Featured Inquiry (09/01/08)

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Question:

What is the status of an initiative petition that has been filed with the city even though the city has not adopted the powers of initiative and referendum?

Answer:

In our opinion, this would not be a valid initiative petition and it may not be submitted to the voters in its present format at the November election.

Citizens in code cities do not automatically have the powers of initiative and referendum on local issues. While these powers are available to citizens on statewide issues under the state constitution, there is no provision in the constitution that grants voters a similar right to initiative and referendum powers on local matters.

In view of the fact that the state constitution does not provide for local powers of initiative and referendum, the state legislature, when it adopted the Optional Municipal Code, Title 35A RCW, provided a mechanism by which the powers of initiative and referendum can be adopted by each city individually. This process is set out in RCW 35A.11.080 – 35A.11.100. Most code cities in this state have not adopted the powers of initiative and referendum. Of the state's 188 code cities, only 50 have adopted the powers of initiative and referendum. Code cities that have not followed the process to adopt these powers may not utilize them. In view of this, the petition submitted has no legal effect and may not be processed as a formal initiative.

There are at least three options available to the city council in view of the fact that this petition has been submitted. The first is for the council to take no formal action on the petition because it is not a valid initiative and no response is required under state or local regulations. Second, the city council could adopt the ordinance on this subject as requested in the petition in the same manner that they adopt any other city ordinance. This is always an option on a legislative matter. Third, the council does have the authority to submit an issue to the voters at an election on the basis of what we would call an “advisory ballot.” It is important to recognize the difference between an advisory ballot and a formal initiative to enact a specific ordinance. The advisory ballot is just what it implies – it is a nonbinding vote to obtain an understanding of the sentiment of the public on an issue, but it has no legal significance in regard to any required council action. The council can follow the majority vote of the citizens and take the action requested, or the council can decide not to act, even if a majority of the voters favor the measure submitted on the advisory ballot. There is not really an established process for an advisory ballot, but the city council would need to pass and submit a resolution to the county auditor asking that a city issue be placed on the ballot as an advisory measure. No petition or citizen signatures are required for an advisory ballot.