‘There’s nothing there to veto’: Judge says mayor can’t veto negative council vote

JACKSON, Miss. (WLBT) - Jackson Mayor Chokwe Antar Lumumba was dealt a major blow Friday in his efforts to determine who will haul the city’s trash.

During a hearing in Hinds County Chancery Court on July 8, Special Appointed Judge Larry Roberts ruled that the mayor could not veto a “no” vote of the Jackson City Council.

“When the matter occurred with the solid waste contract, the failed ratification of this item constituted an inaction, not an action... consequently, when the matter is not passed by the council it is a negative action to which the mayor does not have the power to veto,” he said.

“There’s nothing there to veto... the council rejected it.”

See the judge make his ruling below.

The decision leaves the future of waste collections in the city in limbo.

Mayor Chokwe Antar Lumumba says trash collections will continue as scheduled for now. However, at least one city council member would not commit to whether the city’s current contractor should be paid.

This spring, Richard’s Disposal began collecting residential garbage on April 1, the same day the mayor vetoed the council’s decision to reject an emergency contract with the firm.

Since then, the council has refused to pay the firm for their work.

Ward 7 Councilwoman Virgi Lindsay was pleased with the decision. “I want to thank our counsel for [their] really great effort today, and also I appreciate the judge’s really thoughtful and careful decision,” she said. “I am grateful to the judge.”

Lindsay didn’t know what the ruling meant for Richard’s, saying that the matter likely won’t be resolved until the case works through the appeals process.

She would not say whether the council should pay the firm for the work they’ve already done.

The New Orleans-based firm has been hauling waste in the city since April 1.

In May, the council refused to take action on a claim from Richard’s for $808,000 for work done in the month of April. Since then, the firm has not been paid for any work in the Capital City.

For his part, Lumumba said he is looking at appealing the decision. “You’ve now had two different justices interpret the law in a different way,” he said. “That, in and of itself, makes it clear that this issue is a complex one, and one in need of ultimate determining from the highest body in the state.”

The mayor was referring to an earlier decision handed down by Justice Jess Dickinson, who was appointed by the Mississippi Supreme Court to determine whether the Richard’s contract was valid.

In his ruling, Dickinson said the council had to sign off on the agreement for it to be so, but included a footnote in the decision saying the mayor could theoretically veto a no vote of the council and challenge the council’s decision to reject the agreement in the court system.

Dickinson later vacated that ruling.

“We’ve now had two courts look at this matter, one in a hearing just very briefly here, and one that had multiple occasions to look at the facts and determine the complexity of the arguments,” the mayor said. “The failure to look at the complexity of these arguments led to what I believe to be an erred decision.”

Dickinson held at least two hearings before handing down a written order. Roberts’ bench ruling came after hearing about two hours of litigation and said in the interest of Jackson, he said it was incumbent on him to issue a bench opinion, which would be followed up with a more detailed written opinion.

At the heart of the arguments was whether the mayor has the ability to veto a negative vote of the city council.

John Scanlon, an attorney for the council, says no. “The only statute to grant the veto power to the mayor-council municipality is 21-8-17, and again, it says ordinances adopted by the council. And that second word in that sentence, adopted, is the key phrase. That’s where the veto authority is found,” he said. “Ordinances have to be approved to be vetoed.

Scanlon said there were few cases out there regarding veto power, but said the cases and attorney general’s opinions on the matter remain consistent. “Executive officers’ veto power is an exercise of limited power that is only negative and not positive because to do otherwise would violate the separation of powers found in the state constitution.”

“The mayor is the executive branch of the government. The city council is the legislative branch... If the mayor were permitted to come in and take a failed vote... and veto it, whereby he creates a brand new piece of legislation or adopts a contract that was never affirmatively adopted or approved... he would be putting something in place legislatively that was never done by the actual legislative branch.”

He added that he believes the mayor wants to rule in his favor simply to “effectuate a contract.”

The mayor issued a notice to proceed to Richard’s earlier this year, even after the council denied awarding the contract.

Jessica Ayers, an attorney for the mayor, says Mississippi Code Section 21-8-72 gives the mayor authority to veto any ordinance of the council. “What is included in that is all official actions of the city council... Because statute says ordinances include for the special purposes, ordinances, resolutions...” she said, pausing.

“Orders and any other official actions of the council,” Judge Roberts said.

“Exactly. The statute makes it quite broad, and [there are] only two limitations in the statute for when it comes to the mayor exerting his authority,” she said, including one related to appointing department heads and drawing new district lines. “Those are the only statutory provisions that place limits on the mayor’s actions with regard to veto.”

She further argued that the execution of contracts fell to the executive branch, rather than the legislative, and that even if the mayor’s veto power was upheld, the council would still have the authority to override it.

Roberts grilled attorneys on both sides, asking Scanlon whether a negative vote could be considered an official action of the council.

“When the council votes as they did in this case, 4-3 not in support of the motion, is that an official action?” the judge asked. “You’d have to say it is, wouldn’t you?”

“It’s not an action that’s vetoable,” Scanlon said. “It’s not an action that constitutes an ordinance adopted by the council.”

“But you do consider it to be a quote, unquote, official action of the council?” the judge pressed.

“I would agree that it does constitute action, although there have been some attorney general’s opinions out there that have referred to inaction when something like that happens,” Scanlon responded. “But I would agree that you know, if a motion is put before the city council and they take a vote on it, then that constitutes action as opposed to just discussion.”

“One time in my career as a circuit judge, I ruled exactly opposite from the attorney general’s opinion. And, for whatever reason, the attorney general did not appeal it,” the judge said. “So it’s just persuasive, it’s not controlled.”

Roberts asked similar questions to Ayers and focused on the council’s role in executing contracts.

“How can he execute a contract unless the majority of the city council approves that contract?” he asked. “Even Judge Dickinson recognized that the contract had to be approved by the city council to be effective.”

“In this instance, the contract was not approved by the city council. And if the mayor’s argument is correct, that he can exercise veto authority, then the law of a majority of a council is converted, if you will, to a two-thirds requirement,” he said. “Does that not impinge upon the separation of powers principle between the legislative and the executive?”

Ayers disagreed, saying that entering into contracts and finding vendors is an executive function of the city.

“If they just won’t approve it, then... the mayor can veto that disapproval, which, of course, would make the contract binding,” she said. “And the council has the authority to override it.”

The hearing comes about two months after the council filed suit against the mayor, seeking a declaratory judgment on whether he could veto a negative action.

The council initially asked for an injunction against the mayor, preventing him from taking action after vetoing a negative vote. However, during the hearing council attorney John Scanlon said the plaintiffs were no longer seeking it.

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