Citizens to be Heard - ORDER VS. ORDINANCE VS. REFERENDUM
The following was read during Citizens to be Heard at the City Council meeting on April 26, 2017. During this meeting several citizens stood up to speak about concerns with the toll road project. As of June 28th, this citizen has still not received a response from the city.
Members of City Council & Mayor,
I’ve never had the need or desire to read the city charter. To be honest, I have enough federal, state and local regulations to read through on a daily basis that even thinking about reading more legalese gives me a headache. However, after the vote on the development agreement my wife made sure I became very familiar with the charter.
It’s no secret that many citizens do not like the plan for the toll road. It has nothing to do with an inability to accept change. This plan, with this company and this development agreement have red flags all over the place. Citizens decided that instead of sitting back and watching the city crash and burn they would do what they could to get this project to a public vote. The city charter, section 6.14 states that Qualified voters of the City may require that any ordinance or resolution, with the exception of ordinances or resolutions appropriating money, levying taxes, fixing rates and changes for utilities, and ordinances authorizing the issuance of bonds that have been authorized by a vote of the people, passed by the City Council be submitted to the voters of the City for approval or disapproval, by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication….. it shall become the duty of the City Council, within two (2) regularly scheduled City Council meetings after the receipt thereof, to reconsider such ordinance or resolution and, if the City Council does not entirely repeal the same, shall submit it to popular vote as provided in Section 6.13 of this Charter.
Because this petition had a 30 day timeline it was decided that this would be the first step in the plan. Before they started the petition they were informed by city officials that after speaking to the city attorney they believed the petition would not be valid. According to the city attorney, the development agreement was passed by an order, not a resolution or ordinance, and is therefore not subject to a referendum. The city charter Section 3.13.1 explains that “The City Council shall legislate by ordinance, resolution, or order.”
Unfortunately the charter only defines what an ordinance is. Resolutions are well defined in case law but what is not defined in case law nor in the charter is how a city legislates by order.. Based on feedback from additional legal counsel and research, the most common and basic actions of a local government may be taken through motions or orders entered in the minutes of the organizations. These decisions are made with very little formality, but always include the votes of those present. Many times those votes may even be taken by voice vote, or a simple call for yeas and nays. Frequently, organizations use these common methods to approve the hiring of a new staff member or approving minor purchases.
For city governments that have mayors who possess the power to veto actions, orders, motions and resolutions are considered to be administrative, simply giving direction to the agency. Orders may be used to call a special election, and resolutions may be used to direct employees to carry out certain actions. Unlike ordinances, orders and resolutions are not considered law but they instead direct the everyday business of the local community.
Based on the rest of the city charter and city policies, orders have only been used to order elections, order public hearings, legal orders, or orders in response to emergency situations. The development agreement does not fall under any of these categories. Additionally, the agenda, minutes and video for the February 28th meeting do not explicitly state that the adoption of the development agreement was approved by order even though the amendment was.
With this information in mind the petition should be deemed as valid and the matter of the toll road should be taken to the public for a vote.