On Monday, the Anchorage Municipal Attorney sent a memo to the Assembly leadership in response to the Assembly’s October letter saying the mayor could not fire the city’s chief equity officer. Mayor Dave Bronson had fired Clifford Armstrong III in mid-October.
The attorney memo explains that the ordinance that created the position of chief equity officer violates the Charter and the separation of powers doctrine.
“The Chief Equity Officer serves at the pleasure of the mayor and, like other at will mayoral executive appointees, s/he can be dismissed for any reason or for no reason at all. The ordinance the Assembly passed is a clear violation of the Mayor’s authority established in Charter,” Municipal Attorney Patrick Bergt wrote.
The former equity officer had been hired by the unelected acting mayor Austin Quinn-Davidson during her last days of office; she served as the unelected mayor for eight months and it was one of her final acts, along with wrecking the municipality’s website.
The ordinance creating the position was passed by the Assembly and signed by former Mayor Ethan Berkowitz in 2020; it says that the mayor cannot fire the person who holds this job position without the permission of the Assembly.
That’s against the municipal charter and the Alaska Constitution, according to the Bronson Administration.
The Alaska Constitution vests “all local government powers” in boroughs and cities. It authorizes the voters of a first class city to adopt a home rule charter and provides that “a home rule borough or city may exercise all legislative powers not prohibited by law or by charter,” the Office of the Municipal Attorney wrote.
Accordingly, “an ordinance is invalid if it conflicts with [our] charter.”
The Anchorage Charter states that the mayor shall appoint all heads of municipal departments, subject to confirmation by the assembly, on the basis of professional qualifications. Persons appointed by the mayor serve at the pleasure of the mayor.
“Our Charter is plain and unambiguous—executive mayoral appointees serve at the pleasure of the mayor and therefore may be dismissed by the mayor without cause. The express language of our Charter clearly, unequivocally, and unconditionally vests in the mayor the authority to remove mayoral executive appointees for any reason or for no reason. It is also significant that our Charter explicitly limits the mayor’s executive appointment power by requiring Assembly confirmation of specific appointees; it places no such limitation on the mayor’s removal power, however,” the attorney wrote.
Municipal code further says that the Assembly has no authority to displace the mayor’s power to remove mayoral executive appointees, and that the mayor need not show cause for such removal: Executive employees are “at will” employees and serve at the pleasure of the mayor or the responsible official of the appointing authority.
“Employees occupying an executive position are appointed by and serve at the pleasure of the responsible official for the appointing authority. As such, the responsible official may dismiss, demote or suspend any employee occupying an executive position for any reason, or no reason, without right of grievance or appeal. The code acknowledges that the mayor, and only the mayor, may terminate executive mayoral appointees,” the memo said.
Therefore, the ordinance that created the chief equity officer position, AMC 3.20.140.A.1.b. and 1.c, “unlawfully infringe upon the powers granted to the mayor by Charter 13,” Bergt said.
“An ordinance creating “for cause” and durational term protections of an executive mayoral appointee usurps the mayor’s executive function. Separation of powers between and among the three branches of government is a long recognized, well-settled, and core doctrine of American jurisprudence. The doctrine is intended to preclude the exercise of arbitrary power and to safeguard the independence of each branch of government: “One branch’s threat to the independence of another . . . may therefore violate separation of powers,'” he wrote.
Last month, the Assembly authorized the hiring of an outside attorney for $50,000 to fight the firing of the former chief equity officer, and also sent a letter to the mayor saying they do not recognize that Armstrong III is indeed fired.
