Loading...
HomeMy WebLinkAboutAmendments to the Bozeman City Charter.pdfPage 1 of 6 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Greg Sullivan, City Attorney Chris Kukulski, City Manager SUBJECT: Discussion on amendments to the Bozeman City Charter including the voter referendum required by Sect. 9.04(b) of the Charter (whether to add two members to the City Commission to be elected at the general election in November, 2011). MEETING DATE: April 12, 2010. AGENDA ITEM TYPE: Action. RECOMMENDATION: Discuss possible amendments to the Bozeman City Charter and direct staff to bring to you an ordinance transmitting ballot language to the Gallatin County Election Administrator that would place before the voters at the general election on November 2, 2010 an amendment to the Bozeman City Charter increasing the number of commissioners from four to six. BACKGROUND: On November 7, 2006, the voters of the City of Bozeman adopted the Bozeman City Charter. The Charter became effective January 1, 2008. The purpose of the Charter was to establish and enumerate the powers of the City, subject to specific restrictions, and prescribe procedures and a specific governmental structure, including, among others, the form of government (commission – manager), the number of commissions (currently four), and the powers and duties of the Mayor. The Charter serves as the City’s “constitution.” The purpose of your discussion on April 12, 2010, is to discuss the voter referendum on increasing the number of commissioners from four to six as required by Section 9.02(b) of the Charter and instruct the City Attorney to develop an ordinance to transmit the ballot language to the Gallatin County Election Administrator. Second, this agenda item will provide you an opportunity to review the Charter and discuss other amendments you may want to possibly transmit to the voters. 14389 Page 2 of 6 I. Section 9.02(b): Referendum to increase the number of Commissioners. The Charter specifically requires the voters to decide at the November 2, 2010 general election whether to increase the number of city commissioners from four to six. Section 9.02(b) of the Charter states: (b) Referendum on Increasing the Commission. At the general election in 2010, the city commission shall place before the voters, with conforming charter amendments, the issue of adding two members to the city commission. Should the voters approve said increase, said commission members shall be elected during the regulation city election in 2011 and seated at the first regular commission meeting in January 2012. The above clearly requires the city commission to place this referendum on the ballot this coming fall. Obviously, the Bozeman City Commission is currently composed of four members with the Mayor also sitting as a voting member. Specifically, Section 2.02(c) of the Charter states, (c) Composition. The commission shall be composed of four members elected by the voters of the city at large in accordance with provisions of Article VI and the mayor. The mayor shall be elected as provided in §2.03(b). Emphasis added. The referendum will ask voters to decide upon changing the language in Section 2.02(c) from four commissioners to six. It is important to note Section 9.01(b) only requires this specific text amendment; by its terms Section 9.01(b) does not require any other provision of the Charter to be amended. II. Process for the Required Referendum. Both Montana state law and the Charter contain important provisions related to amendment of the Charter. Montana state law contains a specific provision regarding the process for amendment to a local government charter: 7-3-103. Amendment of self-government charter or adopted alternative form of government. (1) An amendment to a self-government charter or an adopted alternative form of government may only be made by submitting the question of amendment to the electors of the local government. To be effective, a proposed amendment must receive an affirmative vote of a majority of the electors voting on the question. An amendment approved by the electors becomes effective on the first day of the local government fiscal year following the fiscal year of approval unless the question submitted to the electors provides otherwise. (2) An amendment to a self-government charter or an adopted alternative form of government may be proposed by initiative by petition of 15% of the electors registered at the last general election of the local government or by ordinance enacted by the governing body. The question on amendment of a charter or an adopted alternative form of government must be submitted to the electors at the next regular or primary election. 14490 Page 3 of 6 (3) The local government, by ordinance, may provide procedures for the submission and verification of initiative petitions. Thus, it is clear to adopt an amendment to the Charter only the voters can do so. See also Sect. 8.02, Charter (discussed below). It is also clear a majority of the electors voting on the referendum must vote in favor of the change from four to six commissioners. As for the Charter itself, specific to the process for this referendum, Article VIII of the Charter establishes standards and procedures for amending the Charter. While it could be argued Section 9.02 of the Charter is self executing (meaning no formal action by the Commission would be required) the Charter is silent on this issue. Therefore, to determine the process for transmitting the ballot language to the Election Administrator we need to refer to Section 8.01, which states: Section 8.01 Proposal of Amendment. Amendments to this charter may be framed and proposed: (1) In the manner provided by state law, or (2) By ordinance of the commission containing the full text of the proposed amendment, or (3) By report of a study commission created pursuant to state law, or (4) By the voters of the city. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by the same procedures and requirements prescribed in Article VI for initiative petitions until such time as a final determination as to the sufficiency of the petition is made, except that there shall be no limitation as to subject matter and that the petition must be signed by registered voters of the city equal to that required by state law. In verifying petitions, the percentage of required signatures shall be reduced pursuant to Section 6.03, above. In addition to the above methods for amending the Charter, the Charter also speaks to the process for “elections:” Section 8.02. Election. Upon delivery to the election authorities of the report of a charter commission or delivery by the city clerk of an adopted ordinance or a petition finally determined sufficient, proposing an amendment pursuant to §8.01, or as otherwise provided by state law, the election authorities shall submit the proposed amendment to the voters of the city at an election, pursuant to state law. Emphasis added. As is clear, no one provision of state law or the Charter provides a specific instruction on how to transmit the required referendum language to the Gallatin County Election Administrator. As such, the city must consider the important maxim of interpretations of written law: where there are several provisions or particulars related to an issue or question, such a construction is, if possible, to be adopted as will give effect to all. See Sect. 1-4-101, MCA. 14591 Page 4 of 6 When reading Sect. 7-3-103, MCA in concert with the provision in Section 9.01(b) (requiring a referendum on increasing the number of commissioners) with the provisions in Sect. 8.01(2) (requiring an ordinance when the Commission proposes a specific Charter amendment) and the phrase in Section 8.02 (Election) which states “… [upon] delivery by the city clerk of an adopted ordinance… the election authorities shall submit the proposed amendment to the voters of the city… ” it is the City Attorney’s opinion the Commission should adopt an ordinance to submit the required referendum to the voters. 1 The ordinance will contain the specific ballot language for an amendment to Section 2.02(c) of the Charter, as discussed above. The timing of the submittal of the ballot language to the Gallatin County Election Department is also critical. According to the Gallatin County Clerk and Recorder/Elections Administrator Charlotte Mills the deadline for transmittal of ballot language to the Gallatin County Elections Department is August 9, 2010. Clerk and Recorder Mills requests the City provide the specific ballot language to her as early as possible after the primary elections are complete in early June. As such, I recommend the Commission establish a preliminary target date of the week of June 14, 2010 for transmittal of the ballot language. Prior to transmittal to the Gallatin County Elections Administrator, the ordinance adopting the proposed language for the ballot must be effective. As you know, state law requires provisional and final adoption of an ordinance to be separated by at least 12 days. After final adoption, the ordinance is not effective until 30 more days have elapsed. Thus, to meet the tentative target week of June 14th, first reading of the ordinance will need to occur on April 26, 2010 with final adoption to be had on May 10th. The effective date of the ordinance would then be June 9th. III. History of the Required Referendum. The citizens of the city of Bozeman voted in June 2004 to create a local government study commission. This vote was based on the mandate contained in Article XI, Sect. 9(2) of the Montanan Constitution, that the voters of a local government shall periodically (every 10 years) determine whether to undertake a review of the local government. That provision states: Section 9. Voter review of local government. (1) The legislature shall, within four years of the ratification of this constitution, provide procedures requiring each local government unit or combination of units to review its structure and submit one alternative form of government to the qualified electors at the next general or special election. (2) The legislature shall require an election in each local government to determine whether a local government will undertake a review procedure once every ten years after the first election. Approval by a majority of those voting in the decennial general election on the question of undertaking a local government review is necessary to mandate the election of a local government study commission. Study 1 Historically, ballot language has been submitted via Resolution. E.g. both the June 2004 ballot language on the local government study commission and the November 2006 language on the charter itself were transmitted by Resolution. Section 8.01 of the Charter appears to have amended that historic process. 14692 Page 5 of 6 commission members shall be elected during any regularly scheduled election in local governments mandating their election. Emphasis added. The Montana Legislature implemented this constitutional mandate through adoption of specific procedures for a local government study commission located at sections 7-3-171 et seq., MCA. After electing to create the study commission, the voters of the city of Bozeman then elected study commissioners by vote in November 2004. The study commission subsequently spent the following two years developing a recommendation for a “charter” form of government and the draft of the Charter. As stated above, the voters adopted the Charter proposed by the study commission on November 7, 2008. Several provisions of the City of Bozeman Local Government Study Commission Final Report (August 8, 2006) (the “Final Report”) (attached)2 contain information on the purpose behind the required referendum. Specifically, Sect. II-B of the Final Report provides a description in the section titled “Key Provisions of the [Charter] Proposal” as to why the study commission included Sect. 9.01(b). This section of the Final Report states: 3. Vote on Increased Representation. The charter provides that at the general election in 2010, the City Commission shall place on the ballot the question of whether two members should be added to the City Commission, bringing its membership to seven. If approved, four Commissioners will be elected in 2011 and will be seated in January 2012. This provision is in anticipation of the city's population reaching 40,000 by 2010 and that seven Commissioners may better represent the increased population. Emphasis added. Final Report, pg. II-2. The U.S. Census Bureau’s Population Estimate Program estimate in July 2009 estimates the city’s population as of 2008 to be 39,442. Exhibit F (“Charter Commentary”) of the Final Report also includes a statement on the purpose behind the referendum. This commentary includes “specific recommendations” on key issues that were before the Study Commission. Important in those recommendations is a discussion on methods to “improve representation on the city commission.” Final Report, pg. IV,-23 - 24. The Study Commission worked with a citizen focus group and other stakeholders to examine the efficacy of commissioners elected “at- large” versus electing commissioners based on wards or districts. The Study Commission eventually rejected the establishment of wards or districts at the time of the development of the Charter when it stated, “… it is premature for Bozeman to move to a pure ward system or mixed system at this time.” Id. The Study Commission then provided the following statement regarding the increase in the number of city commissioners: “We conclude that 2 The Final Report contains the complete text of the Charter. See Final Report at pg. IV-4 (Exhibit B). 14793 Page 6 of 6 with the prospect of Bozeman reaching a population of 40,000 by the year 2010, that the voters should consider increasing the size of the commission at that time.” Id. It is important for the City Commission to understand the next time the voters will be asked whether to create a study commission will be in 2014. FISCAL EFFECTS: As with other elections, the Gallatin County Election Administrator will require the City to pay for costs directly associated with this ballot question. At this time, we are not certain as to the precise costs. We will provide more information on these costs will be provided with the first reading of the ordinance adopting the specific ballot language. ALTERNATIVES: The Commission may consider directing staff to develop other amendments to the Charter to be presented to the voters this coming fall. Attachments: Bozeman Local Government Study Commission Final Report, 8/8/06 Report compiled on: April 7, 2010 14894 14995 15096 15197 15298 15399 154100 155 101 156 102 157103 158104 159105 160106 161107 162108 163109 164110 165111 166112 167113 168114 169115 170116 171117 172118 173119 174120 175121 176122 177123 178124 179125 180126 181127 182128 183129 184130 185131 186132 187133 188134 189135 190136 191137 192138 193139 194140