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Balance of Power Struggles in City Government Redux

January 10, 2019  by  Flannary Collins
Category:  Administrative and Elected Officials

Balance of Power Struggles in City Government Redux

A few years ago, I wrote in an MRSC Insight blog post that “the balance of power struggles currently playing out in the federal government have me thinking about similar power struggles that can happen between the executive and legislative branches at the city level.” The federal government power struggles have only intensified in the past two years, with the current federal government shutdown as Exhibit A. Similarly, the balance of power struggles at the local level have not gone away.

Like my previous blog on this issue, this blog will focus only on code and second-class cities. First-class cities (due to their unique charters) and towns (due to some legal differences with cities) are not discussed in this blog post.

Who Controls the Council Meeting?

Cities face various issues with regard to control of council meetings. A number of these are explored below.

Who sets the council meeting agenda? 

The city council sets the agenda (see RCW 35A.12.100 and RCW 35A.12.120).  Although agenda preparation is often delegated to the mayor or others via council rules, the council maintains ultimate control over setting the agenda.

Is public comment required during a council meeting?  

Nothing in state law, including the Open Public Meetings Act, requires that a city council allow public comment at its meetings. That said, we are not aware of any city council in the state that does not allow some public comment. As well, citizens don’t have a constitutional right—state or federal—to speak at city council meetings. The U.S. Supreme Court has held that “The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy.” Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283 (1984). However, when a council allows public comments and thus creates a public forum, limited or not, constitutional issues arise. An analysis of the constitutional topic is beyond the scope of this blog post, but see this previous blog post for more on this issue. 

Who controls council discussion and deliberation?

The mayor is the presiding officer and runs the meeting (see RCW 35A.12.100RCW 35A.13.030, and RCW 35.23.201). Though, ultimately, it’s the council’s meeting and councilmembers are expected to participate and state their positions. As noted by the U.S. Supreme Court in Bond v. Floyd, 385 U.S. 116 (1966):

Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in government debates by the person they have elected to represent them.

As well, councilmembers have a first amendment right to share their viewpoints. As stated in Bond, “[t]he manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.”  

Limits on council discussion can be adopted in the council rules of procedure, and the mayor, as the presiding officer, would enforce these rules. These limits could include, for example:

  • Setting a meeting adjournment time for council meetings, like the City of Puyallup
  • Giving councilmembers a specified amount of time to speak, like the City of Port Townsend
  • Allowing councilmembers only one opportunity to speak on a particular subject until all other councilmembers have had an opportunity to speak, like the City of Bothell

Can the mayor remove a councilmember from a council meeting?

No, not on the mayor’s own initiative. Based on the city council’s authority to set the agenda and adopt their own rules, the city council as a body would need to declare the councilmember’s conduct so disruptive or disorderly as to require removal from the meeting. Removal from a meeting is a drastic action and would only be done as a last resort, keeping in mind the heightened first amendment protections for councilmembers.

Who Can Make a Purchase or Authorize a Contract?

Only city councils have the authority to contract (see RCW 35A.11.010RCW 35A. 11.020, and RCW 35.23.440), although some authority is often delegated to department heads, the city manager, or the mayor. See, for example Spokane Valley’s delegation to the city manager to enter into contracts that do not exceed $200,000 and Lynnwood’s delegation to the mayor to enter into contracts of $250,000 or less.

Sometimes the contracting power struggle will arise in the mayor’s or city manager’s desire to make a purchase, such as the purchase of a city vehicle. Unless the council has delegated its purchasing authority, the mayor or city manager may not make this purchase without council approval.

Other times, this power struggle will arise when the council authorizes the mayor or city manager to execute a contract and the mayor or city manager refuses to do so. If the mayor refuses to execute a contract authorized by council, the council could direct the mayor pro tem or the entire council to sign the agreement.

But, Doesn’t the Mayor Have the Authority to Veto an Ordinance?

A mayor in a mayor-council city can veto an ordinance passed by the council but this mayoral veto is only authorized for ordinances, not for any other council action (see RCW 35A.12.100). A mayor cannot veto contracts that are authorized by motion, not by ordinance.

With regard to vetoing an ordinance, the council can override the mayoral veto by a majority plus one (see RCW 35A.12.130 and RCW 35.23.021). If the council does override the veto and the mayor still refuses to sign the ordinance, the ordinance is valid even without the mayor’s signature (see RCW 35A.12.130 and RCW 35.23.021).

Who Manages Staff?

Sometimes, a councilmember will be displeased with a particular staff member or with the amount of time a project is taking and will want to take action. But, it is the mayor or city manager, not the council, who is responsible for the day-to-day administration of the city and staff (see RCW 35A.13.120RCW 35A.12.100, and RCW 35.23.021), not the council. Councilmembers can share their displeasure with the mayor or city manager, but they should refrain from giving direction to staff.

As for hiring and firing staff, unless the city code states otherwise, this authority resides in the mayor or city manager. The council can indirectly impact hiring and firing by way of the city budget. For example, the council could amend the budget to fund a new position (or defund an existing position), but only the mayor or city manager could select the personnel to fill that new position.

Final Thoughts

If the last two years are any measure, power struggles are here to stay.  Learning appropriate roles can lessen these power struggles between executive and legislative branches, even if it can’t eradicate them altogether.

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Flannary Collins

Flannary Collins is the Managing Attorney for MRSC. Flannary first joined MRSC as a legal consultant in August 2013 after serving as assistant city attorney for the city of Shoreline where she advised all city departments on a wide range of issues.

At MRSC, Flannary enjoys providing legal guidance to municipalities on all municipal issues, including the OPMA, PRA, and personnel. She also serves on the WSAMA Board of Directors as Secretary-Treasurer.

VIEW ALL POSTS BY Flannary Collins


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