The Idaho Statesman attacked the Imperial Council on Thursday with a scathing editorial against Mayor Dave Bieter's heavy-handed decision that the city would not hold an election on the Ten Commandments monument should the Keep the Commandments coalition collect the required signatures. Mayor Bieter struck back in typical fashion.
He began with a ridiculous claim that he is "only enforcing the law". He wrote,
"As mayor, I swore an oath to uphold the law. I was elected because the people of Boise want integrity in City Hall. And I'm not inclined to thumb my nose at Idaho statutes and Boise city code simply because the newspaper thinks that to do otherwise is "bad politics."
Now, how did we get this decision not to allow the vote on the Ten Commandments. Mayor Bieter would have us believe that the City Attorney came into his office one day and said, "We have a problem here."
Mayor Bieter looked up innocently. "What's that?"
The City Attorney said, "The Iniatative proposed by Keep the Commandments is illegal."
Mayor Bieter was agasp. "Oh, really? Does that mean that I have to trample on the rights of the Coalition to seek redress from their government, again?"
The City Attorney nodded grimly. "I'm afraid so."
"Oh bother, I was so looking forward to the people being able to vote against a monument or destroy my re-election chances by voting for a new monument."
"I know, sir."
"Well, we all have our crosses to bear."
The other option is that the Mayor asked the City Attorney to find a way that the City would not have to hold the election. Somehow, I beleive that the latter is more true.
The Mayor goes on to write:
"Our state courts long ago established that the initiative process can be used only to enact laws, not to direct administrative actions. What's the difference? Legislation involves regulation — whether it should be legal for anyone to consume alcoholic beverages in city parks, for instance. Administration pertains to the day-to-day management of the city, such as the placement of a specific monument in a specific park."
Now, I'd like you to notice something. The Mayor and the City Attorney are all over the place on this. In Wednesday's Statesman, the City Attorney claimed only the authority of the City Code. Now, Bieter claims the authority of State Law as well as Idaho Courts in this claim. I actually did something that no one else has done, I've pulled up the City Code on Citizen's Initatives and it says NOTHING regarding what Bieter asserts. If you don't believe me, I ask you to read the
code. It says that it has to be an ordinance, but does not give the specificity of Mayor Bieter.
What does the Idaho Code say regarding the requirement of the form of an iniatative in the city. Just that it needs to be "legislation". So, to answer the question of what an ordinance is, one would have to read the Boise City Code and see what types of ordinances can be passed. The Mayor says that administrative actions that effect the day to day management of the city cannot be done through the iniatative process. However, the city's ordinances do lay out administrative policies. For example City Code, Section 1-16-04 lays out who is to purchase insurance and the preferred minimum grade of A+11. The city's Affirmative Action policy is laid out in Section 1-17-01. Section 10-17-06 designates the exact hours that Parking meters are in use. As to parks, Section 9-14-02 (D)(1) designates the parts of two specific parks where you can ride horses. All of these involve the day to day management of the city and were all directed by Ordinances.
Also does every ordinance involve regulation? No. Sec 1-20-01 names the Idaho Statesman the official newspaper of the City of Boise to the exclusion of Boise Weekly, and the Treasure Valley Christian News.
All of these issues could reasonably be brought to a public vote, yet somehow the Commandments monument is just an "administrative issue".
"Without this distinction, even the most routine aspects of government operations could be taken to the ballot box at taxpayer expense, and vital city services brought to a standstill. The initiative proposed by the Keep the Commandments Coalition, which seeks to place a Ten Commandments monument in Julia Davis Park, clearly addresses an administrative matter. But the question isn't about religion; an initiative that mandated the location of a new fire station would be just as invalid."
This is getting kinda silly, but the best is yet to come. Sure, the city's most vital services are going to be brought to a screeching halt as anybody and their brother can go out in 60 days and collect signatures from 20% of Boise's voted. We are not in danger of being iniatatived to death. Here's what the Statesman's Brad Hern reported on June 15, 2004:
First, this is the first voter initiative in Boise in more than 20 years. City Clerk Annette Mooney said she wasn't sure what the last one was about, but this is the first since she took office in 1982.
This is a hard way to go and most groups do not want to go it. If Bieter has a problem with the people of voting, he should lobby the state to repeal the Idaho Code section requiring cities to offer the voter iniatative.
"
The Statesman dismissed this distinction as "a technical argument." I guess it is, in the same way that reckless driving or vandalism is a "technical" violation of the law."
Vandalism and reckless driving are black and white violations of the law. What the mayor is talking about is a contrived lawyer game.
"Worse, the editorial ignored the fact that Idaho law forbids mayors and city councils from holding elections based on unauthorized initiatives that expose taxpayers to unnecessary expense. My office made The Statesman aware of this prohibition, but editorial page editor Kevin Richert asked what the penalty to the city would be for violating the law — as if doing so is OK as long as the punishment isn't too bad."
First, Richert may very well have wanted to know what the penalty was. As a former journalist, I know they're curious, though apparently not curious enough to ask the correct questions.
In regards to the Mayor's quoting of "the law", I've checked the Idaho Code and I'm going to post a couple portions of it here:
50-473. INITIATIVE AND REFERENDUM ELECTIONS. Initiative and referendum elections shall be governed by the provisions of chapter 18, title 34, Idaho Code, and chapter 5, title 50, Idaho Code, except as those provisions are specifically modified by this chapter.
Okay now this is in regards to local municipal elections, so what does Chapter, 5, Title 50 say?
50-501. INITIATIVE AND REFERENDUM. The city council of each city shall provide by ordinance for direct legislation by the people through the initiative and referendum. Minimum requirements of the ordinance adopted shall be as follows: (1) petitioners for initiative or referendum shall be equal to twenty percent (20%) of the total number of electors who cast votes at the last general election in the city; (2) petitions for referendum shall be filed not less than sixty (60) days following the final adoption of the ordinance to be subject to referendum; (3) a special election for initiative or referendum shall be provided as prescribed in section 34-106, Idaho Code; (4) requirements for signature, verification of valid petitions, printing of petition, and time limits, except as expressly modified herein, shall be as nearly as practicable as provided in sections 34-1701 through 34-1705, Idaho Code. This section does not apply to bond elections.
Where is that mysterious part of the Idaho Code that says any of what Bieter is saying? Idaho code only lays down the requirements of 50-501 from what I can see. (You won't find the restriction in Chapter 18 of Titler 34 either but you're welcome to check
it here.) Nowhere is the administration required to pre-screen iniatatives to determine their legality.
The editorial also neglected to mention that putting the Keep the Commandments Coalition's initiative on the ballot would cost taxpayers $25,000 to $50,000. That's no reason to prevent consideration of a legitimate election issue, but it's all the more reason to follow the law, even if it amounts to "bad politics."
Now that's quite a bit of money to most of us, but Bieter is Mayor of a City with a $439 million budget. So $50,000 is less than .02 of a percent of the city's budget. Plus, the City has the option when the petition is presented to them of actually approving the ordinance, thus saving the city the "massive" expense.
In fact, the easier political route would have been to allow the coalition to continue its efforts without revealing that their initiative is invalid. We chose instead to be honest about what we had learned. Coalition members are welcome to continue collecting signatures. At least now they know where they stand in regard to state law.
Wow, and here I thought he was trying to discourage people from signing the petition with a legally dubious theory. Silly me.
Our city is constantly looking to involve Boise citizens. That's why we've brought together a cross-section of the community to help us choose a police chief. It's why I've formed a citizen advisory committee to help us streamline our building permit process. It's why I'm visiting all 32 neighborhood associations this summer. And it's why I've met several times with local clergy — including many monument supporters — to talk about expanding the role of faith-based groups in our community.
Is that also why you refused to even hold a hearing on the Ten Commandments monument? Is that why the Council makes so many decisions behind closed doors? Is that why the Council does not have a regular "address the council" segment where citizens can have an open forum to address their government?
We encourage local residents to participate in their city through our more than 20 boards and commissions, and through the voting booth. We welcome citizen initiatives on any appropriate issue. But we also will uphold the law. I'm not sure why The Idaho Statesman would urge us to do just the opposite.
First, the idea that having City Commissions is a sign that the City values the participation of its citizens is non-sensical. The workload of the City Council would be impossible to deal with without these boards. Second, Mayor Bieter didn't ordain or establish any of these commissions. They were in place before he got in office. These only serve as proof that the council is willing to seek out citizens who are community-minded enough to help it manage the affairs of City government.
However, one has to question the way they treated these "citizen commissions". For example, before passing the motion to remove the monument in January, they did not get an opinion from the Parks Commission. Now that they've created six months of bad will and bad feelings, rather than address the mess they've made, they want to pass the buck to the same Parks Commission whose opinion they did not solicit before starting this controversy, so that these community-minded take the heat for the Imperial Council. That's quite a way to encourage citizen participation in government.