Court Holds Mayors are “Absent” in Performing Official Duties Only When They are Physically Not Present
by Derek P. Cole on March 2, 2015
The lawsuit had it all. There were claims of conflicts of interest and a corrupt bargain. Millions of dollars hinged on its outcome. The suit resulted in the recall of elected officials. And while claiming it was aimed toward restoring good government, the suit was funded by business competitors that had much to gain.
In the end, the case was decided not by these salacious facts, but by a technical issue of statutory interpretation: When is a mayor “absent” under the California Government Code?
In Torres v. City of Montebello, a California appellate court held that a mayor is “absent” only when he or she is physically not present. The court rejected the argument that a mayor is absent because he or she refuses to perform an official duty—in this case, signing a contract the city council had authorized.
The Facts of the Case
Athens, a solid waste hauler, was approached by a prospective city council candidate about becoming the Montebello’s exclusive franchise hauler. After this candidate (to whose candidacy Athens had contributed) won office, the city council approved a long-term, exclusive franchise agreement with Athens.
Prior to the granting of this exclusive franchise, Montebello had been served by a number of solid-waste haulers in a competitive market. When the city proposed to go to an exclusive franchise system, the change—not surprisingly—created controversy. The vote to approve Athens’ franchise was three to two.
Following this vote, the Athens agreement was routed to the mayor for signature, but the mayor declined to sign. According to the mayor, this was because he didn’t know whether last-minute changes to the agreement had been made. Not buying this story, the city attorney wrote the mayor—who had opposed the granting of the franchise—and informed him he had a mandatory duty to sign the agreement, further refusal to do so would result in his being declared “absent,” and the vice mayor would be asked to sign if the mayor did not.
After a number of days went by, the Athens agreement was pulled from the mayor’s mailbox and given to the vice-mayor, who provided his signature.
Thereafter, the plaintiff filed his lawsuit, funded by a group of Athens’ competitors. The three councilmembers who voted for the Athens agreement went on to lose their seats—one for failure to be reelected, the others by recall—with public anger over the granting of the franchise having been a clear factor. Montebello voters also enacted an initiative requiring that solid-waste contracts be put out to public bid.
The Court’s Ruling
The statutes involved in this case are simple enough. Government Code section 40602 states that a mayor shall sign “all written contracts … made or entered into by the city.” Section 40601 provides that the vice mayor may “exercise the powers granted” to the mayor “in the absence of the mayor.”
The interpretation question for the court was what the meaning of the word “absence” within this framework. Noting that the word “absence” is not defined by section 40601, the court turned to other instances in the Government Code where the word is used. Observing that these instances connote a physical meaning, the court construed the word to mean that the mayor must not actually be present as of the time of signing.
Applying this reasoning, the court had little difficulty holding Montebello had failed to follow the law. The city had deemed the mayor absent in the sense that he was avoiding his duty to carry out a mandatory duty (to sign city agreements). But however derelict the mayor may have been, his refusal did not make the mayor “absent” in the physical sense the Legislature intended.
What the Ruling Means
Parties affected by situations like Montebello’s are not without remedies. According to the court, if a mayor refuses to perform a mandatory duty such as signing a contract, an aggrieved party can file a lawsuit (asking for what is called a “writ of mandate”) to compel the mayor’s performance.
This advice is true, but not necessarily helpful. Assuming the city were to have initiated the lawsuit, city council approval would have been necessary, as is the case for initiation of most city lawsuits. But assuming the mayor would have been required to abstain (which is not clear), the facts in Montebello’s situation suggest the council would have deadlocked two-to-two in its decision to initiate the suit, resulting in no action being filed.
Even if this roadblock could be cleared (for instance, if Athens, rather than city, filed the lawsuit), there still is the question whether a court could provide relief in sufficient time. Some municipal agreements may require full performance to occur in short periods of time or close to the date in which council consideration occurs. Because the wheels of justice rarely move quickly, some mayors’ refusals to act may be beyond challenge simply for lack of enough time to mount a legal challenge.
