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Rose Legal Opinion Called Unjustified and Unjustifiable

By Jeffrey B. Cohen

May 21, 2009

In a deficit year like this one - expenditures are down but revenues are down much more - the mayor has the authority to use the city's savings to balance the budget. And he doesn't need council approval.

That's the part on which Corporation Council John Rose and city council attorney Allan Taylor agree.

But on the question of whether the mayor can make additional appropriations above and beyond what the council has appropriated, the two men differ drastically.

Rose, in a recent legal opinion, says he can.

Taylor, though, says Rose's recent opinion is "unjustified and unjustifiable."

"Except in the event of a public emergency....it is illegal for any city official to spend or otherwise obligate funds that have not been appropriated by the city council," wrote attorney Allan Taylor in a letter to the city council released this week. "There is no legitimate argument that the mayor has the authority to make appropriations on his own, other than in the context of the charter's provisions for public emergency."

Taylor is the city council's independent attorney - hired earlier this year after some on the council felt they had been getting bad legal advice from Rose and his office. Taylor's firm, Day Pitney, work on a question-by-question basis. Answer the question as to the nature of the mayor's ability to unilaterally spend city money is his first formal job.

Rose's letter of last month said that the city's charter does not compel the mayor to seek council approval before making "additional appropriations" from the general fund surplus. Additional appropriations mean any spending above and beyond the total budget figure for the year.

"No requirement of Council involvement appears in this long-standing, existing charter provision," Rose wrote.

On Thursday, Council President Calixto Torres said he had read Taylor's letter, thought it was "well thought out," and said that - on the issue of spending from the general fund in a deficit year - it's "consistent with the corporation counsel."

As to the lawyers' disagreement regarding whether the mayor can make additional appropriations without council approval, Torres said that's not a situation before the council now.

"I guess we'll have to cross that bridge when we come to it," he said.

But Councilman Matt Ritter agrees with Taylor and sees a flaw in Rose's reasoning.

Here's why: If Rose were correct, Ritter said, then the mayor could lowball his budget to keep taxes low and then just add to that budget later by taking from the city's savings. Without council approval.

The city needs "to get that opinion overturned," Ritter said. "I would advise that we see if John would be willing to sit down with Allan and adjust it...Potentially there may be an amicable way to resolve this."