Legislative Basics - Ideas into Law

By Paul Sullivan, Legal Consultant
Municipal Research & Services Center

This article explores the methods by which a local government can take legislative action and the process used for adoption of an ordinance. It is an excerpt, with footnotes and citations omitted, from Municipal Research & Services Center Report No. 50, Local Ordinances for Washington Cities and Counties, published in May 2000.

Alternatives of Form
The legislative bodies of counties, cities, and towns have various options available for taking legislative action, including the passage, adoption, or approval of ordinances, resolutions, rules, regulations, motions, and orders. It is, of course, important to be familiar with each option and when it is preferable to use one form instead of another.

An "ordinance," as that term is typically used, refers to a "local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct, relating to the corporate affairs of the municipality." Ordinances may be used for purely administrative purposes, such as to establish an office or set salaries. An ordinance can either regulate conduct or, for example, when establishing a crime, prohibit described conduct altogether.

A "resolution" typically is less solemn and formal than an ordinance and, "generally speaking, is simply an expression of the opinion or mind of the official body concerning some particular item of business or matter of administration coming within its official cognizance." Contrasted with an ordinance, which generally prescribes permanent rules of conduct or government, a resolution oftentimes will deal with matters of a special or temporary character. (Resolutions adopted by a county council or board of county commissioners may, in some instances, be similar to an ordinance, as many state statutes allow a county to adopt laws or take an official action either by resolution or "by ordinance or resolution." For purposes of this article, reference will be primarily to ordinances.)

When should an ordinance be used instead of a resolution? Obviously, if a state statute requires one form be used instead of the other, that requirement must be followed. If no particular form is specified, either a resolution or ordinance may be used. Ministerial and administrative acts may be exercised by resolution. Legislative acts, however, it is usually suggested, should be made by ordinance.

What is "legislative"? The general guiding principle is that "[a]ctions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative."

"Rules or regulations" are used to regulate the manner of doing municipal business or to establish certain types of procedures. They are subsidiary to ordinances and are generally updated when an ordinance, state, or federal law is amended. Rules and regulations do not carry penalties, relying instead on their underlying ordinances, upon which they are based, for enforcement authority. Rules or regulations remain in effect until suspended or revoked.

An "order" is used by a legislative body to direct a specific action be taken on behalf of the municipality. An order, for example, could be used to authorize the mayor or county executive to sign a contract. An order is less than a legislative enactment and requires little, if any, formality; for example, an order may be oral. Once an order has been complied with, it no longer has effect.

A "motion" is similar to an order; it provides authority to do a specified act. A motion is a proposal by a member, made at a meeting, that a legislative body take a particular action. The proposed action may be substantive, or it may express a certain view, or direct a particular action be taken. A motion, once approved and entered into the record, is the equivalent to a resolution.

The Adoption Process
Once an idea has been drafted into ordinance form, it is ready to be enacted by the county, city, or town legislative body.

Initiation and Presentation
State statutes are silent as to how ordinances are to be initiated. Thus, absent a charter provision detailing the process, each legislative body may determine the manner that must or should be used. Typically, when an ordinance has originated within the legislative body itself, the ordinance is presented to the clerk, who reads its title. The clerk's reading is usually considered to be the "first reading." The ordinance's "sEcond reading," which also is often by title only, usually occurs when the ordinance is up for general discussion by the entire legislative body.

Public Hearing
Unless a public hearing is required by statute before adopting an ordinance, none is required. There are relatively few instances when one is required, considering the large number of issues a council or board of commissioners routinely considers. A council or the commissioners, however, may want to conduct hearings even when not required to do so, either because a subject is controversial (such as for a tax or rate increase) or because citizen comment is useful in the development of public policy.

Final Action
When may final action occur?
Except for franchise and emergency ordinances, most ordinances may be passed during the same meeting at which they are introduced. (Local rules and charter provisions may, however, require a lapse of time between an ordinance's introduction and its final passage.) Passage of a franchise ordinance typically requires special procedures be followed, including a lapse of time between introduction and final passage. A legislative body may also need to follow special procedures to enact an emergency ordinance.

How many votes are required for passage? The number of votes required to pass an ordinance is dependent upon the classification of the municipality, the size of its legislative body, and, in some instances, the nature of the legislation involved. Here is an abbreviated recitation of the pertinent rules:

• SEcond Class Cities - Most ordinances require an affirmative vote of at least four councilmembers.

• Towns - Most ordinances may be enacted by majority vote of the councilmembers present at a meeting, once a quorum has been established.

• Code Cities - The passage of any ordinance requires an affirmative vote of at least a majority of the whole membership of the council.

• Non-Code Cities and Towns Operating under the Council-Manager Plan - An ordinance requires passage by an affirmative vote of at least a majority of the members of the city or town council.

• First Class Cities - For the most part, reference should be made to the city charter of a first class city to determine the number of votes necessary to pass an ordinance.

• Counties - The county statutes do not specify, at least for the most part, how many votes are needed to pass an ordinance. Under common law, a majority vote is sufficient for action, assuming a quorum is present. Thus, if there are three commissioners, two must vote affirmatively to pass an ordinance. If only two commissioners are present and there is a division between the two, the matter under consideration "shall be postponed to the next subsequent meeting."

Special rules may apply for the passage of franchise and emergency ordinances.

Veto
The mayor or county executive has veto power only when and to the extent the power has been vested in the position by law. Excluding first class cities and home rule counties, which are governed by their individual charters, the veto power is granted only to mayors in sEcond class cities and code cities organized under the mayor-council plan of government.

Signature and Attestation
Once passed, ordinances typically must be signed and attested. Reference should be made to the city or county charter for particular rules.

Publication
All cities and towns are required to publish every ordinance in their official newspaper. In lieu of publishing an entire ordinance, a city or town may publish a summary. If a city chooses to publish a summary, the summary should provide "a brief description which describes the main points of the ordinance" and include a statement that the full text of the ordinance will be mailed upon request.

The county statutes are not as specific. RCW 36.32.120(7) requires counties provide advance notice of proposed police or sanitary regulations prior to adoption by the legislative body. The notice may either set out a copy of the regulation or summarize its content.

The above discussion merely provides an abbreviated discussion of the use and adoption of ordinances and other legislative acts. Readers are encouraged to discuss the full process with the city or town attorney or the county prosecutor. Municipal Research & Services Center is also available to answer questions or offer other assistance. Copies of Report No. 50 are available for purchase from Municipal Research or may be reviewed at the MRSC Web site, http://www.mrsc.org/pubs/Ordinances.pdf.