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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Holleman (3/28/2014) sp-6883

Municipality of Anchorage v. Holleman (3/28/2014) sp-6883

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  



       Supreme Court No. S-15315  

                           Appellant,                 )

       Superior Court No. 3AN-13-06812 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

SAM ANDREW HOLLEMAN and                               )  

JASON ALWARD,                                         )        No. 6883 - March 28, 2014  


                           Appellees.                 )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Eric A. Aarseth, Judge.  

                  Appearances:   Michael   R.   Gatti   and   Mary   B.   Pinkel,  


                  Wohlforth, Brecht, Cartledge & Brooking, Anchorage, and  


                  Theresa  L.  Hillhouse,  Assistant  Municipal  Attorney,  and  


                  Dennis  A.  Wheeler,  Municipal  Attorney,  Anchorage,  for  


                  Appellant.  Susan Orlansky, Feldman Orlansky & Sanders,  

                  Anchorage, for Appellees.  

                  Before:  Winfree, Stowers, Maassen, and Bolger, Justices,  

                  and  Matthews,  Senior  Justice.*  

                                                                   [Fabe,  Chief  Justice,  not  



                  MAASSEN, Justice.  

         *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  

Constitution and Alaska Administrative Rule 23(a).  

----------------------- Page 2-----------------------


                  The  Anchorage  Assembly  passed  an  ordinance  modifying  the  labor  

relations  chapter  of  the  Anchorage  Municipal  Code.    Two  citizen-sponsors  filed  an  


application for a referendum that would repeal the ordinance. The Municipality rejected  

the application, reasoning that the proposed referendum addressed administrative matters  


that were not proper subjects for direct citizen legislation.  The sponsors filed suit in  

superior court and prevailed on summary judgment.  The Municipality appealed, arguing  

that  the  referendum  is  barred  because  (1)  state  and  municipal  law  grants  exclusive  

authority   over   labor   relations   to   the   Assembly;   (2)   the   referendum   makes   an  

appropriation;  and  (3)  its  subject  is  administrative,  not  legislative.    Following  oral  


argument, we issued an order on January 10, 2014, affirming the superior court's grant  

of summary judgment to the sponsors.  This opinion explains our reasoning.  


         A.       The Ordinance  

                  On  February  12,  2013,  Mayor  Dan  Sullivan  and  two  members  of  the  

Anchorage Assembly proposed Anchorage Ordinance No. 2013-37, "An Ordinance  

Amending  Anchorage  Municipal  Code  Chapter  3.70,  Employee  Relations,  with  


Comprehensive  Updates  Securing  Long  Term  Viability  and  Financial  Stability  of  

Employee  and  Labor  Relations."    The  Assembly  approved  the  final  version  of  the  

ordinance six weeks later, and the ordinance took effect immediately.1  


                  The ordinance amends the Employee Relations chapter of the Anchorage  


Municipal Code (AMC).   It first adds six new subsections to the Declaration of Policy  

         1        Anchorage Ordinance (AO) 2013-37(S-2)  6 (2013).  

         2        AMC 3.70 (2013).  

                                                       - 2 -                                                    6883  

----------------------- Page 3-----------------------


in AMC 3.70.020.   These subsections encourage the development and implementation     


of  a  managed  competition  program,   cap  salary  and  benefit  increases,  standardize  


employee benefits and holidays, limit enhanced pay programs, and require unions to  


reimburse the Municipality for employee time spent performing services for the union.  

                    The  ordinance  also  limits  overtime  compensation;  prohibits  strikes;  

eliminates binding arbitration for police, fire protection, and emergency medical services;  


bars  arbitrators  from  relying  on  past  practices  to  alter  unambiguous  provisions  in  

collective bargaining agreements; allows the Municipality to implement its "last best  

offer"  if  the  parties  are  at  a  bargaining  impasse;  and  expands  the  definitions  of  


"confidential"   and   "supervisory"   employees,   thereby   increasing   the   number   of  


employees who are barred from collective bargaining.   The ordinance makes other  

relatively  minor  amendments  throughout  the  Code  for   purposes  of  clarity  and  


          B.        Proceedings Below  


                    Sam  Andrew  Holleman   and  Jason  Alward  (the  sponsors)  filed  an  

application with the municipal clerk's office for a referendum that would repeal the  


ordinance.  The Municipality rejected the application on the advice of its attorney, who  

concluded that the referendum sought to address administrative rather than legislative  

          3         Compare AMC 3.70.020 (2013) with former AMC 3.70.020 (2012).  

          4         A  "managed  competition  program"  is  defined  in  the  ordinance  as  "a  

program intended to procure the delivery of the most reliable, efficient and effective  

municipal  services  to  the  citizens  of  Anchorage,  through  municipal  sponsorship  of  

regulated competition for the delivery of selected services."  

          5         Compare AMC 3.70.010 (2013) with former AMC 3.70.010 (2012).  

                                                              - 3 -                                                        6883

----------------------- Page 4-----------------------



matters and therefore violated subject-matter restrictions imposed by law.   The sponsors  


filed suit in superior court on May 2, 2013, seeking declaratory and injunctive relief.  

The Municipality, in its answer, sought a declaratory judgment in its favor.  


                   The parties agreed that there were no material facts in dispute and filed  

cross-motions  for  summary  judgment.    The  superior  court  heard  oral  argument  on  


August 19, 2013, granted summary judgment to the sponsors in a written opinion, and  

ordered  that  the  referendum  application  be  accepted.    The  sponsors  soon  collected  


enough  signatures  to  place  the  referendum  on  the  ballot,  and  the  ordinance  was  

suspended pending an election.7  

                   The Municipality filed this appeal.  



                   We review a grant of summary judgment de novo and will affirm "if there  


are no genuine issues of material fact" and "the moving party is entitled to judgment as  



a matter of law."   We review questions of law by "adopting the rule of law that is most  


persuasive  in  light  of  precedent,  reason,  and  policy."     We  apply  our  independent  

          6        This was the sponsors' second application.   Their first was rejected for the  

same reasons, as well as for "technical defects" that they subsequently corrected.  

          7        Article III, subsection 3.02(c) of the Anchorage Municipal Charter provides  

that the "filing of a referendum petition suspends the ordinance . . . if the petition is filed  


within  60  days  after  the  effective  date  of  the  ordinance,"  and  that  the  suspension  

terminates if the referendum is defeated by the voters.  

          8        Municipality of Anchorage v. Repasky , 34 P.3d 302, 305 (Alaska 2001).  

          9         Carmony  v.  McKechnie,  217  P.3d  818,  819  (Alaska  2009)  (internal  

quotation marks omitted).  

                                                            - 4 -                                                      6883

----------------------- Page 5-----------------------


judgment  when  interpreting  the  Alaska  Statutes,  municipal  charters,  and  municipal  



          A.        Legal Framework  


                    Article XI, section 1 of the Alaska Constitution provides that "[t]he people  


may propose and enact laws by the initiative, and approve or reject acts of the legislature  

by the referendum."  This right is extended by statute to citizens of home-rule local  


governments.             The Anchorage Municipal Charter accordingly "guarantees . . . [t]he  


right of initiative; the right of referendum; and the right to recall public officers, as herein  


                     The right of referendum is not absolute.  Under article XI, section 7 of the  


Alaska Constitution, "[t]he referendum shall not be applied to dedications of revenue,  


to appropriations, to local or special legislation, or to laws necessary for the immediate  


preservation of the public peace, health, or safety," and a state statute requires that local  

                                                                            13  The Anchorage Charter explicitly  


government charters contain the same restrictions. 

prohibits  direct  legislation  on  "ordinances  establishing  budgets,  fixing  mill  levies,  


authorizing the issuance of bonds, or appropriating funds."14  

          10        Repasky , 34 P.3d at 305.  

          11        AS  29.10.030(a)  ("A  home  rule  charter  shall  provide  procedures  for  

initiative and referendum.").  

          12         Charter art. II(1).  

          13        AS 29.10.030(c) ("A charter may not permit the initiative and referendum           

to be used for a purpose prohibited by art. XI,  7 of the state constitution.").  

          14         Charter art. III,  3.02(a).  

                                                               - 5 -                                                       6883

----------------------- Page 6-----------------------


                    "[W]e  liberally   construe  the  constitutional  and  statutory  provisions  

pertaining to the use of initiatives . . . so that the people are permitted to vote and express  

their will on the proposed legislation."15  

          B.        The Referendum Is Not Preempted By State Or Municipal Law.  

                    In support of its position that the sponsors' referendum application was  


properly rejected, the Municipality first argues that the Public Employment Relations  

Act, the Anchorage Charter, and the Municipality's home-rule status give exclusive  


authority over labor relations to the Assembly, preempting the citizens' right to legislate  


in that area by initiative and referendum.  The Municipality argues alternatively that the  


referendum at issue here impermissibly strips the Assembly of its authority to enact labor  

relations ordinances.  We reject these arguments.  

                    1.       Public Employment Relations Act  

                    The  Public  Employment  Relations  Act16  (PERA)  establishes  statewide  


guidelines for public employment relations, while allowing local governments to opt out  



of its provisions.          According to the Municipality, PERA grants exclusive authority over  


employment relations to the Assembly, and the referendum at issue here clearly conflicts  


                                                                   The  Municipality  relies  specifically  on  

with  that  grant  of  exclusive  authority. 

          15        Sitkans for Responsible Gov't v. City & Borough of Sitka, 274 P.3d 486,  

492 (Alaska 2012) (internal quotation marks omitted); see also  Thomas v. Bailey, 595  


P.2d 1, 3 (Alaska 1979) ("The right of initiative and referendum, sometimes referred to  


as direct legislation, should be liberally construed to permit exercise of that right.").  

          16        AS 23.40.070-.260.  

          17        AS 23.40.255(a).  



                    We would invalidate a local initiative or referendum that conflicted with  


state law.  See Whitson v. Anchorage, 608 P.2d 759, 761 (Alaska 1980) (rejecting voter  


initiative to require voter approval for new taxes where statute required that taxes be  


                                                             - 6 -                                                      6883

----------------------- Page 7-----------------------


AS 23.40.255(a), which provides that PERA applies to political subdivisions of the state  


"unless the legislative body of the political subdivision, by ordinance or resolution,  


rejects having [PERA] apply."  But the only authority this statute gives to "the legislative  


body of the political subdivision" is the authority to reject PERA, which the Assembly  


                                                                   There is nothing in AS 23.40.255(a), or elsewhere  

did shortly after PERA was enacted. 


in PERA, that requires or allows the legislative body to exercise exclusive control over  

labor relations once it has opted out of the Act.   

                       The Municipality relies on several Washington cases that prohibited voter  


initiatives on grounds that the power at issue had been granted to the city's governing  


body; such a grant was interpreted to mean "exclusively the mayor and city council and  


not the electorate."                  We do not need to decide whether to apply the same rule here.  


While PERA does grant the "legislative body" of the Municipality a specific power, it  


is only the power to reject PERA's provisions, not the exclusive power thereafter to  

legislate in the area of labor relations.21  


levied only by general ordinance).  

            19         See Anchorage Mun. Emps. Ass'n v. Municipality of Anchorage                                                    , 618 P.2d   

575, 581 (Alaska 1980).  

            20         Mukilteo Citizens for Simple Gov't v. City of Mukilteo , 272 P.3d 227, 233  


(Wash. 2012) (holding that an initiative requiring a popular vote to authorize the use of  


automated traffic safety cameras for tickets was beyond the scope of the initiative power  


because the state legislature granted authority to the local legislature, not the city); City  


of Sequim v. Malkasian, 138 P.3d 943, 949-51 (Wash. 2006) (holding that an initiative  


was prohibited where the legislature "unambiguously granted the legislative body of the  


city the authority over revenue bonds").  

            21         AS 23.40.255(a).  

                                                                        - 7 -                                                                  6883

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                     2.        Anchorage Municipal Charter  

                     The Municipality also contends that certain provisions of its Charter, read  


together, grant exclusive authority to the Assembly to regulate "all aspects of employee  


relations and personnel classification and procedures."  Article V,  5.06 of the Charter  


states that "[t]he assembly by ordinance shall adopt an administrative code providing for  


.  .  .  [p]ersonnel  policy  and  rules  preserving  the  merit  principle  of  employment."  


Article II(9) of the Charter  "guarantees . . . to the people of Anchorage . . . [t]he right  


.  .  .  to  a  comprehensive  personnel  classification  and  procedures  system  created  by  


ordinance and based upon merit."  But while these provisions require the Assembly to  


enact labor-relations ordinances, they do not purport to grant the Assembly all authority  


in  that  area,  to  the  exclusion  of  direct  citizen  legislation  through  initiative  and  



                     When Anchorage voters approved the Charter, they knew that certain listed  


subjects - mill levies, the issuance of bonds, and appropriation of funds - were off- 


limits  for  direct  citizen  legislation  because  the  Charter  expressly  said  so.                                        Labor  

relations is not on the list.  Particularly given the importance of the rights of initiative and  


referendum, we will not readily imply such a broad addition to the subjects that cannot  


be addressed through the exercise of those rights.23  

                     3.        Home-rule status  

                     The Municipality argues that because the legislature has not limited the  


authority of home-rule municipalities to enact labor ordinances, the Assembly's authority  

in the area is exclusive. But this argument fails for the same reason as the Municipality's  


          22         Charter art. III,  3.02(a).  

          23         See  Vanvelzor v. Vanvelzor, 219 P.3d 184, 188 (Alaska 2009) ("We follow   

the doctrine of statutory construction that when the legislature expressly enumerates  

included terms, all others are impliedly excluded.").  

                                                                - 8 -                                                              6883  

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arguments based on PERA and the Charter.  That a legislative body has the  authority to  


make laws does not mean that its authority to make laws is  exclusive of the citizens'  

correlative  right  of  direct  legislation,  absent  some  express  limitation.    If  it  were  

otherwise, the universe in which the initiative and referendum could be exercised would  

be a small one.  

                   4.	       Divesting   the   Assembly   of   the   authority   to   create   labor  



                   The Municipality also argues that the referendum, if passed, would "strip  

the  Assembly  of  its  power  to  create  labor  relations  ordinances."    The  Municipality  

compares  this  ordinance  to  the  initiative  at  issue  in  Carmony  v.  McKechnie,  which  

proposed to take away the borough assembly's power to pass land-use regulations by  



subjecting any regulation to a popular vote.                       The initiative was prohibited because it  


sought to bypass state statutes requiring that a borough establish a planning commission  

to "review, recommend, and administer measures" necessary to implement land use  



plans,      and because it would have divested  both current and future legislatures "of  

[their] statutorily-mandated role in zoning and land use planning."26  

                   In contrast, the referendum in this case does not subject any future labor  


ordinances passed by the Assembly to a popular vote; it merely allows a popular vote on  


a single ordinance.  Nor does the referendum prevent the Assembly from passing labor  

ordinances in the future.  As the sponsors point out, "[a]ccepting the Municipality's  


claim that the referendum would result in an impermissible divestiture of the Assembly's  

          24       217 P.3d 818, 819 (Alaska 2009).  

          25       Id.  at 821 (citing      Griswold v. City of Homer, 186 P.3d 558, 561-62 (Alaska  


          26	      Id.  

                                                            - 9 -	                                                    6883

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legislative power effectively would preclude all referenda on local ordinances, because  

all  such  referenda  are  by  nature  a  way  for  the  voters  to  reject  one  act  of  the  local  


legislature."  Our holding in Carmony does not invalidate the referendum at issue here.  

           C.          The Referendum Does Not Apply To An Appropriation.  


                      Article XI, section 7 of the Alaska Constitution prohibits application of  the  

referendum to "dedications of revenue" or "to appropriations," and subsection 3.02(a)  


of the Anchorage Municipal Charter correspondingly prohibits use of the referendum for  


"establishing  budgets"  or  "appropriating  funds."                                    The  Municipality  argues  that  the  


referendum at issue here appropriates public assets because the ordinance it seeks to  


repeal was itself intended to save money on labor costs; repealing the ordinance, the  

argument goes, will  ipso facto cost money that the Assembly could otherwise direct  

toward other priorities.  


                      But we have never held that any effect on public resources triggers the  

prohibition on direct legislation; nearly all legislation involves public assets to some  



degree.          We have held that "[a]n initiative proposes to make an appropriation if it would  

set aside a certain specified amount of money or property for a specific purpose or object  

in such a manner that is executable, mandatory, and reasonably definite with no further  


legislative  action."                  In  Anchorage  Citizens  for  Taxi  Reform  v.  Municipality  of  

           27         Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                                       , 215 P.3d 1064,  

 1077 (Alaska 2009) ("[T]he prohibition against initiatives that appropriate public assets        

does  not   extend   to   prohibit   initiatives   that   regulate   public   assets,   so   long   as  the  

regulations do not result in the allocation of an asset entirely to one group at the expense     

of another.").  



                      Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough , 273  

P.3d 1128, 1136 (Alaska 2012) (quoting Alaska Action Ctr., Inc. v. Municipality of  

Anchorage ,  84  P.3d  989,  993  (Alaska  2004)  and  City  of  Fairbanks  v.  Fairbanks  


Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991)) (internal quotation  


                                                                    -  10 -                                                             6883

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Anchorage , we noted our use of "a two-part inquiry to determine whether a particular  


initiative makes an appropriation."                       Under this test, we first "determine whether the  


initiative deals with a public asset"; our prior cases hold that "public revenue, land, a  

municipally-owned  utility,  and  wild  salmon  are  all  public  assets  that  cannot  be  


appropriated by initiative."                  The second step in the analysis is to "determine whether  



the initiative would appropriate that asset."                         In making this determination we look to  


" 'the two core objectives' of the limitation on the use of the initiative power to make  


appropriations":  first, "preventing 'give-away programs' that appeal to the self-interest  


of voters and endanger the state treasury"; and second, "preserving legislative discretion  

by  'ensur[ing]  that  the  legislature,  and  only  the  legislature,  retains  control  over  the  


allocation of state assets among competing needs.' "                                


                     The  parties  agree  that  the  referendum  at  issue  here  deals  with  public  

revenue,  which  is  a  public  asset  for  purposes  of  this  analysis.    As  to  whether  the  


marks omitted).  

          29         151 P.3d 418, 422 (Alaska 2006).  We have never had occasion to decide       

whether  a  proposed  referendum  will  make  or  repeal   an  appropriation,  but  we  have  

addressed the issue a number of times in the context of initiatives, and we see no reason            

why the analysis would differ.  In one referendum case,                                Washington's Army v. City of  

Seward, 181 P.3d 1102, 1105-06 (Alaska 2008), we expressly declined to reach the issue  

of whether a city's decision to vacate a public street in favor of a planned inter-agency  


administrative  and  visitor  center  was  an  appropriation,  holding  that  the  referendum  


application had been properly rejected for other reasons.  

          30        Anchorage  Citizens  for  Taxi  Reform ,  151  P.3d  at  422-23  (footnotes  


          31        Id. at 423.  

          32        Id. (emphasis in original).  

                                                              - 11 -                                                        6883

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referendum would appropriate that asset, the Municipality does not argue that it is a  

"give-away  program";  it  contends  rather  that  the  referendum  interferes  with  the  

Assembly's control over the allocation of limited municipal resources by preventing the  


Municipality from implementing cost-saving measures - measures that would, in turn,  

free up public revenues to be spent "in other areas of city government, such as public   

works, public health, and non-union employee wages."  

                   But the referendum does not compel or restrict the expenditure of public  


funds, the approval of labor contracts, or any particular level of employee compensation.  


In a Summary of Economic Effects that accompanied the proposed ordinance when it  


was presented to the Assembly, the Municipality's Departments of Law and Employee  

Relations explained the ordinance's anticipated impact on public funds:  


                   By  itself,  this  ordinance  does  not  raise  revenue  or  reduce  


                    expenses,  although  the  intent,  in  part,  is  to  better  manage  

                   labor costs over time.  Until specific labor agreements are  

                   negotiated  and  approved  by  the  Assembly,  the  economic  


                    effects  of  this  ordinance  cannot  be  known.                     Overall,  the  

                    economic effects will require a comparison of a given current  

                   contract to the proposed new contract.  Even the "soft" cap  


                   on wage increases may not create economic effects different  


                    from the current contract, depending on changes in CPI and  

                   other factors.  In addition, every contract is subject to the  

                    annual budgeting and appropriations process.  

                   There may be reductions in administrative costs related to  

                   managing  fewer  benefit  plans,  pay  codes,  and  managing  

                    fewer contract clauses across all the contracts.  But, these cost  


                   reductions are not predictable at this time.  

Under the Municipality's own assessment, the economic effects of the ordinance are  

indirect and presently unknowable; there is no reason to believe that the economic effects  


of  the  referendum  repealing  the  ordinance  are  any  different.    This  is  not  at  all  the  


                                                           -  12 -                                                     6883

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"executable, mandatory, and reasonably definite" set-aside that our case law requires  

before we will find that an initiative or referendum makes an appropriation.33  

           D.         The Ordinance Is Legislative.  

                      The common law in many jurisdictions restricts the powers of initiative and  


referendum to "enactments that are legislative rather than administrative or executive in  

                  34                                                                     35 

character."      We  recognized  this  restriction  in  1973.                                  The  legislature  codified  the  


restriction for municipalities in 1985, at least with regard to the initiative; we assume for  


purposes of argument that it applies to the referendum as well.                                           The rationale for the  


rule is based on "government efficiency grounds" - giving citizens the right to demand  


a  vote  for  "every  administrative  act  of  the  city  council  would  place  municipal  


government in a straight-jacket and make it impossible for the city's officers to carry on  

the public business."37  

                      Again, the government-efficiency rationale appears to apply equally to both  


referendums and initiatives.  In Swetzoff v. Philemonoff, we articulated three guidelines  

           33        Alliance of Concerned Taxpayers , 273 P.3d at 1136.  

           34         Swetzof v. Philemonoff, 203 P.3d 471, 476 (Alaska 2009).  

           35         Wolf v. Alaska State Hous. Auth., 514 P.2d 233, 235 n.13 (Alaska 1973).  

           36         The legislature addressed the powers of initiative and referendum for both     

home-rule and general law municipalities through 1985 amendments to the Municipal           

Code.  AS 29.26.110(a) now requires a municipal clerk to certify, "for an initiative  

petition,  that  the  matter  .  .  .  relates  to  a  legislative  rather  than  to  an  administrative  


matter."  The statute contains no such requirement for referendum petitions.  We do not  


need to decide here, however, whether the restriction to legislative matters applies to  

referendums, as we hold that the referendum at issue is legislative and would not be  

barred in any event.  



                      Swetzof, 203 P.3d at 476 (quoting Hous. Auth. of Eureka v. Superior Court ,  

219 P.2d 457, 461 (Cal. 1950)).  

                                                                  -  13 -                                                           6883

----------------------- Page 14-----------------------

for determining whether an initiative impermissibly addresses an administrative matter,  


and we apply the same guidelines in this case:  


                     1.         An ordinance that makes new law is legislative; while  


                     an ordinance that executes an existing law is administrative.  

                     Permanency and generality are key features of a legislative  


                     2.         Acts that declare public purpose and provide ways and  


                     means to accomplish that purpose generally may be classified  

                     as  legislative.  Acts  that  deal  with  a  small  segment  of  an  

                     overall policy question generally are administrative.  

                     3.         Decisions  which  require   specialized  training  and  

                     experience in municipal government and intimate knowledge  


                     of the fiscal and other affairs of a city in order to make a  


                     rational        choice        may        properly          be     characterized            as  


                     administrative, even though they may also be said to involve  



                     the establishment of a policy.  

                     We  first  address  whether  the  ordinance  at  issue  makes  new  law.    The  

Municipality acknowledges that certain provisions of the ordinance at issue here were  

not in previous versions of the Municipal Code and instead represent new policies.  It  


argues that the policies are good ones, but it fails to adequately explain why they are not  



new law.           It contends that the ordinance represents simply "a step along a previously  

           38        Id.  at 477, 479 (quoting            City of Wichita v. Kansas Taxpayers Network, Inc.                             ,  

874 P.2d 667, 671-72 (Kan. 1994)).  

           39        For example, the Municipality argues that the new cap on salary and benefit  


increases will allow the Municipality to "not . . . exceed the cost of living with [its]  

overall [labor cost] increases," and the uniform holiday provisions "will make it easier  


for supervisors to manage their employees."  Similarly, the Municipality claims that the  

no-strike provision "recognizes the threat to [the] public, health, and safety that would  


result if other unions were to strike."  

                                                                -  14 -                                                          6883

----------------------- Page 15-----------------------



charted course"                because it returns the Municipality to policies that were in effect in the  


1980s and that resulted in fairly standardized employee benefits.  As the sponsors point  

out, however, the Municipality followed a different course for several decades.  A return  



to the policies of 1985 represents a "new policy direction"                                            for 2013.  We conclude that  

the ordinance makes new law.  


                       The ordinance is also permanent and general.  The Municipality claims that  


the ordinance is not permanent because it does not take the Municipality "permanently  


. . . out of the practice of recognizing its unions and collectively bargaining with them,"  


and  because  a  future  Assembly  could  again  change  the  Municipal  Code.    But  this  

argument is unpersuasive.  If permanency in this context meant that a law had to be  

impervious to change by a successor legislative body, no law would ever be permanent  



under Swetzof.                The ordinance is also general; it applies to all public unions and union  


                       The second guideline from Swetzof similarly points to the conclusion that  


the ordinance, and therefore the referendum seeking to repeal it, are legislative.  The  

ordinance declares new public policies and provides ways and means to accomplish  

them.    The  Municipality  broadly  defines  the  relevant  policy  as  "labor  relations"  or  


"collective bargaining" and argues that the ordinance deals with only a small piece of this  


larger question.  The sponsors argue, on the other hand, that this distinction is "more  

            40         Swetzof, 203 P.3d at 479.  

            41         Id.  

            42         See Mount Juneau Enters., Inc. v. City & Borough of Juneau                                             , 923 P.2d 768,   

776 (Alaska 1996) ("The law is clear that a legislative body may not limit its power to         

act  one  way   or  another  in  the  future  in  governmental[,]  as  opposed  to  proprietary,  

functions." (quoting City of Louisville v. Fiscal Court of Jefferson Cnty., 623 S.W.2d  

219, 224 (Ky. 1981))).  

                                                                       -  15 -                                                                6883

----------------------- Page 16-----------------------


semantic than meaningful," and we agree.  Even assuming that the relevant policy is the  


broad one of labor relations, the ordinance still deals with a significant part of this policy.  


                    The  ordinance  also  provides  the  "ways  and  means  to  accomplish  [its]  


purpose."          The overall purpose of the ordinance is to "upgrade" the Municipality's  

labor code so that it is more uniform and efficient.  The ordinance provides the ways and  


means to accomplish that purpose by setting out the six new policies designed to reduce  

costs, standardize benefits, and otherwise modernize the code,44 and by making other  


revisions intended to effectuate these policy goals, such as eliminating the rights to strike  

and to binding arbitration.  


                    The third Swetzof guideline looks to whether deciding the issue in question  


requires  expertise.               If  specialized  training  in  municipal  government  or  intimate  


knowledge of the fiscal affairs of the city is required to intelligently decide the issue, the  


ordinance is likely administrative rather than legislative.                               However, "guideline three  



should not supersede guidelines one and two when analyzing broad policy decisions." 


Thus in Swetzof we assumed that the proposed initiative (intended to move the City of  

St.  Paul  out  of  the  business  of  selling  electric  power)  could  involve  financial  


consequences  "that  the  electorate  cannot  readily  appreciate,"  but  we  nonetheless  

          43        Swetzof, 203 P.3d at 479.  

          44        The six new policies are: managed competition, limiting direct labor cost  

increases, standardizing employee benefits, reimbursement to the Municipality for union  


work, uniform holidays, and elimination of pay enhancements for new employees.  AMC  



          45        Swetzof, 203 P.3d at 479.  

          46        Id. at 479-80.  

          47        Id. at 480.  

                                                              - 16 -                                                       6883

----------------------- Page 17-----------------------


concluded that the initiative was legislative.                      Looking at the ordinance in this case, we  


credit the Municipality's arguments that it deals with many specific labor rules and the  


intricate details of the Municipality's interactions with unions and union members.  Still,  


the ordinance addresses broad concepts that voters can readily understand - managed  


competition, caps on compensation, bringing uniformity to benefits and holidays, and  


eliminating the rights to strike and to binding arbitration.  Again, we conclude that the  

third Swetzof factor points to a conclusion that the ordinance, and the referendum seeking  

to repeal it, are legislative.  


                    Our conclusion is not changed by the fact that certain parts of the ordinance  

are clearly administrative.  In Swetzof, we specifically rejected a fourth guideline that  

would have only allowed direct legislation for "measures which are quite clearly and  


fully  legislative  and  not  principally  executive  or  administrative."                              In  rejecting  this  

guideline, we observed that it "may give too much weight to the administrative aspects  

of an initiative containing both legislative and administrative matters," which would "run  


counter to our rule of construction that proposed initiatives should be construed liberally  



. . . to  support the electorate's right to  participate in  direct law-making." 

reviewed the ordinance at issue here using the three guidelines of Swetzof, we conclude  

that the voters have a right to address it by referendum.  

V.        CONCLUSION  

                    The superior court's order granting summary judgment to the sponsors and  


denying the Municipality's cross-motion for summary judgment is AFFIRMED.  

          48       Id. at 479-81.  

          49       Id. at 477.  

          50       Id. at 479.  

                                                            - 17 -                                                         6883  

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