OFFICE OF THE MUNICIPAL ATTORNEY

DATE :

July 10,2006
Mayor Mark Begich Frederick H. Boness, Municipal Attorney
RE: VETOAUTHORITY A 0 AME~BMENTS Law Dept. Matter No. 05-0438

To:

FROM:
SUBJECT:

QUESTION: You have requested I provide you with a gelieral discussion of the veto authority of the mayor, and to specifically address whetha you may veto a motion approved by the Assembly which amends a proposed or$nance. If you have the authority to veto a n~otion,you have asked me to indicaqe 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 depeqdent upon the goal to be achieved by the amendment. Assuming your goal is to prlevent 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 sh'ould be made immediately after the Assembly votes to approve the amendment and bef4re the Assembly considers the proposed ordinance. DISCUSSION: The Anchorage Municipal Charter section 5.02(c) provides:
The mayor has the veto power. The mayor a140 has line item veto power. The mayor may, by veto, strike or reduce $ems in a budget or appropriation measure. The veto must be exercised qnd submitted to the assembly with a written explanation within seven dais of passage of the ordinance affected. The assembly, by two-thirds majqrity vote of the total membership, may override a veto any time within 2 1 ddys after its exercise.
I

The mayor of the Greater Anchorage Area Borough exercis "any ordinances, resolutions, motions, or other actions of

a broad veto power over Opinion No.

Mayor Mark Begich July 10,2006

Page 2 of 3

75-29 at 3 (citing former AS 29.23.170(a)).' This expagsive veto power was not expressly stated in the Anchorage Municipal Charter.
A. Support for broad general veto power

Nevertheless, there is strong support to conclude the mayor of the Municipality of Anchorage has the same expansive veto authority as the mayc)r of the Greater Anchorage Area Borough:
J

a. In Municipality o Anchorage v. Repasky the Alaska Supreme Court declared: f "[Tlhe language of charter subsection 5.02(c) is sweeping. It expresses no limit on the general veto power." 34 P.3d 302,307 (Alaska $001). b. An exhaustive opinion, which relies upon Charter soqrce documents, by former municipal attorney William A. Greene concludes the mlayor may veto amendments to ordinances. See Opinion No. 0 1-64.* c. In February 2000, Judge Eric T. Sanders of the Alaskq Superior Court upheld the veto by the mayor of the amended budget as approved by the Assembly, A 0 99124(S)(as amended). See Murdy, Carlson, Wohlforth w. Mystrom, Municipality o f , Anchorage, Case No. 3AN-99-12398 CI. d. An opinion written by former municipal attorney a d attorney to the Charter Commission and the Commission's Charter Producti n Committee, Richard W. Garnett, I11 states the mayor of the Municipality of An horage was to be a "strong mayor" and have the same veto power as the mayor of the Greater Anchorage Area Borough to veto "any ordinances. resolutions, motions, or other actions of the Assembly." See Opinion No. 75-29 at 3. Gamett asserted: "A strong mayor with a miniature veto would not serve.. . [this] purpod and is not, in my opinion, what the Charter created." See id. at 8-9.

e. In support of Garnett's opinion are letters from the Chair of the Anchorage Charter Commission, Frank Reed, Sr. and the Chair of the ChWer Production Committee, Shari T. Holmes, which both state the veto authority bf the mayor was to be the same as existed under the Greater Anchorage Area Borough. Garnett's reliance on the opinions of the chairs are supported by an early Alaska Supreme Court case: "[R]eports of committees and statements of chairmen o~f such committees stand on a more solid footing, and may be resorted to in detiermining the intent of the enacting body." Starr v. Hagglurzd, 374 P.2d 3 16,319 (Alaska 1962).

B. Limitations on broad general veto power

*

Further support of the mayor's broad veto powers are the few limitations expressly 16.03, the mayor may enumerated in the Charier and state law: (1) Under Charter se~tion not veto Assembly actions regarding the former Anchorage Telephone Utility; (2) the veto does not extend to an ordinance adopted under AS 04.111.501,the prohibition of the possession of alcohol; and (3) under municipal code section 2130.100, the mayor may not
1

See Attachment A. See Attachment B.

1
I

Mayor Mark Begich July 10,2006

Page 3 of 3

veto actions of the Assembly concerning the adoption or abandonment of a manager plan of government or actions of the board of equalization or the bcpard of adj~stment.~ C. Application of the general veto power to amendments tb proposed ordinance The mayor's broad veto powers apply to ordinances, resdlutions, motions, or other actions of the Assembly. The veto of an ordinance, resolutipn, motion or other action, "must be exercised and submitted to the assembly with a mitten explanation within seven days of passage of the ordinance affected." Charter 5.02(c). In the case of an amendment or amendments to an ordinance by motion: "[Tlhe Mayor.. . [may] delete an amendment or.. . eliminate an addition [to ad ordinance] when made by motion. [Tlhe Mayor.. . [may also] eliminate the substitytion of one ordinance or resolution for another." Opinion No. 01-64 at 1. If the purpose of the veto is to prevent the amendment from becoming a part of the proposed ordinance the veto should be delivered immediately after the vote on the proposed amendment, and prior to a vote on the ordinance to which the amendment attached. Doing so will allow the Assembly to vote to overdide the veto. An override will, of course, mean that the proposed ordinance is before the Assembly as amended. Failure to override will mean that the ordinance without the vetoed amendment is before the Assembly. If you wait to veto the amendment after the ordinance is pasged, the effect of your veto will be to veto the entire ordinance. A veto of the amendr$ent will render the entire ordinance void because there has been no vote by the Assembly to adopt the ordmance without the vetoed amendment. The options available to the/ Assembly are to override the veto, adopt the original ordinance as submitted, or take no action which would result in no ordinance taking effect. See Opinion No. 89-44 at 2 ("After a veto the Assembly must pass a measure over a veto or the measure dies").

CONCLUSION: Under the general veto power, the rngyor is able to veto any ordinances, resolutions, motions, or other actions of the As~embly. The general veto power is broad and has very few exceptions. If the mayor wishes to prevent an amendment from becoming part of a proposed ordinance, the mayor should veto that amendment as soon as it is passed by the Assembly anq before the ordinance is considered by the Assembly. In that case the Assembly can ejther override the veto or if it fails to do so, it can pass (or not pass) the ordinance without 4he amendment.
State law holds the veto does not extend to: appropriation items in a s$hool budget ordinance; actions of the governing body sitting as the board of equalization, or the board of adjustment; or adoption or repeal of a manager plan of government. See AS 29.20.270. These li&ts do not apply to home rule municipalities. See AS 29.10.200; Repasky, 34 P.2d at 31 1 (holding the brohibition on vetoing a school budget ordinance does not apply to home rule municipalities). Anchorae Municipal Code has adopted two of these prohibitions in order to limit the mayor's veto power with re4ards to adopting or abandoning a manager plan of government, and actions of the board of equalization ar the board of adjustment. See AMC 2.30.100B. Certainly, the mayor cannot veto the Assembly's quasi~judicialactions. See Saunders Properties v. Municipality of Anchorage, 846 P.2d 135, 137 (Alaska 19 3) (holding that quasi-judicial actions are not subject to veto). But it is doubtful that limitations on the mayor's veto may be accomplished through Municipal Code rather than through amendment of he Charter, which grants broad veto power to the mayor.
3

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+ e & MUNICIPALITY OF ANCHORAGE

/ f 7J-

ASSEMBLY MEMORANCIU&l

From.

Municipal A t t o r n e y
I

Subject :

Mayor ' s Veto Power

Introduction :
A q u e s t i o n h a s a r i s e n a s t o t h e scope pf t h e Mayor's

v e t o power.

Some members of t h e Assembly have a s s e r t e d t h a t

t h e C h a r t e r r e d u c e s t h e Anchorage mayor's v t o power below t h a t e x e r c i s e d by t h e mayor of t h e former Area Borough.

e eater

i.

Anchorage

For a number of r e a s o n s I bekieve t h a t t h e

C h a r t e r d i d n o t have t h a t e f f e c t . Section 5.02(c) provides:

The mayor h a s t h e v e t o power. ~ h v e t o must be b e x e r c i s e d and s u b m i t t e d t o t h e ~ s b e m b l y i t h a w w r i t t e n e x p l a n a t i o n w i t h i n seven Bays of passage of t h e ordinance a f f e c t e d . The q u e s t i o n i s whether t h e second s e n t e n c e , d e a l i n g w i t h t h e mechanics of e x e r c i s e of t h e power, o p e r a t e s a s a l i m i t a t i o n on t h e f i r s t s e n t e n c e which g r a n t s " t h e v e t o power" w i t h o u t qualification.
I

History: The h i s t o r y of enactment of a law may i n t e r p r e t i n g t h e law.

I n S t a r r v . Haagland, 3 7 4 P2d 316, t h e

e considered i n

Alaska Supreme Court d e a l t w i t h use o f conv n t i o n minutes i n interpreting t h e S t a t e Constitution:

T h i s c o u r t h a s p r e v i o u s l y h e l d t h t o p i n i o n s of i n d i v i d u a l members o f t h e convent on g e n e r a l l y a r e n o t considered t o be a s a f e g u i d e i n a s c e r t a i n i n g v t-h e DurDose o f a m a i o r i t - of t h e c o n v e n t i o n when adopting a p a r t i c u l a r provision. But r e p o r t s o f committees and s t a t e m e n t s of chaikmen o f such committees s t a n d on a more s o l i d f o o t i n s and may -. be r e s o r t e d t o i n d e t e r m i n i n g t h e i n t e n f o f t h e e n a c t i n g body. (p. 319)
L .

The C h a r t e r Commission m i n u t e s make no mention of changing

...

o r r e d u c i n g t h e v e t o power.

The Chairman o

and t h e Chairman of t h e C h a r t e r Production bommittee which

I

t h e Commission

p r e p a r e d d r a f t language f o r t h e C h a r t e r , hake s t a t e d t h e i r view t h a t t h e scope of t h e v e t o was n o t chabged by t h e Charter. (See a t t a c h e d . 1

The C h a r t e r was w r i t t e n on a very cornptressed, a l m o s t f r a n t i c schedule. t o finish. About t h r e e and one-half months e l a p s e d from s t a r t
By c o n t r a s t , t h e 1970 and 1971

h a r t e r s t o o k almost

e i g h t months a p i e c e t o complete.

The Commi~sionused t h e 1971 Unpess t h e r e was some

c h a r t e r a s a b a s i s f o r i t s own wording.

q u e s t i o n about t h e 1 9 7 1 wording, t h a t wording was r e t a i n e d . Accordingly, t h e p r e c i s e words of t h e C h a r t e r may n o t always be t a k e n a s e x p r e s s i o n s of t h e Commissions p p e c i f i c i n t e n t . t The wording on t h e v e t o power i s t a k e n v e r b k t i m f r ? ~h e 1971 c h a r t e r , and was adopted w i t h o u t any c l o s e s c r u t i n y o r c o n s i d e r a t i o n of i t s e x a c t import. The Commission r e s o l v e d t o keep t h e C h b r t e r a s s h o r t and simple a s p o s s i b l e . beneficial. I n most i n s t a n c e s t h i s p o l i c y was

.-

On o c c a s i o n , a s i n t h i s c a s e , khe omission of words

c r e a t e d an ambiguity.

However, t h e Charter; Commissioners were,

f o r t h e m o s t p a r t , i n t i m a t e l y f a m i l i a r w i t h t h e workings of t h e former governments. Where t h e y intendeld t o make c h a n g e s

from t h e b a s i c s t r u c t u r e o f t h e p r i o r goverlnment t h e y s t a t e d that intent clearly. The Commissioners knew t h a t t h e mayor of t h e G r e a t e r Anchorage A r e a Borough e x e r c i s e d a v e t o po e r o v e r " a n y o r d i n a n c e s , r e s o l u t i o n s , m o t i o n s , o r o t h e r a c t i o n s o f t ~ h eAssembly"
AS 2 9 -23.170 ( a )

T h e form of e x e c u t i v e was t h e most h o t l y

d e b a t e d i s s u e b e f o r e t h e Commission, t h e

'!strong mayor" t h e p u b l i c , knew

or "weak mayor".

A 1 1 of t h e

t h a t t h e c h o i c e was e s s e n t i a l l y between t h e mayor a s h e o p e r a t e d i n the borough and t h e mayor a s h e o p e r a t e d i n t h e c i t y . The

d e b a t e f r e q u e n t l y was couched i n t e r m s o f "back R o d e r i c k " o r t h e "George S u l l i v a n " form o f mayor.

It i s incbncefvable t h a t t h e

omm mission would have chosen t h e s t r o n g maybr form, b u t

d r a s t i c a l l y reduced t h e v e t o , t h e key f e a t u ~ e f t h e s t r o n g o mayor form, w i t h o u t s o much a s a word o f i n t e n t o r d e b a t e on the subject.

Interpretation: I n o t h e r a r e a s , t h e Charter i s n o t always p r e c i s e i n its use o f t e r m s d e n o t i n g d i f f e r e n t forms o f Assembly a c t i o n . In

S e c t i o n 3.02 d e a l i n g w i t h i n i t i a t i v e and r e f e r e n d u m , t h e C h a r t e r u s e s a number of d i f f e r e n t terms.

I n S e c t i b n 3.02(b) t h e

C h a r t e r s p e a k s o f a r e f e r e n d u m which " s u s p e b d s t h e o r d i n a n c e " .

I n Section 3.02(c) t h e Charter s t a t e s t h a t

I

r e f e r e n d u m suspends

t h e "ordinance o r r e s o l u t i o n " only i f f i l e d w i t h i n s i x t y days. Again i n S e c t i o n 3.02 ( d ) t h e C h a r t e r s t a t e s t h a t a referendum p e t i t i o n i s v o i d i f t h e Assembly r e p e a l s t h

i n S e c t i o n 3 . 0 2 ( e ) t h e C h a r t e r s t a t e s t h a t t h e Assembly may n o t r e e n a c t a "measureo r e j e c t e d by r e f e r e n d u m . , From t h i s example i t can be s e e n t h a t pndue emphasis on t h e p a r t i c u l a r word u t i l i z e d f o r Assembly a c t i o n would be m i s p l a c e d .
I t i s u n f o r t u n a t e t h a t an ambiguity was cre t e d o n t h e v e t o power.

"ordinance".

Finally,

N e v e r t h e l e s s , a n i m p r e c i s i o n i n d r a f t i n g s h u l d n o t be p e r m i t t e d t o o v e r r i d e t h e b a s i c i n t e n t of t h e c h a r t e r C o r n i n s i o n and t h e v o t e r s i n c h o o s i n g t h e s t r o n g mayor form.

,

B a s i c p r i n c i p l e s of l e g a l c o n s t r u c t i o n s u p p o r t t h i s c o n c l u s i o n .
A home r u l e c h a r t e r i s e q u i v a l e n t t o a c o n s t i t u t i o n . It i s

o r g a n i c law, d r a f t e d by a n e l e c t e d body a n d r a t i f i e d by t h e people, Constitutional provisions a r e l i b e i a l l y construed t o

achieve t h e i r b a s i c purpose.

The g e n e r a l r u l e i s summarized i n 1 6 ?p J u r 2d " C o n s t i t u t i o n a l ! Law", Sec. 62: The r u l e t h a t c o n s t i t u t i o n s a r e t o be l i b e r a l l y c o n s t r u e d i s a w e l l s e t t l e d o n e . T h i s it i s ' s a i d t h a t c o n s t i t u t i o n a l p r o v i s i o n s s h o u l d Blways r e c e i v e a b r o a d e r and more l i b e r a l c o n s t r u c t i o b t h a n s t a t u t e s ....See C a r p e n t e r v S t a t e , 1 3 9 NW 2d 541.

..

When a l a w i s e n t i t l e d t o l i b e r a l c o n s k r u c t i o n , t h e
meanings of p a r t i c u l a r words may be e x t e n d e 6 beyond t h e i r usual

limits :

Words may h e o m i t t e d o r s u p p l i e d by i m p l i c a t i o n , and s e n t e n c e s t r a n s f o r m e d t o r e n d e r dhe s t a t u t e a c o n s i s t e n t whole and e f f e c t u a t e hhe l e g i s l a t u r e w i l l . The most comprehensive meaning of t h e terms employed s h o u l d , i f n e c e s s a r y , be adopted t o accomplish t h e aims of t h e s t a t u r e . When a s t a t u t e i s t o be l i b e r a l l y constgued, t h e c o u r t may even c a r r y it beyond t h e n a t q r a l i m p o r t o f i t s words when e s s e n t i a l t o answer i t s p u r p o s e . 7 3 Am J u r 2 d 5272 " S t a t u t e s " . See a l s o , S t a t e e x re1 Minneapolis v . st. Raul M + M ~ q ' . Co., 9 8 Minn 3 8 0 , 108 NW 2 6 1 , Affd, 2 1 4 U S 497. The C h a r t e r , l i k e t h e S t a t e c o n s t i t u t ' o n , c o n f e r s p l e n a r y powers. Charter. T h e r e f o r e , p a r t i c u l a r powers need n o t be " g r a n t e d 1 ' i n t h e The Assembly h a s t h e " l e g i s l a t i v q power o f Anchorage".
I

C e r t a i n powers a r e s p e l l e d o u t i n t h e ~ h a r d e r ,b u t t h e s e enumerated powers a r e n o t e x h a u s t i v e .

By t ~ h e a t u r e o f home r u l e n

t h e Assembly e x e r c i s e s powers f a r more extelnsive t h a n t h o s e a c t u a l l y s p e c i f i e d i n t h e t e x t of t h e Chartler. I The same i d e a a p p l i e s t o t h e powers o f t h e mayor.

'

The

C h a r t e r g r a n t s t o t h e mayor " t h e e x e c u t i v e pnd a d m i n i s t r a t i v e power o f Anchorage." The Commission assume@ t h a t t h e s e t e r m s

had w i d e l y accepted meaning i n p r i o r l a w an$ i n p o p u l a r

understanding. A c c o r d i n g l y , t h e C h a r t e r leaves many p a r t i c u l a r s

of t h e powers o f t h e Mayor t o i m p l i c a t i o n .
It i s t r u e t h a t a p r i n c i p l e of s t a t u t o r y c o n s t r u c t i o n

h o l d s t h a t t h e enumeration of p a r t i c u l a r popers may be seen a s a l i m i t a t i o n on t h e e x e r c i s e of o t h e r p o k e r s . unius e s t exclusio a l t e r i u s " . n e g a t e s and disavows t h i s r u l e : "Expressio

However, t h e C h a r t e r e x p r e s s l y

R e f e r e n c e s i n t h i s C h a r t e r t o p a r t i c u l s r powers, d u t i e s and p r o c e d u r e s of m u n i c i p a l o f f i c e r s and a g e n c i e s may n o t be c o n s t r u e d a s i m p l i e d limitation^ on o t h e r (S17.11b) m u n i c i p a l a c t i v i t i e s n o t p r o h i b i t e d b y law.

Policy: There i s a very p r a c t i c a l d i f f i c u l t y i m a y o r ' s v e t o power t o o r d i n a n c e s .

HOW i s

n it

limiting the determined

p r e c i s e l y what Assembly a c t i o n must be donel by o r d i n a n c e ? The C h a r t e r d o e s n o t p u r p o r t t o a d d r e s s t h i s r e q u i r e m e n t exhaustively. S c a t t e r e d throughout t h e Charter a r e requirements

S10.02 enumeratqs some o r d i n a n c e

f o r t h e u s e of o r d i n a n c e s .

a c t i o n s , b u t t h e s e a r e " i n a d d i t i o n t o o t h e ? a c t i o n s which r e q u i r e an ordinance1'. S i n c e t h e C h a r t e r d es n o t s p e l l o u t urport t o spell

a l l Assembly powers, it n a t u r a l l y does n o t

o u t a l l o f t h e powers which must be e x e r c i s 4 d by o r d i n a n c e . The d e c i s i o n s of t h e Commission a s t o which a c t i o n s should b e by o r d i n a n c e were n o t made w i t h a view td t h e v e t o power, b u t w i t h a view .to $\he need f o r p u b l i c h e a r i n g s o n those m a t t e r s . For example,. t h e C h a s t e r d o e s n o t s p e c i f i c a J l y r e q u i r e t h a t t h e budget be adopted hy o r d i n a n c e . This i s s o because t h e

Charter s p e c i f i c a i l y requires two p u b l i c h e q r i n g s o n t h e

budget.

C o n v e r s e l y , Sec. 4 . 0 6 r e q u i r e s t h a q t h e Assembly
If the

u s e an o r d i n a n c e i f it wishes t o h i r e i t s own s t a f f .

Commission had meant t o l i m i t t h e v e t o , it q u r e l y would n o t h a v e s u b j e c t e d t o v e t o the v e r y b a s i c a u t h o r i t y qf t h e Assembly t o engage i n d e p e n d e n t s t a f f .

I n j u r i s d i c t i o n s where t h e m a y o r ' s v e

s limited

t o one form or a n o t h e r o f Assembly a c t i o n , t h e re i s f r e q u e n t s t r i f e and l i t i g a t i o n between t h e mayor ant which a c t i o n s f a l - 1 i n which c a t e g o r y .

340 NYS2 7 6 4 .

e Assemhly a s t o

See

g.,

Srogi v. C a h i l l ,

Doubtless, a d e s i r e t o avoit

is enervating
legislature in

s t r i f e i s a l a r g e p a r t of t h e reason t h a t .
.

T i t l e 29 e x t e n d e d t h e v e t o power t o a l l A s ; Along t h e s e l i n e s i t h a s been s t a t e d t h a t

ly a c t i o n .

I n t h e interpretation of statutes b e a s t u t e i n a v 0 i d i n g . a construe. p r o d u c t i v e o f much l i t i g a t i o n ant A p a r t i c u l a r c o n s t r u c t i o n w i l l a. it a p p e a r s t o b e t h e o n l y o n e wh: f i x e d , permanent a n d c e r t a i n r u l r whether a p a r t i c u l a r c a s e i s inc: e x c l u d e d from t h e o p e r a t i o n o f t l 7 3 Am J u r 2 d 5269 " S t a t u t e s " ; Set B r y a n , 14 HOW ( U S ) 5 6 3 .
A s noted above,

court s h o u l d
which may be zertainty.. be favored where u i l l afford a ascertain 3 within o r tatute. s o l i t t l e v.

..

T i t l e 2 9 c o n f e r r e d up(

h e Borough Mayor

t h e power t o v e t o "any o r d i n a n c e , r e s o l u t i c action of t h e ~ssembly..

notion o r o t h e r
2

..

I'

and "by v e t o [Ib l c

.reduce i t e m s - i ~ p, r o p r i a t i o n o r d i n a n c e s . .a p

AS 2 9.23.170 ( a )

Under t h e s e c i r c u m s t a n c e s t h e g e n e r a l r u l e
w i l l b e presumed n o t t o o v e r t e s t a b l i s h e d . p r i n c i p l e s of l a w , a1 w i l l n o t be s o c o n s t r u e d u n l e s s z so p l a i n l y a p p e a r s by express dec n e c e s s a r y i m p l i c a t i o n . 7 3 Am JUI 5181: See Koenegsberger v . Richmc Plininq Co., 1 5 8 U S 4 1 , 391, Ed 885

that a new l a w
longle e t a t u t e l t e n t i o n t o do l t i o n or "Statutes" Silver the action of

....

F i n a l l y , when a c o n s t i t u t i o n i s am big^ t h e l e g i s l a t i v e body i n i m p l e m e n t i n g t h e PI

; i o n may f u r n i s h

a guide to its interpretation.

The principle of contemporaneous ponstruction may be applied to the constructiop given by the legislature to the constitutional provisions dealing with legislative powers and provedure. Though not conclusive, such inter retation is generally conceded as being e n t i t ed to great weiaht. 10 Am Jur 2d, ~ 8 5 : See, Greater Loretta Improvement Assoc. v. State, 234 So 2d 6 6 5 (Fla 1970); 42 ALR 3rd 632. The Assembly in its rules of procedure, A0 No. 13-75, adopted a construction of the mayor's veto power w i c h mirrors the power spelled out in Title 29.

Conclusion: For reasons discussed above, it seems unreasonable to assume that the Commission or the voters me nt to limit the veto power through an offhand reference to 'ordinances" in a sentence dealing with the mechanics of exercise of the veto power.

b
I
I

If the Commission had intended to e&ct

such an abrupt

and potentially' 'trouhlesome departure from the prior law, it would have expressly so stated after consid$rable debate.
By contrast, the Comm~:ssionand the people &hose a. strong mayor,

believing that form to present the hest sys$em of checks and balances for the new government.
A strong Fayor with a miniature

v e t o would n o t s e r v e t h e purpose and i s no$, i n my o p i n i o n , what the Charter c r e a t e d .

Respectfully submitted,

Richard N. G Municipal A t Recommended by : George M . S u l l i v a n Mayor

''*

- \ " December 2, 1975

. .. .

Anchorage Assen~bl y Box 400 Anchorage, Alaska 99513 Dear Assemblymen:

As you may know, I was privileged to serve a$ Chairman of the Anchorage Charter Cornnisslon.
I

In our deliberations, w e debated at great length whether we shculd have a strong mayor or council/manageq form of government.
I

The Conunission never discussed redccing the ?ayoris veto power in relation to the veto power of the fqrmer Borouyh mayor. I think the Commissioners all assumed that, if we adopted the strong lnayor form, the veto would be as it was previously in the Borouyh.

Yours very truly,

,,

F r a n k R e e d , Sr.

December 2, 1975

Anchorage Assembly Box 400 Anchorage, Alaska 99510 Dear Assemblymen:

In the process of drafting the Charter, I se red as Chairman of the Charter Production Committee. This corn :tee drafted proposed Charter language for consideration by the f u L Commission.
o In this process, I do not recall any attempt : do anything to change the mayor's veto power. My view is t i t the Committee intended to preserve the status quo on the v 10 as it existed under the old Borough. Thank you for your consideration.

Shari T. Holmes
--

, I

STH: gml

+C

MUNICIPALITY OF
OFFICE OF THE

DATE: TO:
FROM:

October 15.2001

Assembly Member Tesche

William A. Greene, Municipal
I

SUBJECT: The Mayor's Veto Powers

OUESTION: You have asked us to opine on the following q*tstion:

May the Mayor veto a motion made by the Assembly to amen the text of an ordinance or resolution where the Mayor does not wish to veto the entir ordinance or resolution as ultimately passed, but only the amendment itself e.g. the ssembly-approved motion amending the Port Plan.

I
I

BRIEF ANSWER: Subject to the Discussion and Conclusi Memorandum Opinion, incorporated herein by reference, our
Yes.

contained in the attached

BACKGROUND,DISCUSSION and CONCLUSION:

Your question, while specific, requests an analysis of the le/@slativehistory, pertinent Accordingly, we case, statutory and other authority and relevant Charter co-entary. have expanded our Discussion and Conclusion to include a comprehensive legal review and analysis of the Mayor's veto powers and such is aontained in the attached Memorandum Opinion. You also requested we comment on prior advice of outside cbunsel in 1990 relevant to within seven days the specific question posed. We concur that a veto must be e~ercised of the Assembly action vetoed. We also concur with that 1 counsel's advice that the Mayor's line item veto does not permit the Mayor to reinstat4 appropriations deleted by the Assembly. However, for the reasons stated in the attachbd Memorandum Opinion, we do not concur with the 1990 advice that there is an absenbe of legislative history b warrant the veto power including the power to veto motions and other actions of the Assembly. The latter Assembly motion or other action as well as general veto power is in addition to the line

'

'

Assembly Member ~ e s @

Page 2.

The Mayor's Veto Powers October 15,2001

line item veto, the veto of a motion amending an ordinance passage may have the effect of restoring the version as it e motion. A veto override is available to obviate that result as If you desire to discuss these matters further or desire addit glad to respond as soon as possible. esolution before its final d prior to the amending with the line item veto.
1 information we will be

cc: Assembly Members

G:\MA'IWAG\MAYOR\ VETWsembly Covw for VEto Maw.doc

MUNICIPALITY AN~HORAGE OF
OFFICEOF THE MUNICIP ATTORNEY

THE MAYOR'S VETO

[The Excerpt ('Exc") sources referenced in footnotes are are the references source documents for the statements to

POWER

on request They

The Mayor may veto ordinances, resolutions, motions and The Mayor may, by veto, strike or reduce items in a budget
A. -

other actions of the Assembly.

04 appropriah'on measure. I

TEFE VETO POWER.

The General Veto. The legislative history of the maybral veto power in Charter
$5,02(c) clearly establishes that the Mayor may veto: (1) ordibances, (2) resolutions, (3) motions and (4) other actions of the Assembly. The veto of or/dinances and resolutions is

a veto of the whole ordinance or resolution. A veto of a m$tion or other action of the
Assembly permits the Mayor to veto an amendment to an or nance, resolution, or other action item. The motiodother action veto allows the Mayor todelete an amendment or to
I

4
~
I

eliminate an addition when made by motion. It also allows $e Mayor to eliminate the substitution of one ordinance or resolution for another.
i

The Line Item Veto. In addition to the general veto dhrcribed above, the Mayor also has the line item veto-the appropriation measure. power to strike or reduke items i n a budget or

The line item veto applies only to specific item.: in a budget or appropriation measure and should not be confused with the ability oJ the Mayor to veto motions and other actions. Alt,~oughthe veto oJ motions and other actions has an effect similar to a line item veto, the power to veto motions and other actions should never be referred to as a line item veto.

Quasi-fwliciul Actions. While the veto power woulq appear to be sufficiently

broad to warrant its use in quasi-judicial proceedings, such a$ proceedings of the Board of Adjustment, since the veto power is historically a legislati\ie act, the Alaska Supreme
Court has ruled that it may not be used to affect quasit-judicial decisions of the

Timing and Overrides. The Mayor has seven (7) dayp within which to exercise
his veto and the Assembly has 21 days thereafter to make one or more attempts to override the veto by a vote of 8 Assembly members. The F i t day after the day of Assembly passage and the first day after the day of veto is dajt one of the seven-day veto period and the twenty-one day override period respectively.

&

THE CONSTITUTIONAL AND STATUTORY BACKGROUND.

The Constitutional Convention anticipated, State stamtes provide for and the

Municipality's voters twice confmed their choice of

strong-mayor form of

government. The Alaska Constitution and statutes and the ~ h i c i ~ a l i tCharter direct ~'s
that the Municipality's governmental powers be liberally conshed.

A Strong Local Executive.

While there is very liktle in the Constitutional

Convention minutes regarding the local executive, there is evi~dence there would be that checks and balances similar to the relationship between oqer legislative bodies and executive branches of government and there was a general favqtism for a strong, unified executive system in local government.2 The Mandatory Bodpugh ~ strong borough exec~tive.~ c provided for a t ~

Saunders Properties v. Municipality of Anchorage, 846 .2d 135, (Alaska, 1993)

'.

P
I

Cease, Areawide b c a l Governmenr in the. State of ~ + k u , supra, pp. 164-165. Exc. pp. 686-687.

The Mandate for Liberal Construction of Local ~ o v d m e nPowers. All local t

government powers are vested in boroughs or cities.' It is the purpose of Alaska

Constitution's Article X to provide for maximum local self-g~vernment.~To promote ali that end, the Alaska Constitution grants home rule municipalities, such as ~ n c h o r a ~ e ? legislative powers not prohibited by law or charter.' To protect the constitutional

purpose of maximum local self-government, the Alaska Cobtitution mandates that a liberal construction be given local government pwers? The constitutional mandate for liberal construction is underscored by specific statutory mandates: of A liberal construction shall be given to ail powers and ~%ncsions a municipality conferred in this title.''

3.
4

Chapter 52 SLA1963 (CSHB 90)

. Cease, Areawide Local Government in the State of Alaska, supra, pp. 165-169. Exc. pp. 687-691. The executive and administrative power of b t h general law and home rule municipalities are vested in the Mayor. Alaska Stat. 29.20.220. In addition, Alaska Statutes 29.20.250 (executive/administrative power), 29.20.279 (veto power), 29.20.310 through 29.20.360 (appointment of boards and officials) and 29120.500 (hiring, budgeting, custody of property, law enforcement, etc.) devolve substantial Pditional basic powers on Mayors of general law municipalities, key among which is the vieto power.
'.
6 .
7

Alaska Const. art. X, $2. Alaska Const. art. X, $1.

I
I

Charter $3.01 and Official Charter Commission Comrplentary thereon. AMC p. CHT -25.
8.
9

Alaska Const. art. X, $11.

Id. Kotzebue Lions Club v. Cify of Kotzebue, 955 ~ . 2 b 921, 923 (Alaska 1998) citing Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1121 (Alaska 1978); Bookey v. Kenai Peninsula Borough, 618 P.2d 567,569 (Alaska 1980); ~bflerson State, 527 P.2d v. 43 (Alaska 1974). See also dissenting opinion in Anderson v. lYfunicipality of Anchorage, 645 P.2d 205,2 13-215 (Alaska 1982) I,
I

lo.

Alaska Stat. 29.35.400. Italics added.

Unless otherwise limited by law, a municipality has and may exercise all or incident to the powers and functions necessarily or fairly implied purpose of all powers and functions conferred in this tit&.'' Specific examples in an enumerated power or functiopl conferred upon a municipality in this title is illustrative of the object a limitation on or exclusion from the exercise of the power or

As the Alaska Constitution is the organic law of the state,13 s'ptoo is the Municipality's
Charter its organic law14 for which a liberal construction is albo the long-prevailing rule of statutory constructi~n.'~
I

References in this Charter to particular powers, dutiq and procedures of municipal officers and agencies may not be cumtrued a implied limitations on other municipal activities not prohibited by law.16 As used in this Charter "may" is permissive, "shall" is mandatory, and I "may not" or "shall not" are prohibitive.17

'I.
12

Alaska Stat. 29.35.410. Italics added. Alaska Stat. 29.35.420. Italics added. Starr v. Hagglund, 374 P.2d 316,319 (Alaska 1962).
Alaska Stat. 29.10.080(a).

13.

14.
15

Exc. pp. 105-107; Alaska Superior Court, Third Judqcial District, Decision & Order lity of Anchorage, et. al, -in First National Bank of Anchorage, et. al. v. Case No. 3AN-97-9296C1, Hunt, J. (May 26, 1998)
16.

Charter 3 17.1l(b). Italics added. Charter Commission Commentary to Charter 8 17.1 1(b).

17

C. -

ANCHORAGE'S

GOVERNMENT.^^

STRONG-MAYOR

FORM
I

OF

HOME

RULE

The Municipality of Anchorage is a home rule ~unicipality" and political

I

subdivision of the State of ~ l a s k aIt ~ a strong-~ayo?' formtZof government with . has an Assembly as its governing body.23
[The Municipality is also a school districtu and has the Statedelegated responsibility and authority for establishing, maintaining and operating public schools within the ~ u n i c i ~ a l i t ~ . ~ The Municipahty's School ~ o a r destablished by ordinancez7as required by State statutesq is charged with managing the ,~

18. Courts look to a home rule municipality's charter to determine its authority. M n c p l t o Anchorage v. Frohne, 568 P.2d 3,5 (Alaska 1977). uiiaiy f

Alaska Stats. 29.04.010 and 29.71.100(13); Charter q3.01 and Official Charter Commission Commentary thereto. Area G Home and LarPdowners Organization v. Anchorage, 927 P. 2d 728,729 (Alaska 1996)
19.
20.

Alaska Stats. 01.10.060(4) and 29.04.010

'I.

Charter Article V.; Exc. pp. 109,251,246-247,262,266-267. Alaska Stats. 29.20.220 and 29.20.250. Alaska Const. Art. X, 54, Charter 54.01.
I

".
23.

Alaska Stats. 14.12.010, 14.12.020(b), 14.12.030(b1, 14.14.065, 29.35.150, 29.35.160Ca) and 29.20.300, Tunley v. Municipality o Anc@rage, 631 P. 2d 67, 75 f (Alaska 1980); Blue v. Stockton, 355 P. 2d 395, 396 (Alaska 1960); Charter $1.01 and Article VI; AMC 81.05.020 and Title 29. "Anchorage Scbwl District" means the Municipality of Anchorage School District. Charter 4 1.O1 and bMC 5 1.15.030
25.

Alaska Stats. 14.1&.020(b),29.135.150 and 29.35.160; Blue v. Stockton, 355 P.2d

Alaska Stats. 14.12.030(b) and 29.20.300.

at 396.
26.

".
28.

Charter 56.01 and AMC $29.10.010.

I

Alaska Stat. 29.35.150

6 .
lucational programM for the

operationa of the Municipality's schools and providing a public

Municipality's school age children.31 The Municipality has an Asst 1blycreated3* School Budget Advisory Commission (also "Commission") comprised of nine Anchc Ige citizens appointed by the
Mayor and confirmed by the

D. -

THE MEANING OF CHARTER S5.02(C)'S MAY( RAL VETO IN L I G W OF ITS PURPOSE AND LEGISLATIVE HISTORT
Charter $5.02(c) states in pertinent part: (c) The mayor has the veto power. The mayor also ias line item veto power. The mayor may, by veto, strike or reduce :msin a budget or appropriation measure." * *Ja

It is a settled principle of Alaska judicial decisions that the I eaning of a constitutional

provision is determined by its language, legislative history anc ~ u ~ p o s The legislative e.~~ history, purpose and contemporaneous Assembly construction f Charter 95.02(c) clearly establish the Mayor's veto power and authority.

".
30. 31.

Alaska Stat. 14.12.020@), Charter @6.01 and 6.03, AN Alaska Stat. 14.14.090(2). Id.

AMC 04.50.070. The Schaol Budget Advisory Con ission is denominated a technical advisory commission (AMC chapter 4.50) becau, it advises on technical budgetary and fiscal matters regarding school budgets and hding requiring special expertise and knowledge.
33.

Charter $5.07 and AMC 84.50.070. Also herein the "Co mission".

At unification, Charter 55.02{c) contained only the fii ; sentence. Exc. pp. 109, 417. The second and third sentences were added in 1990. E , pp. 447, 455, 457. See l also history note to Charter 55.02 at AMC p. CHT-8.
35.

Muller v. BP Exploraion, supra, 923 P.2d at 787.

The Legislative History o the Mayor's Veto Power. f

Charter 35.02(c) stated in pertinent part:

4 adopted at unifi~ation,~~

'The Mayor has the veto power."37 without further explication. Prior to unification the then goveining veto law was the law " of the Greater Anchorage Area ~ o r o u ~ h .which prbvided in dsrtinent part: (a) . . . the borough mayor may veto any ordinance, resolution, motion, or other action of the assembly and may, by veto, strike or reduce items in appropriation ordinances except for school budget iteml.* * * j 9 The veto power of first class city mayors was identical.@ The former City of Anchorage had a manager form of
in which the Mayor y s a member of the city a

council and had no veto power.42 Consequently, the above-duoted veto power was the

3. 6

Unification of the Greater Anchorage Area Borough q d cities within it (Charter g19.16) into the Municipality on September 16, 1975 (AMC fibface page xi.)
I

".
39

Former Charter 85.02(c), Exc. pp. 109,417,447,455,4$7.

Fonner Alaska Stats. 29.23.170 (1975).

4. 0

Former Alaska Stats. 29.08.010 and 29.23.270 (197b). Since the education function had been devolved upon boroughs, such cities within qrganized boroughs had no education hnction and school budgets therefore were not preseinted to them for approval. Mayors in second-class cities were members of the city coudcil. Former Alaska Stat. 29.23.250 (1975).

41

Fonner City of Anchorage Charter $1.2 (1974) and f b e r City of Anchorage Code 92.04.010 (1974). Borough mayors in boroughs with a manager-plan form of government also had no veto power. Former Alaska Stat. 29.21.170@) (1975). Former City of Anchorage Charter 8$3.4(b),(c) and (h) ((974)

".

e
&o r

41
b43

8.

veto power applicable to the fonner local goventmeal

a un$cation and was t

well-known to the Charter Commkswn and t h e p ~ ~ . 4 4

While the Alaska Supreme Court generally refuses to consider statements of individual legislators as to legislative intent:5 statements of u mmittee chairmen:6 views

of draftsmen, including legislative counsel, and authoring le :islator's statements (other

than their personal beliefs14' may be relevant, useful and have probative value.48As with

contemporaneous constructions by the legislative body,49con1 :mporaneous constructions by executive and administrative officers are also entitled ti great weight." Such is

particularly true where, as here, such statements are those of well-regarded citizens and Charter Commission chairmen, are reliably objective, con5 stent with the legislative history, contemporaneous and confirmed by contemporaneous legislative constnrction.

43

Charter819.16.

EXC. 104. 2B Norman J. Singer, Sutherlund Statutar p. Ed. 1992).

44.

45.

State v. Almka State Employees Association/AFSCME (Alaska 1996). Starr v. Hagglund, supra, 374 P.2d at 319.

46.

47.

BrQdner v. Hammond, 553 P. 2d 1,4 at note 4 (Alas a 1976) citing Meyers v. United States, 272 U.S. 52 (1926); 2A Norman J. Sin :er, Sutherlund Statutory Construction, $48.11, p. 348 text at note 16 and $48.12 and 1999 supplement (5th ed. 1992).

49

2B Singer, Sutherlund Statutory Construction, supra, ${ 49.01 and 49.11.

m.

2A Singer, Sutherlund Statutory Construcfion, suj ru, $48.12; 2B Singer, Sutherlund Statutory Construction, supra, $49.03.

By letters of December 2, 1975, seventy-five &ys after unification, the advised chairpersons of the Charter Commission and its Charter Prod ction ~omtnittee~' the Assembly the Charter Commission had not intended to ch ge or reduce the mayoral veto power from what it had been but intended it remain the sbme under the Charter as it had been in the former Greater Anchorage Area Borough prior to unification?2 The two

Y.
I

chairpersons were initially on opposing sides of the "$trong mayor" vs ''weak mayor/manager" debate." The Charter Production Committee Chairman subsequently

sided with the Charter Commission's Chairman to favor the "yeakmayor/manager" form of executive* which failed to win approval.55 The Charter aommission and ultimately the Municipality's electorate adopted the strong-mayor fdrm of executi~e.'~ The referenced letters were attacheds7 to legal analysis and adviqe given the Assembly by then Municipal Attorney, Richard W. Garnett, III who had a1 o been the attorney to the

Charter Commission and the Commission's Charter Productioi committees8 and assisted

Mr. Frank Reed and Ms. Shari Holmes respective4y. Charter Commission Minutes, March 5, 1975, p. 6. Charter Commission members were elected by Municipal voters (Alaska Stat. 29.06.240) and they in turn elected the Charter Commission Chairman (Charter Commission Minutes, February 20, 1975, p. I.) who then appointed the Chairman and members of the Charter Production Commi/ttee with the consensus of the Commission (Charter Commission Minutes, March 5, 1975, p. 6).

53.
54.

EXC. 23 1, lines 1-2; 236, lines 13-19; 240-241;2501251. pp.

EXC. 24 1,265, 266-267. pp. EXC. 109,262,266-267. pp.
I

".
56

Exc. pp. 109,251,246-247,262,266-267 and Charter M c l e V. Exc.p.103. Exc. pp. 238,248,263,291,308.

I

".
.

the Commission in drafting the ~harter.'~ Garnett c o n c m d that the Charter had not Mr.
been intended to change or reduce the mayoral veto power frQmwhat it had been in the

former Greater Anchorage Area ~ o r o u ~ His. advice stated iln part: h ~ The Commissioners knew that the mayor of the Greater Anchorage Area Borough exercised a veto power over 'any ord-ces, resolutions, motions, or other actions of the Assembly' AS 29.23.117qa). * * * All of the Commissioners, and the public, knew that the ch@e was essentially between the mayor as he operated in the borough at(d the mayor as he operated in the city. * * * It is inconceivable that the Eommission would have chosen the strong mayor form, but drastically rquced the veto, the key feature of the strong mayor form, without so much as a word of intent or debate on the subject.61

The Legislative Construction o the Mayor's Veto P o w . Although Courts are f

the final arbiter of statutory meaning, constructions of constitutional provisions by
I

legislative bodies are probative of that meaningG2and are generally accorded great
I

particularly contemporaneous constructions." Such is particularly appropriate and probative where, as here, the legislative constructions favdr executive powers which act as a check and balance of legislative authority.

59

Exc. pp. 274 line 22,310,311. Exc. pp. 102-113. Exc. p. 104.

".
61.

. 63 .
62

Area G Home and Landowners Organization, Znc, supra, 927 P.2d at 734,735.

Whaley v. State, 438 P. 2d 718, 722 (Alaska 1968)l; 2B Singer, Sutherlund Statutory Construction, supra, 5 49.01.

a.

2B Singer, Surherlund Statutory Construction, supra, 88 k9.03 and 49.08.

On October 7, 1975, twenty-one days after unificatiob, the Assembly enacted a mayoral veto ordinance identical to the State statute applicqble to the former Greater Anchorage Area Borough, except for eliminating the word "bdmugh
r,

.65

The Mayor may veto any ordinance, resolution, motiod or any other action of the Assembly and may, by veto, strike or reduce itims in appropriation ordinances, except for school budget items. . . .66

On April 15, 1978, less than three years after unificaGon, the Assembly, revised
and again enacted6' essentially the same mayoral veto provisiop to read in pertinent part: A. The mayor has the veto power. The veto must be exercised and submitted to the Assembly. . . . * * * The Mayor may veto any municipal ordinance, r olution, motion or other action of the Assembly, including in its en ty, any budget or appropriation action. The Mayor may additional y, by veto, strike or reduce particular items in appropriation acti ns, except school budget items, in conformance with subsection A.

B.

***

***

***

The Purpose o the Mayor's Veto Power. That the Voters of the Municipality f
created a strong-mayor form of local government at unificatidn is well-e~tablished.~~ A

65.
66.
67.

EXC. p. 075. Compare to Former Alaska Stat. 29.23.27q.

Exc. p. 075,084-085. Anchorage Ordinance No. 78-49. Exc. p. 087. Exc. pp. 094-095.
,

68. 69.

"Anchorage's Strong-Mayor Form of Home Rule Government", supra. The Municipality's Mayor is vested with the executive and a-strative power of the Municipality (Alaska Stat. 29.20.220 and Charter 85.01). The Charter grants the Mayor the exclusive power to appoint of the executive branch Charter pff~cers, department heads and most commission members subject to Assembly confirmaxion [Charter 5.02(a) and 5 0 @ ] the right to participate in Assembly meetings to .2), extent as Assembly members except he may not vote [Charter 5.02(b)], power [Charter 9
5.02(c)].

12.

key feature of the strong-mayor form is the Mayor's veto pov r 7 Knowing the nature
and extent of the only veto power applicable to the former gov

It is inconceivable that the Commission would have chosen the strong mayor form, but drastically reduced the veto, the key 1 rature of the stron e mayor form, without so much as a word of intent or deb t on the subject.7F

The 1990 Charter Amendment. Since Charter 85.02( ) stated: 'The Mayor has
the veto power.", one of the questions posed to the 1990 Cl lrter Review Commission

was: "Should the Charter be amended to clarify whether or n i the Mayor has line-item t
veto power? "73 The 1990 Charter Review Commission concl. ded:
this issue is warranted and in the public interest.""

". . . clarification of
A proposition

It cc lsequentiy recommended:

"Clarifv the issue as it i warranted and in the public i~ 'erest."75 s

amending C a t r 85.02(c) difSerentfromthat recommended b the 1990 Charter Review hre ~ o r n m i s s i o n ~ ~ put before the Municipality's voter^,^ pa ;led and amended Charter was $5.02(c) by adding the second and third sentences to make C1: uter 85.02(c) now read in pertinent part:

O. '
7'.

Exc. p. 104.

Exc. p. 109.
Exc. p. 104.

".
n.

Exc. pp. 443,446. Underline added.

Exc. p. 447. Underlined italics added. EXC. 447. Underline added. p. EXC. 447. pp.

.
75.

76.

".

By ordinance A 0 No. 90-82(S) as Proposition 6 (Exc pp. 457-458) and passed effective October 2, 1990. Charter $5.02(c).

(c) The mayor has the veto power. The mayor alsa has line item veto power. The mayor may, by veto, strike or reduce itqms in a budget or appropriation measure. * * * (New language in italics.)~

Certainly, the 1990 Charter amendment clarified and confirmqd that the Mayor had line-

item veto power. Given constitutional and statutory underpiqnings of Charter 5.02(c),
its legislative history and construction this 1990 amendment +o clarified and confirmed

a the mayoral veto power w s as it was understood at dfication and prior to the
amendment.
I

CONCLUSION
The Mayor's veto powers are co-extensive with the Assembly's legislative authority. The veto power preserves the integrity of the executiv4 branch in general law municipalities and the electorate's twice-codinned choice of' a strong-mayor form for Anchorage's home rule government. Thus is an equilibrium in the checks and balances of governmental power maintained as a restraint upon hastd, unwise or ill-considered legislation.* There is nothing to suggest those purposes are dot as valid today has they have been since the concept of the veto originated.

I I

Wiliiam A. Greene Municipal Attorney Anchorage, Alaska October 16,2001

".

Thomas v. Rosen, 569 P.2d 793,795 note 5. (Alaska 1 9 9 )