Memorandum
City of Lawrence
City Attorney’s Office
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TO: |
Mayor and Commissioners |
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FROM: |
Toni R. Wheeler, City Attorney |
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C: |
Thomas M. Markus, City Manager Diane Stoddard and Casey Toomay, Assistant City Managers Brandon McGuire, Acting City Clerk
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DATE: |
April 27, 2016 |
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RE: |
Ordinances Concerning City Commission Elections, Terms of Office, and Related Matters |
Background
In 2015, the Kansas Legislature passed legislation moving municipal elections to the fall of odd-numbered years, as well as making other changes. This memorandum will summarize the legislative changes and the impact on our existing city code provisions. We have prepared ordinances to comply with the legislative changes.
Timing of Elections, Commencement of Terms, and Establishing Terms
The state law requires city elections to be held in November of odd-numbered years. It also requires the terms of newly elected officials to begin on the second Monday of January following the certification of the November general election. Under prior law, elections for the city commission were held in April of odd-numbered years, and the newly elected commissioners assumed their duties in the first regular meeting held after the certification of the city election (in early to mid-April).
The state law requires a city to establish by ordinance the terms of the city commissioners. Cities must also address how current office-holders will transition their terms to the new election cycle. The 2015 legislation contained one provision that stated that terms that would have ended in April 2017 will now end in January 2018, when the officials elected in the November 2017 general election take office.
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Commissioner |
Term Expiration Under Prior Law |
Term Expiration Under New Law |
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Mike Amyx |
April 2017 |
January 8, 2018 |
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Lisa Larsen |
April 2017 |
January 8, 2018 |
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Matthew Herbert |
April 2017 |
January 8, 2018 |
The 2015 legislation did not provide for the transition for city officials whose terms end in April 2019. Commissioners Boley and Soden have terms ending in 2019. There is Kansas case law that provides that where the legislature has changed municipal terms of office so that there is an interim period between when one term was to end and another term is to begin, the current office-holders continue in office until the newly-elected officials take office. (See Murray v. Payne, 137 Kan. 685 (1933).) In accordance with this long-standing rule, the proposed ordinance extends the terms of office for Commissioners Boley and Soden to January of 2020. This approach (of extending the terms of commissioners to the following January) has been taken by a number of other Kansas cities.
Other Election Matters – Filing Deadlines and Requirements
The 2015 legislation also contained numerous changes to candidate filing requirements. It moved the filing deadline for city offices to June 1 of the year of the election. It changed where candidates must file for office from the city clerk’s office to the office of the county election officer. It changed the filing fee for city office to $20 for all cities. It added a requirement that cities must establish by ordinance the number of qualified electors of the city that must sign a nomination petition.[1] It requires city clerks to now inform the county election officer of all city offices to be voted on at the next election not later than May 1 of every year that the city has an election. Finally, it authorizes cities to hold partisan elections after passing an ordinary ordinance.
Primary Elections
In moving city elections from April to November of odd-numbered years, the Legislature also moved the primary election for cities to August of odd-numbered years. In 2010, the City adopted a charter ordinance exempting itself from the then-effective city primary election statute, KSA 25-2108a. The effect of the City’s charter ordinance was to require a primary election if seven (7) or more candidates filed for the office of City Commissioner. Without the charter ordinance, a city primary election would have occurred only if 10 or more candidates filed for the office of City Commissioner. The City’s charter ordinance however, refers to an April primary election. That charter ordinance will need to be repealed because city primary elections have been moved to August. The effect of repealing the City’s existing charter ordinance will be to operate under the state law that calls for a primary election if 10 or more candidates file for office. If it is the desire of the City to continue to have primary elections if fewer than ten candidates file for office, then a new charter ordinance will need to be adopted. Staff requests the City Commission provide direction on this matter.
Vacancies on the City Commission
The 2015 legislation also addressed filling governing body vacancies. According to the League of Kansas Municipalities, the purpose behind the provisions of the legislation was to ensure cities fill governing body vacancies “in a timely manner so citizens are properly represented in their communities.” Proulx Aiken, An Analysis of the New Governing Body Vacancy Filling Process, 101 Kansas Government Journal 232, 233 (October 2015).
Under the law, cities that have a governing body vacancy filling process could continue to follow their procedure. If a city fails to fill the vacancy within 60 days by a majority vote of the remaining members, however, the city must pass a resolution calling for a special election to fill such vacancy. The special election must be held within 45 days of the passage of the resolution. It would be very challenging for the County Clerk to comply with the requirements of the state law and meet the requirements to forward ballots to persons serving in the military 45 days in advance of the election. Some cities are opting to exempt themselves from this state statute by passing a charter ordinance so that they can establish their own procedures and timeline for filling vacancies. Staff has prepared a charter ordinance exempting the City from this statute in the event the Commission wants to establish its own procedures for filling a prolonged vacancy on the city commission. (See proposed Charter Ordinance No. 43 described below.)
Terms for Mayor and Vice-Mayor
The 2015 legislation did not address the terms of office for mayor and vice mayor. At its regular meeting on April 5, 2016, the City Commission appointed a subcommittee to make a recommendation for the full commission’s consideration regarding the commission’s selection of the mayor and vice mayor in light of the 2015 legislation. Commissioners Herbert and Larsen provided the recommendation to the City Commission at its regular meeting on April 26, 2016. A written report prepared by Commissioner Larsen is attached to the agenda materials. The commission directed staff to incorporate the recommendation into an ordinance for the commission’s consideration at a future city commission meeting.
City Manager Plan Act
To achieve its goal to move all city elections to November, the Legislature repealed what was known as the City Manager Plan Act. Many city managers and city attorneys across the state (including Lawrence’s) expressed great concern at the repeal of the statutes, and the opportunity it provided to use an ordinary ordinance to overturn voter-approved adoption of the city manager form of government for many city governments. An amendment was subsequently introduced and adopted that recodified the core portions of the City Manager Plan Act. The amendment established that cities shall continue to operate under current forms of government adopted by an election (which includes the City of Lawrence), and that abandonment of such form of government may only occur after a local election. Our proposed ordinance contains a provision that affirms the fact that the City of Lawrence shall continue to operate under the manager-commission form of government.
Staff has prepared a number of ordinances to comply with the 2015 legislation. To the extent possible, the ordinances mirror our existing city code provisions. A summary of the ordinances follow.
Ordinance No. 9233: This ordinance repeals the existing Article 2 of Chapter I of the Code of the City of Lawrence, 2015 Ed., and amendments thereto, and replaces it with the necessary provisions to comply with the state law.
1-201: It affirms that the City will continue to operate as a commission – manager form of government.
1-202: It provides that the governing body shall consist of five (5) members.
1-203: It sets forth the qualifications for a city commissioner.
1-204: It states that candidates for the office of city commissioner may file with the County election officer. It has a provision for the City Commission to establish the number of qualified electors of the city that must sign a nomination petition.
1-205: It provides that the general election for the office of commissioner shall be in November of odd-numbered years and the primary election shall occur in August of odd-numbered years. This provision also provides that all elections for city commissioner shall be non-partisan.
1-206: It maintains the City’s tradition of having three offices of commissioner open for election every two years. The two candidates receiving the most votes shall serve four year terms, while the candidate receiving the third most votes shall serve a two year term. This section also moves the commencement date of the terms to the second Monday in January following the certification of the general election results. Section 1-206(a)(i) of the proposed ordinance addresses the transition of the current commissioners’ terms. The transition for the office of mayor, as recommended by Commissioners Herbert and Larsen, is set forth in Section 1-206(a)(ii) of the proposed ordinance. This section also maintains the requirement that commissioners take an oath of office before assuming a term of office on the governing body.
1-207: Under the proposed ordinance and consistent with the recommendation of Commissioners Herbert and Larsen, the selection of mayor will occur at the commission’s regular meeting on the second Monday of January of each year. The duties of mayor remain the same as in our existing code provisions.
1-208: This provision addresses the office of vice-mayor. It provides that the selection of vice-mayor will occur at the commission’s meeting on the second Monday of January of each year.
1-209: This section maintains the salaries of the mayor and commissioners at the current rate.
1-210: The meetings of the commission are open meetings, and three commissioners constitute a quorum.
1-211: This section refers to the appointment of the city manager by the governing body.
1-212: This section addresses the administrative departments of the City.
1-213: Under this section, the governing body is authorized to appoint members to various city boards and commissions.
1-214: This section is modified to reflect the City’s current practice of obtaining a policy of insurance for commissioners to protect the City from loss caused by actions of the commissioners.
A table comparing the language of the Ordinance No. 9233 with our current code is attached.
Ordinance No. 9234: This ordinance amends our code provision on meetings to allow for a meeting on the second Monday in January each year. This is necessary because the 2015 legislation provides that newly elected commissioners’ terms commence on the second Monday in January following the general election.
Charter Ordinance No. 42: This repeals Charter Ordinance No. 15 which had been adopted to establish the rate of pay for the mayor and commissioners. Charter Ordinance No. 15 references K.S.A. 12-1008, a statute that was repealed by the 2015 legislation.
This charter ordinance also repeals Charter Ordinance No. 41 governing the primary election for the office of city commissioner. Charter Ordinance No. 41 refers to the general election for the city commission occurring in April. With the general election of city commissioners moved to November, this Ordinance should be repealed to avoid confusion. The effect of the repeal of this ordinance will be that the City will follow the state law governing primaries for local elections. A primary will occur if ten or more candidates file for the office of city commissioner.
Charter Ordinance No. 43: This charter ordinance concerns the filling of vacancies on the City Commission. It exempts the City from, and makes inapplicable to it, K.S.A. 2015 Supp. 12-104a. It provides in its place that when there is a vacancy, the Governing Body will appoint a person as soon as practicable, by a majority vote of the remaining commissioners. It further provides that the Governing Bod has the discretion to choose the method for selecting a person to fill the vacant office.
Charter Ordinances – Special Procedures.
The Kansas Constitution allows cities to exempt themselves from either all or part of a state statute as well as provide substitute or new provisions, so long as the statute does not contain express language preempting cities from doing so. The law sets out the following requirements for drafting and adopting a proper Charter Ordinance, which include:
1. Charter Ordinances must be so titled.
2. A Charter Ordinance must designate specifically which part of a state statute is being made inapplicable to the city.
3. Any substitute and additional provisions require a two-thirds vote of the members-elect of the governing body of such city.
4. A Charter Ordinance, once approved, must be published once each week for two consecutive weeks in the official city newspaper or, if there is none, in a newspaper of general circulation in the city.
5. It cannot take effect until 60 days after its publication.
6. A Charter Ordinance may alternatively be approved via election petitioned either by at least 10% of electors or by the governing body. Approval by election requires publication in the newspaper once a week for three consecutive weeks before the election.
7. Charter Ordinances can only be repealed or replaced by another Charter Ordinance.
8. The City Clerk is tasked with recording the Charter Ordinance and providing a statement of the manner of adoption.
9. A certified copy of the Charter Ordinance must be filed with the secretary of state.
Additionally, Charter Ordinance’s must be assigned a number and treated like any other ordinance voted upon by the local governing body. Each Charter Ordinance must have an ordaining clause as required by K.S.A. 12-3005.
Action Requested
Place Ordinance Nos. 9233 and 9234, and Charter Ordinances Nos. 42 and 43 on the May 10, 2016 regular agenda for consideration by the governing body, if appropriate.
[1] Under prior law, a nomination petition had to be signed by 50 qualified electors or by a number of such qualified electors of the city equal to not less than 1% of the ballots cast and counted at the last general election, whichever is less. The City has over 61,000 qualified electors, according to County Clerk Jamie Shew. In the 2015 city election, 10,972 voters cast ballots. In 2013, 8,571 persons voted, and in 2011, 9374 persons voted in the city election.