John Street unsheathed a rare weapon in his final days in office, using the obscure pocket veto available to a mayor only once in four years.
Street pocketed four relatively minor bills with the pocket veto, so he didn't torpedo big Council initiatives.He nixed two streets bills, shot down Darrell Clarke's bill requiring developers to submit "economic opportunity plans" to qualify for tax abatements, and axed Carol Ann Campbell's bill to force the city recreation department to devote 10 percent of its services at one large recreation center for autistic children.
Here's how the pocket veto works.
Typically, any bill becomes law in three ways:
1) It is signed by the Mayor.
2) The mayor vetoes it, sending it back to Council at a Council meeting no earlier than 10 days after it was passed. Then the Council overrides the veto.
3) The Mayor does not sign the bill by that first meeting, no earlier than 10 days after it is passed, and it automatically becomes law.
But every four years, at the end of a Council term, all bills die and must be reintroduced the next session. Any bills passed at the council's last two meetings, Dec. 13 and Dec. 19 can not become law if Street fails to sign them, because there is not another Council meeting that occurs 10 days after the bill's passage. So Street just doesn't sign the bills, and they die -- there's your pocket veto.
This was codified in a 1971 opinion. If you're not confused enough by now, read on...
FORMAL OPINION NO. 332 December 29, 1971
HONORABLE JAMES H. J. TATE
MAYOR OF CITY OF PHILADELPHIA
215 CITY HALL
PHILADELPHIA, PA.
Re: Status of Unapproved Ordinances Enacted near Expiration of term of Mayor and Council
DEAR MAYOR TATE:—You have requested my opinion concerning the status of ordinances enacted by the Council at its sessions held on December 23, and December 30, 1971, and not acted upon by you prior to the expiration of your term of office.
In Formal Opinion No. 171 (1955 City Solicitor's Opinions 60) City Solicitor (later Judge of the United States Court of Appeals for the Third Circuit) Abraham L. Freedman dealt with the status of bills which were pending at the expiration of the four-year term of the Council. He there pointed out that it had been the practice for all pending bills not enacted to die at the end of the four-year term. He concluded that the Council could properly follow the prior practice of terminating all pending legislation which had not been enacted into law at the expiration of its four-year term. That opinion relied, in part, on Section 2-104 of the Home Rule Charter, providing in pertinent part, that:
“The Council shall meet for organization at 10 o'clock A.M. on the first Monday of January following its election, at which time it shall elect a president from among its members and a chief clerk who shall not be a member. . . “
Also see Easton and Belvidere Street Railway Company v. Blue Ridge Traction Company, 9 Northampton 1 (1903) post, and Achenbach v. Bath Borough, 19 Dist. R. 831 (1910) post.
From the foregoing it must be concluded that all legislative action on matters submitted to the Council during the term of the Council must be completed by the expiration of that term. Your consideration of ordinances enacted by the Council is also legislative in character. (5 McQuillin, Municipal Corporations, third Edition, Revised, §§ 16.37, 16.38, pp. 185- 6; Achenbach v. Bath Borough, 19 Dist. Rep. 831, 835 (1910) and must likewise be completed by the expiration of your term.
Section 2-202 of the Home Rule Charter provides, in pertinent part:
“Section 2-202 SUBMISSION OF ORDINANCES TO THE MAYOR.
Every ordinance shall, before it takes effect, be certified to the Mayor for his approval. The Mayor shall sign the ordinance if he approves it, whereupon it shall become law. If he disapproves it, he shall return it to the Council with the reasons for his disapproval at the first meeting thereof held not less than ten days after he receives it. If the Council shall pass the bill by a vote of two-thirds of all of its members within seven days after the bill has been returned with the Mayor's disapproval, it shall become law without his approval. If the Mayor does not return the ordinance within the time required, it shall become law without his approval. . . “
The annotation provides that,
“(1) The approval or inaction of the Mayor is required before any ordinance enacted by the Council may become law. The Council may override a veto by the Mayor, as at present, but a vote of two-thirds of its members is required. Unless the Mayor returns an ordinance with his veto, the ordinance becomes law without his approval.”
An ordinance enacted by the Council cannot, therefore, become law (1) unless it is approved by the Mayor, or (2) if he disapprove the ordinance, if the Council approves it by a vote of two-thirds of all its members within seven days after the bill has been returned with the Mayor's disapproval, or (3) if the Mayor fails to act on the ordinance beyond the first meeting of the Council held not less than ten days after he receives it.
Thus the period of time which the Charter makes available to the Mayor for consideration of the bill and its return to the council is the first meeting of the Council held at least 10 days after he receives it. The present inquiry arises by reason of the late enactment of ordinances whereby you are deprived of the full time for consideration given by the Charter.
It would be totally contrary to the purpose and spirit of the Charter to permit the late enactment of legislation by the Council to deprive the Mayor of the period given by the Charter for his consideration of whether to approve or disapprove a bill.
In Easton and Belvidere Street Railway Company v. Blue Ridge Traction Company, 9 Northampton 1 (1903) at issue was the validity of an ordinance passed by a borough council near the close of its term and not presented to the chief burgess for approval or disapproval. After the expiration of the term of both the council and the chief burgess the bill was signed by his successor without reading and reenactment by the new council.
In declaring the ordinance invalid the Court declared:
“The Act of May 23, 1893, P.L. 113, Section 3 requires every ordinance and resolution to be submitted to the chief burgess for his signature or veto, and if he returns it without approval at the next regular meeting provision is made for reconsideration. As the duty in signing ordinances is no longer ministerial, the ordinance failed to receive full legislative sanction, before the term of the body which enacted it had expired. Waln v. Phila., 99 Pa. 330; Ephrata Water Company v. Ephrata Borough, 16 Pa. Sup. Ct. p. 488) If the new burgess had the right to approve, he had also the power to veto. If he had adopted the latter course, the body which enacted it was no longer in existence to consider his objections.”
In Achenbach v. Bath Borough, 19 Dist. R. 831 (1910) a legislative resolution was adopted by a town council for the settlement of a claim against it; but within the time provided for approval by the chief burgess the terms of both the council and the chief burgess expired. The court in declaring the resolution invalid declared:
“. . . The resolution was clearly legislative in character and should have been approved by the chief burgess. It was given to him. He did not return it before the next regular meeting, March 1, 1909, and the terms of both council and the chief burgess expired on that day.”
To the same effect are Altman v. City of Dubuque, 111 Iowa 105, 82 N.W. 461 (1900); and Rooney v. South Sioux City, 111 Neb. 1, 195a N.W. 474 (1932). Also see Front Street, 24 Pa. County Ct. 88 (1900). Contra, Galligan v. Leonard, 204 Mass. 202, 90 N.E. 583 (1910).
The City Council held a regular meeting on Thursday December 23, 1971 and is scheduled to hold another regular meeting on December 30, 1971. The term of office of the present Councilmen expires at the expiration of 4 years from the first Monday of January, 1968 (HRC §2-100); and the new Council takes office on the first Monday of January, 1972 (HRC § 2-104)—to wit January 3, 1972.
Hence, there will be no meeting of the present Council held not less than ten days after you have received any ordinance enacted on December 23, 1971 or December 30, 1971, when both your term and the term of the present Council expire.
Accordingly, any ordinances which have been enacted by the City Council at its meeting on December 23, 1971 or at the meeting of the Council scheduled for December 30, 1971 which are not approved by you within your term of office and that of the present City Council are of no effect and cannot be considered as valid ordinances.
Sincerely,
LEVY ANDERSON,
City Solicitor
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