HomeMy WebLinkAbout2010 03 18 Other Comparison Worksheets IX to XIII Distributed to Committee Members by City Attorney Anthony A. Garganese Date: March 18, 2010
The attached document was distributed to the
Committee Members by City Attorney Anthony A.
Garganese on March 18, 2010 Winter Springs Ad Hoc
Charter Review Committee Meeting.
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Comparison Worksheets
Articles IX to XIII
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ARTICLE IX. INITIATIVE AND REFERENDUM ARTICLE VI. ELECTIONS
Section 9.01. General authority. Section 6.04. Initiative, Citizen Referendum, and Recall.
(a) Initiative. The qualified voters of this city shall have power to (a) Alternative I - Provisions Provided by State Law. The powers of initiative, citizen
propose ordinances to the commission and, if the commission fails referendum, and recall are hereby reserved to the electors of the city.
to adopt an ordinance so proposed without any change in substance,
to adopt or reject it at a city election, provided that such power shall Alternative II - General Authority for Initiative, Citizen Referendum, and Recall.
not extend to the budget or capital program or any ordinance
relating to appropriation of money, levy of taxes or salaries of city (1) Initiative. The registered voters of the city shall have power to propose
officers or employees. ordinances to the council and, if the council fails to adopt an ordinance so
proposed without any change in substance, to adopt or reject it at a city
(b) Referendum. The qualified voters of the city shall have election, but such power shall not extend to the budget or capital program or any
power to require reconsideration by the commission of any adopted ordinance relating to appropriation of money, levy of taxes or salaries of city
ordinance and, if the commission fails to repeal an ordinance so officers or employees.
reconsidered, to approve or reject it at a city election, provided that
such power shall not extend to the budget or capital program, or any (2) Citizen Referendum. The registered voters of the city shall have power to
emergency ordinance or ordinances relating to appropriation of require reconsideration by the council of any adopted ordinance and, if the council
money or levy of taxes. fails to repeal an ordinance so reconsidered, to approve or reject it at a city
election, but such power shall not extend to the budget or capital program or any
Section 9.02. Commencement of proceedings; petitioners' emergency ordinance or ordinance relating to appropriation of money or levy of
committee; affidavit. taxes.
Any five (5) qualified voters may commence initiative or (3) Recall. The registered;, voters of they city shall have power to recall elected
referendum proceedings by filing with the city clerk an affidavit officials of the city, but no recall petition shall be filed against any official within
stating that they will constitute the petitioners' committee and be six months after the official takes office, nor, in case of a member subjected to a
responsible for circulating the petition and filing it in proper form, recall election and not removed, until at least six months after the election.
stating their names and addresses and specifying the address to
which all notices to the committee are to be sent, and setting out in (b) Commencement of Proceeding; Petitioners' Committee; Affidavit. Any five
full the proposed initiative ordinance or citing the ordinance sought registered voters may commence i nitiat i ve, c referendum, or recall proceedings by
to be reconsidered. filing with the city clerk an affidavit stating they will constitute the petitioners committee
Promptly after the affidavit of the petitioners' committee is filed, the and be responsible for circulating the petition and filing .it in proper form, stating their
clerk shall issue the appropriate petition blanks to the petitioners' names and addresses and specifying the address to which all notices to the committee are
committee within thirty (30) calendar days. to be sent, and setting out in full the proposed initiative ordinance, citing the ordinance
sought to be reconsidered, or stating the name and title of the officer sought to be recalled
accompanied by a statement, not to exceed 200 words, of the reasons for the recall.
Grounds for recall should relate to and affect the administration of the official's office, and
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• Section 9.03. Petitions. be of a substantial nature directly affecting the rights and interests of the public. Promptly
after receipt of a recall petition, the clerk shall serve, personally or by certified mail, a
(a) Number of signatures. Initiative and referendum petitions copy of the affidavit on the elected officer sought to be recalled. Within 10 days of service
must be signed by qualified voters of this city equal in number to at of the affidavit, the elected officer sought to be recalled may file a statement with the city
least fifteen (15) per cent of the total number of qualified voters clerk, not to exceed 200 words, in response. Promptly after the affidavit of the petitioners'
registered to vote at the last regular city election. When the committee is filed, and the response, if any, of the elected official sought to be recalled is
registered electors of the City of Winter Springs reaches 7,000, then filed, the clerk shall issue the appropriate petition blanks to the petitioners' committee.
the percentage changes to ten (10) per cent and remains ten (10) per
cent thereafter. (c) Petitions.
(b) Form and content. All papers of a petition shall be uniform (1) Number of Signatures. Initiative and citizen referendum petitions must be
in size and style and shall be assembled as one instrument for filing. signed by registered voters of the city equal in number to at least [5 to 10] percent
Each signature shall be executed in ink or indelible pencil and shall of the total number of registered voters to vote at the last regular election. Recall
be followed by the address of the person signing, and the date petitions must be signed by registered voters of the city equal in number to at least
signed. Petitions shall contain or have attached thereto throughout [10 to 20] percent of the total number of registered voters to vote at the last regular
their circulation the full text of the ordinance proposed or sought to election.
be reconsidered.
(2) Form and Content. All papers of a petition shall be uniform in size and style
(c) Affidavit of circulator. Each paper of a petition shall have and shall be assembled as one instrument for filing. E'ich signature shall be
attached to it when filed an affidavit executed by the circulator executed in ink or indelible pencil and shall be followed by the address of the
thereof stating that he personally circulated the paper, the number of person signing. Initiative and citizen referendum petitions shall contain or have
signatures thereon, that all signatures were affixed in his presence, attached thereto throughout their circulation the full text of the ordinance proposed
that he believes them to be the genuine signatures of the persons['] or sought to be reconsidered. Recall petitions shall contain the name and title of the
name they purport to be and that each signer had an opportunity official sought to be recalled, the statement of grounds for the recall, and the
before signing to read the full text of the ordinance proposed or response of the official sought to be recalled, if any. If no response was filed, the
sought to be reconsidered. petition shall so state.
(d) Time for filing referendum petitions. Referendum petitions (3) Affidavit of Circulator. Each paper of a petition shall have attached to it when
must be filed within thirty (30) days after adoption by the filed an affidavit executed by the person circulating it stating that he or she
commission of the ordinance sought to be reconsidered. personally circulated the paper, the number of signatures thereon, that all the
signatures were affixed in his or her presence, that he or she believes them to be
Section 9.04. Procedure after filing. the genuine signatures of the persons whose names they purport to be and that each
signer had an opportunity before signing to read the full text of the ordinance
(a) Certificate of the clerk; amendments. Within twenty (20) proposed or sought to be reconsidered.
days after the petition is filed, the city clerk shall complete a
certificate as to its sufficiency, specifying, if it is insufficient, the (4) Time for Filing Referendum and Recall Petitions. Referendum petitions
particulars wherein it is defective and shall promptly send a copy of must be filed within 30 days after adoption by the council of the ordinance sought
the certificate to the petitioners' committee by registered mail. A to be reconsidered. Recall petitions must be filed within [40 to 160] days of the
petition certified insufficient for lack of a required number of valid filing of the petitioners' affidavit initiating the recall procedure.
signatures may be amended once if the petitioners' committee files a
notice of intention to amend it with the clerk within two (2) days
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after receiving the copies of the clerk's certificate and files a (d) Procedure after Filing.
supplementary petition upon additional papers within ten (10) days
after receiving the copies of said certificate. Such supplementary (1) Certificate of Clerk; Amendment. Within twenty days after the petition is
petition shall comply with the requirements of subsections (b) and filed, the city clerk shall complete a certificate as to its sufficiency, specifying, if it
(c) of Section 9.03 and within five (5) days after it is filed with the is insufficient, the particulars wherein it is defective and shall promptly send a
clerk, the clerk shall complete a certificate as to sufficiency of the copy of the certificate to the petitioners' committee by registered mail. A petition
petition as amended and promptly send a copy of said certificate to certified insufficient for lack of the required number of valid signatures may be
the petitioners' committee by registered mail as in the case of an amended once if the petitioners' committee files a notice of intention to amend it
original petition. When a petition or amended petition is certified with the clerk within two days after receiving, the copy of his or her certificate and
insufficient and the petitioners' committee does not elect to amend files a supplementary petition upon additional papers within ten days after
or request commission review under subsection (b) of this section receiving the copy of such certificate. Such supplementary petition shall comply
within the time required, the clerk shall promptly present his with the requirements of paragraphs (2) and (3) of § 6.04(c, and within five days
certificate to the commission and the certificate shall then be a final after it is filed the clerk shall complete a certificate as to the sufficiency of the
determination as to the sufficiency of the petition. petition as amended and promptly send a copy of such certificate to the petitioners'
committee by registered mail as in the case of an original petition. If a petition or
(b) Commission review. If a petition has been certified amended petition is certified sufficient, or if a petition or amended petition is
insufficient and the petitioners' committee does not file a notice of certified insufficient and the petitioners' committee does not elect to amend or
intention to amend it or if an amended petition has been certified request council review under paragraph (2) of this subsection within the time
insufficient, the committee may within two (2) days after receiving required, the clerk shall promptly present his or her certificate to the council and
the copy of said certificate, file a request that it be reviewed by the the certificate shall then be a final determination as to ' the sufficiency of the
commission. The commission shall review the certificate at its next petition.
meeting following the filing of such request and approve or
disapprove it, and the commission determination shall then be a (2) Council Review. If a petition has been certified insufficient and the petitioners
final determination as to the sufficiency of the petition. committee does not file notice of intention to amend it or if an amended petition
has been certified insufficient, the committee may, within two days after receiving
(c) Court review; new petition. A final determination as to the the copy of such certificate, file a request that it be reviewed by the council. The
sufficiency of a petition shall be subject to court review. A council shall review the certificate at its next meeting following the filing of such
determination of insufficiency, even if sustained upon court review, request and approve or disapprove it, and the council s determination shall then be
shall not prejudice the filing of a new petition for the same a final determination as to the sufficiency of the petition. A council member who is
purpose. the subject of a recall petition shall not be eligible to act in the determination of
sufficiency or insufficiency of the petition.
Section 9.05. Referendum petitions; suspension of effect of
ordinance. (3) Court Review; New Petition. A final determination as to the sufficiency of a
petition shall be subject to court review. A final determination of insufficiency,
When a referendum petition is filed with the city clerk, the even if sustained upon court review, shall not prejudice the ,filing of a new petition
ordinance sought to be reconsidered shall be suspended from taking for the same purpose.
effect. Such suspension shall terminate when:
(e) Referendum Petitions; Suspension of Effect of Ordinance. When a referendum
(1) There is a final determination of sufficiency of the petition; or petition is filed with the city clerk, the ordinance sought to be ,reconsidered shall be
suspended from taking effect. Such suspension shall terminate when:
(2) The petitioners' committee withdraws the petition; or
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(i) There is a final determination of insufficiency of the petition, or
(3) The commission repeals the ordinance; or (ii) The petitioners' committee withdraws the petition, or
(iii) The council repeals the ordinance, or
(4) The supervisor of elections shall certify that the vote of the (iv) Thirty days have elapsed after a vote of the city on the ordinance.
electorate failed to repeal the ordinance reconsidered.
(f) Action on Petitions.
Section 9.06. Action on petition.
(1) Action by Council. When an initiative or referendum petition has been finally
(a) Action by commission. When an initiative or referendum determined sufficient, the council shall promptly consider the proposed initiative
petition has been finally determined sufficient, the commission shall ordinance in the manner provided in Article II or reconsider the referred ordinance
properly consider the proposed initiative ordinance in the manner by voting its repeal. If the council fails to adopt a proposed initiative ordinance
provided in Article IV, Section 4.15, or reconsider the referred without any change in substance within sixty days or fails to repeal the referred
ordinance by voting its repeal. If the commission fails to adopt a ordinance within thirty days after the date the petition was finally determined
proposed initiative ordinance without any change in substance sufficient, it shall submit the proposed or referred ordinance to the voters of the
within sixty (60) days or fails to repeal the referred ordinance city. The council shall promptly order a recall election to occur within
within thirty (30) days of the date the ordinance was finally [30 to 90] days of the date the recall petition was finally determined sufficient:
determined sufficient, it shall submit the proposed referred
ordinance to the voters of the city. (2) Submission to Voters of Proposed or Referred Ordinances. The vote of the
city on a proposed or referred ordinance shall be held not less than 30 days and not
(b) Submission to voters. The vote of the city on a proposed or later than one year from the date of the final council vote thereon. If no regular city
referred ordinance shall be held not less than ninety (90) days and election is to be held within the period prescribed in this subsection, the council
not later than one year from the date of the final commission vote shall provide for a special election; otherwise, the vote shall be held at the same
thereon. If no regular city election is to be held in the period time as such regular election, except that the council may in its discretion provide
prescribed in this subsection, the commission shall provide for a for a special election at an earlier date within the prescribed period. Copies of the
special election; otherwise, the vote shall be held at the same time proposed or referred ordinance shall be made available at the polls.
as said regular election, except that the commission [may] in its
discretion provide for a special election at an earlier date within the (3) Withdrawal of Petitions. An initiative, referendum, or recall petition may be
prescribed period. Copies of the proposed or referred ordinance withdrawn at any time prior to the fifteenth day preceding the day scheduled for a
shall be made available at the polls. vote of the city by filing with the city clerk a request for withdrawal signed by. at
least two- thirds of the petitioners' committee. Upon the filing of such request the
(c) Withdrawal of petition. An initiative or referendum petition petition shall have no further force or effect and all proceedings thereon shall be
may be withdrawn at any time prior to the fifteenth day preceding terminated.
the day scheduled for a vote of the city by filing with the city clerk
a request for withdrawal signed by at least four (4) members of the (g) Results of Election.
petitioners' committee. Upon the filing of such request the petition
shall have no further force or effect and all proceedings thereon (1) Initiative. If a majority of the registered voters voting on a proposed
shall be terminated. initiative ordinance vote in its favor, it shall be considered adopted upon
certification of the election results and shall be treated in all respects in the same
Section 9.07. Results of election. manner as ordinances of the same kind adopted by the council. If conflicting
ordinances are approved at the same election, the one receiving the greatest
(a) Initiative. If a majority of the qualified voters voting on a number of affirmative votes shall prevail to the extent of such conflict.
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proposed initiative ordinance vote in its favor, it shall be considered
adopted upon certification of the election results and shall be treated (2) Referendum. If a majority of the registered voters voting on a referred
in all respects in the same manner as ordinances of the same kind ordinance vote against it, it shall be considered repealed upon certification of the
adopted by the commission. If conflicting ordinances are approved election results.
at the same election the one receiving the greatest number of
affirmative votes shall prevail to the extent of such conflict. (3) Recall. Ballots used at recall elections shall read: "Shall [name] be recalled
(removed) from the office of ?" If a majority of the registered voters
(b) Referendum. If a majority of the qualified electors voting on voting on a proposed recall vote in its favor, the official is removed and the
a referred ordinance vote against it, it shall be considered repealed winning candidate for successor, if any, shall be elected as a replacement for the
upon certification of the election results. duration of the unexpired term. Otherwise the vacancy shall be filled in accordance
with § 2.06 (c).
Commentary. Unlike other provisions, this article must be completely self - executing. Detail should not be filled in by the council becau these devices guard
against possible inadequacies of council.
(a) Neither the initiative nor the referendum should be applicable to the budget, capital program, any ordinance relating to the appropriation of money or
the levy of taxes, or, of course, to salaries of city officers or employees, for this would interfere with responsible officials striving to achieve a properly
balanced long -range fiscal program. Recall should not apply to recently elected officials, because officials need time to establish themselves in office, and
because election results should not
be promptly challenged by another election.
(b) Requiring a petitioners' committee places clear responsibility for the undertaking of initiative, citizen referendum, or recall proceedings.
(c) The number of signatures required for initiative and referendum petitions in the seventh edition was fifteen percent of the total number registered to
vote at the last regular city election. The eighth edition permits charter drafters to decide upon a reasonable threshold for their city, chosen from a range
equal to or greater than five percent but less than or equal to ten percent of registered voters to vote at the last city election. The percentage used should
neither be too easy nor too burdensome. Communities typically require more signatures for recall petitions than for initiative and referendum petitions. In
determining the recall percentage, drafters should consider distinguishing between at -large and district offices. Limiting the period for filing a referendum
petition to thirty days after passage insures that the effective date of an ordinance will not be delayed unless the referendum effort is of serious
proportions. The timing of the recall procedure prevents the threat of recall from pending without limitation. The time period for signature collection
should be reasonably related 'to the signature requirement and the size of the city, within the provided range of 40 to 160 days.
(d) The mandatory language prevents the city clerk from delaying certification of the sufficiency or insufficiency of petitions beyond the twenty days
specified.
(e) The fact that filing a referendum petition with the city clerk suspends the effective date of an ordinance will spur the city clerk and the council into
prompt action on the question of sufficiency. When an ordinance is subjected to a referendum vote and the council's action is sustained, termination of the
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suspension must be delayed until sufficient time has passed for official determination of the election results. This will vary with local practice. The thirty
days indicated in § 6.04(e) (iv) is arbitrary. If there is a definite provision for the official reporting of election results, the lifting of the suspension should
probably coincide with the reporting.
(f) This section mandates council consideration of the proposed "initiative ordinance" and reconsideration of the "referred ordinance" prior to the
circulation of petitions and the ensuing ballot question. The words "adopt a proposed initiative ordinance without any change in substance" permit
correction of technical imperfections. If an election is necessary, provisions for submitting a proposed or referred ordinance to the ; voters, or ordering a
recall election, permit considerable latitude as to the election date to encourage holding the vote at a regular election if possible.
One of the most important reasons for requiring a petitioners' committee is to provide a mechanism for withdrawing an initiative, referendum, or recall
petition if those originating the proceedings change their minds or feel that action of the council satisfies the need which prompted the petition.
(g) Initiative ordinances approved by the electorate become effective, just as is the case with an ordinance passed by council, in thirty days or at whatever
later date is specified.
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ARTICLE X. AMENDMENTS ARTICLE VIII. CHARTER AMENDMENT
Section 10.01. General Authority. Section 8.01. Proposal of Amendment.
Amendments to this Charter may be proposed and adopted Amendments to this charter may be framed and proposed:
by the legislature of the State of Florida or by the city
commission pursuant to the home rule powers granted under (a) in the manner provided by law, or
the Constitution of the State of Florida, or by qualified voters
pursuant to Article IX of this Charter. (b) by ordinance of the council containing the full text of the proposed amendment and effective
upon adoption, or
(c) by report of a charter commission created by ordinance, or
(d) by voters of the city.
Proposal of an amendment by the voters of the city shall be by petition containing the full text
o f the proposed amendment and shall be governed by the same procedures and requirements
prescribed in Article VI for initiative petitions until such time as a final determination as to the
sufficiency of the petition is made, except that there shall be no limitation as to subject matter,
and that the petition must be signed by registered voters of the city equal in number to at least [5
to 10] percent of the total number of those registered to vote at the last regular city election.
The petitioners' committee may withdraw the petition at any time before the fifteenth day
immediately preceding the day scheduled for the city vote on the amendment.
Section 8.02. Election.
Upon delivery to the city election authorities of the report of a charter commission or
delivery by the city clerk of an adopted ordinance or a petition fmally determined sufficient,
proposing an amendment pursuant to § 8.01, the election authorities shall submit the
proposed amendment to the voters of the city at an election. Such election shall be
announced by a notice containing the complete text of the proposed amendment and
published in one or more newspapers of general circulation in the city at least thirty days
prior to the date of the election. The election shall be held not less than 60 and not more
than 120 days after the adoption of the ordinance -or report or the final determination of
sufficiency of the petition proposing the amendment. If no regular election is to be held
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within that period, the council shall provide for a special election' on the proposed
amendment; otherwise, the holding of a special election shall be as specified in state law.
Section 8.03. Adoption of Amendment.
If a majority of those voting upon a proposed charter amendment vote in favor of it, the
amendment shall become effective at the time fixed in the amendment or, if no time is
therein fixed, 30 days after its adoption by the voters.
Introduction. All charters require modification from time to time. In states where the constitution or statutes prohibit cities from adopting their own methods of
charter revision, this article cannot be used.
Commentary. This article lists four methods for proposing charter amendments. The first references any methods which are provided by state late, and the second is by
the council itself The third is by a charter commission, which in many states may be created by the council. Depending on the state, the procedures binding the charter
commission may be found in the constitution or state law. Often the procedures allow formation of the charter commission by petition or by ordinance. The final method
of charter amendment is by a voter - initiated petition. The signature requirement for charter amendment petitions should be a fixed percentage between five and ten
percent of registered city voters. It is important that the number of signatures required be substantial. It should be relatively difficult to amend the charter, and charter
amendments should not be used to harass officials.
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ARTICLE XI. SEVERABILITY
Section 11.01. Severability. Section 9.06. Severability.
If any provision of this Charter is held invalid the other If any provision of this charter is held invalid, the other provisions of the charter shall not be affected. If
provisions of the Charter shall not be affected thereby. If the application of the charter or any of its provisions to any person or circumstance is held
the application of the Charter or any of its provisions to invalid, the application of the charter and its provisions to other
any person or circumstance is held invalid, the persons or circumstances shall not be affected.
application of the Charter and its provisions to other
persons or circumstances shall not be affected thereby.
Commentary. A severability clause is a necessary precaution and should be included in every charter.
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ARTICLE XII. POWERS ARTICLE I. POWERS OF THE CITY
Section 12.01. Powers generally. Section 1.01. Powers of the City.
As provided in Article VIII, Section 2(b) of the State The city shall have all powers possible for a city to have under the constitution and laws of
Constitution, the City of Winter Springs shall have the this state as fully and completely as though they were specifically enumerated in this charter.
governmental, corporate and proprietary powers to enable the city
to conduct municipal government, perform municipal functions * Commentary was provided in Worksheets for Articles I — IV.
and render municipal services and may exercise any power for
municipal purposes except when expressly prohibited by law.
Note: The City Charter contains two separate provisions on
general city powers. See also Worksheets from Articles I through
IV. For your ease of reference, we have repeated Article III
herein.
ARTICLE III. POWERS OF THE CITY
Sec. 3.01. Generally.
The City shall have all powers possible for a city to have under
the constitution and laws of this State as fully and completely as
though they were specifically enumerated in this Charter.
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ARTICLE XIII. TRANSITIONAL ARTICLE IX. TRANSITION AND SEVERABILTTY
PROVISIONS
Section 9.01. Officers and Employees.
Section 13.01. City ordinances.
All city ordinances and resolutions which are in (a) Rights and Privileges Preserved. Nothing in this charter except as otherwise
force when this Charter becomes fully effective specifically provided shall affect or impair the rights or privileges of persons who are city officers or
shall remain in full force and effect to the extent that employees at the time of its adoption.
they are not in conflict with this Charter.
(b) Continuance of Office or Employment. Except as specifically provided by this charter,
Section 13.02. City contracts. if at the time this charter takes full effect, a city administrative officer or employee holds any office or
All rights, claims and contracts shall continue position which is or can be abolished by or under this charter, he or she shall continue in such office or
except as modified pursuant to the provisions of this position until the taking effect of some specific provision under this charter directing that he or she
Charter. vacate the office or position.
Section 13.03. City officials. (c) Personnel System. An employee holding a city position at the time this charter takes full effect,
All elected and appointed city officials shall retain who was serving in that same or a comparable position at the time of its adoption, shall not be
their respective positions until the first election held subject to competitive tests as a condition of continuance in the same position but in all other
pursuant to the requirements of this Charter. respects shall be subject to the personnel system provided for in § 4.02.
Section 13.04. First Elections under Charter. Section 9.02. Departments, Offices, and Agencies.
(a) The first election to be held under this Charter (a) Transfer of Powers. If a city department, office or agency is abolished by this charter, the powers
shall be for the purpose of electing persons to fill and duties given it by law shall be transferred to the city department, office or agency designated in this
the offices of mayor and of the two commission charter or, if the charter makes no provision, designated by the
members from seats designated as two and four city council.
respectively under the former Charter and as
commission seats two and four under this Charter, (b) Property and Records. All property, records and equipment of any department, office or agency
and whose terms expire in the year 2002. This first existing when this charter is adopted shall be transferred to the department, office or agency assuming
election shall be held at the time provided for in its powers and duties, but, in the event that the powers or duties are to be discontinued or divided between
Section 8.01 of this Charter for the election of units or in the event that any conflict arises regarding a transfer, such property, records or equipment
mayor and of commission members from seats shall be transferred to one or more departments, offices or agencies designated by the city council in
designated as two and four. The mayor and the two accordance with this charter.
(2) commission members elected at this election
shall serve for terms of four (4) years and until their Section 9.03. Pending Matters. All rights, claims, actions, orders, contracts, and legal administrative
successors are elected and qualified. proceedings shall continue except as modified pursuant to the provisions of this charter and in each
(b) The second election to be held under this case shall be maintained, carried on or dealt with by the city department, office or agency appropriate
Charter shall be for the purpose of electing persons under this charter.
to fill the offices of those commissioners from seats
(teciunated as nne three and five resne.Ctively under
12
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designated as one, three and five respectively under Section 9.04. State and Municipal Laws.
the former Charter and as commission seats one,
three, and five under this Charter and whose terms (a) In General. All city ordinances, resolutions, orders and regulations which are in force when this
expire in the year 2003, but which terms are hereby charter becomes fully effective are repealed to the extent that they are inconsistent or interfere with
extended for a period of one year to the year 2004. the effective operation of this charter or of ordinances or resolutions adopted pursuant thereto. To the
Said second election shall be held at the time extent that the constitution and laws of the state of permit, all laws relating to or affecting
provided for in Section 8.01 of this Charter for the this city or its agencies, officers or employees which are in force when this charter becomes fully
purpose of electing commission members from effective are superseded to the extent that they are inconsistent or interfere with the effective operation of
commission seats designated as numbers one, three, this charter or of ordinances or resolutions adopted pursuant thereto.
and five respectively under this Charter. The
commission members elected at this election shall (b) Specific Provisions. Without limitation of the general operation of subsection (a) or of the number
serve for terms of four (4) years and until their of nature of the provisions to which it applies:
successors have been elected and qualified.
(1) The following laws and parts of laws generally affecting counties or city agencies, officers
or employees are inapplicable to the city of or its
agencies, officers or employees: [enumeration]
(2) The following public local laws relating to the city of are
superseded:
[enumeration]
(3) The following ordinances, resolutions, orders, and regulations of
[former city governing body] are repealed: [enumeration]
Section 9.05. Schedule.
(a) First Election. At the time of its adoption, this charter shall be.in effect to the extent necessary in
order that the first election of members of the city council may be conducted in accordance with the
provisions of this charter. The first election shall be held on the of . The [city officials to
be designated] shall prepare and adopt temporary regulations that are applicable only to the first
election and designed to insure its proper conduct and to prevent fraud and provide for recount of ballots
in cases of doubt or fraud.
(b) Time of Taking Full Effect. The charter shall be in full effect for all purposes on and after the
date and time of the first meeting of the newly elected city council provided in §9.05(c).
(c) First Council Meeting. On the of following the first tlection of city
council members under this charter, the newly elected members of the council shall meet at [time]
at [place]:
' For the purpose of electing the [mayor and] deputy mayor, appointing or considering the
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appointment of a city manager or acting city manager, and choosing, if it so desires, one of its
members to act as temporary clerk pending appointment of a city clerk pursuant to § 2.08; and
Note: Omit bracketed words if § 2.03, Alternative I is used.
For the purpose of adopting ordinances and resolutions necessary to effect the transition of government
under this charter and to maintain effective city government during that transition.
(d) Temporary Ordinances. In adopting ordinances as provided in § 9.05(c), the city council
shall follow the procedures prescribed in § 2.12, except that at its first meeting or any meeting held
within sixty days thereafter, the council may adopt temporary ordinances to deal with cases in which there
is an urgent need for prompt action in connection with the transition of government and in which the
delay incident to the appropriate ordinance
procedure would probably cause serious hardship or impairment of effective city
government. Every temporary ordinance shall be plainly labeled as such but shall be introduced
in the form and manner prescribed for ordinances generally. A temporary ordinance may be
considered and may be adopted with or without amendment or rejected at the meeting at which it is
introduced. After adoption of a temporary ordinance, the
council shall cause it to be printed and published as prescribed for other adopted ordinances. A
temporary ordinance shall become effective upon adoption or at such later time preceding automatic
repeal under this subsection as it may specify, and the referendum power shall not extend to any
such ordinance. Every temporary ordinance, including any amendments made thereto after adoption,
shall automatically stand repealed as of the ninety-first day following the date on which it was adopted,
renewed, or otherwise
continued except by adoption in the manner prescribed in § 2.12 for ordinances of the kind concerned.
(e) Initial Expenses. The initial expenses of the city council, including the expense of recruiting
a city manager,- shall be paid by the city on vouchers signed by the council chairman.
(f) Initial Salary of Mayor and Council Members. The mayor shall receive an annual salary
in the amount of $ and each other council member in the amount of $ until such
amount is changed by the council in accordance with the provisions of this charter,
Introduction. Many charters do not facilitate transition from an old to a new form of government organization. More than almost any other part of the charter,
the article containing transitional provisions needs to be tailored to existing law and organization. The Model makes no claim to being' complete in this regard
but calls attention to matters that must be considered and provides a basic pattern for a transition article. Care in the preparation of this article will have
important benefits. It can disarm arguments that adoption of a new charter will harm existing personnel and the processes of the government. It may also save
the city from costly litigation and administrative confusion.
14
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The Model City Charter contains the following additional provisions, which are not contained in the City Charter of Winter Springs (Florida law provides a code
of ethics for public officers and employees):
ARTICLE VII. GENERAL PROVISIONS
Introduction.
All communities should have fully developed provisions dealing with the ethical expectations essential to responsible government. Ethics provisions foster public
trust in the integrity of city government and serve as a check on improper or abusive behavior by city officials and employees. Communities should also have .a
comprehensive campaign finance code requiring, at the least, disclosure of sources of money used in the campaign for city office. The amount of money flowing
into local races continues to grow and must be regulated to help avoid the public perception of corruption.
Section 7.01. Conflicts of Interest; Board of Ethics.
(a) Conflicts of Interest. The use of public office for private gain is prohibited. The city council shall implement this prohibition by ordinance, the terms of
which shall include, but not be limited to: acting in an official capacity on matters in which the official has a private financial interest clearly separate from that
of the general public; the acceptance of gifts and other things of value; acting in a private capacity on matters dealt with as a public official; the use of
confidential information; and appearances by city officials before other city agencies on behalf of private interests. This ordinance shall include a statement of
purpose and shall provide for reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and
contractual and regulatory matters and, insofar as permissible under state law, shall provide for fines and imprisonment for violations
(b) Board of Ethics. The city council shall, by ordinance, establish an independent board of ethics to administer and enforce the conflict of interest and
financial disclosure ordinances. No member of the board may hold elective or appointed office under the city or any other government or hold any political
party office. Insofar as possible under state law, the city council shall authorize the board to issue binding advisory opinions, conduct investigations on its own
initiative and on referral or complaint from officials or citizens, subpoena witnesses and documents, refer cases for prosecution, impose administrative fines, and
to hire independent counsel. The city council shall appropriate sufficient funds to the board of ethics to enable it to perform the duties assigned to it and to
provide annual training and education of city officials and employees, including candidates for public office, regarding the ethics code.
Commentary.
Many states have conflict of interest and financial disclosure laws which include local officials as well as state officials. Cities in these states may wish to
modify this section accordingly by either eliminating duplication with state law or providing for local filing of state forms to provilde local access to the
information.
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Instead of providing essentially statutory language, this section mandates council passage of ordinances covering certain basic subjects and which provide for a
specific mechanism to administer and enforce the law. This permits amendment as may be required without a referendum which would be necessary if the
charter covered the subject in detail. This provision shows that the charter is serious about the need for dealing with ethics problems but at the same time leaves
it to me city council to adopt the formulation most appropriate for the specific situation. It makes a provision for a Board of Ethics but leaves details on the
board's composition and procedure to the council.
Other provisions councils could adopt, but not listed in the Model, relate to acting in an official capacity over any campaign donor who contributes $ _ or
more to the official's campaign; the hiring of relatives; acting in an official capacity on matters affecting a prior employer within a designated time period after
leaving the employer; accepting outside employment while in office and accepting employment with an employer over whom the official or employee acted in
an official capacity, within a designated time period after leaving office. Westminster, Colorado pioneered the conflict of interest approach to limiting campaign
contributions, via .charter amendment, and other cities have expressed interest in following its example either by charter or ordinance. A, substantial number of
cities restrict hiring of relatives and prior, outside and subsequent employment arrangements.
Section 7.02. Prohibitions
(a) Activities Prohibited.
(1) No person shall be appointed to or removed from, or in any way favored or discriminated against with respect to any . city position or appointive
city administrative office because of race, gender, age, sexual orientation, disability, religion, country of origin, or political affiliation.
(2) No person shall willfully make any false statement, certificate, mark rating or report in regard to any test, certification or appointment under the
provisions of this charter or the rules and regulations made there under or in any manner commit or attempt to commit any fraud
preventing the impartial execution of such provisions, rules and regulations.
(3) No person who seeks appointment or promotion with respect to any city position or appointive city administrative office shall directly or
indirectly give render or pay any money, service or other valuable thing to any person for or connection with his or her test, appointment,
proposed appointment promotion or proposed promotion.
(4) No person shall knowingly or willfully solicit or assist in soliciting any assessment, subscription or contribution for any political
party or political purpose to be used in conjunction with any city election from any city officer or city employee.
(5) No city officer or city employee shall knowingly or willfully make, solicit or receive any contribution to the campaign funds of any
political party or committee to be used in a city election or to campaign funds to be used in support of or opposition to any candidate
for election to city office or city ballot issue. Further, no city employee shall knowingly or willfully participate in any aspect of any
political campaign on behalf of or opposition to any candidate for city office. This section shall not be construed to limit any
person's right to exercise rights as a citizen to express opinions or to cast a vote nor shall it be construed to prohibit any person from active
participation in political campaigns at any other level of government.
■
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CITY OF
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Penalties.
Any person convicted of a violation of this section shall be ineligible for a period of five years following such conviction to hold any city office or position and,
if an officer or employee of the city, shall immediately forfeit his or her office or position. The city council shall establish by ordinance such further penalties as it
may deem appropriate.
The activities prohibited by this section are antithetical to the maintenance of a sound, permanent municipal service. The prohibition against discrimination states
basic municipal policy which applies to all personnel relationships. Prohibiting fraud or attempted fraud and bribery in connection with appointments and
promotions by charter provision stresses the importance of maintaining the integrity of the public service. Prohibitions against political solicitation and
participation in political campaigns afford protection for the employee as well as the integrity of the system. State law of general application may be sufficiently
comprehensive to cover the activities prohibited by this section. If so, the charter need not contain these provisions except to give confirmation of public
acceptance of these policies.
Section 7.03. Campaign Finance.
a ,
(a) Disclosure. The city council shall enact ordinances to protect the ability of city residents to be informed of the financing' used in support of, or against,
campaigns for locally elected office. The terms of such ordinances shall include, but not be limited to, requirements upon candidates and candidate
committees to report in a timely manner to the appropriate city office: contributions received, including the name, address, employer, and occupation of each
contributor who has contributed or more; expenditures made; and obligations entered into by such candidate or candidate committee. In so far as is
permissible under state law, such regulations shall also provide for fines and imprisonment for violations. The ordinance shall provide for convenient public
disclosure of such information by the most appropriate means available to the city.
(b) Contribution and Spending Limitations. In order to combat the potential for and appearance of, corruption, and to preserve the ability of all qualified
citizens to run for public office, the city, shall, in so far as is permitted by state and federal law have the authority to enact ordinances designed to limit
contributions and expenditures by or on behalf of candidates for 'locally elected office. Ordinances - pursuant to this section may include but are not limited
to: limitations on candidate and candidate committees that affect the amount, time, place, and source of fmancial and in -kind contributions and voluntary
limitations on candidate and candidate committee expenditures tied to financial or non- fmancial incentives.
Commentary.
This section was added to the eighth edition in recognition of the substantial number of cities that nave enacted campaign finance laws since the seventh edition.
This trend indicates that increasingly large amounts of private money have permeated local elections and reflects public perception that such money has had a
distorting influence on the democratic process.
Section 7.03(a) provides for disclosure of candidate contributions and expenditures A strong majority of cities in the United States have some form of campaign
contribution and expenditure disclosure requirements. This section of the charter requires the city to provide for timely disclosure of such funds. It further
requires that disclosure of contributions above a certain threshold include me donor s employer and occupation. Such information allows citizens to identify the
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sources of fiztidin
g that influence local elections. The requirement that the city provide for "convenient public disclosure is meant to encourage electronic
disclosure over city web sites when such technology and resources are available.
Section 7.03(b) provides the city with express authority, but not a mandate, to enact any of the several innovative campaign finance laws that cities have enacted
. over the last three decades. This includes options such as contribution limitations, time limits on fund raising, and public financing as an incentive for candidates
to adhere to voluntary spending limits.
•
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19
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