In Legal Terms - Fall Issue 2003
Tools for Monitoring and Passing
Local Legislation
In the last issue (Fall 2003)
of The County Commissioner, I wrote about the importance
of county officials and employees carefully monitoring
local legislation of interest to or affecting the county.
In this article, I thought I would discuss some of the
legal and procedural issues which can impact on your local
legislation - some of the things you need to look for.
As most county officials and
administrators know, local legislation must be properly
advertised prior to introduction. Article IV, Section
106 of the Constitution of Alabama requires that the substance
of any proposed local bill be advertised in a newspaper
published in the county at least once a week for four
consecutive weeks. A bill that has not been properly advertised
is unconstitutional.
The Constitution does not require
that the county publish the exact language contained in
the bill. In fact, the Supreme Court has held that the
bill may be sufficiently stated without stating the details.
See, Birmingham-Jefferson Civic Center Authority v.
Hoadley, 414 So.2d 895 (Ala. 1982). This allows the
Legislature to shape the details of proposed local legislation
by amending bills when presented for consideration and
passage. However, the substance of the proposed act as
advertised cannot be materially changed or contradicted
during the legislative process. Birmingham-Jefferson
Civic Center Authority v. Hoadley, supra. See, also,
AG's Opinion # 97-045.
The advertisement of a bill
should not be changed once advertising has begun. Remember
that the substance of the bill must be advertised four
separate times. A change in the advertisement may indicate
a change in the substance of the bill. Therefore, if such
a change is made - perhaps to correct some error in the
original advertisement or bill draft - the county should
restart the advertisement to ensure that it is published
in proper form for four consecutive weeks. (See, e.g.,
AG's Opinion # 98-147, where a bill was advertised for
a $3000 per month expense allowance for two weeks, and
then corrected to properly state that it was really an
expense allowance for $3000 per year. The attorney general
viewed the act as constitutionally suspect because of
the advertising change.)
It is important to keep in
mind that the bill passed must be substantially the same
as the bill advertised. While minor technical changes
in a local bill during the legislative process will not
affect the validity of the final act, "substantive"
changes made through amendment or substitute will invalidate
the act. (See, e.g., AG's Opinion # 97-045, where several
changes made in the bill rendered it, in the opinion of
the attorney general's office, unconstitutional and subject
to challenge.)
Therefore, counties must be
very careful about any changes made to a bill once it
has been advertised and introduced. It is the court, not
the legislature, who makes the final decision on whether
a local bill has changed so much during the process that
it is not the same bill advertised and is, thus, unconstitutional
- and that decision is generally not made until the bill
has become law and is challenged.
One last note on advertising
local bills - the attorney general has consistently held
that local bills "re-introduced" in successive
or subsequent legislative sessions must be re-advertised.
See, e.g., AG's Opinion # 84-455. In other words, if your
bill dies in a regular or special session, you must again
advertise for four consecutive weeks before introducing
the same bill in a later legislative session.
As I said in my last article,
in addition to watching carefully for proper advertisement,
it is extremely important to read your local legislation
and make sure that you know exactly what it says. It is
impossible in this format to point out all of the things
to look for, but a few items to be sure to check are listed
below.
What is the effective date
of the act in the bill as written? It used to be that
bills were written to become effective immediately after
being signed by the governor. However, in recent years,
Legislative Reference Service has included language in
bills to make them effective "on the first day of
the third month" following passage and signature.
This allows time to make whatever preparations are necessary
to implement the new law. Often the effective date will
not really matter, but sometimes it will. For example,
the attorney general has recently held that the governor
cannot call for a special election on a local referendum
until the law goes into effect. See, e.g., AG's Opinion
# 2003-184 and #2003-170. Keeping in mind that a local
referendum must be precleared by the Justice Department,
and that there are notice and publication time frames
for calling an election, the effective date of an act
calling for such a referendum can be extremely important,
particularly where the county is proposing a tax referendum
and the plan is to begin collecting the tax at the beginning
of the following fiscal year.
Does your bill include a referendum?
Read carefully the language in the bill regarding calling
for an election If you want a special election held or
want it held at some specific time or specific election,
be sure the bill makes proper provision for the election
(and remember that the county will have to pay all
election costs in a special election on a local referendum).
If you do not want a special
election, the bill should state that the referendum will
be held at the next general election held for another
purpose. If you do or do not want the election held at
a primary or special statewide election, that fact should
be spelled out as well. Local bills often simply state
that the election will be called and held under the election
laws of the state. Make sure that those "general
laws" will meet your needs - and if you need or want
something "special", make sure it is properly
specified in the bill.
Does the local act amend or
repeal prior acts? Does it need to? Suppose there is local
legislation proposed to grant the revenue commissioner
an expense allowance of $100 per month. The revenue commissioner
is already receiving $50 per month from a prior local
act. Is the "new" legislation intended to add
$100 to the existing allowance and bring the total expense
allowance to $150 per month or is it supposed to replace
the current expense allowance of $50 with a total expense
allowance of $100? If the prior act is not amended or
repealed, it may be interpreted to be cumulative or supplemental
as opposed to a replacement of the original allowance
provided for in the pre-existing local law.
Does the local act unintentionally
conflict with another local act on the same subject? The
courts have consistently held that when interpreting the
law, you look at the last expression of the law -- in
other words, the last act passed.
It is a common mistake in passing
both general and local acts to inadvertently invalidate
an existing law by altering the language in a subsequent
act. Assume there is a local act establishing the make
up of the county commission and providing for a rotating
chairman. Later, a local act passes increasing the size
of the county commission and providing that the chairman
shall be elected at the first meeting of the county commission
following the election. The intent may have been that
the "first" chairman be elected at that meeting
and that the rotating process then proceeds as in the
past. However, the new act may be interpreted as "overruling"
the prior act to provide for one chairman elected by the
body to serve in that role throughout the term of office.
Finally, pay careful attention
to when your local bill passes the legislature. Under
Section 125 of the Constitution of Alabama, the governor
generally has six days (excluding Sundays) to sign a bill
once enrolled and delivered to him from the Legislature.
If the bill is not signed within that time period, it
becomes law without his signature. However, this rule
does not apply for any bills presented to the governor
within five days before final adjournment of the legislature.
In that case, the governor has ten days after adjournment
to sign the bill into law. If he does not sign the bill,
it dies. (This is known as a pocket veto.)
These rules are very important
to remember and follow -- particularly for revenue enhancement
measures. Governors are frequently reluctant to sign any
revenue raising bills which may be viewed as a tax increase
by the general public.
During the bulk of the session,
the governor can let the bill become law without his signature
simply by taking no action. However, this will not work
at the end of the session where the bill must be signed
by the governor in order to become law. Counties should
be very careful to introduce revenue measures early in
the session, and make every effort to have them pass at
least five days before the end of a session. Additionally,
counties must continue to monitor the bill while it awaits
action from the governor, and if necessary, contact that
office to make sure that there are no problems with signing
the bill and that proper action is taken in a timely manner.
I wish that it was possible
to warn counties of all the pitfalls they may face when
trying to pass local legislation. Unfortunately, it is
not. I do hope that I have shown some potential problem
areas where careful attention can make a tremendous difference
in the outcome of your very important local bills.
And I also hope that I have
impressed upon counties the importance of reading the
bills, monitoring the progress, aggressively pursuing
passage (or defeat) through constant contact with your
legislators and the governor, and most importantly, asking
questions whenever in doubt.
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