In Legal Terms - Fall Issue 2003
Local Bills Vitally Important to
Counties
Prior to coming to work
for the Association, I had very little exposure to local
acts, and certainly did not have any real appreciation
for their importance. Now I understand all too well their
impact on the ability of county government to perform.
Passage of local legislation supported by the county commission
can be vitally important to counties. The building of
a new jail or courthouse can hinge solely on the passage
of a source of revenue to fund it through a local act.
The ability to create jobs in the community can be dependent
on the passage of economic development legislation. "Home
rule" powers generally pass by local, rather than
general, act. The list goes on and on. Additionally, passage
of local legislation opposed by the county can create
enormous problems and place heavy burdens on the county
budget and the responsibilities of the county commission
and county employees.
In training courses for county
officials and county administrators and engineers, we
often talk about the nuts and bolts of getting a local
bill through the legislative process and the importance
of working with your local legislators to help see the
bills become law. However, it is just as important to
make sure that the bill is written properly and says what
it is supposed to say. It is also extremely important
to watch the legislative process carefully to make sure
that what you want or what you thought was going to pass
is actually the bill that does become law.
In the last few months, ACCA
staff have discovered (unfortunately after the fact) several
instances where the local bill passed by the Legislature
was not quite what it was supposed to be - or did not
pass in the manner in which it was supposed to pass. Here
is one example:
During the 2001 Regular Session
of the Alabama Legislature, a local bill was introduced
to provide an expense allowance for the revenue commissioner.
Several days later (for reasons unknown), the identical
bill was introduced again. Because uncontested local bills
generally pass through the process quickly and without
much scrutiny from either body of the legislature, both
bills passed both houses of the legislature and were sent
to the Governor.
Both of these bills became
law without the Governor's signature, and now both laws
are in effect. Both bills provided that the revenue commissioner
would receive an expense allowance of $400 per month "in
addition to any other expense allowance previously provided
for by law". The result as interpreted by the attorney
general in a recent opinion is that, instead of a $400
monthly expense allowance, this revenue commissioner is
now entitled to an $800 monthly increase - $400 as a result
of each of the newly enacted laws.
It is highly unlikely that
this was the result intended by the legislator who introduced
these bills - he could have easily introduced one bill
providing for an $800 increase if that was his intent.
My guess is that he forgot he had introduced it and inadvertently
introduced it a second time. Then, because of the "courtesy
rule" whereby legislators usually do not interfere
with uncontested local bills, both bills passed without
comment and with no one realizing the same bill passed
twice.
In truth, this happens with
some regularity. Frequently, a bill will be introduced
in both houses to increase the chances of it making it
through both houses and to the Governor's desk. In fact,
ACCA staff almost always tries to have both a House and
Senate sponsor for the bills we support. Sometimes both
bills become law, but generally the effect is insignificant.
In this case, the significance was great - and very costly
to the county. I doubt very seriously that the county
realized what had happened, or understood what it would
mean. I doubt also that the legislator realized and/or
understood what had been done.
The problem could have been
avoided. If the county had been aware that both bills
were working through the process at the same time and
understood the possible outcome, they could have pointed
it out to the bill sponsor or local legislator in the
second house, and requested that only one of the two bills
be pursued. If that failed, they could have contacted
the Governor's office and requested that one of the bills
be vetoed. Under the circumstances present here, that
request would probably have been granted. Now the only
option the county has is to try to have one of the new
acts repealed in a subsequent legislative session. However,
since the revenue commissioner, as a result of the attorney
general's opinion interpreting the effect of these two
acts, is now receiving this unintended windfall, he or
she may fight against any effort to correct the legislative
mistake.
These bills also provide a
good example of the importance of carefully reading all
local legislation which will impact your county. The two
local bills granting the expense allowance for the revenue
commissioner also included a $400 expense allowance for
the probate judge and each of the county commissioners.
However, the language in the sections providing for those
increases was different than that applied to the revenue
commissioner. The sections for the probate judge and commissioners
stated that the $400 expense allowance "shall be
the total expense allowance for this office as provided
by law". In other words, these sections made clear
that this was the only expense allowance
these officials would receive, while the increase for
the revenue commissioner was in addition to
all other expense allowances. Why was this language different
from that addressing the revenue commissioner? Did the
legislator intend the different result or was it a drafting
error or oversight? I do not know the answers to these
questions and the county may not know the answers either,
but these are questions that should have been asked when
the bills were introduced so that the county would have
known, before the bills became law, that there would be
disparate treatment, and perhaps could have worked with
their legislators to ensure that all officials were treated
in the same manner.
The legislative process is
complicated, and sometimes things happen so quickly that
it is hard to keep up. Often, it is even harder to understand
what is happening. In addition to the many legislative
rules and statutory and constitutional provisions which
affect the passage of legislation, there are many court
decisions which have established rules regarding the construction
and interpretation of a piece of legislation once it does
become law. Any of these factors can result in legislation
not accomplishing the original intent and objective of
the author (be it a legislator, a county, or an interest
group), and as shown in the example set out above, this
can mean that what was intended is not what does become
law.
The ACCA staff does not, as
a general rule, monitor the content of local legislation,
or follow these bills as they make their way through the
process. We do provide counties with a local bills report
periodically throughout the session to help counties stay
aware of what bills have been introduced and the status
of those bills. There is really no way that we can carefully
monitor every local bill introduced. However, we will
certainly try to answer questions from counties about
local legislation and advice as possible about the content
or status of these bills.
In order to keep up with and
be sure of the current status of a local bill is understood,
counties should have in place a system for monitoring
its local legislation and some working knowledge of what
the legislation says and how the process works. Here are
some suggestions:
1. Meet with local legislators
to make sure that there is agreement and understanding
about what is intended in the bill to be introduced;
2. Check with ACCA staff to
determine whether there is "model" legislation
or whether another county has already passed a law on
the subject of your legislation;
3. Have legislation drafted
and/or reviewed by the county attorney;
4. Carefully review, before
introduction, bills drafted by the Legislative
Reference Service;
5. Carefully monitor the legislation
- not only with regard to where it is in the process,
but whether there have been any changes in the bill since
introduction;
6. Do not depend solely on
the local bills report received from the ACCA office.
Check the status of your bill(s) on a daily basis through
the legislature's website at (http://alisdb.legislature.state.al.us/acas/acaslogin.asp);
7. Question any changes in
the bill. Substantive changes in a local bill will render
it unconstitutional. Additionally, even nonsubstantive
changes can alter the effect of the legislation;
8. Contact your local attorney
if you have any questions about your legislation. If he
or she cannot help you, call the ACCA office;
9. Stay in touch with your
local legislators about the legislation. Sometimes they
need a push and sometimes they will not be fully aware
of the status of the bill;
10. Once the bill passes, read
it carefully to make sure that it says what you want,
and then communicate with the Governor's office to ensure
that the bill is signed in a timely manner or can become
law without his signature. If detrimental changes have
been made, you may want to work with that office toward
an executive amendment or veto.
11. Be prepared to come to
Montgomery to lobby for or against the bill at any stage
of the process.
12. Whenever in doubt, call
your ACCA staff in Montgomery at (334) 263-7594!!!
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