IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT IN AND FOR ESCAMBIA COUNTY, FLORIDA

MAREN L. DEWEESE, in her official capacity as City Councilwoman for the City of Pensacola, and in her individual capacity as citizen and taxpayer of the City of Pensacola, Plaintiff, v. ASHTON J. HAYWARD, in his official capacity as Mayor of the City of Pensacola, a Florida municipal corporation, and RICHARD BARKER, JR., in his official capacity as Chief Financial Officer of the City of Pensacola, Defendants. ____________________________________/

Case Number: Division:

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COMES NOW, MAREN L. DEWEESE, Plaintiff, and hereby sues Defendants, ASHTON J. HAYWARD, in his official capacity as Mayor of the City of Pensacola, a Florida municipal corporation, and RICHARD BARKER, JR., in his official capacity as Chief Financial Officer of the City of Pensacola, and alleges the following: ALLEGATIONS 1. Plaintiff Maren L. Deweese (DeWeese) is a resident, citizen, and taxpayer of

Pensacola, Escambia County, Florida. 2. Plaintiff DeWeese currently serves as a City Council member of the City of

Pensacola, a Florida municipal corporation, for District Three of the City of Pensacola.

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Defendant, Ashton J. Hayward (Hayward), is a resident of Pensacola, Escambia

County, Florida, and is the current presiding Mayor for the City of Pensacola, a Florida municipal corporation. 4. Richard Barker, Jr., (Barker) is an employee of the City of Pensacola, and

currently serves as Chief Financial Officer of the City of Pensacola. 5. Defendant Barker is responsible for the implementation and expenditure of

municipal funds in accordance with the Citys annual approved budget. 6. At all times relevant hereto, the 2010 City of Pensacola Charter (Charter) was

in full force and effect and establishes the powers and duties of the Mayor and City Council. Attached hereto as Exhibit A. 7. Defendant Hayward, in accordance with the Charter, Article IV, 4.01(a)(9) has

the duty to prepare and submit the annual budget and capital program to the City Council. Exhibit A. 8. Pensacola City Council has a duty, in accordance with the Charter, Article IV,

4.02(a)(1): To legislate for the City by adopting ordinances and resolutions in the best interests of all citizens of the City. Exhibit A. 9. Pensacola City Council has a duty, in accordance with the Charter, Article IV,

4.02(a)(2): To adopt the annual budget and all other appropriations necessary for efficient City government. Exhibit A. 10. All legislative power of the City of Pensacola, according to the Charter, Article

IV, 4.02(a)(1), resides in the City Council. Exhibit A. 11. All executive power of the City of Pensacola, according to the Charter, Article -2-

IV, 4.01(a)(1) resides in the Mayor. Exhibit A. 12. The Charter specifically and unequivocally created a separation of legislative and

executive powers between the City Council and the Mayor. Exhibit A. 13. The Mayor of Pensacolas only check on the legislative power of the City Council

is the power of veto, found in the Charter, Article IV, 4.01(a)(10): To exercise a veto power over ordinances and resolutions adopted by City Council within five (5) days of adoption by City Council ... The Mayor may veto any line item in a budget or appropriation ordinance or resolution within five (5) days of adoption by City Council. A veto may be overridden only by an affirmative vote of at least six (6) Council Members. Exhibit A. 14. City Council has the power to override a veto, found in the Charter at

Article IV, 4.02(a)(4): To override the Mayors veto of an ordinance or resolution by an affirmative vote of at least six (6) Council Members. Exhibit A. 15. Exhibit A: The City Council may, by an affirmative vote of at least six (6) of the nine (9) City Council Members, override the Mayors veto of an ordinance or resolution at any time prior to midnight on the fifth (5th) business day after the day the Mayor exercises the veto or prior to midnight on the day of the next City Council meeting after the exercise of the Mayoral veto, whichever last occurs. If City Council overrides a veto, the ordinance or resolution shall be effective immediately or as otherwise provided therein. If City Council fails to override a veto, the ordinance or resolution shall fail and be of no effect. Ordinances adopted by City Council shall be effective unless vetoed by the Mayor upon the expiration of the fifth business day after said adoption, or shall be effective upon such later date as may be provided therein. The Mayor may notify the City Council through written notice filed with the City Clerk -3The process for overriding a veto is found in the Charter at Article IV, 4.03(d),

that he or she will not veto the ordinance or resolution, whereupon the ordinance or resolution may become effective prior to the sixth business day after adoption of said ordinance or resolution if the ordinance or resolution so provides for such an earlier effective date. 16. Municipal budgets and municipal expenditures in accordance with those budgets

must follow Fla. Stat. 166.241. 17. Procedures for the adoption of ordinances and regulations for municipalities are

outlined in Fla. Stat. 166.041. 18. On September 12, 2012, Pensacola City Council adopted a final budget, enacted

by Resolution No. 40-12, for Fiscal Year 2013 (FY2013"), which was to take effect on October 1, 2012. The Minutes from the meeting are attached hereto as Exhibit B. 19. On September 12, 2012, Pensacola City Council amended the budget prior to

adoption of Resolution No. 40-12 enacting the FY2013 Budget by reference. Exhibit B. 20. Specifically, Pensacola City Council amended the FY2013 Budget by changing

appropriations located in several specific line items. Exhibit B. 21. Line Item 9338 for the Mayors Advertising was reduced by City Council in the

FY2013 Budget from $50,200 down to $200. Exhibit B. 22. Line Item 9338 for Technology Resources was reduced by City Council in the

FY2013 Budget from $172,500 to $2,500. Exhibit B. 23. Line Item 9335 for City Council Professional Services was increased by City

Council in the FY2013 Budget by $135,000 to $267,000. Exhibit B. 24. While no line item can be found in FY2013 Budget to correspond to the

amendment, City Council approved a reduction of various general funds departments -4-

communications - MIS allocation by $85,000. Exhibit B. 25. The FY2013 Budget was amended at the September 12, 2012 meeting and

Resolution No. 40-12 enacting the budget was passed as amended by the City Council. Exhibit B. 26. On or about that date, the amended budget was presented to Defendant Mayor

Hayward for review. 27. On September 17, 2012, Defendant Mayor Hayward issued a line item veto. The

Veto memorandum is attached hereto as Exhibit C. 28. Defendant Mayor Hayward vetoed the $200 allocated for Line Item 9338 for the

Mayors Advertising. Exhibit C. 29. Defendant Mayor Hayward vetoed the $2,500 allocated for Line Item 9338 for

Technology Resources. Exhibit C. 30. Defendant Mayor Hayward vetoed the $267,000 allocation for Line Item 9335 for

City Council Professional Services. Exhibit C. 31. Defendant Mayor Hayward vetoed line item 9335, which cannot be found in the

budget, but which corresponds to the action of City Council which reduced various general funds departments communications - MIS allocation budgets by $85,000. Exhibit C. 32. Resolution No. 40-12 which enacts the budget was passed on September 12,

2012, with the amendments made by City Council on that same date. However, the amounts as amended by City Council are not found in that Resolution which is dated and signed as adopted on September 12, 2012, by Sam Hall, City Council President. Exhibit C.

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On September 27, 2012, at the next regularly scheduled City Council meeting

following the line item vetoes made by Defendant Hayward, Pensacola City Council failed to override the Mayors line item vetoes. 34. Defendant Hayward was at that meeting of City Council and the nature of veto

power was discussed. A legal opinion on veto power, which was requested by City Councilwoman Sherri F. Myers, was officially entered into the record with the City Clerk at that meeting. A copy of that legal opinion is attached hereto as Exhibit D. 35. Plaintiff DeWeese, at that meeting of City Council, in the presence of Defendant

Hayward, took specific notice that a veto serves as a purely negative act which has the effect of totally destroying an allocation of funds in a budget. 36. power. 37. As City Council failed to override the vetoes, they took effect in the final FY2013 Defendant Hayward was thereby placed on notice of the proper scope of veto

Budget which took effect on October 1, 2012. 38. A veto is a purely negative act which does not amend legislation. Brown v.

Firestone, 382 So. 2d 654, 664 (Fla. 1980); Thompson v. Graham, 481 So. 2d 1212 (Fla. 1985). 39. In the context of a budget, a line item veto destroys the fund completely leaving

the funds unexpended. Thompson v. Graham, 481 So. 2d 1212, 1215 (Fla. 1985); Brown v. Firestone, 382 So. 2d 654 (Fla. 1980). 40. Vetoed funds cannot be reassigned by the Mayor. Thompson v. Graham, 481 So.

2d 1212, 1215 (Fla. 1985).

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The FY2013 Budget should reflect that the line items vetoed by Defendant Mayor

Hayward in his veto memorandum (Exhibit C) have dollar amounts totaling $0.00 dollars for each item vetoed. 42. The FY2013 Budget which was made effective on October 1, 2012, does not

reflect an amount of $0.00 for the vetoed line items, but rather contains the amounts of the line items as originally proposed by the Mayor when the proposed budget was submitted to City Council. The relevant portions of the FY2013 Budget are attached hereto as Exhibit E. 43. Vetoed funds must remain unexpended unless a further resolution to amend the

budget is made by City Council. See Fla. Stat. 166.241. 44. funds. 45. Defendant Hayward has created appropriations by altering the line items, and has No further resolutions have been made by City Council with regards to the vetoed

thereby engaged in legislative activity, in derogation of the explicit powers enumerated to City Council in the Charter. 46. Defendant Hayward has altered legislation by placing funds in the FY2013

Budget which were vetoed. 47. Defendant Hayward has altered and amended legislative intent by placing funds

in the FY2013 Budget which were vetoed. 48. All monies which have been expended since October 1, 2012, for the line items

which were vetoed by Defendant Hayward have been illegal expenditures of funds in direct violation of Florida law: The adopted budget must regulate expenditures of the municipality, and an officer of a municipal government may not expend or contract for expenditures in any -7-

fiscal year except pursuant to the adopted budget. Fla. Stat. 166.241(2) (emphasis added). 49. Defendant Hayward has violated Fla. Stat. 166.241(2) which prohibits the

expenditure of funds which are not pursuant to the adopted budget. 50. Defendant Hayward has knowingly violated the separation of powers as

established by the City of Pensacola Charter by engaging in legislative activity by amending the FY2013 Budget. 51. Defendant Hayward has exercised a power which does not exist in the City of

Pensacola Charter by amending the FY2013 Budget. 52. Defendant Haywards act of altering the line items to reflect his originally

proposed amounts where he had officially exercised his veto power was not a veto and was a knowing, illegal, and improper act in derogation of the clearly established legal definition of a veto power. Thompson v. Graham, 481 So. 2d 1212 (Fla. 1985); Brown v. Firestone, 382 So. 2d 654 (Fla. 1980). 53. Defendant Barker, as Chief Financial Officer, has illegally authorized the

expenditure of funds which were vetoed and were to remain unallocated in accordance with Fla. Stat. 166.241. 54. Defendant Barker, as Chief Financial Officer, has violated Fla. Stat. 166.241(2),

which prohibits the expenditure of funds which are not pursuant to the adopted budget. 55. The FY2013 Budget, as adopted, is invalid as it does not properly reflect the

amounts of the vetoed funds. 56. The illegal acts committed by Defendant Hayward and Defendant Barker

complained of herein amount to an immediate and continuing harm by their illegal exercise of -8-

power and misuse and misappropriation of taxpayers public funds. 57. The illegal acts committed by Defendant Hayward and Defendant Barker

complained of herein amount to an immediate and continuing harm by the illegal expenditure of public funds which were not allocated for use in the FY2013 Budget. 58. Defendant Hayward has exercised an invalid veto power by using the veto power

to amend legislation and legislative intent. Thompson v. Graham, 481 So. 2d 1212, 1215 (Fla. 1985); Brown v. Firestone, 382 So. 2d 654 (Fla. 1980). 59. Defendant Hayward has violated the express terms of the City of Pensacola

Charter by engaging illegally in legislative actions. 60. Plaintiff DeWeese, as a member of City Council, has a duty to the public to

ensure that the City of Pensacola government functions legally according to its Charter. 61. Plaintiff Deweese, as a member of City Council, has a duty to ensure that the

public trust of the citizens of Pensacola is maintained by the proper and legal use and expenditure of public funds. 62. Plaintiff DeWeese, as a member of City Council, has a right to protect and defend

Pensacola City Council from a violation of its powers from encroachment by Defendant Mayor Hayward. 63. Plaintiff DeWeese, as a member of City Council, has a right to challenge the

nature and validity of the veto exercised by the Mayor of the City of Pensacola. 64. Plaintiff DeWeese, as a member of City Council, has a right to ensure that

ordinances and resolutions enacted by the City of Pensacola and City Council are enacted in a proper and legal manner. -9-

65.

Plaintiff DeWeese, as a member of City Council, has a right to ensure that the

public interest is served by the actions of the City of Pensacola government. 66. Plaintiff DeWeese, as a citizen and taxpayer of the City of Pensacola, has a right

to ensure that executive and legislative powers of the City of Pensacola are properly exercised. 67. Plaintiff DeWeese, as a citizen and taxpayer of the City of Pensacola, has a right

to ensure that Pensacola citizens taxpayer funds are properly expended by public officials according to Florida law. 68. Plaintiff DeWeese, as a citizen and taxpayer of the City of Pensacola, has a right

to challenge the nature and validity of a veto exercised by the Mayor. 69. Plaintiff DeWeese, as a member of City Council, has been injured by the

illegal acts of Defendant Mayor Hayward and Defendant Barker, as their actions have interfered with her ability to serve the public interest, exercise the enumerated powers associated with her office, and has been injured by the encroachment of the executive branch on legislative powers which have been delegated to the City Council by the City of Pensacola Charter. 70. Plaintiff DeWeese, as a citizen and taxpayer of the City of Pensacola, has been

injured by the illegal acts of Defendant Hayward and Defendant Barker as they have misused public funds, exercised powers which they do not possess, and taken actions which are not authorized by state law or the City of Pensacola Charter. 71. The actions complained of herein, which were committed and continue to be

committed by Defendant Hayward and Defendant Barker cannot be restrained by any remedy at law. 72. The illegal and unwarranted actions taken by Defendant Hayward and Defendant -10-

Barker are clear and unequivocal violations of the City of Pensacola Charter and established Florida law. Thompson v. Graham, 481 So. 2d 1212, 1215 (Fla. 1985); Brown v. Firestone, 382 So. 2d 654 (Fla. 1980); Fla. Stat. 166.241 (2011). 73. The declaratory relief sought herein is warranted as, unless this Court issues such

declarations, Defendants will be able to engage in a course of conduct which violates Florida law and the City of Pensacola Charter. Further, unless declaratory relief is granted the parties will be unable to properly execute their roles as public officials for the City of Pensacola. RELIEF SOUGHT WHEREFORE, Plaintiff, Maren L. DeWeese, seeks the following relief: 74. Plaintiff seeks an injunction prohibiting Defendants from any further expenditures

of monies which were vetoed from the FY2013 Budget by Defendant Hayward, as those funds were to remain unexpended. 75. Plaintiff seeks an injunction prohibiting Defendant Mayor Hayward from any

further improper use of his veto power. 76. Plaintiff seeks an injunction prohibiting Defendant Mayor Hayward from any

further violations of the City of Pensacola Charter by prohibiting him from engaging in legislative activity which is explicitly reserved to City Council in the City of Pensacola Charter. 77. Plaintiff seeks an injunction prohibiting Defendant Mayor Hayward from further

amending or altering legislation passed by City Council, as that power is explicitly reserved by the City of Pensacola Charter to the City Council.

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78.

Plaintiff seeks an injunction prohibiting Defendant Hayward and Defendant

Barker from any further violations of Fla. Stat. 166.241, which prohibits expenditures of funds which are not authorized specifically by the Citys budget. 79. Plaintiff seeks a mandatory injunction requiring that all funds which were

illegally expended, as they were to remain unallocated in accordance with the line item veto, be paid back to the City of Pensacola. 80. Plaintiff seeks a mandatory injunction requiring that the FY2013 Budget reflect

the vetoed amounts. 81. Plaintiff seeks a declaration that a veto power in a budget is a purely negative act

which cannot alter or amend a budget but can only destroy the funds located in the line item vetoed. 82. Plaintiff seeks a declaration that the City of Pensacola Charter grants legislative

powers solely to City Council. 83. Plaintiff seeks a declaration from this Court that the power exercised by

Defendant Hayward which placed the vetoed funds back to their original levels in the proposed budget was an illegal act and not a veto. 84. Plaintiff seeks a declaration from this Court that the line items which were vetoed

by Defendant Hayward destroyed the funds allocated for the amounts listed in those line items. 85. Plaintiff seeks a declaration from this Court that the FY2013 Budget is invalid as

it should reflect that each line item vetoed has $0.00 dollars allocated to those line items.

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86.

Plaintiff seeks a declaration from this Court that the funds which have been

expended for the vetoed line items since October 1, 2012, were not authorized expenditures in violation of Fla. Stat. 166.241. 87. Plaintiff seeks a declaration that Defendant Hayward has violated the City of

Pensacola Charter by his action of amending legislation. 88. A reasonable attorneys fee and costs in accordance with Pearl v. Lomelo, 416 So.

2d 489 (4th DCA 1982); City of Hialeah v. Bennett, 376 So. 2d 483, 44 (3d DCA 1979). RESPECTFULLY SUBMITTED this day of November, 2012.

_________________________________ J. Alistair McKenzie Florida Bar No. 0091849 McKenzie Law Firm, P.A. 905 East Hatton Street Pensacola, Florida 32503 Telephone: (850) 432-2856 Facsimile: (850) 202-2012 Attorneys for Plaintiff/Petitioner

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