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Home My WebLink About1980-02-25 114 AH ORDER114 AH Introduced by Councilor Saucy, February 25, 1960 _ CITY OF BANGOR (TITLE.) Mr1TPr1-.Apcborfr4ng...Caeaxa9u aL Bass yack_corporatiaa _... ..... By the City Caused of the Oily ofBaayor: ORDERED, THAT the City Manager and the City Solicitor are hereby authorized to take all necessary action for purposes of creating a nev corporation to be known as the "Bass Park Corporation", the function. and purpose of said crporation being to operate and manage the Civic Center, the Bangor Auditorium, and other facilities at Bass Park. - IN CITY COMIL February 25, 1980 Motion to move the gnestion passed by the following yea and n Councilors voting Yes:6esldaoci, BiOcntas, Nc%ert n, Porter, Soucy. 'Weymouth, MwdeNItSurcilor voting n Gass and ZeeMsian. Pa"awl by the following yea and no vote$. Councilors voting yea: Baldacci, Brounta5, McKernan Porter, Soucy, veymmN and Wood. Councilors so m: Gass and; ran iZion. ate' CITY Cuast iia AN i a O ROE R Title, j Authorising Creation of Bass Park ....................................... Corper ation ...................... ......... .W. 821 P355 Introduced a dVc, ErvE" O lT / Bangor. the center of Maine—the Gateway to Maine'sNorth Woods and Seashore Retorts MEMORANDUM February 29, 1980 TO: Bangor City Council FROM: Robert E. Miller, City Solicitor RE: Proposed. Referendum on Council Order 114 AH - Bass Park Corporation On Priday, February 29, 1980, ten local citizens signed a petition in the City Clerk's office seeking a public referendum on Council Order 114 AH, adopted on Monday, February 25, 1980. Several people have inquired as to whether the item is subject to the referendum process. After reviewing various materials available in my office and the history of the proposal to date, it Is my conclusion that Council Order 114 All Is referrable. Article Il, Sec. 8 of the City Charter provides in part that: "The City Council shall act only by ordinance, order or resolve; ...." Provisions for a public referendum on actions by the Council are found in Article III of the City Charter. Sec. 1 of Article III states that: "No legislative ordinance, order or resolve passed by the City Council shall take effect until ten (10) days after its passage Sec. 2 of the same Article provides in part that: "The submission to the vote of the people .... of any legislative ordinance, order or resolve, enacted by the City Council and which has not yet gone into effect, may be accomplished by the presentation of a petition therefor to the City Council In the manner hereinafter provided". Sec. 2 goes onto provide the CRIS11.1w, 81PED, An" Q"01 TO (n)7)H1.w41 THOMAS S,•,t•11M. • Qfig of �Saagor; �Rame LEAAL DEPARTMENT MEMORANDUM February 29, 1980 TO: Bangor City Council FROM: Robert E. Miller, City Solicitor RE: Proposed. Referendum on Council Order 114 AH - Bass Park Corporation On Priday, February 29, 1980, ten local citizens signed a petition in the City Clerk's office seeking a public referendum on Council Order 114 AH, adopted on Monday, February 25, 1980. Several people have inquired as to whether the item is subject to the referendum process. After reviewing various materials available in my office and the history of the proposal to date, it Is my conclusion that Council Order 114 All Is referrable. Article Il, Sec. 8 of the City Charter provides in part that: "The City Council shall act only by ordinance, order or resolve; ...." Provisions for a public referendum on actions by the Council are found in Article III of the City Charter. Sec. 1 of Article III states that: "No legislative ordinance, order or resolve passed by the City Council shall take effect until ten (10) days after its passage Sec. 2 of the same Article provides in part that: "The submission to the vote of the people .... of any legislative ordinance, order or resolve, enacted by the City Council and which has not yet gone into effect, may be accomplished by the presentation of a petition therefor to the City Council In the manner hereinafter provided". Sec. 2 goes onto provide the manner in which ten registered voters of the City may originate a petition in the City Clerk's office and then the matter stands in abeyance for thirty business days during which npportunity-ts given to other voters to sign the .,petition. If the petition receives at least 500 signatures during the petition period, the City Clerk so advises the City Council and action is taken to place the item on the bailor for consideration by the voters of the City. The present item under consideration is an "order" of the Council. The question is then, is it "legislative" and therefore subject to the referendum process? Consideration of the proposed changes -in the administration of the --- affairs at Bass Park did not formally come to the Council until consideration of the budget. Although there had been many committee considerations of the proposal and at least one council workshop session, no formal action approving the change was taken until last Monday night. The first item which Involved the change was the general municipal appropriation for 1980. In my opinion this particular Item is not subiect to the referendum process. As I indicated during the meeting, a prior decision of the Maine Supreme judicial Court, Burkett v. Youngs, 135 Me. 959 (1938) specifically deals with the appropriateness of placing the City of Bangor annual appropriation resolve out for referendum. I n. --B u,r k•a tt:.',, _ the Court did not concern itself with the question of whether the item was - ,legislative" or "administrative" but rather whether it was a matter of "municipal affairs". The Court stated that "The referendum, as applied to municipal affairs, affects only those ordinances and resolves that am municipal legislation.- The Court went on to conclude that the appropriation resolve.-- tnvoived-fdatters which had been imposed_. by the State Legislature on municipalities, and therefore were prerogatives of state government and thus not referrable. In addition, a review of the appropriation resolve adopted by the Council the other night indicates no direct policy decision or statement regarding the substantialchanges projected In the revenues and expenses for the Bass Park facilities. Granted the Council discussion of the appropriation resolve involved the Bass Park change.' However, without knowing the background, an examination of the adopted budget would not lead one to conclude that the Council bad made a final decision as to the proposed reorganization. The first Item which spells out with -clarity the Cdnncil:s' pg1LCy:for a change id, Bass Park-ls Gpurtcit:ONer' lift AH._ -:Clearly this Alden indlcatear:; that tlPkproPPAed,4aeb, Park. Corporation would take over re sponsibilityllor=_ the operation and management of the Civic Center, Bangor Auditorium and other facilities at Bass Park. It is this Council Order which establishes to any degree the policy envisioned in the new reorganization. A review of treatises dealing with the subject matter of what items may be subject to the referendum process Indicates that there are few clear- cut miss for guidance. The power of initiative or referendum is usually restricted to legislative ordinances, resolutions or measures, and is not extended to executive or administrative action, although a city charter may dispense with this distinction .... Actions relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative. McQuillin, Municipal Corporations g 16.55, 211-213 Generally, an enactment originating a permanent law or laying down of a role of conduct or course of policy for the guidance of citizens or their officers or agents is purely legislative in character and referable, while an enactment which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable. If an act carries out an existing policy of a legislative body, it is administrative whether the policy came into existence in an enactment of the body Itself, in the organic law creating the body, or in an enactment of a superior legislative body. 42 Am Jur 2d "Initiative and Referendum" B 12,660. It might be argued that the policy or decision making process is not completed until the Council adepts the next item on the agenda, Council Order 115 All authorizing the lease -of --She Bass-Aarkdacilitles to the Bass Park Corporation. However, If one is to consider the pur- pose of the Bass Park Corporation, the policy decision is really involved in its creation. That policy is further implemented by the proposed leasing of the facilities to the new corporation. Additionally, the other proposals for repeal of two conflicting or non-functioning ordinances are merely implementation of the prior policy to change the manner in which the facilities are to be operated.and managed. Thus, in my lodgment, the latter three items are "administrative" and not subject to the referendum Process In conclusion, it is my opinion that Council Order 114 AH is subject to the referendum process; and if a sufficient number of valid signatures are affixed to the petition within the prescribed period, the item will have to be placed on the ballot for consideration at a future election In accordance with the requirements of Article III of the City Charter. R. E. M. W