Roddey v. County Council of County of Allegheny

CONCURRING OPINION BY

Judge PELLEGRINI.

I join with the majority but write separately to amplify why Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901), in which our Supreme Court construed Article IV, Section 16 of the Pennsylvania Constitution1 that the provision for a “line item” veto allows for a reduction in the appropriation, does not mean that every *1094time a line item veto is provided in a Home Rule Charter that it can be inferred that the Chief Executive Officer also has the power to reduce the appropriation.

In Barnett, the Supreme Court interpreted the Governor’s power to veto a line item as the power to partially reduce that line item, i.e., allowing for reduction in the appropriation. The question here is whether the same construction should be placed on Section 5 of the Allegheny Home Rule Charter that deals with the budget provision. It provides:

Upon adoption or amendment of the annual operating and capital budgets by the County Council, the budgets shall be delivered within three days to the Chief Executive who, within seven days thereafter may veto any item. If the Chief Executive vetoes any item, the Chief Executive shall advise County Council in writing of the reason of the veto. County Council may override the veto within seven days by an affirmative vote of at least two-thirds of the seated Members.

If we were to apply the same interpretation to the term “item” as used in this provision, certainly, the Chief Executive as part of his power to line item veto would have the lesser included power to reduce the appropriation. Necessarily, that would also mean that not to give a mayor or a chief executive the power to reduce an appropriation where a line item veto is provided, the charter provision would have to say that it does not give him or her power to do so.

What the interpretation does not take into consideration is that the Allegheny County Drafting Committee had a different frame of reference when drafting Section 5 than that utilized in the 1901 interpretation of the Pennsylvania Constitution, even if they knew about it. First, line item vetoes are not ordinarily given to chief executive officers in local municipalities. For example, one of the Optional Plans contained in the Home Rule Charter Act provides, with regard to vetoes, that:

Ordinances adopted by the council shall be submitted to the executive (mayor) who shall, within ten days after receiving any ordinance, either approve the ordinance by affixing his signature thereto, or veto the ordinance by delivering it to the municipal clerk together with a statement setting forth his objections. The clerk shall immediately notify the council of the veto. No ordinance or any item or part thereof shall take effect without the executive’s (mayor’s) approval, unless the executive (mayor) fails to return an ordinance to the clerk within ten days after it has been presented to him, or unless council upon reconsideration of the veto on or after the third day following its return by the executive (mayor) shall override the executive’s (mayor’s) veto by a vote of a majority plus one of the members.

53 Pa.C.S. § 3012(a).

Moreover, the power to veto has never been inferred to include the lesser included power to line item veto. When these provisions were added to charters, the power to line item veto is considered an additional power that has to be specifically enumerated.

Additionally, when interpreting this provision, the drafters’ frame of reference was not the Pennsylvania Constitution, but other Home Rule Charters, especially other County Home Rule Charters. Establishing that giving other than a total veto was giving the Chief Executive additional power and that their drafting sources were other Home Rule Charters, at a Home Rule Charter Drafting Committee Meeting, Daniel Booker, a member of the Home Rule Charter Drafting Committee and the member that appeared to be given the task of addressing what powers should be *1095vested in the County Executive, addressed the line item veto and reduction as distinct items, each of which could be added to the County Executive powers. He stated:

Then there are more specific issues of what certain kinds — should there be a rule for certain kinds of laws that are made or certain areas of enforcement. And probably the most important kind of law that’s made where maybe there need to be some special rules is what Terry [McVerry, another Committee member] was talking about, the kind of laws that deal with spending money or raising money or the whole budgeting process. And there I think we need to consider the whole question of — well, the question of a line item veto, of a veto power that’s a little different for budgeting than it would be for all the other. The typical veto power is you veto the whole bill or you approve the whole bill. In the budgeting area many charters include the power of — line item veto power. The line item veto can be overridden, of course, but many budgets, many charters contain a line item veto. And it’s my personal view, which, again, I would argue we ought to support here, is that a line item veto is appropriate with respect to budget bills.
I think there’s a more interesting— some charters, in more recent times, have been given a power not only to veto a fine item, but to reduce a line item, so that the executive would be in a position to not only say, no, I won’t approve that line item in the budget, but to say, but I will approve not a million dollars to be spent on a whatever, but I’ll approve, you know, $300,000 to be spent on swimming pools, okay, whatever.
Do we want to give the executive that power? Again, of course, that exercise of that veto would be subject to being overridden. So that in the end, the law of what money is going to be spent is made by the council.
I think that’s a — you know, whereas I would strongly recommend that we do have a line item veto, I’m just not sure where I come out personally on this issue of a veto, you know, to reduce it. Maybe that’s a good idea, but I just haven’t thought about it enough.

(Allegheny County Charter Drafting Committee Meeting, October 2,1997, at 64-65.)

As to the other County Home Rule Charters with such provisions that Mr. Booker was referring to in his comments, the trial court, through Judge Joseph James, noted in its opinion that the following counties had adopted Home Rule with similar provisions in their Charter and had added the power of line item veto:

There are five Home Rule counties in the Commonwealth, excluding Allegheny County.2 A review of three Home Rule Charters with similar veto provisions is helpful in determining whether the Allegheny County Executive has the power to reduce an appropriation made by the County Council.
Erie County adopted Home Rule in 1976 and it became effective in 1978. The Erie County Executive’s veto powers are set forth in Section 1-8.6 of the Erie County Home Rule Charter.
§ 1-8.6 Item Veto of Reduction.
Upon adoption of a budget by the County Council, it shall be delivered within three (3) days to the County *1096Executive, who within ten (10) days thereafter, may veto or reduce any item contained in it. If the County Executive vetoes or reduces any. item in the budget, the County Executive shall return it to the County Council with the reasons for the veto or reduction stated in writing. The County Council may re-approve any item over the veto or reduction of the County Executive within ten (10) days, with an affirmative vote of at least one more than a majority of the total members of the County Council in office. 825 Pa.Code § 1-8.6 (Emphasis added).

Lehigh County adopted Home Rule in 1975 and it became effective in 1978. The Lehigh County Executive’s veto powers are set forth in Section 1.7-705 of the Lehigh County Home Rule Charter.

§ 1.7-705. Item Veto or Reductions.
Upon adoption, of a budget by the Board, it shall be delivered within three (3) days to the County Executive, who within ten (10) days thereafter may veto or reduce any items contained in it. If the County Executive vetoes or reduces any item in the budget, he or she shall-return it to the Board with his or her reasons for the veto or reduction stated in writing. The Board may re-approve any item over the veto or reduction of the County Executive within fifteen (15) days with an affirmative vote of at least a majority plus one (1) of the members of the Board in office. 339 P.Code § 1.7-705. (Emphasis added)

Northampton County adopted Home Rule in 1976 and it became effective in 1978. The Northampton County Executive’s veto power in Section 1.7-704(d). (d) Executive Veto.

The County Executive shall have the power by veto to delete or decrease any item in the budget adopted by the County Council, if he notifies the County Council in writing within seven (7) days after the adoption of the budget by the County Council of the veto and the reasons for it. The County Council shall have the power to override the veto of any item by the vote of at least two-thirds (2/3) of the members. 348 Pa.Code § 1.7-704. (Emphasis added)

(October 9, 2003 Trial Court opinion at 3-4.) As can be seen, Section 5 of the Allegheny Home Rule Charter is patterned after these provisions, but with one important exception — it does not give the County Executive the ability to reduce the appropriation following a line item veto.

Because the intent of the drafters was not to give the County Executive a line item veto, I join in the majority opinion.

. Article IV, Section 16 provides: "The Governor shall have power to disapprove of any item or items of any bill, making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto.”

. “Delaware and Lackawanna Counties have also adopted Home Rule, but their budget process does not contain veto powers in any branch of their government. Philadelphia has adopted Home Rule, but it is a city-county, and their form of government differs so greatly that an analysis of that budget process is not helpful." (October 9, 2003 Trial Court opinion at 3, ftnt. 1.)