Use of ‘emergency’ clause takes another hit

LAKEWOOD – City Council’s Monday vote to table a proposal to seek voter approval of a Charter amendment that could all but end citizen-initiated special elections included an attached “emergency declaration”, a concept used twice in recent weeks and one that failed it’s second test in two weeks.

Under the City Charter, an ordinance can take effect immediately if it is accompanied by an emergency declaration linking the purpose of the ordinance with “the immediate preservation of the public peace, health or safety.” The ordinances can be approved by a simple majority vote, but the emergency clause requires approval of two-thirds of council, no matter how many council members are present as long as there is a quorum.

Mayor Bob Murphy scuttled any chance of sending the controversial measure to voters, asking City Council to table the matter until March, instead.

Murphy’s objection was the emergency clause.

Section 4 of the tabled ordinance, 0-2009-38, reads: “This ordinance is necessary for the immediate preservation of the public peace, health, or safety because delay in the effective date would prevent the question from being placed on the November ballot, resulting in the significant cost of a special election.”

“I think the legal foundation – state statute, case law – is sound in terms of making this an emergency ordinance,” Murphy said. “But having said that, I simply don’t consider this an emergency in this particular case,” It’s a matter we have discretion over.”

The emergency clause also came under question twice during the July 27 council meeting.

The emergency provision in the Charter amendment proposal tabled Monday also was questioned by Anderson during that meeting.                 

“We are putting this forward with a declaration of emergency. What is the emergency,” Anderson asked when the proposal came up on its initial public reading. “Why could this not have been brought to the public two months ago? … There was certainly time to do this without an emergency ordinance attached to it.”

When asked which Charter requirement of emergency declarations the “significant cost” of elections would meet, City Attorney Tim Cox said the term “emergency” is a catchall phrase that is beyond challenge under Colorado law.

“I am confident that saving taxpayers hundreds of thousands of dollars by merely accelerating the effective date of an ordinance would be deemed to be in furtherance of the ‘public peace, health and safety’ – even if a court could or would undertake such a review,” Cox said in a written response sent over the weekend. “The fiscal health of a community is as relevant as the physical health.”

Cox also said public safety could be an issue if extra funds for the elections would be diverted from other planned expenditures and that “the public peace could be disturbed and unrest could result if extra expenditures are made.”

Besides, Cox noted, the only purpose of waiting 30 days for the ordinance to go into to effect is to allow time for citizens to challenge it by referendum.

“It follows that an approved ordinance that sets questions for the voters to decide at an election probably should not be subject to referendum in the first place,” Cox said.

Also during the July 27 Council’ discussion of purchasing a building on Parfet Street in west Lakewood for police evidence and records storage, Anderson questioned the propriety of a previous property purchase. That property, at 1290 Harlan St., initially was proposed as a site for evidence storage and remains in the city’s property inventory.

Anderson said it appears the city is “speculating” in real estate by holding the Harlan Street property in it’s inventory and, as a matter of principal he would vote against the Parfet Street purchase in protest.

Councilwoman Vicki Stack joined Anderson in his “No” vote.

Because emergency declarations require approval by at least eight council votes and three of the 11-member City Council were absent, the ordinance passed 6-2 but the emergency declaration failed.

Failure of the emergency clause delayed the effective date of the ordinance and allows opponents to petition for a referendum on the matter.

No such challenge has been or is expected to be presented to overturn the Parfet Street purchase.