Sunday, January 08, 2012

"A home rule municipality adopts a charter subject to voter approval and has all powers not prohibited by law or charter."

Details, details, details.

The quote in the title turns out to be an important point (maybe) in a post I've had chained to my leg since June.   This post is going to be an example of finding stuff and then having to sort through the details and wait until I can talk to real people who know how this actually works.  I've already done a lot of that, but I've looked at the statutes again, I see more and I have more questions.

I've been following lots of leads, gathering bits and pieces of information, eliminating false assumptions, and trying to make sense out it all.  I'm mostly there.  It makes sense to me. Mostly. Now I'm trying to rewrite it so it will make sense to others.

I did two posts already on the mayor's veto of an amendment before the ordinance it amended was passed.   See?  Just trying to describe the topic will lose most readers.  The first post on this last June gives a more conversational overview of what happened.  The second has the back-up document (memos from various municipal attorneys to various mayors since 1975) and is more complicated.  I'm hoping to post something that puts all the pieces together before too long.  I've promised various folks I would in hopes that avoiding shame would get me to finish.

This post you're reading gives a little back-up information that is necessary to understand why I'm going to conclude (in the upcoming post) that the mayor does NOT have the right to veto amendments.  (Well, depending on what more I find out, I may not conclude that.) The back-up document cites  State Statute 29  (Municipal Government) on the powers of borough and city governments.  Two municipal attorneys have cited this statute as the basis for the mayor's power to veto an amendment during the debate before the ordinance as a whole is passed.

But Anchorage is a home-rule borough.   I'll let you read what the Alaska Department of Commerce Website says about the types of governments in Alaska below the state level.
How is municipal government structured in Alaska?
Article X of the state's constitution provides that the legislature classify the two forms of local government, cities and boroughs, and prescribe their powers and functions. The legislature has classified local government in the following manner and prescribed varying powers and duties for the different classes of cities and boroughs:
Classes of Local Government in Alaska
Boroughs: Cities:
Unified Home Rule Municipality Home Rule City
Home Rule Borough (not-unified) First Class City
First Class Borough Second Class City
Second Class Borough
What is the difference between a city and borough?
A city generally exercises its powers within an established boundary that normally encompasses a single community, while a borough (intermediate-sized governments - much larger than cities) provides services and exercises power on a regional basis. Under the state's constitution, a city is also part of the borough in which it is located.
An organized borough may provide services on three levels. These are: areawide (throughout the borough), non-areawide (that part of the borough outside of cities), and service areas (size and make-up vary). A borough also has the flexibility and capacity to provide services at the community level, typically through the creation of service areas. (State Constitution, Article X, Section 5)
What is the difference between a general law and home rule municipality?
A home rule municipality adopts a charter subject to voter approval and has all powers not prohibited by law or charter. (State Constitution, Article X, Section 9, 10, 11 and AS 29.04.010.) A general law municipality is unchartered and its powers are granted by law. (State Constitution, Article X, Section 4 and 7 and AS 29.04.020.)

Anchorage is a home-rule borough.   Actually, in 1975 the city and the borough merged to become the Municipality of Anchorage, so technically it's a unified home-rule municipality.  This will be important because a home-rule borough/municipality makes its own rules through its charter and ordinances within the guidelines of the state statute.  What has me caught now is figuring out what 'within the guidelines of the state statute' means. 

Does the wording in a home rule borough charter or ordinances rule that governmental unit OR the words in the state Statute 29?  Let me repeat a line from the statute above:
[it] adopts a charter subject to voter approval and has all the powers not prohibited by law or charter.
So what exactly does this mean?  Presumably that they can write their own rules as long as they don't do things that are prohibited.  They can give the mayor less power, if the voters approve, than the state statute allows.  Which is the case with the mayor's veto.

One person, who should know, told me that as a home-rule Municipality, Anchorage is not bound by the state statute, but by the Municipal charter and ordinances. But parts of the state statute have the following words:
This section applies to home rule and general law municipalities.

The arguments for the mayor's ability to veto amendments on not yet passed ordinances are based on the powers given in the section of Statute 29 on the mayor's veto powers, which are broader than the Municipal charter. [[UPDATE 10:30pm - AK Pi in the second comment notes that the veto language only applies to subsection (e) - not the whole section - of the veto powers, so it would not make the other parts of the veto section mandatory.]  The question I'm trying to get answered is whether this section is applicable or whether the Municipal charter is applicable here.  If the state statute trumps the charter, why would they write more restrictive language in the charter in the first place?  As I said, a person who should know, says the Municipal charter rules because Anchorage is a home-rule Municipality.  So I have to get back to that person to clarify my current confusion.

The statute doesn't say the mayor can veto amendments before the ordinance they amend is passed.  It does say the mayor can veto "an ordinance, resolution, motion, or other action."  So even if the state statute applies, there are still some problems with how to interpret 'other actions.'

But I'm going to post this, open-ended as it is, so readers can see
  • why this is taking me so long*
  • the kinds of little traps I run into trying to get answers to these questions
  • that  I really am working on this and hope to get something more complete out soon
  • some of this complicated stuff in a smaller chunk you might actually absorb so you can get  up-to-speed a bit and when the full post comes out it will be easier to understand (wishful thinking on my part)
*  I've been rewriting constantly as I discover things - both answers and new questions - since June.  I've also put it aside for periods of time as it got tedious and other things demanded my attention.   But if someone knows about Municipal law please leave a comment or, better yet, email me so I can ask follow up questions.


  1. Federal-state-city laws scare me. I have known of people who have gone to prison or at least had to pay steep fines for violating one rule when they had to comply with the other rules. This is in no way an acceptable way to live, and only increases revenue for someone, be it where the person gets fined, or for the prison to where they are sent.

    Why can't the government be for the people? "Enough votes" that constitute a majority victory in an election when we have low voter turn-out and people who are disenfranchised for various reasons does not make an election fair or to be in the best interests of the people.

  2. per one of your links:

    AS 29.10.200. Limitation of Home Rule Powers.
    Only the following provisions of this title apply to home rule municipalities as prohibitions on acting otherwise than as provided. These provisions supersede existing and prohibit future home rule enactments that provide otherwise:

    (15) AS 29.20.270 (e) (ordinance veto by mayor);

    It APPEARS only subsection e is prohibited .
    Alaska Pi

  3. A Pi - That's helpful. If I understand what you're saying - and what the statute says - this is not saying the whole veto section applies to Home-Rule Munis, but only subsection (e) - which says:
    "(e) The veto does not extend to an ordinance adopted under AS 04.11.501. This subsection applies to home rule and general law municipalities."

    1. AS 04.11.501 refers to a decision to prohibit possession of alcohol.
    2. I see now that this says "This subsection" and it is part of subsection (e). The other ones I'd looked at said "This section."
    3. Thus the other aspects of the veto in the state statute could be adopted, but are not required in a Home Rule charter.

    That makes sense. I'll try to confirm that tomorrow. Thanks.

  4. Steve- Yes- you got/understood what I was inarticulately pointing at!
    Hoping it helps and waiting to see where this all takes you.
    Alaska Pi


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