KIRTON MCCONKIE (LETTERHEAD)

KIRTON MCCONKIE (LETTERHEAD) TO: The Honorable Gary Gygi Council Member Augustus Council Member Crawley Council Member Geddes Council Member Rees Council Member Zappala CC: FROM: David Bunker, City Manager David J. Shaw, City Attorney Elysa Dishman DATE: July 21, 2015 SUBJECT: Roles and Responsibilities of the Cedar Hills Mayor, City Council, and City Manager This Memorandum is in response to your request for our analysis of the roles and responsibilities of the Mayor, City Council, and City Manager for the City of Cedar Hills (the City ) pursuant to Utah Law and the Cedar Hills Municipal Code ( CHMC ). Under the City s current form of government, each of the Mayor, City Council, and City Manager have distinct roles under applicable law. Generally speaking, the Mayor is the chief executive officer who supervises, presides, and plays a role in formulating high- level policies and the strategic vision for the City. The City Council is the legislative and governing body of the City and has executive and administrative duties that are not tasked to the Mayor. The City Manager is the chief administrative officer of the city and manages the day- to- day operation of city functions. For a side- by- side comparison of the roles and responsibilities of the Mayor, City Council, and City Manager from the Utah Code and CHMC, see Addendum A attached to this Memorandum. DISCUSSION I. Form of Cedar Hills Governing Body and the Utah Municipal Code The governing body for the City of Cedar Hills is a council composed of six members, one of whom is the mayor and the other five are council members.1 Under current Utah Law, this form of government is known as a Six- Member Council Form of Municipal Governmental under the Utah Municipal Code.2 In 2008, however, the City was governed by the council- manager form of government. This form of government was removed from Utah law in 2008, but the Utah Legislature but grandfathered in cities 1 CEDAR HILLS MUNICIPAL CODE ( CHMC ) 1-5- 2(A)(2004). 2 See UTAH CODE 10-3b- 103(2) (2015), 10-3b- 301(2008).

that had already adopted it as of May 4, 2008.3 For all intents and purposes, the City continues to operate under a Six- Member Council form of government, but with a city manager as well. Section 10-3b- 302 of the Utah Code sets forth the duties and responsibilities of the mayor in a Six- Member Council form of government. Most of these responsibilities are identified in the table below. Statutorily, in addition to those responsibilities set forth in the table below, the Mayor normally would have additional duties as set forth in Section 10-3b- 104 of the Utah Code. Nevertheless, Section 10-3b- 302(1)(f) simply states that the Mayor has the powers and duties described in Section 10-3b- 104, however, these powers and duties are expressly subject to municipal ordinances in effect on May 4, 2008 modifying the powers and duties of the Mayor. This is known as reverse preemption and occurs when a higher- level governmental entity, like the State of Utah, lets a lower- level governmental entity, like the City, impose more restrictive laws than would otherwise be found in the statute. In this case, the legislature expressly authorized municipalities to modify the powers and duties of the mayor set forth in Section 10-3b- 104 so long as the modifying ordinance was in effect on May 4, 2008. Our review of the CHMC reveals that the Cedar Hills City Council, in fact, passed such an ordinance in 2001. Under the current scenario, the City Council would be hard- pressed to attempt to repeal the 2001 ordinance modifying the powers and duties of the Mayor since, by doing so, it could create a vacuum in the form of government adhered to by the City. The Legislature s abolition of the Council- Manager form of government in 2008 may have had benefits for other cities, yet, for Cedar Hills it means that any attempt to modify the current Six- Member Council form of government could result in an unwitting and unintentional change in the form of government without a vote of the people. With this statutory background, we will now discuss the specific roles and responsibilities of the Mayor, City Council, and City Manager. II. Roles and Responsibilities of the Cedar Hills Mayor In Cedar Hills, the Mayor is the chairperson and presides at the meetings of the City Council.4 However, the Mayor does not vote as a member of the City Council unless there is a tie vote of the City Council.5 The Mayor is also entitled to vote as a member of the Council when the Council is voting on whether to appoint or dismiss a municipal manager or on an ordinance that enlarges or restricts the mayor s powers, duties or functions.6 Unlike what is known as a strong mayor form of government, the Mayor does not have the power to veto any act of the City Council.7 Unless the Mayor affirmatively consents, the City Council may not remove from the Mayor or delegate to a Manager appointed by the Council: i) any of the Mayor s legislative or judicial powers or ceremonial functions; ii) the Mayor s position as chair of the council; or iii) any ex officio position that the Mayor holds.8 The Mayor has a series of powers and duties, some of which are prescribed and some of which are permissive. A summary chart of the duties that the mayor is required to perform and may perform is below. 3 See UTAH CODE 10-3b- 104(2)(a)(2008); 10-3b- 103(2)(2015).

4 CHMC 1-5- 3(A). 5 CHMC 1-5- 3(B). 6 UTAH CODE 10-3b- 302(B)(ii). 7 CHMC 1-5- 3(D). 8 UTAH CODE 10-3b- 303 (2011). 2

Prescribed Duties Keep the peace and enforce the laws of the City Remit fines and forfeitures Report remittances to the City Council at its next regular session Perform all duties prescribed by law, resolution or ordinance Ensure that all the laws and ordinances and resolutions are faithfully executed and observed Report to the City Council the condition of the City and recommend for city council consideration any measures that the Mayor considers to be in the best interests of the City When necessary, call on the residents of the City over the age of 21 years to assist in enforcing the laws of the state and ordinances of the city; Report to the City Council any release of imprisonment granted for violations of the City Code. Exercise ceremonial functions for the municipality Hire and remove City Manager with advice and consent of the Council 10 Permissive Duties At any reasonable time, examine and inspect the official books, papers, records or documents of the city or of any officer, employee or agent of the City Release any person imprisoned for violation of any City Ordinance Within budget constraints, appoint an administrative assistant With the advice and consent of the majority of the City Council, appoint a member of the Council to administer one or more departments of the City. 9 Within budget constraints, appoint an administrative assistant With the advice and consent of the majority of the City Council, appoint a member of the Council to administer one or more departments of the City.9 If the City Council had not passed this ordinance in 2001 reassigning some of the mayoral functions under State law to the City Manager, pursuant to City law, then the foregoing list would be much more expansive. III. Roles and Responsibilities of the Cedar Hills City Council The Cedar Hills City Council ( City Council ) is the governing body of the City and is composed of six members, one of whom is the Mayor, and the remaining five are Council Members.11 The City Council has legislative as well as executive and administrative powers set forth by the Utah

Code and HMC. The City Council is the legislative body of the City and exercises the legislative powers and performs the legislative duties and functions of the City.12 The City Council exercises its legislative powers through passing of ordinances.13 Specifically, the City Council has broad latitude and may pass any ordinance to regulate, require, prohibit, govern, control or supervise any activity, business, conduct, 9 UTAH CODE 10-3b- 302(2008); CHMC 1-5- 3 (2004); CHMC 1-5- 4 (2004). 10 CHMC 1-6A- 1 (2001), CHMC 1-6A- 4 (2001). 11 CHMC 1-5- 2 (2004). 12 UTAH CODE 10-3b- 105. 13 UTAH CODE 10-3- 701; CHMC 1-5- 6; UTAH CODE 10-3- 702. 3

or condition authorized by statute or any other provision of law.14 Members of the City Council, with the exception of the Mayor, are eligible to vote on ordinances.15 The City Council also exercises executive and administrative power and performs or supervises the performance of any executive or administrative duty that has not been given to the mayor by a specific statute, Utah Code 10-3(b)- 104.16 However, as described Section I of this Memorandum, the powers of the Mayor set forth in Utah Code 10-3(b)- 104 are subject to municipal ordinances in effect on May 4, 2008 modifying the powers and duties of the mayor. 17 Since the State code defers to the City ordinances defining the Mayor s powers that were adopted prior to May 4, 2008, the City Council, at least in theory, has powers and duties not given to the Mayor by virtue of the City Ordinance.18 Nevertheless, since most of the powers taken from the Mayor in the 2001 ordinance reappear in some form or other in the CHMC, the diminution of Mayoral power as compared to the Council s is really more of an academic exercise than one for reality. As discussed above, the Utah Code provides that a City Council may adopt an ordinance removing from the Mayor any power, duty, or function set forth under 10-3(b)- 104.19 Removal or reinstating of any power to the Mayor set forth in 10-3(b)- 104 requires the affirmative vote of: i) the Mayor and a majority of all the other Council Members; or ii) all Council Members except the Mayor. The City Council may also adopt an ordinance delegating to the Mayor any executive or administrative power, duty, or function that the Council has been granted.20 The following is a summary chart of both the prescribed and the permissive powers, duties, and obligations of the City Council: Prescribed Duties Acts as the legislative body of the City and exercises the legislative powers and performs the legislative duties and functions of the City. Exercise any executive or administrative power and performs or supervises the performance of any executive or administrative function that has not been given to the Mayor by statute. Prescribe the powers and duties to be performed by the superintendents, supervisors, department directors and all of its officers and employees. Permissive Duties Adopt rules and regulations not inconsistent with statute, for the efficient administration, organization, operation, conduct, and business of the municipality Prescribe by resolution additional duties, powers, and responsibilities for any elected or appointed municipal official, unless prohibited by statute Require by ordinance that any or all appointed officers reside in the municipality Create any office that the Council considers necessary for the government of the municipality

Provide for filling a vacancy in an elective or appo Perform any function specifically provided for by Take any legislative action allowed under Section Perform any function specifically provided for by 14 Utah Code 10-8- 84 sets forth a general description of areas under statute that a city council may pass ordinances; CHMC 1-5- 6. 15 See CHMC 1-5- 3(B). 16 UTAH CODE 10-3b- 303(1). 17 UTAH CODE 10-3(b)- 104(2)(a). 18 That being said, the powers of the mayor set forth in the CHMC are very similar to the powers provided in Utah Code 10-3b- 104. Cf. Utah Code 10-3b- 104 and CHMC 1-5- 3. Id. 19 As described above in Section II, under the Utah Code, a City Council may not remove the following powers from the Mayor: i) any of the Mayor s legislative or judicial powers or ceremonial functions, ii) the Mayor s position as Chair of the Council ; or iii) any ex officio position that the Mayor holds. UTAH CODE 10-3b- 303 (2011). 20 UTAH CODE 10-3b- 303(b)(ii)(2011). 4

Provide for filling a vacancy in an elective or appointive office Perform any function specifically provided for by statute or necessarily implied by law. Take any legislative action allowed under Section 10-8- 8421 Perform any function specifically provided for by statute or necessarily implied by law.22 IV. Roles and Responsibilities of the Cedar Hills Manager The City Manager is the chief administrative officer of the City to whom all employees of the City report.23 The city manager is responsible for the administration of all City affairs placed in his charge.24 The City Manager is responsible, under the supervision of the Mayor and in accordance with policies established by the City Council, for the proper administration of all affairs of the City placed in his charged.25 The following is a summary chart of the powers, duties, and obligations of the City Manager26: Prescribed Duties Enforce all applicable laws, and see that all contracts granted by the City are observed Carry out the policies and programs established by the City Council; Direct the management of the executive affairs consistent with this City Code Direct the management of the executive affairs consistent with this City Code; Prepare an annual proposed budget and capital improvements plan for the Mayor and City Council and be responsible for their administration after their adoption; Permissive Duties Designate committees and officers necessary to consider administrative problems Notify the Mayor and the City Council of emergencies departments under his supervision Serve as budget officer for the City Submit to the City Council plans, programs, and special reports Prepare and submit to the City Council reports on finances and administrative activities for the preceding year, and upon request of the Mayor or City Council make reports concerning the affairs of the City under his supervision; 21 Utah Code 10-8- 84 states The municipal legislative body may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and as are necessary and proper to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort, and convenience of the city and its inhabitants, and for the protection of property in the city

22 UTAH CODE 10-3b- 105(2008); UTAH CODE 10-8- 84(2000); CHMC 1-5- 4 (2004). 23 CHMC 1-6A- 5 (2001). 24 Id. 25 CHMC 1-6A- 6 (2001). 26 A list of the City Manager s powers, duties, and obligations with the exact language from the code is provided in the side- by- side comparison chart included as Addendum A of this Memorandum. A summary of the duties is provided in this Memorandum. 5

Authorize the issuance of administrative rules and outline administrative procedures; Appoint, remove, promote and/or demote, with the advice and consent of the City Council, a City Engineer/Public Works Director, City Recorder, Chief Building Official/Zoning Administrator, City Accountant and Community Services Director; Appoint, remove, promote and demote all officers and employees of the City; Establish and administer standards and procedures for the City personnel system; Prescribe rules necessary for the conduct of all departments; Prescribe such rules necessary or expedient for the conduct of all departments; Investigate the affairs of any department or employee; and when so authorized by the city council, employ professionals counsel to aid in such investigation; Approve merit pay increases and bonuses for city employees when appropriate; Set aside any action taken by a department head and may supersede his functions Direct any department to perform the work for any other department Make appointments on the basis of executive and administrative ability Perform other duties required by ordinance or by the Mayor and City Council. Examine records of any City office and investigate and require reports from personnel; Advise the Mayor and City Council of the City s financial condition and make recommendations to them regarding the same; Exercise supervision over executive and administrative departments, and recommend to the Mayor and City Council any proposals to establish, consolidate or abolish departments; Enforcement of all terms imposed in favor of the City in any contract and upon knowledge of any violation, report to the Mayor and City Council to enforce Establish a system of accounting and auditing for the City. Attend City Council meetings and participate in discussions in an advisory capacity Provide for engineering, architectural, planning, maintenance and construction services Oversee the construction, improvement and maintenance of public highways, watercourses, public buildings and grounds, and to collect and dispose of waste Act as the city risk manager and implement risk policies Establish effective positive relationships with officials of surrounding communities Promote good public relations Administer purchasing procedures. 27 CONCLUSION In conclusion, the Mayor, the City Council, and the City Manager all have separate and distinct functions, yet it is critical that they are intercompatable. The Mayor presides over City Council Meetings, sets the agenda, supervises, and plays an important role in formulating high- level policy for the City. The City Council serves as the governing body of the City and serves in a legislative capacity by passing ordinances to govern the City and its residents. In contrast, the City Manager is primarily responsible for administrative functions and the day- to- day operations of the City. The City Manager reports in a dual capacity to the Mayor and the City Council, who have the ability to appoint or remove him or her. Aside from this direct reporting

27 CHMC 1-6A- 6; 1-11- 4. 6

relationship, however, all other employees of the City report directly to the City Manager, and it is up to the City Manager to ensure all aspects of City governance function smoothly from an operational perspective. In short, the Mayor and the City Council are primarily responsible for setting high- level policy, whereas the City Manager is responsible for implementing the policies established by the Mayor and the City Council. A close reading of the duties of each entity as set forth in the tables above will demonstrate that most, if not all, of the described functions of each fall within these respective categories. If you have any questions regarding the contents of this memorandum, please do not hesitate to contact me. 6