Council And Staff Discuss Mayor And City Council Powers and Duties and Succession Planning

When the City Administrator announced that he was going to be leaving Eagle Mountain and a new City Administrator was going to need to be found there were some questions from residents and the City Council on exactly how that process was going to take place. Within a couple of weeks, the position was offered to Paul Jerome and was never made available for other people to apply or be considered for the position. This initiated some questions about what duties the City Council has, the Mayor has, and how Succession of City Administrators and other City Board and Commission members should be appointed and selected. During the City Council work session before the City Council Meeting on Sept 1, 2020, there was a discussion item brought before the Council. Item 1.B was titled, “DISCUSSION – Mayor and City Council Powers and Duties, Succession Planning” The new City Administrator Paul Jermone introduced the item and had asked the General Counsel Representative for Utah League of Cities and Towns (ULCT) David Church to talk to the Council. The ULCT website says this about David Church, “David has become somewhat of a legal rock star in the area of municipal law and few city attorneys in the state know more about scintillating issues such as water rates, animal license fees, and annual audit requirements. David will occasionally hit the road to assist local officials on their home turf but his selection of training locations is generally in direct relation to the quality of fishing in that part of the state.” The following information has been taken from the meeting minutes that are currently in draft form on the City Website. I have included portions of the discussion and minutes below.

Council Member Curtis had requested to have clarification regarding the City Council’s responsibilities in regard to their consent and advice for mayoral appointments. Mr. Church provided some historical background relating to Eagle Mountains and it’s form of government. Some of the key points made by Mr. Church are included here. “The State Legislature allowed for a City Council, through ordinance, to delegate some or all of the mayor’s statutory administrative and executive powers to the City Manager, except for the mayor’s chairmanship of the Council, right to vote in a case of a tie, and any ex officio positions.” Church continues, “the City did not have a City Manager form of government in place in 2008, Eagle Mountain City has a Mayor/Council (Strong Mayor) form of government with the Mayor acting as CEO and Chief Administrator. The City allows for the Mayor to appoint a City Administrator. Without a City Manager ordinance, the City Administrator is a mayoral-appointed position with the advice and consent of the City Council.” “Utah Code Section 10-3b-104 states the mayor ‘is the chief executive officer of the municipality to whom all employees of the municipality report,’ including the City Administrator. The mayoral powers can be taken from the Mayor by ordinance and given to a City Administrator or a City Manager.” At this point, council member Curtis asks for clarification. “The council in a municipality operating under a six-member council form of government exercises any executive or administrative power and performs or supervises the performance of any executive or administrative duty or function that has not been given to the mayor under Section 10-3b-104.” Mr. Church then explains, “The Mayor has the authority to delegate mayoral powers and administrative functions to individual Councilmembers, such as City department stewardship responsibilities assigned by the Mayor. He stated in theory, the City Council can through ordinance grant themselves administrative functions over City departments, but he is unaware of any city that has taken administrative authority from the Mayor by force through an ordinance.” Councilmember Burnham “stated her understanding of the role of the City Council in providing advice and consent in the City Administrator hiring processes is to simply vote for or against the candidate presented by the Mayor and to inform the Mayor of the reasoning behind their votes. As other Councilmembers have expressed differing understandings of their roles, she requested clarification regarding their specific responsibilities. ” Mr. Church explained, “He stated the City Council may recommend names for appointed positions or express objections to the mayoral candidate; however, the appointment authority is retained by the Mayor. He stated the process is like Presidential appointments of Supreme Court Justices, which require the advice and consent of the Senate.” He continued, “The City Council may implement policies and procedures that require the Mayor to post open positions externally and receive and review applications, as it does not interfere with the Mayor’s powers. However, changing the policies and procedures to require the Mayor to appoint a City Council-selected candidate is not appropriate and is outside of the scope of advice and consent. The power of appointment is protected in Utah statute as an ex officio mayoral duty and the City Council cannot delegate the mayoral appointment power to a City Manager or the City Council.” Councilmember Love then asked if the City Council were allowed to discuss potential candidates in closed sessions prior to voting on the Mayor’s Candidate. Mr. Church responded that a closed session may only be held for discussion of the character and competency of the individual. Everything else must be done in an open session. “No subjects other than those listed in State Code may be discussed in a closed session; the purpose of discussing the character and competency of an individual in a closed session is to protect the individual’s privacy, not the politician’s ability to openly state an opinion.” The City Recorder Ms. Kofoed suggested closed sessions should only be held for specific concerns regarding the individual. The discussion then moved to how applicants could express a desire to be appointed to a position. Councilmember Clark suggested that a closed session be required for all appointments. Councilmember Love said the city should consider a large group of people for each appointment. The City Recorder M.s Kofoed responded by stating, “at times the City has multiple willing applicants and at other times no qualified individuals express interest in an appointment. In October, the City examines upcoming board vacancies and potential candidates. Staff can implement policies and procedures adopted by the City Council for the process.” Both Councilmember Clark and Curtis expressed concerns that the public did not have transparency in the process and that posts the positions to the public and that the applications be allowed for the Council to review privately. Councilmember Clark continued that there needs to be a set policy for filling open positions which includes both internal and external applicants. The discussion continued as follows:

“Mayor Westmoreland expressed concern regarding creating a single policy for all appointments due to timing constraints, potential delays, and individual position and department needs. He recommended allowing flexibility in the process. Councilmember Clark stated government processes can be cumbersome but are in place for the protection of the people and transparency of government. She stated that Councilmembers have received complaints regarding the City’s appointment process and concurred with Councilmember Curtis that a predetermined policy will assist Councilmembers in addressing resident concerns.

“creating a more detailed process that will not affect the outcome of appointments, simply for the sake of perceived transparency, is deceptive.”

– Mayor Westmoreland

Mayor Westmoreland stated creating a more detailed process that will not affect the outcome of appointments, simply for the sake of perceived transparency, is deceptive. He advocated for succession plans as the ideal to promote employee morale and to create a genuine process with staff. He clarified he is not against Councilmember suggestions; however, he desires to identify and mitigate potential unintended consequences while accomplishing Councilmember goals. Councilmember Curtis clarified he is not against a succession plan and advocated for the implementation of a program that also requires external applications while allowing for priority to be given to internal candidates. Councilmember Love concurred with Councilmember Curtis. Councilmember Burnham stated that the City Council provides advice and consent to the Mayor for appointments to City boards, and of the City Administrator, City Recorder, and City Treasurer. The hiring of all other City positions is under the direction of the Mayor and the City Administrator. Mr. Church verified that the City Council may legislate the requirement of external posting for all higher-level City positions. State standards require the posting of certain positions through the office of the Department of Workforce Services with a posting exception if hiring internally, and the City Council can implement additional hiring processes and policies. Mr. Cook stated a change in job function of existing employees should be considered and provided for in policy adjustments as well. Councilmember Curtis explained his desire was for additional clarity regarding City policies and stated he and the other Councilmembers had not been provided the entirety of the Policies and Procedures Manual until January 2020. He later apologized and clarified, during the meeting’s Policy Session, that he had in fact receive the manual. “

In the end, Mayor Westmoreland directed Mr. Cook to draft a document based upon the discussion for Council review at a future meeting.