Thursday, March 1, 2012

Melcher's turn to talk

Posted By on Thu, Mar 1, 2012 at 2:21 PM

City Attorney Chris Melcher
  • City Attorney Chris Melcher

No secret here: City Council wants to hire its own attorney to look into separation of powers issues.

We wrote about that move here. Basically, a majority of Council thinks that City Attorney Chris Melcher's opinion that the mayor can simply ignore their veto overrides in some instances may be wrong. What's more, Council is concerned with Melcher's recent opinion describing the separation of powers between the Council and the mayor — a breakdown that leans in the mayor's favor.

We've written quite a bit about Councilors' view of the situation, but not much about Melcher's. (That's because the city attorney hasn't often returned our calls by our deadline.) However, Melcher reached out this week, sending over a long explanation of his viewpoints.

Melcher has said publicly that he believes Council is simply unwilling to accept that it lacks many powers under the new system of government. He blames recent controversey on growing pains, and says he arrived at his opinions after a long and detailed process.

Here's what he has to say on the subject:

I wanted to provide further information regarding the Opinion of the City Attorney’s Office issued February 10, 2012, entitled “Roles and Responsibilities of City Council and Mayor with Regard to Appropriations and Administration of Appropriated Funds”. My office consulted with the several outside attorneys and other municipal government experts on the opinion, and carefully reviewed the proper roles of Council (the legislative branch) and the Mayor (the executive branch) in the appropriations and budget process under the City Charter and our new form of government. In our research and discussions with outside attorneys, there was a consensus that the Colorado Supreme Court has clearly ruled many times on the respective roles of the legislative branch and the executive branch in appropriations and budget implementation. These opinions of the Supreme Court have defined the respective roles of the legislative and the executive branch — and describe in detail the limitations on improper legislative interference with the executive administration of the budget, as well as limitations on the executive ignoring or contradicting appropriate legislative major budgetary determinations. The City Attorney’s Office memorandum of February 10, 2012 discusses in detail the 3 major rulings by the Supreme Court in the past 30 years and similar rulings by other State Supreme Courts, describes the proper roles of Council and the Mayor under our City Charter, and provides clear guidance to Council and the Mayor on both the 2012 Budget Ordinance and on future budget cycles.

It is worth pointing out that the Mayor decided in early 2012 to adopt a conciliatory and collaborative approach in the 2012 Budget, and agreed to implement the Council veto override budget requests. This was despite the fact that at least 2 of those veto overrides (the additional code enforcement officer and the tennis court maintenance directives) were under the City Charter and Colorado law an inappropriate legislative interference with the executive administration of city departments. It is important to understand that in light of the Mayor’s decision to implement the Council veto override requests, there is currently no “injury” to either Mayor or Council that requires further action, and no requirement that further City time or resources be expended on this question. The City Attorney’s Opinion on the appropriations in the 2012 Budget is an “advisory opinion” to clarify for Council and Mayor their proper roles in the budget process, based on the actions in the 2012 Budget. The City Attorney’s opinion is also provided as “guidance”, to help both the Mayor and Council navigate future budget cycles, and was completed at the request of both Council and Mayor for this purpose.

The City Attorney’s Office memorandum states that Council overstepped their lawful authority under the Charter in the 2012 Budget and sought to exert power they did not properly possess — it was not the Mayor impermissibly seeking new budget powers. The heart of the issue was whether Council could seek to instruct the Mayor how many employees to hire for code enforcement, and seek to instruct the Mayor how to use the “Parks and Rec” budget funds, in this case on tennis court maintenance. The Colorado Supreme Court in 3 landmark decisions has stated that decisions on staffing and decisions on allocation of budget resources are central to the executive role, and generally are not appropriate matters for legislative direction. The veto over-ride or the supermajority vote by Council in December 2011 was certainly a significant fact, and when taken in support of a proper legislative action would of course be binding on the Mayor. But a veto override cannot in and of itself overcome a violation of the Charter (our City constitution). In such a case, the veto override is not the critical factor, the critical factor is whether the Council has taken action outside their lawful role and overstepped their bounds as defined under the Charter. If so, the Council veto override is invalid and the Mayor’s veto would stand.

In our conversations with outside experts, both outside attorneys and political experts, the consensus view strongly advised that conflicts between the legislative and the executive branches on appropriations and budget questions are best resolved through the political process — through dialogue, through compromise and collaboration, or through the election process when differences cannot be resolved. The legal process is a last resort, and is often very expensive and very inefficient — particularly when the answer is already clear. Most of the Colorado Supreme Court decisions on these issues took many years to resolve, and left the affected citizens and the government agencies in limbo and uncertainty for long periods of time before clarity was obtained. The existing Supreme Court opinions are well established as the clear direction from the State’s highest court.

Two of the attorneys in the City Attorney’s Office that worked on this opinion (Wynetta Massey, Pat McDivitt) have a combined experience as municipal law attorneys working for the City of over 35 years (they reported to Council for virtually all that time, prior to the Charter change). I was personally involved in developing and writing this opinion, carefully reviewed every case, and discussed the issues with numerous individuals before rendering our opinion. I have over 25 years experience in legal practice, including 5 years as a federal prosecutor, over 10 years as a general counsel or senior executive to public and private businesses, and over 5 years as general counsel to nonprofit organizations (JD Yale Law School 1986, BA Carleton College 1982).

The outside attorneys and outside experts consulted by the City Attorney’s Office include the following:

1. John Cook, Managing Partner Colorado Springs, Hogan Lovells

2. Cole Finegan, Managing Partner Denver, Hogan Lovells (former Denver City Attorney)

3. Chantell Taylor, Attorney, Hogan Lovells

4. Doug Friednash, Denver City Attorney (current)

5. Adrian Kwiatkowski, President, Strong Mayor-Council Institute

6. Robert Loevy, Professor Emeritus, Colorado College (Ph.D. in Political Science, tenured professor for over 40 years; numerous publications, paper, and awards during career; appointed by the Governor as a member of the Colorado State Redistricting Commission 2011; recognized national expert and public commentator on issues of government and politics)

7. International Municipal Lawyers Association (national association for city attorneys and municipal law practitioners)

I hope this information is helpful. Thank you,

Christopher J. Melcher

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