Council votes to accept petition

By a vote of 7-2, the Greensboro City Council has accepted our petition to raise the minimum wage in Greensboro. In spite of the legal department's recommendation that the nearly 7,000 signatures collected should be tossed out because of confusing/conflicting language in the city's charter and other ordinances, the majority of the city council agreed that it should, in Mayor Johnson's words "do the right thing" and allow the petition to move through the regular channels.

This was a major hurdle for the campaign, but there is still a long way to go. The ordinance to raise the minimum wage was not accepted tonight (and wasn't intended to be accepted or rejected tonight). From here, as I understand it (please let me know if I have gotten anything wrong), the City Clerk will review the signatures for legitimacy, then the board of elections will review the signatures to make sure all who signed were registered voters. If all of that goes through (meaning that we still have in excess of 4,900 valid signatures after these reviews), the city council will then have the opportunity to vote on the ordinance itself - which raises the minimum wage in the city of Greensboro to $9.36. If the city council rejects the ordinance, it will be placed on the ballot in the next local election for the voters to decide. One of the city attorneys (Terry Wood) cautioned council tonight that there would likely be legal action taken at some point against the city for what he anticipated were legal problems with the wording of the petition.

We'll see how it unfolds. For now, I am re-energized by council's decision tonight in favor of a reasonable, democratic process designed to let citizens more directly engage in local government.

Go to the City Council meeting tonight - 5:30pm - to support the minimum wage campaign

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.

Council has authority to accept petition

Thankfully, the City Council has the opportunity, and the authority under the Charter, to declare its own interpretation of the Charter's language and grant validity to our 6,412 signatures. But they need to hear from us soon. If you live in Greensboro, or are otherwise motivated to do so, please call members of the City Council and urge them to declare the Minimum Wage petition valid and use the 2005 election as the standard, given that it was the most recent city election at the time the petition was first presented to the city clerk and the County Board of Elections.

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.

Let City Council know what you think.

Here is a message from Committee Co-Chair Marilyn Baird (pictured with Billy Jones and Donny Jones to the right):

Let me first thank you all for your support and the work everyone did on the petion drive. We petitioned with 6400 signatures.

We've not received an official response to our filing. But we have been advised by a source that the city attorney, Linda Miles, is trying to deny our petition.

Issue: On 12/1/2006 the petition was filed by the petitioners. We were advised by the election board prior to the filing that we would need 25% of those who voted in the most recent city council election. That number would be based on the 2005 City Council election. We would need 4, 972 signatures and we had until 12/01/2007 in which to present the required signature.

Our source has informed us that Linda Miles, city attorney has said that our petition isn't supported with the proper number of signatures. That the number of signatures is based on the most recent city council election in November , 2007. We expected this to happen.

We need your help! Below you will find an in depth piece on this issue written by retired Atty. Jim Boyett, co-chair. Here you will find a link to a listing of the city council members and their contact information. We need everyone to call or e-mail them. Let them know that Linda Miles' interpretation is FOOLISH and ask them to do the right thing! That the 6400 registered voters will not accept this foolishness.

Once again we've not received anything official from the city. The attorney will make an official decision possibly next week. It will then be sent to the city council. The city council will then make their decision on the interprtation of that statue.

Jim Boyett's piece:

This is not a legal issue it is a political issue.

The City Council should interpret its own City Charter with the advice of the Clerk and City Attorney. The City Council is the highest authority in the City and it is appropriate that they make the final decision as to what the Charter means. This is not a decision that can be left to the employees and staff agencies of the City.

Section 2.73 of the City Charter states as follows;

(a) Initiative, referendum and recall petitions shall be governed by the rules regarding form and sufficiency set out in this Section, as well as by such other rules regarding form and sufficiency as the City Council may impose by ordinance consistent with the provisions and with the spirit and purpose of this charter.

It is very clearly the responsibility of the City Council to determine the rules for how initiatives, referendums and recall petitions shall be conducted.

The Greensboro Minimum Wage Committee has submitted an initiative petition requesting an increase in the minimum wage. A lack of clarity exists in the present City rules regarding initiatives, referendums and recall petitions. This lack of clarity was caused by the State of North Carolina passing two statutes that added the requirement to register an initiative petition with the County Board of Elections prior to obtaining signatures and setting a time limit of one year on the gathering of signatures. These State changes have never been addressed by City ordinance to clarify their effect upon the City’s Initiative Procedure.

The question is how many signatures are required to meet the 25% requirement of voters who voted in the last election? Is the number determined as of the date of registration of the petition with the Board of elections or is the number subject to change during the year because of a new election being held in the City?

When we filed our petition the Deputy Director of the Board of Elections told us that we had one year to gather the signatures for our petition and that we needed 4972 signatures of registered voters to meet the 25% requirement.

The City Council should clarify the initiative procedure by ordinance so that citizens don’t have the rules changed in the middle of the game. We think that the 6412 citizens who signed our petition want the City Council to consider their petition on the merits not reject it on some technicality.

Signatures turned in

Word from Greensboro is that the committee turned in 6,400 signatures to the city clerk yesterday at a press conference that was attended by numerous community leaders. I've had a few calls from folks asking if we have enough signatures, given that nearly twice as many people voted last month in the local elections than had voted in 2005. Not knowing the answer myself, I asked committee member Ed Whitfield for his input. He explained that our committee initiated the citizens' initiative petition drive on December 1, 2006 and, at that time, the city clerk's office informed us that, given the election numbers from 2005, we would need approximately 4,900 signatures for our petition to formally be presented to the city council and that we had one year in which to collect those signatures. Since election day is regularly on the first Tuesday after the first Monday in November (look here for an interesting explanation of why this is) and since we can only assume that the city clerk understood that a local election would, therefore, take place prior to Dec. 1, 2007, we remain under the assumption that our number of required signatures was 4,900. (Side note: the signatures were turned in on Dec. 3 because the clerk's office told committee members that, because Dec. 1 fell on a weekend, we had until the following Monday to turn in the petitions.)

If you have other questions about the campaign, reply here and I'll do my best to get you an answer. Since I'm no longer in Greensboro, it might take a while, but I'll respond as soon as I can.