March 19, 2002
Re: Override of Veto
Dear Mayor:
You have asked for my comments relative to the letter from your city attorney in which he
changes his opinion about the veto override. I stand by my opinion. He, however, is your City
Attorney and the person the City pays to render advice. In addition, he is an extremely good
attorney with years of experience in municipal law. His opinion is certainly credible and there is a
good likelihood he would be proved correct if this issue went to court. These honest differences
of opinion probably point up the need to clarify this language.
In my opinion letter, I attempted to cite only authority that was directly relevant to your situation.
There are cases and Attorney General opinions that deal with similar but still different situations.
A slight difference in the applicable wording of the charter can change the result. A good
example is the AG opinion dealing with the veto override in Gallatin (OTAG 84-297, Nov. 6,
1984). In that opinion, a provision of the Gallatin charter provided as follows:
The affirmative vote of a majority of the members of the City Council then entitled to vote
upon the matter shall be necessary to adopt an ordinance or resolution of the City.
(Underlining added.)
The veto override provision in the Gallatin charter was almost exactly the same as in the present
charter of your city. According to this opinion, the requirement for a majority of those then
entitled to vote must be read into the veto override provision since to override means to “reenact
or repass” the measure. Thus, according to the Attorney General, “an override requires a 2/3
majority of the entire membership not including the mayor.”
The problem with applying this to your present situation is that your charter does not require a
majority of those entitled to vote to pass a measure. Your charter requires only a majority of
those present:
[T]he affirmative vote of a majority of all the members of the city council present shall be
necessary to adopt any ordinance or resolution of the city. (Priv. Acts 1939, Ch. 568, Art.
III, Sec. 15, as amended). (Underlining added.)
Therefore, this AG opinion does not support the proposition that a two-thirds vote of the entire
membership is necessary to override a veto under your city’s charter provisions. Moreover, if one
applies the controlling principle in the AG’s opinionBthat is, that a reenactment “should be given
a dignity equal to that given to the original enactment”-- the result is that a veto override under
your city’s charter provisions requires a two-thirds vote of those present. Although this is a
different standard from the one dictated by Robert’s Rules of Order (a two-thirds vote of those
present and voting), the result in your situation is the same since all the members present voted.
I believe the scenario in your letter correctly states one result if my opinion were controlling. I am
not saying this result is desirable or even that it makes sense; it is simply my opinion of the law
and parliamentary provisions applicable in your case. Another seemingly anomalous result could
be that it takes fewer votes to override a veto than to pass a measure initially. If a measure is
considered at a meeting or meetings where there are seven (7) members present, it will take
four (4) votes to pass. If this measure is vetoed and then the veto override is considered at a
meeting at which only four (4) members are present, the veto can be overridden by three (3)
votes. It just depends on the number present. I readily admit that this is probably a major
weakness of my opinion, because common sense dictates that two-thirds should always be a
more stringent standard than a simple majority. I believe, however, that the tight time frame for
overriding a veto makes these provisions more reasonable.
An arguable advantage of the present provisions and the rules of parliamentary procedure that
have developed over hundreds of years is that they weigh heavily on the side of allowing the
body to act. Vacancies, absences, and abstentions cannot thwart action by the governing body.
If the City decided to get the charter amended to require four (4) votes to pass a measure and
five (5) to override a veto, then any combination of three (3) vacancies, absences, or abstentions
would thwart a veto override and would require unanimity of those voting to pass a measure.
Under these requirements, a vacancy, absence, or abstention has the same effect as a negative
vote. Of course, there are other prescriptions that are not as specific that would work as well.
Whether the City wishes to pursue such charter changes is up to the governing body.
I hope this is satisfactory. If you have further questions, please contact me.
Sincerely,
Dennis Huffer
MTAS Legal Consultant
xc: City Attorney