Wednesday, October 12, 2011

Why The Anchorage Mayor's Amendment Veto Justification is Wrong

In July at the only Assembly meeting I’ve been to in a while, Mayor Dan Sullivan stood up after the Assembly voted on an amendment to an ordinance they were considering and said, “I veto that amendment.”    This post explains in excruciating detail why, after checking things out since then, I’m convinced he doesn’t have that power.   You can check my original post describing what happened that night and a follow up post with the memo the Mayor used to justify his veto.

Two basic premise of American government are in play here:
Checks and Balances
Separation of Power

Believing that Mayor Sullivan’s veto of the amendment violates both those principles, I got a copy of the memo the mayor used to justify his action and did some research. 

The Memo

The attorney's memo to the Mayor (ironically, it's not Sullivan's attorney, but his predecessor Mark Begich's attorney, Fred Boness, who wrote the memo) traces things back to a memo from Mayor George Sullivan (Dan's father) in 1975 when the City of Anchorage and  the Greater Anchorage Area Borough (GAAB) merged.  The question then Municipal Attorney Garner addressed was whether the new Municipal mayor was a strong or weak mayor.  Attorney Garner justified his claim for a strong mayor several ways including asking Charter Commission members but also citing the state statute 29 which says a mayor can veto "ordinances, resolutions, motions, and other actions." 

Then, in 200?  Municipal Attorney Boness used that to claim the Mayor had the right to veto amendments to ordinances, but only right after they were passed and before the ordinance was passed because the mayor did not have line item veto for passed ordinances except in the area of budgets and appropriations.  

I wrote my response originally in early July, but it's been held up as I tried to find a copy of the Charter of the Greater Anchorage Area Borough (GAAB).  Ultimately, I've concluded there was no charter.  None of the places I checked - UAA Archives and Alaskana collection, the State Archives in Juneau, Loussac Library's Alaska room, the Anchorage Boundary Commission, Community and Regional Affairs, Jack Roderick (former GAAB Mayor), the Anchorage Municipal Clerk's office, and a few other people and place - had any record of a GAAB Charter.  Finally, the Clerk's office could produce the ordinances of the GAAB which included a section on the Mayor's veto power which was much more limited than the State Statute originally cited. 

So, in this post I will explain why I think the attorney’s opinion that the Mayor of the Municipality has the right to veto amendments to ordinances before the ordinances are passed is wrong.  I think it fails for three different reasons which I briefly summarize here and will explain in more detail below.

Overview of the three lines of argument
1.  Using the Boness document which cites the power of the GAAB mayor as coming from Alaska Statute 29,
    a.      There’s a problem with the jump from “other actions’ to power to veto amendments
    b.     It ignores the separation of powers issues by having the mayor interfere with legislative activities before they have completed their work.

2.  The Boness memo uses the wrong sources to identify the veto power of the GAAB mayor.  The GAAB Code specifies the veto power of the GAAB mayor, which is specific and limited and does not include vetoing amendments.

3.    But both of those sources would seem to be moot because the Municipal Charter was amended in 1990 and that amendment affected the section of the Municipal Charter which outlines the Mayor’s veto power very specifically.

Details of the arguments

1.  The Boness Memo

An  earlier post included the memo from former Municipal Attorney Fred Boness to former Mayor Mark Begich.  This memo was offered by the current mayor, Dan Sullivan, as proof that he could veto an amendment to an ordinance before the ordinance itself was passed. 
As part of the documentation, Boness included a 1975 opinion from Municipal Attorney Richard Garnett III to then Mayor George Sullivan (father of current Mayor Dan Sullivan.)

Garnett says he wrote the memo because:
"A question has arisen as to the scope of the Mayor's veto power.    Some members of the Assembly have asserted that the Charter reduces the Anchorage mayor's veto power below that exercised by the mayor of the former Greater Anchorage Area Borough. For a number of reasons I believe that the Charter did not have that effect."
The Greater Anchorage Area Borough and the City of Anchorage were merged in 1975.  They became the Municipality of Anchorage.  This memo was written in 1975 to the new Municipal Mayor - George Sullivan - who had been mayor of the City, which had a weak form of mayor.

The question being addressed then was whether the Charter Commission intended to reduce the veto powers of the Mayor.  That's a far different question from the one addressed in Boness' memo to Begich - whether the mayor can veto an amendment to an ordinance.  Boness' response says the Mayor can veto an amendment, and if he only wants to veto the amendment and not the whole ordinance, he needs to do it right after it is passed, but before the ordinance is passed. (You can read his exact words in the earlier post which includes the whole opinion.)

A.  Extending the language to include vetoing amendments is an unwarranted leap that isn’t justified by logic or by common  sense

This seems like a huge leap from what Garnett wrote (in part):
The Commissioners knew that the mayor of the Greater Anchorage Area  Borough exercised a veto power  over  "any ordinances, resolutions, motions, or other actions of the Assembly" AS 29 -23.170 (a). The form of executive was the most hotly debated issue before the Commission, the "strong mayor" or "weak mayor".    All of the Commissioners, and the public, knew that the choice was essentially between the mayor as he operated in the borough and the mayor as he operated in the city. The debate frequently was couched in terms of "Jack Roderick" or the "George Sullivan" form of mayor.    It is inconceivable that the Commission would have chosen the strong mayor form, but drastically reduced the veto, the key feature of the strong mayor form, without so much as a word of intent or debate on the subject.

Three things to notice in this passage:
"exercised a veto power over 'any ordinances, resolutions, motions, or other actions of the Assembly'"  (from Alaska Statute 29 on Municipal Governments )

Strong Mayor v. Weak Mayor ("Jack Roderick" or the "George Sullivan" form of mayor
"inconceivable Commission would have chosen the strong form, but drastically reduced the veto, the key feature of the strong mayor form. . ."
1.  Extent of Veto Power - [Note, I will challenge using Title 29 to establish the Mayor’s power in the next two lines of argument, but here I will accept it for the sake of argument and outline why Boness’ argument is still questionable.]  Garnett says that the Borough mayor's veto power is over "any ordinance, resolutions, motions, or other actions of the Assembly."  This language comes from the Alaska Statues, not specifically from the Borough  Charter or ordinances.   I can see how Boness could have construed 'other actions' to include anything else the Assembly did.  Does 'other actions' mean 'all other possible actions' or does it mean 'some other actions?' It's ambiguous and could mean either.  To be sure, one has to look for other evidence.  But as I read the Boness memo, this is the only real basis for making his case.  Everything else may be relevant to Garnett's claims that the mayor's power wasn't reduced, but not to Boness' claim that it included vetoing amendments.

Garnett wasn't arguing for power to veto an amendment, only that the mayor was 'a strong mayor' and had the same veto powers of the GAAB Mayor.  

Garnett's memo goes on to argue that there was no weakening of the veto power.  From that to power to veto amendments is a giant leap.  Let’s look at the words:
1.  Ordinance - this is a completed action
2.  Resolution - this is a completed action
3.  Motions and other actions - this is more ambiguous.  One possibility was that they wanted to cover other sorts of motions, beyond ordinances and resolutions, or to avoid having the legislative body use a different name for an ordianance, perhaps a bill, an act, or an appropriation, or a proclamation. 
To say the Mayor can veto ‘any action’ by the Assembly flies in the face of common sense.  Can the Mayor veto the Assembly’s choice of Assembly Chair?  What about their choices for Assembly officials - ombudsman, attorney, etc.? 
But let’s take it further.  If the mayor can veto any action the Assembly takes, then he could veto every motion any Assembly person made and prevent the Assembly from getting anything done.  So, while I acknowledge that “other actions’ could be seen to open the door to anything, common sense shows us that could not be the case.  It would mean the Mayor could prevent the Assembly from doing anything. 
B.   It ignores the separation of powers clause that is the basis for democracy in the United States.  The President of the US cannot interfere in the legislative debate of Congress.  Governors do not interfere with the legislative debate of their legislatures.  Mayors tend to have a closer relationship to their legislative bodies - city councils or assemblies.  Some mayors are members of the council.  But Anchorage’s mayor is not.  While it is traditional for the mayor to be at Assembly meetings and to ask and answer questions, I can’t find anyone who remembers an Anchorage Mayor vetoing an amendment to an ordinance that hasn’t been passed. 
The role of the Assembly is to create legislation.  The Mayor can veto that legislation, but only after it has been passed by the Assembly.  To interpret the language as broadly as Boness did in the memo, would obliterate the separation of powers and give the Mayor the power to prevent the Assembly from doing anything.

2.   The Boness Memo Uses the Wrong Source of Power  - A

The Boness memo follows the Garnett memo of using the Alaska Title 29 as the baseline for the Mayor’s veto power.  But the GAAB Mayor’s veto power was spelled out in the GAAB Code. 

The Mayor can veto ordinances and resolutions  [Get the exact]

The GAAB mayor was a strong mayor compared to the old City’s mayor, but his veto power was spelled out in the code and it did not include the power to veto amendments to ordinances that hand’t yet been passed. 

Because it was spelled out in the ordinances, there was really no need for Garner to go to Title 29 of the Alaska Statutes.  The GAAB Ordinance was the

3.  The Boness Memo Uses the Wrong Source of Power  - B

In 1990, the voters of Anchorage approved charter amendments which included new language concerning the mayor’s veto power.  The  intent of the original charter commission at that point became moot.  The new language spells out the veto power of the mayor.  It’s clear, precise, and doesn’t include the power to veto amendments.

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