As city charter turns two, questions remain

On November 24, 2009, City of Pensacola voters approved a new charter that reorganized municipal government under a “strong mayor.” It’s been an eventful two years, but many questions about the new government remain unanswered. In particular, the city council has become increasingly polarized regarding the mayor’s agenda, with no detente in sight.

Here are just a few of the more contentious issues.

Separation of powers

Since Mayor Hayward took office in January, there have been several times when council members have chafed under the constraints of the new charter, or rather, how the charter is being interpreted by the mayor’s office.

Case in point: when the mayor released his proposed budget, it restructured several departments with new cabinet-level positions overseeing them. The charter says the mayor may “appoint the head of each department, with the consent of the City Council by an affirmative vote of a majority of City Council Members.”

However, none of the new positions have been confirmed by council. The mayor’s office contends these positions do not require confirmation because they are not department heads as defined by the charter.

Mayor’s attendance at council meetings

When the charter passed, it was widely assumed that the new strong mayor would attend city council meetings. In his first months in office, however, Mayor Hayward made it known he didn’t feel obligated to be there, attending only part of one meeting.

The charter says that the mayor “shall have the following powers and duties,” one of which is “to attend all meetings of the City Council with authority to participate in discussions, but without power to vote.

Hayward interprets this wording as a power of the mayor, not a duty. He said via a statement that he would “participate in meetings when there is an issue that I need to speak to, or when there is a decision that we need to make jointly,” but otherwise would send a staff member to represent him (usually City Administrator Bill Reynolds). Councilwoman Sherri Myers has repeatedly criticized this arrangement and has asked for an independent legal opinion.

At-large City Council seats

An early draft of the new charter removed the two at-large seats, which would have resulted in seven single-district council seats. For politically expeditious reasons it was changed back to a 9-person council before the charter went to voters, but there have been subsequent efforts to re-address the issue through a city referendum.

Councilman Sam Hall has called for an end to the at-large seats, one of which he now occupies. As he told the News Journal in March, “My intent would not be to kick anyone out of their seat. … I am asking that it go away at the end of my term [in 2012].”

Of course, Hall was just elected president of the city council, which carries a two-year term. As council president, he may bring agenda items up for discussion. Will he use this authority to press for a referendum on the at-large seats, or has that train left the station?

CRA authority

Last week, Mayor Hayward fired Community Redevelopment Agency Administrator Becky Bray. The charter gives the mayor power to remove employees “with or without cause, and without the consent of City Council Members,” but the CRA is a special case with authority organized under the city council. Through a temporary interlocal agreement, the city shares responsibility for personnel and other management, meaning Bray was considered a city employee subject to removal by the mayor. (Hayward had previously fired CRA director Thaddeus Cohen for undisclosed reasons.)

Hayward told the PNJ’s Jamie Page that he could not discuss the reason for Bray’s dismissal, except that he “want[ed] to go in a different direction with the person running the CRA.” However, reporting by the Independent News and Rick Outzen suggests that the firing stemmed from the CRA’s hiring an outside legal counsel to draft a new interlocal agreement that would put authority back in the hands of the CRA (i.e. the city council) — something Outzen characterizes as a “power grab.”

The council will convene as the CRA on Monday, the first time since Bray’s firing and other issues came to light. That should be an interesting meeting.

Legal primacy

In the cases mentioned above, who can settle the legal issues at hand? In theory it should be the city attorney, Jim Messer. But Messer was hired by and works under the mayor, which presents a conflict of interest in questions of separation of powers.

Messer has employed the services of the Tallahassee law firm Allen, Norton & Blue for some of these questions. He and the mayor’s chief of staff John Asmar recently circulated a letter of opinion from that firm to city employees saying the mayor has power to circumvent the city’s Civil Service Board in personnel matters:

Since the 2010 Charter was adopted by referendum pursuant to F.S. 166.031, to the extent that the Mayor’s Charter authority conflicts with or affects the rights of municipal employees, the city’s home rule legislative authority will supersede the special act’s conflicting language. Accordingly, our opinion remains that the Mayor has “the power to appoint, discipline, and remove all officers and employees,” as well as the power to take any and all other personnel actions previously administered or undertaken by the Civil Service System/Board, as stated in Section 4.01 of the Charter, regardless of any and all conflicting language and provisions of the civil service special act.

Messer has said that there are inevitable “growing pains” for any new government, and that if it takes a judge to settle some of these questions, so be it. Based on frictions of the last few months, that seems inevitable too.