Thursday, June 30, 2011

Attorney to Mayor: You Have Power To Veto Amendments

At the Assembly meeting Tuesday night, Mayor Sullivan vetoed an amendment to a proposed ordinance that had just passed.  I wrote about it with amazement and questioned, particularly, how that fit with separation of powers between the legislative and executive branches.  The attorney at the meeting representing the mayor said there was an interpretation finding the mayor had this power.  The assembly's attorney thought he did not, and also mentioned separation problems and the need for a written statement explaining the veto.  The Municipal Clerk had also mentioned the written memo requirement in the Charter. 

Yesterday I called the mayor's office and was forwarded to Legal.  This morning Legal called back and asked for more information about what I was looking for.  Soon they called back and said they couldn't find anything from Municipal Attorney Wheeler to Mayor Sullivan on the veto.

But, they had a 2006 memo from  earlier Municipal Attorney Boness to Mayor Mark Begich on veto power.  It's a 28 page memo.  I've embedded the full document further down in this post.  But as you can see from the synopsis at the beginning of the memo, Attorney Boness clearly believed that the mayor has the power to do exactly what Mayor Sullivan did on Tuesday night.

Memo Synopsis
"QUESTION: You have requested I provide you with a general discussion of the veto authority of the mayor, and to specifically address whether you may veto a motion approved by the Assembly which amends a proposed ordinance.    If you have the authority to veto a motion, you have asked me to indicate 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 dependent upon the goal to be achieved by the amendment. Assuming your goal is to prevent 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 should be made immediately after the Assembly votes to approve the amendment and before the Assembly considers the proposed ordinance."
The memo cites earlier memos interpreting the Charter Commission's intent when it gave the Municipality the 'strong mayor' form of government that the Greater Anchorage Area Borough had.  (The Borough merged with the City of Anchorage to become the Municipality of Anchorage in 1975.)

The Municipal Charter, Section 5.02 c says:
The mayor has the veto power. The mayor also has line item veto power. The mayor may, by veto, strike or reduce items in a budget or appropriation measure. The veto must be exercised and submitted to the assembly with a written explanation within seven days of passage of the ordinance affected. The assembly, by two-thirds majority vote of the total membership, may override a veto any time within 21 days after its exercise.

Anchorage Mayor Veto Power Opinion - Boness 06-011

I've tried to find other examples of executives being able to veto an amendment before the main motion was even passed.  The closest I came to was this 2008 discussion of Illinois' "amendatory veto" from Eric Zorn in the Chicago Tribune:

You have questions about Gov. Rod Blagojevich's big surprise last week. And I have answers.
Q: Is the proposal to make public transportation free for senior citizens a separate bill suddenly submitted to the legislature?
A: No. Without warning, Blagojevich simply tacked it onto the transit-bailout bill that lawmakers sent to his desk Thursday. Then he sent that bill back to the General Assembly saying, in effect, I'm vetoing your plan unless you also approve my idea.
Q: What makes him think he can do that?
A: A passage in Article IV of the Illinois Constitution of 1970 allows a governor to make "specific recommendations for change" to any piece of legislation, then send it back to be OK'd. The informal name for this is an amendatory veto.
Q: Can the legislators reject such changes and pass a bill in its previous form?
A: They can. But they need a  three-fifths vote in both houses to do so. To accept the changes, however, they need only a majority vote.
Q: Do all U.S. governors hold such a mighty club?

A: No. Illinois is one of seven states where the governor has amendatory veto powers, according to the National Conference of State Legislatures.
Q: Whose idea was that?
A: "It was mine, I'm almost embarrassed to say," said former  state Comptroller Dawn Clark Netsch, now a Northwestern University law professor. She was a delegate to the 1969-70 Constitutional Convention and wrote the proposal that advanced the amendatory veto.
Q: What was she thinking?
A: That it was an efficient way for the governor and part-time legislators to tweak bills as needed and speed them along. "A governor can use the power with discretion and in appropriate circumstances and not abuse it," Netsch said, and then she laughed merrily.
Q: What's so funny?
A: History has been unkind to this optimistic notion, as Netsch came to realize. Illinois governors have been making mischief with amendatory vetoes since 1971, when Richard  Ogilvie totally rewrote three bills and sent them back to the legislature.
Q: Did he get away with it?
A: No. The Illinois Supreme Court ruled in 1972 that "the substitution of complete new bills ... is not authorized by the constitution." In the most recent related case, in 1980, the state high court added the view that amendatory vetoes can't "change the fundamental purpose of the legislation, nor make substantial or expansive changes in the legislation."
If readers know of other jurisdictions where the executive can veto legislation in the middle of the legislative process rather than after legislation is passed, please comment below or send me an email.

Regarding Tuesday night, the mayor did have an opinion saying he had the power to veto amendments.  The opinion wasn't from his own attorney, but from now Sen. Begich's attorney.  An opinion is an opinion.  It's not law until it is challenged in court and upheld. 

I find the logic and documentation used to link this power through the charter to the powers of the Greater Anchorage Area Borough's powers persuasive.  Though I would like to hear some attorneys' comments, especially how it relates to the separation of powers between the legislature and the executive. 

I called  now Sen. Begich's office to ask whether then Mayor Begich had ever used this form of veto.  While they couldn't recall it and were pretty sure he hadn't, they said they didn't have access to the records to check.  Municipal Clerk Barbara Gruenstein checked the records and said that Mayor Begich had only vetoed one ordinance.  He never used the power to veto an amendment which his attorney said in this memo he had. 

By the way, the Clerk said the Mayor did write out an explanation of his veto at the meeting. 


  1. Stopped back to look for an update to your first Sullivan veto post.

    In many years of following politics I was aware of the Illinois form of this, but have never seen anything such as the veto power purportedly held by the Anchorage Mayor.

    I will be reading the opinion. Perhaps you might want to post this on a few appropriate legal blogs to get some additional eyes on this.

  2. Anon, thanks for the comment. Do have some law blogs in mind?

  3. A worrying memo, Steve, regardless of politics of the office holder. There is a point where the democratic executive can become feudal lord.

  4. Wickersham's Conscience?

    Just post this to
    and include the request for additional places to post. A link to the sunsetting of the boards and commissions will make clear the context of this veto. As would a brief explanation and link to the insurance coverage controversy. Was Sullivan unaware of this power then? Did he pass on the opportunity to use it then?

    When it comes to governance, there are few government actions that do not have some fiscal component; thus making it possible to argue that nearly everything is an appropriations measure. Are there any expenses for any of these boards and commissions?

    Like you said in the post, this concept stands until it is challenged and overturned. The possibilities for making mischief are unlimited with this power.


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