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Question Presented
On December 24, 2019, the City Attorney for the City of Miami issued a legal
opinion holding that the Mayor’s veto power did not extend to “executive” or
“administrative” (including “directives”) decisions by the City Commission. You
have asked me to provide an assessment of the City Attorney’s legal memorandum.
Brief Answer
Analysis
Section 4 of the Charter for the City of Miami provides an expansive veto
authority for the Mayor of the City of Miami.
The mayor shall, within ten days of final adoption by the city
commission, have veto authority over any legislative, quasi-judicial,
zoning, master plan or land use decision of the city commission,
including the budget or any particular component contained
therein which was approved by the city commission; provided,
however that if any revenue item is vetoed, an expenditure item in the
same or greater dollar amount must also be vetoed.
Section 4(g)(5) of Charter (emphasis added). The veto power shall also include
actions pursuant to section 29-B through 29-D of the Charter. Id.
The City Attorney’s legal memorandum holds that “not all decisions [by the
City Commission] are subject to veto.” It attempts to create a subset of legislative
actions, including “executive” or “administrative” decisions and directives of the
governing body, that are not subject to veto authority.
The plain language of the Charter for the City of Miami rejects the ability of
the Commission to issue an “administrative” decision. Section 15 of the Charter
provides that:
Section 15 (emphasis added). The City Commission does not contain the power to
issue “administrative” or “executive” decisions, as that power is found in the city
manager.
Section 4(d) (emphasis added). Section 4(a) confirms the plain reading of the
Charter: “city commission shall constitute the governing body with powers (as
hereinafter provided) to pass ordinances adopt regulations and exercise all powers
conferred upon the city except as hereinafter provided." (emphasis added). The
City Charter grants the “administration of all units of the city government” to the
city manager and therefore, the city commission does not have the power to issue
“administrative” or “executive” decisions.
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Furthermore, appellate courts in Florida have rejected the City Attorney’s
argument. For example, the Fourth District in Donmar Corp. II v. City of W. Palm
Beach, 740 So. 2d 48 (Fla. 4th DCA 1999) rejected the argument that the Mayor of
City of West Palm Beach was granted the power to veto only some ordinances and
resolutions.
To the extent that a comparison of the Charter between the City of Miami and
City of W. Palm Beach is necessary, the veto power for the Mayor of the City of
Miami is broader as it contains no exclusions unlike the charter for the City of W.
Palm Beach. Unlike the Charter for the City of Miami, the Mayor for the City of W.
Palm Beach does not have the “power to veto emergency ordinances or any
enactments relating to the emergency appropriations or emergency borrowing.” Id.
This explicit exclusion to the veto power (or any exclusion for that matter) is not
found in the Charter for the City of Miami.
The Donmar holding also questions the City Attorney’s rationale that Section
166.041 of the Florida Statutes somehow supports a reduction in the Mayor’s veto
power. Donmar held that the definitions found in Section 166.041 do not create a
“conflict with the mayor’s veto power.” Id. at 49. The Donmar court affirmed the
trial court’s ruling that any action of the legislative body which is not an ordinance
– whether a direction, motion, order or formal written resolution – is a “resolution,”
and is therefore “legislation” and subject to the power of the mayoral veto.
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2. Section 2-36 of the Code of the City of Miami further supports that the
Mayor’s veto power extends to “executive” or “administrative” decisions.
The City Attorney’s memorandum argues that “if applicable” in Section 2-36
of the Code of the City of Miami somewhat reduces the universe of legislative items
subject to veto power. No basis exists for this so-called “plain language”
interpretation. When using fundamental grammar rules, the term “if applicable”
modifies “commission override” (and not the veto power of the Mayor). That is, the
Commission passes an ordinance or resolution, the Mayor may exercise his veto
right, and the Commission may override the veto. Hence, the notation for
“commission override” is conditional depending on whether the veto is overruled.
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publication to implicate the liberty interest under the due process clause of the 14th
amendment to the United States Constitution).
The due process requires notice and a hearing, and it therefore makes the
hearing judicial or quasi-judicial in nature. Modlin v. City of Miami Beach, 201 So.
2d 70 (Fla. 1967) (explaining that the difference between executive and judicial or
quasi-judicial power is more subtle; purely executive is power authorized to be
exercised on the personal judgment of the acting authority but where notice and
hearing are required and action is based upon the showing made at the hearing the
action is judicial or quasi-judicial). The Commission’s insertion of “stigmatizing
information” rendered the decision a quasi-judicial one. And Section 4 of the Charter
for the City of Miami expressly provides that the Mayor can veto quasi-judicial
decision from the Commission.
4. None of the cases cited in the legal memorandum hold that “executive” and
“administrative” decisions issued by the City Commission may not be vetoed
by the Mayor.
The City Attorney’s legal memorandum first cites to Barnes v. City of Miami,
47 So. 2d 3 (Fla. 1950) to explain the definition between “legislative” and
“administrative.” The selection of a decision published more than 50 years ago that
makes no reference to veto power is peculiar. The Barnes court reviews the ability
of a referendum to be submitted to the residents for approval. The challenging party
claims that the ordinance, which the voters will be called on to adopt or reject at the
election, is wholly administrative in nature and hence is not the proper subject for
an election under the charter.
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Com'n, 127 So. 3d 686 (Fla. 4th DCA 2013); Fisher Island Holdings, LLC v. Miami-
Dade County Com'n on Ethics & Pub. Tr., 748 So. 2d 381 (Fla. 3d DCA 2000);
Tenney v. State Comm'n on Ethics, 395 So. 2d 1244 (Fla. 2d DCA 1981). None of
the cited cases discuss the veto power of the Mayor. The cited cases exclusively
focus on a governing body terminating a classified employee or dismissing appellate
review of a decision declining to exercise jurisdiction in an investigation. The cited
cases have no application to whether the Mayor can exercise the veto power and are
a “red herring.”
Conclusion
After a review of the cited cases in the City Attorney’s legal memorandum
and additional research, the veto power of the Mayor of the City of Miami extends
to “administrative” or “executive” decisions by the City Commission.
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