?Expert? Legal Analysis | CenLamar

Update: The real question, which I missed in the original post, is this: How can the City Council pass an ordinance that contradicts or contravenes the City Charter? Put another way, who cares if the City Council all got together and passed an ordinance that attempted to force people to attend their meetings if that ordinance is, itself, in contradiction with the powers vested to the executive branch by the City Charter? You can?t simply usurp another branch of government?s authority merely by agreeing among yourselves to do so.

I?ll try to simplify by way of analogy: Let?s imagine that the United States Congress decided that any and every time they discussed foreign policy, the Secretary of State had to be in attendance. If she wasn?t there, then she and her boss, the President, could be accused of breaking the law, right? Obviously such a law would encroach on the Constitutional autonomy and authority given to the President. Notwithstanding the fact that the Alexandria City Code contains some choice qualifications, which, in my opinion, helps to protect the Mayor and his employees, the City Council cannot enforce an ordinance that violates the authority and the separation of powers provided by the City Charter; the City Charter is like Alexandria?s Constitution; it?s the source from which all laws flow. ?So, here?s what the City Charter says. Section 3-01:

The mayor shall be the chief executive officer of the city. All executive and administrative authority shall be exercised by and through the mayor except as set forth in this charter.

Section 4-01(a):

All divisions, departments, offices and agencies shall be under the direction and supervision of the mayor.

Section 2-07(c):

Except for the purpose of inquiries and investigations under?section 2-08, the council or its members shall deal with city officers and employees who are subject to the direction and supervision of the mayor solely through the mayor, and neither the council nor its members shall give orders to any such officer or employee, either publicly or privately.

These are the laws that govern the City of Alexandria. Of course, the City Council can pass an ordinance requiring attendance of their meetings by members of another branch of government. If they wanted to, I imagine, they could also require that any and all members of the administration who attend their meetings wear blue and white polkadot jumpsuits while chewing gum and standing on one leg. But, despite the hilarity that may ensue, there?s the whole problem of the City Charter, which says that the Mayor is in charge of the administration and that the Council can?t order anything of anyone in the City, ?either publicly or privately,? without the Mayor?s permission. It doesn?t mean they can?t try to, but either way, Greg Aymond?s confusion between the City Charter and the City Code is significant, particularly because the issue is about the checks and balances of government. So, notwithstanding my own analysis of the City Code, ultimately, it doesn?t matter: The Charter prevails.

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This morning, local blogger and self-proclaimed legal expert?Greg Aymond accused Alexandria Mayor Jacques Roy of violating the City Charter; four hours later, Mr. Aymond reluctantly changed his tune: No, he admitted, he wasn?t referring to the City Charter; he was referring to specific provision of City Code, Section 2-23(r), to be precise. It reads, in full:

Division directors or their designatees shall be present at all regular council meetings and if requested by the mayor shall attend committee meetings. Other administrative personnel shall attend at the discretion of the mayor unless they have been specifically requested to attend through the office of the mayor. The mayor shall direct appropriate personnel to attend council committee meetings. (i.e. utility director at utility committee, etc.). Other personnel, as requested by the committee, shall be provided to the committee by the office of the mayor.

There?s a critically important qualifier in this portion of the code, and not surprisingly, Greg Aymond edited it out of his analysis. Before you even get to Section 2-23(r), there?s Section 2-22(c), which reads (emphasis mine):

Except for the purpose of inquiries and investigations under?section 2-08?of the Charter, the council or its members shall deal with city officers and employees who are subject to the direction and supervision of the mayor solely through the mayor, and neither the council nor its members shall give orders to any such officer or employee, either publicly or privately.

Got that? It?s important. And then there?s Section 2-23(i), which states (again, emphasis mine):

Matters published on the council agenda may be heard by committee prior to the council meeting. Upon majority vote, individual agenda items may be deleted from the final agenda. Committees may discuss and make recommendations for actions by the city council on agenda items. When appropriate for discussion, the mayor or his designated division or department head shall be present for discussion of agenda items. Agenda items shall be heard by the appropriate committee unless action is tabled or delayed by a majority vote of the committee. If a matter is delayed it shall be reconsidered at the next scheduled committee meeting of the committee, unless a date is assigned for consideration of the agenda item. The mayor or his designated division or department head shall be notified of the delay and the date of the reconsideration.

The crux of Mr. Aymond?s accusation that the Mayor ?broke the law? seems to be that ?division directors or their designatees (I think they meant designees) shall be present at all regular council meetings.? Let?s take that admonishment at face value: During regular Council meetings, division directors or their designees have to be ?present.? Obviously, this is not a requirement made of the Mayor, but even if it were, Greg Aymond offers absolutely no evidence that any division director failed to be ?present? or failed to have a ?designatee? (sic) present during any ?regular Council meeting.? The Code does not say, ?Division directors must attend every regular Council meeting and must provide answers to any and all questions directed by members of the City Council.?

Again, not to beat a dead horse, it says that directors or ?their designatee???must be in attendance during regular City Council meetings; indeed, there is no statutorily proscribed definition of the neologism ?designatee,? and there is no requirement that anyone be forced to answer questions from the Council, unless they are compelled to under Section 2-08 of the City Charter.

Despite what Mr. Aymond and others may wish?the law to be, the City Council, unless acting under the investigatory procedures spelled out in Section 2-08 of the City Charter, doesn?t have the unilateral power to compel any City employee, including Division Directors, to testify in an open meeting.

Otherwise, the only argument in Mr. Aymond?s favor, insofar as I can see it, is that the ?Mayor or his designated division or department head shall be present for discussion of agenda items,? but there?s a giant caveat there, four words: ?When appropriate for discussion?.?

You could argue that any and all agenda items are always?appropriate for discussion, but if this is the case, then when even qualify the statement? It?s because there is a direct relationship between ?appropriate for discussion? and ?appropriately discussed.? When the City Council violates the Code by failing to abide by Robert?s Rules of Order under Section 2-23(x) or violates its own procedure under Section 2-23(w), when certain City Councilmen treat employees and division directors with complete contempt and when those employees are repeatedly subjected to unfair public ridicule or are illegally ordered to answer leading and politicized questions, then the venue itself is not ?appropriate for discussion.? Given this oppressive climate, no Mayor would want to subject himself or his employees to such abuse of authority and procedure, and thankfully, Section 2-22(c) provides such discretion. It?s sad and unfortunate that Alexandria City Council meetings so frequently fail to uphold proper decorum and that certain City Councilpersons repeatedly attempt to usurp both the executive and the judicial branches of government; these actions, often, create a hostile environment for City employees who are simply doing their jobs. There?s a reason our Code protects employees; there is a reason for all of the qualifying language.

If you think I am being hyper-technical about this, it?s because the Code itself is hyper-technical, and Greg Aymond, the expert legal analyst, is flat-out wrong. Once again, he is accusing someone of breaking the law, and once again, not only is his analysis incorrect and incomplete, he, despite his infinite wisdom, doesn?t seem to know what he is referencing.

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Source: http://cenlamar.com/2011/11/13/expert-legal-analysis/

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