An ordinance is a law enacted by a local government. It establishes the rules for the operation of the local government or provides rules and regulations governing public activity in the community. Ordinances are usually intended to be permanent and are assembled in an indexed book called a code of ordinances. To be valid, the ordinance cannot conflict with state or federal law and the governing body must properly enact the ordinance. An ordinance applies only to the community in which it is adopted.
State law specifies numerous actions of a local government that can only be authorized by ordinance in order to be valid. In some cases, Alaska law establishes rules or procedures that a municipality must follow, but the municipality may establish different rules and procedures as long as they are adopted by ordinance. An example of this is the Alaska statute state that specifies a mayor of a second class city serves a one-year term unless a longer term is passed by ordinance. Alaska Statutes: Title 29 Municipal Government, Chapter 25 lists acts that require an ordinance.
There are two classifications of ordinances: code and non-code. The basic difference is that a code ordinance is permanent and general in nature and a non-code ordinance is temporary and/or accomplishes a single action. When introduced, the ordinance should state whether it is a code ordinance or non-code ordinance.
A common example of a non-code ordinance is the ordinance adopted each year to authorize the annual budget. State law requires budgets to be authorized by ordinance. The budget ordinance is not considered a permanent ordinance that would be included in the code because the authority to accept or spend money established in the ordinance expires at the end of the fiscal year. The annual City Budget Manual produced by the Department of Commerce, Community, and Economic Development provides an example of a non-code budget appropriations ordinance. A second example of a non-code ordinance is one that authorizes sale of public land. The sale of a parcel of land is a one-time transaction that is required to be authorized by ordinance.
How is an ordinance proposed and drafted?
Ordinances are usually proposed in response to a need or a problem identified in the community. Once it is determined that an ordinance is required, the appropriate staff drafts the ordinance. For example, in a city with a manager form of government, that person would be the city manager. Different people may be part of the ordinance drafting process depending on the subject matter. The police chief might be involved in an ordinance about traffic control or the city clerk may help draft an ordinance dealing with election issues.
The words used in an ordinance must be chosen carefully. There should be no doubt about what the ordinance means or intends to accomplish. Ordinances are not valid if they are in conflict with the Alaska Constitution, state or federal laws, or other local laws. If violation of the ordinance will impose jail time or other penalties, it is especially important to consult an attorney before enacting the ordinance. Generally an attorney does not need to draft the ordinance, but should be asked to review the ordinance and assure the governing body that the ordinance is consistent with other provisions of law.
Members of the public may also propose ordinances and can use the election process to enact or repeal ordinances. This is called the power of initiative and referendum and is discussed in more detail under the Election section of LOGON.
What is the procedure for adopting an ordinance?
State law requires certain steps for adopting an ordinance, otherwise the ordinance is not valid and cannot be enforced. At least two meetings of the governing body must be held before an ordinance can pass. At the first meeting, the ordinance is introduced and read for the first time and a date is set for a public hearing on the ordinance. At the second meeting, a public hearing on the ordinance is held. Final consideration and adoption of the ordinance can only come after the public hearing is held and closed.
How is an ordinance introduced?
Once an ordinance is drafted, it is placed on the agenda of an upcoming meeting. When the ordinance item comes up on the agenda, a member of the governing body makes a motion to introduce the ordinance and to hold a public hearing on a specific date. The motion requires a second. If the motion passes with a majority of affirmative votes, a public hearing is scheduled. If the motion fails, the ordinance is no longer up for consideration.
The vote to set the ordinance for public hearing is not a vote to approve the ordinance; it is a vote only to consider the ordinance after giving the public an opportunity to comment on the proposed ordinances at a public hearing. The Meetings section of LOGON has more information regarding public hearings.
Do all ordinances require public notice and a public hearing?
Yes. Every ordinance being adopted, amended, or repealed requires a public hearing so members of the public have an opportunity to express opinions about the ordinance. The law only requires a summary of the ordinance in the notice. Notice serves as an invitation to anyone interested to be present during discussion and have a fair opportunity to be heard.
Do we have to publish notice of the ordinance and public hearing in a newspaper?
State law says that to publish “means appearing at least once in a newspaper of general circulation distributed in the municipality or, if there is no newspaper of general circulation in the municipality, posting in three public places for at least five days.” One of the three public places should be the city office.
If a newspaper of general circulation exists in the community, the best course of action, especially for an ordinance that has an impact on the general public, is to publish at least once in the newspaper and post a notice in three public places. Newspaper publication can be expensive so take advantage of the fact that a summary of the ordinance is required to be published along with the time and place for the public hearing. IF the title of the ordinance is correctly written, the title will provide enough information to satisfy the requirement to publish a summary. Failure to meet the minimum notice requirements could be used to challenge an ordinance on procedural grounds.
What happens if no community members show up at a public hearing?
If a scheduled public hearing is held and no community members attend or wish to comment, meeting minutes should indicate that the public hearing was convened during the meeting and closed for lack of comments. The governing body may decide to vote on the ordinance or postpone action and schedule another meeting for a second public hearing.
How is an ordinance amended before it is adopted?
Members of the governing body are free to make motions offering amendments to the ordinance when the ordinance is introduced or after a public hearing. Once all of the proposed amendments have been voted on and either accepted or rejected, a vote is held to adopt the ordinance as amended.
If an ordinance is amended after a public hearing, must a new public hearing be held on the amended ordinance?
No, not unless the amendment changes the character or intent of the original ordinance. If, however, the amendment changes the character and/or intent of the original ordinance, a new public notice must be published and an additional public hearing held (Liberati v Bristol Bay Borough, 584 P. 2nd 1115).
How is an ordinance adopted?
After the public hearing, the meeting is reconvened and the governing body shall make a motion to adopt the proposed ordinance. This motion must receive a second and a vote taken prior to discussion. Amendments may be made following the vote. After all discussion by the governing body, a motion is made to adopt the ordinance (with or without amendments if any). The vote of each member of the governing body must be recorded and a majority in favor is required for adoption. The adopted ordinance must be signed by the mayor, show the date of adoption, and be attested (witnessed and signed) by the clerk.
Do we have to file ordinances with the State or in some central place?
No. There is no one place where all municipalities are required to send their ordinances. Each municipality is responsible for keeping, filing, maintaining, and distributing its own ordinances. However, in order to receive Community Revenue Sharing payments, communities must submit a copy of their annual budget ordinance to the Division of Community and Regional Affairs (DCRA) and must also confirm that the municipality’s ordinances have been codified. We recommend that municipalities provide a copy of their ordinances to their DCRA regional office so that DCRA staff can be more effective in answering questions and providing assistance to the local governing body.
When does an ordinance take effect?
An ordinance takes effect immediately upon adoption unless a later date is specified in the ordinance. There are certain circumstances that have their own set of rules, such as, a local option ordinance enacted under Alaska Statute Title 4. See the LOGON chapter on Elections-Local Option for additional information. Another example is an elections ordinance requiring pre-clearance by the Department of Justice before it becomes effective.
Do ordinances need to be approved by a vote of the people?
Very few ordinances need to be approved by a vote of the people. State law or the charter of a home rule municipality, may require that certain kinds of ordinances be adopted by a vote of the people before they can become effective. A common example of this is an ordinance approving sales and use tax or an increase in the tax rate.
What happens to the ordinance after it is adopted?
The clerk must keep the original signed ordinance on file. Printed copies of the ordinance must be available for the public. Permanent ordinances must be codified.
How is an ordinance amended after it is passed?
Once an ordinance is passed, it takes another ordinance to amend or make any changes to the first ordinance.
What do we do if an ordinance is not adopted (fails)?
File a copy of the original proposed ordinance in a permanent file of proposed ordinances and make a notation to the tracking system stating the final outcome.
How is an ordinance different from a resolution?
An ordinance is a law or formal act by the governing body that can only be adopted following a procedure that includes a public notice, public hearing and minimum of two meetings. A resolution is a formal document of the governing body to authorize certain actions (e.g. submission of a grant application, accepting a contract), or officially express its opinion on an issue. A resolution does not have the weight of law, it can be adopted without a public hearing, and it does not need to be codified.
What is “severability”?
If a section or part of an ordinance is not defensible in court, that part can be separated out without affecting the legality of the remainder of the ordinance. To prevent an entire ordinance from being declared unenforceable by a court, each ordinance or the entire code of ordinances should contain a “severability clause.” A severability clause says if one part of the ordinance cannot be enforced, it does not mean the entire ordinance is unenforceable.