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Home My WebLink AboutCharter SG Powers Presentation 3 6 25 FINALThursday March 6 2025 Bozeman Charter and Self-Government Powers •Montana’s 1972 Constitution •Statutory Framework for Charters •Self-Government Powers •Bozeman’s Charter Montana’s Constitution •Art. XI Sect. 1: Definition •Art. XI Sect. 3: Forms of Government •Art. XI Sect. 4: General Powers •Art. XI Sect. 5: Self-Government Charters o 5(3): superiority to statutory provisions Montana’s Constitution •Art. XI Sect. 6 Self Government Powers A local government unit adopting a self-government charter may exercise any power not prohibited by this constitution, law, or charter. This grant of self-government powers may be extended to other local government units through optional forms of government provided for in section 3. Montana’s Constitution •Art. XI Sect. 7: Intergovernmental Cooperation •Art. XI Sect. 8: Initiative and Referendum •Art. XI Sect. 9: Voter Review General Principles •Law presumed constitutional unless overturned = city complies •Limited law on charter but ever-growing body of law on self-government powers •Law establishes framework – not every issue directly addressed by statutes •Law is dynamic: case law and statutes continuing evolving Statutory Framework for Charters •Title 7, Chpt. 3, Part 7 (Charter Government) •7-3-702, MCA: charter form possess self-government powers •7-3-703, MCA: Must have a charter which is a “written document defining the powers, structures, privileges, rights, and duties of the unit of local government and limitations thereon.” Statutory Framework for Charters •7-3-703(2), MCA: The enumeration of powers in a charter shall not be construed as a limitation or prohibition on the residual or self-governing powers granted by the constitution. Statutory Framework for Charters •7-3-704, MCA: Must have elected legislative body or a legislative body of all electors o If elected, must specify the number, term of office, whether partisan or non-partisan, grounds for removal, and method of filling vacancies o At large, by districts (must reside), or two combinations of at large and districts Statutory Framework for Charters •7-3-705, MCA: Charter must specify chief administrative and executive officer, method of selection, term of office (pleasure of selecting authority), grounds for removal, and powers and duties o Can allocate duties among two or more officials or by a member of the legislative body o Must have officers, departments, board, commissions, and agencies established in the charter, by ordinance, or required by state law Statutory Framework for Charters •7-3-706, MCA: establish an effective date with the ability to have “temporary partial effectiveness consistent with an orderly transition of government” •7-3-707, MCA: other legislative, administrative and organizational structures o Include prohibitions on the exercise of powers o Provisions necessary to permit orderly transition to new form o Provisions not construed to prevent the inclusion of additional provisions in charters Self-Government Powers •City adopted in •Shared Powers Concept: o local govt’ not free from state control but changes the basic assumption of relationship o Locality maintains all powers Legislature does not prohibit (or Constitution) o All doubt in favor of power resolved in favor of power o Preemption = express prohibition, direct inconsistency or state “occupy the field” o Title 7, Chpt 1, Part 41 etc (municipality provisions) Self-Government Powers Prior to the 1972 Montana Constitution and during the period that the 1889 Montana Constitution controlled, cities could exercise only such powers as were expressly granted to them by the State, together with such implied powers as were necessary for the execution of the powers expressly granted. Any fair, reasonable or substantial doubt regarding the existence of the power was resolved against the municipality and in favor of the State. Billings Firefighters v. City of Billings (1985) Self-Government Powers The 1972 Montana Constitution, in addition to providing for the continuance of the ... town governmental forms already existing, opened to local governmental units new vistas of shared sovereignty with the state through the adoption of self-government charters. Whereas the 1972 Montana Constitution continues to provide that existing local governmental forms have such powers as are expressly provided or implied by law (to be liberally construed), a local government unit may act under a self-government charter with its powers uninhibited except by express prohibitions of the constitution, law, or charter,Swart v. Molitor (1981). Self-Government Powers •Title 7, Chpt. 1, Part 1 (Nature/Prohibitions) •Shared Powers Concept: local govt’ not free from state control but changes the basic relationship •Statutory authority and prohibitions o What is self-government powers? (7-1-101) o Services and functions: may provide any service and function not prohibited by constitution, state law, or charter (7-1-101 and 102) o General powers limitations not applicable (7-1-103) o Unless otherwise specifically provided, the powers of self-government vested in legislative body and may be exercised by ordinance or resolution (7-1-104) Self-Government Powers o Attorney General 3-Part test: •Consult charter and consider constitutional ramifications •Is exercise prohibited under statutes addressing self-government powers? •Inconsistent with state law under 7-1-113? Self-Government Powers •Statutory authority and prohibitions o State law applicable until superseded (7-1-105) o Powers and authority liberally construed; reasonable doubt resolved in favor of power or authority (7-1-106) o Denied powers (30) (7-1-111) o Powers requiring delegation (7-1-112) o Consistency with state law required (test) (7-1-113) (preemption must be express) Self-Government Powers •Statutory authority and prohibitions o Consistency with state law required (test) (7-1-113) (preemption must be express) •Can’t exercise power inconsistent with state regulation in area affirmatively subject by law to state regulation or control •Inconsistent if it establishes standards which are lower or less stringent than state law •Area is affirmatively subject to state control if state agency is directed to establish rules governing the matter or if enforcement of standards established by statute is vested in state agency Self-Government Powers •Statutory authority and prohibitions o Mandatory provisions (7-1-114) o Can’t sue over firearms/ammunition (7-1-115) o Can’t regulate carbon (7-1-116) o Cannot impede connection to energy utilities (7-1-117) o Plastics (7-1-121) Self-Government Powers o Dillon’s Rule no longer applicable (D&F Sanitation) o Examples: •city business license based on gross revenue and street franchise fee  unconstitutional tax (112) but system development fees ok (113 and 115) •Misdemeanor for failing to refuse breath test not preempted (113) •Regulate clean indoor air versus gambling •Billings FF: o Ordinance cannot supersede statutory requirements for fire departments o Cities must have fire departments (114(1)(f)) but organization and management up to city Self-Government Powers o Harlen: city cannot use self-government powers to impose license fee on attorneys (7-1-111(11) o Fee for review of CoS not prohibited o Prohibition on itinerant vendors not in conflict with state license o Tiered resort tax ok o City can owner natural gas/electric utility including outside of jurisdiction o Require contract with City for private garbage haulers o Require bear-proof garbage cans in certain locations o Lien on delinquent solid waste fees Self-Government Powers o Attorney General 3-Part test: •Consult charter and consider constitutional ramifications •Is exercise prohibited under statutes addressing self-government powers? •Inconsistent with state law under 7-1-113? Self-Government Powers o Bozeman examples (not exhaustive): •UDC •Impact Fees •Smoking in Bars •Landscape and irrigation Standards & Outdoor Water Use •Non-Discrimination Ordinance •Wetland Regulation •Contracting Policies •Public Art Ordinance •Workforce/Affordable Housing (IZ) •General grant program •Employee benefits •Property sale ordinance •Indigenous Peoples’ Day and Juneteenth •Trapping on city lands •Construction Noise •Short Term Rentals •Speed limits •Medical Marijuana •Compost and Recycling Bozeman Charter o Adopted by voters in 2006; effective 1/1/08 o 5,079 in favor of existing; 5,769 for Charter o Adopts self-government powers •Sec. 1.01: “all powers possible [] as fully and completely as though they were specifically enumerated in this Charter” o Recognizes charter provisions superior to statutory provisions o All power vested in Commission unless otherwise provided by law or Charter o Establishes Commission as legislative body Bozeman Charter o Commissioners and Mayor elected at large o Mayor Powers and role of Deputy Mayor o Compensation o Prohibitions •Appointment and Removal •Interference with administration Bozeman Charter o Vacancies/Forfeiture o Judge of Qualifications o Investigations o Rules of Procedures (Chpt. 2, Art. 2, BMC) o Actions Requiring Ordinance o City Manager Powers and Duties •Executive and administrative duties o Departments/Personnel System o Legal Officer Bozeman Charter o City Manager •Appointment & Removal •Acting •Powers and Duties o Executive and administrative duties o Departments/Offices/Agencies •Direction by City Manager •Personnel System •Legal Officer Bozeman Charter o Land Use and Environmental Planning o Municipal Court o Neighborhoods (Chpt. 2, Art. 5, Div. 7) o Boards o Financial Management •Budget, CIP, adjusting appropriations, audit o Elections Bozeman Charter o General Provisions •Conflicts & Ethics (Ethics Program) •Campaign Finance •Charter Amendment o Transition •Referendum on increasing Commission (2010) defeated 4589 to 5879 Questions & Discussion