Between the Lines by David Lias "I believe in the initiative and referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative."
When it comes to city government, nothing is ever as simple as it seems.
Citizens of Vermillion have learned that firsthand in recent years. The Vermillion City Council has been faced with one dilemma after the other. Five years ago, property owners were upset with the design of the street and sidewalk leading to the new Bluffs Clubhouse.
For over two years, the council had to contend with conflict of interest issues that finally were settled thanks to a new state law and a judge's ruling.
Chaos erupted last summer when it came time to award bids for the construction of a new fire hall. During heated debate earlier last year, it was noted at a council meeting that if citizens were unhappy with the aldermen's final decision, they could refer it to a public vote. But when it came time to award bids, everyone � from the general citizenry to the city council members � learned for the first time that voters had no say in the matter because it had become an administrative decision.
Casey's General Stores wanted to build a gas station and convenience store on the corner of Dakota and Cherry streets last year. The city council changed the zoning of the proposed business site from residential to commercial. Unlike the fire station issue, however, citizens were successful in referring that decision to a public vote. They overturned the council's action.
"For 20 years I preached to the students of Princeton that the referendum and the recall was bosh. I have since investigated and I want to apologize to those students. It is the safeguard of politics. It takes power from the boss and places it in the hands of the people."
Controversy once again has reared its head at City Hall. The city wants to spend $1.3 million of city and federal funds to widen, add curb and gutter, and pave a narrow, winding stretch of Chestnut Street that links Dakota and University streets. The project will require the construction of a large retaining wall between the street and nearby railroad tracks.
Some citizens, especially property owners in the area, have voiced concerns about the project's cost, traffic numbers, safety, lighting and its possible impact on the environment.
A number of people decided to do more than give the city council lip service. They circulated petitions to refer this decision to a public vote.
"I know of no safer depository of the ultimate power of society but the people themselves."
Two weeks ago, City Attorney Martin Weeks researched this issue at the request of the city council. He concluded that the Chestnut Street action is administrative in nature, and therefore can't be subjected to the referral process.
Aldermen Frank Slagle and Barbara Yelverton clearly were having difficulty accepting that decision at Monday's City Council meeting. They indicated that they both believe there's enough legislative meat hanging on the bones of the street project to refer it to a vote.
Slagle recalled the controversy surrounding the fire station issue. He noted that bids had been let and the council was at the point of deciding which contractor to award bids to when the referendum controversy surfaced. The Chestnut Street project, he said, hasn't progressed nearly as far. No specs have been mailed out, no bids have been received. Allowing the referendum would be a gesture of good will, he argued.
Other aldermen weren't so sure. It is a quandary. Before us we have a legal opinion from the city attorney stating that the issue is not referable. We have an alderman/law professor whose personal interpretation indicates it is.
To paraphrase Alderman Roger Kozak, there's no black, no white. Just a lot of gray.
South Dakota's legal grounds for initiative and referendum are unique. Article III, Section 1 of the state constitution extends these powers to voters on state and municipal questions. According to state law, legislative decisions are subject to the referendum process.
A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.
State law also explains that no administrative decision of a governing body is subject to the referendum process. An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature.
Supervision of a program is an administrative decision. Hiring, disciplining, and setting the salaries of employees are administrative decisions.
Just like the people whose quotes grace this column, we're a big fan of the initiative and referendum process.
At the same time, we recognize that it is a process that can be abused � we don't propose that people run willy-nilly through town circulating petitions every time things don't go their way at City Hall. We hope citizens always use their best discretion when bringing an issue to a public vote.
There's a chance that this issue may next head to the courts. Although we're not exactly crazy about doing the city's business through litigation, it perhaps will leave a positive by-product.
A judge's ruling or attorney general's opinion would give the city some guidance, and hopefully provide more solid footing on which aldermen may stand when faced with controversy.