COUNCIL-MANAGER FORM OF GOVERNMENT ‑- EFFECTIVE DATE ‑- APPOINTMENT OF MANAGER ‑- INCUMBENT MAYOR'S TERM ‑- EMERGENCY ORDINANCE FOR MANAGER'S SALARY ‑- EXECUTIVE MEETINGS ‑- PETITION FOR...

COUNCIL-MANAGER FORM OF GOVERNMENT ‑- EFFECTIVE DATE ‑- APPOINTMENT OF MANAGER ‑- INCUMBENT MAYOR'S TERM ‑- EMERGENCY ORDINANCE FOR MANAGER'S SALARY ‑- EXECUTIVE MEETINGS ‑- PETITION FOR ABANDONMENT ‑- APPOINTMENT OF PARK & LIBRARY TRUSTEES

Council-manager form effective when new councilmen take office; incumbent mayor holds office only until appointment of mayor under new plan‑- temporary manager may be appointed‑-emergency budget ordinance proper for payment of manager's salary‑-minutes of executive session need not be public‑-petitions for abandonment of plan governed by law regulating petitions for adopting it‑-city manager authorized to appoint library and park board members.

                                                                  - - - - - - - - - - - - -

                                                                December 1, 1950

Honorable A. P. McPherson
Representative 17th District
3406 "R" Street
Vancouver, Washington                                                                                                              Cite as:  AGO 49-51 No. 396

Dear Sir:

            We are in receipt of your letter of November 18, 1950, wherein you have called our attention to the fact that the City of Camas, a city of the third class, has called an election to be held on December 13, 1950, for the purpose of voting on the proposal whether or not to adopt the council-manager plan of municipal government, and wherein you have propounded the following questions:

            "1. If council-manager plan is adopted when would it go into effect in Camas?

            "2. Would the mayor under our council mayor form continue in office until a manager is appointed?

            "3. We would have the power to perform the duties conferred on a manager before the manager is appointed?

             [[Orig. Op. Page 2]]

            "4. The law states that the council shall appoint a manager.  Would the fact that the council-manager plan has been voted in be such an emergency that an emergency ordinance could be passed to pay his salary?

            "5. Could the council hire a manager and make any agreement to pay him in 1952 for his services in 1951?

            "6. The law provides that it is possible to make council and committee meetings executive sessions.  Would minutes from these meetings be public?

            "7. Does the provision in Section 23 "The sufficiency of the petition shall be determined" mean that the signatures would have to be checked as to their validity by the city clerk?

            "8. Under the council-manager plan who would appoint the park and library board members?"

            The conclusions reached may be summarized as follows:

            1.         The plan if adopted would become effective upon the first Monday in June 1951.

            2.         The mayor under the council-manager form would continue in office only until the new mayor is chosen at the first meeting of the new council.

            3.         A qualified administrative officer of the city may be appointed to perform the duties of the manager until a manager be appointed.

            4.         Funds for the payment of the manager's salary during fiscal year 1951 may be provided for by emergency ordinance.

            5.         We express no opinion on this, since the proper method of providing for the salary is as expressed in (4) above.

             [[Orig. Op. Page 3]]

            6.         We know of no requirement that minutes of executive sessions be made public; however, the council, by ordinance, could so provide.

            7.         Section 5 of the act (Rem. Supp. 1943, § 9198-14) would apply to petitions for abandonment of council-manager government, filed under § 23 of the act (Rem. Supp. 1943, § 9198-32).

            8.         The city manager has authority to appoint library trustees and employees, subject to civil service regulations, if any.

                                                                     ANALYSIS

            The numbering herein corresponds to the numbering of the questions propounded above.

            1. § 8, chapter 271, Laws of 1943 (§ 9198-17 Rem. Supp. 1943) provides:

            "The councilmen shall be the only elective officials of cities organized under this act.  They shall take office at the time provided by general law.  The other city officials and employees who are incumbent at the time the council manager plan takes effect shall hold office until their successors have been selected in accordance with the provisions of this act.  * * *"

            General Law provides that:

            "The term of every city, town and district offices, excepting school district offices, elected to office on the second Tuesday in March shall begin on the first Monday in June following his election.  * * *" § 9, ch. 161, Laws of 1949 (Rem. Supp. 1949, § 5146-1).

            We are thus of the opinion that the plan becomes effective upon the seating of the new council upon the first Monday in June 1951.

             [[Orig. Op. Page 4]]

            2. As quoted above, § 8 of the act (Rem. Supp. 1943, § 9198-17) provides that the city officials and employees, other than councilmen, who are incumbent at the time the council-manager plan takes effect, shall hold office until their successors have been selected in accordance with the provisions of the act.  Section 8 further provides that:

            "Biennially, at its first meeting, each new council shall choose a chairman from among its members, who shall have the title of mayor."

            Thus, since the act specifically provides for the time and manner of appointment of a new mayor, we are of the opinion that upon such appointment, the office of mayor as it existed under the council-mayor form of government would beipso facto abolished.

            3. The council-manager law does not expressly state as to who would have the power to perform the duties conferred on a manager before the manager is appointed.  In this connection we note the provisions of § 14 of the act (Rem. Supp. 1943, § 9198-23) which states that:

            "* * * In case of the absence of disability of the manager the council may designate a qualified administrative officer of the city to perform the duties of the manager during such absence or disability."

            While the quoted language does not expressly apply to a situation where a manager had not yet been appointed, it is indicative of legislative intent that the government should not fail for want of a chief administrative officer, and we think that it would not be improper for the council to make such an appointment on a temporary basis for a short time, pending the hiring of a regular manager.  We note in passing that the city of Ellensburg which quite recently adopted this plan of government, was able to maintain its government intact during the transition period of one or two months without finding such an appointment to be necessary.  Of course, the council should immediately take the necessary steps to procure a manager who meets the qualifications prescribed in the act and should, with all haste commensurate with good judgment, effect an appointment.

            4. With regard to whether the council might enact an emergency ordinance thereby appropriating moneys for payment of the manager's salary during 1951, we think that such action is clearly authorized by § 6, chapter 158, Laws of 1923, (Rem. Rev. Stat. 9000-6).

             [[Orig. Op. Page 5]]

            5. Inasmuch as the passage of an emergency ordinance is clearly the proper method of providing for the manager's salary, we do not deem it necessary to pass upon this question.

            6. With regard to the public nature of the minutes of executive sessions, we know of no statutory requirement that such minutes be made public, or even, for that matter, that they be taken.  The sole reference to executive sessions is to be found in § 7 of the act (Rem. Supp. 1943, § 9198-16) which provides as follows:

            "The Council shall meet at such times and places as shall be fixed by ordinance, but shall hold at least one regular meeting during each month.  The Clerk shall call special meetings of the Council upon written request of the Mayor or any two members.  Such requests shall state the subjects to be considered at such special meeting and no other subject shall there be considered.  All meetings of the Council and of committees thereof shall be open to the public, and the rules of the Council shall provide that citizens of the city shall have a reasonable opportunity to be heard at any such meetings in regard to any matter considered thereat; but the Council or a committee thereof may be a three‑fifths (3/5ths) vote of all the members authorize an executive meeting."

            Since these meetings themselves may be private, it would be inconsistent with the expressed intention of the legislature to conclude that the minutes thereof, if any, should be made public.

            We do not believe that executive meetings may be substituted for the regular or special meetings provided for in said section, nor do we believe that the council may perform any official acts other than at an open regular or special meeting.

            7. Sections 22 & 23 of the act (Rem. Supp. 1943, § 9198-31 and § 9198-32) provide for an election on the proposition whether the city shall revert to its old form of government.  Section 23 (Rem. Supp. 1943, § 9198-32) provides in part:  [[Orig. Op. Page 6]] "* * * The sufficiency of such petition shall be determined, the election ordered and conducted, and the results declared generally as provided by this act insofar as the provisions thereof are applicable."

            Section 5 of the act (Rem. Supp. 9198-14) relating to the sufficiency of the petition required for the election on the question of the adoption of the plan, provides in part:

            "* * * Petitions containing the required number of signatures shall be accepted by the city clerk as prima facie valid until their invalidity has been proved."

            We think that section 5 is thus made to apply to elections held under section 23.

            8. This question is answered by the following previous opinions of this office, copies of which are hereby enclosed.

            (a) Opinion addressed to State Librarian, dated May 12, 1950 [[Opinion No. 49-51-274]].

            (b) Opinion addressed to Division of Municipal Corporations dated June 3, 1948.

            The gist of those opinions is that the city manager has the power of appointment of members of the library and park boards.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General