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City attorney: Janesville City Council shouldn't act on Billy McCoy petitions

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Neil Johnson
August 21, 2014

JANESVILLE—Janesville's city attorney is recommending the city council take no action on a pair of petitions aimed to halt the planned central fire station project and curtail spending on city projects.

In legal opinions released this week, City Attorney Wald Klimczyk wrote that two direct legislation petitions filed July 30 by resident Billy McCoy have several “fatal legal defects” that make them void and not legal to be enacted by the council.

The opinions, which span 70 pages and cite multiple Wisconsin court rulings, state that McCoy's petitions aren't valid because they attempt to exert “administrative” authority over the city and the city council's ability to shape and enact city legislation, something the opinions argue state law does not allow.

In the opinions, Klimczyk recommends the council take no action on the petitions, effectively ignoring them.

The opinions were attached to memos in a city council agenda and come as the council is slated to discuss Monday night how to handle McCoy's petitions. 

McCoy in one of the petitions seeks to get the council to repeal its April decision to build a new, $9 million central fire station along Milton Avenue and instead turn the plan over to voters for potential approval or denial through a referendum.

His other petition seeks to force the city to develop a new charter ordinance that would force the city to go to referendum to get voter approval for any capital project over $2 million.

Klimczyk's legal opinions argue that both petitions are void and can't be legally enacted because they fail to follow rules of direct legislation which are outlined in state statute, including that it:

-- Must be legislative, not administrative in character.

-- Must not conflict with existing legislation.

-- May only exercise powers already granted to a city council.

-- May not modify specific state statutes in a way that would bind a municipality if it tried to use those statutes to create or enact policy.

Klimczyk wrote that the fire station petition is illegal because it attempts to use overarching, administrative authority to roll back a legislative decision by the council to build a new fire station.  

Klimczyk cited state court decisions that have ruled direct legislation “cannot exceed or enlarge the powers conferred upon the municipal governing body by state law.”

In a 56-page legal opinion, Klimczyk wrote that McCoy's petition seeking a charter ordinance to limit city capital project spending is illegal because it would create a vague, blanket authority that would trump the council's legislative power to act on city projects that could impact the interests and safety of the community.

It would shackle the city's ability to plan its annual budgets under state law on taxing, borrowing and spending, he wrote.  

“It usurps the council's and city manager's administrative powers,” Klimczyk wrote. “It forces the common council to violate the state's mandated levy limits and spending caps for cities, and otherwise do what the law does not allow.”

He also wrote the city project-spending petition is a backdoor attempt to repeal the fire station project “at the 11th hour,” which Klimczyk argues McCoy filed after the city attorney's office had issued a preliminary opinion the fire station petition was likely legally void. 

Both petitions have clauses that seek to automatically force the petitions to a voter referendum if the council takes no action.

Klimczyk argues in the opinions that under state law, those clauses also are void because they're tied to petitions the city considers illegal.

Klimczyk told The Gazette his recommendations don't bind the council to any decision, and he said city administration and City Manager Mark Freitag have chosen to remain neutral and not issue a recommendation on how the council could handle McCoy's petitions.

In an email to The Gazette on Thursday, Freitag wrote he was holding off on taking a stance on the petitions until the council reviews them Monday.

“I believe it would be premature for me to speak for or against either petition before the Council has had an opportunity to review and discuss the two petitions,” Freitag wrote.

He wrote that if the council seeks a recommendation after initial discussions, he'd be willing to give one.

Klimczyk in the opinion said the council can use its own discretion and:

-- Enact the petitions as policy.

-- Consider the petitions advisory.

-- Submit them to voters as referendums.

-- Not act on them.

However, the council under law cannot change any wording in the petitions.

While the city attorney's office considers its legal opinion nonbinding, council President DuWayne Severson last week said he wouldn't have much to say about the petitions until the city attorney's office gave the council an opinion.

Klimczyk said Severson had asked for the petitions to be placed on council agendas Aug. 25 and Sept. 8. That would comply with the state's 30-day deadline, Klimczyk wrote.

A review by the city clerk's office Aug. 14 showed McCoy had enough signatures—15 percent of residents who voted in the last general election—to be valid for council review. The council under law has 30 days from Aug. 14 to consider the petitions.

According to city clerk's records, McCoy collected 7,053 valid signatures for the petitions. 3,484 people signed the fire station petition; 3,569 people signed the petition on capital projects. That's well over the 15 percent he needed to get both petitions in front of the city council.

The Gazette could not reach McCoy for comment on Thursday, but he said earlier he would consider legal action if the council fails to act on the petitions.

He's said a group of residents resents the Milton Avenue fire station plan because of its cost, its location and the fact it was approved by the council out of closed meetings. If the city ignores the petitions outright, those citizens would “march on City Hall,” he said earlier.

Severson has told The Gazette those who signed the petition represent a small faction of the thousands of voters who voted in city council elections, and council member Jim Farrell in an interview on WCLO radio questioned whether many people who signed McCoy's petitions understood what they were signing.

This story has been amended to give details on the exact number of signatures on both of Bill McCoy's direct legislation petitions.



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