City Attorney's Office recommends Council deny petition
The city attorney's office has recommended that the city council deny our petitiion. (Please see the opinion from the city attorney's office below.)
This petition will be before the city council on Tuesday night, 12/18/07, at its regularly scheduled meeting. We need as many as possible to attend that meeting which will take place in Council Chambers of the Melvin Municipal Building at 5:30pm.
We need the community to come out in force! Tell a friend and commit to bringing at least one person with you. We need to send a clear message to our elected officials that we've had enough.
Come and show your support. Any questions, please call Jim at 336-681-2890.
City Attorney's Opinion
(I know this is too long for a blog post; sorry)
Date: December 10, 2007
To: Juanita F. Cooper
City Clerk
From: Terry Wood
Legal Department
Subject: Opinion With Reference to Sufficiency of Initiative Petition for Higher
Minimum Wage Within the City of Greensboro
Background
On December 1, 2006, pursuant to NCGS § 163-218, a Petitioner’s Committee registered an Initiative Petition with the Guilford County Board of Elections indicating that it intended to circulate the Petition among the citizens of Greensboro. The Initiative Petition was prepared pursuant to Chapter II, Subchapter D, Article 2 of the Greensboro City Charter. This Article, among other things, allows citizens to Petition the City Council to proceed with an Initiative on proposed Ordinances to require Council to adopt such an Ordinance or bring the Ordinance before the citizens for an Initiative vote on the issue.
The Petition was signed by a number of persons and was presented to the City Clerk on December 3, 2007. NCGS § 163-219 requires that if the Petition is to remain effective it must be filed within one year after the date it is registered. December 3, 2007, would be a proper date for filing with the Clerk since December 1, 2007, fell on Saturday, a non-business day. See NCGS § 1A-1, NCRCP 6(a).
To be declared sufficient a Petition must meet several conditions. First, it must be signed by at least 25%, in number, of qualified voters who voted in the last preceding election for City Council Members. Second, it must request the adoption of an Ordinance that Council has the authority to adopt and which is not prohibited by Greensboro Charter Section 2.71(a)(2) or State Law NCGS § 160A-174. Third, it must comply with all other local, State and Federal laws.
Questions Presented
Is the Petition valid on its face and do the provisions of State Law and the Greensboro Charter allow such an Initiative Petition to be presented for the purpose of establishing a local minimum wage for the City of Greensboro in excess of the Statewide minimum wage established by the State Legislature pursuant to NCGS §95-25.3 (Supp. 2006)?
Opinion
In our Opinion there are least two issues which require the Petition to be declared insufficient on its face. Those issues will be discussed separately.
First, Section 2.71(a)(3) of the Greensboro Charter requires that the Petition be signed by a number of qualified voters equal to “at least 25% of the qualified voters of the city who voted at the last preceding election for City Council members.” Attached is a letter from the Guilford County Board of Elections indicating that there were 33,752 ballots cast at the last preceding election for Council Members, which was held on November 6, 2007. Twenty-five percent (25%) of that number would be 8,438 and that is the number required on a valid Petition filed December 3, 2007. The Petition filed with the City Clerk contains approximately 6,385 signatures, which is well below the required total. If there is a perceived inconsistency between the City Charter and the registration provisions of NCGS § 163-218 and 219 the City Charter provisions for filing control. See NCGS § 160A-3(b). The signatures have not been further verified for sufficiency since that process cannot in any way increase the number.
The second facial insufficiency pertaining to the Petition is its subject matter. Charter Section 2.73(d)(2) states that the Petition must be determined insufficient if it proposes “an Ordinance not subject to the power under which the petitioners are proceeding.” The Petitioners are requesting the City to adopt an Ordinance authorizing a local minimum wage in excess of that adopted by the State Legislature in NCGS § 95-25.3 (Supp. 2006). The adoption by the State Legislature of NCGS § 95-25.3 indicates a clear intent on its part to enact a Statewide law with reference to minimum wage. For a City to have independent authority to enact varying minimum wages the Legislature must, if constitutionally allowed, specifically delegate such authority to the City. See the NC Constitution, Art. II, Sec. 24(1)(j), which says no local law may be adopted regulating labor. Certainly no legislative attempt has been made to give Greensboro such authority. See also, McQuillan, 7 Municipal Corporations, § 24:320, (3rd Ed. Rev. 2005).
The statute which gives the City authority to adopt ordinances, NCGS § 160A-174 (b)(2), states that a City has no authority to “make unlawful an act . . . which is expressly made lawful by State . . . law.” Pursuant to State law, it is lawful to pay a minimum wage lower than that being proposed by the Ordinance attached to the Petition. Subsection (b)(5) of the same Statute indicates that a City may not propose an Ordinance that “purports to regulate a field for which a State . . . statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.” State law NCGS § 95-25.3 (Supp. 2006) clearly shows such an intent.
It is the Opinion of this Office that the Initiative Petition is insufficient on its face. If you concur, the Petitioners’ Committee should be so notified and Council advised by a Clerk’s Certification of Insufficiency at its next Regular Meeting. Section 2.73(g) states that your determination is subject to judicial review as set out in Charter Section 2.75 and that you take no further action on the Petition unless a court directs otherwise.
This petition will be before the city council on Tuesday night, 12/18/07, at its regularly scheduled meeting. We need as many as possible to attend that meeting which will take place in Council Chambers of the Melvin Municipal Building at 5:30pm.
We need the community to come out in force! Tell a friend and commit to bringing at least one person with you. We need to send a clear message to our elected officials that we've had enough.
Come and show your support. Any questions, please call Jim at 336-681-2890.
City Attorney's Opinion
(I know this is too long for a blog post; sorry)
Date: December 10, 2007
To: Juanita F. Cooper
City Clerk
From: Terry Wood
Legal Department
Subject: Opinion With Reference to Sufficiency of Initiative Petition for Higher
Minimum Wage Within the City of Greensboro
Background
On December 1, 2006, pursuant to NCGS § 163-218, a Petitioner’s Committee registered an Initiative Petition with the Guilford County Board of Elections indicating that it intended to circulate the Petition among the citizens of Greensboro. The Initiative Petition was prepared pursuant to Chapter II, Subchapter D, Article 2 of the Greensboro City Charter. This Article, among other things, allows citizens to Petition the City Council to proceed with an Initiative on proposed Ordinances to require Council to adopt such an Ordinance or bring the Ordinance before the citizens for an Initiative vote on the issue.
The Petition was signed by a number of persons and was presented to the City Clerk on December 3, 2007. NCGS § 163-219 requires that if the Petition is to remain effective it must be filed within one year after the date it is registered. December 3, 2007, would be a proper date for filing with the Clerk since December 1, 2007, fell on Saturday, a non-business day. See NCGS § 1A-1, NCRCP 6(a).
To be declared sufficient a Petition must meet several conditions. First, it must be signed by at least 25%, in number, of qualified voters who voted in the last preceding election for City Council Members. Second, it must request the adoption of an Ordinance that Council has the authority to adopt and which is not prohibited by Greensboro Charter Section 2.71(a)(2) or State Law NCGS § 160A-174. Third, it must comply with all other local, State and Federal laws.
Questions Presented
Is the Petition valid on its face and do the provisions of State Law and the Greensboro Charter allow such an Initiative Petition to be presented for the purpose of establishing a local minimum wage for the City of Greensboro in excess of the Statewide minimum wage established by the State Legislature pursuant to NCGS §95-25.3 (Supp. 2006)?
Opinion
In our Opinion there are least two issues which require the Petition to be declared insufficient on its face. Those issues will be discussed separately.
First, Section 2.71(a)(3) of the Greensboro Charter requires that the Petition be signed by a number of qualified voters equal to “at least 25% of the qualified voters of the city who voted at the last preceding election for City Council members.” Attached is a letter from the Guilford County Board of Elections indicating that there were 33,752 ballots cast at the last preceding election for Council Members, which was held on November 6, 2007. Twenty-five percent (25%) of that number would be 8,438 and that is the number required on a valid Petition filed December 3, 2007. The Petition filed with the City Clerk contains approximately 6,385 signatures, which is well below the required total. If there is a perceived inconsistency between the City Charter and the registration provisions of NCGS § 163-218 and 219 the City Charter provisions for filing control. See NCGS § 160A-3(b). The signatures have not been further verified for sufficiency since that process cannot in any way increase the number.
The second facial insufficiency pertaining to the Petition is its subject matter. Charter Section 2.73(d)(2) states that the Petition must be determined insufficient if it proposes “an Ordinance not subject to the power under which the petitioners are proceeding.” The Petitioners are requesting the City to adopt an Ordinance authorizing a local minimum wage in excess of that adopted by the State Legislature in NCGS § 95-25.3 (Supp. 2006). The adoption by the State Legislature of NCGS § 95-25.3 indicates a clear intent on its part to enact a Statewide law with reference to minimum wage. For a City to have independent authority to enact varying minimum wages the Legislature must, if constitutionally allowed, specifically delegate such authority to the City. See the NC Constitution, Art. II, Sec. 24(1)(j), which says no local law may be adopted regulating labor. Certainly no legislative attempt has been made to give Greensboro such authority. See also, McQuillan, 7 Municipal Corporations, § 24:320, (3rd Ed. Rev. 2005).
The statute which gives the City authority to adopt ordinances, NCGS § 160A-174 (b)(2), states that a City has no authority to “make unlawful an act . . . which is expressly made lawful by State . . . law.” Pursuant to State law, it is lawful to pay a minimum wage lower than that being proposed by the Ordinance attached to the Petition. Subsection (b)(5) of the same Statute indicates that a City may not propose an Ordinance that “purports to regulate a field for which a State . . . statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.” State law NCGS § 95-25.3 (Supp. 2006) clearly shows such an intent.
It is the Opinion of this Office that the Initiative Petition is insufficient on its face. If you concur, the Petitioners’ Committee should be so notified and Council advised by a Clerk’s Certification of Insufficiency at its next Regular Meeting. Section 2.73(g) states that your determination is subject to judicial review as set out in Charter Section 2.75 and that you take no further action on the Petition unless a court directs otherwise.
posted by Jill Williams at
2:34 PM
2 Comments:
From the City attorney: "The second facial insufficiency pertaining to the Petition is its subject matter. Charter Section 2.73(d)(2) states that the Petition must be determined insufficient if it proposes “an Ordinance not subject to the power under which the petitioners are proceeding.” The Petitioners are requesting the City to adopt an Ordinance authorizing a local minimum wage in excess of that adopted by the State Legislature in NCGS § 95-25.3 (Supp. 2006). The adoption by the State Legislature of NCGS § 95-25.3 indicates a clear intent on its part to enact a Statewide law with reference to minimum wage. For a City to have independent authority to enact varying minimum wages the Legislature must, if constitutionally allowed, specifically delegate such authority to the City. See the NC Constitution, Art. II, Sec. 24(1)(j), which says no local law may be adopted regulating labor. Certainly no legislative attempt has been made to give Greensboro such authority. See also, McQuillan, 7 Municipal Corporations, § 24:320, (3rd Ed. Rev. 2005)."
Again, the Greensboro City Attorney's office shows their ineptness and inability to stay current with the law as Federal courts ruled in 2006 that in granting broad police powers to cities, these cities have the right to set their own minimum wage. Greensboro, like all NC cities with their own police department and city council HAS been granted broad police powers by the State of North Carolina.
It's sad our highly paid city employees are so inept and even sadder that Greensboro's poorest people are forced to pay for their mistakes.
I think you are right, Billy. Some of the committee members are trying to put together a response about the inadequacies of this opinion from the city attorney's office. I will post that when there is some consensus. In the meantime, as usual, it seems like you've got a strong handle on the laws and the details, so please keep educating all of us as loudly and as much as you can.
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