City Council could have repealed the ordinance that changed council term lengths from 2 years to 4 years and completed a NEW resolution to place the question on the November ballot as originally promised to the voters.
We shared all of the necessary data with the councilors and there were five of them committed to repeal and implement another resolution for the referendum starting at the June 4th City Council meeting. Councilors Jones, Melton, Patton, Black and Harrison all committed to vote for the repeal and a new Resolution of Intent.
They ended up NOT proceeding. But, they have not shared their reasoning with us.
Here are the steps we went through to gather the information on repeal to provide to the councilors:
We asked Gerry Cohen if the next city council could repeal the Charter Amendment before it went into effect in 2026.
He said NO and cited this statute:
We did NOT ask Gerry if the current council could repeal the Charter Amendment.
Mr. Cohen is a Member of the Wake Co Elections Board; an Adjunct Instructor Sanford School of Public Policy; Former Special Counsel NCGA; Chapel Hill Town Council ’73-‘79.
We asked the UNC School of Government if the current council could repeal the Charter Amendment.
They said YES
Our inquiry and their response is below:
We published this blog and sent the same information to the City Councilors about their ability to repeal
We received notice back from a councilor saying the City Attorney did NOT agree with the UNC School of Government opinion and had sent this email to the City Councilors:
The question we asked UNC School of Government was different from the question asked by the City Attorney. You can read our response in the attached file
In short, when the City Attorney spoke to the UNC School of Government reprsentative, she asked a different question than we had asked. This is what is known in legal terms as a non-sequitur. Although the response was correct, it’s an answer to a different question and irrelevant.
Our Full Response: Repealing the Election Reform Charter Amendment
We sent more information to City Councilors about our legal interpretation of the statute 160A-107 requiring the Charter Amendment to stay in place for 2 years.
We believe that the 2-year timer doesn’t start until Dec 2024 after the next council is seated based on the clause “after the beginning of the term of office of the officers elected thereunder.”
The current city council was not elected under this amended City Charter. The first council that will be elected under this City Charter will be elected in November 2024, and seated in office in December 2024. Therefore, we don’t believe the current council is restricted from repealing the charter amendment by the 2 year time period in this statute.
We believe the statute is clearly intended to stop each newly elected council from repealing the work of the previous council and NOT intended to stop the current council from repealing its own actions.
Details here: Legal Interpretations
We followed up with UNC School of Government for a second opinion.
UNC advised us there is NO CASE LAW on the statute and therefore REASONABLE MINDS CAN DIFFER.
Our conclusion here is the City Attorney can use our interpretation if the majority of council wants to take that action.
Details here: More Legal Interpretations
Finally, if there is any question as to whether the council is required to follow the advice of the City Attorney, well…
The attorney’s advice is simply that…Advice
City Council is not legally required to follow the City Attorney’s advice. In fact it is just the opposite.
The City Attorney is legally required to get in line with the council majority. The attorney’s advice is simply that “advice.”
In North Carolina, a City Council is not legally required to take the City Attorney’s advice. The City Attorney provides legal guidance and represents the city in legal matters, but the final decision-making authority rests with the City Council. The Council can choose to accept, reject, or seek additional opinions regarding the City Attorney’s recommendations.
If a majority of the council wanted to repeal the charter amendment and there is a reasonable interpretation of the law that allows repeal, the council majority can take that action and the City Attorney is required to defend that action.
Source: Olsen & Olsen LLP
The councilors who voted to change the city charter on their own without allowing a referendum vote in November are: Mayor Baldwin, Mayor Pro Tem Melton and Councilors Forte, Branch and Harrison.
Livable Raleigh Editorial Team
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