Alabama Advisory Opinions October 09, 1990: AGO 91-00012 (October 09, 1990)

Advisory Opinion Text

Honorable Mary S. Zoghby

Member, Alabama House of Representatives

District No. 97

2862 Hilburn Drive

Mobile, Alabama 3 6606

Municipalities - Mayor-Council -City Commissions

The provisions of Code of Alabama 1975, § 11-44C-91 permit citizens to petition for a referendum on the question of changing the form of municipal government.

Dear Representative Zoghby:

This opinion is issued in response to your request for an opinion from the Attorney General.

QUESTION

Do citizens have the right of referendum to amend or change Act 85-229, codified as § 11-44C-l through § 11-44C-93, Code of Alabama 1975, to increase or diminish powers not already granted in Act 85-229 or in Alabama's general municipal law, such as voters' approval of major expenditures, or such other changes/amendments as may seem desirable?

FACTS AND ANALYSIS

Code of Alabama. 1975. § 11-44C-91 states:

"The city is prohibited from changing from the mayor-council form of government within two years after the adopting thereof. At the end of such period, or at any time thereafter, the city's form of government may be amended or changed when:

"(1) A written petition executed by 10 percent of the number of those who voted in the last city election is submitted to the council with the proposed changes or amendments incorporated in the petition; after presentation of the petition, the council shall call for a referendum vote on the proposed changes and amendments, and

"(2) A majority of the votes cast in the referendum is in favor of the proposed changes or amendments. After the council receives the proposed changes and petition, it shall call a special election for the purpose of determining whether the city shall adopt the changes or amendments. Notice shall be given of the time and purpose of such election by publication once each week for four consecutive weeks in a newspaper published in said city prior to the referendum vote. All qualified electors of such city may participate in the election and such questions shall be plainly printed upon the ballot. The referendum shall be conducted, the expenses paid, the votes canvassed and the results declared in the same manner as is provided by law in other city elections. (Acts 1985, No. 85-229, p. 96, § 91.)"

Code of Alabama 1975, § 11-44C-91 provides for changing the form of government, changes or amendments to the form of government are mentioned throughout the section. It appears that this section provides a procedure for changing the form of government, but is not broad enough to authorize the citizens to call for a referendum on the operational aspects of municipal government. Stated differently, under this provision the citizens could, for example, present a petition calling for an election on whether to abandon the mayor-council form of government and adopt a council-manager form of government. This section would not permit an election on the issue of whether voters could veto the municipal budget.

CONCLUSION

The provisions of Code of Alabama 1975, § 11-44C-91 permit citizens to petition for a referendum on the question of changing the form of municipal government; however, because of the complexity of your question you would be well advised to contact a private attorney to give his opinion as to exactly how § 11-44C-91 relates to what you really have in mind.

I hope this sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

DON SIEGELMAN Attorney General

CAROL JEAN SMITH Assistant Attorney General