Response to City Attorney's Opinion on Minimum Wage Petition

To: Greensboro City Council
From: Edward L. Whitfield, Greensboro Minimum Wage Petition Committee
Subject: Response to “Opinion With Reference to Sufficiency of Initiative Petition for Higher Minimum Wage Within the City of Greensboro”

After reading the opinion of the City legal department as to the sufficiency of our Initiative Petition for an ordinance to raise the Greensboro minimum wage, the Petitioners Committee respectfully requests that the City Council consider the following before making their decision as to the sufficiency of the Petition:

First, we would like to say that the fact that 6385 citizens of Greensboro want the City Council to take action to increase wages within the City is itself a serious matter. We would hope that the city leaders fully take into consideration the moral and political issues involved here as well as paying proper attention to the legal obstacles that are being raised.

When we filed out petition on December 1, 2006, the County Board of Elections told our Committee that based upon the City Election of 2005 we needed to gather 4972 signatures of registered voters within one year to have a valid citizen’s petition. Now at the end of that period, the City Attorney says that we need 8,338 signatures because it must be based on the election held in 2007. According to this interpretation of the statutes involved, a petitioner seeking to initiate a local initiative would have to guess at the number of names that are needed, then proceed to gather signatures for what was in our case over 11 months before finding out in the last three weeks of the allotted year whether or not their guess had been correct. Clearly, the intent of these ordinances is not so dubious. We are particularly concerned since we asked the city attorney’s advice about the interpretation of the regulations for an initiative and were told that he couldn’t guarantee that the petition would meet the sufficiency requirements and that he could not advise citizen petitioners. (We attached a letter of City Attorney dated February 28, 2006. I don't have it in electronic form to attach here, but will try to get it.)

We would hope that the City Council would consider using their power under Sec. 2.73 of the City Charter to clarify this initiative system so that everyone will know what election will be used in determining what constitutes the “25% of voters who voted in the last previous election” referred to in the law.

As to the substance of the issue raised by the City Attorney about whether the proposed initiative asks for the city to do something for which it is not authorized, we feel that it is misleading that the City Attorney tells you that no local law can be adopted regulating labor without giving you any of the context of the constitutional provision he relies on to make that statement. The same Article II Section 24 of the North Carolina Constitution that says that there can be no local acts regulating “labor, trade, mining or manufacturing” also says that there can be none relating to “health, sanitation, of the abatement of nuisances.” Surely we are not to understand this as saying that the City cannot be involved any of these affairs. We would also like to understand the ability of our city to offer huge incentives to individual corporations if it cannot be involved in regulating “labor, trade, mining or manufacturing”? We obviously need a fuller explanation here of what the State Constitution disallows. (See Article II Section 24 of the North Carolina Constitution.)

The City Attorney has failed to tell the City Council that the Federal law that establishes the minimum wage, The Fair Labor Standards Act of 1938, specifically provides that States and Municipalities can set higher standards than the Federal minimum and that because of this 32 states and the cities of San Francisco, California, Santé Fe and Albuquerque, New Mexico have their own minimum wage. Wouldn’t it be helpful to the City Council who must make this decision to understand why these cities can raise their minimum wages using their same general “police powers” but the City of Greensboro cannot?

We also feel that the City Attorney’s reference to NCGS 160A-174 is misleading and incomplete in that he uses, in a manner that we don’t feel to be accurate, the portion of the statute that talks about what is not permissible without mentioning at all that the statute also states “The fact that a State or Federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition.” Our proposed ordinance is proposing no change in the regulation of wages, only that there be a higher standard for the City of Greensboro as to minimum wage in accordance with State law and in accordance with the original Federal Minimum wage law which provides explicitly that local areas may establish higher minimums. We would like the City attorney to explain why he left out this important part of the statute. (See NCGS 160A-174.)

If the City Attorney can find any court case in North Carolina that has ruled a City cannot have a higher minimum wage than the state minimum, he should tell the City Council. If he can’t then he should not so simply dismiss this petition on its face.