Minimum wage petitions found insufficient

As expected, the city of Greensboro’s legal department determined that a local minimum wage committee’s petitions to establish a city ordinance to implement a citywide minimum wage of $9.36 per hour were insufficient.

Assistant City Attorney Terry Wood told me that the Greensboro Minimum Wage Committee fell short of collecting signatures equal to 25 percent of those who voted in the city’s recent municipal election. As previously reported, the committee had expected its roughly 6,000 signatures to be counted against the 2005 election, when turnout was significantly lower.

Wood noted a second reason that the legal department determined that the petitions were insufficient: the North Carolina constitution forbids local governments from legislating labor standards.
“The constitution says that there will be no local laws with reference to labor, and I would take that to include a minimum wage ordinance,” Wood said. “The legislature may be able to give us that power, but they haven’t given us that power.”

Wood said the city clerk has sent the minimum wage committee a certified letter stating its determination, and the decision will be reported to the city council at its next meeting on Dec. 18.

Marilyn Baird, co-chair of the minimum wage committee, has told me in the past that her group would consider going to court to get the ordinance on the ballot, but she was not immediately available for comment today.

UPDATE (Dec. 14): Here's the text of Assistant City Attorney Terry Wood's opinion:

Date: December 10, 2007

To: Juanita F. Cooper
City Clerk

From: Terry Wood
Legal Department

Subject: Opinion With Reference to Sufficiency of Initiative Petition for Higher
Minimum Wage Within the City of Greensboro

Background

On December 1, 2006, pursuant to NCGS § 163-218, a Petitioner’s Committee registered an Initiative Petition with the Guilford County Board of Elections indicating that it intended to circulate the Petition among the citizens of Greensboro. The Initiative Petition was prepared pursuant to Chapter II, Subchapter D, Article 2 of the Greensboro City Charter. This Article, among other things, allows citizens to Petition the City Council to proceed with an Initiative on proposed Ordinances to require Council to adopt such an Ordinance or bring the Ordinance before the citizens for an Initiative vote on the issue.

The Petition was signed by a number of persons and was presented to the City Clerk on December 3, 2007. NCGS § 163-219 requires that if the Petition is to remain effective it must be filed within one year after the date it is registered. December 3, 2007, would be a proper date for filing with the Clerk since December 1, 2007, fell on Saturday, a non-business day. See NCGS § 1A-1, NCRCP 6(a).

To be declared sufficient a Petition must meet several conditions. First, it must be signed by at least 25%, in number, of qualified voters who voted in the last preceding election for City Council Members. Second, it must request the adoption of an Ordinance that Council has the authority to adopt and which is not prohibited by Greensboro Charter Section 2.71(a)(2) or State Law NCGS § 160A-174. Third, it must comply with all other local, State and Federal laws.

Questions Presented

Is the Petition valid on its face and do the provisions of State Law and the Greensboro Charter allow such an Initiative Petition to be presented for the purpose of establishing a local minimum wage for the City of Greensboro in excess of the Statewide minimum wage established by the State Legislature pursuant to NCGS §95-25.3 (Supp. 2006

Opinion

In our Opinion there are least two issues which require the Petition to be declared insufficient on its face. Those issues will be discussed separately.

First, Section 2.71(a)(3) of the Greensboro Charter requires that the Petition be signed by a number of qualified voters equal to “at least 25% of the qualified voters of the city who voted at the last preceding election for City Council members.” Attached is a letter from the Guilford County Board of Elections indicating that there were 33,752 ballots cast at the last preceding election for Council Members, which was held on November 6, 2007. Twenty-five percent (25%) of that number would be 8,438 and that is the number required on a valid Petition filed December 3, 2007. The Petition filed with the City Clerk contains approximately 6,385 signatures, which is well below the required total. If there is a perceived inconsistency between the City Charter and the registration provisions of NCGS § 163-218 and 219 the City Charter provisions for filing control. See NCGS § 160A-3(b). The signatures have not been further verified for sufficiency since that process cannot in any way increase the number.

The second facial insufficiency pertaining to the Petition is its subject matter. Charter Section 2.73(d)(2) states that the Petition must be determined insufficient if it proposes “an Ordinance not subject to the power under which the petitioners are proceeding.” The Petitioners are requesting the City to adopt an Ordinance authorizing a local minimum wage in excess of that adopted by the State Legislature in NCGS § 95-25.3 (Supp. 2006). The adoption by the State Legislature of NCGS § 95-25.3 indicates a clear intent on its part to enact a Statewide law with reference to minimum wage. For a City to have independent authority to enact varying minimum wages the Legislature must, if constitutionally allowed, specifically delegate such authority to the City. See the NC Constitution, Art. II, Sec. 24(1)(j), which says no local law may be adopted regulating labor. Certainly no legislative attempt has been made to give Greensboro such authority. See also, McQuillan, 7 Municipal Corporations, § 24:320, (3rd Ed. Rev. 2005).

The statute which gives the City authority to adopt ordinances, NCGS § 160A-174 (b)(2), states that a City has no authority to “make unlawful an act . . . which is expressly made lawful by State . . . law.” Pursuant to State law, it is lawful to pay a minimum wage lower than that being proposed by the Ordinance attached to the Petition. Subsection (b)(5) of the same Statute indicates that a City may not propose an Ordinance that “purports to regulate a field for which a State . . . statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.” State law NCGS § 95-25.3 (Supp. 2006) clearly shows such an intent.

It is the Opinion of this Office that the Initiative Petition is insufficient on its face. If you concur, the Petitioners’ Committee should be so notified and Council advised by a Clerk’s Certification of Insufficiency at its next Regular Meeting. Section 2.73(g) states that your determination is subject to judicial review as set out in Charter Section 2.75 and that you take no further action on the Petition unless a court directs otherwise.

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