The Powers and Limitations of a City

In 1879, the California Constitution was amended to grant local jurisdiction the five basic aspects of home rule. They are:

1. Cities may enact any local police, sanitary and other ordinances and regulations that are not in conflict with general law of the state.
2. The state may not enact special laws which affect specific cities.
3. The state shall not impose local taxes, but instead keep its taxing authority restricted to state purposes on an across-the-board basis.
4. Cities may establish, purchase and operate municipal utilities to provide their residents with light, water, power, heat, transportation and means of communications.
5. Charter cities may exercise exclusive jurisdiction over “municipal affairs”.

Cities are granted many express powers in statute. They also have the implied power to do everything necessary to implement an express power.

Over the years, limitations have been imposed by statute and case law upon these home rule powers. The following are some of the important restrictions:

1. Limitations on Secrecy
The Brown Act. Drafted by the League and signed into law by the governor in 1953, the Ralph M. Brown Act provides that no city board -- whether the city council, the library board, the park and recreation commission or any other commission or official committee thereof -- shall hold any meeting other than a duly called and regularly held public meeting; notice of which is provided either by ordinance or resolution, or special call, or by adjournment of a prior meeting.

A “meeting” takes place whenever a quorum is present and official business is conducted or city matters are discussed. Closed meetings may be held only in limited situations, which are specified in statute, such as labor, personnel and litigation sessions.

The Brown Act also generally provides action may only be taken on items on the agenda posted for a prescribed period prior to the meeting. However, action may be taken on some limited items, which come up after the agenda has been posted if approved by four-fifths vote.

The Public Records Act. This law provides all public records are available to any interested citizen and may be inspected at any reasonable time at the city clerk's office. As with the Brown Act, there are expectations to this rule that are specified in the Public Records Act. These include some police and personnel documents and documents protected by attorney-client privilege.

2. Limitations Upon Official Action

Public Purpose. All public funds must be expended for public or municipal purpose and there may not be a “gift” of public funds for a private purpose. The taxpayers' monies cannot be diverted into projects other than those which serve a public or municipal purpose. An improper expenditure (not authorized by law) may result in personal liability of the individual council member.

Expenditure Limitations. The legislature, or the electorate through constitutional initiatives, may impose spending limitations. At present, there is a limitation in effect, which restricts the expenditure of most revenues to the 1978-79 fiscal year plus or minus cost of living and population changes.

The limitation now in effect may be relaxed by vote of the electorate or through the use of funds not subject to the limitation.

Debt. A city may not contract to expend in any fiscal year in excess of current revenues plus reserves. A city has no power to incur a present debt in excess of its present liability to pay, and thus cannot purchase property on an installment plan or on conditional sales contract. Financing must be accomplished through assessment district bonds, non-profit corporations, joint powers authority bonds, lease-purchase options, lease-leaseback, redevelopment agency bonds, short-term borrowing or other specially-authorized bonds.

Eminent Domain. The power of eminent domain or condemnation is the right to take property for public purposes, for example, to build a city hall or acquire a park. Property, however, may not be taken unless the owner is paid the fair market value for the property in case, plus relocation expenses. Conversely, whenever the city intentionally or inadvertently takes or damages private property, or exacts it as a condition to a permit (unless justified under the police power), it must pay fair value.

Discrimination. A city may not enforce its rules, regulations, or ordinances on a discriminatory basis in favor of any individual person, race, or segment of its population. All facilities, rules, regulations and ordinances must be applicable on an equal basis.

Equal Protection. All laws and ordinances must be so written as to apply with equal protection to all facets of the population; it is improper to adopt a regulation which applies to only certain individuals or classes, unless the classification is germane to the purpose of the regulation.

Preemption. A general law city must comply with general laws of the state and therefore cannot make any rule or regulation which conflicts with or duplicates state law, or conflicts with policies or regulations of the state. Charter cities are less subject to preemption in areas the courts have determined to be “municipal affairs.”

Due Process. In all procedural functions of local government, whether legislative, administrative or quasi-judicial, the council must accord due process to the citizens. This term is not subject to precise definition, but in general means confirming to fundamental principles of justice and constitutional guarantees. Unfair determinations, such as bias, predetermination, refusal to hear one person's side, failure to explain the basis for council action, and so on, are examples of failure to accord “procedural due process” and may invalidate some kinds of council action. “Substantive due process” means city action may not be arbitrary or capricious and must promote legitimate municipal purposes.

Civil Liberties. The state and federal constitutions guarantee certain civic liberties and civic rights, such as the right of peaceful protest, assembly, worship, speech, etc. Municipal regulations which unreasonable impinge on the lawful exercise of these rights, whether by prior restraint, prohibition, arbitrary regulation or arrest, are invalid. A permit system designed to afford reasonable notice and assure adequate control and freedom from unnecessary risks may be appropriate, but the burden of proof as to validity may be on the city. As a result, such ordinances should be carefully drafted.

Reasonableness. Implicit in every constitutional statutory and judicial authorization is the recognition that every action of municipal government based thereon must be reasonable from both the standpoint of accomplishing a municipal purpose and from the counterpoint of preventing unnecessary restrictions. In other words, no municipal action can be arbitrary or excessive in scope. This is also sometimes referred to as substantive due process.

The primary responsibility for determining the reasonableness of city action lies with the city council. However, the courts have jurisdiction to remedy confiscatory, abusive or capricious action.

Procedural Requirements For Certain Kinds of Action. The legislature has determined many activities which local government might otherwise undertake may be pursued only according to strict procedural requirements. For example, zoning decisions require hearings. Assessment district formation involves a whole series of notice requirements, hearings, opportunities to protect and, in some instances, votes. Major public works construction typically involves a bid procedure and almost all public or private projects over which the city has discretion must be preceded by an environmental review. Failure to follow such rules will usually invalidate the action taken.

Redelegation. A delegated duty may not be re-delegated, and the city council- having been delegated the power to perform legislative functions, may not in turn redelegate that authority to a different agency without the consent of the electors or the legislature, or without reserving the right of final appellate review. Unless specifically restricted, a delegation of administrative functions with appropriate standards is proper.

Tort and Constitutional Rights Liability. Years ago, the courts discarded the concept of sovereign immunity. Now, a city is like any other firm or corporation and has (except for a few remaining specific immunities) the same liability for the negligent or wrongful acts of either the corporate body or its employees. The state tort claims act determines under what circumstances government will be liable for injuries to property and persons not involving constitutional violations. The act also prescribes a procedure for presenting such claims to the public agencies for resolution prior to filling a lawsuit.

Local government liability for violating federal constitutional and statutory rights has also increased in recent years, as has the protection of individual “property” and “liberty” interests. Provisions for attorneys' fees for those who prevail against government agencies can make these lawsuits especially expensive for local government.

Environmental Impact. State laws require the city to conduct an environmental review before undertaking any public project or approving discretionary private projects. If the environmental review discloses a reasonable probability the project will have significant environmental impacts, an environmental impact report (E.I.R.) must be prepared. Failure to comply with the procedural requirements for environmental review of failure to properly consider the environmental consequences of a decision may invalidate the decision.

General Plan. State law requires cities (with the exception of some charter cities) to adopt a comprehensive general plan to govern the physical development of the city. The general plan must contain seven mandatory elements relating to land use, circulation, housing, conservation, open space, noise and safety. The city has the option of adopting additional elements. The elements of a city's general plan must be internally consistent. Other city actions must also be consistent with the general plan.

3. Limitations on Personal Activities
(See also the section on Conflicts of Interest)

Incompatibility of Office. No city council member may occupy two different public offices at the same time, if the offices are incompatible one with the other. Generally speaking, offices are incompatible if they subject the officeholders to conflicting obligations and loyalties. For example, it would be impossible for a council member to serve also as a city manager or city treasurer. Likewise, a council member cannot hold any other office in a different public agency if the two positions are incompatible.

Use of Public Property. No public officer may use public staff, property, equipment or facilities (for example, city automobiles and city stationery) for a personal or private use purpose. The law books are replete with cases where individual public officers have been reprimanded, fined or even imprisoned for use of public property for private (including personal political) purposes.

Binding Future Councils. A basic rule of municipal law is one city council cannot forever tie the hands of future city council with respect to legislative enactments; no ordinance passed by one city council may remain beyond the repeal or amendment of a future city council. Each council is elected by the people to serve the needs and desires of the people at that time, and cannot be restricted, from a legislative standpoint, by prior council action. A council may, however, enter into certain long-term contracts such as leases, cable television franchises, or rubbish contracts, provided there are not antitrust (anticompetitiveness) problems.

4. Reserved Rights

Recall. The people have the right to recall any elected representative not fulfilling their desires. Naturally, the processes of recall are somewhat difficult, in that public officers, once elected, should not be indiscriminately recalled; but if, at any time, the voters present a petition containing the requisite number of signatures to oust an elected official, a recall election must be held. The number of signatures required varies according to the number of registered voters in the city.

Referendum. The right of referendum is one of the most important rights reserved to the individual electors. It guarantees that at any time more than 10 percent of the electors do not approve of a (non-urgent) legislative regulation, that 10 percent, by filling a petition within 30 days, may demand that the proposed regulation be submitted to the electorate for a majority vote of approval or disapproval. Exempt from referendum are certain tax measures, administrative decisions, and regulations of statewide concern or cases where the city is acting as agent for the state.

Initiative. This is the reciprocal of referendum and is the vehicle by which the electors can, by 10 percent petition, force an election to pass a law, which the city council has for one reason or another refused to enact.

Taxpayer's Suits. If at any time a taxpayer believes the city council or any board or commission thereof is improperly expending public funds or violating any law, that taxpayer may seek an injunction to stop the proposed action or compel the individual city council members to reimburse the treasury the amount of the inappropriate expenditure.