Council considering suspending 3 reading rule

[Betsy Voinovich]

Hi all,

Council person Monique Smith emailed me back and said to go ahead and post her entire letter, so here it is. Thanks Monique.


On Tue, Apr 19, 2011 at 8:22 AM, Smith, Monique <Monique.Smith@lakewoodoh.net> wrote:

Good morning, Betsy.

Thank you for the email and for bringing it to my attention that there are some questions and concerns out there about the three reading rule for non-permanent resolutions.

Per your request, I mentioned your email and concerns on the record last night, as you were unable to attend the committee meeting where this ordinance was deliberated and the council meeting (which is mostly where we just take our votes, though additional discussion may sometimes arise there, too). Last night, this matter was placed on second reading and remains in committee for further deliberation. The Law Department has agreed to try to identify a clear definition of what "non-permanent" means when referring to subjects that Resolutions may be used to support, though for as far back as anyone can remember (and our clerk of council has knowledge and experience with many, many past councils) we have only used Resolutions for extremely lightweight topics such as to commend a member of the community, express support for a cause, or thank a person or organization for a contribution to the city. Our current approach is to always vote to suspend the rules and pass the Resolution on first reading, often because the Resolution reflects support for a person who is present on the night that it is read or a significant event/date that is imminent.

Below is a section of the charter that discusses Resolutions, for your reference:

"SECTION 8. ENACTMENT OF ORDINANCES AND RESOLUTIONS. Each proposed ordinance or resolution shall be introduced in written or printed form and shall not contain more than one subject, which shall be clearly stated in the title; but general appropriation ordinances may contain the various subjects and accounts for which moneys are appropriated. On the passage of each ordinance or resolution the vote shall be taken by yeas and nays and entered upon the Journal. No resolution of a permanent character or ordinance shall be passed until it has been read by title only, unless a majority shall request that it be read in its entirety on three (3) separate days unless the requirement of reading on three (3) separate days has been dispensed with by a two-thirds (2/3) vote of all of the members elected to Council taken by yeas and nays and entered upon the Journal, but no ordinance or resolution shall under any circumstances be adopted or passed unless it has been read on three (3) separate days, (a) which changes the amount of salary or compensation for any elected officer of the City, (b) which amends any zoning ordinance, (c) which grants, renews or extends a franchise or other special privilege, (d) which regulates the rate to be charged by a public utility for its services. The enacting clause of all ordinances passed by the Council shall be "Be it ordained by the City of Lakewood." The enacting clause of all ordinances submitted by the initiative shall be "Be it ordained by the people of the City of Lakewood." No ordinance or resolution or section thereof shall be revised or amended unless the new ordinance or resolution contains the entire ordinance or resolution or section to be revised or amended, and the ordinance, resolution, section or sections so amended shall be repealed."

Betsy, our council is truly committed to transparency, and often goes way beyond what our charter requires by way of being open and accessible in every way. We actually create a lot more work and take up a lot more personal time than we have to by doing things this way, but we believe it's what's right for Lakewood. I would be more than happy to talk to you about this or give you examples next time I see you. I appreciate your commitment to protecting that openness, but I assure you that our proposed change to the Resolution rule does not threaten that in any way. We are simply doing some administrative "housekeeping" by bringing our codified ordinances into alignment with our charter. I would encourage you to come to our next committee meeting and/ or give a call to Kevin Butler in his capacity as Law Director for a better explanation than the one I've given in this short email before running off to work this morning. We hope to see you at an upcoming meeting and really do appreciate your input.

[David Anderson]

I wanted to let everyone know that a Rules and Ordinances Committee meeting has just been scheduled to further discuss the possibility of amending the three reading rule for non-permanent resolutions.

Thursday, May 19, 6:00 p.m., City Hall

Yours in service,

David W. Anderson
Councilman, Ward 1

[Betsy Voinovich]

I wanted to let everyone know that a Rules and Ordinances Committee meeting has just been scheduled to further discuss the possibility of amending the three reading rule for non-permanent resolutions.

Thursday, May 19, 6:00 p.m., City Hall

Yours in service,

David W. Anderson
Councilman, Ward 1

Hi David,

Thanks for posting this. I didn't realize that you were a part of this committee. I received a reminder and a copy of the agenda from Counciman Nowlin which I will post here. It's gratifying to know that when we reach out, you guys reach back.

Here's the agenda, courtesty of Councilman Nowlin:NOTICE OF MEETING – PLEASE POST



RULES & ORDINANCES COMMITTEE

There will be a Rules & Ordinances Committee Meeting Thursday, May 19, 2011, at 6:00 PM in the Jury Room in Lakewood City Hall, 12650 Detroit Avenue, Lakewood, Ohio. The agenda is as follows:

1. Communication from Mr. Butler (Councilmember at time of referral) regarding Community Relations Advisory Commission Report (anti-idling education) (Referred 2-7-11)

2. Communication from Councilmember Nowlin &

PROPOSED ORDINANCE 13-11 - 121.10 Amend Three Readings Rule for Passage of Legislation. (1st Read at the 4/4/11 Regular Council Meeting, 2nd reading 4/18/11 )

2. Communication &

PROPOSED ORDINANCE 21-11 from Law Dir Butler regarding permitting Library Sculpture on public right-of-way(1st Read 5/2/11)


Ryan Nowlin, Chair

David Anderson, Tom Bullock; Members

RULES & ORDINANCES COMMITTEE
------------------------------------------------------------------------------------------

Another meeting I can't attend, this one because of the Lakewood all elementary band and orchestra concert, which my son will be playing in for the first time.

I hope that it might be possible for someone to go to communicate in person with our council members.

Though I've had this explained to me several times now, by Kevin Butler and Monique Smith-- I'm still not quite getting why changing the three reading rule is necessary or desirable.

I read through this thread today to reacquaint myself with this issue.

Betsy, this proposal merely brings our ordinances in line with our municipal "constitution" -- the charter.

The charter requires three readings for "resolution[s] of a permanent character or ordinance[s]," unless Council suspends the rules requiring three readings in order to adopt items on fewer than three readings. Thus, resolutions of an impermanent character wouldn't need more than one reading under the charter.

Section 121.10 of the Codified Ordinances nearly restates this charter provision, but requires three readings for ordinances and all resolutions, regardless of whether those resolutions are considered permanent. Council may still vote to suspend the rules, however. The practical effect is that Council under this ordinance has voted to suspend the rules requiring three readings on even impermanent resolutions -- items congratulating city retirees, for instance, or voicing Council's support for legislation elsewhere -- requiring a level of formality that is neither contemplated in the charter nor warranted.

Councilman Nowlin's proposal, if adopted, would resolve this discrepancy, bringing Section 121.10 in line with the citizens' intent as announced in the charter. I hope that explanation helps.

The Law Department has agreed to try to identify a clear definition of what "non-permanent" means when referring to subjects that Resolutions may be used to support, though for as far back as anyone can remember (and our clerk of council has knowledge and experience with many, many past councils) we have only used Resolutions for extremely lightweight topics such as to commend a member of the community, express support for a cause, or thank a person or organization for a contribution to the city. Our current approach is to always vote to suspend the rules and pass the Resolution on first reading, often because the Resolution reflects support for a person who is present on the night that it is read or a significant event/date that is imminent.


Betsy, our council is truly committed to transparency, and often goes way beyond what our charter requires by way of being open and accessible in every way. We actually create a lot more work and take up a lot more personal time than we have to by doing things this way, but we believe it's what's right for Lakewood. I would be more than happy to talk to you about this or give you examples next time I see you. I appreciate your commitment to protecting that openness, but I assure you that our proposed change to the Resolution rule does not threaten that in any way. We are simply doing some administrative "housekeeping" by bringing our codified ordinances into alignment with our charter.

So it seems like this gets down to defining what is meant by the word "impermanent." I understand Kevin Butler's point about being "required" to use a three reading rule even on "impermanent" resolutions like "thanking a person."

Monique Smith says that as far back as anyone can remember they have only used Resolutions for extremely lightweight topics such as to commend a member of the community, express support for a cause, or thank a person or organization for a contribution to the city.

My issue after reviewing this again, is that there is no stated legally defined description of what "impermanent" means. Just because "as long as anyone can remember" they've only been using it to mean "lightweight things" doesn't mean that that couldn't change.

What is impermanent? An appointment? That's not permanent, a person isn't REALLY in the job until they are elected, but it's pretty permanent and important, given all of the power any member of Council, School Board, or Mayor has. Is awarding a contract "impermanent"? It's only good for as long as it takes to fulfill the contract, then it's done. That's not permanent.

This is what worries me. I like what Monique says about taking the extra steps to guarantee transparency. Above, she says that they "go above and beyond what the charter requires in terms of being open and accessible, and create a lot more work, but we believe that's what's right for Lakewood."

I agree with her. I think that's what's right for Lakewood also. I think it's very important. I understand the validity of wanting to streamline a process, but when there is no legal definition of "impermanent" it seems that the only way to safeguard transparency is to continue to have a three reading rule, that can be suspended at ANY TIME, and easily, by a council member moving to suspend it. Then there is a record of what it is, who wanted to suspend it, and why. And it takes about a minute.

Clearly if something is a resolution honoring a birthday, they suspend this very quickly and often. The scenario that scares me is a Resolution that is not so easy to define. If this ordinance is changed to make ONE READING THE RULE, what if a Resolution comes up that one member or two members, or even some members of the community feel REQUIRES more than one reading. Now the time has to be taken for someone to move to suspend the ONE READING rule, and go back to the three reading rule. And everyone might not vote to do that. So that resolution might be read (and be passed!) in one reading anyway, even though a council person or two, or members of the community felt that it needed more attention.

Again, I'm paranoid because this is exactly how I've seen the School Board conduct business, steamrolling the one or two Board members who might object to one reading because he/she or they feel it requires more time and attention. "You lose," they say. "It's over."

It seems simpler, MUCH simpler, to leave it alone. If it's a lightweight resolution, the motion to go to one-reading is easily and painlessly done.

If it's not so simple, the only way to make sure the community is respected, and our council members are respected, is to give them the time and space they might need.

Another way to do this would be to add language to the Charter defining exactly what "impermanent" is, I suppose. I don't know how difficult that is. It seems like the Charter should serve us, and if it doesn't, or it's not clear, then we should change it, but it also seems like a potential nightmare to dig into. I don't know. I know that there are others on the Deck who do. In Monique's statement, she says that the Law Department has "agreed to try to identify a clear definition" of "impermanent." Maybe this will get it done.

Once again, thanks for your patience as I wade through this stuff again. I think it's important because the third reading for this, as pointed out by Councilmen Anderson and Nowlin, is the day after tomorrow. It's been great to have this time, between readings one and three, to truly understand what this is about with my fellow citizens on the Deck, and the Council itself. This could never have happened if there was only one reading.

If someone thinks I'm missing something, please point it out to me. (I know, again maybe.)

Since I can't be at that meeting, I will probably write another letter, if someone out there has a more compelling way to sum it up I'd really appreciate it.

And it would be great if someone would go to that meeting and report back, but I have to say, I've been very impressed by the responsiveness of our Council, I am sure they will let us know what happened and explain why.

Thanks.

Betsy Voinovich

[Betsy Voinovich]

Hi all,

One more reminder that the meeting to discuss changing this ordinance is tonight, and one last comment. While I appreciate what Monique says about our current Council's efforts to bend over backwards to be transparent, and accessible-- these laws are in place to make sure that the Council has rules that cause them to be transparent and accessible. It can't be a matter of choice-- what if Council's in the future aren't as accommodating of the public as the current one? "As far back as they can remember, these Resolutions have only been for lightweight things" is no guarantee that a one-reading rule couldn't be abused in the future, with "impermanent" issues that are not so "light weight."

I'm hoping someone will go to the meeting. Right now I'm sending one more email to the Council members who are on this committee, because I can't be there to represent my concerns.

Betsy Voinovich

[Jim O'Bryan]

"SECTION 8. ENACTMENT OF ORDINANCES AND RESOLUTIONS. Each proposed ordinance or resolution shall be introduced in written or printed form and shall not contain more than one subject, which shall be clearly stated in the title; but general appropriation ordinances may contain the various subjects and accounts for which moneys are appropriated. On the passage of each ordinance or resolution the vote shall be taken by yeas and nays and entered upon the Journal. No resolution of a permanent character or ordinance shall be passed until it has been read by title only, unless a majority shall request that it be read in its entirety on three (3) separate days unless the requirement of reading on three (3) separate days has been dispensed with by a two-thirds (2/3) vote of all of the members elected to Council taken by yeas and nays and entered upon the Journal, but no ordinance or resolution shall under any circumstances be adopted or passed unless it has been read on three (3) separate days, (a) which changes the amount of salary or compensation for any elected officer of the City, (b) which amends any zoning ordinance, (c) which grants, renews or extends a franchise or other special privilege, (d) which regulates the rate to be charged by a public utility for its services. The enacting clause of all ordinances passed by the Council shall be "Be it ordained by the City of Lakewood." The enacting clause of all ordinances submitted by the initiative shall be "Be it ordained by the people of the City of Lakewood." No ordinance or resolution or section thereof shall be revised or amended unless the new ordinance or resolution contains the entire ordinance or resolution or section to be revised or amended, and the ordinance, resolution, section or sections so amended shall be repealed."

From Councilwoman Monique Smith

"The Law Department has agreed to try to identify a clear definition of what "non-permanent" means when referring to subjects that Resolutions may be used to support, though for as far back as anyone can remember (and our clerk of council has knowledge and experience with many, many past councils) we have only used Resolutions for extremely lightweight topics such as to commend a member of the community, express support for a cause, or thank a person or organization for a contribution to the city. Our current approach is to always vote to suspend the rules and pass the Resolution on first reading, often because the Resolution reflects support for a person who is present on the night that it is read or a significant event/date that is imminent."


OK, first, I am not really worried about this council, as it should be obvious to all how
dedicated they are to transparency and accountability. But what about the council we
have yet to meet, from 2011, 2012, 2025...?

I push seems pretty hard for something they have yet to actually define. At the same time
wouldn't it be easier to go through and simply cut the clutter from the docket.

The example I always hear is Resolutions, like the two presented to the Lakewood Observer.
While some in the process will admit it is nice to highlight and reward local
people and businesses, that they are cluttering the docket. So why not do it before or
after the meeting. I have not known of any instance where a council person wanted to
give a Resolution to someone was turned down by other council members. So why not
handle that somewhere else, if rewarding a person or business for 25-50 years of service
is not worthy of 3 readings. How did they end up in there anyway.

But more to the point. Recently the School Board approved a work contract for 2 or 3
years with the teachers. It was done while one member, who was looking for a better
deal was out of town. Suddenly it was an emergency, and was pushed through on one
reading. Now I am not claiming anything was wrong, or illegal, or corrupt, but it was nice
to go back and see who introduced the one reading, on what could be considered an
important contract. It was nice to have that record, and to see that it happened. Had this
been our City Council, that is dedicated to accountability and transparency, no such record
would exist. It would have just been a typical item on a typical day.

Which brings us back to the definition that is coming. Would a work contract with the entire
labor force of Lakewood be considered non-permanent because it is 2 years? 3 years?
5 years? 20 years? at what point does something become permanent?

I am not looking to put council through wasted hours, I am not looking to extend Mary
Hagan's work load. I am not saying this council is up to something. I am merely saying
if this was down the road, and we were not so lucky, would we feel the same way.

As this is a council of democrats, what I usually say to bring them around. Let's say
council is Ryan Patrick Demro, Ryan Salo, Bob Frost, Colleen Wing, Joe Milan, and Tim
Carroll. Are you still for the one reading rule? Funny how people's answers change.

Just saying...

.

[Bryan Schwegler]

I want to thank Betsy for all here effort sharing this development and the follow-up through the process. Regardless of anyone's personal feeling on which way it should be resolved, the important thing is that we have great people who share the information and engaged citizens who are passionate about discussing it!

[Scott Meeson]

But more to the point. Recently the School Board approved a work contract for 2 or 3
years with the teachers. It was done while one member, who was looking for a better
deal was out of town. Suddenly it was an emergency, and was pushed through on one
reading. Now I am not claiming anything was wrong, or illegal, or corrupt, but it was nice
to go back and see who introduced the one reading, on what could be considered an
important contract. It was nice to have that record, and to see that it happened. Had this been our City Council, that is dedicated to accountability and transparency, no such record would exist. It would have just been a typical item on a typical day..

As this is a council of democrats, what I usually say to bring them around. Let's say
council is Ryan Patrick Demro, Ryan Salo, Bob Frost, Colleen Wing, Joe Milan, and Tim
Carroll. Are you still for the one reading rule? Funny how people's answers change.

Jim,

I don't understand why the school board couldn't wait until the next school board meeting(5/16/2011) to approve the contract. What was the emergency for approving the contract on that particular night? Not a single question,from any board member, questioning the waiver of the two reading requirement. There must have been an agreement, prior to the board meeting, that an emergency existed.(?) I did notice Mrs. Shaughessy throwing around the word "respect"...her usage of the word appears to be narrow in scope.

What happens to Democrats when they get on the school board?

Scott Meeson

[David Anderson]

Great posts, Betsy, Bryan, Jim, Charlie, Christopher and Scott. (Did I miss anyone?)

As the newest member of Council and the Rules and Ordinances Committee, I spent some time researching this issue on my own, conferring with council colleagues and reading and re-reading the opinion offered by law director Butler.

In short, I plan to support the passage of this proposed ordinance when it comes before the full council. In my opinion, 13-11 reflects the suggestion of Lakewood’s Second Amended Charter that only legislation that proposes permanent rules and regulations be read more than one time.

This is the quick reason we all have read on this thread a dozen times before. However, in addition to still being wet behind the ears, I now realize that the contents of proposed legislation make it a proposed ordinance or resolution and not the heading of which it is under.

Council can’t, for example, increase or decrease Lakewood’s municipal income tax rate via a resolution. The subject of increasing or decreasing the tax rate makes this an ordinance regardless of whether we pass it as a resolution. So, it doesn’t matter whether something is passed under the heading “resolution” or “proposed ordinance,” law directors and judges on the bench will always in the position to interpret such things should anyone feel the need to object and ask for an opinion or ruling. Even if the example above passed, it would surely be challenged and defeated even after it went into effect. Less obvious examples would also come under scrutiny.

Obviously, the heart of the debate concerns the distinction between what is of permanent nature (ordinances) versus that of what is of impermanent in nature (resolutions). At any time, members of council can challenge should the majority of council agree call proposed legislation a resolution as proposed to an ordinance. Even if he/she is outnumbered six to one, there are ways to employ checks and balances. The way I understand it, even if something was passed as a resolution five years ago and someone challenges that the contents make in an ordinance, a legal ruling could eliminate the contents of the original resolution.

So, in the case of our city government, the Second Amended Charter, Lakewood’s Codified Ordinances, the role of an informed electorate (this Deck being a prime example) and the potential role of judges on the bench, a series of real checks and balances are in place.

Now, could four squirrely members of council attempt to pass ordinances as resolutions and vice versa in an attempt to play fast and loose with the rules and pass garbage without the proper scrutiny? Yes. This can happen how or in the future regardless of the possible change being debated here. However, there would have to be a massive conspiracy to overtake the multiple levels of checks and balances in place.

As an aside, a proposed ordinance is just a number. Should four squirrely members of council wish, the contents of any proposed ordinance could be completely changed just before a third reading and passed by council. So, the third reading rule really doesn’t apply to the contents, just the proposed ordinance number. This is where faith and confidence in our public officials now or 20 years from now comes in.

Finally, Thursday evening’s Rules and Ordinances Committee hearing included a robust discussion of this issue. I feel this thread impacted the discussion that took place regardless of whether those posting serious opinions were not able to attend in person due to busy lives and important commitments. (I’m thinking of you in particular, Betsy.)

I appreciate this space.

Yours in service,
David W. Anderson
Councilman, Ward 1

[Betsy Voinovich]

Hi all,

Sorry it’s taken me so long to get back to this. I realize that this 3 reading rule change will probably be voted on tonight, and once again, I’ll be at the School Board Meeting which takes place at the same time as the City Council Meeting.

I wanted to bring Deck readers up to date on the communication I’ve received by email, in addition to the communication shared with us by Councilman Anderson on the Deck.

Councilman Bullock sent me a copy of Law Director Butler’s interpretation of the “Resolution” vs. “Ordinance” question, which was drawn up for the use of Councilman Nowlin’s Rules and Ordinances committee, which also includes Councilmen Bullock and Anderson.

What I find troubling is that if Law Director Butler's legal opinion is followed, it will greatly expand the definition of “impermanent” (compared to how it has been defined) and allow many more items to go by with one reading.

I will quote Butler’s memo:

“Ordinary legislation [“impermanent resolutions”], therefore, would include everything from resolutions honoring citizens or city retirees to those advocating for government action in other levels of government, and from resolutions accepting and transferring funds to those permitting the administration’s ability to enter into contracts.

…the committee would do well to keep in mind that our past practice of identifying only honorary or advocacy related legislation as resolutions diverges from the law handed down by the judges who interpret such things. The charter would suggest that only legislation that prescribes rules and regulations intended to be permanent need be read more than one time.”

[I will post full opinion at the end of this post]

Okay.

So though I have been assured from the beginning that the Three Reading to One Reading Change is only about “lightweight issues” and things like “resolutions honoring retirees,” and that this is just "housekeeping", this memo expands these “lightweight issues” to include accepting and transferring funds, and permitting the administration to enter into contracts.

Again, not about ceremonial things, but about contracts and accepting and transferring funds—legislation that UP TIL NOW, ALWAYS GOT THREE READINGS, which allowed members of the public to know about the legislation, before its approval was an established fact in one reading.

Councilman Powers described how he sees this situation in an email to me:

"From my perspective at this point, the proposal is designed for one reason only: to correct a discrepancy between our Codified Ordinances and our City Charter. As you know, the Charter is the supreme law of Lakewood, since it directly embodies the will of the people. The Charter is in effect the "Constitution" of Lakewood. We are considering a change to the Codified Ordinances so that our ordinances (passed by Council) reflect the same language as the Charter (passed by the people). Having said that, I'm keeping an open mind on the topic."





I think this gets right to the point. Is it really “the will of the people” to get rid of a three reading rule? If this is being done because it “directly embodies the will of the people” and “the people” are worried about it, maybe the Council should leave this the way it is, rather than do “housekeeping” at this time.

It has been presented as a technical change, aligning the Charter with the Codified Ordinances, but IN PRACTICE, as Councilman Smith points out, in order to be as transparent as possible, the Council has taken care to give three readings to all but “ceremonial issues.” In practice, the Council has been giving consideration to the fact that Lakewood’s busy population, who pay Council’s salaries and who they are representing, might want the time it takes to think about some of these things, or maybe one or two or more of our Council people might want that time.

Again, what is so hard about saying, “I move to suspend the three reading rule”? All of this happens in less than a minute.

With this change, the public loses. Transparency goes away.

We have not addressed Steve Davis’ point that the Charter says that “changes in legislation” can only be proposed by and voted for by “elected members of Council.” Councilman Nowlin (along with Councilmen Juris and Anderson) has not been elected. That is one point. Another point, is, why now? Why is this necessary now?

I have been following as best I can with School Board and Council meeting on the same night, the work of our new Council and Administration and it seems that they are working hard.

But in times like these, with the recent total overhaul of our county government, as has already been said by other posters in this long thread, shouldn’t we hang onto every chance we have to give our elected officials the structure they need to assure accountability and transparency, to assure that they take seriously the representation of the people who elected them?

Councilman Anderson, I am very grateful that you chose to share your thought processes with the community on the Deck. It is very helpful and brings a spirit of connection between the City and the community that is very welcome. I respectfully disagree with the ‘yes’ vote you say you will be casting on this.

I understand what you say when you say that “it doesn’t matter whether something is passed under the heading “resolution” or “proposed ordinance,” law directors and judges on the bench will always be in the position to interpret such things should anyone feel the need to object and ask for an opinion or ruling."

This speaks to the problem. If there is a three reading rule, a member of the Council or member of the public can do research, and figure out what they think, or have time to respond. Asking the law director or a judge on the bench to examine something is a big deal compared to simply giving something more time.

This requires a level of attention (and attendance!) that not many can muster. I’m not saying that our Council requires constant watching to make sure the will of the people is represented—especially when so many Council people were appointed and not elected by the public-- but it would certainly be a lot less necessary with a three reading rule.


Betsy Voinovich




-----------------------------------------------------------------------
ADVISORY OPINION ON ORDINANCES AND RESOLUTIONS

Lakewood City Council,

Rules and Ordinances Committee

Ryan Nowlin, Chair, David Anderson and

Tom Bullock

FROM: Kevin Butler

SUBJECT: Advisory Opinion on Ordinances, Resolutions

of a Permanent Character and Other Resolutions

DATE: May 19, 2011

COPY: Lakewood City Council


As the chairman of the Rules and Ordinances Committee, you have asked for an advisory

opinion related to Proposed Ordinance 13-11, pending before the committee, which if adopted

would amend the language of Section 121.10 of the Lakewood Codified Ordinances.

Specifically, because the proposed ordinance touches on the difference between resolutions “of a

permanent character” and all other resolutions, you have asked for an opinion as to the legal

distinction between the two types of legislation. This memorandum follows.



Lakewood’s charter provides that Council shall act by ordinance or resolution.1 The

charter requires that all resolutions “of a permanent character” and all ordinances be presented to

the public — that is, “read” — on three separate occasions before passage, unless the threereadings

rule is dispensed with by a supermajority of elected councilmembers.2 Meanwhile, the

Codified Ordinances require that all ordinances and resolutions (regardless of permanence or

impermanence) be read on three separate occasions unless the three-readings rule is dispensed

with.3 Of course, there are certain legislative acts that may never be read fewer than three times.4

The distinction between ordinances and resolutions is at the core of this opinion.

Ordinances prescribe permanent rules of conduct or regulations and are intended to be of a

1 Second Amended Charter of the City of Lakewood (“Charter”), Article I, Section 2.

2 Charter, Article III, Section 8.

3 Lakewood Codified Ordinances (“L.C.O.”), Section 121.10.

4 Charter, Article III, Section 8.

Advisory Opinion to Rules and Ordinances Committee

May 19, 2011

Page 2 of 2

permanent duration.5 Resolutions are impermanent in nature, do not prescribe any permanent

rules of conduct and are usually passed for the disposition of specific matters not required by

statute or charter provision to be done by ordinance.6 An ordinance styled a resolution is, by

law, nevertheless an ordinance; the opposite is true as well.7 Thus, all resolutions of a permanent

character are de jure ordinances — and all other legislation providing for the disposition of

particular items of business not tied to permanent regulation or lawmaking are merely

resolutions.8

Under the foregoing analysis, examples of ordinances (and resolutions deemed to have

been ordinances) would be the following:

¡ Legislation fixing a rate of taxation or a fee for services;

¡ Legislation designed to be a part of or modify the codified ordinances;

¡ Legislation declaring regulation or regulatory schemes, such as refuse collection

rules, whether or not a part of the codified ordinances.

¡ Appropriations and other legislation required by charter to be ordinances.

It would follow, then, that most legislation considered by Council should be styled in the

form of resolutions, whatever our past practices may have been. Ordinary legislation, therefore,

would include everything from resolutions honoring citizens or city retirees to those advocating

for government action in other levels of government, and from resolutions accepting and

transferring funds to those permitting the administration’s ability to enter into contracts. Even

though they may be viewed as being of varying degrees of importance, each of these items “is of

a temporary character, and prescribes no permanent rule of government.”9 Thus, under the

prevailing law, even if these items are titled ordinances, they are merely resolutions by law.10

Proposed Ordinance 13-11 would serve to align the Lakewood Codified Ordinances with

the Second Amended Charter, the former being junior to the latter in authority and the latter

being the highest authority guiding our actions. In view of the foregoing analysis, the committee

would do well to keep in mind that our past practice of identifying only honorary or advocacyrelated

legislation as resolutions diverges from the law handed down by the judges who interpret

such things. The charter would suggest that only legislation that prescribes rules and regulations

intended to be permanent need be read more than one time.

I make no opinion as to whether, under these circumstances, the committee wishes to

modify L.C.O. § 121.10 requiring three readings of all legislation. But you should know that

resolutions “of a permanent character” are, in Ohio, nothing but ordinances.

5 Babbit and Gotherman, LOCAL GOVERNMENT LAW – MUNICIPAL (2010), § 7.2; Wuebker v. Hopkins (Cuyahoga

Cty. 1928), 29 Ohio App. 386, 388 (“the passage of an ordinance is the proper procedure for the enactment of a

regulation of a general or permanent nature”).

6 Id.

7 Blanchard v. Bissell (1860), 11 Ohio St. 96, 103.

8 Id. (a resolution “is of a temporary character, and prescribes no permanent rule of government”).

9 Id.

10 Id.; see also, Werner v. Koontz (1950), 153 Ohio St. 325, 331 (“Although the proposal in the instant case is

designated a proposed ordinance, the name itself does not determine its character. That must be determined from

the substance of the proposed ordinance rather than its name”).

[Stan Austin]

Betsy---- my first reaction to your thread and the responses that it has generated from office holders and administration officials is===

You all better boil it down to one or two simple sentences.

The old board games used to be able to state the rules on the underside of the game package.

Strive for the same clarity and simplicity.

Stan Austin

[Betsy Voinovich]

Betsy---- my first reaction to your thread and the responses that it has generated from office holders and administration officials is===

You all better boil it down to one or two simple sentences.

The old board games used to be able to state the rules on the underside of the game package.

Strive for the same clarity and simplicity.

Stan Austin

Hi Stan,

If only it was a board game, with a clearly visible underside of the game package. The Charter isn't simple. I appreciated Brian Powers describing it as the will of the people. It gives me a starting point. It means historically, there is such a thing as "the people" in Lakewood, and they are known to have a "will." "One will" even.

Back when I was asking the School Board for criteria, or even reasons, for their decisions, I was told that it didn't say that they had to explain what they did in their bylaws. (Not the whole School Board. One School Board Member, current President Matt Markling, was willing and able to quite articulately give me and the community reasons for what he did.) The will of the people, or the parents, or the taxpayers, or the voters, didn't weigh into it apparently, or only the will of certain of "the people" did. It's pretty mysterious.

The City Council has been very forthcoming. If we (the City Council and me-- what a great sitcom that would be. ha) had to boil the situation down to two sentences--- I don't know what we'd all say. Here's what I'd say at this point.

Appointed Councilman Brian Nowlin proposed changing a three-reading rule for impermanent Resolutions to a one-reading rule:


The City Charter says only "permanent Resolutions" need to be read more than once, the "Codified Ordinances" say that ALL Resolutions have to be read three times, unless the rule is suspended (which as has been pointed out already, can be quickly and easily done.)

The Charter, "the will of the People" is supposed to beat the "Codified Ordinances" and in order to do some housekeeping, the Council wants to align the Codified Ordinances with The Charter.

There is concern that some "impermanent" items should continue to be read more than once to give Council and community members time to digest and respond if necessary. This has been the practice of our Council up to this time.

Law Director Kevin Butler's legal opinion made it clear that "Impermanent Resolutions" are more than just ceremonial or honorary resolutions. They can be about the Administration entering into contracts, and transferring funds.

Why is this being done now? Why, when Transparency and Accountability are things that the public is screaming for, would we change a process that allows for maximum transparency in our City Council for reasons of "Housekeeping"?

Is this really "the will of the people"? And if it isn't, shouldn't the "housekeeping" be done in the direction of making sure that the Charter represents the "will of the people"?

Transparency in our City Council is taking a blow for "Housekeeping"? Or the "saving of time" when we know that it takes less than a minute to propose suspending a three reading rule?

ONE MORE TIME: THREE SENTENCES:

1.) Changing this three reading rule for "impermanent Resolutions" means The Council will no longer be required to give three readings to items regarding the Administration entering into contracts, or regarding the transferring of funds.

2.) Council says they are doing this to better reflect the will of the people, as expressed by The Charter, a document whose existence many of The People are unaware of.

3.) I do not think they should change this rule because I think it will hinder transparency, and make our City government less interactive with the public, in that Resolutions will be passed in one night, making it impossible for citizens to respond, or in some cases, even know about them.




-----------------------------------------------------------------------------------------------------
Okay Stan, you asked. That's as quickly as I can summarize it and believe it or not, it took going through ALL of that stuff, and the advice and documentation provided by Council persons Smith, Bullock, Nowlin and Anderson for me to get there.

Which is why I keep putting it on here. It took a long time to figure this out, and if I haven't done it correctly, if I put it out there, someone will probably set me straight, and educate all of us.

Believe me, I know it's not the most interesting reading.

Betsy Voinovich

[Betsy Voinovich]

P.S.

I don't know what happened at the Council meeting last night. Maybe this is already a done deal. When I find out, I'll post it.


Betsy Voinovich

[Betsy Voinovich]

Hi all,

On Monday night the City Council unanimously approved the suspension of the three reading rule for Resolutions of an "impermanent character."

Councilman Nowlin says that the new one-reading rule will be used on items like recognizing citizens, awards, accepting grants.

I have to say that though Council members have said that from the beginning, Law Director Butler's memo says that the one-reading rule applies to entering into contracts, and the transferring of funds-- things that are not just ceremonial.

Even "accepting grants." Grants usually come with conditions. It's not hard to believe that the City might need some time, maybe three readings worth, to accept one.

When you can introduce a Resoution and vote on it in one night, it's just like hearing about it as news-- if you hear about it at all. In this way, this hinders the public's ability to react, respond or even KNOW-- about Impermanent Resolutions that could be about transferring funds and entering into contracts. I'm quoting Kevin Butler's legal memo here.

I'll quote it one more time:

…the committee would do well to keep in mind that our past practice of identifying only honorary or advocacy related legislation as resolutions diverges from the law handed down by the judges who interpret such things. The charter would suggest that only legislation that prescribes rules and regulations intended to be permanent need be read more than one time.”

In the PAST, "impermanent" was interpreted by our Council as "honorary or advocacy-related"-- it's new interpretation "they would do well to keep in mind" includes, as Mr. Butler states EVERYTHING that does not "prescribe rules or regulations." That could be a lot of different kinds of things.

Members of the public are unlikely to know what these things are, as they will go by so quickly, in one reading.

I'm concerned that our council people, over and over again, keep referring to awards and commendations as the only kind of "impermanent resolutions". What about this other stuff? The stuff that they would "do well to keep in mind"?


Betsy Voinovich

[Stan Austin]

Betsy Voinovich asked:

What about this other stuff?

Precisely-- A faithful interpretation of the Charter should preclude that question ever arising.

Stan Austin

[Betsy Voinovich]

Betsy Voinovich asked:

What about this other stuff?

Precisely-- A faithful interpretation of the Charter should preclude that question ever arising.

Stan Austin

Stan--

It's not so precise to me. Can you explain
what you mean?

Thanks.

Betsy Voinovich