February 21, 2012
As Colorado Springs city officials continue to define their roles and responsibilities under a new form of government, a legal opinion from City Attorney Chris Melcher gives Mayor Steve Bach broad budgetary powers.
Council members are raising red flags about the opinion, saying it could throw the checks and balances of the new council-mayor form of government out of whack.
The opinion asserts that the mayor can generally refuse to spend funds that the City Council has appropriated, even if a council supermajority overrides a mayoral veto.
“Once an appropriation is made, the legislative role is generally at an end and it is up to the executive to administer the appropriation,” Melcher wrote.
Councilwoman Lisa Czelatdko blasted the opinion, calling it a “purposeful interpretation” of the new city charter to give the executive branch more power than voters intended.
“Manipulation of language with intent to take away the voice of citizens should not be allowed to happen and goes against everything our country was founded on,” she said in an email to The Gazette.
(Should Mayor Bach be allowed to refuse to implement the council's budget changes? Vote in poll.)
Melcher’s opinion was initiated after a dispute between Bach and some council members over whether he had to implement their budget changes, including hiring an additional code enforcement officer and spending $175,000 for tennis court maintenance in the 2012 budget.
Leaked emails showed that Bach was reluctant to carry out the council’s budget wishes in December. But when he met with council members in January, Bach defused the situation by saying his administration was moving forward with the changes.
However, Melcher’s legal opinion raises questions about the future.
“To the extent the appropriation purports to compel executive and administrative action, a court is likely to determine that the Council exceeded it legislative authority,” he wrote.
Council President Pro Tem Jan Martin called the legal opinion “concerning.”
“It basically gives the mayor full power over the city budget regardless of the veto overrides,” she said.
Council President Scott Hente said he disagrees with Melcher’s opinion and that it’s important for Colorado Springs to set up a good system of checks and balances.
“Let’s be honest. We’re setting the tone now. We’re setting the stage for many future councils and many future mayors,” Hente said. “I want to make sure that we do exactly what’s in the charter. I want to do exactly what the voters approved.”
The council was scheduled to discuss Melcher’s legal opinion at the Feb. 13 informal meeting.
But the item was postponed to Monday to give the council more time to analyze the opinion, which was provided to council Feb. 10 and to the news media the morning of Feb. 13.
Adrian Kwiatkowski, president of the San Diego-based Strong Mayor-Council Institute, said he was unaware of any other city that gives the mayor such budget flexibility.
Kwiatkowski, who worked with the Colorado Springs group that promoted the new form of government, said city officials should do a broader analysis.
“Before elevating this into a political battle between the council and the mayor, there’s a way to address this in a very professional manner,” he said. “They should see, ‘What are the standard operating procedures?’ And then if this is outside of that, they need to have a policy discussion over, ‘Should the mayor even be allowed to do that?’”
In Denver, which also has a council-mayor form of government, the mayor or the mayor’s staff meets with council members early on to avoid budget battles, Denver Councilman Charlie Brown said.
But, Brown said, the mayor has been forced to implement the council’s budget changes when they’ve disagreed over a particular issue.
“We added more police officers, and Howdy Doody didn’t want to do that,” Brown said, referring to former Mayor John Hickenlooper, now Colorado governor.
“We overcame,” Brown said. “He just had to go along because we had the votes.”
But Brown said the language in Colorado Springs’ city charter may give the mayor more teeth than in Denver.
“Why do you need a council?” he quipped.