Roddey v. County Council of County of Allegheny

841 A.2d 1087, 2004 Pa. Commw. LEXIS 57

• Court: Commonwealth Court of Pennsylvania
• Decided: February 5, 2004
• Status: Published

Opinions

OPINION BY

President Judge COLINS.

James C. Roddey, the elected Chief Executive of the County of Allegheny, appeals two orders of the Court of Common Pleas of Allegheny County. The first order dismissed Roddey’s complaint against the County Council of the County of Allegheny and the County’s Sheriff Peter De-fazio, which complaint sought a declaratory judgment that he has the power to exercise a line item veto by reducing specific line-item allocations. The second order denied Roddey’s Motion for Reconsideration of the first order. Roddey has also filed an application to reinstate the automatic supersedeas that arose as a result of Roddey’s appeal on the merits.¹

Roddey, County Council, and Defazio submitted a stipulation of facts that reveals the following. On December 3, 2002, County Council adopted three resolutions, Bill No. 02-1202 (operating budget), No. 02-1203 (capital budget), and No. 02-1204 (grants, special accounts, and agency fund budget), all proposed for the 2003 fiscal year. On December 12, 2002, Roddey exercised his power under Article VII, Section 5 of the Home Rule Gharter, 302 Pa.Code § 1.7-705, by vetoing certain items in all three budget resolutions. Section 5, captioned “item veto,” provides:

Upon adoption or amendment of the annual operating and capital budgets by County Council, the budgets shall be delivered within three days to the Chief Executive who, within seven days thereafter, may veto any item. If the Chief Executive vetoes any item, the Chief Executive shall advise County Council in writing of the reason for the veto. County Council may override the veto of the Chief Executive within seven days by an affirmative vote of at least two-thirds of the seated Members.

With respect to the grants, special accounts, and agency fund budget, Roddey eliminated the entire budgetary allocation for “Sheriff’s Special Revenue Fund.” However, and of significance here, Rod-dey, in exercising his veto power with regard to specific items in the operating and capital budget resolutions, did not strike those items in their entirety, but rather struck the dollar amount allocated for certain items, indicating to the side of the item the amount he rejected by veto and the amount he approved. Thus, he used his veto power to reduce allocations to certain items, what we will refer to here as a reduction veto.

We note initially, that Section 5 provides only for veto power over operating and capital budgets, and does not specifically provide for veto power over a grants, special accounts, and agency fund budget resolution. Additionally, Article VII, Section 4(a) directs. Council to adopt balanced operating and capital budgets for the next fiscal year no fewer than twenty-five days before the end of the present fiscal year. 302 Pa.Code § 1.7-704(a).

Under Section 5 of the Charter, when the Chief Executive exercises, his. veto power, County Council may override his veto by a minimum vote of two-thirds of its members within seven days (presumably of the date the Chief Executive advises Council of his veto). However, in this case, Council, on or about December 17, 2002, about five days after Roddey’s veto action, elected not to seek to override the vetoes, but rather adopted motions, by a vote of 9 to 6, declaring Roddey’s reduction vetoes null and void, based on Council’s conclusions that Roddey had not properly exercised the veto power granted to him under the Charter.

Roddey requested the following declarations: (1) that he has the power to exercise a “reduction” veto; (2) that the 2003 budget resolutions, as vetoed, are the lawful 2003 County budgets; (3) that Council’s motions designating Roddey’s vetoes null and void had no legal effect; and (4) that Council has no power to contest the validity of the 2003 budget resolutions, as vetoed, because it did not act within the time period allowed to override Roddey’s vetoes. Alternatively, Roddey requested a declaration that, if he did not have the power to exercise a “reduction veto,” then his striking of part of an appropriation constituted a valid veto of those entire items, and Council had a duty to override those items. Roddey argues that Council’s failure to override those vetoes renders the resolutions, with those vetoed line items, the budget for 2003, but Council must commence to complete the 2003 budgets as to those items that were vetoed.

The trial court, in dismissing Roddey’s complaint, looked at other counties that have adopted home rule charters, some as early as the 1970’s, and was persuaded that Allegheny County, having had the benefit of considering the charters of three counties that specifically grant line-item reduction powers to their executive, would have included similarly specific language in its own Charter, if it had wanted to grant such power. The trial court also rejected Roddey’s reliance on the Pennsylvania Supreme Court’s decision in Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901). That case involved an analysis of a governor’s alleged constitutional power to exercise a reduction line-item veto.

The trial court determined that Council’s failure to override the vetoes did not result in the resolutions becoming the final budgets, with the vetoes having full force and effect. Finally, the trial court concluded that a decision by the Court of Common Pleas of Allegheny County in the case of Defazio v. James C. Roddey, Chief Executive, G.D. 02-24871 (2003), did not preclude the trial court from considering the validity of Roddey’s veto of the Sheriffs appropriation in the grants, special accounts and agency fund budget.

The trial court denied Roddey’s Motion for Reconsideration, stating in its order that Roddey’s striking of $1,514,270.00 from the grants, special accounts and agency fund budget, was an attempt to reduce the sheriff’s operating budget by that amount, and that the Defazio decision did not have res judicata effect.

Roddey raises the following issues before this Court: (1) Whether the Supreme Court’s analysis in Commonwealth v. Barnett, controls the interpretation of Rod-dey’s line-item veto powers under the Charter; (2) Whether the Council can effect a de facto override of Roddey’s vetoes by ignoring the budget resolutions as vetoed by Roddey; (3) Whether an unbalanced operating budget may be received and recognized as the lawful operating budget for 2003; and (4) Whether Rod-dey’s line-item veto elimination of the Sheriffs appropriation from the county grants, special accounts and agency fund is void as a “reduction” of the sheriffs operating budget.

We begin by addressing Roddey’s argument that the trial court erred by concluding that the Supreme Court’s decision in Barnett is not applicable. We agree with the trial court that that decision does not apply. The obvious distinction between Barnett and this case is that Barnett involved an interpretation of a grant of constitutional power to the governor. While similar to each other, the state’s tri-partite form of government is different from the government established under a home rule charter. Additionally, the Supreme Court based its decision in Barnett partly on the fact that, following the adoption of the line-item veto provision in the Constitution, no one had challenged the Governor’s reduction line-item vetoes. The Court was persuaded that this so-called acquiescence indicated acceptance by the legislature that the Governor had the power to veto by line-item reduction. While noting that such reasoning might not hold ground today, we also note that, in the present case, the record does not indicate any similar historical acquiescence by County parties to the use of the Chief Executive’s reduction veto, nor would we expect that it would, considering the fact that the Charter did not become effective until 2000, only two years before the Chief Executive’s exercise of the power became an issue here.

We observe that Article 9, Section 2 of the Constitution apparently vests municipalities with the power to adopt home rule charters that grant a chief executive a reduction-type line-item veto power.' “A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.” Id.

We are left with the duty to consider whether the framers of the Charter’s line-item veto provision, as adopted by the voters of Allegheny County, intended for the Chief Executive to have such power. Section 5 of the Charter provides that Council shall forward the operating and capital budgets to the Chief Executive within three days of adoption or amendment. The Chief Executive “may veto any item.” Although the Allegheny County Administrative Code appears to go further by adding that the Chief Executive may strike “or otherwise”² indicate his disapproval of such item or items, the powers described in the Administrative Code cannot enhance or diminish the powers set forth in the Charter, just as a state-wide act of legislation cannot add or delete powers or rights that spring from the state Constitution.

The act of adopting a budget is a legislative process. The Chief Executive acts in a limited legislative capacity in the process; his veto is a method of checking and balancing otherwise unfettered actions by the legislative branch, in this case, County Council.³ However, the Chief Executive’s power must similarly be limited in the process. If we were to accept Roddey’s argument that the Charter’s limited grant of power to the Chief Executive to veto items includes the power to reduce the appropriation, then we would likewise have to recognize not only that power to act in the negative, but also to act affirmatively with regard to the budget, by dictating item amounts above that which Council has set forth in a budget resolution. Such an interpretation would extend the Chief Executive’s power beyond that for which the Charter specifically provides, and would enhance his powers beyond the ordinary purpose for which the veto power is intended — to ensure that the legislature has some limits in its appropriations.

Although we cannot rely on the existence of other home rule charters that contain reduction veto provisions as legal authority, those charters do suggest the concerns that other municipalities might have had with non-specific language such as that in the Allegheny County Charter. The drafters of those other charters may have been concerned that such non-specific language would either fail to provide for the reduction veto power they deemed warranted, or that the absence would, as discussed above, lead to the conclusion that a chief executive had more affirmative budgetary clout than merely the power to exercise a reduction line-item veto.

We are not persuaded by Roddey’s arguments that the “strong executive” form of government and the zero-based budgeting concept envisioned by the Charter support his interpretation. A straightforward interpretation of the veto provisionas requiring the Chief Executive to strike an entire item — provides ample authority to accomplish both of those purposes. By striking items, the Council is forced to address the issues the Chief Executive raises; his duty under the zero-based budget concept has been performed. He can do no more. The Council, if it so intends, could thwart that duty despite his veto, whether he vetoes by reduction or the complete striking-off of an item. Although the reduction veto makes sense as an efficient tool for the two branches of government to reach some mutual accommodation, we are bound by the limits of the Charter’s language. The language in the Charter is clear and plain — the Chief Executive may exercise a line-item veto, not a reduction line-item veto.

Accordingly, we conclude that the Charter grants to the Chief Executive only the power to strike certain items entirely, and not the power to reduce the amounts appropriated for individual line items in a budget resolution.

Roddey argues that the operating and capital budgets, as vetoed, are the final lawful County budgets, because Council had the duty to override the vetoes by a two-thirds voté. Roddey argues that, even when Council believes that the Chief Executive has not properly exercised his veto power, it must comply with the Charter’s veto-override provision. This issue requires us to consider the question of whether the improper reduction vetoes constitute a nullity or whether the act of vetoing in part results in a de facto veto of the entire item. The trial court relied upon this Court’s affirmance of a trial court’s opinion in Whale’s Tale, Inc. v. City of Pittsburgh, 78 Pa.Cmwlth. 494, 467 A.2d 665 (1983). Based upon that decision, the trial court concluded that the improper exercise of the veto power renders the attempt to veto a nullity. We agree with Roddey that that decision is not applicable here. Significantly, that case involved a veto by the Mayor of Pittsburgh over a non-legislative matter, unlike this case, which involves the Chief Executive’s exercise of a veto over a legislative matter.

We could uncover no legal authority in Pennsylvania addressing the legal status of a veto exercised in a manner beyond the power granted in the enabling legislation. However, other states ' have recognized that, when enabling legislation provides no specific reduction veto power, in order for a veto to be valid, the vetoing officer must strike down the entire item, and cannot disapprove part of an item and approve the remainder. Brault v. Holleman, 217 Va. 441, 230 S.E.2d 238 (1976). More persuasive is the authority cited by Council, Fordice v. Bryan, 651 So.2d 998 (Miss.1995), in which the Supreme Court of Mississippi held the veto action of the Governor null and void when he sought to veto parts of a bill authorizing the issuance of bonds. Although the Governor had partial veto authority with regard to appropriations, that power did not extend to other types of legislation. The court held that the Governor’s unconstitutional attempt to exercise the partial veto power was a nullity. Id.

We similarly conclude that Roddey’s attempt to exercise a power that the Charter did not grant to him results in a nullity of the vetoes he sought to effectuate by reduction.

In his brief Roddey contends that the trial court erred by judicially approving an operating budget that is not in balance. Roddey argues that Council’s failure to override his vetoes rendered the budget, with his vetoes, final. Based upon this view, he seeks an order of the Court directing Council to commence proceedings to complete the 2003 budget to the extent vetoed. However, based upon our conclusion that his vetoes were null and void, we need not address his argument that the budget was incomplete. In his brief, Rod-dey seems to request the Court to declare the 2003 budget ultra vires and void, because it is not balanced. However, Rod-dey, in his complaint, while mentioning the fact that the budget is not balanced,-does not specifically seek an order of the court to direct Council to balance the budget. Accordingly, we will not address this issue any further.

Roddey’s last argument is that the trial court erred by concluding that his elimination of the sheriffs line-item in the grants, special accounts, and agency fund budget resolution was a reduction of the sheriffs appropriation. As we noted above, the Charter gives the chief executive the power to veto only items in the annual operating and capital budgets. While the grants, special accounts, and agency fund budget clearly constitutes appropriation legislation, the Charter provides the chief executive line-item veto power only with respect to operating and capital budget resolutions. Based upon this alternative theory, we conclude that the trial court did not err in concluding that Roddey’s veto was improper.

As to Roddey’s application for reinstatement of the automatic supersedeas, Roddey sought to ensure that Sheriff Defazio’s office would have to abide by the 2003 budget pending this Court’s disposition of the appeal on the merits. Based upon our concurrent resolution of the underlying appeal above, we conclude that the issue is moot. Further, Council and Defazio’s answer to the supersedeas appeal indicates that Roddey, Council and Defazio have reached an agreement regarding funding for Defazio’s office. We hereby deny Roddey’s application.

Based on the foregoing, we affirm the order of the trial court.

ORDER

AND NOW, this 5th day of February 2004, the orders of the Court of Common Pleas of Allegheny County are affirmed.

Roddey’s application to reinstate automatic supersedeas is denied.

1 . Roddey captioned this application as an appeal of the trial court’s order vacating the automatic supersedeas. However, the proper form of pleading is a request to this Court to reinstate, and such characterization comports with the relief he is requesting.

2 . This phrase may mean nothing more than that he may indicate his veto by a means other than “striking.”

3 . See, for example, Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923), describing the veto power as a method of deterring “pork barrel” spending.