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How is an
ordinance different from a resolution?
Ordinances are
laws that are usually intended to be permanent and provide
guidance to the public or local government for a long time.
An exception would be an appropriations ordinance for the
yearly budget or an emergency ordinance. Resolutions are often
specific one-time acts of the governing body to authorize
certain actions (e.g. submission of a grant application, accepting
a contract), or officially express the opinion of the governing
body on important issues. Unlike ordinances, which the law
(AS
29.25.020) requires be introduced and have a public
hearing before final passage, a resolution can be introduced,
moved, and voted on at the same meeting. The "Local Government
Handbook" has a detailed discussion
on ordinances and resolutions.
What is the difference between
a code and a non-code ordinance?
The basic difference is that
a code ordinance is permanent and general in nature and a
non-code ordinance is temporary and/or accomplishes a single
action. The ordinance should state whether it is a code ordinance
or a non-code ordinance.
Code Ordinance - A permanent
ordinance that establishes procedures or rules of conduct
must be codified (AS
29.25.050(a)). "Codified" means the
legally adopted
ordinance has been assigned a permanent number and entered
into an indexed book called the code of ordinances. As used
in this text, legally adopted means the date of adoption
and
adopting authority information required under AS 29. 25.050(c)(1) is available and all other requirements for adoption
have been met. The "Local Government Handbook," chapter
on ordinances and the
Codification
of Municipal Ordinances section of the Local Government
Online have detailed information
on codification.
Non-code Ordinance -
A non-code ordinance is not incorporated into the main body
of the code of ordinances, but should be included in the supplement.
A non-code ordinance is an act of the governing body that
authorizes a specific action or authorizes the enforcement
of rules or procedures for a limited period of time (e.g.
less than a year). Also, a non-code ordinance may be used
when state (AS
29.25.010) or local law requires the action to
be authorized by an ordinance.
A common example of a non-code
ordinance is the ordinance adopted each year to authorize
the annual budget. State law requires
budgets be authorized by ordinance, but the authority to spend
money established in the ordinance expires at the end of the
fiscal year. Because the authority to spend money granted
by the ordinance approving the budget only lasts one year,
it is not considered a permanent ordinance that would be included
in the code of ordinances. Another example is an ordinance
authorizing the sale of public land. The sale of a parcel
of land is a one-time transaction that communities require
be authorized by ordinance.
The annual City
Budget Manual (NOTE: 2.8 MB Adobe Acrobat) produced
by
the Department of Commerce, Community, and Economic Development
provides
an example of a non-code budget appropriations ordinance.
Emergency Ordinance -
An emergency ordinance is another form of non-code ordinance
that is not included as a permanent ordinance. State law (AS
29.25.030) allows municipalities to approve ordinances
and bypass the normal procedures for enacting an ordinance
when there is a public emergency that requires quick action.
Emergency ordinances cannot last longer than 60 days and
must
include a statement of the facts upon which the emergency
is based.
What is the difference between
a municipal code (code of ordinances) and a municipal code
of regulations?
The municipal code is the
organization of all of the municipal ordinances of general
application into an indexed book.
The standards adopted in a code
of regulations are often recommended by national organizations
for reasons of safety or national consistency. Examples of
such standards would be building codes and electrical codes.
Because such published standards are often lengthy, AS 29.25.040
permits governing bodies to adopt them in whole with one single
ordinance without having to distribute copies or read the
entire code of regulations at the public hearing. The statute,
however, does establish some special rules for enacting the
ordinance that approves codes of regulations.
What kind of emergency can
be addressed by an emergency ordinance?
AS
29.25.030 allows a
governing body to enact an emergency ordinance to respond
to a public emergency. The law does not define "public
emergency." What might qualify as an emergency is decided
by the governing body. The law does, however, require the
governing body to describe the emergency and state the facts
that support a finding that an emergency exists. Because
an
emergency ordinance allows the governing body to bypass the
normal process for enacting an ordinance it can be assumed
the emergency must be serious enough to justify immediate
action.
Do ordinances need to be
approved by a vote of the people?
Very few ordinances need to
be approved by a vote of the people. State law, and sometimes
the charter of a home rule municipality, may require that
certain kinds of ordinances be approved by a vote of the people
before they can become effective. A common example is AS
29.45.670, which requires changes in a sales tax
rate to be authorized by an ordinance that is approved by
a vote of the people. Voter approval of an ordinance, however,
is the exception, not the rule.
How do we fix a mistake in
an ordinance that has already passed?
If the
mistake is minor like
a spelling or grammar mistake, the municipal clerk or other
staff person with responsiblity for maintaining the ordinances
can make the
correction. However, if the mistake is important enough that
the correction could change the meaning of the ordinance
or
raise questions as to the intent of the governing body,
the ordinance must be reintroduced with the correction and
go through the ordinance
process once again. (Liberati v Bristol Bay Borough, 584
P.2d
1115). If you are in doubt, you can ask an attorney to review
the proposed correction.
How many copies of the code
of ordinances do we need?
Several
copies should be available
for employees and members of the governing body to refer
to, and
at least one copy must always be available for public inspection.
Can we charge a fee for copies
of the code of ordinances?
Yes, but the charge should be
reasonably related to the cost of producing a copy of the
code of ordinances.
How is an ordinance proposed
and drafted?
The governing
body makes the
final decision about whether an ordinance is needed. Often
that decision is based on the recommendation of a staff person
like the municipal manager, the police chief, or the municipal
clerk.
Members of the public may also
propose ordinances and can use the election process to enact
or repeal ordinances. This is called the power of initiative
and referendum (AS
29.26.100 - 190) and is discussed in more detail
under the "Elections" section
of LOGON,
and the "Local Government Handbook" chapter
on elections.
The direction
to prepare an
ordinance usually flows through the office of the person
who
is the primary contact between the staff and the governing
body. For example, in a city with a manager form of government
that person would be the city manager (AS
29.20.500). Several people may be part of the
ordinance
drafting process depending on the subject matter of the ordinance.
For example, the police chief might be involved in an ordinance
about traffic control, or the city clerk may help draft
an
ordinance revising election procedures. For a detailed
discussion
of the ordinance preparation process see the "Local Government
Handbook" chapter on ordinances.
How is an ordinance introduced?
AS
29.25.020 requires
that certain steps be followed to pass an ordinance. If these
steps are not followed, the ordinance is not valid and cannot
be enforced. At least two meetings of the governing body are
required before an ordinance can pass. At the first meeting
the ordinance is introduced and read for the first time. If
the governing body wants to consider the ordinance, it must
schedule a second meeting at which a public hearing on the
ordinance must be held. Final consideration of the ordinance
at the second meeting can come only after the public hearing.
Once an ordinance is drafted,
it is placed on the governing body's agenda (usually for
the
next regular meeting). When the ordinance comes up on the
agenda, a member of the governing body makes a motion that
the ordinance be introduced and a date set for a public hearing
(AS
29.25.020(b)(2)). If the motion passes by a majority
vote of the governing body, a public hearing is scheduled
(usually at the next regular meeting, unless circumstances
justify a special meeting).
The vote to set the ordinance
for public hearing is not a vote to approve the ordinance;
it is a vote only to consider the ordinance after a public
hearing. If the motion for a public hearing does not pass,
the ordinance fails and no public hearing is necessary.
Does public notice and a public
hearing have to be provided for all ordinances?
Yes. Every ordinance being adopted,
amended, or repealed requires a public hearing so members
of the public have an opportunity to express opinions about
the ordinance (AS
29.25.020(b)(2)). The law only requires a summary
of the ordinance in the notice. Notice serves as an invitation
to anyone interested to be present during discussion and to
have a fair opportunity to be heard.
Do we have to publish notice
of the ordinance and public hearing in a newspaper?
State
law (AS
29.25.020(b)(3)) says notice of a public hearing
on an ordinance must be "published." AS
29.71.800(18) also says that to publish "means
appearing at least once in a newspaper of general circulation
distributed in the municipality." If there is no newspaper in the municipality that
fits
this definition, the law says notice of the ordinance and
the public hearing can be posted in three public places for
at least five days.
Be aware that the failure to
meet the minimum notice requirements could be used to challenge
an ordinance on procedural grounds. The best course of action,
especially for an ordinance that has an impact on the general
public, is to publish at least once in the newspaper that
people in the community are most likely to read (if one exists)
and post notice in three public places. Newspaper publication
can be expensive so take advantage of the fact that AS 29.25.020(b)(3)
only requires that a summary of the ordinance be published
along with the time and place for the public hearing. Sometimes
the title of the ordinance can provide enough information
to satisfy the requirement to publish a summary.
What do we do if an ordinance
is not adopted (fails)?
File a copy of the proposed
ordinance in a permanent file of proposed ordinances and make
a notation to the tracking system stating the final outcome.
See the sample Ordinance
Tracking sheet. The "Local Government Handbook" chapter
on Ordinances provides a detailed discussion on this
subject.
How is an ordinance amended
before it is passed?
When an ordinance is introduced,
or after the public hearing on an ordinance, members of the
governing body are free to make motions offering amendments.
Once all of the proposed amendments have been voted on and
either accepted or rejected, a vote is held on the question
whether the proposed ordinance with any added amendments should
be adopted.
If an ordinance is amended
after a public hearing, must a new public hearing be held
on the amended ordinance?
No, not unless the amendment
changes the character or intent of the original ordinance.
If, however, the amendment changes the character and/or intent
of the original ordinance, a new public notice must be published
and an additional public hearing held (Liberati v Bristol
Bay Borough, 584 P.2d 1115).
How is an ordinance amended
after it is passed?
Once an ordinance is passed,
it takes another ordinance to amend or make any changes to
the first ordinance.
What is "severability"?
If a section or part of an ordinance
is not defensible in court, that part can be separated out
without affecting the legality of the remainder of the
ordinance.
To prevent an entire ordinance from being declared unenforceable
by a court, each ordinance or the entire code of ordinances
should contain a "severability clause." A severability
clause says if one part of the ordinance cannot be enforced
it does not mean the entire ordinance is unenforceable. The
"Local Government Handbook" chapter on ordinances
discusses severability in detail.
Do we have to file ordinances
with the State or in some central place?
No. There
is no one place where
all municipalities are required to send their ordinances.
Each municipality is responsible for keeping, filing, maintaining,
and distributing its own ordinances. We do however recommend
that you provide Commerce's Division of Community and Regional Affairs'
regional office for your area a
copy of your ordinances and any amendments so that office
can be more effective in answering questions and providing
assistance to the local governing body.
Where can I get copies of
ordinances from other municipalities that I can use as an
example?
There
are several possible sources.
Many municipalities in Alaska and throughout the country
are
making their codes of ordinances available on websites (see
the "Internet Links" section).
Commerce's Division of Community and Regional Affairs also
has a sample code of ordinances.
Many law libraries in the state
have copies of the codes of the larger municipalities
and often have books called treatises on municipal law that
may contain sample ordinances.
When does an ordinance take
effect?
Under AS
29.25.020 an ordinance takes effect immediately
upon adoption or at a later date specified in the ordinance.
There are, however, certain circumstances that have their
own set of rules, such as a local option ordinance enacted
under Alaska Statute Title 4. See
the LOGON chapter
on Local
Option Elections. Another example would
be a change to an elections ordinance
requiring pre-clearance by Department of Justice before it
becomes effective.
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