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Explaining Issue 11, which wants to eliminate the mayor's pocket veto from Cincinnati's charter

cincinnati city hall
Jason Whitman

A charter amendment on the Cincinnati ballot would eliminate the so-called "pocket veto" from the city charter.

The pocket veto is an unintended loophole of charter language that allows the mayor to indefinitely postpone legislation, effectively killing it without any discussion.

Earlier this year, Mayor Aftab Pureval and Council Members Mark Jeffreys and Jeff Cramerding introduced a charter amendment to close that loophole. It establishes a timeline during which legislation must be referred to committee; if the mayor hasn't referred an item within four regularly scheduled meetings, the council clerk would refer it themselves.

Eliminating the pocket veto was one recommendation of the Charter Review Task Force of 2015. The amendment on the ballot this year would give the mayor more time than recommended to refer legislation. That timeline was a point of disagreement as the council considered sending the amendment to the ballot.

Here's how the process could play out:

  • Once legislation is filed, the mayor would have to refer it to committee within four regularly scheduled meetings. That would typically mean four weeks, unless a holiday or summer recess meant no scheduled meetings.
  • Once legislation is referred to a committee, that committee chair (who is appointed by the mayor and can be removed by the mayor at any time) would have to put it on a meeting agenda within four regularly scheduled meetings. Four of the five committees meet every other week, so a chair could delay seven to eight weeks.
  • Once legislation is passed out of committee, the mayor would have to put it on the agenda for a full council meeting within four regularly scheduled meetings; again, that’s typically four weeks.

Cincinnati Council unanimously approved the amendment for the ballot.
The Cincinnati Charter Committee supports the amendment (although a few members said thecommittee preferred an alternate version that gave the mayor less time for referral).

Ballot language: Shall the Charter of the City of Cincinnati be amended to provide that the Mayor is required to assign a legislative matter to the appropriate committee by the fourth regularly scheduled meeting of council following the date the legislative matter was submitted to the clerk of council; that if the Mayor does not assign a legislative matter within that time, the Clerk of Council shall assign it to the appropriate committee; that each legislative matter assigned to a committee shall be placed by the committee chair on the agenda no later than the fourth regularly scheduled committee meeting after referral unless the legislative sponsor of the ordinance grants an extension of time to the clerk of council in writing; that upon approval of a legislative matter by a committee, the Mayor shall be required to place such legislation on the Council agenda for passage by no later than the fourth regular meeting following such committee approval; and that motions and non-legislative resolutions may be assigned by the Mayor to the appropriate committee or may be immediately considered by council if (1) the Mayor places the motion or non-legislative resolution on the Council calendar for immediate consideration or (2) upon the vote of two-thirds of the members of Council in favor of immediate consideration of the motion or non-legislative resolution, by amending Article III, Section 2 of the Cincinnati Charter?

Cincinnati Edition discussion

In a recent segment of Cincinnati Edition, host Lucy May interviews guests Becca Costello (WVXU local government reporter), Chris Wetterich (Business Courier staff reporter and columnist) and Howard Wilkinson (WVXU senior political analyst), about the pocket veto charter amendment.

You can listen to the segment by clicking the purple "play" button above, or you can read a transcript of the discussion below.

Lucy May: Chris, I want to start with you first, quickly tell us about the pocket veto. Tell us more about what it is and why do people want to get rid of it.

Chris Wetterich: So it's kind of a quirk of the Cincinnati charter. Basically, the charter says the mayor has to refer legislation to council committees for votes. But the thing that leaves out is that it doesn't provide any timeline in which he or she has to do that. So in theory, and in practice in some cases, the mayor can take a piece of legislation and basically not refer it until the end of the term. And you know, if you if you do that, and you wait until the end of the term, then, you know, basically, council has no time to consider a piece of legislation, and it doesn't get voted on. So it gives the mayor a power that, you know, state legislatures often give the Speaker of the House or the President of the Senate to basically kill a piece of legislation on his or her own without, without any hearing. So the opponents of this or the people that don't like it, say this is a really kind of anti democratic, you know, instrument and that the city council should basically be forced to consider legislation and not allow the mayor to do this. So that's kind of the upshot. And earlier this year, Mayor Pureval basically said, I'm voluntarily proposing that I have my office give up this power for good. And so the pocket veto amendment that people vote on on November 8 will set some deadlines. And, you know, it'll be it'll be struck from the charter if voters approve it.

Lucy May: Well, and I do want to get back to that kind of quirk of the charter. But Becca, tell us more about where this latest move to eliminate the pocket veto originated.

Becca Costello: Well, officially it originated this year from the mayor's office, as Chris said, it was proposed by the mayor's office in combination with a couple of council members, Mark Jeffreys and Jeff Cramerding. But really it does date back to several years ago. There was a charter review task force assigned to look at the charter and make recommendations on quirks like this, basically. And they made several recommendations for what they thought voters and council should do to amend the charter and make it more in line with what the intentions were. So the original recommendation, this was back in 2015, of the task force was to eliminate the pocket veto. But the wording was a little bit different than what voters will see on the ballot in November or now I guess since early voting has already started. The original recommendation was in some ways, a little bit weaker than what this charter amendment is. It said basically, the mayor has two weeks to refer legislation to committee. But what that recommendation didn't have that the charter amendment does is to have basically a backup plan for what happens if the mayor doesn't do that. And in this case, if the mayor does not refer legislation to committee within the timeframe allotted, which in this case is within for regularly scheduled council meetings, then the clerk of council will refer that legislation instead. And that was not part of the original recommendation. Under the original recommendation, if the mayor didn't follow the rules, basically, a council member could sue and say, Hey, we think you should follow these rules. So this amendment does have a little bit more teeth in that sense. In another sense it's a little bit weaker than the recommendation and that's maybe more complicated than this first question. We can get into that a little bit more later.

Lucy May: Okay. And I do want to get into that later. Howard. I want to come to you next though. Chris described this as a quirk of the charter. I've heard it described as an unintended consequence of the "stronger Mayor" charter reform that passed a while back. Talk to us about the history of this.

Howard Wilkinson: Yes, it's both of those things. And Chris is right, it goes back to the 2009 vote on creating this "stronger Mayor" directly elected mayor form of government, which we have now. I've always thought that there were some aspects of this that were not very well thought out. And I think this is one of them was a they did really didn't anticipate this kind of situation where the so called pocket veto, could be used by mayors. And it can be obviously, has been the past. Mark Mallory - there's a provision in the rules of Council that's a sunset provision, where at the end of each council term, basically, all the legislation has been acted upon goes away. Books are cleared, and it starts over again when the next term begins. If a piece of legislation is not introduced or not referred to a committee, it can be reintroduced in a new term. And it's just it's one of those things where it's just we can't really decide in the city whether or not we want to have a strong mayor, or a weak mayor or something hybrid in between. And this is the kind of thing that happens when you do that.

Lucy May: I do want to talk a little bit more about how this so called pocket veto has been used in the past. Howard you mentioned Mayor Mark Mallory — he was the mayor when when people really started talking about this?

Howard Wilkinson: Yeah, that's right. And Mark Mallory always said, Look, this is not a matter of a pocket veto. This is a matter of sunsetting legislation, you know, just and I think in his mind, there were certain pieces of legislation that were proposed by council members that he just was totally opposed to. And he wasn't going to do it. And he didn't have to do it because of this loophole that was in the law, or in the charter amendment. And you know, if folks want to close that they have an opportunity to do that now. But I keep going back to this idea of it wasn't very well thought out in the beginning. And that's why there's a potential problem there. I don't think it's been a massive problem. But there is a problem.

Lucy May: And Chris, how did former Mayor John Cranley use the pocket veto? I've heard that he used it more as as kind of a threat to force some compromise on issues. Talk to us about that.

Chris Wetterich: Yeah, that's right. I mean, Mayor Cranley didn't, you know, he wanted to use it without admitting that he was using it. And so what happened was a number of times he, you know, would not refer things and say, let's discuss this ordinance. And we'll you know, work on it and see if, you know, we can get into a shape that it's recoverable. There was one time early in his term, his first term, where he basically kind of employed it as a line item veto for the budget. And I did a thread on Twitter with some of these examples as well. It got to the point where in 2016, then Councilman Kevin Flynn basically came out publicly and accused Mayor Cranley of trying to pocket veto one of his ordinances and talked about getting a judge to go make Cranley put it on the agenda. This was something that [former Council Member] David Mann - and this is interesting, because, Mann and Kevin Flynn were both fairly staunch allies of the former mayor. And yet they felt like, you know, at times they they would maybe have to go to court to enforce the rules of council. That has never been tested in court. And I would have been very curious to see it, you know, to see it play out. I'm not sure what judges would say. I suspect - I'm not a lawyer, I only play one on the radio here - but the rules of council do not supersede the charter and the charter has no timeline for the mayor to refer ordinances. That's another thing about the pocket veto, kind of piggybacking off what Howard said, is that, you know, there's a debate about whether it even exists. And I don't think there's really any doubt that it exists. So, one thing that former mayor Roxanne Qualls told me when she was running for her old office back in 2013, was that the existence of the pocket veto basically makes Cincinnati's mayor the most powerful mayor in the country, which is kind of extraordinary when you think about it, because the people who were behind the charter amendment in 1999, were trying to kind of forge this middle path between having the mayor run the day to day operations of the city. And, you know, having a professional city manager run the day to day operations. So they created this system where the mayor has an extraordinary amount of legislative power and some administrative power, not very much, although there's debate about that as well, as we all know. So this, this amendment would definitely trim the mayor's power as we have known it.

Lucy May: Becca, you alluded to this earlier in the conversation, but there are very specific timeframes that are out outlined in this Issue 11 language about the pocket veto and the timing that the mayor would have to refer legislation to council. Talk to us about the specifics of that.

Becca Costello: So the charter amendment outlines that the mayor would have four regularly scheduled council meetings to refer legislation to committee. And that generally is four weeks depending on the time of year, council meets every week. There are times that that schedule is altered by holidays or the summer recess, in which Council doesn't meet in the month of July, and most of the month of August. Something else the charter amendment does that goes a little bit further than the recommendations of the task force is once that's referred to Committee, there's also a timeline added for the committee chair, which is a council member, to put that on the committee agenda. That's another four regularly scheduled meetings. That's where a lot more time gets added into this potential timeline because one council committee meets every week, but most council committees meet every other week. So four regularly scheduled meetings is between seven and eight weeks actually. And then on the back end, the last sort of step of the process: if legislation passes committee, it then forwards on to the full council for a full council vote. But the Mayor sets the agenda for full council and so the mayor, once legislation passes committee, the mayor has another four regularly scheduled council meetings to put that legislation on the full council agenda. So the mayor themself can have basically up to eight weeks to delay a final vote on legislation. With some potential collaboration with a committee chair that could be a delay of between 17 and 18 weeks, you know, depending on timing, and that is a concern that some have brought up there was actually an alternate version of the this charter amendment that was proposed by councilmember Liz Keating that would have shortened those timeframes quite a bit. So, you know when we say this charter amendment is a little bit stronger than the initial recommendation, that's because it has those kind of backups built in for what happens if the mayor doesn't follow it. But as I said, in some ways, it's also a little bit weaker, because it really codifies the mayor's power to delay discussion or a vote on legislation in a way that wasn't explicit in the charter before. So that's just one perspective on this pocket veto, it does technically eliminate the pocket veto. But in some other ways, it kind of codifies a little bit of power that the mayor didn't explicitly have in the charter before now, if this is passed.

Chris Wetterich: Becca do you think the right way to look at this is there'll be no pocket veto for the first year and seven months of the term? If we practically look at it?

Becca Costello: That's a really good way to put it actually. And that was kind of [Council Member Liz] Keating's point, as well, was to say if the if a council member, especially now that council is back to two year terms instead of four year terms, if a council member introduces legislation after the summer recess, that can be sunsetted with you know, the the mayor can delay with a committee chair, enough to sunset that to the end of that council members term. So yeah, I like that phrasing.

Lucy May: Well, and Becca, the mayor appoints committee chairs doesn't the mayor?

Becca Costello: Right. And that's where, you know, it's not just one person. But theoretically, if the mayor is talking to a committee chair and says, I want this delayed, and the committee chair says, No, I want to put it on the agenda. The mayor could say, Alright, you're not the committee chair anymore. I'm gonna pick somebody that'll do what I want. And this is all hypothetical. But I think that's kind of the point of this charter amendment is if this mayor is saying, I'm not using the pocket veto, and I don't plan to use the pocket veto. Okay, we can trust that. But the point is to put protections in place for anyone who is in that office that could potentially abuse whatever power the charter gives them.

Lucy May: Howard, are there situations that you can think of where it could be good for a mayor to have all this kind of time to, to work through legislation and talk about it and discuss it? Talk to us about, you know, the other side of this coin.

Howard Wilkinson: Yeah, I mean, in a situation where the mayor wants a piece of legislation passed, but isn't sure that there are the votes to pass it, time is something that he or she can use to gather those votes. What Becca was saying was spot on. I mean, 16 weeks seems like a long time, but it's less than infinity. And that's that's what the sunset provision means, you know, if you can just stretch it out until the end of the term, it's goes up in smoke, it's no longer exists.

Lucy May: Chris, talk to us about the politics behind this. Have you heard anybody in your reporting come out against Issue 11 saying, Oh, we we need to keep the charter language just the way it is?

Chris Wetterich: You know, no, I haven't. And I think that's a little surprising. I don't recall the drafters of the of this 1999 charter amendment, or the 1999 charter, saying they intentionally put it in there, but doesn't mean that they didn't. You know, I just haven't seen that. And, you know, it'd be curious to see, you know, how the voters react to this, because I don't think there will be much of an active campaign. We're less than three weeks until the election right now. And, you know, there's no mailers about it at this point. That doesn't mean there won't be and typically, if you were to campaign against or for something like this, you would do it in the final days, because there is already so much election noise out there with other races and other candidates. So, you know, voters, the only thing they may have to go on is when they go into the ballot box or when they mail their ballot back in all they may have to go off of is the language in the on the ballot itself. And if it's confusing to them, or whatever, they typically vote no. So if it's not confusing, if they if they somewhat understand what's going on, you know, it probably has a pretty good shot. It just depends.

Becca Costello: And Lucy, if I can add quickly, the Charter Committee, which kind of sponsored the charter review task force of 2015, that we mentioned earlier, does support the charter amendment. They did say at the time when there was discussion about the specifics of it, they supported Keating's version that gave less time for referral. But in the end, they do support the version that's on the ballot in November.

Howard Wilkinson: But then it becomes a question of whether or not they would be willing to spend any money on like mail pieces or that sort of thing. And I haven't seen any elements of that.

Lucy May: Becca, do you have a sense for how clear the language is or have you heard much discussion about how understandable this is to to average voters?

Becca Costello: That is a good question. I think the ballot language, it is a summary, it's not the full text. That's, you know, how ballot initiatives work. I think it is it is relatively clear if people read the whole thing. But that said, I've been kind of swimming in pocket veto news for a while. So I don't know if I'm the best person to determine. I think the pocket veto is something that, first of all, I don't think the ballot language says pocket veto on it. So even if people know what the pocket veto is, and what this amendment aims to do it, I think that's not necessarily what people will be thinking about in the in the ballot box. That said, you know, you look at the language, and it says, should the mayor refer legislation within a certain amount of time? I think a lot of people are gonna say, Yeah, that makes sense.

Chris Wetterich: I was just looking at this, Lucy, and it's on the page for city voters. And that's the only people voting on it. So it's on the fourth page of the ballots, the very last thing on there and it takes up you know, about about a full column to explain it. And there's three columns on the ballot. So, you know, if you're handicapping this, I suspect a lot of people aren't going to make it to that to that particular issue. So I mean, it might be up to the insiders who know about it on what's going to happen here.

Becca Costello: It'll be up to Cincinnati Edition listeners.

Lucy May: Yes, exactly. Cincinnati edition listeners within the city of Cincinnati limits. We're trying to educate you and let you know what's at stake. Howard, what do you think - you've seen a lot of issues on the ballot over a number of years in this community. If you had a handicap this, what would you say?

Howard Wilkinson: Well, generally speaking, the more words are on a ballot, the longer it is, the less likely people are to vote for it, they kind of tend to vote no if they don't understand it, if they don't know what the reasons are. Now, I read the ballot like that, it seems pretty clear. But as Chris pointed out, it doesn't say anywhere pocket veto. And, you know, it just there's a tendency with things that people don't understand that they're more likely to vote no, I don't know if that's going to happen here. But you know, that's been my experience.

Lucy May: Well, and Chris, I thought I saw in in one of in some of your reporting on this, are there some people who are viewing this as another step to kind of dealing with potential avenues of corruption at city hall after all of that Cincinnati City Hall has been through over the past couple of years?

Chris Wetterich: Yeah, and I think it might have been Steve Goodin, a former council member and Republican, he's also a member of the charter committee. When he came to council to support this, he talked about as an anti corruption measure. I'll just read what he said. He said, We see it as unfinished business related to the corruption scandal we had. And the current charter quote, "still allows for potential shenanigans around economic development. It's true leadership to give a power. This is not just a policy nerd, policy wonk type of thing," is what he said. I don't really think of the pocket veto as being central to the corruption scandal that council underwent. But if you had a mayor who wanted to block an economic development project, for some reason, like, you know, if he or she didn't get campaign contributions, or whatever, the pocket veto could be used as an instrument for that. There's been no talk of that actually happening. But I suppose it's possible.

Lucy May: And what about you, Becca? Did you we've talked a little bit about this charter review task force that was formed, and we had recommendations a few years ago. Have you heard any other talk about at City Hall about whether there could be other recommendations that come forward that maybe weren't implemented them that that might follow on the heels of this Issue 11 and pocket veto discussion?

Becca Costello: Well, other than the pocket veto, the only recommendation of the task force that hasn't been implemented yet is for council to establish a process for hiring and firing the city manager. This was relevant again recently, because there was a long process for choosing a new Cincinnati city manager who has been chosen as Sheryl Long, and who's been in place since September sometime. And so, you know, ideally, that doesn't come up again anytime soon. But there have been some push from former members of the charter review task force who have said, Hey, here's this thing that needs to be done as well. But I haven't heard anything at city hall that anyone you know, in a position to make that happen is really prioritizing that right now. It doesn't seem like a high priority. But you know, without going into too much detail the process of hiring and firing the city manager has been a controversial issue in the past in Cincinnati, and it is caused a lot of conflict between the mayor's office and council. And so that is something that could potentially come up in the future. But as I said, that's the only recommendation other than the pocket veto that was still kind of floating around out there that Council and the mayor had not taken any action on.

Chris Wetterich: If I could just say something about that. If I remember correctly, that proposal, you know, basically allowed for the City Council to fire the manager. And I think the mayor, Becca correct me if I'm wrong, the mayor would have to consent to it as well. But they could initiate that process. And to me that would almost completely undo the 1999 charter changes because you know, they wanted to invest in the mayor the power as basically the chief, you know, the chief policymaker of the city, and that would include picking the city manager or at least nominating that person with council consent.

Lucy May: Well, I've been talking with WVXU local government reporter Becca Costello, Cincinnati, Business Courier staff reporter and columnist Chris Wetterich, and WVXU senior political analyst Howard Wilkinson. Thank you all so much for your time today.

Local Government Reporter with a particular focus on Cincinnati; experienced journalist in public radio and television throughout the Midwest. Enthusiastic about: civic engagement, public libraries, and urban planning.