Las Cruces, NM

Charter Review Committee

Final Report

June 1, 2005

The Review Committee

Woodie Jenkins, Chair

Chris Garcia, Vice Chair

Anthony Avallone

Steven Barrett

Donald Bustos

Kirk Clifton

Winston Comer

Sonia Crose

Joseph Fuller

Maureen Gant

Joseph Guillory

Fred Kennon

Mary Jo Lipinski

Christina Little

William Lord

James Rosenthal

John Villescas

David Walton

Frances Williams

Maryln Zahler

Table of Contents

                                                                                                                                    Page

1.  Resolution establishing the review committee …    4

2.  The review process ………………………………    6

3.  Recommendations ……………………………….     7

Addendum From The Chairman: Understanding the issues

     A.  Unreviewed Requests From The Public

     B.  Municipal powers & the origin of home rule   16

     C.   Form of government ………………………..    23

     D.   Accountability  ………………………………   26

     E.   Justice of processes and procedures ……….    30

     F.   Instant runoff voting  ……………………….    31

     G.   The rights of the public ……………………..   34

Administrative Changes  ……………………………  38

RESOLUTION NO. 05-169

A RESOLUTION ESTABLISHING AN AD HOC COMMIUEE TO REVIEW THE CITY

OF LAS CRUCES CHARTER AND MAKE RECOMMENDATIONS TO THE LAS CRUCES CITY COUNCIL.

The City Council of the City of Las Cruces is informed that:

WHEREAS, the City Council has determined that it is in the best interest of the citizens of Las Cruces to establish a Charter Review Committee; and

WHEREAS, the proposed Committee shall gather information on the Las Cruces Charter, adopted by City Council, on January 5, 1985, and amended on November 7, 1989, and on November 2, 2993; and

WHEREAS, the committee will evaluate the existing ordinances that comprise the charter; and

WHEREAS, the committee will review charters from other communities in the southwest region, nationally, and other sources that may be relevant; and

WHEREAS, the committee will make recommendations to the Las Cruces City Council for amendment, modifications, changes or maintaining the current Las Cruces City Charter; and

WHEREAS, the committee will consist of between twenty one (21) members, each Councilor and the Mayor shall appoint three members.

NOW, THEREFORE, be it resolved by the governing body of the City of Las Cruces:

(I)

THAT, the Charter Review Ad Hoc Committee is hereby established.

(II)

THAT, the Charter Review Ad Hoc Committee will consist of twenty one (21) members, with three (3) members being appointed by the City Council and Mayor.

(III)

THAT, Council appointments are not required to be from their district, but are required to live within the corporate limits of the City of Las Cruces.

(IV)

THAT, the Charter Review Ad Hoc Committee shall submit a completed charter review no later than June 15, 2005, n order to have it incorporated into the election resolution for the November 2005 election.

(V)

THAT, city staff is hereby authorized to do all deeds as necessary in the accomplishment of this task.

DONE and APPROVED this ₁₅th day of November, 2004.

APPROVED:

                                                                                          Mayor

Arrest

/city Clerk                                                                     VOTE:

Mayor Mattiace                        aye

                                                                                       Councilor Frietze                       aye

Councilor Connor                      aye

Councilor Archuleta                  aye

                                                                                       Councilor Trowbridge               aye

Councilor Strain                        aye

Councilor Miyagishima             aye

Moved by: Frietze

Seconded by:          Trowbridge

APPROVLD AS TO FORM:

City Attorney

THE REVIEW PROCESS

The Charter Review Committee met once per week beginning on January 13, 2005.  Each meeting was open to the public, had a public input period, and encouraged public input.  The committee was given multiple documents to review – including the Model City Charter from the National Civic League and the Santa Fe, New Mexico City Charter.  The committee received inputs from several city councilors, the city manager, the city clerk, the city attorney, the finance director, the utility director, and the planning staff.  In order to meet the June 15, 2005 deadline for making recommendations to the city council, the committee decided to concentrate on self-generated change proposals as representatives of the public – rather than trying to educate the public and then trying to facilitate various groups developing recommendations.

The committee used a two phase review methodology.  Phase one consisted of an examination of each section City Charter Articles I through X.  Each change proposal was requested to take the following written form: (a) Give reasons why the language of this section of the charter should be changed - describe any problems you see, or have experienced, with the language of this section or with the implementation of this section in practice; (b) state the revised language of this section to correct the problems you see or the problems you have encountered; and (c) state the justification you offer to convince voters that your proposed revision is in their best interest to adopt.  The benefits of phase one are that the obvious problems are identified, initial recommendations are developed, and the debate about the provisions of the charter provided each committee member an informed basis for completing phase two.

Phase two consisted of answering the following questions about the charter:

(a) What is the best form of city government for the next twenty years?

(b) Does the charter adequately support the preferred form of government?

(c) Does the charter tell the city council and city manager how we want them to make and implement policies?

(d) Do the charter processes and procedures adequately require costs and benefits to be proportionate for all stakeholders?

(e) Does the charter provide adequate descriptions of the rights of the public?

(f) Does the charter provide adequate “due process”?

RECOMMENDATIONS

Article II. City Council

a.  RECOMMENDATION:  Revise Section 2.06 (a) to correct the reference of the mayor’s residence so that the new section reads:

“(a)        Vacancies. The office of councillor shall become vacant upon the councillor's death, resignation, recall, moving of residence from the district from which elected, or forfeiture of office. The office of mayor shall become vacant upon the mayor's death, resignation, recall, moving of residence to outside the city limits, or forfeiture of office.”

b.  RECOMMENDATION:  Revise Section 2.09 (c) by adding the “utility board” language so that the new section reads:

“Regulation of the rate charged for its services by a public utility, unless otherwise lawfully delegated to a municipal board of utility commissioners;”

JUSTIFICATION:  Per the request of the city’s Director of Utilities.

Article IV. Administration

 RECOMMENDATION:  Revise Section 4.05 to read:  “The council shall provide a method for receiving, acknowledging, and resolving complaints or grievances concerning the city or its operations.”

JUSTIFICATION:  This revision adds the important emphasis that complaints need to be resolved where possible – not just acknowledged and documented.

Article VI. Planning

a.  RECOMMENDATION:  Revise Section 6.02 to change the last portion of section 6.02 (following the word “implementation” to read, “a complete review and updating of the plan at least every ten (10) years.”

                JUSTIFICATION:  Experience has shown that the comprehensive plan becomes outdated in ten years or less.  The desire is to maintain an up to date comprehensive plan.

b.  RECOMMENDATION:  To amend the second paragraph of section 6.03 to read, “Before taking any action concerning land use or action the council shall cause findings and a report to be made: (a) concerning the relationship between the proposed action and the comprehensive plan and (b) concerning the capital improvements associated with the proposed action and (c) concerning the increased costs and expenses to the city associated with the action and (d) concerning payment for the capital improvements and increased costs.  This report shall detail how the proposed action complies with or does not comply with the comprehensive plan.”

    JUSTIFICATION:  The purpose of this change is to establish visibility into how the comprehensive plan is or is not being used.  That visibility will add a measure of accountability to city government.

Article VII. City Elections

a.  RECOMMENDATION:  Revise Section 7.02(a) Petitions to read “Candidates for election to the council or to the office of mayor shall be nominated by petition. A person may be nominated for election as a councilor within the district in which he or she is a qualified resident voter by a petition signed by not less than one hundred (100) qualified voters residing within the district which the candidate seeks to represent. A person may be nominated for election as mayor by a petition signed by not less than five hundred (500) qualified voters residing in the city limits of the City of Las Cruces. Nominating petitions shall be accompanied by the circulator's affidavit. The council shall prescribe the form and format of the petition and all related documents. The city clerk shall provide petition forms and related forms to those requesting them”

    JUSTIFICATION:  This change is needed to discourage non-serious candidates.

b.  RECOMMENDATION:  Revise Section 7.02(b)  to replace “the forty second (42^nd) day” in section 7.02(b) with “the fifty sixth (56^th) day,” so that the new Section 7.02(b) reads:

“(b)        Filing. All separate papers comprising a nominating petition shall be assembled and filed as one instrument on the fifty sixth (56^th) day before the election. If a candidate's representative files the nominating petition, the petition shall be accompanied by an affidavit so certifying. No nominating petition shall be accepted unless accompanied by a signed acceptance of the nomination by the candidate. The candidate or the candidate's authorized representative shall file the candidate's petition with the city clerk, who shall record the exact time at which each petition is filed.”

 JUSTIFICATION:  This would give the clerk an additional 14 days to check signatures.  Also proposes to replace “within five (5) working days” in section 7.02(c) to “within fifteen (15) working days," which will give the Clerk two additional working weeks.

c.  RECOMMENDATION:  Revise Section 7.02(d) Filing for position of municipal judge to read:

“(d)        Filing for position of municipal judge. A person who meets the qualifications for municipal judge may file for that position on the fifty sixth (56^th) day before the election in the year the position is to be on the ballot. A candidate shall file for the position by declaring his/her candidacy to the city clerk.”

    JUSTIFICATION:  This change is needed to match the requirements for mayor and city council.

d.  RECOMMENDATION:  Add the following sentence to the end of section 7.05(a), “In the event that an instant runoff election is implemented, every qualified voter within the district shall be entitled to vote in rank order for multiple candidates for any contested office.” And add “the runoff election may be conducted in the instant runoff manner employing rank-order ballots.” To the end of the first paragraph in section 7.05(c) so that the new 7.05 reads:

“            (a)        Who may vote. Whenever the position for councillor of a district is on the ballot, every qualified voter within that district shall be entitled to vote for one (1) candidate for the councillor to represent that district. In addition, every qualified voter within the city limits shall be entitled to vote for municipal court judge or judges and for one (1) candidate for mayor to represent the City of Las Cruces as a whole.  In the event that an instant runoff election is implemented, every qualified voter within the district shall be entitled to vote in rank order for multiple candidates for any contested office.

(b)        Plurality: Minimum of forty percent (40%) required for election to office.  The city council shall arrange for the election to be decided by either a runoff election between the two candidates with greatest number of votes or by instant runoff election conducted at the time of the initial election.  If there is a runoff election, it shall be held within forty-five (45) days after certification of the initial election results. 

             (c)        Runoff provisions. In the event two (2) candidates receive at least forty percent (40%) of the votes cast for a particular office and tie, those two (2) candidates only shall automatically become candidates at a runoff election held pursuant to this section. If no candidate receives forty percent (40%) of the votes cast for a particular office, a runoff election shall be held within forty-five (45) days after certification of the results of the election as now provided for by law and as amended and supplemented from time to time. The two (2) candidates receiving the highest number of votes cast for the office in question shall automatically become the candidates at the runoff election and the filing of declarations of candidacy is dispensed with. 

            (1)        In the event of a tie in any runoff election, the winner shall be decided by lot in the presence of the candidates concerned and under the direction of the city clerk.

            (2)        The council shall, by resolution, fix the date of the runoff election, specify the offices to be filled, and the names of the candidates. The resolution shall be published once, at least seven (7) days before the runoff election date. No other publications are required in connection with runoff elections.

            (3)        Eligibility to vote in runoff elections shall be the same as in regular elections for a particular city office. Voting precincts and procedures shall be reactivated for runoff elections as required. If officials are to be voted upon on a city-wide basis, the entire electorate is involved, otherwise, only the council district shall be involved.

(4)        The runoff election may be conducted in the instant runoff manner employing rank-order ballots.”         

(5)        The runoff elections amendment to the Charter will take effect on the next election after its passage

    JUSTIFICATION:  This change enables Las Cruces to use “instant runoff voting” which eliminates the need for separate runoff elections that add costs for candidates and for city government.

Article VIII. Initiative, Referendum and Recall

a.  RECOMMENDATION:  Add the following “Editor’s Note” to the end of Section 8.01(a):

In 1996 the New Mexico Supreme Court ruled, in Johnson v. Alamogordo, that only “legislative” ordinances are subject to initiative and referendum.

    JUSTIFICATION:  This is needed to clarify what subject matter is excluded from the local initiative rights of the public.  The original language implies that all matters are eligible for local initiative.  And, when the public is told they cannot initiate administrative actions, they feel they have been misled by city government – since the charter does not correctly state the actual situation.

b.  RECOMMENDATION:  Add the following “Editor’s Note” to the end of Section 8.01 (b) Referendum:

In 1996 the New Mexico Supreme Court ruled, in Johnson v. Alamogordo, that only “legislative” ordinances are subject to initiative and referendum.

    JUSTIFICATION:  The original language implies that all matters are eligible for local initiative.  And, when the public is told they cannot initiate administrative actions, they feel they have been misled by city government – since the charter does not correctly state the actual situation.

c.  RECOMMENDATION:  Delete Section 8.03(a) Petitions,  Number of signatures and add the following new Section 8.03(a) to read:

“(a)        Number of signatures.  Initiative and referendum petitions shall be signed by qualified resident voters of the city equal to seven and one-half percent (7.5%) of the number of registered voters on the day the affidavit is filed, and no more than twenty-five percent (25%) of the signatures shall come from one council district.  Petitions for recall of a councilor shall be signed by qualified voters of the district which the councilor subject to recall represents. The number of signatures required for recall shall be equal in number to at least seven and one-half percent (7.5%) of the registered voters, on the day the affidavit is filed, in the district which the councilor subject to recall represents.  Recall petitions attempting to recall the mayor shall be signed by at least seven and one-half percent (7.5%) of the registered voters, on the day the affidavit is filed, residing within the city limits of the City of Las Cruces, with no more than twenty-five percent (25%) from any one district.”

        JUSTIFICATION:  This change will make the three “petitions” (initiative, referendum, and recall) use “the number of registered voters” as the basis for determining number of signatures.  The change requires validated petition signatures totaling at least 7.5% of registered voters within the city limits at the time of filing the affidavit.  The committee’s rationale for linking the count to the number of registered voters is that the basis for all petition signature requirements should be stable and not fluctuate as currently occurs due to fluctuation in turnout in elections.  The committee’s rational for selecting the 7.5% number is to follow the recommendation found in the “Model City Charter”.  That advice was that “initiative and referendum should not be too easy and also should not be too difficult”.  The general effect of the recommended change is to double the required number of petition signatures.  The idea of no more than 25% from one district affirms that the issue at hand is truly of city-wide importance - not just a neighborhood issue.

Article IX. Municipal Court

RECOMMENDATION:  Add the “petty misdemeanor” language in Section 9.01(a) to read:

“The municipal court shall have jurisdiction over all “petty misdemeanor” offenses and complaints under ordinances of the City of Las Cruces and may issue subpoenas and warrants and punish for contempt.”

JUSTIFICATION:  The municipal court adjudicates only “petty misdemeanor” offenses.  Offenses subject to penalties greater than those allowed for “petty misdemeanors” are assigned to other courts.  So, the municipal court has jurisdiction over only “petty misdemeanor” offenses.  This section needs to be changed to clarify.

Addendum From The Chairman: Understanding the issues

A.  Unreviewed Requests From The Public   

B.   Municipal powers and the origin of home rule

C.   Form of government

D.   Accountability – how we want to be governed

E.   Justice of processes and procedures

F.  Instant Runoff Voting

G.   The rights of the public

A.  Unreviewed Requests From The Public

1.  RECOMMENDATION:  The city council amend its compensation policy, required by Section 2.02(a) Salaries, to pay the mayor pro tem at the mayor’s level of compensation for all service as mayor over thirty consecutive days.

    JUSTIFICATION:  Citizen request that the mayor pro tem receive the same pay treatment as city employees who act in a higher level position for periods over thirty consecutive days.

2.  RECOMMENDATION:  Citizen request that the city council require the city clerk to report during a regular city council meeting each quarter the name of the plaintive and subject of all law suits and tort claims filed against the city during the previous quarter.

    JUSTIFICATION:  Citizen request that the city report in the same way as does the county.

3.  RECOMMENDATION:  Citizen request that each city council member state his or her reasons for voting yes or no.

    JUSTIFICATION:  Citizen request that city council members inform the public of the reasoning behind the decisions.  Part of the reasoning behnd the requests  deals with the public’s desire for accountability.  They feel that stated reasons for yes or no votes will provide a basis for evaluating council member performance.

4.  RECOMMENDATION:  Citizen request that the charter review committee or its chairman conduct a daytime and a night public hearing on the city council approved proposed changes to the charter.

    JUSTIFICATION:  The working public and the non-working public should have the opportunity to be briefed on the proposed changes, gain an ndrstanding of the issues, and have questions answered about each proposal.

5.  RECOMMENDATION:  Citizen request that if council district board and commission appointments cannot be made within 45 days, then appointment can be made of volunteers from any council district.

    JUSTIFICATION:  Vacancies have existed for long periods of time without being able to be filled from within the councildistrict.  The proposal will allow others to fill vacancies and allow the boards and commissions to continue their work in a timely manner.

B.   Municipal powers and the origin of home rule

DILLON’S RULE...AND THE BIRTH OF HOME RULE

by Diane Lang, Assistant Information Services Director, New Mexico Municipal League Reprinted from The Municipal Reporter, December, 1991

“Whoso desireth to discourse in a proper manner concerning corporated towns and communities must take in a great variety of matter and should be allowed a great deal of time and preparation... The subject is extensive and difficult”

Thomas Madox, British Historiographer, 1726 (The Law of Local Government Operations, Rhyne, p. 1)

Many of the inquiries the League staff receives have, at their root, the question of whether a municipality can exercise a particular power. The answers to these questions generally involve interpretations of the New Mexico statutes in light of something called “Dillon’s Rule,” named for Judge John Forest Dillon, a noted local government scholar. As the Chief Justice of the Iowa Supreme Court over 100 years ago, Judge Dillon authored two seminal opinions establishing the modern rule of law by which the powers of local government are evaluated.

Partly because Judge Dillon was considered to be a great authority on municipal law -- albeit one who distrusted local government — his rule was adopted by other state supreme courts and ultimately by the United States Supreme Court in the early twentieth century. Dillon’s Rule became cemented into the legal system as a fundamental rule of statutory construction. It still is the most determinative factor in interpreting general and specific powers of non home rule municipalities in New Mexico as well as in most states around the country.

WHAT IS DILLON’S RULE?

Under Dillon’s Rule, the state legislature is recognized as having plenary (complete) control over municipal government except as limited by the state or federal constitution.  As a result of this complete legislative control, local government powers are quite limited and only extend to those powers which are:

(I) granted in express words;

(2) necessarily implied or necessarily incident to the powers expressly granted; and

(3) absolutely essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.

Dillon’s Rule also establishes that any fair doubt by the courts as to the existence of a power is to be resolved against the municipality.  In other words, if the power in-question isn’t expressly authorized by the statute or the Constitution, or cannot be necessarily implied from a power that has already been authorized, it is presumed that a municipality does not have the power.

HISTORY OF STATE - LOCAL RELATIONS

In order to fully appreciate Dillon’s Rule and its profound impact on the city-state relationship, one must focus upon the history of local-state legal relations in the years preceding it.

The modern municipal corporation, as we now know it, and its relationship to the state has developed over many centuries. From the ancient Egyptians living along the Nile, to the North American cliff dwellers, to the early Creeks and Romans, people have gathered together to form cities which became natural self-governing entities and logical seats of power. In fact, “the word ‘municipal’ is derived from the Roman ‘municipium’, meaning a free city capable of governing its local affairs, even though subordinate to the sovereignty of Rome. In early England, the term was applied to self governing cities and towns; hence, from its origin, the word municipal connoted local self-government.” (The Law of Local Government Operations, Rhyne, p. 1).

The English municipal governments served as the model for the early American, pre-Revolutionary War colonial governments. In the mid-l7th century, corporations or boroughs were formed by grant or charter by the governors of the various new world colonies. The boroughs were somewhat independent from the colonial legislatures and their charters were considered to be contracts, which could be changed only with the approval of both the colonial legislature and the local municipal corporation. In practice, however, the relationship developed into one of direct control by the legislature over the individual boroughs.

After the Revolutionary War, cities and towns were formed by act of the state legislature. Those that existed before the Revolution continued, for the most part, to operate under their existing charters. New municipalities were created by the state legislature adopting a special or local law establishing a separate charter for each municipality. Even though, in theory, the state legislature retained direct control over municipalities, by custom the actual control was lax, primarily due to the fact that the county was still largely rural. Prior to 1820, there were no cities with a population of over 50,000. These fledgling cities did not yet engage in large-scale activities that merited extensive concern by the state legislature. In fact, local laws often reflected the lack of municipal services and activity (e.g., there were laws against animals running at large but pigs were often exempted because they ate the garbage in the streets). With relatively few functions performed by cities, not much regulation was necessary by the state.

The need for more municipal activity came with the explosive growth that transpired in the mid 1800s. After the Civil War, the now united states began a metamorphosis from an agrarian society to an urbanized nation — the catalysts being the great waves of European immigration and the industrial revolution. Cities were not equipped to handle this overwhelming need for new infrastructure and services. The municipal governments were typically weak, not well organized, and public improvements did not function well. This made them easy victims for political machines and local bosses that led to a widespread and fundamental corruption in municipal government. Cities came to be viewed as the core of all that was wrong with society.

Accordingly, the state legislatures were reluctant to confer upon municipalities the powers necessary to professionally address the new and complex problems they faced. It was in 1868, amidst the backdrop of this corruption — the lowest point in the history of this nation's municipalities — that Judge Dillon issued his two famous opinions. Because of the rampant corruption in cities, he had little faith in local government and local officials’ abilities and, thus, his opinions reflected the view that cities are creatures of the state and must he limited to those powers specifically granted to them by state laws or constitutions.

INHERENT RIGHT OF LOCAL SELF-GOVERNMENT THEORY

Prior to Dillon’s Rule, when legislatures had first begun to exercise greater control over municipal matters, opponents of this growing state control had emerged. Led by Judge Thomas Cooley of the Michigan Supreme Court, they argued that municipalities possessed an inherent right of local self-government.’ They contended that such a power could be traced historically to colonial days when municipalities were created to govern their own affairs.

Further, the proponents of the inherent right of local self-government argued that the framers of the state constitutions intended to recognize this right as it existed in the colonial era unless the right was specifically rejected in a state’s constitution.

The inherent right to self-government rule was, in fact, adopted by the courts in several states. By the mid-1800s, the extent to which the state legislature could control municipal government had become an issue that most state courts would eventually be forced to decide.

WHY DILLON’S RULE PREVAILED

Many factors probably contributed to the fact that Dillon’s Rule was the theory that was eventually adopted by the courts. The prevailing view of that time was that the state legislature should have the ultimate authority and control over municipal affairs. The sad plight of the cities at that time most certainly strongly reinforced that notion. Judge Dillon being a very highly respected authority on municipal Law was also no small factor. During the mid-1800s, it would have been difficult for Judge Dillon and others to imagine any other kind of system that could work in practice other than plenary control of the state over the municipalities.

RESPONSE OF STATE LEGISLATURES

With Dillon’s Rule firmly in place as the accepted theory, there was no constitutional check on the state legislatures’ power to become deeply involved in municipal matters of purely local concern. The state legislatures began enacting innumerable local or special laws to apply to individual municipalities and even to an individual department within a single municipality. They very frequently amended city charters — granting powers, and then taking them away controlling minute details of municipal functions — all with hardly any consistency from one city to another. Municipal governments were reorganized on a regular basis.

Ironically, these special laws also allowed the state legislators to enhance their own power by rewarding their friends, penalizing their foes and, in general, by taking advantage of the corruption in municipalities. Corrupt local and state political machines often worked hand in hand with one another.

As the state legislatures necessarily devoted more and more of their time to the details of local government, they found less and less time to deal with substantial matters of state policy. The result of all this was unnecessary meddling in local affairs by the state, lack of uniformity in local government, increased corruption and a failure to provide for professional local self-government.

THE BIRTH OF HOME RULE

In response to these conditions, and other abuses of local and special laws, many state constitutions were amended to limit the use of these local and special laws. In some states they were completely prohibited; in others they were allowed for certain enumerated purposes or when the subject matter would not be capable of treatment in a general law. States then began authorizing incorporation of municipalities under general laws instead of individual charters. As early as 1884, the Territory of New Mexico allowed municipalities to incorporate via procedures established by general law.

The New Mexico Constitution, adopted January 21, 1911, strictly limited the legislature’s authority to enact local and special laws [Article IV, Section 24].

The intent of such constitutional limitations on special and local legislation was, in part, to eliminate the use of such laws to unduly interfere in municipalities’ local affairs and to ameliorate some of the worst abuses. However, since these states did not at the same time amend their constitutions to grant more local powers to the municipalities, a void was created. The state legislature’s power was limited but a corresponding amount of power was not delegated to municipalities in order to enable them to respond properly to local problems. There was no affirmative strong role granted to local government in reaction to the limitation on state legislative power.

It became evident to municipal reformers that a new relationship between state and local government was necessary which would allow local matters to be handled at the municipal level without the need for constant state special or local legislation. The reformers created a new concept of local control, which incorporated part of the inherent right to local self-government rule, yet retained a part of the sovereignty of the states. That new principle became known as home rule.

WHAT IS HOME RULE?

In very general terms, home rule can be defined as the transfer of power from the state to units of local government for the purpose of implementing local self-government. In most states, it also provides those local governments with some measure of freedom from state interference as well as some ability to exercise powers and perform functions without a prior express delegation of authority from the state.

Home rule has taken various forms around the country in the over 40 states that have adopted it. The New Mexico home rule provision (N.M. Constitution, Article X, Section 6) was passed by the electorate in 1970 and follows what is known as the devolution of powers model. Under this model the state constitution authorizes the citizens of a municipality to adopt a home rule charter. Upon adoption of such a charter, the constitution automatically grants or devolves upon such a municipality all powers which the legislature could grant or devolve.

To counterbalance this broad constitutional grant of powers, the state constitution also empowers the legislature to enact statutes that limit or prohibit the exercise of powers by local governments.

Whereas under Dillon’s Rule it is assumed that a city does not have a particular power unless granted by the legislature, broadly speaking, the opposite is true with home rule. Under home rule, it is assumed that a municipality has a power unless it is expressly denied by state statute or constitution.

BENEFITS OF HOME RULE

Although home rule may not be the choice for all municipalities, it can be advantageous for many reasons. Advocates cite the ability to act more quickly and effectively to solve local problems, rather than waiting for state enabling legislation. Home rule can be a tool municipalities can use to respond to complex local problems with creative solutions. Home rule empowers local officials to solve local problems, leaving state legislators free to address issues of primarily statewide concern. It allows communities the freedom to choose the best form of government to best suit their needs.

New Mexico has six municipalities which have elected to become home rule and two more are presently considering it. The remaining 93 still operate under Dillon’s Rule. (This should read: New Mexico has 10

municipalities that have elected to become home rule cities and two chartered cities. The remaining 90 operate under Dillon’s Rule.)

Even though New Mexico is a “home rule state”, Mr. Dillon’s principles are alive and well here. For instance, New Mexico courts have chosen, thus far, to rule against home rule powers in specific areas such as zoning. It is ironic that here and elsewhere around the country, the judiciary has been more reluctant than the state legislature to provide any real teeth to home rule, especially since it was the legislature who created it at the expense of their own power.

Needless to say, times have changed drastically since Judge Dillon issued his opinions. Professional management of municipalities has replaced the corrupt political machines of the 1800s. Many federal laws, state statutes and court cases effectively guard against the worst abuses of the system by regulating open meetings, finance, personnel administration, etc. Amazingly, the past two New Mexico legislative sessions have seen the introduction of bills which would have not only severely restricted or completely abolished home rule powers, but also would have even restricted statutory municipal powers to an extent greater than Dillon’s Rule by limiting municipal powers to only those explicitly expressed in Chapter 3, NMSA 1978.

WHAT ABOUT THE FUTURE?

We live in an era of increasingly complex and intricate problems As states and the federal government cut hack on program funding, municipalities are required to fill in the gaps as well as respond to federal mandates. Municipalities need to continue to move forward with the tools to implement new and creative solutions. They need the power and authority to adequately perform their rightful functions and to fulfill their role as participating partners with the state and federal government.

Back in 1914 at the National Municipal League’s annual meeting, then President William Dudley Foulke spoke in a pro-home rule speech on the wisdom of a sufficient amount of local autonomy. Although his language is a bit archaic, he strikes a chord with his analogy to man and life which is even more relevant today:

“In the words of Judge Dillon, ‘Cities possess no powers or faculties not conferred upon them by the law which creates them or other statutes applicable to them.

‘Now an organization which has its form and character thus impressed upon it by an outside body is more like a plaster than a living organism, and whatever life it has is stunted Just as a man's individuality is dwarfed  in every act he must perform the will of a master, so the individuality of a city is necessarily stunted  in all that it does it is the mere creature and servant of the state. In organic life, all normal and healthy growth comes from within. It is the development of that which we know as the life principle, and while the sunshine, the air and the nutriment are supplied from the outside world, yet the power transmuting these into the thing which grows and develops and becomes a new form and living substance — that comes from this internal vital principle. It is more apt to be cramped than stimulated by outside interference and control, and unless it can have a certain liberty 0/action, all growth is impossible.

“In a general way, a city, like a man, can be trusted to do that which is for its own benefit more certainly than any outside instrumentality can be trusted to do good to it against its will. In the long run we can more safety trust liberty than autocracy.”

4 National Municipal Review 13, 14 (1915)

C.   Form of government

The Corporate Structure of Las Cruces Government

Woodie R. Jenkins, Jr.

FORM OF GOVERNMENT

Las Cruces has operated under the “council-manager” form of government for more than half a century.  To provide an understanding of what it means to operate under a “council-manager” form of government, consider the corporate model that describes it.

The corporate model that describes the “council-manager” form of government has the following seven elements: (1) owners of the corporation, (2) a corporate board of directors, (3) a chair and vice chair of the board, (4) a chief executive officer (CEO) of the corporation, (5) an operating organization, (6) customers, and (7) an arrangement for independent adjudication of disputes between customers and the operating organization.  Las Cruces, the name of the corporation, is a corporation under the laws of New Mexico.  The corporation has the following seven elements: (1) the residents/property owners ate the owners of the corporation, (2) the city council is the corporate board of directors, (3) the mayor is the chair and the mayor pro tem is the vice chair of the board, (4) the city manager is the chief executive officer of the corporation, (5) city staff is the operating organization, (6) all of the people in Las Cruces are the customers of the corporation, and (7) municipal court serves as an arrangement for independent adjudication of disputes between customers and the operating organization and provides adjudication of alleged violations of city laws.

CORPORATE STRUCTURE VERSUS THE LEGISLATIVE BRANCH, EXECUTIVE BRANCH, AND JUDICIAL BRANCH STRUCTURE         

The corporate structure works differently from the legislative branch, city manager, and municipal court structure.  Under the legislative branch, executive branch, and judicial branch structure, each branch has its own separate organization, employees, requirements, and budget.  Each branch operates independently from the other branches but their powers and duties provide checks and balances on the other two branches of government.  Under the corporate structure, the municipal court operates independently from the rest of the corporate structure but it provides no checks and balances - since the city manager or the city council has the discretion to assign adjudication cases outside the corporate structure.  The city manager and the city staff operate somewhat independently, but it is subject to oversight actions of the city council.  The city council has all of the power of the corporation but the city manager has the power to choose, without interference from the city council, how to implement and enforce city council policies and laws.  So, the corporate structure works differently from the legislative branch, executive branch, and judicial branch structure.

CHARTER OF THE CORPORATION

The charter of a corporation is a contract between the corporation and the state legislature.  It includes the articles of incorporation.  The corporation usually develops by-laws to govern its operation.  In the case of Las Cruces, the city charter is a combination of its articles of incorporation and its by-laws.  The by-laws may contain any provision for the regulation and management of the corporation not inconsistent with law or the articles of incorporation. 

DISTRIBUTION OF POWERS AND DUTIES IN THE CORPORATE STRUCTURE

CEO Duties

A CEO is much more than just another upper level manager who has been promoted due to the standard of experience or performance. CEOs function as the main artery between the corporate board members and the various levels of the organization itself. The CEO is held solely responsible for the success or failure of the corporation.  It is also the CEO's responsibility to maintain and implement the corporate objectives established by the board members. There are three major responsibilities of a corporate CEO.

The first responsibility of a CEO is that he or she must have is a vision. The CEO must be able to scan the environment for hints of future changes. A CEO must be able to look into the future and predict changes as well as to project solutions to these changes. Seeing what is coming is only half of the job. Communicating this change to all other parts of the corporation is just as important. All of the various functions within the organization must be prepared to deal with foreseen changes, or the corporation will have serious problems. This means that a CEO must be a visionary, a problem solver, and a communicator.

The second requirement is that a CEO must act as a role model for the entire organization. Everything from how he or she dresses to what his or her values and attitudes represent, serve as models for employees and managers alike. Therefore, the CEO has the responsibility of setting a good example for the corporation. This requirement challenges the CEO to be a role model and a leader.

The third responsibility is that a CEO should set performance standards for the corporation and should promote those standards with confidence. The CEO must determine what standards are required to maintain a competitive advantage and implement these standards into the output of the corporation. Standards need to be set high to remain competitive yet still be within an attainable range. This responsibility requires that the CEO be a motivator as well as a supporter.

These three duties of a CEO are vital to the success of the corporation, but the CEO's responsibilities do not end at the boundaries of the corporation. Every decision a CEO makes affects many different people both internal and external to the corporation’s organization. Therefore, every decision must be well thought out and planned. The CEO's job is to implement and maintain the corporation's objectives through unexpected as well as foreseen threats and opportunities. The CEO is the key that keeps the corporation in focus.

CITY CHARTER UNDER THE CORPORATE STRUCTURE

In view of the discussion above, logic dictates that the city council, the city manager, and the municipal court need to (1) know what it is expected to accomplish, (2) have the authority necessary to achieve what is expected to be accomplished, and (3) have the ability to obtain the resources necessary to achieve what is expected to be accomplished. 

D.   Accountability

      Accountability Triggers Results

      Meet Everybody, Somebody, Anybody, and Nobody. There was an important job

      to be done, and Everybody was sure that Somebody would do it. Anybody

      could have done it but Nobody did because it was Everybody's job.

      Everybody thought Anybody could do it, but Nobody realized that Everybody

      wouldn't do it.

      By Lois J. Zachary, Ed.D.

      This familiar old story makes the case for accountability patently clear.

      Accountability requires shared intention, responsibility, ownership, and

      commitment to action. Without these, it is easy to miss the mark and

      succumb to the "shoulda-coulda-woulda" phenomenon that leads to disastrous

      results.

      Accountability is very serious business today. Board members exact added

      accountability. Funders and external stakeholders require more and more

      information. Association boards are looking internally and asking more of

      themselves and each other. Communication and education are central to

      accountability, but they only go so far when it comes to ensuring positive

      actions and results. The current approach to accountability encompasses

      much more than the traditional approach of counting numbers. It now

      encompasses effort, energy, and efficiency; it has become the key driver

      for organizational learning, performance, design, and behavior. Everyone

      needs to embrace the same definition of accountability in order to assure

      results. This requires a broader organization-wide approach to

      accountability, because, unfortunately, that definition isn't a pithy

      sentence for the minions to memorize. Rather it's a dynamic and complex

      ideal that all must embrace. Each organization will no doubt approach

      accountability differently, but as you frame the debate in your

      organization, here are seven key ingredients of any accountability

      definition.

      1. Setting Goals

      Goals drive organizational success. Without them, projects, initiatives

      and relationships are prone to drift and often become entirely rudderless.

      As a result of lack of direction, it becomes all but impossible to make

      real headway, because there is nothing in place to keep the organization

      on course.

      Goals set the parameters that circumscribe the effort. They frame, define,

      and focus the work to be done, eliminate ambiguity, provide a framework

      for gauging progress and measuring success, and set a context for the work

      to be done. They also increase motivation, because they harness and focus

      energy and action.

      The process for setting goals is evolutionary. It is accomplished on

      several planes, depending on the penetration of the effort desired and the

      complexity of the organizational structure. The initial goal setting must

      be implemented on the macro level. In some organizations this activity

      focuses on the entire business entity or on organizations within the

      organization. There must be alignment between the organizational goals and

      individual goals. As needs change over time, goals may need to be

      revisited and adapted to accommodate changing needs. Publishing goals

      minimizes the grapevine effect, clarifies intent, and affirms commitment.

      2. Clarifying Expectations

      Expectations are the assumptions we hold about others' intentions and

      behaviors. They have a direct impact on our interactions and behaviors as

      well. The very act of articulating expectations promotes

      self-accountability. It is tempting to assume that everyone is on the same

      page and knows what is expected once goals have been set. Whenever

      individuals, teams, and organizations move too quickly from goal to task

      without first clarifying expectations, they usually find themselves

      disappointed in the ultimate outcome, be it performance or results.

      It is unrealistic to hope for accountability unless expectations are

      clarified. Too often we "dance around" setting expectations for a myriad

      of reasons. We perceive that laying out and/or discussing expectations

      will have a negative impact on others. We fear that we might undermine

      trust, create suspicion about intention, or appear to be too structured.

      Clarifying expectations promotes individual, team, and organizational

      accountability. It also focuses individual and collective energy and

      effort. When individuals know what is required, they can self-manage

      better and feel a sense of ownership in meeting desired results or

      performance objectives. Clarifying expectations need not be heavy handed

      and excessively structured; rather, it should provide the scaffolding for

      focused action.

      Agreeing on expectations is important but not sufficient to guarantee

      sustainable accountability. Promoting shared accountability for

      expectations requires adherence to a process to ensure that expectations

      are both met as well as individually and collectively owned.

      3. Defining Roles and Responsibilities

      Defining roles and responsibilities provides a mechanism to clearly assign

      accountability to those responsible for carrying out a task at all levels

      of the organization. When roles and responsibilities remain unclear,

      multiple untested assumptions often supplant them. The ambiguity that

      results leads to unintended consequences such as the following.

        Individuals do the minimum required;

        Attempts to get work done using a scattershot approach forces others to

        pick up the slack;

        Long hours and extra work are exacted that are not essential to

        obtaining the result;

        Resentment and frustration block productivity;

        Work gets completed but not as efficiently and effectively as it could

        have been otherwise;

        The lines of accountability become blurred.

      Clear definition of roles and responsibilities promotes autonomy,

      ownership, and self-accountability. When individuals are confident about

      what it is in their control and what is not, they can step forward to

      accept responsibility with full knowledge of what is expected from them.

      Roles and responsibilities exercised out of a sense of ownership inspire

      commitment. Defining roles and responsibilities identifies specific

      benchmarks for performance and creates boundaries around the work to be

      done, both of which foster self-accountability.

      4. Monitoring Progress and Measuring Results

      It is not easy to monitor progress or measure results without having

      something against which to evaluate them. Setting goals, clarifying

      expectations, and defining roles and responsibilities provide that

      "something" — a frame or standard for evaluation.

      Monitoring progress and measuring results go hand in hand. Monitoring

      progress allows us to understand "movement," what is happening as learning

      unfolds. Measuring results provides data points to compare against a

      standard and each other. Both monitoring progress and measuring results

      can yield formative and summative data that promote process improvement

      and development. Monitoring progress and measuring results is an essential

      accountability process for individuals, teams, and organizations that want

      to build their capacity to grow and improve.

      Monitoring progress should take place on individual, team, department, and

      organizational levels. When progress is monitored personally by the

      individual on a day-to-day basis, it is a very powerful — even dramatic —

      tool for promoting learning insights and self-accountability.

      There is an old saying that goes "what doesn't get measured doesn't get

      done." My experience is that when there is no advance planning, it doesn't

      get measured. Measurement is a long-term commitment that requires adequate

      preparation. Failure to continuously measure results detracts from the

      value initially created and limits an organization's ability to achieve

      sustainable results.

      Success factors, like goals, become extremely important in deciding what

      to measure. Together with the goals, they frame the measurement and

      evaluation process. There are many ways to go about measuring success,

      from questionnaires to performance assessments to focus groups to key

      informants. Some organizations are survey-averse. You need to know your

      organization and what works in the culture if you are to get accurate

      data. Think about data already available that you can access before you

      collect your data.

      Monitoring progress and measuring progress create value for an

      organization only when they are done deliberately and are carefully

      planned and continuously embraced. Spending adequate time to plan reaps

      dividends for years to come.

      5. Gathering Feedback

      Feedback encourages accountability in subtle and not-so-subtle ways. It,

      too, fosters ownership, nurtures commitment, and creates ongoing value for

      individuals, teams, groups, and organizations as a whole. The feedback

      process itself builds relationships, opens lines of communication,

      encourages participation, drums out resistance, engages people, and

      creates continuing interest and awareness. Information, insights, and

      learning gathered through the feedback process have tangible and immediate

      application. And as if that wasn't enough, regular feedback fosters a

      culture of continuous improvement and is the backbone of a learning

      organization.

      Gathering feedback is both a means and an ends part of accountability. It

      can be a means to an end, i.e., a data-gathering tool for monitoring

      progress and measuring results. Or, it can stand on its own as an

      intrinsic part of the accountability process.

      To reap its full benefit, feedback must be embraced proactively. Gathering

      feedback, in its broadest sense, means that the gathering is not just

      about amassing data but being able to use data so that it can be harvested

      for improvement and change. It is a looping process: learning from the

      feedback and integrating what is learned so that the return on the

      investment is clear and commitment is consolidated.

      Being able to ask for feedback, provide it, receive it, accept it, and act

      on it is all part of the gathering process. This can happen as informally

      as asking an open-ended question such as, "How are we doing?" The idea

      here is not to wait until something goes amiss but to ask the question

      regularly.

      Feedback loops serve as mechanisms for systemically thinking about and

      gathering feedback. Feedback loops promote accountability for planners and

      implementers, key organizational informants and participants, and

      organizational leaders.

      6. Formulating Action Goals

      Failure to act on lessons learned is a major stumbling block. When we

      don't act on what we learn, we block process improvement. When program

      champions sit on a task force, their sense of ownership, enthusiasm, and

      investment is high. The rose-colored glasses they don often prevent them

      from asking for and accepting feedback. After spending months planning and

      implementing a program, very few of us want to hear that we've missed the

      mark. But the lessons learned from such a circumstance are often more

      powerful than lessons learned from successes. Failure cannot be seen as an

      end; it must be embraced as a beginning.

      Poet Antonio Machado puts it this way:

        "Last night as I was sleeping, I dreamt, marvelous illusion, that I had

        a beehive here inside my heart. And the golden bees were making white

        combs of sweet honey from all my old failures."

      Oftentimes, however, the feedback may not point to total success or

      complete failure. Rather than try to claim success, it is important to

      take the next frequently overlooked step, which is to reflect critically

      on what we learn so that we can take action by formulating appropriate

      action goals and integrating process improvement.

      7. Integrating Process Improvements

      The final ingredient is actually the practice of the first six in a

      systematic way. Accountability is the portal to process improvement. It

      opens doors to action by requiring that goals are set, expectations are

      clarified, roles and responsibilities are defined, progress is monitored,

      results are measured, and feedback is continuously gathered and acted on.

      However, it is a demanding master. Without accountability doors remain

      shut to individual and organizational learning.

      Too often accountability is used either tacitly or overtly as a synonym

      for blame. For many, the fact that it was "Everybody's job" is enough;

      hold Everybody accountable. The reality is, accountability should be a

      positive part of an organization's culture. The failure wasn't Everybody's

      alone; the entire organization failed Everybody and itself. The fact is

      Everybody, Somebody, Anybody, and Nobody could have become a remarkable

      team if only they had taken the time to embrace the seven key processes

      needed to ensure that they achieved accountability.

      Author Link: Lois J. Zachary, Ed.D., is president of Leadership

      Development Services, LLC, in Phoenix, Arizona. She can be reached at

      (602) 954-9934.

E.   Justice of processes and procedures

Procedures and processes (dealings) are “just” if their application does not result in any party incurring a cost that exceeds the benefits derived (directly or indirectly).   Processes and procedures are also “just” if they are necessary and their application does not place disproportionate burdens on any person or group.  The “principle of just dealings” applies.

F.  Instant Runoff Voting

Instant runoff voting could be called preference voting – because that is what happens.  Instant runoff voting is explained as follows.

Consider an example that applies to Las Cruces.  Candidate A, Candidate B, and Candidate C are running for office.  The charter requires that the winner must receive at least forty percent (40%) of the votes.  Thirty votes were cast with each voter casting a vote for his or her first, second , and third choices.  The votes were counted for the first round with the following results.

First Round

No candidate received 40 % or more of the votes.  So, a second round was needed.

Second Round

Candidate received the fewest number of votes and was therefore eliminated from the second round process.  The nine (9) votes for Candidate C as their first choice also cast six (6) votes for Candidate A as their second choice and three (3) votes for Candidate B as their third choice.  These vote totals were added to the first round totals for Candidates A and B from the first round.  The second round count became:

Candidate A received 53% of the second round votes.  So, Candidate A won.

G.   The rights of the public

Registered voters who are residents of Las Cruces have specific rights under the charter.  They have the right to run for elective office.  The charter prescribes the procedures for all aspects of the elections process.  Registered voters who are residents of Las Cruces also have the power of local imitative (the right to petition to adopt a law), local referendum (the right to petition to repeal a law), and recall.  These powers serve as “checks and balances” on the actions of government.  However, the New Mexico Supreme Court, as well as the supreme courts of other states, has ruled that the powers of local imitative and local referendum are limited to “legislative” matters only.  The courts have held that “administrative” matters, such as implementing policies, appropriating funds, and the like, must be excluded from the power of local imitative and local referendum to prevent chaos or the possibility of preventing proper operations of government.  So, to eliminate confusion, the charter enumerates the “administrative” matters that are excluded from the power of local imitative and local referendum.

Direct Democracy: Initiative and Referendum Powers of Cities in New Mexico

 

Direct democracy is the power of the people at both the state and local level to directly exercise authority to enact and repeal laws. This authority is exercised through the powers of initiative and referendum.

What Are the Powers of Initiative and Referendum?

Basically, the power of initiative as applied to municipalities refers to the authority of the voters of a city to directly initiate and enact legislation. The process involves an initial petition, containing a specified number of signatures, which proposes an

ordinance for adoption. If the number of signatures is sufficient, the issue must either be adopted by the city council or submitted to the entire electorate of the city for adoption or rejection at an election.

Referendum in a municipality is the right of the people to require the city council to either repeal a legislative ordinance previously adopted by the city council or submitted to the voters for approval or rejection at an election.

What Types of Legislation are Subject to the Initiative and Referendum Process?

 Even if the citizens of a city have available the powers of initiative and referendum, this does not mean that every type of legislation is subject to these powers. There are a number of limitations on the powers. Some of these limitations are contained in the statutory grant of the powers by the state legislature to cities and some have been imposed by the courts of the state.  Only ordinances may be enacted by initiative or repealed by referendum. These powers do not apply to any other type of legislative enactment by a city council, such as proclamation or resolution.

 The Administrative/Legislative Distinction

The courts in New Mexico have noted that there is an inherent limitation on the right of initiative and referendum in that it only extends to matters legislative in character as compared to administrative actions.  Therefore, the scope of the power of initiative or referendum is restricted to ordinances adopting legislative policy and is not extended to ordinances effecting administrative actions.

This of course raises the question of what is an administrative action and what is a legislative action.  There are two tests which the courts have consistently utilized in making this determination.

            First Test: Actions taken on subjects of a permanent and general

            character are usually regarded as legislative matters, and actions

            taken on subjects of a temporary and special character are usually

            regarded as administrative matters.

Second Test:  The power to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in its nature if it merely

            pursues a plan already adopted by the legislative body or some power

            superior to it.

Even with these tests as guides, it may not always be clear whether a matter is legislative and subject to initiative and referendum or administrative.  One way to help understand this test is to review some State of New Mexico and State of Washington court cases in which the courts have characterized various actions as being either legislative or administrative in nature (all courts use the two tests to form an op[n[on). The following cases provide some guidance:

            The setting of utility rates is administrative in nature.

            Johnson v. City of Alamogordo, NM Supreme Court (1996)

            The selection of a contractor and the numerous other conditions

            incident to a building contract are administrative in nature.

            Ruano v. Spellman, 81 Wn.2d 820 (1973);

            An ordinance amending a comprehensive street name ordinance is

            administrative in nature since it is enacted pursuant to a plan

            already adopted by the legislative body. Heider v. Seattle, 100

            Wn.2d 874 (1984);

            A site specific rezone amendment is administrative in nature since

            it implements the zoning code or comprehensive plan already

            enacted. Leornard v. Bothell, 87 Wn.2d 847 (1976);

            Implementation of a punch card ballot system is legislative in

            nature. Ballasiotes v. Gardner, 97 Wn.2d 191 (1982).

            The setting of rates is a legislative act. Earle M. Jorgensen Co.

            v. Seattle, 99 Wn.2d 861 (1983) and Scott Paper Company v.

            Anacortes, 90 Wn.2d 19 (1978).

            Action in granting an unclassified use permit is administrative.

            Durocher v. King County, 80 Wn.2d 139 (1972).

            The enactment of a business and occupation tax is legislative in

            nature. Citizens for Financially Responsible Government v.

            Spokane, 99 Wn.2d 339, 662 P.2d 845 (1983).

            A decision concerning where to locate a multipurpose stadium is

            legislative in nature. Paget v. Logan, 78 Wn.2d 349, 474 P.2d 247

            (1970).

These cases give some indication of how the courts will analyze certain specific issues to determine if an item is legislative or administrative in nature. However, this is still not always an easy question and there may be differences of opinion.

Limitations on Initiative and Referendum: Corporate Entity vs. Legislative Body Distinction

The other test utilized by the courts to determine if an issue is subject to initiative or referendum is the distinction between a grant of authority by the state legislature to the city as a corporate entity or to its legislative authority or body (which is the city council for cities).  If the grant of authority is to the city as a corporate entity, direct legislation by the people is permissible in the form of initiative or referendum.  On the other hand, if the grant of power is to the legislative authority of the city, then initiative and referendum are prohibited.

The concept is that if the legislature has granted authority expressly to the city council in a statute, that authority may not be subject to the power of the people to enact or repeal legislation through the initiative or referendum process.

When applying this test, it is necessary to discover the statutory grant of authority underlying the action involved.  As an example, New Mexico Statutes Annotated 

(NMSA) 3-18-1. General powers; body politic and corporate powers, states:

 (1972)

“A municipality is a body politic and corporate under the name and form of government selected by its qualified electors. A municipality may:

A.     sue or be sued;

B.     enter into contracts or leases;

C.     acquire and hold property, both real and personal;

D.     have a common seal which may be altered at pleasure;

E.     exercise such other privileges that are incident to corporations of like character or degree that are not inconsistent with the laws of New Mexico;

F.     protect generally the property of its municipality and its inhabitants;

G.     preserve peace and order within the municipality; and

H.     establish rates for services provided by municipal utilities and revenue-producing projects, including amounts which the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities.” 

Since these powers are granted to the municipality, they are subject to initiative and referendum.  Actions are not subject to initiative and referendum.   As an example of how this determination is made, consider the issue of whether the citizens may pass an initiative rezoning an area of the city.  It is first necessary to determine if there is a specific statutory grant of power by the state legislature to either the city council or the city as a whole to rezone property.  There is such a grant of authority for cities in NMSA 3-19-6.   This statute specifically provide that the municipality as a whole has the power to divide the city into zones. Therefore, this power is subject to the power of initiative and referendum. Again, the first step is to determine if there is a specific statute which contains a grant of authority to the city as a whole or to the city council to so operate a water utility system. In this case, there is such a statutory grant in RCW 35.92.010. That statute indicates that a city or town may acquire and operate a water utility system. Therefore, the grant of authority is not limited to the city council but is a grant to the city as a whole. Presumably this issue would be subject to the initiative power.  In another example, is the hiring or firing of the city manager subject to the powers of initiative or referendum?  NMSA grants to the city council the power to hire and fire the city manager.  So, that action is not subject to initiative or referendum.