HomeMy WebLinkAbout2004-0317 Study Session PacketCITY OF
-ASHLAND
CITY COUNCIL STUDY SESSION
AGENDA
Wednesday, March 17, 2004 at 12:00 p.m.
Council Chambers, 1175 East Main Street
1. The Charter Review.
In compliance with the Americans with Disabilities .4ct, if you need special assistance to participate in
this meeting, please contact the City .4dministrator's office at (541) 488-6002 (777 phone number
1-800-735-2900). Notification 72 hours prior to the meeting will enable the City to make reasonable
arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104,413.4 Title 1).
CITY OF
-ASHLAND
Council Communication
Title:
Dept:
Date:
Submitted By:
Approved By:
Synopsis:
Chatter Review and Update
Administration
March 17, 2004 Council Study Session9~
Ann Seltzer, Management Analyst/~ L
Gino Grimaldi, City Administrator'~
At the regular council meeting on February 17, council directed staff to schedule a study session to
discuss a charter review. Council requested that a representative from the League of Oregon Cities
(LOC) with experience in charter review and updates be invited to attend the study session and make a
presentation.
Sandra Atp, is a codification consultant with the American Legal Publishing Corporation. The LOC has
entered into a partnership with American Legal Publishing Company to offer cities assistance in
revising, amending and compiling their ordinances, or to codify them into a published code in book
form. This service also includes a legal review for compliance of ordinances with state/federal laws and
review of the city's charter.
Sandm will address why cities and counties review and update their charters, the make-up of charter
review committees, the various scopes of a charter review and update and how a consultant might assist
in the process.
Recommendation:
' This session is for informational and discussion purposes.
Should council decide to move forward with a charter review, council should direct staff to draft a
document defining the charge and make up ofthe committee and submit to council for final approval.
Fiscal Impact:
There is no fiscal impact at this time.
Background:
The current Charter of the city of Ashland was reviewed and amended in 1970. Voters approved the
proposed amendments in 1972.
Cities and counties update their charters for a variety of reasons: to clarify lines of authority, to clarify
confusing language, to improve the efficiency and cost effectiveness of government, to eliminate
obsolete, conflicting and ambiguous provisions. Some charters specify that the document is reviewed on
a regular timeline, other charters do not; some specify the make up of a charter review committee others
do not. Because the needs of communities change, and State and Federal laws change, it is important
that a charter be updated periodically and reflect the current times. Sometimes communities choose to
adopt an entirely new charter and include elements of the original.
A city charter is viewed as a city constitution. For this reason, city powers are generally stated in broad,
general comprehensive terms. The charter should deal only with the basic, broad fundamentals of city
government. It should be as concise as possible and adaptable to changing conditions to avoid the need
for frequent amendment.
The scope of a charter review can range from a full review of the existing*charter by examining it line by
line to a section specific review. Some cities opt to start with a sample or model charter that already
reflects the current times and is legally in compliance and then add sections to it from their existing
charter. Other cities opt to edit from the existing charter and add sections from a sargple charter.
The only community similar in size to Ashland that has recently undertaken a major charter review
process in Oregon is Eugene. Information from the League of Oregon Cities (LOC) indicates that only a
few cities in Oregon in the recent past have undertaken major charter review processes, Rogue River,
Sisters and Eugene.
Multnomah County is currently in the charter review process. The Benton County Charter requires that
the charter be reviewed and updated every two years and has standing Charter Review Committee.
A charter can only be amended by a vote of the people.' Generally charter amendments are'referred to a
vote by the Council but amendments can also be proposed by initiative petition.
There are a number of steps involved with updating a charter and a number of tools available to assist
those involved in the process.
Should the council decide to proceed, the following basic steps should occur.
1) A motion and vote of the council to create a citizen committee to undertake a review of the Ashland
City Charter.
2) Define the charge and make up of the committee.
3) Appoint a Charter Review Committee of no more than seven or ten people. It is critical that this
committee is viewed by the community as impartial, unbiased and free of any perceived political gain.
As such a Charter Review Committee generally does not include elected officials, though occasionally
persons who previously served in an elected capacity sit on the committee though only in a citizen role
not as a political figure. The committee is responsible for the content of the charter. The committee
would present recommended changes to the council.
4) Hire a consultant with experience in charter drafting, legal review and evaluation. Evaluate the
existing charter to determine needed changes, deletions or additions. The consultant drafts changes to
the charter based on input from the Charter Review Committee and eventually drafts the ballot title. This
person is responsible for the form and language of the charter not the content of the document.
5) Council reviews and deliberates on recommended amendment(s) from the Charter Review Committee
and then decides what should be placed on the ballot.
Timeline: The item itself is not time-sensitive. However, a revision of the charter must be placed before
the voters of the City of Ashland and therefore there is a need at some point to be cognizant of the
election time lines.
'~ar II 0~'09:3Ia sandra 1. arp 503-763-1972 p.I
Post-Ir Fax Note 7671
Ce,tl3epl. "
.Biography
Sandra L. Arp
Codif~ation Consultant
Sandra is a graduate of the University of Oregon, B./L 1972, and the University of
Oregon School of Law, 1976. She has been a member of the Oregon State Bar since
1976. She was a staff attorney for the Bureau of Governmental Research and Service at
the University of Oregon fi~om 1978 to 1988. She was Legal Counsel for the League of
Oregon Cities l~om 1988 to 2000. She is now working with American Legal Publishing
Co.ofCincinnati as a Codification Consultant Providing certain ordinance codification
services and charter reviews.
Sandra has authored and co-authored numerous publications on local government
subjects, including land use planning, municipal courts, public meetings, public records,
home rule, councilor duties, and council procedures. She is a Sequent speaker at local
government workshops and seminars.
Possible Timeline for November General Election
Charter Review/Update
March 17 Study Session
If council agrees to a charter review and directs staff to draft purpose and charge of
committee...
April 6
Council approves purpose and charge of charter review committee
April 7
Advertise for members/contact possible consUltants (Sandra Arp, Tom Sponsler, Tim
Sereombe)
April 14
Review applications
Contact applicants
Hire consultant
April 20
Council approves committee appointments
Council approves consultant
May
4 meetings
June
4 meetings
July
4 meetings
July 20
Council reviews draft measures
August 3
Public Hearing
August 17
Council approves final draft of proposed measures
September 2
All materials due to Jackson County,
Ballot Titles, Statement etc.
November 2 General Election
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MODEL CHARTER
FOR OREGON CITIES
Prepared by:
Thomas Sponsler
Beery & Eisner, LLP
For and in cooperation
with:
League of Oregon Cities
January 2004
FOREWARD
r'l~his is the 6t edition of the Model Charter for Oregon Cities. It is the first published by the
.i. League of Oregon Cities. Previous versions were published by the Bureau of Governmental
Research and Service at the University of Oregon. a
The purpose of the Model Charter is to serve as guide for charter drafting by city officials and
citizens by providing a foundation for meeting different needs and policy choices about city
government structure. It is not intended for submission to community voters without discussion.
Each city that undertakes charter revision or the preparation of a new charter must consider '
provisions and procedures that best serve its unique community.
This 2004 version contains several changes from the 5th edition of 1988. The format continues
as one document. All models prior to 1988 had two separate versions: one for the mayor-council
form of government and one for the council-manager form of government, l. atnguage for the
council-manager form is now presented in the text. Except for the city manger section 33, this
model is useful for cities without a city manager. Alternative mayor-council language is included
in the endnotes. Substantive changes include:
? Specific identification of council legislative, administrative and quasi-judicial authority,
and ordinances, resolutions and orders as the forms for exercising that authority.
? Separate chapters with procedural requirements for council legislative, administrative and
quasi-judicial decisions.
? Reorganization of certain chapters into separate topics (i.e., council and elections).
? Updating mayor and city manager duties.
? Deletion of some provisions better left to city ordinances, such as election nomination
procedures, public improvements, and special assessments.
This edition also makes numerous clarifications, simplifications and style changes from previous
versions. This includes the consistent use of "councilor" in reference to the bolder of that office,
and "council" and "member of council" as including the councilors and the mayor. Gender-
neutral language has also been introduced.
Thanks to Sandy Atp, Don Ashmanskas, Pam Beery, Jeff Condit, Dan Cooper, Candace Haines,
Ken Jones, Glenn Klein, Terry Mahr, Jim Mattis, Gussie McRobert, Rich Rodeman and Pete
Wells lbr taking time to review and comment on earlier drafts. This final draft was presented on
November 14, 2003 at the Legal Issues Workshop session of the LOC 78th Annual Conference in
Eugene. Questions and comments from attendees contributed to this document.
Thomas Spons!er
Beery &Elsner, LLP
January, 2004
' The first Oregon Model Charter was published in 1947; revisions were published in 195 I, 1959, 1967 and 1988. A
Model Charter for Oregon Counties was published in 1977.
Model Charter for Oregon Cities
Thomas Sponsler & LOC
PREAMBLE*
Wune, the voters of , Oregon exercise our power to thc fullest extent possible
der the Oregon Constitution and laws of the state, and enact this Home Rule Charter.
Chapter I
NAMES AND BOUNDARIES
Section 1. Title. This charter may be referred to as the 20
Charter.2
Section 2. Name. The City of
with the name City of
, Oregon, continues3 as a municipal corporation
Section 3. Boundaries. The city includes all territory within its boundaries as they now exist or
are legally modified. The city will maintain as a public record an accurate and current
description of the boundaries.
Chapter H
POWERS
Section 4. Powers. The city has all powers that the constitutions, statutes and common law of
the United States and Oregon expressly or impliedly grant 5 or allow6 the city, as fully as though
this charter specifically enumerated each of those powers. 7
Section 5. Construction The charter will be liberally construed8 so that the city may exercise
fully all powers possible under this charter and under United States and Oregon law.
Section 6. Distributio~ The Oregon Constitution reserves initiative and referendum powers as
to all municipal legislation to city voters.° This charter vests all other city powers in the council
except as the charter otherwise provides. The council has legislative, l0 administrative and quasi-
judicial authority. The council exercises legislative authority by ordinance, administrative
authority by resolution, and quasi-judicial authority by order. The council may not delegate its
authority to adopt ordinancesfi ~
Chapter III
COUNCIL
Section 7. Council. The council consists of a mayor~2 and six COuncilors13 nominated and
elected from the city at large. 14
Section 8. Mayor. The mayor presides over and facilitates council meetings, preserves order,
enforces council rules, and determines the order of business under council rules. The mayor is a
voting member of the council and has no veto authority. ~5 With the consent of council, the
mayor appoints members of commissions and committees established by ordinance or resolution.
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3
The mayor must sign all records of council decisions. ~6 The mayor serves as the political head of
' the city government. ~7
Section 9. Council President. At its first meeting each year, the council must elect a president
from its membership. The president presides in the absence of the mayor and acts as ma3or
when the mayor is unable to perform duties.
Section 10. Rules. The council must by resolution adopt rules to govern its meetings. 18
Section 11. Meetings. The council must meet at least once a month at a time and place
designated by its rules, and may meet at other times in accordance with the rules.
Section 12. Quorum. A majority of the council members is a quorum to conduct business, t9 but
a smaller number ~may meet and compel attendance of absent members as prescribed by council
rules?
Section 13. Vote Required, The express21 approval of a majority of a quorum of the council is
necessary for any council decision, 22 except when this charter requires approval by a majority of
the council?
Section 14. Record. A record of council meetings must be kept in a manner prescribed by' the
council rules.2n
Chapter IV
LEGISLATIVE AUTHORITY25
Section 15. Ordinances. The council will exercise its legislative authority by adopting
ordinances. The enacting clause for all ordinances must state "The City of
ordains as follows:".
Section 16. Ordinance Adoptior~
(a) Except as authorized by subsection (b), adoption of an ordinance requires approval by a
majority of the council at two meetings.26
(b) The council may adopt an ordinance at a single meeting by the unanimous approval of at
least a quorum of the council,27 provided the proposed ordinance is available in writing to the
public at least one week before the meeting.
(c) Any substantive amendment to a proposed ordinance must be read aloud or made available in
writing to the public before the council adopts the ordinance at that meeting.
(d) After the adoption of an ordinance, the vote of each member must be entered into the council
minutes.
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4
(e) After adoption of an ordinance, the city custodian of records must endorse it with the date of
adoption and the custodian's name and title.
Section 17. Effective Date of Ordinances. Ordinances normally take effect on the 30th day after
adoption, or on a later day provided in the ordinance. An ordinance may take effect as soon as
adopted or other date less than 30 days after adoption if it contains an emergency clause. 28
Chapter V
ADMINISTRATIVE AUTHORITY29
Section 18.
approving
Resolutions. The council will normally exercise its administrative authority by
resolutions? The approving clause for resolutions may state "The City of
resolves as follows:".
Section 19. Resolution Approval,
(a) Approval of a resolution or any other council administrative decision requires approval by the
council at one meeting. 3~
Co) Any substantive amendment to a resolution must be read aloud or made available in writing
to the public before the council adopts the resolution at that meeting.
(c) After approval of a resolution or other administrative decision, the vote of each member must
be entered into the council minutes.
(d) After approval of a resolution, the city custodian of records must endorse it with the date of
approval and the custodian's name and title.
Section 20. Effective Date of Resolutions. Resolutions and other administrative decisions take
effect on the date of approval, or on a later day provided in the resolution.TM
Chapter VI
QUASI-JUDICIAL AUTHORITY33
Section 21. Orders. The council will normally exercise its quasi-judicial authority by approving
orders. The approving clause for orders may state "The City of orders as
follows:".
Section 22. Order Approval.
(a) Approval of an order or any other council quasi-judicial decision requires approval by the
council at one meeting. 34
(b) Any substantive amendment to an order must be read aloud or made available in writing to
the public at the meeting before the council adopts the order.
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5
(c) After approval of an order or other council quasi-judicial decision, the vote of each member
must be entered in the council minutes.
(di After approval of an order, the city custodian of records must endorse it with the date of
approval and the custodian's name and title.
Section 23. Effective Date of Orders. Orders and other quasgjudicial decisions take effect on
the date of final approval, or on a later day provided in the order.
Chapter VII
ELECTIONS
Section 24. Councilors. The term of a councilor in office when this charter is adopted is the
term for which the councilor was elected? At each general election after the adoption, three
councilors will be elected36 for four-year terms.37
Section 25. Mayor. The term of the mayor in office when this charter is adopted continues until
the beginning of the fa-st odd-numbered year after adoption. At every other general election after
the adoption, a mayor will be elected for a four-year term?
Section 26. State Law. City elections must conform to state law except as this charter or
ordinances provide otherwise. All elections for city offices must be nonpartisan. 39
Section 27. Qualifications.
(a) The mayor and each councilor must be a qualified elector under state law, and reside within
the city for at least one year immediately before election or appointment to Office.no
Co) No person may be a candidate at a single election for more than one city office.
(c) Neither the mayor nor a councilor may be employed by the city?
(d) The council is the final judge of the election and qualifications of its members.
Section 28. Nominations. The council must adopt an ordinance prescribing the manner for a
person to be ~-- · · · 42
nominated to mn for mayor or a city councilor pos~t~on.
Section 29. Terms. The term of an officer elected at a general election begins at the fa'st council
meeting of the year immediately after the election, and continues until the successor qualifies
and assumes the office.43
Section 30. Oath. The mayor and each councilor must swear or affirm to faithfully perform the
duties of the office and support the constitutions and laws of the United States and Oregon.
Section 31. Vacancies: The mayor or a council office becomes vacant:
Model Charter for Oregon Cities
Thomas Sponsler & LOC
(a)
Upon the incumbent's:
(1) Death,
(2) Adjudicated incompetence,44 or
(3) Recall from the office.45
Upon declaration by the council after the incumbent's:
(1) Failure to qualify for the office within 10 days of the time the term of office is to begin,
(2) Absence from the city for 30 days without council consent, or from all council meetings
within a 60-day period,
(3) Ceasing to reside in the city, 46
(4) Ceasing to be a qualified elector under state law,
(5) Conviction of a public offense punishable by loss of liberty, 47
(6) Resignation from the office, or
(7) Removal uoder Section 33(i).
Section 32. Filling Vacancies. A mayor or councilor vacancy will be filled by appointment by a
majority of the remaining council members.48 The appointee's term of office runs from
appointment until expiration of the term of office of the last person elected to that office. If a
disability prevents a council member from attending council meetings or a member is absence
from the city, a majority of the council may appoint a councilor pro tem.49
Chapter VIH
APPOINTIVE OFFICERS
Section 33. City Manager.
(a) The office of city manager is established as the administratiVe head of the city government,so
The city manager is responsible to the mayor and 'council for the proper administration of all city
business. The city manager will assist the mayor and council in the development of city policies,
and carry out policies established by ordinances and resolutions. SI
Co) A majority of the council must appoint and may remove the manager. The appointment must
be made without regard to political considerations and solely on the basis of education and
experience in competencies and practices of local government management. 52
(c) The manager need not reside in the city.53
(d) The manager may be appointed for a def'mite or an indefinite term, and may be removed at
any time by a majority of the council. The council must fill the office by appointment as soon as
practicable after the vacancy occurs.
(e) The manager must:
(1) Attend all council meetings unless excused by the mayor or council;
(2) Make reports and recommendations to the mayor and council about the needs of the city;
(3) Administer and enforce all city ordinances, resolutions, franchises, leases, contracts,
permits, and other city decisions;
Model Charter for Oregon Cities
Thomas Sponsler & LOC
(4) Appoint, supervise and remove city employees?
(5) Organize city departments and administrative structure;
(6) Prepare and administer the annual city budget;
(7) Administer city utilities and property;
(8) Encourage and support regional and intergovernmental cooperation;
(9) Promote cooperation among the council, staff and citizens in developing city policies,
and building a sense of communitySS;
(10) Perform other duties as directed by the council;
(11) Delegate duties, but remain responsible for acts of all subordinates.
(f) The manager has no authority over the council or over the judicial functions of the municipal
judge?
(g) The manager and other employees designated by the council may sit at council meetings but
have no vote. The manager may take part in all council discussions.
(h) When the manager is temporarily disabled fi.om acting as manager or when the office of
manager becomes vacant, the council must appoint a manager pro tern. The manager pro tern
has the authority and duties of manager, except that a pro tern manager may appoint or remove
employees only with council approval.
(i) No council member may directly or indirectly attempt to coerce the manager or a candidate
for the office of manager in the appointment or removal of any city employee, or in
administrative decisions regarding city property or contracts? Violation of this prohibition is
grounds for removal fi.om office by a majority of the council after a public hearing. In council
meetings, councilors may discuss or suggest anything with the manager relating to city
business,ss
Section 34. City Attorney. The office of city attorney is established as the chief legal officer of
the city government. A majority of the council must appoint and may remove the attorney. The
attorney must appoint and supervise, and may remove any office employees?
Section 35. Municipal Court and Judge.
(a) A majority of the council may appoint and remove a municipal judge. A municipal judge
will hold court in the city at such place as the council directs. The court will be known as the
Municipal Court.
(b) All proceedings of this court will conform to state laws governing justices of the peace and
justice courts.
(c) All areas within the city and areas outside the city as permitted by state law are within the
territorial jurisdiction of the court.
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(d) The municipal court has jurisdiction over every offense created by city ordinance. The court
may enforce forfeitures and other penalties created by such ordinances. The court also has
jurisdiction under state law unless limited by city ordinance. 6°
(e) The municipal judge may: (1) Render judgments and impose sanctions on persons and property;
(2) Order the arrest of anyone accused of an offense against the city;
(3) Commit to jail or admit to bail anyone accused of a city offense;
(4) Issue and compel obedience to subpoenas;
(5) Compel witnesses to appear and testify and jurors to serve for trials before the court;
(6) Penalize contempt of court;
(7) Issue processes necessary to enforce judgments and orders of the court;
(8) Issue search warrants; and
(9) Perform other judicial and quasi-judicial functions assigned by ordinance.
(f) The council may appoint and may remove municipal judges pro rem.
(g) The council may transfer some or all of the functions of the municipal court to an appropriate
state court?
Chapter IX
PERSONNEL
Section 36. Compensation. The council must authorize the compensation of city officers and
employees as part of its approval of the annual city budget. 62
Section 37. Merit Systems. The council63 by resolution will determine the roles governing
recruitment, selection, promotion, transfer, demotion, suspension, layoff, and dismissal of city
employees based on merit and fitness. 64
Chapter X
PUBLIC IMPROVEMENTS
Section 38 Procedure. The council may by ordinance provide for procedures governing the
making, altering, vacating, or abandoning of a public improvement? A proposed public
improvement may be suspended for six months upon remonstrance by owners of the real
property to be specially assessed for the improvement. The number of owners necessary to
suspend the action will be determined by ordinance.
Section 39. Special Assessments. The procedure for levying, collecting and enforcing special
assessments for public improvements or other services clm'ged against real property will be
governed by ordinance.
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Chapter XI
MISCELLANEOUS PROVISIONS
Section 40. Debt. City indebtedness may not exceed debt limits imposed by state law. 66 A
charter amendment is not required to authorize city indebtedness.
Section 41. Ordinance Continuatio~ All ordinances consistent with this charter in force when it
takes effect remain in effect until amended or repealed.
Section 42. Repeal. All charter provisions adopted before this charter takes effect are
repealed.67
Section 43. Sevembility. The terms of this charter are severable. If any provision is held invalid
by a court, the invalidity does not affect any other part of the charter.
Section 44. Time of Effect. This charter takes effect ,20
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APPENDIX A
GENERAL GRANTS OF POWER
The first version of the Model Charter for Oregon Cities was published in 1947. It was drafted
to confer powers on cities in general terms rather than by a detailed enumeration of specific
powers. All subsequent revisions have continued this practice.
Since about 1910, a city charter has been viewed as a city constitution. For this reason city
powers have generally been stated in general, comprehensive terms. The charter should deal
only with the basic, broad fundamentals of city government. The charter should be as concise as
possible, and adaptable to changing conditions to avoid the need for frequent amendment.
Most Oregon cities have charters that grant authority for their activities under general grants of
powers. In 1934, Huntington adopted a general powers charter quite similar to the 1947 model
charter. Since then, almost all Oregon cities have adopted charters that resemble this model.
The Oregon Incorporation Act (now ORS 224.010-221.100) provides that cities without a home
rule charter have comprehensive power and need no grants of specific powers.
A general grant of power allows a city to assume extraterritorial powers granted by statute and
conditioned upon the existence of charter authority. ORS 225.020 authorizes a city to own and
operate utilities outside city limits if its charter allows it such power. Kassel v. City of Salem, 34
Or. App. 739, 579 P.2d 875 (1978) construes this section and states that Salem's charter "accepts
this offer [of extramural powers] in broad terms." These broad terms were more specific than
the general grant of powers in the model. No city with a general grant has been .challenged in its
exercise of the power offered by ORS 225.020.
Constitutional Grants in General Terms.
The 1906 home rule amendments to the Oregon Constitution empower "the legal voters of every
city ... to enact and amend their municipal charter, subject to the Constitution and criminal laws
of the State? They also empower "the qualified voters of each municipality" to exercise the
powers of initiative and referendum "as to all local, special and municipal legislation of every
character in or for their municipality .... '~: These grants of power are general in terms.
Specific Power Derived from General C_mmts.
Courts have often held that a general grant of power confers a particular power not specified in
the grant. Such specific powers include the following:
(1) To regulate amusement devices,a
(2) To levy special assessments,c
(3) To develop a program of free parking using tax revenues,f
b Or. Const. art. XI, sec. 2.
c Or. Const. art. IV, see. la (1906), sec. 1(5) (1968).
a Terry v. City of Portland, 204 Or. 478, 269 P.2d 544 (1955); app. dis., 348 U.S. 979 (1955); 33 Or. Op. Att'y. Gen.
174 (1967).
· Paget v. City of Pendleton, 219 Or. 253, 346 P.2d 1111 (1959).
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(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
To govern labor relations with public employees,g
To license certain businesses or occupations,h
To levy license taxes for revenue, i
To provide police protection,j
To control disposal of refuse.t
To regulate the storage of gasoline and kerosene. I
To cOntrol streets.m
To levy taxes in the form of licenses, n
To adopt taxes on sales and incomes.°
To supply water?
To impose registration and license fees.q
To impose fees and regulatory requirements on telecommunications providers.
fJarvill v. City of Eugene, 289 Or. 157, 613 P.2d I (1980), U.S. cert. den. at 449 U.S. 1013 (1980). Although the
majority opinion in this case relies on a specific grant of power stemming from a 1973 amendment to the Eugene
city charter, this charter has been repealed. At the court of appeals level, the majority opinion relied on the general
grant of power in the 1976 revised city charter to explain the city's ability to levy taxes. "In those cases, it was held
that a general grant of powers in a city charter, like that contained in the Eugene charter, carries with it the power to
impose revenue taxes." 40 Or. App. 185, 198-99, 594 P.2d 1261 (1979).
g Beaverton v. InternationalAssoc. of Firefighter$, 20 Or. App. 293, 531 P.2d 730 (1975).
h. Davidson Baking Co. v. JenMns, 216 Or. 51,337 P.2d 352 (1959).
~ City ofldanha v. Consumers Power, Inc. 8 Or. App. 551,495 P.2d 294 (1972), afl'd, 13 Or. App. 431 (1973).
J City o fEast Portland v. County ofMultnomah, 6 Or. 62, 64 (1876).
kDunn v. Gray, 238 Or. 71,392 P.2d 1018 (1964); City ofTigard v. Wemer, 15 Or. App. 335, 515 P.2d 934 (1973).
l Cf. Leathers v. City of Burns, 251 Or. 206, 444 P.2d 1010 (1968).
m See also, City of East Portland v. County ofMultnomah, 6 Or. 62, 64 (1876).
"City ofldanha v. Consumers Power, Inc. 8 Or. App. 551,495 P.2d 294 (1972), afl'd 13 Or. App. 431 (1973).
o 33 Or. Op. Att'y Gen. 238 (1967).
P Paget v. City of Pendleton, 219 Or. 253, 346 P.2d 1111 (1959).
q A T & T Communications v. City of Eugene, 177 Or App 379 (2001), rev den, 334 Or 491 (2002). The court held
that a general power charter gave the city power to impose registration and license fees. The court relied on
Multnomah Kennel Club v. Department of Revenue, 295 Or 279 (1983), a case that involved a general power county
home rule charter that provided authority to impose a business income tax.
r Sprint Spectrum v. City of Eugene, 177 Or App 417 (2001), rev den, 334 Or 491 (2002). The court found that
home rule authority includes the taxation of businesses that conduct business within city boundaries.
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APPENDIX B
PROVISIONS NOT INCLUDED IN THE MODEL CHARTER
The 2004 Model Charter omits many provisions contained in city charters granted by the Oregon
legislature prior to 1906, and charters adopted soon after the 1906 home rule amendments took
effect. A general grant of powers replaced specific grants of authority. Subjects and procedures
covered by state statutes are generally no longer included in charters. The model' charter also
omits provisions better left to adoption by ordinance.
Annexation. Procedure
An Oregon city may not assume extramural power under its home rule charter unless authorized
by state statute,s City power under the home rule amendments is only in,mural in character,t A
city may only exercise the extramural power delegated by the legislature,u A home rule charter
may provide a procedure for the intramural aspects of annexation, such as the manner of
acceptance of the annexation by the city. The model char~er contains no provision relating to
annexation of territory to a city because state statutes control annexation procedures in both its
extramural and intramural aspects.
Elections
Elections in Oregon are generally under the control of the secretary of state. The conduct of
elections is governed by ORS Chapter 254. Many duties relating to the conduct of elections are
delegated to county clerks. Time of elections, wording of ballot titles, printing of ballots, and
fixing of precinct boundaries are examp les of matters' governed by state law. City initiative and
referendum requirements and process are found in ORS Chapter 250. Therefore, the model
charter contains no sections relating to elections in general. Sections 26 and 28 do authorize the
council to govern certain election matters by ordinance.
Subiects Covered by State Law
The 2004 Model Charter contains no provision on several other subjects covered by state law:
Budgeting ............................................................. ORS 294.305 to 294.565
Public contracts .................................................... ORS Chapter 279
Assessment bonding and lien enforcement .......... ORS 223.205 to 223.295 and 223.505 to
223.670
Tort liability ......................................................... ORS 30.260 to 30.300
s Thurber v. Henderson, 63 Or 410, 415-416, 128 P 43 (1912); State ex rel. Mullins v. Port of Astoria, 79 Or 1, 19-
20, 154 P 399 (1916).
t Kiernan v. City of Portland, 57 Or 454, 464, 111 P 379, 112 P 402 (1910); State ex rel. Mullins v. Port of Astoria,
79 Or 1, 18-19, 154 P 399 (1916); Curtis v. Tillamook City, 88 Or 443, 45~-455, 171 P 574, 172 P 122 (1918).
u Couch v. Marvin, 67 Or 341,136 P 6 (1913); McBee v. Town of Springfield, 58 Or 459, 114 P 637 (1911);
Landess v. City of Cottage Grove, 64 Or 155, 129 P 537 (1913).
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Debt limitations .................................................... ORS 223.295 and 287.004
Ethics .................................................................... ORS Chapter 244
Public meetings and records ................................ ORS 192.410 to 192.710
Land use panning and regulation ......................... ORS Chapters 92, 197, and 227
Street vacation. ..................................................... ORS 271.080 to 271.230
Condemnation ...................................................... ORS Chapter 35; 223.005 to 223.105;
226.310 to 226.380; 227.300; 281.010; and
281.510 to 281.550
Collective bargaining ........................................... ORS 243.650 to 243.782
Public Employee's Retkement System ................ ORS Chapter 238
Other Subiects
The model charter contains no provision on a number of other subjects that may be covered as
well or better by ordinance. Such stibjects include council rules, personnel rules, procedures for
local improvements, levying and collecting special assessments, and city commissions and
committees.
Municipal Judge as Ex Officio Justice of the Peace
Some Oregon charters enacted as special legislative acts prior to 1906 provide that the municipal
judge has the jurisdiction and authority of an ex officio justice of the peace. The 2004 Model
Charter contains no such provision. A home rule charter may not grant such authority to a
municipal judge; such authority may only be granted by state statute.
The decision in In re ~,lpplication of Boaltv suggests that once a municipal judge is given the
jurisdiction and authority of an ex officio justice of the peace by a special legislative act, it
continues regardless of a subsequent home rule charter. It may be withdrawn by the legislature.
A city in this situation may retain its charter provisions conferring jurisdiction and authority of
an ex officio justice of the peace on its municipal judge by enacting its new charter as an
amendment to its former legislative charter. A municipal judge may continue to exercise this
authority under this Supreme Court decision.
v 123 Or 1,260 P 1004 (1927).
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NOTES
* Thomas Sponsler, Of Counsel, Beery & Eisner LLP, Portland, Oregon; BS, SD Willamette University; LL.M.,
University of London; former City Attorney, Gresham, Oregon; former County Attorney, Multnomah County.
~ This uses the "voters" language of Article XI, section 2 of the Oregon Constitution and makes clear the intent to
use all the home rule power.
2 Insert the year the charter is adopted and the city name. For convenience, this may be used as the eharter's short
title.
3 The continuity of a city's existence is not broken by the adoption of a new charter.
4 If this section changes the name of the city, it may read: "The municipal corporation previously known as the City
of continues under this charter as a municipal corporation with the name 'City of .'"
s The city home rule amendments to the Oregon Constitution reserve powers to city voters. Oregon Constitution,
Article XI, section 2 (1906, 1910). The Oregon Supreme Court has said that the amendments are a "continuous
offer" of"all powers properly belonging to municipal government." Robertson v. City of Portland, 77 Or. 121,127
(1915). The offer is conditional. City voters may accept the offer by adopting charter terms. This general grant of
power accepts the offer completely.
6 The US Constitution does not mention cities, but does not restrict city actions. The Oregon Constitution imposes
some restrictions, but also authorizes city actions. Federal and state statutes impose many requirements and
restrictions on cities, but still authOrize or allow them a wide range of action. "Allow" in this section is intended to
provide a basis for city authority to act even though the city cannot identify clear statutory authority for the city
action. It assumes the authority is municipal in nature and not prohibited by federal or state law.
7 Appendix A discusses the legal basis for general grants of authority.
s This requirement that the charter be liberally construed is intended to negate the effect of a rule of strict
construction of city charters known as Dillon's Rule.
9Article IV, section 1, subsection (5) of the Oregon Constitution.
l0 City council members are immune from suit under 42 USC § 1983 for their legislative activities. Bogan v. Scott-
Harris, 523 US 44 (1998).
II While part of federal and state government structures, separation of powers is rarely found in cities. The council
has powers analogous to those of the three branches of the federal government and the three departments of the
Oregon government. The context, substance and form of council decisions determine the nature of the power
exercised. Only the council may adopt ordinances and exercise its legislative authority. Only its legislative
authority is subject to voter initiative and referendum. The council may by ordinance delegate its administrative and
quasi-judicial authority.
~2 Although some charters provide that the mayor is not a member of the council, this model recommends that the
council include the mayor as a member. This means that the mayor participates in and votes on matters before the
council as do other council members. Section 8 states that the mayor is a voting member of the council. If thc
mayor is not to have a council vote, then section 7 should state that the council consists of a specified number of
councilors elected from the city at large.
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~3 Some Oregon cities have five member councils. If the council is to have five members, "six" needs to be changed
to "four." A city may want a larger council of nine members or more. If so, "six" needs to be changed accordingly.
14 Most Oregon cities nominate and elect councilors at large. Some nominate and elect councilors by district or
ward. A third option is to nominate by district and elect at large. If there are districts, then the district boundaries
must be specified. The most efficient way of doing this is by ordinance. For that purpose, this section could read:
"The council consists of a mayor nominated and elected at large, and six councilors nominated and elected by
districts with the boundaries fixed by ordinance." District boundaries must be periodically adjusted to meet equal
protection requirements. Most charters that provide for election of councilors by district also require as a
qualification that each councilor reside in the district the councilor represents and continue to so reside for the term
of office.
~5 Some charters permit the mayor to vote only to break a tie. If the mayor's vote is t° be so limited, this section
needs to be changed accordingly.
16 The council may assign by ordinance or council rules additional duties to the mayor for authenticating ordinances,
resolutions, orders, and other council documents.
17 This section adds facilitator and political leader to enhance the role of the mayor. It makes specific the apparent
and inherent authority of the office of mayor. It also parallels the administrative authority of city manager in section
33. It follows the example of Sth edition of National League of Cities (NLC) Model Charter (2003).
18 Council meetings must comply with the requirements of the Oregon Public Meetings Law. ORS 192.610 -
192.710. Council rules should be considered administrative and adopted by resolution. They are easier to keep
updated and less formal than if adopted by ordinance. Also, they are not subject to initiative and referendum.
19 A majority is more than half of the council. For a seven member council, a quorum is four or more. If there is
one vacancy, thc quorum is still four. If there are two vacancies, the quorum is three, the same as for a five member
council. If through rcsiguation or other events, the number of councilors is reduced to two or one, the quorum is
also reduced to two or one.
2o For example, council rules may state that the members present may order a city police officer to find and bring an
absent member to the meeting. The rules may also provide a penalty for the absent member.
21 "Express" is used here to clarify the effect of abstention from voting. At common law abstention from voting was
regarded as concurrence with the decision made by the votes cast. Thus, the concurrence could be either affirmative
or negative depending on how the majority voted on a decision. "Express" is intended to make clear that an
abstention from voting on a question may not contribute to answering the question affirmatively; it amounts to a
"no" vote. Use of the word "express" means that no vote less than a majority of a quorum may decide affirmatively
a question before the council.
22 A "decision" is any action taken by council vote. This includes votes on formal documents such as ordinances,
resolutions, orders and contracts. It also includes votes to direct city staff, and other questions and motions before
the council. Unless the charter provides otherwise, the council may act affirmatively through less than a majority of
its positions. A seven member council thus may act through three councilors; its quorum is four. A five member
council may so act through two members; its quorum is three. A question may be decided negatively by fewer
councilors than required to decide it affirmatively. For example, a 2 to 2 vote or a 2 to 1 vote when the quorum is
four councilors, and one councilor is absent.
23 Some charter sections require a vote of a majority of the council to mal~ certain decisions. In this model, they are
sections 16(a), 32, 33(b) and (d), 34 and 35(a). Section 16(b) requires a unanimous vote of at least a council quorum
to adopt an ordinance at one meeting.
24 The Oregon Public Meetings Law, ORS 192.650, requires written minutes. This section provides an independent
requirement for council records and authorizes the council to adoPt requirements in addition to those of state law.
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25 The most significant power granted to cities is the authority to adopt legislation. Legislation is local law that
applies throughout a city. Legislative authority is properly exercised in the form of ordinances. City charters
traditionally prescribe specific requirements for adoption of ordinances, and no provisions for approval of
resolutions (administrative) or orders (quasi-judicial). Only using ordinances for legislation and using other forms
for non-legislative decisions makes clear which council actions are subject to referendum. Oregon Constitution,
Article IV, section 1 (5) gives voters initiative and referendum powers over "municipal legislation."
26 Under section 12, the majority of the council membership must be present at the time a decision is made. If there
is one or more unfilled council vacancy, the majority is calculated on the temporarily diminished membership.
However, action by a majority of a quorum (e.g. three votes when quorum of four is present) is not sufficient to
enact an ordinance under this section. See note 19 above.
27 This section requires the presence of at least four councilors and a unanimous vote to adopt an ordinance at one
meeting when there is a seven member council. The presence of three councilors and a unanimous vote is required
when the council has five members.
2s Ordinances containing an emergency clause take effect immediately and are not subject to referendum.
Legislation may not take effect when it is subject to referendum. Procedures for city initiative and referendum are
found in ORS 250.255 to 250.355, and city ordinances. Emergency clauses are legislative and not subject to judicial
review. Kadderly v. City of Portland, 44 Or 118 (1903). City use of an emergency clause preventing a referendum
on the ordinance is not subject to federal court review as a violation of civil rights. Stone v. City of Prescott, 173
F.3d 1172 (gth Cir. 1999).
29 Councils formally exercise their administrative authority in the form of resolutions. Administrative decisions
normally implement requirements of city ordinances and state statutes. Examples include city budgets, budget
amendments, financial transfers, public contracts, fees and charges, council rules, and city personnel rules.
Administrative decisions often are "internal" and relate to the city government. City charters traditionally prescribe
specific requirements for adoption of ordinances (legislative), and include no provisions for approval of resolutions
(administrative). This model suggests that charters specifically recognize council resolutions as the proper form for
the exercise of its administrative authority. Use of this form for non-legislative decisions makes clear which
council actions are subject to referendum. Oregon Constitution, Article IV, section 1(5) gives voters initiative and
referendum powers over "municipal legislation", but not municipal administration..
3o The preferred method for the council to exercise its administrative authority is by resolution. However,
"normally" is used in this sentence to allow the council to approve contracts and other documents, give direction to
the city manager, city attorney and city employees, and make other administrative decisions by approving a motion
without adopting a resolution.
31 Under section 12, the majority of the council membership must be present at the time a decision is made. If there
is one or more unfilledcouncil vacancy, the majority is of the temporarily diminished membership. Action by a
majority of a quorum (e.g. three votes when quorum of four is present) is sufficient to approve a resolution under
this section. See note 18 above.
32 ORS 221.310(3) applies to cities of 2,000 or more. It provides that a resolution may take effect any time after
passage by the city council. The resolution must state the resolution effective date in a separate section.
3a Quasi-judicial authority is normally exercised in the form of orders. Under this authority, the council holds
hearings and is required to make decisions. The most common examples are land use matters and nuisance
proceedings. City charters traditionally prescribe specific requirements for adoption of ordinances (legislative) and
include no provisions for adoption of orders (quasi-judicial). This model suggests that charters specifically
recognize council orders as the proper form for the exercisc of quasi-judicial authority. Use of this form for non-
legislative decisions helps make clear which council actions are subject to referendum. Oregon Constitution, Article'
IV, section 1 (5) gives voters initiative and referendum powers over "municipal legislation," but not municipal quasi-
judicial decisions.
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34 Under section 12, the majority of the council membership must be present at the time a decision is made. If there
is one or more unfilled council vacancy, the majority is of the temporarily diminished membership. Action by a
majority of a quorum (e.g. three votes when quorum of four is present) is sufficient to approve an order under this
section. See note 19 above.
35 This sentence anticipates the charter vote at a primary or special election. If the charter vote is at a general
election, the words "or is elected at the time of adoption" should be added.
36 Oregon Constitution, Article II, section 14a requires cities to hold their regular elections for officers at the same
time as the general biennial elections for state and county officers are held. ORS 254.035 implements this provision.
ORS 254.056 states that general elections are held on the first Tuesday after the first Monday in November of even
numbered years. It further states that primary elections may be held on the third Tuesday in May of even numbered
years.
37 This language assumes that adoption of the charter will not affect the council size or terms of office. It does
provide a transition from the city government before charte~' adoption to the city government under the charter.
3s A four-year term for the mayor and four-year staggered terms for an even number of councilors gives the voters
an opportunity to vote for a majority of the council positions at every other general election. It may also be
necessary to change "first" to "second" in the first sentence. A mayor elected to a four year term when this charter
provision is adopted would serve until the beginning of the second odd-numbered year after adoption. If the mayor
is to have a two-year term, the second sentence of this section needs to be changed.
The mayor is appointed from the council by the councilors under the Incorporation Act, ORS 221.130. If this is to
continue under the charter, then the second sentence of section 25 needs to be replaced by the sentence: "At the
first meeting of the council in each odd numbered year, the council must appoint one of its members to serve as
mayor for a term of two years." If the mayor is appointed from the council, the council should have an odd number
of members, and section 7 should be changed.
39 The last sentence of this section makes specific the Oregon tradition that local government elections are
nonpartisan. This provision is included in the county model home rule charter and county charters. It is also
consistent with the 8th edition of the NLC Model Charter (2003).
40 Courts have consistently invalidated residency qualifications of more than 12 months.
41 This prohibition is intended to avoid certain conflicts of interest in city service. It bars full-time or part-time
employees from serving as mayor or councilor. It does not, how.ever, prevent the mayor or a councilor from
receiving reimbursement of expenses for services.
42 This model charter does not prescribe a nominating procedure. It allows flexibility by requiring that an ordinance
govern the nominating process.
43 These words allow for a successor to be appointed as well as elected, and require that the successor meet the
necessary qualifications for the office at the time of election or appointment. Some charters have provisions
limiting the number of terms or years that a citizen may serve in an elected office.
44 "Adjudicated incompetence" means inability or unfitness to manage one's affairs because of mental condition
determined in a court proceeding.
4s Recall of elective officers is governed by Oregon Constitution, Article II, section 18, and ORS 249.865 to
249.877.
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46 Section 27 requires each member to be a qualified voter and re sident of the city. Under subsections (3) and (4) of
section 3 l(b), moving outside the city or allowing vOter registration to lapse permits the council to declare a council
position vacant.
47 Note the use of"punishable" rather than punished. "Loss of liberty" is used because the legislature often
describes public offenses with other than criminal terms.
48 Normally a single vacancy is filled at one time. This section permits the council to fill multiple vacancies at the
same time. Most vacancies are created in positions filled by election. However, this section also applies to
appointments to fill vacancies created in positions previously filled by an appointee to the council.
49 A member's disability under this section is usually temporary. If the disability is permanent, it often results in the
resignation of the disabled member. A permanent disability does not create a vacancy unless the member resigns.
However, the council may appoint a pro rem councilor, and the appointment may continue until a successor to the
disabled member is elected and takes office.
50 The city manager exercises the administrative authority delegated by the city charter and the city council. The
manager and the council both exercise administrative authority. Only the eounei.l may exercise legislative authority.
51 Thi ....
s makes specific the c~ty manager responsibility to mayor and council for city administration. It gives the
manager a role in policy development consistent with the 8ta edition of the NLC Model Charter. (2003) It makes the
manager responsible for carrying out city policy adopted by council resolution or ordinance.
52 This section adds more specific qualifications for city manager consistent with the 8th edition of the NLC Model
Charter (2003).
s3 If the city wants the charter to require the manager to live in the city, the following may be added: "but must
become and remain a resident of the city while manager." This requirement can be imposed more flexibly by
ordinance or contract.
s4 Note that the manager appoints, supervises and removes city employees. The council appoints, supervises and
removes city officers.
55 Subsection (8) and (9) of this section add provisions that update the charter by recognizing the increasing
importance of region.al and intergovernmental issues, and the participatory nature of policy development. They are
consistent with the 8ta edition of the NLC Model Charter (2003).
ss Municipal judges have administrative duties incidental to their judicial functions such as record keeping and
accounting for certain funds. These administrative duties may be supervised by the city manager.
s? A similar charter restriction was the basis for damages instill v. Benton, 252 Or. 463,445 P.2d 492 (1968). The
court found that the mayor did not act within the scope of his authority in pressuring the manager to discharge the
police chief. The chief was awarded punitive as well as general damages.
ss This does not affect the ability of a council member to obtain information from the manager or other city
employees. Council members also have at least as much right to public records as other members of the public
under the Oregon Public Records Law, ORS 192.420 to 192.505.
59 Ifa city attorney office is established by the charter, it is independent of the wishes of the council or manager.
This language places office employees under the supervision of the attorney rather than the manager. The charter
could establish the office and provide for appointment by the manager, although that would be unusual. If not
created by charter, the city attorney office may be created by ordinance. The ordinance may provide for city
attorney appointment by the council or manager. Attorney duties may be assigned by ordinance and contract.
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s0 ORS 221.339 gives municipal courts jurisdictiOn over violations and misdemeanors committed or triable in the
city. Municipal courts do not have jurisdiction over felonies. The section provides that jurisdiction over
misdemeanors may be limited by city ordinance.
ORS 51.035.
62 ORS 294.352(5) requires that the budget list the salary for each officer and employee. If councilors are to receive
no compensation for their services to the city, the following may be added to this section: "However, no councilor
may receive compensation for serving in that capacity." This prohibition does not prevent reimbursement for
expenses.
63 If there is a city manager, the manager may be substituted for the council. Rules adopted by the manager may be
made subject to council approval. The council may also delegate authority to the city manager or city administrator
to adopt rules.
64 "Merit and fitness" allows wide discretion in the interpretation and application of personnel rules and practices.
Few procedures applicable to cities appear in state statute. ORS 223.387 to 223.401 apply to assessments for
local improvements. ORS 223.805 to 223.845 relate to city motor vehicle parking facilities. ORS 271.080 to
271.230 apply to vacation of certain public property.
66 ORS 287.004(2) generally limits city bonded debt to "three percent of the true cash value of all taxable property"
in the city "computed in accordance with ORS 308.207." This limitation does not "apply to bonds issued for water,
sanitary or storm sewers, sewage disposal plants, hospitals, infirmaries, gas, power or lighting purposes, or the
acquisition, establishment, construction or reconstruction of any off-street motor vehicle parking facilities, nor to
[Bancroft] bonds issued pursuant to applications to pay assessments for improvements in installments under
statutory or charter authority." ORS 287.004(4). Bancroft bonds may not "exceed .03 of the latest true cash
valuation of the city." ORS 223.295(1).
67 It may be necessary to continue unusual charter provisions such as bond approvals, special levies or annexations.
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