COUNCIL DOCUMENTS

Gary FirestoneAssistant 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

• 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• How many votes are needed• Elections• Vacancies• Ordinance requirements– Ordaining clause– Number of readings, etc

• 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.

ExampleOrdinance No. 1An Ordinance Delegating All Authority to the City Recorder FindingsA. 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