Transcript COUNCIL DOCUMENTS

COUNCIL DOCUMENTS
Gary Firestone
Assistant City Attorney
City of Bend
INTRODUCTION
• This presentation starts with some basics that
most of you probably know
• The intent is to provide a framework for an
integrated approach to council documents
• I also provide some details that you may want
to consider
• Please feel free to ask questions or comment
at any time
MAIN TYPES OF COUNCIL
DOCUMENTS AND ACTIONS
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Charter
Ordinances
Resolutions
Orders
Motions
CHARTER
• A charter is equivalent to a state constitution
– It provides authority for cities
– Specifies role of council, city manager, possibly other
city officials
• Most charters are “all powers” charters:
– “The city has all powers that the constitutions,
statutes, and common law of the United States and of
the State of Oregon now or hereafter expressly or
impliedly grant or allow the city, as fully as though this
charter specifically enumerated each of those
powers.”
Importance of Charters
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How many votes are needed
Elections
Vacancies
Ordinance requirements
– Ordaining clause
– Number of readings, etc
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Powers of Council
Powers of City Manager
Others
Voter-adopted restrictions
– Taxes
– Urban Renewal
ORDINANCES
• Ordinances are laws
– equivalent to state statutes
• Rules of general applicability
– Everyone within jurisdiction must comply
– Violations normally result in penalties
• Note that because the legislature and legislative counsel’s
office often do not understand local government, some
statutes require ordinances when ordinances would not
otherwise be needed.
• Effective 30 days after passage unless adopted by
emergency
• Charter probably has specific language for the “ordaining”
clause – use it
CODE
• Most cities have codes, which are a collection of
generally applicable ordinances in code format
• Once a code is adopted, ordinances should be drafted
to expressly amend the code if that is their intent
• A code amendment by ordinance (by implication)
amends or repeals the ordinance(s) establishing the
code provision
– This is an application of the general rule that a later
ordinance repeals inconsistent provisions of prior
ordinances without the need for specific repeal language
Code Considerations
• Codes should be internally consistent
• Codes should have a uniform format
• Take advantage of having a code to avoid
repetitive language
– For example, define “City” and “City Manager” only
once and use the defined terms
• Cross-reference as appropriate, but be careful of
amendments that may make the cross-reference
inaccurate
SPECIAL SITUATION – Franchises
• In the absence of authority in the charter or
an ordinance, franchises are normally granted
by ordinance
– They may bind persons other than the franchisee
• If authorized by charter or ordinance,
franchises may be granted by resolution
• Some cities have done away with franchises,
requiring registration or permit and an impact
fee or privilege tax
RESOLUTIONS
• Usually do not create laws binding on general
public
– But may provide implementation of ordinances
and have some effect on general public (e.g. fee
resolutions, franchises)
• Are normally intended to be binding on
Council and staff
• May be used simply to state a Council position
• May be binding on a limited number of parties
ORDERS
• Some cities use orders, but not all do
• Normally used when making quasi-judicial
decisions
– Land use
– Nuisance
– Permits (special events or other)
• Binding on parties
STAND-ALONE MOTIONS
• Used to take specific actions that do not
require an ordinance
– Approve contracts and authorize signature
– Take a formal position on something
– May be used to appoint people to positions
– Approve or accept reports, etc.
OTHER CONSIDERATIONS
• Statutes, charters and ordinances may dictate
use of ordinances or resolutions in particular
circumstances
– Consult with City Attorney if statutes or ordinance
provide detailed specific requirements
• Sometimes it is advisable to use a more formal
document even when not required
EFFECT AND COMPLIANCE
• Charters must always be complied with
– Cannot be waived or avoided except by Charter
Amendment, which requires voter approval
• Ordinances must be complied with
– Cannot be waived unless ordinance expressly allows
waiver
– Can be changed only by ordinance
• Resolutions are binding on staff and council, and
occasionally on public
– Can be superseded by ordinance or amended or
waived by resolution
DRAFTING
• Most cities have established formats and styles
for ordinances and resolutions
• At some point, it may be advisable to update
formats and styles
• There is only one absolute rule (often ignored)
– The ordaining clause in an ordinance should use the
language in the Charter
– If the Charter requires the ordaining clause to say
“The City of A ordains” that is what the ordaining
clause should say – not “The City Council of the City of
A does ordain as set forth below”
PAPER LENGTH
• Some Cities still use 14 inch long (legal) paper
– I think this is an anachronism, but if people want
to use paper that has to be either shrunk or
folded, go right ahead
FORMATTING
• You need to decide whether and how to use
introductory material
– Some cities use introductory material in
ordinances and not resolutions, or vice versa
– I suggest using introductory language in both
resolutions and ordinances
• It provides factual context
INTRODUCTORY LANGUAGE
• Traditionally, people used lengthy run-on sentences,
with repeated use of outdated legal terms, especially
the word “WHEREAS” which for some reason was
always on a new line and in all-caps
– People still refer to “whereas clauses”
• I suggest calling the introductory section “Findings”
(“Recitals” is an acceptable alternative)
• Number/letter the Findings, using complete sentences
in simple English
– Use a different numbering type for Findings than for the
substantive sections. I use capital letters for the findings
and regular (Arabic) numbers for the substantive terms
(after the ordaining clause)
OTHER PARTS
• Resolutions and ordinances should contain a title,
findings, substantive provisions, and closing
materials (dates, signature lines, anything
required by charter, ordinance or local custom)
• Titles should describe the document
– Emergency ordinances need to refer to the emergency
declaration
• Resolutions need to state in a separate section
when they take effect (usually immediately)
MOST IMPORTANT THING
• The most important thing about drafting any
legal document, including ordinances and
resolutions, is to make them comprehensible
– Use simple English
– Avoid legalese/archaic language
– Avoid redundancy
– Avoid passive voice (except intentional use of
passive voice to establish the importance of the
action rather than the actor)
Legalese
• A good resource for avoiding legalese and
suggesting simple English alternatives to
legalese is Eschew, Evade, and/or Eradicate
Legalese by Professor Eugene Volokh of UCLA
Law School
– http://www2.law.ucla.edu/volokh/legalese.htm
– Examples:
• despite the fact that: although
• does not operate to: does not
• said: the
• hereby: (can usually be omitted)
OTHER IMPORTANT CONSIDERATIONS
• Consistency and uniformity
– Any ordinance or resolution should be internally
consistent and consistent with existing ordinances
and resolutions (except to the extent there is an
intentional repeal or amendment)
– Ordinances and resolutions should have a uniform
format
• Numbering
• Indentation
• Defined terms
BAD/GOOD WRITING
• Whereas, the City Council of the City of Apple,
Oregon, having heretofore been duly
presented with an application for a site plan
approval in File Number SP 14-987, and having
duly considered the application materials,
written submissions, and arguments by
applicant, proponents, opponents and neutral
parties, now therefore hereby approves the
application for site plan approval in File
Number SP 14-987.
• The application in SP 14.987 is approved.
Bad Writing 2
• Animal Nuisances
– Whereby the City of Pickle, County of Lincoln, State of
Oregon, heretofore is desirous of safety for its valued
citizens, in full accordance with Oregon statutory law, it is
hereby declared that heretofore the following are
nuisances for which a citizen may be subjected to a civil
penalty, provided that subsequent to violation of said
ordinance, a citation for aforementioned nuisance is issued
forthwith, irrespective of said citizen’s knowledge, or lack
thereof, of the applicable provision of law.
• Animal Nuisances
– The following are Animal Nuisances and subject to a civil
penalty. Ignorance of the law is no defense.
Example
Ordinance No. 1
An Ordinance Delegating All Authority to the City Recorder
Findings
A. City Recorders are superior to other life forms, especially attorneys.
B. The City Recorder is competent to run City government.
Based on these findings, the City of Cities ordains:
1. Municipal Code Section 1.3.5 is amended to read: “All powers granted
to the City Council under Charter Section 23 are delegated to the City
Recorder.”
2. All other provisions of the Municipal Code remain in full force and
effect.
Adopted by roll call vote on April 1, 2015
___________
Mayor
___________
______________
Attest – City Recorder
Approved as to Form -- City Attorney