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AGO 1970 No. 5 - February 17, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS - CHANGE OF GOVERNMENTAL CLASSIFICATION - OPTIONAL MUNICIPAL CODE - INITIATIVE METHOD - ACCEPTANCE

During the pendency of proceedings under a resolution of the legislative body of an incorporated city to change its governmental classification to that of a noncharter code city under the optional municipal code (Title 35A RCW), an initiative petition signed by the requisite percentage of electors and calling for a change in classification to that of a charter code city, as provided for in RCW 35A.08.030, may not be accepted for filing.

 

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                                                                February 17, 1970

 

Municipal Research Council
4719 N.E. Brooklyn
Seattle, Washington 98105

                                                                                                                   Cite as:  AGO 1970 No. 5

 

Attention:  Dr. Ernest H. Campbell

Gentlemen:

            By letter previously acknowledged you have requested the opinion of this office on two questions pertaining to a certain city's adoption of the optional municipal code.  We paraphrase your questions as follows:

            (1) During the pendency of proceedings under a resolution of the legislative body of an incorporated city to change its governmental classification to that of a noncharter code city under the optional municipal code (Title 35A RCW), may an initiative petition signed by the requisite percentage of electors and calling for a change in classification to that of a charter code city, as provided for in RCW 35A.08.030, be accepted for filing?

            (2) If question (1) is answered in the affirmative, may the two proposals seeking to change the city's governmental classification be voted upon at the same election?

             [[Orig. Op. Page 2]]

            We answer your first question in the negative, for the reasons which appear in our analysis.  Because of this answer, consideration of your second question is unnecessary.

                                                                     ANALYSIS

            You have advised us that your questions pertain to an existing city which has a population in excess of 10,000 inhabitants, but has not yet adopted a charter as permitted by Article XI, § 10 (Amendment 40) to our state constitution.  Among the options which are available to such a city, under the provisions of the optional municipal code (Title 35A RCW) are:

            (1) Adoption of the classification of "noncharter code city," as provided for in chapter 35A.02 RCW; and

            (2) Adoption of the classification of "charter code city," pursuant to chapter 35A.08 RCW.

            In addition, a city such as you have described is authorized, in the exercise of either of these two options, to make a further election as to its plan of government.  If it opts to become a noncharter code city, it may either retain the plan of government under which it had been organized prior to its adoption of the code (see, RCW 35A.02.130) or adopt one of the plans of government outlined in the code itself (i.e., mayor-council plan, chapter 35A.12 RCW; or council-manager plan, chapter 35A. 13 RCW).  If it elects to become a charter code city, its choice is between the adoption of one of these two plans set forth in the code and the establishment of its own distinct plan of government under a charter, as provided for in RCW 35A.08.050.

            Action to bring a city under the code may be initiated either by resolution of the city's legislative body (RCW 35A.02.030 or 35A.02.070, noncharter code city; RCW 35A.08.030, charter code city) or by direct initiative petition of a certain percentage of the electorate of the city (RCW 35A.02.020 or 35A.02.060, noncharter code city; RCW 35A.08.030, charter code city).

            Question (1):

            Your first question assumes that the subject city has initiated proceedings by the resolution method for the adoption of the classification of "noncharter code city," as provided for in RCW 35A.02.030, which reads in material part as follows:

             [[Orig. Op. Page 3]]

            "When a majority of the legislative body of an incorporated city . . . determines that it would serve the best interests and general welfare of such . . . [city] to change the classification of such city . . . to that of noncharter code city, such legislative body may, by resolution, declare its intention to adopt for the city . . . the classification of noncharter code city. . . . Within ten days after the passage of the resolution, the legislative body shall cause it to be published at least once in a newspaper of general circulation within the city . . .  Upon the expiration of the ninetieth day from, but excluding the date of first publication of the resolution, if no timely and sufficient referendum petition has been filed, as determined by RCW 35A.29.170, the intent expressed in such resolution shall be effected by an ordinance adopting for the city . . . the classification of noncharter code city; . . ."

            Next, your question assumes that, following the city's adoption of this resolution to become a noncharter code city, but during the pendency of proceedings thereupon, an attempt is made by a group of qualified electors of the city in question to file an initiative petition for adoption of the classification of charter code city under RCW 35A.08.030, which provides:

            "The legislative body of any city having ten thousand or more inhabitants may, by resolution, provide for submission to the voters of the question whether the city shall become a charter code city and be governed in accordance with a charter to be adopted by the voters under the provisions of this title.  The legislative body must provide for such an election upon receipt of a sufficient petition therefor signed by qualified electors in number equal to not less than ten percent of the votes cast at the last general municipal election therein.  The question may be submitted to the voters at the next general municipal election if one is to be held within one hundred and eighty days or at a special election held for that purpose not less than  [[Orig. Op. Page 4]] ninety nor more than one hundred and eighty days after the passage of the resolution or the filing of the certificate of sufficiency of the petition.  At such election provision shall also be made for the election of fifteen freeholders who, upon a favorable vote on the question, shall constitute the charter commission charged with the duty of framing a charter for submission to the voters."  (Emphasis supplied.)

            Query:  During the pendency of proceedings under the resolution, may the petition be accepted for filing?

            Because of the imperative word "must" in the underscored portion of RCW 35A.08.030,supra, a reading of this statute by itself might lead one to the conclusion that a petition thereunder for an election to adopt the classification of charter code city is to take precedence over an earlier resolution by the city's legislative body to adopt the classification of noncharter code city.  However, this possibility appears to us to be expressly negated by the provisions of another statute, RCW 35A.02.140.  This statute, which we regard as being determinative of the question, reads as follows:

            "While proceedings are pending under any petition or resolution relating to reclassification of a municipality or reorganization of the government thereof pursuant to this chapter, no resolution shall be passed for the purpose of initiating other such proceedings or submitting other such proposals to the voters at an election thereunder; andno petition for reclassification or reorganization of such municipalityshall be accepted for filing pending such proceedings, except that a timely and sufficient petition seeking to place on the ballot for such election a proposal for an alternative plan of government authorized by this title, as provided in RCW 35A.02.090, may be filed and acted upon".  (Emphasis supplied.)

            RCW 35A.02.090, to which reference is thus made in the single "exception" clause to this general statutory prohibition, provides that:

             [[Orig. Op. Page 5]]

            "Proposals for each of the plans of government authorized by this title may be placed on the ballots in the same election by timely petition as provided in this chapter, and candidates for offices under one of the plans of government shall not be disqualified from filing as candidates for offices under the other plan.  When the ballot contains alternative proposals for each of the plans of government and slates of candidates for each of the plans, the ballot shall clearly state that voters may vote for only one of the plans of government but may cast their votes for officers under each of the plans of government to indicate their choice of officers in the event such plan receives a majority of the votes cast.  The officers elected by the voters to fill the offices under the plan of government receiving a majority of the votes cast on the measure shall, upon their qualification, become the new officers of the noncharter code city."

            With this statute in mind, the full meaning of RCW 35A.02.140 (in the context of your question) becomes clear.  Once a resolution is passed by the city's legislative body calling for adoption of the "classification" of noncharter code city under RCW 35A.02.030, the onlyinitiative petition1/ which may be entertained is one which proposes a "plan of government" other than the one proposed in the original resolution.  Of course, like any statutory exception to a general provision, this one is to be strictly construed and cannot be extended by implication.  See,Insurance Co. N. Am. Co. v. Sullivan, 56 Wn.2d  [[Orig. Op. Page 6]] 251, 352 P.2d 193 (1960), and cases cited therein.2/

             Applying this analysis of RCW 35A.02.140 to the factual situation involved in your question, it is stipulated that the proposal of the group of electors who are reportedly seeking acceptance of their initiative petition during the pendency of proceedings on the earlier resolution to adopt a classification of noncharter code city does not merely propose an alternative plan of government pursuant to RCW 35A.02.090,supra.  Instead, it proposes the adoption of a new and different classification of charter code city.  Therefore, it follows that this initiative petition does not come within the purview of the exception stated in RCW 35A.02.140,supra, and for this reason, may not be accepted by the legislative body of the subject city during the continuing pendency of proceedings on the previously adopted resolution.

            Question (2):

            This negative answer to your first question renders consideration of your second question unnecessary.

            It is hoped that the foregoing will be of assistance to you.

 

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/But see, RCW 35A.02.035, under which a referendum petition may be filed in objection to the proposal encompassed by the resolution, if the referendum is "timely and sufficient," then the resolution must be referred to the voters ". . . at an election as specified in section 35A.02.025"; however, this is the only way by which the determination of the city's legislative body to adopt the classification of noncharter code city may be challenged by a petition of the city's electorate.

2/The apparent intent of the legislature in adopting this procedure is well stated in an annotation to RCW 35A.02.140 found in an annotated Optional Municipal Code prepared by the Municipal Code Committee at p. 23, as follows:

            "These restrictions [contained in RCW 35A.02.140] appear necessary to prevent confusion and to permit orderly disposition of the first proposal initiated."  (Emphasis supplied.)

            The Municipal Code Committee was created by chapter 115, Laws of 1965, Ex. Sess., and charged with the duty of drafting the Optional Municipal Code.

 

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