§ 106.416. Impoundment of funds.

(a)

Disclaimer. Nothing contained in this Section shall be construed as:

(1)

Asserting or conceding the Charter powers or limitations of either the Council or the Mayor.

(2)

Ratifying or approving any impoundment of funds heretofore or hereafter ordered, approved or executed by the Mayor or any other City official or employee, except insofar as pursuant to legal authorization then in effect.

(3)

Affecting in any way the claims or defenses of any party to litigation concerning any impoundment.

(4)

Superseding any provision of law which requires the adoption and execution of a budget or the making of disbursement thereunder.

(b)

Impoundment procedure. If the Mayor desires to impound funds, the following procedure shall be followed:

(1)

Whenever the Mayor determines that, because actual revenues being collected, annualized for the current fiscal year, will be less than the budgeted estimated revenues by five percent or more in any major fund, all or part of the funds appropriated will not be available to carry out the full objectives or scope of specific programs, activities or projects for which they were provided; or that any authorized program, activity or project for which funds have been appropriated, should be terminated or suspended, the Mayor shall transmit to the Council a special message specifying:

(i)

The amount of funds which he proposes not to expend or not to obligate.

(ii)

The agency or agencies to which such funds are available and the specific project, program or activity involved.

(iii)

The period of time during which the funds are proposed to be impounded.

(iv)

The reasons why the funds should be impounded, including any legal authority invoked by him to justify the proposed impoundment.

(v)

To the maximum extent practicable, the estimated fiscal and budgetary effect of the proposed impoundment and its effect on the services provided by the general government.

(vi)

All the facts, circumstances and considerations relating to or bearing upon the proposed impoundment.

A special message may include one or more proposed impoundments. An impoundment may not be proposed for any period of time extending beyond the end of the fiscal year or other definite period of time for which the funds were appropriated.

(2)

A copy of each special message shall be transmitted to the Council Auditor on the same day it is transmitted to the Council. In order to assist the Council in determining whether to agree to the proposed impoundment, the Council Auditor shall review the message and investigate the circumstances, books and program, activity or project involved and, within ten days after receipt of the message, report to the Council as to his findings and whether, in his judgment, such impoundment is necessary and in accordance with legal authority. This report shall be made available to the Mayor, and he shall have the right to reply in writing to the findings and comments contained in the report, which reply shall be transmitted to the Council within five days after the Mayor receives a copy of such report.

(3)

The special message, the Council Auditor's report thereon and the Mayor's reply to such report, if any, shall be referred to the appropriate committee of the Council for investigation and report. The committee shall have 20 days from the date the special message is referred to it in which to consider what report to make to the Council; after that period of time, it shall be in order at any meeting of the Council to discharge the committee from further consideration of the matter, including any legislation that may then be pending concerning the proposed impoundment. If the committee considers that the proposed impoundment, in whole in part, is necessary, is in accordance with legal authority and is in the best interest of the people of the City, it shall report its findings and introduce an impoundment resolution, approving such of the proposed impoundment action as the committee considers appropriate; the impoundment resolution finally adopted by the Council may not approve impoundment of funds in an amount larger than that proposed by the Mayor nor for different programs, activities or projects than those proposed by the Mayor. If the committee considers that the proposed impoundment as a whole is not justified by the attendant circumstances, it shall report its findings and recommend that the Council not approve any impoundment resolution; no further action by the committee shall be necessary. Nothing in this paragraph shall be construed to prevent or prohibit an individual Councilman from introducing an impoundment resolution in his own name with respect to a special message transmitted by the Mayor; provided, that such impoundment resolution may not approve impoundment of funds in an amount larger than that proposed by the Mayor nor for different programs, activities or projects than those proposed by the Mayor, and further provided, that once an impoundment resolution has been adopted by the Council, no other impoundment resolution concerning the same special message may be introduced, unless in response to a supplementary message transmitted by the Mayor as provided in paragraph (4).

(4)

If any information contained in a special message transmitted under paragraph (1) is subsequently revised, the Mayor shall transmit to the Council a supplementary message stating and explaining such revision. Any such supplementary message shall be treated for the purposes of paragraphs (1), (2) and (3) as an original special message, except that it shall be considered by the Council committee together with and as part of the special message to which it is supplementary, if the committee has not yet reported the special message, and for this purpose the time within which the special message and supplementary message together shall be reported shall be extended to the twentieth day from the date the supplementary message is referred to the committee. If the committee has reported the special message, with or without an impoundment resolution, the Council President may refer the matter to the committee for further consideration in light of the supplementary message. If the Council has adopted an impoundment resolution, the supplementary message may serve as the basis for an impoundment resolution on the same original special message.

(c)

Requirement to expend appropriation. Any amount of funds proposed to be impounded by the Mayor as set forth in a special message shall be made available for obligation and shall not be impounded unless the Council adopts an impoundment resolution agreeing to all or part of the proposed impoundment, and only that part agreed to may be subjected to an impoundment action. The Council may take subsequent action, by ordinance or resolution, as appropriate, to extend, reduce or repeal the impoundment resolution, to modify or abandon the programs, activities or projects impounded and to reappropriate or transfer the funds impounded. So long as funds are impounded, the Mayor may not exercise his authority to transfer funds with respect to the impounded funds without the approval of the Council, and the impounded funds shall be considered as a nondepartmental reserve for as long as they remain subject to an impoundment action.

(d)

Cumulative reports on proposed and approved impoundments. The Mayor shall submit a monthly report to the Council, not later than the tenth day of each month during a fiscal year, listing, as of the first day of the month:

(1)

All funds (by appropriation accounts) with respect to which he has transmitted a special and, if any, a supplementary message under paragraphs (b)(1) and (b)(4), which have not yet had any final action taken thereon by the Council; and

(2)

All funds (by appropriation accounts) with respect to which the Council has agreed to impoundment.

This report shall be cumulative during the fiscal year, and the first report during a fiscal year shall list impoundments of funds in appropriations made for a period of time other than a fiscal year that are being carried forward from the previous fiscal year.

(e)

Reports by Council Auditor when impoundment not approved by Council. If the Council Auditor finds that the Mayor, the Budget Officer or any other official or employee of the City has:

(1)

Established or proposes to establish a reserve with funds appropriated for a specific purpose or otherwise has taken or proposes to take any action amounting to an impoundment of funds, which requires the Mayor to transmit a special message under subsection (b) of this Section; or

(2)

Ordered, approved or permitted the establishment of a reserve or the taking of other action amounting to an impoundment;

and that the Mayor has failed to transmit a special message with respect thereto, the Council Auditor shall make a report on such action and any available information concerning it to the Council. The provisions of this Section shall apply with respect to such reserve or other action in the same manner and with the same effect as if such report of the Council Auditor were a special message transmitted by the Mayor under subsection (b) of this Section and, for purposes of this Section, such report shall be considered a special message transmitted under paragraph (b)(1) of this Section.

(f)

Procedure to apply to independent agencies. The procedures and requirements contained in subsections (b), (c), (d) and (e) of this Section shall apply to the independent agencies to the same extent as they apply to the general government. Wherever in these subsections the Mayor is mentioned, the governing body of the independent agency shall be substituted and wherever the City is mentioned, the independent agency shall be substituted.

(Ord. 77-691-638, § 2; Ord. 79-1227-657, § 1; Ord. 83-591-400, § 1)

Note— Former § 126.416.