Treasurer’s ordinance challenge goes forward

Where a city charter provides that the treasurer is the custodian of municipal funds, and the city council passed an ordinance giving that authority to the city’s tax collector instead, the court denies defendants’ demurrer to the treasurer’s complaint that the ordinance is void ab initio.

Background

The Virginia General Assembly passed a city charter that created the city of Petersburg. Plaintiff is Petersburg’s elected treasurer. The city council petitioned the general assembly to amend the charter regarding the responsibilities and duties of the treasurer and the collector of city taxes, another office provided for in the Petersburg charter. Bills to amend the charter were introduced but were not passed.

The city council then passed an ordinance naming the city collector as custodian of all city funds. In contrast, the city charter provides that the treasurer is the custodian of municipal funds. The city’s chief operating officer asked the treasurer in writing to attend a meeting to discuss the orderly transfer of responsibilities from the treasurer to the collector.

The treasurer filed suit, seeking a writ of quo warranto, and injunctive and declaratory relief. Defendants are the city council, the city manager and the chief operating officer. They have demurred as to all claims.

Quo warranto

The statutory writ of quo warranto “is available to confront ‘any person who intrudes into or usurps any public office.’” Plaintiff treasurer alleges all defendants, through the ordinance at issue, have intruded into or usurped the treasurer’s office.

However, the city council is not a “person” under state law because it is “a body politic governing a municipal corporation.

Plaintiff makes no allegation that the city manager has taken any action to intrude into or usurp the treasurer’s office. The city manager, or another person the city council designates, has the authority to fill the city collector’s office. But plaintiff has not identified any person who has been selected to fill the office or stated whether council has even voted to fill the office.

The chief operating officer’s letter to plaintiff does not usurp or interfere with the treasurer’s office. The letter only provides the CEO’s interpretation of the ordinance – that it transfers duties from the treasurer to the collector and contains “his invitation to discuss this transition with the Treasurer.”

As a result, the court declines the application to issue the writ.

Injunctive relief

To issue injunctive relief, a petitioner must show irreparable harm and the lack of an adequate remedy at law. Plaintiff has not alleged irreparable harm, other than pointing to the CEO’s letter. In doing so, “plaintiff merely makes prospective, conclusory claims of irreparable harm without demonstrating existing harm or detailing harm that cannot be repaired.”

Because plaintiff has not alleged any facts resulting in harm or damage, the court cannot determine if legal remedies are available.

Defendants’ demurrer is granted as to this claim.

Declaratory judgment

“Even a casual reading of the complaint informs that plaintiff alleges that the City Council violated Dillon’s Rule by enacting an Ordinance contrary to the terms of the City Charter. … The Dillon Rule states that local governing bodies, ‘possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or implied therefrom, or those that are essential and indispensable …

“If a local governing body enacts an ordinance inconsistent with a state statute, in this case the City Charter enacted by the General Assembly, then the enactment is ultra vires and the ordinance id void ab initio.”

Defendants claim the city charter gives them the authority to delegate duties to the city collector. Plaintiff alleges that delegating the treasurer’s duties to the collector, contrary to the charter’s express terms, violates Dillon’s rule.

“The parties’ difference of interpretation of the City Charter creates an actual controversy which amounts to an antagonistic assertion and denial of right involving the interpretation of a municipal ordinance. This is a classic case for declaratory judgment.”

Defendant’s demurrer as to this claim is denied.

In their plea in bar, defendants argue that sovereign immunity bars plaintiff’s claim for a declaratory judgment. A state cannot be sued without its consent and permission. In this case, “[c]onsent and permission are provided explicitly in Va. Code § 8.01-184 which authorizes actions for declaratory judgment related to controversies involving the interpretation of municipal ordinances.”

The plea in bar is denied.

Pritchett v. City Council of the City of Petersburg, et al. CL-19-489-00, Oct. 24, 2019; Petersburg Cir. Ct. (Teefey). VLW 019-8-097, 12 pp.