Gov't

City Contracts: Just the Facts

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By Dave Freneaux

   With the publicity surrounding the pending issuance of a new City Services contract, many questions have been brought to CentralSpeaks.com regarding how contracts are handled by municipalities such as the City of Central.  Here, in brief, is some information on Cities and Contracts which may provide some of the answers:

    The City of Central is governed by the Lawrason Act.  Under the Lawrason Act the City Council's primary authority is to "Enact ordinances and enforce the same…".  The City Council has the sole authority to pass legislation, including the appropriation of monies to fund any contract the Mayor chooses to execute on behalf of the City.   Under the Lawrason Act "The Mayor is the chief executive officer" and has the sole authority  "To sign all contracts on behalf of the municipality."  In essence, Central, like our Federal Government, has a legislative and an executive branch, and the authority of each branch is clearly defined and serves as a system of checks and balances.  To allow either the Mayor or the Council the authority to both fund contracts and to select the contractor would place unchecked power in the hands of one branch of government.

     The contract for City Services which is being put out for bids over the next few months is a "Professional Services Contract" in which the City will hire a private company or companies to perform specific services for an agreed fee.  Specific guidelines are set out in Attorney General Opinion 09-0264 as to how contracts are to be executed.  The Attorney General Opinion states:  "Finally, based upon the concept of the Mayor/Board of Aldermen (City Council) division of power, it does not appear that the board of aldermen has a duty or right to approve specific bills for payment. While the Board of Aldermen approves the budget, once the budget has been approved and the funds have been appropriated, the mayor has the power and the duty to pay bills in the conduct of the proper administration of municipal affairs. Accordingly, it is the opinion of this office that the Board of Aldermen has no duty or right to approve specific professional services contracts for payment when the contract falls within a category on the approved budget and proper appropriations have been made."

    In an effort to promote citizen involvement Mayor Watts has, over the past months, used a committee of twenty-one citizens and experts to write the new City Services contract, and has appointed a nine member selection committee to evaluate bids and recommend contract awards.  Attorney General Opinion 05-0424 addresses this process in stating: "A mayor may appoint individuals of his choice to conduct a fact-finding mission and to render a report on the outcome of their investigation.  However, the advisory group can only report their findings to the mayor and nothing more.  They can take no independent action on their own.  The advisability of pursuing such course of action is within the sole discretion of the mayor."  Thus, at the end of the evaluation process for the City Services contract bidders, the right to award the contract(s) is reserved for the Mayor in a Lawrason Act City such as Central.

    To recap, the Mayor in a Lawrason Act City is able to utilize advisory committees to research and recommend action on a contract.  The Mayor has the sole authority to enter into that contract, and the Council has the sole authority to appropriate funding for that contract.  On July 1, 2011 the City of Central will have gone through these processes and should have a new contract in place for the provision of City Services.

4 Comments

  1. Lyn

    February 25, 2011 at 1:59 pm

    Dave,
    Just trying to understand all of this…the Lawrason Act states under the Mayor’s responsibilities that the Mayor is to “Sign all contracts on behalf of the municipality” with the AGO elaboration ” While the Mayor may sign contracts on behalf of the municipality, he may not enter into a contract Incurring debt without board (council) approval. The Mayor alone can select the lowest bidder for a contract when authorized by ordinance or municipal policy.” Is the AGO you’ve quoted above a separate section specifically related to contracts?

    • dave

      February 25, 2011 at 2:36 pm

      First, I don’t believe I cited the quote you reference. I believe that was a reference on a Facebook page not cited by me that I responded to. That said, I don’t see that it says anything that is not in support of the framework set forth under the Lawrason Act which designates the Mayor as the CEO of the City. The Council sets the budget, the Mayor uses the funds to run the City. Does that answer your question?

  2. Kyle

    February 25, 2011 at 4:39 pm

    Dave:
    After reading your article, I went to the A.G.’s website to read the entire opinion. More sections of the Atty General’s 09-0264 opinion clear this up even more that the mayor has the right to choose professional service contracts, not the council. The council of Westwego tried to enact an ordinace giving the council the power to choose professional service contractors, and the AG’s office ruled that ordinance to be improper (see below). It states that the council appropriates the funds, but the mayor has the right to choose the contractor. From what I have been following in Central, the mayor has appointed a citizen’s committee to give a recommendation to him to present to the council. I believe this is true democracy at work…that is, allowing the citizens and public participation to play a role. The mayor didn’t have to do this, but he did.

    Taken from AG Opinion 09-0264 (from Atty General website: http://www.ag.state.la.us):

    While the board of aldermen may establish policies and procedures for administration of the municipality, statutorily these policies and procedures must be reasonable and not infringe upon an area reserved to the mayor. An ordinance that interferes with the mayor’s right to conduct the daily operations of the municipality is improper.

    In 1990, the City of Westwego enacted Section 2:142(a) of the City of Westwego Code, which provides that “[e]ach person who is to be retained or employed to perform professional services for the city shall be selected by the board of aldermen from the list of those persons submitting statements of qualification and/or proposals pursuant to said selection.” The ordinance bestows upon the Board of Aldermen the authority to select professional service contracts for the City of Westwego.

    Although state law does not specifically provide with whom the authority to select professional service contracts rest, the powers of the mayor and the board of aldermen listed within the Lawrason Act provide us much guidance. Among the responsibilities of day-to-day administration, the mayor has the authority, subject to state law, ordinance, and civil service rules, “to appoint and remove municipal employees.” The board of aldermen shall “provide policies and procedures regulating the employment of municipal employees including the hiring and firing of such employees.”

    In “Bourgere v. Anzelmo”, the court ruled that ordinances placing constraints on the hiring, firing and suspension of non-civil service municipal employees by the mayor were in conflict with the statute giving the mayor the administrative responsibilities for administering the municipality. The Court held that the mayor has the right to hire and fire, subject only to the “policies and procedures” promulgated by the board of aldermen. As stated by the Court, “[t]his duty to enact policies and procedures does not
    extend to the right to make individual decisions.”

    Finally, this office has recognized the mayor may authorize an individual to perform services for the benefit of the city, but he may not legally obligate the city to pay for those services without the approval of the board of aldermen.

    Considering the foregoing, it is the opinion of this office that the authority to select each person to be retained or employed to perform professional services for the city rests with the mayor. Therefore, Ordinance 2:142(a) of the City of Westwego Code is an
    improper and unauthorized impingement of the mayor’s legal and statutory authority.

    Finally, based upon the concept of the mayor/board of aldermen division of power, it does not appear that the board of aldermen has a duty or right to approve specific bills for payment. While the board of alderman approves the budget, once the budget has been approved and the funds have been appropriated, the mayor has the power and the duty to pay bills in the conduct of the proper administration of municipal affairs.

    Accordingly, it is the opinion of this office that the Board of Aldermen has no duty or right to approve specific professional services contracts for payment when the contract falls within a category on the approved budget and proper appropriations have been
    made.
    We hope that this opinion has adequately addressed the legal issues you have raised.

    If our office can be of any further assistance, please do not hesitate to contact us.

    With best regards,
    JAMES D. “BUDDY” CALDWELL
    ATTORNEY GENERAL
    BY:___________________________
    Erin C. Day
    Assistant Attorney General
    JDC: ECD
    6 La. Atty. Gen. Op. No. 90-616.
    7 See La. Atty. Gen. Op. Nos. 03-183 and 92-215.

  3. Kyle

    February 25, 2011 at 4:50 pm

    By the way, Lyn, the title of that AG’s opinion is “La. R.S. 33:321 et seq. The mayor for the City of Westwego has the legal
    authority to select professional service contracts.” So, it does relate specifically to contracts.

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