GUIDE TO PREPARING AND ADOPTING LOCAL LAWS

GUIDE TO PREPARING AND ADOPTING LOCAL LAWS

Prepared by
League of Arizona Cities and Towns

September 2022

A. INTRODUCTION

State laws, regulations, and local codes (and charters, if applicable) provide cities and towns with the authority to adopt ordinances and resolutions. These are local laws that govern how the city or town operates. They also may declare certain actions criminal or civil offenses. The first half of this Guide generally defines and discusses ordinances and resolutions, what they are used for, and how they are prepared and adopted.

Some actions may require newspaper publication, notices on the city or town website, posting at city or town hall, and/or other types of public notice. The second half of this Guide describes general posting, publishing, and public notice requirements under state law for most municipal ordinances, bids, contracts, and other such matters. (Charter cities may have additional requirements.)

We hope cities and towns will refer to this publication when creating local laws and informing the public of their activities. As always, please give us a call if you have any questions or comments about this publication.

B. ORDINANCES AND RESOLUTIONS

1. DEFINITION AND USE OF ORDINANCES

An ordinance is a local law of a city or town. It is formally defined as a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality.

Examples of instances when ordinances are required:

Any regulation involving persons or property which imposes a penalty, fine, forfeiture, or other punishment for its violation.

Any action of the city or town council when the charter or state law expressly requires an ordinance.

Any action of the city or town council when amending, repealing, or adding to another ordinance.

Ordinances are general or special in nature depending upon their subject matter. General ordinances impose certain restrictions upon the community and upon the administration of the municipal government. General ordinances amend, repeal, or add to the city/town code. An example of a general ordinance is a dog leash law. This general ordinance would affect everyone in the community.

Special ordinances are specific to a property, person, or corporation and are not usually placed in the city/town code. An example of a special ordinance is the annexation or rezoning of a particular piece of property. In this case, the ordinance affects only the specific piece of property, not the entire community.

Ordinances may be legislative or administrative in nature although the difference between the two may be difficult to discern in some cases. Administrative ordinances may carry out previously adopted legislative policy, may be related to internal matters (employment), or are temporary in nature. Administrative ordinances are typically exempt from some of the requirements usually applied to legislative ordinances, such as the 30-day delay for the effective date and being subject to a referendum. An example of an administrative ordinance is an ordinance issuing previously approved bonds.

2. PREPARATION AND ADOPTION OF ORDINANCES

Ordinances are generally prepared by the city or town attorney. If an ordinance is prepared in another municipal office, it should be reviewed by the attorney before presentation to the council. When there are issues of municipal administration involved, an ordinance should also be referred for review to the person who will oversee its administration. Some city and town codes require such review.

2.1. Structure of Ordinances
(See Exhibit One)

Ordinances are assigned a number by the clerk in numerical sequence. Some cities include the year the ordinance is passed in the number. For example, the first ordinance passed in 2021 would be numbered 2021-1.

An ordinance should relate to only one subject, and this subject should be clearly expressed in the ordinance title.

The title should include a general statement of the contents of the ordinance phrased in sufficiently-broad terms to include all of the necessary components of the ordinance.

Sometimes it is useful to include “whereas” clauses at the beginning of an ordinance to recite any required or helpful findings, the purpose of the ordinance, the authorizing laws, and any procedural steps taken prior to adoption.

Each ordinance should have an ordaining or enacting clause. For example: Be it ordained by the common council of the City/Town of . Charter cities may have enacting clause requirements set out in their charters.

An ordinance to amend or repeal another ordinance or section of your code should contain the number and subject of the ordinance or section amended or repealed. For example: An ordinance amending section , city code, relating to _____.

The body of the ordinance should be divided into sections that set forth precisely what parts of the code are being amended, repealed, or where additions are to be made. Sections should be numbered, titled, and arranged in logical sequence.

Although it is generally not required by state law,^[1] we recommend that the body of the ordinance be drafted in legislative style (see Exhibit Two). This will help the council and members of the public to easily recognize new and amended language. The ordinance should: include the original and amended text; indicate any new language by printing it in capital letters; and indicate deleted language, if any, by printing it with a line drawn through the center of the letters (strike-throughs). Some newspapers will not print strike-throughs (and some counties may not accept strike-throughs for recording); as a result, so you should clearly indicate deleted language in some way (such as printing it in italics or separating it from the rest of the text with brackets). . In addition, state law requires that ordinances attached to referendum petitions be prepared in legislative style.^[2]

The ordinance should contain a repeal clause stating that other ordinances (or sections of ordinances) that conflict with the present ordinance are repealed. Specific references to repealed sections will facilitate codification of your ordinances.

Ordinance of a regulatory nature must be clear, certain, and definite, so that members of the public can understand whether they will incur penalty.^[3]

A penalty clause cannot be adopted by reference.^[4] As a result, if a violation of the ordinance is subject to a penalty or civil sanction, the penalty or civil sanction must be fully described in the ordinance itself.^[5] . Check with the city or town attorney to ensure the penalty clause or civil sanction is in accordance with state law.

An ordinance often contains a savings or severability clause which expresses the council’s intent that an ordinance remains enforceable though some parts of the ordinance may be declared invalid. For example:

“If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof.”

There may be times when the council does not want any part of the ordinance to go into effect if one part is determined to be invalid. In those cases, a non-severability clause should be included.

An ordinance may contain an emergency clause. The standard clause reads as follows:

“Whereas, it is necessary for the preservation of the peace, health, and safety of the City/Town of , Arizona, an emergency is declared to exist, and this ordinance shall become immediately operative and in force from and after the date of adoption.”

An ordinance may contain a specific effective date. For example, sales tax ordinances usually have an effective date at the beginning of a month and may not go into effect until a month or more later than the automatic effective date of 30 days. If a delayed effective date is desired, that date should be included in a separate section.

Each ordinance should have a statement of passage. For example: “Passed and adopted by the Mayor and City/Town Council of the City/Town of this day of , 20 .”

2.2. Presentation of Ordinance at Council Meeting

For an ordinance to be considered at a council meeting, discussion and possible action on the ordinance must be included on the council agenda. The agenda must include the subject of the ordinance not just a reference to the number of the ordinance.

Some city and town codes require multiple readings of ordinances at separate meetings, except for those with emergency clauses. Others only require a single reading and allow for passage of the ordinance at the same meeting in which it is introduced. Check your code and/or charter for the proper procedure; there are no state laws requiring a specific procedure.

If it is allowed by your city or town code, reading of the ordinance is often dispensed with if the council has printed copies of the ordinance. Once again, whether an actual reading of an ordinance is required, and how many times an ordinance must be read, is determined by the city or town code.

2.3. Final Steps in Ordinance Adoption

All ordinances must be signed by the mayor, or in the absence or disability of the mayor, by the vice mayor or acting mayor. If possible, this should be done on the same day as the council meeting at which the ordinance was passed. If the signature is obtained on another day, then it should be dated to assist in determining the effective date of the ordinance.

The clerk must attest to the signatures affixed on each ordinance.

If an ordinance contains a penalty clause or imposes a civil sanction, the ordinance does not become effective until the newspaper requirements of A.R.S. § 9-812 and the posting requirements of A.R.S. § 9-813 have been met.

A.R.S. § 9-812 requires the ordinance to be published in one of the following: (1) a newspaper that is printed and published within the city or town; or (2) a newspaper printed and published within the county in which the city or town is located with a greater circulation to residents of the city or town.^[6]

Under A.R.S. § 9-813, an ordinance containing a penalty, fine, forfeiture or other punishment must be published after its enactment by posting it: (1) at city or town hall or in one public place within the city or town; (2) on the city’s or town’s website; and (3) any additional public notice as is reasonable and practicable.[7] Exhibits to the ordinance may be excluded from the postings pursuant to this section if the city or town lists in the postings where the exhibits are available for public use and inspection. Posting may be established by the affidavit of the person who posted the ordinance, which is then filed with the clerk.^[8] This can be accomplished by printing the date and time of posting and the name of the person who posted the ordinance at the bottom of each posted ordinance, and then filing it with the clerk’s office (some clerks have created stamps for this purpose). Another option is to create a certificate of posting for such ordinances (see Exhibit Four). The ordinance does not become effective until the newspaper requirements of A.R.S. § 9-812 and the posting requirements of A.R.S. § 9-813 have been met. Your city charter, city/town code, and/or other state laws may impose additional posting requirements based on the subject matter of the ordinance.

The clerk must certify the minutes of a council meeting at which any ordinance, resolution, or franchise is passed.^[9] We recommend that all council meeting minutes be certified (see Exhibit Three).

Ordinances must be published by the clerk in accordance with state law requirements.^[10]

The clerk should file each ordinance in an ordinance book and enter upon the ordinance the publication date and where published. If the ordinance must be posted, evidence of posting should be included on or attached to the ordinance.

2.4. Effective Date of Ordinances

Unless otherwise required by state law or a local requirement, enacting an ordinances requires a majority vote of the council at a council meeting. Ordinances generally go into effect 30 days after their passage and approval by the mayor unless a later date is specified in the ordinance or an actual emergency exists.^[11] Certification of the minutes must also take place during this 30-day period.

Passage of an emergency ordinance requires an affirmative vote of three-fourths of all the members elected to the city or town council, taken by ayes and nays, and approval by the mayor.^[12] When an emergency ordinance is passed, it will become immediately operative only when it states, in a separate section of the ordinance, the reason for the emergency.

If an ordinance contains a penalty clause, the penalty must be described in the ordinance and the penalty does not become effective until the newspaper requirements of A.R.S. § 9-812 and the posting requirements of A.R.S. § 9-813 have been met. Posting may be established by the affidavit of the person who posted the ordinance which is then filed with the clerk.^[13] This can be accomplished by printing the date and time of posting and the name of the person who posted the ordinance at the bottom of each posted ordinance, and then filing it with the clerk’s office (some clerks have created stamps for this purpose). Another option is to create a certificate of posting for such ordinances (see Exhibit Four).

If a person or organization wishes to file a referendum petition against an ordinance or resolution, and a full and correct copy of the ordinance or resolution cannot be provided at the time the person or organization requests an official number, the 30-day period for calculation of when the ordinance or resolution is effective and the deadline for submission of referendum petitions, if any, begins on the day the ordinance or resolution is available to the public.^[14]

3. ADOPTION BY REFERENCE

A city or town may enact the (non-penalty) provisions of a code or a public record “by reference” without setting forth the provisions or record in the ordinance itself^[15] so long as the ordinance is published in full and three or more paper copies of the referenced code or public record (or one paper copy and one electronic copy) are filed with the city or town clerk and kept available for public inspection.^[16] Any penalty provision, however, would still need to be set forth in full in the adopting ordinance.^[17]

This method may be used for lengthy ordinances to cut down on publication costs.

The enactment regulations may be accomplished by first declaring the regulations a public record by resolution and then adopting an ordinance that incorporates by reference the resolution. For example: That the document titled “Building Code”, three copies of which are on file in the office of the Town Clerk of the Town of Gilbert, Arizona, and previously declared to be a public record by Resolution No. _____, is referred to, adopted, and made a part hereof as if fully set out in this Ordinance . . .”

Some cities combine the declaration of a public record and the adoption of the public record in a single ordinance. The document to be adopted should not be called an ordinance. “ . . . That certain document titled “Building Code” attached hereto as Exhibit A, three copies of which are on file in the office of the Clerk, is hereby declared to be a public record. Said copies are ordered to remain on file with the Town Clerk for public use and inspection.”

See Exhibit Five.

A code or public record enacted by reference may be amended in the same manner. Any penalty clause, however, would still need to be set forth in full in the adopting ordinance.^[18]

4. DEFINITION AND USE OF RESOLUTIONS

A resolution constitutes a proposal submitted in writing. The effect of the proposal is to “resolve that . ..” Usually, a resolution ranks above a motion and below an ordinance. Resolutions are generally more temporary and are used for council action on administrative or executive matters, or for statements of general council policy. If the resolution “is in substance and effect an ordinance or permanent regulation, the name given to it is immaterial” and may be a legislative act regardless of whether it is called a resolution.^[19] There are some administrative matters that state law requires to be in the form of an ordinance rather than a resolution. A good policy is to check with your city or town attorney for a final determination on whether an ordinance or resolution is appropriate for a particular action.

5. PREPARATION AND ADOPTION OF RESOLUTIONS

In preparing and adopting resolutions, the following points should be kept in mind:

Resolutions are assigned a number by the clerk in numerical sequence. As stated in the section on ordinances, sometimes the year of adoption is reflected in the number.

The use of a title for a resolution is optional.

A resolution may be introduced and passed at the same meeting.

A resolution is signed by the mayor and attested by the clerk. If the mayor is unable to sign, the vice mayor or an acting mayor may sign.

A resolution may not have to be published. The clerk should check with the attorney to determine if it needs to be published.

It is recommended that the clerk keep a “Resolutions Book” in which each resolution can be indexed as to number and title.

6. CONCLUSION

Following the proper procedures for preparation and adoption of ordinances and resolutions is important. This Guide should not take the place of consultation with your city and town attorney on both the contents and the procedures to be followed for ordinances and resolutions.

FOOTNOTES

^[1]State law requires that ordinances attached to referendum petitions be prepared in legislative style. A.R.S. § 19‑112 (B).

^[2] A.R.S. § 19‑112 (B).

^[3] Thrift Hardware & Supply Co. v. City of Phoenix, 222 P.2d 994 (Ariz. 1950).

^[4]A.R.S. § 9-803. See also A.R.S. §§ 9-812, 9-813.

^[5] A.R.S. § 9-803. See also A.R.S. §§ 9-812, 9-813.

^[6] A.R.S. § 9-812(A). In cases where laws or ordinances are enacted on behalf of a private party, the private party is required to pay the expense of publication and may designate the newspaper. A.R.S. § 9-812(B).

[7] A.R.S. § 9-813. See also A.R.S. § 9-812.

^[8] A.R.S. § 9-813.

^[9] A.R.S. § 19-142 (B).

^[10] A.R.S. § 9-812.

^[11] A.R.S. § 19-142 (B).

^[12] A.R.S. § 19-142(B).

^[13] A.R.S. § 9-813.

^[14] A.R.S. § 19-142 (C).

^[15] A.R.S. § 9-802.

^[16] A.R.S. § 9-802. The copies must be maintained in compliance with A.R.S. § 44-7041.

^[17]A.R.S. §§ 9-802, 9-803.

^[18]A.R.S. §§ 9-802, 9-803.

^[19] §15:2 Resolutions and ordinances distinguished, 5 McQuillin Mun. Corp. § 15:2 (3d ed.).