Balance of Power Struggles in City Government
March 3, 2022
Category: Administrative and Elected Officials
Power struggles can and do happen between the executive and legislative branches at the city level, including:
- Authority to hire and fire staff
- Authority to direct staff
- Contracting authority
- Managing council meetings
- Mayor’s veto authority
This blog will touch on these struggles as they occur in code and second-class cities, providing insight on how to handle common conflicts that arise between the legislative and executive branches of city government. First-class cities are governed by their unique charters and will therefore not be discussed. While similar to cities in many respects, towns have some legal differences (e.g., town mayors do not have veto authority) and therefore will also not be addressed.
Employee Hiring and Supervision
Who can hire and fire city employees? The general answer is that the power resides in the city’s executive branch — either the mayor (mayor-council city) or the city manager (manager-council city) and not the city council.
Some city codes do give the council a role in hiring and firing. For example, the City of Pullman’s municipal code requires council approval for hiring the city attorney, public works director, and the community development director. Note, however, that this is not an option for council-manager code cities.
However, even if the charter or city code does not reserve any hiring or firing authority for the council, it is not completely powerless over personnel decisions. The council does have an indirect say in hiring and firing since the council controls the city’s purse strings. So, in passing or amending the budget, the council can either create a new position for the executive to fill or eliminate one that currently exists (requiring a termination). By controlling the budget, the council can also reduce or increase compensation, which may result in the executive hiring a new position or an employee leaving due to lowered compensation.
Who manages city staff? The mayor or city manager is responsible for the day-to-day administration of the city and city staff and councilmembers generally cannot give direct orders to staff (see RCW 35A.13.120; RCW 35A.12.100; RCW 35.23.021).
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. If this happens, a councilmember should share their concerns with the mayor or city manager and not directly with city staff. The city executive is the appropriate person to address regarding staff performance matters; it's outside the role of legislative body to get into this type of day-to-day issue.
Entering Into or Terminating a Contract
Only city councils have the authority to contract (RCW 35A.11.010; RCW 35A. 11.020; RCW 35.23.440), although councils commonly delegate some of this authority 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 $100,000 or less.
Sometimes the power struggle arises in contracted professional services, such as contracts with law firms for city attorney services. Essentially, unless the position of city attorney has been made an appointed office under the city code, then the authority to terminate the contract resides in the council. This can cause a bit of confusion since the executive is typically responsible for hiring or firing employees, but a contracted law firm is not an employee and in the event the city attorney is not an appointed office, then the council, not the mayor or manager, decides whether to retain the firm’s services. The Washington Court of Appeals recently affirmed this reasoning in Koler v. Black Diamond, although a petition for review has been filed so there may be more to come on this matter. Our blog about acquiring legal services provides a basic overview for city executive and legislative branches.
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.
Cities face various issues with regard to control of council meetings, including meeting agendas and council deliberations.
Who sets the council meeting agenda and manages the meeting?
The city council has the authority to establish the council meeting agendas (see RCW 35A.12.100 and RCW 35A.12.120). Often, council rules of procedure will delegate agenda preparation to the mayor, manager, or the city clerk. However, the substance of the agenda ultimately is under the control of the council.
Who controls council discussion and deliberation?
During the meeting itself, the mayor is the presiding officer and is responsible for running the meeting (see RCW 35A.12.100, RCW 35A.13.030, and RCW 35.23.201). Ultimately, though, it is 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 presiding officer (i.e., the mayor) is expected to enforce these rules. These limits could include, for example:
- Setting a meeting adjournment time for council meetings, like Puyallup; or
- Giving councilmembers a specified amount of time to speak, like Port Townsend.
Sometimes a councilmember’s conduct at a meeting is so disruptive it requires that councilmember leave the meeting. Though the mayor serves as the presiding officer, it is the city council as a body that must direct the disruptive councilmember to leave. However, note that this is a drastic action and should only be done as a true last resort, keeping in mind the heightened First Amendment protections for elected officials. Under RCW 42.30.050, the disruptive behavior must actually prevent the meeting from continuing.
A mayor in a mayor-council city can veto an ordinance passed by the council but this 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, but may veto an ordinance authorizing a contract. Mayoral vetoes are not uncommon and, at the very least, allow the mayor to assert their opinion independent of council.
However, the council can override a mayoral veto by a majority plus one vote, per 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 still valid even without the mayor’s signature (see RCW 35A.12.130 and RCW 35.23.021).
Power struggles are somewhat inevitable in city government but so long as the mayor/manager and the council have an effective working relationship, these struggles don’t have to be fatal.
MRSC offers a variety of blogs and other resources to help differentiate roles and responsibilities of the executive and legislative branches in city government, including:
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