JACKSON, Miss.—Retired Mississippi Appeals Court Judge Larry E. Roberts looked intently at attorney Jessica Ayers as she argued that a state statute largely gives mayors the ability to veto a no-vote of a city council. The hearing on July 8, 2022, took place in courtroom 5 of the Hinds County Chancery Court in Jackson, Miss., with Roberts coming from Meridian, Miss., about 90 miles away, to serve as the special judge in the case.
“Can you agree that for a matter to be passed before the city council, it requires a majority vote of those councilmen present or councilwomen present?” the judge, who retired from the Mississippi Court of Appeals in 2015, said after turning rightward to face Ayers as she argued her case. To Ayers’ right were co-counsel Felecia Perkins and Mayor Chokwe A. Lumumba, who is the defendant in the case that the Jackson City Council filed against him on May 11, 2022.
“I agree that for them to approve something, a majority would have to agree,” Ayers answered.
“If you assume for a moment that the matter presented to the council did not pass—and in this instance, we’re dealing with a council of seven, and the matter was presented, and it did not pass—on a four-to-three vote, the matter fails,” Roberts continued. “And your position is the mayor can veto that official action, and as a consequence, the 50% voting requirement to pass a matter now becomes a 66-and-two-thirds percent override; otherwise the mayor’s veto makes the matter as if it were passed initially?”
“Correct,” she replied.
“So your argument is (that) in those circumstances, the mayor can effectively, by use of a veto, require two-thirds vote of the city council to take action,” the judge further pressed.
“My argument is that the statute provides for that. Yes, your honor,” Ayers answered.
She had apparently juxtaposed section 21-8-17 of the Mississippi Code—which outlines the veto power of the mayor over “ordinances adopted by” the city council in a mayor-council form of government—with section 21-8-47, which defines ordinances as “ordinances, resolutions, orders and any other official actions of the council.”
The attorney thus claimed that a no-vote of the council is an official action the mayor can veto, requiring the council to override in a two-thirds vote. But the judge did not agree, ruling that such veto power would enable a city’s top executive to execute a level of legislative function that state statute did not grant him.
How the Dispute Started
The Jackson City Council failed to approve FCC Environmental Services last year for a six-year garbage-disposal contract. After the Hinds County Chancery Court mediated, the mayor and the council agreed to a six-month emergency contract with Waste Management, which for decades had handled the contract for the capital city. That contract lapsed March 31, 2022. In that process, the mayor accused the council of contract steering.
The city council failed to approve Richard’s Disposal, a Black-owned company from Louisiana, for a six-year contract early in January 2022, following a request-for-proposal process. The mayor thereafter signed a one-year emergency garbage-disposal contract with the company.
Lumumba first sued the city council on March 9, 2022, after the body declined to approve that contract and replaced Richard’s Disposal with Waste Management. Lumumba asked the court to declare that the council can neither negotiate a contract on behalf of the City nor amend his local emergency order.
Special Chancery Court Judge Jess H. Dickinson decided the case on March 31, 2022, agreeing that the council cannot negotiate a contract but adding that there is “no binding contract that is enforceable against the City of Jackson unless and until the Council has properly approved it.”
In his complaint, Mayor Lumumba indicated that he has the power to veto a council’s action in rejecting a motion. Dickinson wrote in his ruling that if “the Mayor exercises his veto of the rejection,” the council can override the veto with a two-thirds vote.
“The Mayor then would have the option of engaging the judicial system, claiming the Council was arbitrary and capricious in overriding the veto,” Dickinson added.
The next day, the mayor re-presented the emergency contract with Richard’s Disposal to the council, which promptly voted it down. The mayor immediately read his veto of that action at that meeting.
Dickinson later that day withdrew his March 31, 2022, judgment, noting that deciding whether a negative vote of the council constitutes the adoption of an ordinance, in line with the language of Mississippi code section 21-8-17 constituting the predicate for a mayor’s veto, was not before him.
Mayor Lumumba, through his lawyer Felecia Perkins, then asked Hinds County Circuit Court on April 4, 2022, to declare that he has the power to veto a no-vote of the council.
On May 6, 2022, Circuit Court Judge Faye Peterson dismissed the case and sent it back to the chancery court, stating that the matter was still pending there when the mayor brought the case before it. On May 11, 2022, the city council approached the chancery court, asking it to declare that the mayor cannot veto its negative vote. The four Hinds County Chancery Court judges later recused themselves, paving the way for the appointment of a special judge in the case.
‘Counter to Common Sense’
Attorney John P. Scanlon of Ridgeland, Miss., speaking for the plaintiff positioned to the left of special judge Roberts, argued at the hearing on July 8, 2022, that the statutes do not give the mayor the power to veto a negative council vote.
“[We] are here on behalf of the city council of the City of Jackson, Mississippi, today coming forward with a question that there is not a lot of case law on in the state of Mississippi, and we think that’s because no one has really ever tried to take the position that the mayor takes, which sorts of seem to run counter to common sense,” Scanlon said in his opening sentence as he presented his case.
Scanlon pointed out that the statute indicates that the council only adopts something that it affirms and not something it votes down, which is therefore not veto-able.
“And this is a statute that (the opposing counsel) doesn’t mention in her brief, and she didn’t mention this morning,” Scanlon said. “21-8-11 says ‘at any and all meetings of the council, a majority of the members thereof shall constitute a quorum and an affirmative vote of the majority of the quorum at any meeting shall be necessary to adopt any motion, resolution or ordinance or to pass any measure whatever, unless otherwise provided in this chapter.’”
He continued to argue that the whole weight of various attorney generals’ opinions at different times on related issues sided with limiting the mayor’s veto to an affirmative council vote, which would otherwise allow the mayor to execute a level of legislative function the statute did not grant him.
“So your argument is if the mayor is correct, the mayor has created in effect legislation in the sense of an approved contract for the City of Jackson,” the judge asked Scanlon.
“Yes sir, and he will be doing so by minority rules—is the way we characterized it in our briefing,” he replied.
Mayor Ponders Next Move
The chancery court hearing on July 8, 2022, lasted about one hour, after which Roberts decided to immediately rule that the mayor cannot veto the council’s failure to approve a contract, pending a detailed written opinion.
“I’m going to grant the plaintiff’s request for relief to the extent that I will rule that inaction or negative action by the city council is not subject to a mayoral veto in a mayor-council form of government,” he said.
While speaking to the media after the court hearing and judge’s ruling from the bench on Friday, Mayor Lumumba described the possible next line of action. “You can expect (that) we would be looking at the possibility of appeal in this matter,” he said. “The failure to look at the complexity of these arguments, I think, led to what I believe to be an errored decision.”
Speaking with the Mississippi Free Press after the ruling, the plaintiff’s counsel, Scanlon, said he was pleased with the court’s ruling. “We think he ruled correctly and in accordance with state statute and the state constitution, and we believe that this will help the city council continue to govern effectively and get back to the business of providing public service and not being stalled out in speed bumps over questions like this that really should not have been brought to the judiciary,” he said.
The mayor did not comment on the fate of Richard’s Disposal, which has been collecting garbage in the city since April 1, 2022. He cited possible future litigation in the matter. “I can’t speak to that right now and extensively, other than to say that we will look at our legal options going forward,” the mayor said Friday, July 8.
On Monday, July 11, the mayor’s office announced a press conference for July 12, 2022, “to discuss the status of the City’s garbage collections.” He canceled the proposed briefing the next day. “We appreciate your interest in this matter and will notify the media as soon as an alternative date and time has been confirmed,” his office said in the email statement notifying the media of the cancellation.
When Richard’s Disposal’s claim for $808,035 came before the council on May 24, 2022, for its work in April 2022, the council removed it from consideration.
During the July 8, 2022, hearing, Attorney Ayers expressed hope that the judge would validate the mayor’s veto of the council’s rejection of the emergency contract with Richard’s Disposal. “And at the end of the day, your honor, the contract with Richard’s Disposal is final, and they need to pay under it,” she said. “And we believe that the mayor exerted the authority granted to him under Mississippi law.”
Scanlon shared a different view. “I know that the city council did not recognize this to be a valid veto, and so, therefore, was not going to take (Richard’s Disposal’s claim) up in chambers intentionally; they didn’t want to recognize it, and they didn’t want to validate it in any way,” Scanlon said.
“They felt like the law was pretty clear and that this whole thing arose out of some related litigation that occurred around the beginning of April and that as a result of that litigation, all of a sudden, there’s this question presented—can I come in and veto a negative?” he continued.
Ward 7 Councilwoman Virgi Lindsay hailed the Friday decision and said the council’s legal team did a good job. She was the council president between July 2021 and June 2022, during which time the mayor and the council disagreed over various issues relating to getting a garbage-disposal contract for the City.
“I’m grateful to our legal counsel for their hard work and to the judge for his very thoughtful opinion,” Lindsay told the Mississippi Free Press outside the courtroom on July 8, 2022. “I’m not going to elaborate with many more comments because there’s a possibility this is going to be appealed.”