|Mr. Frank Straub,|
Director of Public Safety
Let's take another look at the statute.
Deputies and directors; acting deputies and directors; controller and deputy controllers; corporation counsel
Sec. 2. (a) The executive shall, subject to the approval of the city-county legislative body, appoint each of the executive's deputies and the director of each department of the consolidated city. A deputy or director is appointed for a term of one (1) year and until a successor is appointed and qualified, but serves at the pleasure of the executive. (b) When making an appointment under subsection (a), the executive shall submit the name of an appointee to an office to the legislative body for its approval as follows:
(1) When the office has an incumbent, not more than forty-five (45) days before the expiration of the incumbent's one (1) year term.
(2) When the office has been vacated, not more than forty-five (45) days after the vacancy occurs.
(c) The executive may appoint an acting deputy or acting director whenever the incumbent is incapacitated or the office has been vacated. An acting deputy or acting director has all the powers of the office.
Abdul's argument violates the first rule that you interpret a statute to give effect to legislative intent. In that process you don't assume that the legislature wrote provisions into the statute that it intended to be rendered meaningless by other provisions. Abdul is arguing that the reappointment of directors does not matter because they "serve at the pleasure of the executive." Therefore, using Abdul's interpretation, the mandatory council approval of the director provision in the statute is turned into a non-binding vote because of the "serve at the pleasure" provision.
Abdul's interpretation completely guts the statute. If his interpretation is what was intended, why didn't the General Assembly simply write the statute so that only the initial appointment of the director had to be approved by the council and thereafter the director could only be removed by the executive? Instead the legislature went to a great effort to spell out that these directors only have one year terms and that their reappointments, not just their initial appointments, have to be approved by the council. The legislature did not provide for a "non-binding" vote on the reappointments.
Well then what does the "serve at the pleasure of the executive" language Abdul trumpets means in context of the statute? That's an easy one. It means that the directors appointed by the Mayor serve "at his pleasure" during their terms. On many council appointments to boards and commissions, the Mayor cannot remove the person once he makes the appointment. That's done to provide those individuals some independence from mayoral control. It is obvious that is not a situation you want when it comes to an appointment like the Director of Public Safety. The legislature made that perfectly clear when it included in the statute that the appointees would "serve at the discretion of the executive."
When I started looking at this statute, I assumed the loophole the pro-Straub crowd was relying on was the section dealing with the appointment of an "acting director," i.e. that Straub could be appointed as "Acting" Director of Public Safety even if the council didn't agree to his reappointment.. I noted then that would be a ruse to try to get around the law. I had no idea when I penned that column that instead they would rely on the "serve at the discretion of the executive" language as giving the Mayor sweeping authority to ignore the specific statutory requirement that the Council approve Straub's reappointment. That is a much, much worse legal argument than the "acting" director one I suggested.