Mayoral Veto of Beer Ordinance Amendment No Longer an Option According to MTAS

January 7, 2013
by: 
Dwayne Page
Jimmy Poss

Does the mayor still have veto power over the action of the aldermen to pass an ordinance amendment allowing 24-7 beer sales and on-premises permits for eligible businesses?

Apparently not.

Josh Jones, a legal consultant for the Municipal Technical Advisory Service (MTAS) has issued a written opinion in response to a question put to him by city secretary-treasurer Hunter Hendrixson as to when an ordinance becomes effective and at what point the mayor's veto authority lapses.

City officials have operated under the procedure that even after an action has been passed by the aldermen on second and final reading, except in the case of hiring, the mayor still has until the next or following meeting to veto that action of the board. But Jones writes that since this ordinance amendment, after passage on two readings by the aldermen, has already been signed by the mayor, it has the full effect of law and is no longer subject to a veto.

Essentially, Mayor Jimmy Poss had three options after passage of the ordinance amendment on second and final reading by a 3-2 vote on December 27. To veto the action, to sign it, or to let it become effective without his signature. Mayor Poss signed it. Therefore, he can no longer cast a veto on it.

According to Jones' opinion "Despite its clumsy language, this provision (city charter) provides that the mayor has veto authority over the ordinance in question. However, this power is vested in the mayor as one in a bundle of options to be exercised upon the affirmative vote at ordinance's second reading. Upon that vote, the mayor may: 1) exercise veto power; 2) approve via signature; or 3) take no action and allow the ordinance to become effective without his approval. It is implied that only one of these options can be exercised to a single ordinance. So, when the ordinance in question met the procedural requirements of two readings, the mayor's signature, and return of the ordinance (evidenced by signature of recorder) the ordinance had the full effect of law and was no longer subject to veto. Once an ordinance is properly adopted it can only be amended or repealed by another ordinance," wrote Jones.

According to Jones, "procedural requirements for ordinance enactment are commonly found in a city's charter and Smithville is no exception. The Smithville Charter speaks to ordinance enactment in Section 8 which reads in relevant part:

[O]rdinances shall be submitted and passed on two separate readings at regular or specially called meetings of the Board, the second reading to be not less than one week and not more than two weeks from and after its first reading or introduction; and on each of said readings the ordinance or ordinances so submitted shall receive the affirmative vote of a majority of the Board and be signed by the Mayor before the same shall become effective;

This unambiguous language tells us that an ordinance becomes effective upon passage by affirmative vote of the governing body at two readings and the signature of the mayor.

The Smithville Charter grants veto authority to the mayor in Section 6 which reads in relevant part:

[The mayor] shall have veto power over any action of the Board, except as hereinafter provided, giving his reasons therefore in writing, with the exception of the hiring policy as set out in SECTION 5, Paragraph 2; but the Board may, by a two-thirds vote of the entire membership of said Board, pass the same over his veto; or if he fails to return the same on or before the next meeting of said Board, he shall be deemed to have approved the same and the same shall become a law without such approval; and each and every law, ordinance, resolution or vote, except on the question of adjournment, shall require the approval of the Mayor before it shall become effective, except as hereinbefore provided.

Opponents of the beer ordinance amendment, which was adopted on a 3-2 vote during a special meeting on December 27, were hoping that Mayor Poss would veto the action of the board. Four affirmative aldermen votes would then be required to override it.

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