With less than six months remaining in this mayor’s administration, does the Board of Aldermen really want to commence a court action to ask the Court to make the mayor either bring these men or other individuals to the Board for a vote? I for one do not wish to do this. This would be making a mountain out of a mole hill. There is no practical reason to pursue such litigation. There is no practical reason to try to force the mayor to appoint any particular person to fill these two appointed positions for periods of six months or less The only reasonable thing to do is to allow this mayor to continue to have his people in these designated positions until the end of his term. Any contrary action is merely petty politics. Such actions would be of no value at all to the City.
Conclusion No. 3: I suggest that the City withdraw its request for the Attorney General to respond to this question. It would be a waste of the State’s time and money, and would provide nothing of benefit to the City.