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City Ordinances, Resolutions & Motions: The Means By Which Cities Take Action Presented By: Bruce Bergman General Counsel Iowa League Of Cities.

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Presentation on theme: "City Ordinances, Resolutions & Motions: The Means By Which Cities Take Action Presented By: Bruce Bergman General Counsel Iowa League Of Cities."— Presentation transcript:

1 City Ordinances, Resolutions & Motions: The Means By Which Cities Take Action Presented By: Bruce Bergman General Counsel Iowa League Of Cities

2 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Ordinance A city law of general and permanent nature. Iowa Code 362.2(16). Ordinances require a favorable majority vote by all members of the council for passage. Iowa Code Effective on publication or subsequent effective date in the ordinance, subject to the mayor’s right to veto or take no action 380.6

3 3 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Motion A council statement of policy or order for action. Iowa Code §362.2 (21). Motions are typically presented orally for council consideration. Motions require a favorable majority vote by a quorum of the council for passage and the vote must be recorded. Iowa Code § Effective upon passage by the council. Iowa Code §

4 4 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Resolution A council statement of policy or order for action. Iowa Code § (21). Resolutions are presented in written form for council consideration. Resolutions require a favorable majority vote by all members of the council for passage and the vote must be recorded. Iowa Code § Written resolutions are required by statute for some council actions. Effective upon being signed by the mayor; subject to the mayor’s right to veto or take no action. Iowa Code §

5 5 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Measure Section (13) "Measure" means an ordinance, amendment, resolution, or motion. Section Each council member's vote on a measure must be recorded.

6 6 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Quorum A majority of all council members. Iowa Code § (1.) A majority of all members. Iowa Code §

7 7 TECHNICAL TERMS: DEFINITIONS AND REQUIREMENTS Quorum When you have a vacancy on a city council, the whole number entitled to membership must be counted to determine the quorum requirement, not merely the remaining members. Iowa Code § 380.4

8 8 VOTES NEEDED FOR PASSAGE Council Voting Scenario #1 - Ordinance 5 member council – 3 of 5 are present – there is a quorum. Vote is 2 in favor – 1 against. What is the outcome ?

9 9 VOTES NEEDED FOR PASSAGE Section Majority requirement -- tie vote -- conflicts of interest. Passage of an ordinance, amendment, or resolution requires a majority vote of all of the members of the council, except when the mayor may vote to break a tie vote in a city with an even number of council members, as provided in section Passage of a motion requires a majority vote of a quorum of the council.

10 10 VOTES NEEDED FOR PASSAGE Council Voting Scenario #2 - Ordinance 5 member council – all 5 are present. Vote is 2 in favor, 1 against and 2 abstain stating that they have a conflict of interest. What is the outcome ?

11 11 VOTES NEEDED FOR PASSAGE Section Majority requirement -- tie vote -- conflicts of interest. As used in this chapter, "all of the members of the council" refers to all of the seats of the council including a vacant seat and a seat where the member is absent, but does not include a seat where the council member declines to vote by reason of a conflict of interest.

12 12 VOTES NEEDED FOR PASSAGE Council Voting Scenario #2 - Ordinance 5 member council – all 5 are present. Vote is 2 in favor, 1 against and 2 abstain stating that they have a conflict of interest. Council member voting against ordinance accuses one of the abstaining members of not really having a conflict of interest. Even if true, would that change the outcome ?

13 13 VOTES NEEDED FOR PASSAGE Section Majority requirement -- tie vote -- conflicts of interest. A measure voted upon is not invalid by reason of a conflict of interest in a member of the council, unless the vote of the member of the council was decisive to passage of the measure. The vote must be computed on the basis of the number of members not disqualified by reason of conflict of interest…. For the purpose of this section, the statement of a council member that the council member declines to vote by reason of conflict of interest is conclusive and must be entered of record.

14 14 VOTES NEEDED FOR PASSAGE Council Voting Scenario #2 - Ordinance 5 member council – all 5 are present. Vote is 2 in favor, 1 against and 2 abstain - WITHOUT STATING that they have a conflict of interest. What is the outcome ?

15 15 VOTES NEEDED FOR PASSAGE Council Voting Scenario #3 – Resolution to sell vacated alley to ABC Company. 5 member council – 1 member is absent. Vote is 3 in favor - 1 against. One of the members voting in favor is President of ABC Company. City Attorney determines it is a conflict of interest for that member to vote on the resolution. What is the outcome ?

16 16 VOTES NEEDED FOR PASSAGE Section Majority requirement -- tie vote -- conflicts of interest. A measure voted upon is not invalid by reason of a conflict of interest in a member of the council, unless the vote of the member of the council was decisive to passage of the measure. The vote must be computed on the basis of the number of members not disqualified by reason of conflict of interest…. For the purpose of this section, the statement of a council member that the council member declines to vote by reason of conflict of interest is conclusive and must be entered of record.

17 17 VOTES NEEDED FOR PASSAGE Council Voting Scenario #4 – Motion directing Fire Chief to investigate purchase of fire truck. 5 member council – 2 members are absent. Vote is 2 in favor - 1 against. What is the outcome ?

18 18 VOTES NEEDED FOR PASSAGE Section Majority requirement -- tie vote -- conflicts of interest. Passage of an ordinance, amendment, or resolution requires a majority vote of all of the members of the council, except when the mayor may vote to break a tie vote in a city with an even number of council members, as provided in section Passage of a motion requires a majority vote of a quorum of the council.

19 19 EFFECTIVE DATE Code Section 380.6, a. An ordinance or amendment signed by the mayor becomes effective when the ordinance or a summary of the ordinance is published, unless a subsequent effective date is provided within the ordinance or amendment. b. A resolution signed by the mayor becomes effective immediately upon signing. c. A motion becomes effective immediately upon passage of the motion by the council.

20 20 THE MAYOR’S POWERS WITH RESPECT TO LEGISLATION Section Mayor. The mayor may sign, veto, or take no action on an ordinance, amendment, or resolution passed by the council. However, the mayor may not veto an ordinance, amendment, or resolution if the mayor was entitled to vote on such measure at the time of passage.

21 21 THE MAYOR’S POWERS WITH RESPECT TO LEGISLATION Section Mayor-council form. The mayor is not a member of the council and shall not vote as a member of the council Section Commission form. Section Council-manager-at-large form. Section Council-manager-ward form. The mayor is a member of the council and may vote on all matters before the council.

22 22 THE MAYOR’S VETO POWER Section Effective Date. The mayor can veto an ordinance, ordinance amendment or resolution within 14 days of its passage. Mayor must explain veto in written message to council. The council can override a veto (pass the measure again) by a 2/3 vote of all council members if it acts within 30 days of the veto.

23 23 THE MAYOR’S VETO POWER Section Effective Date. If the council repasses a resolution, it becomes effective immediately upon repassage. If the council repasses an ordinance or amendment, it becomes law when the ordinance or a summary is published, unless the ordinance provides for a subsequent effective date.

24 24 THE MAYOR’S POWER TO TAKE NO ACTION Section Effective Date. If the mayor takes no action on a resolution, it becomes effective 14 days after its passage. If the mayor takes no action on an ordinance or amendment, it becomes law when the ordinance or a summary is published, but not sooner than 14 days after the date of passage.

25 25 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Resolution required by statute for: approval of subdivision plats per §354.8; approval of the sale of city property per §364.7; approval of contacts to construct public improvements per §26.10; expenditure in excess of $100,000 on a public improvement project and for acceptance of a public improvement or facility upon its completion per §380.4; or adoption or amendment of the annual budget per §§384.16(5) and (4).

26 26 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Practical Considerations: Use a motion for: Simple direction to a city officer or employee, e.g. “move to call a special council meeting for 7:00 p.m. on July 24th and to direct the clerk to publish notice of the meeting” ; or Direction to take action of a one-time or transitory nature, e.g. making an appointment to a city board or commission, or approving a request to put banners across a city street.

27 27 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Practical Considerations: Use a resolution to: Change a long-standing practice or policy where it may be important to memorialize exactly what the new practice or policy will be, or for more important issues, e.g., approving payment of a claim, setting date of a public hearing, or approving an agreement.

28 28 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Practical Considerations: Use an ordinance to: Adopt a practice or policy that must have the force of law and be enforceable by judicial means, e.g. requirements for placing garbage for collection by the city at a certain time and in a certain manner, for the payment of fees for the city’s provision of that service and for placing liens on property where the bill is not paid.

29 29 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Housekeeping Considerations: If the action to be taken is something that may need to be documented in the future, a resolution is generally preferred. Resolutions typically have descriptive headings which are included in the council agenda and which are indexed, making it easier to track actions taken by resolution. Some cities compile resolutions in a book of resolutions Motions are included in the minutes of the meeting, but are typically not indexed, making it difficult to track actions taken by motion.

30 30 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Tactical Considerations: A resolution requires a majority vote of all council members, perhaps making it more difficult to initially pass - but more difficult to rescind or overturn. A resolution is subject to mayoral veto. Once passed, a resolution provides policy stability. A motion requires only a majority of a quorum, making it easier to pass when quick action is needed. Although a motion is not subject to mayoral veto, it can be rescinded or overturned more easily than a resolution by subsequent council vote.

31 31 WHAT TO USE – MOTION, RESOLUTION OR ORDINANCE ? Tactical Considerations: A Tactic that WON’T Work. The terms of a resolution, or of an agreement adopted by resolution, cannot supersede the terms of an ordinance. “…because the city council's resolution approving the employment agreement constitutes an illegal attempt to amend, via resolution, the employment terms established by ordinance, the employment agreement is invalid and unenforceable as a matter of law. Bass v. City of Huxley, 728 NW2d 852 (2007).

32 32 COUNCIL RULES OF PROCEDURE Cities often adopt procedural rules (special local rules and/or Roberts Rules of Order) to establish how meetings are run and to put some limitations on consideration and reconsideration of measures. The Iowa Supreme Court has held that failure by the city council to conform to a procedural rule of the council, or parliamentary procedure, will not invalidate a vote of the council that otherwise conforms to the Iowa statutes.

33 33 WHYFORE WHEREASES? Whereas clauses are intended to - 1. Identify each step in the legal process which must be followed for a particular action and give a brief “history” of actions previously taken by the city or by the council with respect to that matter; 2. Reference subsequent actions that the city will have to take or will be expected to take with respect to that matter; and 3. Give background information and history (who, what, where, why, when and how) associated with the action proposed in the resolution or ordinance.

34 34 WHYFORE WHEREASES? Although Whereas clauses are NOT a legal requirement, they do serve to accomplish the following: Assure the parties who rely on that action that it has been done in compliance with the law; Assure the council that it is proceeding legally and in an orderly manner; Avoid wasting time at council meeting re-hashing the procedural history of a matter at each step in the process; Assist future efforts of city staff and citizens to research the background of a matter; and Creates an historical record for the public and posterity.

35 35 THE ANATOMY OF AN ORDINANCE 1. A TITLE THAT DESCRIBES THE SUBJECT: (REQUIRED - Iowa Code § ) An ordinance to amend the municipal code of the City of _______, Iowa, by repealing Subsection I7.30 (3) and re-adopting the same as revised for the purpose of vesting authority in every police officer to order dispersal of a nuisance party; repealing any and all ordinances or parts of ordinances in conflict to the extent of such conflict; providing a penalty; and establishing an effective date.

36 36 THE ANATOMY OF AN ORDINANCE 2. SPECIFY THE CODE SECTION, SUBSECTION OR PARAGRAPH AMENDED: (REQUIRED - Iowa Code § ) Section One. The Municipal Code of the City of _____, Iowa shall be and the same is hereby AMENDED BY REPEALING Section 17.30, subsection 3 and re- enacting the same to state as follows:

37 37 THE ANATOMY OF AN ORDINANCE 3. PENALTY PROVISION: (OPTIONAL - Iowa Code §§ 364.3(2) and ) Alternative No. 1 Section Two. Violation of this ordinance shall be a municipal infraction punishable by a civil penalty not to exceed $750 for a person's first violation thereof and $1000 for each repeat violation. Alternative No. 2 Section Two. Any person who fails or refuses to obey and abide by such order shall be guilty of a misdemeanor or a municipal infraction, punishable as provided in section 1.15.

38 38 THE ANATOMY OF AN ORDINANCE 4. STATEMENT OF EFFECTIVE DATE: (REQUIRED - Iowa Code § 380.1(1)(a) ) Alternative No. 1 Section Four. This ordinance shall be in full force and effect from and after its passage and publication as required by law. Alternative No. 2 Section Four. This ordinance shall take effect on January 1, 20 __.

39 39 THE ANATOMY OF AN ORDINANCE 5. MAYOR’S SIGNATURE BLOCK (REQUIRED - Iowa Code §§ and 380.6(1)(a) ) Passed this ___ day of ________________, 20__. By: ____________________, Mayor

40 40 THE ANATOMY OF AN ORDINANCE 6. ATTESTATION / CERTIFICATION BY CITY CLERK (REQUIRED - Iowa Code § 380.7(4)) ATTEST: I, __________________________, City Clerk of the City of _________ __________________, hereby certify that that the above and foregoing is a true copy of an ordinance, passed by the City Council of said City at a meeting held on ____________, 20__ and published as provided by law in the _______________ on ____________, 20__. __________________________, City Clerk

41 41 THE ANATOMY OF A RESOLUTION 1. A TITLE THAT DESCRIBES THE SUBJECT – (OPTIONAL) 2. A WRITTEN COUNCIL STATEMENT OF POLICY OR ORDER FOR ACTION. 3. SIGNATURE BLOCK FOR THE MAYOR – (REQUIRED - Iowa Code §§ and 380.6(1)(b)) Passed this ___ day of ________________, 20__. By: ___________________________, Mayor

42 42 THE ANATOMY OF A RESOLUTION 4. ATTESTATION / CERTIFICATION BY CITY CLERK (REQUIRED - Iowa Code § 380.7(4)) ATTEST: I, __________________________, City Clerk of the City of ____________________________, hereby certify that at a meeting of the City Council of said City, held on the above date, among other proceedings the above was adopted. __________________________, City Clerk


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