The petition to remove the Clintonville city administrator position gained enough signatures to be valid, but the question posed by the petition was deemed insufficient.
City Clerk/Treasurer Peggy Johnson validated all but 17 of the signatures accompanying the petition, and the final tally-250-was more than the minimum requirement of 196 signatures.
Documentation reporting Johnson’s findings noted that the clerk’s office did not receive a written designation of an individual to be notified of any insufficiency or improper form. She responded to John Moericke, who appeared to be the primary circulator of the petition. Section 9.20(1) of the Wisconsin Statutes states the individual filing the petition on behalf of the electors shall designate in writing an individual to be notified of any insufficiency or improper form.
Further, a properly prepared resolution or ordinance was not attached. In addition, the wording provided was stated to be a resolution. A resolution cannot supersede an ordinance. The city administrator position was created by ordinance, as found in Section 1.09 of the City Code. An ordinance cannot be overridden by a resolution; therefore, the petition was deemed insufficient. The proposed resolution appears to be a question.
City Attorney Tim Schmid was asked to provide his legal opinion regarding the matter. A letter from Schmid to the members of the Common Council was written on Sept. 16.
“It would appear, from my review of the Petition, that a resolution is being attempted to be used to amend or repeal and existing ordinance,” Schmid wrote. “A resolution cannot be used to amend or repeal an ordinance. If an ordinance is sought to be amended or repealed, the proper legislative tool to accomplish that is another ordinance.
“In other words, an ordinance is to be used when amending, repealing or modifying an existing ordinance,” Schmid continued. “Thus the repeal or revision of one legislative act requires an act of equal or greater formality…(an ordinance cannot be amended, repealed or suspended by an order or resolution or other act of a governing body of less dignity than the ordinance itself).
“Resolutions typically would be used to deal with matters of a special or temporary character. Generally, direct legislation is a process that authorizes individuals to draft and submit a proposed ordinance or resolution to the governing body for adoption or submission to the general elector for adoption or rejection. Wisconsin Courts have recognized four (4) limitations on the use of the direct legislation statute requirement that a governing body either pass requested direct legislation, i.e. a proposed ordinance or resolution, or submit it to the electors,” stated Schmid. “The limitations are: 1. The proposed legislation must be legislative in character not administrative; 2. Direct legislation cannot be used to compel the repeal or substantial amendment of existing legislation or compel the passage of legislation that would be in clear conflict with existing legislation so that it would act as a repealer of the existing legislation; 3. A direct legislation proposal cannot seek to impose upon a municipality a power that the municipality does not possess; and 4. The direct legislation procedure may not be used to modify statutorily required directives that would bind a municipality if it were trying to legislate in the same area.”
Schmid cited four Wisconsin cases involving the cities of Wauwatosa, Wisconsin Dells, Madison, and Cumberland.
“The Common Council previously established the office of the city administrator which is currently found in Section 1.09 of the City Code by virtue of Ordinance No. 652 which was adopted Jan. 19, 1989,” continued Schmid. “It is my opinion that the proposed resolution is an attempt to use direct legislation to repeal an existing ordinance. Not only can a resolution not be used to repeal an ordinance, it is my opinion that even if the resolution was redrafted to be put in the form of an ordinance to repeal Section 1.09 of the Code, direct legislation is not the proper process to be used to repeal or amend existing legislation.
“Therefore the Common Council would not have to adopt the resolution which was filed with the City Clerk’s office on Sept. 13, 2011, or refer the matter to a referendum,” stated Schmid. “The council still would have the authority, on its own, to repeal or amend Section 1.09 of the Municipal Code. The City Council would have the right to eliminate the position of City Administrator or could submit the question of whether the office of City Administrator should be eliminated to an advisory vote of the electors.”
A special council meeting was held Wednesday, Sept. 28. Council members discussed the matter and heard comments from citizens, but the result of those discussions were reached after press time for this edition of the County Post East. Watch for a full story on the meeting in the Oct. 6 issue of the County Post East.