AG sides with council in tiff over contract ordinance

Published 2:14 pm Friday, July 31, 2020

The Alabama Attorney General’s Office recently handed down its opinion regarding an ordinance passed by the Selma City Council in September 2018, which empowered the council president to sign off on contracts when the mayor “is absent, or declines or fails to execute contracts,” finding both that the ordinance and the action it allows are within the letter of the law.

“Except in cases in which the mayor has the exclusive authority under law to sign or execute documents, the city council, through ordinance, may direct the council president to sign contracts ultimately approved by the city council when the mayor is absent, or declines or fails to execute the contract,” the opinion, signed by Alabama Attorney General Steve Marshall stated.

The opinion was sought following an Alabama Department of Examiners of Public Accounts report, which alleged that the ordinance “appears to contradict state law.”

Following that report, Selma Mayor Darrio Melton informed city employees that all contracts signed by Selma City Council President Corey Bowie were “null and void.”

In contradicting the Examiners’ assertion, the Attorney General opinion pointed to a June 2007 opinion, in which the Attorney General stated that “[o]nly a court of law may determine the validity of a municipal ordinance” as they are “presumed to be valid until they are declared invalid by a court of law.”

Essentially, the assertion made in the Examiners’ report has no bearing on the legal validity of the city’s ordinance.

The opinion further backs up this assertion by citing a February 2001 decision related to a conflict between the council and mayor in Birmingham, in which the council authorized the mayor or the council president to sign off on documents transferring the sewer and water systems back to the Water Works Board.

In that opinion, the Attorney General asserted that “[a]ll legislative powers and other powers granted to the cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance.”

“Accordingly, if a statute grants mayors exclusive authority to execute certain official documents, then an ordinance granting such authority to other officers would conflict with state law,” the opinion stated.

The opinion notes that the Department of Examiners arrived at its opinion based on a state statute that says “[The mayor] shall execute all deeds and contracts…,” but it should have considered the rest of the statute, which adds the caveat “[i]n cases not otherwise directed by law or ordinance,” which leaves room for other officers to be empowered to approve city documents not specifically reserved for the mayor.

Further supporting the claim that the council has “general authority to designate an officer to execute contracts is a council’s control over a city’s finances and property.

In the case of Edwards v. First National Bank, the Alabama Supreme Court found that under state law “the council can decide who is authorized to sign the checks of the city.”

Additionally, in the Town of Boligee v. Greene City Water and Sewer Authority case, found that the mayor, without the council’s approval, was not authorized to enter into and execute an agreement with the local water authority for a new waterline in town.

“The council’s management and control over the real property…is controlling and nothing in the language delegating certain authority to the mayor trumps that responsibility,” the opinion stated. “Although a mayor is authorized to enter into and to execute the type of contract at issue in this case, he or she is allowed to do so only to the extent directed by the city or town council.”

In referencing this case, the Selma opinion notes that “a city council may take actions necessary for managing city finances and property and may, through ordinance, prescribe which city officers may execute required documents when state law does not specifically provide.”

There are statutes that specifically denote the mayor as having “exclusive duty and power,” such as organizing a yearly audit and executing a deed to dispose of surplus real property , which the council cannot through ordinance confer to another officer.

In those cases – where the council cannot through ordinance grant power to another officer – if the mayor refuses or fails to execute contracts, the council must seek a court order directing the mayor to perform the duties required by law.