"The state of Kansas has a mechanism by which citizens may petition for the enactment of local legislation."
This is how City Attorney Greg Bengtson approached City Commissioners on Monday, concerning an ordinance to limit the City governing body's role in the event of a state or county issued state of emergency.
Initiative and Referendum Statute is the proper term for this.
A concerned group of citizens brought before the city clerk a petition to "limit the power of the City of Salina governing body to impose restrictions on businesses and citizens related to a state of emergency declared on a county or state level."
City Attorney Greg Bengtson explained to the Commission that, an amendment made to the State Constitution that regards home rule powers, or a city's ability to govern in the state of Kansas, the local citizens in regards to health and safety. This amendment was enacted on July 1, 1961.
Bengtson said the proposed ordinance aims to limit that governing right of the local authority.
Moving on, Bengtson noted that the ordinance wishes to set operating limits on the City government's own property, such as parks.
Attorney Bengtson also noted that the wording of the potential ordinance did not contain proper wording, as stated is needed within state Statute.
Kevin Korb, author of the petition, pointed out that home rule authority belongs to the citizens. "We elect you to represent us. If there's an item. that we don't feel like you've represented us in, it's our prerogative to take up a petition."
Korb also noted that supporters believed the ordinance would not be passed in this meeting. Instead, they expected it to go to a vote of the citizens, to give the people a voice.
It was also stated by Korb that the ordinance wording, as well as how it was filed, was confirmed as legitimate with multiple sources. These include a group of Kansas lawmakers, the Kansas Advisor of Statutes Office, an independent attorney, and the county counselor.
On an administrative note, all petitions must be given to the City clerk, who then delivers the petition to the county clerk. In this instance, the petition was handed to the county clerk, who then sent the petition via certified mail to the City clerk. Korb said that this was not intentional, but instead because there is some confusion not only who is who within the city & county building, but also who is to receive the petition. Be that as it may, Korb went on to say that there is no say on WHO is to hand the petition to the City clerk, whether it is the petition filer or someone else.
Although the recent pandemic is not directly or indirectly related to this proposed ordinance, those in opposition were quick to relate it as such.
Janet Hansen spoke in opposition of the proposed ordinance. She urged City Commission not to disempower themselves regarding any public health emergency now or in the future. She called the petition flawed, with concerns.
LaNay Meier also opposed the proposed ordinance. While she understands that businesses could be concerned with having restrictions put on them, the health of the community should come first. "If you don't have healthy citizens, those businesses won't have customers." Lenei wishes for the City government to continue making decisions to keep Salina safe.
Finally, Chad Farber spoke. He appreciates the effort put forth by those involved to do the needed research, and for citizens in within the city and county getting involved with government. He wants citizens to speak through voting on this issue. The City should do due diligence and move forward with this.
When the issue was turned back to Commission, Commissioner Davis asked if there is a format by which the City could place an issue on the ballot, other than going through Citizen petition.
The short answer, according to City Attorney Bengtson, is no.
Following this, the City Commission received no motion to pass the ordinance.
City Attorney Greg Bengtson then explained there were different ways to possibly proceed.
These included placing the item on the ballot in the next City election, continuing with a mail-in ballot, or proceeding with possible judiciary action.
As far as a mail-in ballot is concerned, that is rumored to cost upwards of $40,000.
City Manager Schrage noted that September 1 is the final day county clerks can remove this from a potential ballot. Loosely, this means that any judiciary action taken up to declare the legitimacy and constitutionality of the petition itself would need to be almost immediately decided upon.
Commissioner Hoppock asked for clarification, in that if the petition goes through, would the City still be able to declare a public emergency on an event that happened strictly within the city.
City Attorney Bengtson confirmed that, as it was his understanding.
Mayor Hodges then asked if an emergency disaster declaration was needed due to an example of a tornado, if this ordinance would take away the City’s ability to impose curfews, etc... She then stated this ordinance could have potential ramifications beyond the pandemic and mask mandate.
Attorney Bengtson agreed.
In requests to move forward by Mayor Hodges, Commissioner Ryan stated that he is not wishing to give up the city's home rule power, and would like to see this put on a ballot, as well as getting an opinion from the Court. This would be the judiciary action discussed earlier.
Mayor Hodges stated she would like to hear from the Court on if the proposed ordinance could be enacted before it is put on a ballot to the electors.
The subject of the City’s ability to declare a state of emergency in the event of a tornado was brought up yet again, this time by Commissioner Davis.
However, instead of Attorney Bengtson responding, it was City Manager Schrage.
His response was reading the proposed ordinance. So, if neither the County or State declared the emergency, the City still could, in respect to this proposed ordinance.
After 2 executive sessions, Mayor Hodges requested to defer the discussion on how to move forward until next week. In that time, Council should have the requested information so the Commissioners can make an informed decision.
The duty of the governing body was fulfilled by responding to this within the 20 day limit.
This leaves those who signed the petition waiting.
Those who oppose the petition are also waiting.
Let's not forget that the City Commissioners are waiting, as well.
While we as citizens are awaiting a decision, the Commissioners are awaiting information.
Information that we as citizens should be armed with, as well.