|
REFERENCE TITLE: municipalities; local liberty charter. |
|
State of Arizona Senate Fiftieth Legislature Second Regular Session 2012
|
|
SB 1064 |
|
|
|
Introduced by Senator Klein
|
AN ACT
amending title 9, Arizona Revised Statutes, by adding chapter 13; relating to city and town forms of government.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 9, Arizona Revised Statutes, is amended by adding chapter 13, to read:
CHAPTER 13
ADDITIONAL FORMS OF GOVERNMENT
ARTICLE 1. GENERAL PROVISIONS
9-1401. Purpose; model local liberty charter
A. The legislature finds that the taxing, spending, regulatory, eminent domain and planning and zoning authority granted to municipalities may encourage the exercise of local governmental power that is threatening to genuine public health, safety and welfare, frustrating to economic development and inimical to fiscal responsibility and may be overly centralized, bureaucratic, intrusive and politicized. The legislature further finds that public health, safety and welfare justifies giving municipalities, local elected officials and citizens the option of adopting a model of limited local governance that is founded on popular sovereignty, devoted to securing rightful liberty and geared to preventing misuse or abuse of governmental power. The legislature intends to grant municipalities the legal authority to adopt the "model local liberty charter" consisting of substantial and lasting limitations on their taxing, spending, regulatory, eminent domain and planning and zoning authorities that collectively are intended to maximize individual liberty and municipal fiscal responsibility.
B. The model local liberty charter guarantees the people of the adopting municipality the following rights:
1. The right to be presumed free to act peaceably and honestly without legal restraint.
2. The right to be free to use and develop their properties as they see fit so long as they do not violate the rights of others.
3. The right to be free from the undivided and unchecked combination of legislative, executive and judicial authority in municipal government.
4. The right to be free from crime. Preventing crime is a municipal government's core function and the people have a legitimate expectation of effective protection from crime by the municipality.
5. The right to financially sustainable municipal government and a municipal government that is no larger than necessary.
6. The right to local governance that does not grant anyone privileges or immunities not generally available on equal terms to all and that does not single anyone out for special punishments or disadvantages except as required by the uniform application of general laws.
7. The right to effective recourse against unelected municipal personnel for wrongdoing in the course of performing official duties.
8. The right to require municipal government to act as an agent of federalism under the tenth amendment to the united states constitution to preserve liberty as a political subdivision of the state.
9. The right to know what municipal government is doing by the most effective feasible means of disclosure.
10. The right to reconstitute local government.
9-1402. Contrary or inconsistent laws
The limitations that may be adopted pursuant to this chapter are intended to supersede and control any contrary or inconsistent law including all contrary or inconsistent state statutes, administrative regulations, intergovernmental agreements, municipal charters, ordinances, resolutions or local rules that have been previously enacted or promulgated by this state, any state agency, any political subdivision of this state, the adopting municipality or any special district, as defined in section 48-271, subsection B, that would otherwise apply to persons, properties or businesses within the jurisdiction of the adopting municipality.
9-1403. Vested rights
A vested right under state law in the enforcement of the model local liberty charter is granted to any person residing, owning property or operating businesses within the jurisdiction of the adopting municipality at the time the model local liberty charter is adopted and at any time thereafter. In the event of dissolution, disincorporation or annexation of all or any part of the adopting municipality, this vested right is binding on and enforceable against any successor political subdivision of this state for a period of twenty years.
9-1404. Mode of exercise
Unincorporated areas of a county, as well as municipalities incorporated under this title, may adopt the model local liberty charter though municipal legislation or local initiative, which shall state in reasonably intelligible terms that the unincorporated area or municipality is adopting the model local liberty charter. Charter municipalities, organized under chapter 2, article 5, may adopt the model local liberty charter through charter amendment as provided by law, stating in reasonably intelligible terms that the municipality is proposing to adopt the model local liberty charter as a charter amendment. The model local liberty charter is effective within the jurisdiction of the adopting municipality on adoption.
ARTICLE 2. PRESUMPTION OF LIBERTY
9-1411. Timely regulatory processing
A. Beginning each fiscal year, the adopting municipality's chief executive officer shall determine and publish online in a conveniently accessible and searchable user friendly public website format processing deadlines for all completed applications requesting regulatory approval of any kind, including, any regulations enacted pursuant to section 9‑231, 9‑234, 9‑236, 9‑240, 9‑274, 9‑276, 9‑303, 9‑441.02, 9‑461, 9‑461.05, 9‑461.06, 9‑461.07, 9‑461.08, 9‑461.10, 9‑461.11, 9‑461.12, 9‑462.01, 9‑462.03, 9‑462.05, 9‑462.06, 9‑463.01, 9‑463.06, 9‑467, 9‑468, 9‑499.01, 9‑500.05, 9‑500.11, 9-806 or 9‑1301. The municipality shall prescribe deadlines for the shortest feasible period of time given the nature of the regulatory approval sought and the resources available to the municipality.
B. The municipality shall not prescribe a deadline longer than one hundred twenty days. If the municipality fails to prescribe a deadline as required or otherwise fails to approve or deny any application seeking regulatory approval within the published deadline date the affected application is deemed approved by the municipality as of the date of submission. The municipality shall not seek a waiver of any deadline or any automatic approval from any applicant. The municipality shall not claim that an application for regulatory approval is incomplete unless the municipality gives notice of the incompletion to the applicant no later than the midpoint of the applicable processing deadline.
C. The municipality shall give the applicant timely notice of the denial of any application for regulatory approval of any kind in writing and the notice shall include a written disclosure of the disposition of all applications for approval submitted to the municipality under the same regulatory provisions within the immediately preceding one hundred eighty days.
9-1412. Prohibition on needless regulation
The adopting municipality shall not impose regulation on any act, activity, occupation, profession, use of property, condition or state of affairs that is ordinarily peaceful, nonviolent and non‑fraudulent pursuant to section 9‑231, 9‑234, 9‑236, 9‑240, 9‑274, 9‑276, 9‑303, 9‑441.02, 9‑461, 9‑461.05, 9‑461.06, 9‑461.07, 9‑461.08, 9‑461.10, 9‑461.11, 9‑461.12, 9‑462.01, 9‑462.03, 9‑462.05, 9‑462.06, 9‑463.01, 9‑463.06, 9‑467, 9‑468, 9‑499.01, 9-500.05, 9-500.11, 9-806 or 9‑1301 or any similar law presently existing or enacted after the effective date of this chapter unless:
1. It is within the power of the adopting municipality to regulate the targeted activity or condition.
2. Neither the primary purpose nor the predominant effect of regulating the targeted activity or condition will protect a discrete interest group from economic competition, restrain competent adults for their own good or otherwise promote some private interests to the detriment or disadvantage of others.
3. The targeted activity or condition is an actual threat to public health, safety or general welfare that is verifiable, substantial and not remote or dependent on speculation.
4. Existing market forces, common law, ordinances and statutes are not sufficient to reasonably reduce the threat posed to public health, safety or general welfare by the targeted activity or condition.
9-1413. Least restrictive method of regulation required
A. If the adopting municipality finds regulation of a peaceful activity or condition is permissible, the municipality may only implement the least restrictive method of regulation consistent with reasonably reducing the threat posed to public health, safety or general welfare.
B. The adopting municipality may only regulate a peaceful activity or condition pursuant to the following:
1. The regulation may furnish additional or augmented civil remedies to render common law or statutory civil actions more effective.
2. Only if furnishing more effective civil remedies does not reasonably reduce the threat posed to public health, safety or general welfare, the regulation may also impose clear, objective legal standards and enable the enforcement of violations by injunctive relief.
3. Only if the foregoing modes of regulation does not reasonably reduce the threat posed to public health, safety or general welfare, the regulation may also enable the enforcement of clear, objective legal standards by inspections and enforcement of violations by civil penalty and injunctive relief.
4. Only if the foregoing modes of regulation does not reasonably reduce the threat posed to public health, safety or general welfare, the regulation may also enable the enforcement of clear, objective legal standards by permitting, licensing or other regulatory preapproval processes.
5. Only if the foregoing modes of regulation does not reasonably reduce the threat posed to public health, safety or general welfare, the regulation may also enable the enforcement of clear, objective legal standards by criminal sanctions.
9-1414. Sunrise and sunset review required
On and after the effective date of adopting the model local liberty charter, proposed regulations of peaceful activities or conditions shall not be considered for enactment or promulgation unless the adopting municipality first finds that the proposed regulation is permissible under this article after a public hearing. All existing legislation and administrative rules and policies regulating peaceful activities or conditions that have been enacted or promulgated by the adopting municipality expire and are regarded as repealed either on their specified expiration date or, if none, the latter of five years after the effective date of adopting the local liberty charter or five years from their effective date, unless extended following a public hearing where the adopting municipality finds that the regulation has fulfilled the criteria prescribed in this article.
9-1415. Required judicial review
If a regulation is challenged on the basis that it was enacted, promulgated or extended without first complying with this article, the court hearing the challenge shall rule on the merits of the challenge without deference to any legislative, administrative or executive finding concerning the regulation.
ARTICLE 3. RIGHT TO PROPERTY
9-1421. Vested rights on purchase
The municipality shall exercise its zoning and land use regulatory authority as if all lawful uses of real property existing at the time of the exercise are vested property interests of the owner of record.
9-1422. Prohibition on covenants not to sue or advance waivers of claims; exception
A municipality shall not seek advance waiver of claims under section 12‑1134 or a similar law and covenants not to sue from any person as a condition of approving or processing any application seeking regulatory approval. A municipality shall not enforce an advance waiver of claims under section 12‑1134 or a similar law or a covenant not to sue without proof beyond a reasonable doubt that it was supported by an exchange of valuable consideration unrelated to the exercise or forbearance of any regulatory authority.
9-1423. Limitations on power of eminent domain
A. If exercising its power of eminent domain, the municipality shall pay sufficient just compensation to place those having a property interest in the condemned property in as good an economic position as they would have been in had the power of eminent domain not been exercised.
B. As components of just compensation, the municipality shall pay those having a property interest in the condemned property:
1. At least one hundred ten per cent of the property interest's fair market value.
2. All reasonable relocation expenses proximately caused or likely to be incurred because of the municipality's exercise of eminent domain.
3. All losses in personal or business income proximately caused or likely to be incurred because of the municipality's exercise of eminent domain.
4. All reasonable attorney and expert fees and costs incurred by the property interest holder in the course of pre-litigation settlement negotiations over the amount of just compensation.
5. All litigation expenses incurred by the property interest holder, including reasonable attorney and expert fees and costs, if a condemnation suit is filed and either:
(a) The suit is involuntarily dismissed or otherwise adjudicated unlawfully or unconstitutionally filed.
(b) The ultimate award of just compensation is twenty per cent more than the municipality's initial offer.
9-1424. Limitations on impact fees
Notwithstanding section 9-463.03 or any similar law and in addition to any other limitation imposed by law, a municipality may only impose impact fees as a condition of permitting otherwise lawful real estate development if:
1. New development requires the provision of new, augmented or additional public facilities or services.
2. The municipality's existing general tax revenues and generally imposed fees together with reasonably anticipated general tax revenues and generally imposed fees resulting from the new development are not sufficient to provide for or furnish the new, augmented or additional public facilities or services.
9-1425. Authority to transition to decentralized land use regulation
A municipality may designate all or a portion of the area within its jurisdiction for decentralized land use regulation and, with respect to the designated area, to abandon its planning and zoning authority under chapter 4, article 6 or 6.1 of this title, or any similar statute or law, to unilaterally withdraw from any obligation to exercise planning or zoning authority under any intergovernmental agreement authorized by section 9‑461.11 or 9-461.12 or any similar statute or law and to transition to decentralized land use regulation as provided in this article.
9-1426. Exercise of right to transition to decentralized land use regulation
A. The right to transition to decentralized land use regulation pursuant to section 9‑1425 may be exercised through local municipal legislation or local initiative. The legislation or initiative shall state in reasonably intelligible terms a clearly designated area within the municipality's jurisdiction that the municipality is abandoning its planning and zoning authority in perpetuity, withdrawing from any intergovernmental agreement obliging it to exercise the authority and transitioning to decentralized land use regulation based on restrictive covenants and the common law of nuisance.
B. The procedures established by general law governing local legislation or local initiatives shall be applicable to local legislation or local initiatives that propose transition to decentralized land use regulation. In addition to these procedures, the prior public notice required for proposed local law shall be at least as effective as the public notice requirements applicable to municipal rezoning under section 9-462.04.
9-1427. Procedure to transition to decentralized land use regulation; implementation phases
A. To effectively authorize the transition to decentralized land use regulation within the designated area based on restrictive covenants and the common law of nuisance, the local law shall reasonably detail two transitional implementation phases as follows:
1. A sunset review of existing planning and zoning regulations consisting of:
(a) A requirement under the local law that the municipality modify or repeal any land use restriction within the designated area that stems from the municipality's exercise of its planning or zoning authority and that prohibited or conditionally restricted peaceful or the highest and best uses of private property and to allow those uses unless a preponderance of the evidence considered at a public sunset review hearing establishes:
(i) Owners of properties located within three hundred feet of the property in question reasonably and detrimentally relied on the restriction in purchasing or improving their property and the fair market value of their property would be measurably and materially diminished by the modification or repeal.
(ii) The restriction is roughly proportional to the costs the restricted land use would otherwise impose on public infrastructure.
(iii) The restriction is roughly proportional to that which would result from enforcing the common law of nuisance to protect health and safety.
(b) A procedural requirement in which owners of private real property within the municipality's designated area for decentralized land use regulation are given a reasonable opportunity after passage of the local law requiring transition to decentralized land use regulation to file sunset review applications with the municipality seeking modification or repeal of any land use restriction stemming from the municipality's exercise of its planning or zoning authority that prohibited or conditionally restricted the peaceful or highest and best uses of the owner's private property. Applicants for sunset review are responsible for complying with public notice requirements applicable to the most analogous private rezoning application under section 9-462.04. The local body responsible for rezoning shall conduct a public hearing on each sunset review application to determine whether the challenged land use restriction must be modified or repealed under subdivision (a) of this paragraph. All sunset review decisions are subject to administrative review without deference to the local body's determination. The local law shall prescribe a reasonable deadline for interested parties to record final sunset review decisions against title to the affected real property. Failure to timely record the decisions is deemed the abandonment of any such sunset review application.
2. Concurrently with the sunset review process, an authorization under local law to allow the municipality to record all or a portion of its zoning map, as it pertains to the designated area of decentralized land use regulation, in a format substantially equivalent to plats of subdivision, together with a printed statement of all restrictions on land uses entailed by the zoning map that also specifies the objective factors, if any, established in the formerly governing zoning law allowing for modification of the restrictions of the specified zoning classifications by special exception, conditional use, variance or rezoning. Subsequently recorded sunset review decisions shall:
(a) Refer to the document number of the recorded zoning map.
(b) Be effective as of the date the zoning map is recorded.
(c) Be deemed to modify and supersede any contrary provision or classification of the zoning map and its accompanying statement.
B. On recordation, the land use restrictions specified in the zoning map and related statement, as modified by recorded sunset review decisions, become restrictive covenants against title to the burdened private properties specified in the zoning map with the right to enforce the covenants presumptively running with title to all private properties within three hundred feet.
9-1428. Effect of exercise
The general law applicable to private restrictive covenants apply to restrictive covenants created by section 9‑1427 except that:
1. The local law shall provide that owners of properties burdened by the restrictive covenants and their successors have standing to file a special action in any court of competent jurisdiction seeking a declaratory judgment granting a special exception, conditional use, variance or rezoning under the objective factors of the previously governing zoning law.
2. In order to perfect the restrictive covenants established by section 9‑1427 against subsequent purchasers for value, the local law shall provide for a reasonable deadline by which property owners must record their enforcement rights as running with title to the benefitted properties and against title to all burdened properties by reference to the document number of the recorded zoning map. Failure to timely record the enforcement rights is deemed the abandonment of any related claim or right.
9-1429. Effect of exercise
A. A local law effectively exercising the legal authority granted pursuant to section 9‑1425 has the effect of:
1. Granting owners and subsequent transferees of private real property located within the respective designated decentralized land use regulation area a vested property interest under state law in every land use not prohibited by the restrictive covenants on title generated by the transition to decentralized land use regulation or the common law of nuisance to protect health and safety.
2. Prohibiting the exercise of municipal planning and zoning powers directly or indirectly with respect to private real property located within the designated decentralized land use regulation area under chapter 4, article 6 or 6.1 of this title or a similar statute or law.
3. Prohibiting the exercise of planning and zoning powers by any state agency, political subdivision of this state, special district or other local government within the designated decentralized land use regulation area that is similar to municipal planning and zoning powers under chapter 4, article 6 or 6.1 of this title.
4. Prohibiting the municipality from exercising development moratorium authority in the designated decentralized land use regulation area under section 9-463.06, or a similar statute or law.
5. Releasing the respective municipality from any obligation to exercise planning or zoning authority in the designated decentralized land use regulation area under any intergovernmental agreement authorized by section 9-461.11 or 9-461.12 or a similar statute or law.
ARTICLE 4. SEPARATION OF POWERS
9-1431. Powers of a municipality
The powers of the municipality consist of the legislative, including the quasi-legislative, the executive, including the administrative power and the judicial, including the quasi-judicial. The legislative power of the municipality consists solely of the power to determine general public policy and to enact laws of general effect and uniform application. The executive power of the municipality consists solely of the power to administer and enforce general laws. The judicial power of the municipality consists solely of the power to adjudicate disputes or controversies concerning the appropriate application of general laws to specific persons and circumstances based on principles of law and equity.
9-1432. Municipal court jurisdiction over judicial action
A. The municipal court of the adopting municipality, if any, has concurrent jurisdiction over any dispute or controversy arising whenever the legislative or executive departments of the municipality, or anyone employed, supervised, controlled or appointed by these branches, other than judicial officials and their employees, exercises or proposes to exercise the municipality's judicial power to determine the legal rights, privileges or obligations of specific persons under general laws if those specific persons file a petition with the court requesting the exercise of the jurisdiction and none of the persons who are the subject of the action has previously filed any other action relating to the same subject matter in a different venue.
B. The municipal court shall conduct proceedings on the petition pursuant to the rules of procedure generally applicable to municipal court proceedings or, if rules have not been promulgated, pursuant to the Arizona rules of civil procedure. The municipal court is entitled to adjudicate the dispute and issue appropriate legal or equitable remedies based on de novo consideration of the relevant law and facts. The decision of the municipal court relative to these disputes is final and appealable to the superior court.
9-1433. Alternative dispute resolution
If a municipality does not maintain a municipal court, the checks and balances pursuant to this article apply to the combination of legislative, executive and judicial powers. If the legislative or executive department, and any council member, person, board or commission employed, supervised, controlled or appointed by the department exercise or propose to exercise the municipality's judicial power, persons who are the subject of the action are entitled to compel the municipality to resolve any actual or potential controversy or dispute over the action through binding arbitration or adjudicative mediation by serving on the municipality a written demand for binding arbitration or adjudicative mediation.
9-1434. Demand for arbitration or mediation
A. A person who demands arbitration or mediation shall serve a written demand for arbitration or mediation on the chief executive officer of the municipality within ten days of discovery of the facts giving rise to the actual or potential controversy or dispute. The demand must specify the essential nature of the dispute, the specific remedy sought and identify a reputable private or public alternative dispute resolution organization, such as the American arbitration association or any comparable alternative dispute resolution program organized by the judicial branch of this state. On the municipality's receipt of the demand, the parties shall diligently participate in the arbitration or mediation process to ensure the process is completed within ninety days of initiation, during which time the status quo shall be maintained and the municipality may not take adverse action relating to the subject matter of the demand against the person submitting the demand.
B. The parties shall mutually agree in good faith on arbitrators or mediators within seven days of receipt of a list of available arbitrators or mediators from the alternative dispute resolution organization. The dispute shall be settled promptly by arbitration or mediation pursuant to the rules in effect at the time the demand is made, subject to the provisions of the Arizona uniform arbitration act. The arbitrator or mediator shall conduct the hearing outside of the municipality but within the surrounding county unless all parties consent to a different location. The decision of the arbitrator or mediator is final and binding. Each party shall initially bear their own attorney fees and costs of arbitration or mediation, except that the person making the demand shall be awarded reasonable attorney fees and costs if the person prevails.
C. If it becomes necessary for either party to enforce an arbitration decision through court process, administrative and other costs of enforcing an arbitration decision, including the costs of subpoenas, depositions, transcripts, witness fees, payment of reasonable attorney fees and similar costs shall be awarded to the prevailing party. All documents relating to the arbitration or mediation are public records and the hearing must be open to the public.
ARTICLE 5. FREEDOM FROM CRIME
9-1441. Police performance benchmarks
A. Each fiscal year beginning after the adoption of the model local liberty charter, the municipal police department, if any, shall adopt performance benchmarking that targets and measures desired crime rates, crime clearance rates and public complaint rates both for individual precincts and for the municipality as a whole. The performance standards for the benchmarking shall prescribe an ultimate statistical fiscal year performance goal for each benchmarked statistic for each precinct and the municipality as a whole based on what is determined by the department to be a reasonable state of security.
B. A majority of the elected officials within the municipality's legislative department shall approve the fiscal year performance goals.
9-1442. Publication of benchmarked standards, goals and statistics
A municipality shall publish benchmarked standards, goals and statistics online as soon as practicable in a conveniently accessible and searchable user-friendly public website format that is updated frequently as well as made immediately available for inspection and copying by the general public.
9-1443. Police overtime
A municipality shall give priority access to overtime benefits to police officers who work in precincts where performance standards have been met. Police officers who receive the priority access to overtime shall perform overtime services in precincts where performance standards have not been met.
9-1444. Failure to meet performance standards; managed competition
A. If the municipal police department fails to meet performance standards in the majority of precincts or for the municipality as a whole for two consecutive fiscal years, the governing body for the municipality shall enact an appropriate ordinance offering tax credits by general law to any person who furnishes qualifying security services in the precincts in which performance standards have not been met in proportion to their public benefit as determined by uniform, objective and quantifiable standards.
B. If the municipal police department fails to meet performance standards in the majority of precincts or for the municipality as a whole for five consecutive fiscal years, municipal policing services are subject to managed competition.
ARTICLE 6. FISCAL RESPONSIBILITY
9-1451. Core functions funded first
A municipality shall adequately fund Municipal functions without which the municipality would cease to exist as a governmental entity before funding any other municipal function or service.
9-1452. Municipal expenditure limit
For purposes of calculating the municipality's expenditure limitation under article IX, section 20, Constitution of Arizona, for the fiscal years beginning after the adoption of the model local liberty charter, any authorization for the payment of monies, revenues, funds, fees, fines, penalties, tuition, property and receipts of any kind whatsoever that is received by or for the account of any special district, as prescribed in section 48-271, subsection B, that is organized on or after the first fiscal year after adoption of the model local liberty charter that exists, furnish services or operates primarily within the municipal boundaries, is included as a component of the municipality's expenditure pursuant to article IX, section 20, Constitution of Arizona.
9-1453. Taxation limitation
The maximum amount of ad valorem taxes that the municipality levies for the fiscal years beginning after the adoption of the model local liberty charter shall not exceed an amount of two per cent greater than the difference between the amount in the immediately preceding fiscal year of ad valorem taxes that the municipality levies and ad valorem taxes or assessments levied by all special districts, or equivalent political subdivisions, that are organized on or after the first fiscal year after adoption of the model local liberty charter that exists, furnish services or operates primarily within the municipal boundaries.
9-1454. Managed competition; independent review board; members
A. As soon as practicable but no later than the second fiscal year after the adoption of the model local liberty charter, the municipality shall furnish municipal services, other than core public safety services, through transparent, open competitive bidding for service contracts by independent contractors and municipal departments. A municipality may make core public safety services provided by police officers and fire fighters subject to managed competition if they are approved by a majority of the elected members of the municipality's legislative department. The municipality's chief executive officer has the sole responsibility for administering and monitoring any agreements with contractors. The municipality's chief executive officer is required to produce annual performance audits for contracted services, the cost of which must be accounted for and considered during the bidding process. The municipality's chief executive officer shall seek an independent audit every five years to evaluate the municipality's experience and performance audits. If a service is awarded to an independent contractor through managed competition, impacted municipal employees are not precluded or hindered from accepting employment with the independent contractor.
B. As soon as practicable but no later than the second fiscal year after the adoption of the model local liberty charter, the municipality's legislative department shall by ordinance provide for standards and processes ensuring transparent, open competitive bidding for contracts to furnish public services. The legislative department shall also enact ordinances to safeguard against corruption and conflicts of interest.
C. As soon as practicable but no later than the second fiscal year after the adoption of the model local liberty charter, the municipality's chief executive officer shall appoint seven members to the managed competition independent review board. Four of the members shall be private citizens whose appointments are subject to council confirmation. Each of the private citizens must have professional experience in one or more of the following areas:
1. Finance.
2. Law.
3. Public administration.
4. Business management.
5. The service area under consideration for managed competition.
D. The remaining three members of the managed competition independent review board must be municipal staff including a staff designee, a municipal legislative department staff designee and the municipal auditor and comptroller or staff designee. The municipal staff appointees shall not have any personal or financial interests that would create a conflict of interest with the duties of a board member.
E. Members of the board are prohibited from entering into a contract or accepting employment from an organization that secures a municipal contract through the managed competition process for the duration of the contract. The term of service for initial members of the board shall not end before the third fiscal year after adoption of the model local liberty charter, and thereafter shall be determined by ordinance.
F. As soon as practicable but no later than the second fiscal year after the adoption of the model local liberty charter and thereafter as determined by ordinance, the municipality's chief executive officer shall prepare an initial preliminary written statement of work for each municipal service to be put into managed competition. The chief executive officer shall transmit this report to the managed competition independent review board for its consideration and recommendations relative to the request for proposal and contractual standards and contractor qualifications. In determining its recommendations, the board shall consider such factors as the type of service provided, the abilities of the current and projected competitive market, potential efficiencies that could be achieved and the capacity of the municipality to deliver essential services in the event of contractor default. The board shall issue its initial recommendations as soon as practicable and no later than the third fiscal year after the adoption of the model local liberty charter, and thereafter as determined by ordinance.
G. In addition to standards and qualifications recommended by the managed competition independent review board, the municipality's chief executive officer shall require that any independent contractor providing services to the municipality meet minimum contract standards to be contained in the solicitation for services or request for proposal. The minimum contract standards shall include:
1. That the independent contractor provides proof that it maintains an adequate level of liability insurance consistent with municipal risk management requirements.
2. That the independent contractor has appropriate safety polices and procedures in place to protect the public and its employees in providing the service.
3. That the independent contractor complies with all applicable employment and labor laws.
4. Performance standards and consequences for nonperformance, including termination of the contract.
5. That the independent contractor designates appropriate personnel to monitor contract compliance.
6. That if background checks are required of municipal employees performing a particular service, the independent contractor performs background checks on employees performing those same services.
7. That the municipality shall unilaterally and immediately terminate the contract if the independent contractor enters into a contract with or employs a member of the independent review board during the term of the contract with the municipality.
8. That the municipality unilaterally and immediately terminate the contract if the independent contractor enters into a contract with or employs a former member of the independent review board during the term of the contract with the municipality if that former board member participated in the selection process for that contract.
ARTICLE 7. FREEDOM FROM FAVORITISM
49-1461. Subsidy to private enterprise
Unless otherwise provided in this article, a subsidy to private enterprise is a direct or indirect economic benefit granted by the municipality with the primary purpose or substantial effect of encouraging or maintaining particular or specific classes of business ventures in which private persons have a substantial financial or ownership interest.
9-1462. Prohibition against subsidizing private enterprise
A municipality shall not subsidize private enterprise.
9-1463. Exception
The following is not considered a subsidy:
1. Benefits from the municipality's performance of essential governmental functions, including benefits from:
(a) The municipality's provision and maintenance of public infrastructure for general public benefit and for actual public use.
(b) The municipality's performance of functions without which the municipality would cease to exist as a governmental body.
(c) The retention of private enterprise to perform functions of the type without which the municipality would cease to exist as a governmental body after a process of transparent and open competitive bidding.
(d) The procurement of supplies and services from private enterprise for the municipality's ordinary business operations after a process of transparent and open competitive bidding.
2. Lower taxes and less regulation, including benefits from:
(a) The general and uniform relaxation or repeal of regulations.
(b) The general and uniform reduction or repeal of taxes, assessments or fees.
(c) The relaxation or repeal of special regulations that, if not relaxed or repealed, would otherwise subject specific individuals, entities or classes of individuals or entities to regulatory burdens in excess of those imposed generally and uniformly.
(d) The reduction or repeal of special taxes, assessments or fees that, if not reduced or repealed, would otherwise subject specific individuals, entities or classes of individuals or entities to taxation, assessments or fees in excess of those imposed generally and uniformly.
ARTICLE 8. ACCOUNTABILITY
9-1471. Accountability of employees
A. Notwithstanding any rules prescribed by the civil service board, all unelected municipal employees, appointed officers and department heads shall be held personally accountable to the residents of the municipality for their actions and omissions as described in this section. The municipality shall maintain public records in a conveniently accessible and searchable user-friendly website format for public viewing of formal and informal written complaints brought or submitted by residents of the municipality against unelected municipal employees, municipal officers and department heads for the duration of their employment with the municipality.
B. The municipality shall maintain an interactive, conveniently accessible and searchable user-friendly website allowing for residents of the municipality to evaluate the personal performance of each unelected municipal employee, municipal officer and department head for the duration of their employment with the municipality.
C. The municipality shall immediately terminate the employment of any unelected municipal employee, appointed officer and department head found by a court of law or in a final arbitration or mediation decision to have tortiously or otherwise unlawfully caused substantial harm to any person on three or more occasions in the course of performing their official duties.
ARTICLE 9. LOCAL SOVEREIGNTY
9-1481. Local sovereignty
A. An intergovernmental contractual relationship shall not be entered into or be binding on the municipality unless the municipality retains the right to rescind the contract on no more than sixty days before written notice.
B. If this state or the united states or any department or agency of this state or the united states proposes or acts to implement, enforce, expand or extend any regulation or regulatory policy within municipal boundaries, the municipality shall exercise all lawful means of demanding the action be coordinated with less restrictive municipal plans and policies.
ARTICLE 10. TRANSPARENCY
9-1491. Public online posting of municipal expenditures
In addition to any other transparency requirements established by law, a municipality shall not make an expenditure by cash, check, promissory note, warrant or other similar means unless the amount of the expenditure, the purpose of the expenditure and the identity of the recipient of the expenditure is concurrently published online in a conveniently accessible and searchable user-friendly public website format.
9-1492. Publicity of records
All records and accounts of every office, department or agency of the municipality shall be open for inspection by any citizen, any representative of a citizen's organization or any representative of the press at all reasonable times and under reasonable regulations established by the municipality's legislative department pursuant to title 39, chapter 1. The municipality shall respond to all written public records requests in writing and with specific reference to each records request. The municipality shall fully comply with any written public records request within the compliance deadline specified in the request. If there is a lawful basis for extending the time of compliance, partial compliance or noncompliance, the municipality shall within the deadline specified in the request, if one is specified, furnish a written statement to the requestor signed by the municipality's chief executive officer or authorized designee detailing the reasons for the municipality's partial compliance, noncompliance or requested compliance deadline extension that specifies a reasonable alternative deadline with specific reference to each records request.
ARTICLE 11. RECONSTITUTE GOVERNMENT
9-1501. Right to vote for none of the above
Within one election cycle after the adoption of the model local liberty charter, the municipality shall enact a local law allowing residents to vote for "none of the above" in addition to qualified candidates running for office within its legislative department. The local law shall provide that if "none of the above" receives more votes than any other candidate, the competing candidates are disqualified from taking office during the current election cycle and the municipality shall call for a special election with new candidates required to qualify and stand for election.
9-1502. Mandatory bankruptcy filing
A. If any of the following occurs, the municipality must cure the condition within thirty days or within the same period, file for bankruptcy protection under chapter 9 of the united states bankruptcy code to restructure its finances:
1. The municipality has one or more creditors with undisputed claims that have been unpaid six or more months after their due date that, in the aggregate, exceed ten per cent of the municipality's annual general fund budget.
2. The municipality receives written notification from the trustee, actuary or at least ten per cent of the beneficiaries of any pension, health or other benefit fund that the municipality has not timely deposited its minimum obligation payment as required by law.
3. Municipal employees have not been paid undisputed compensation due in cash or cash equivalents and it has been at least fourteen days after the scheduled date of payment.
4. The municipality receives written notification from a trustee, paying agent or bondholder of a default in a bond payment or a violation of one or more bond covenants.
5. The municipality has violated the conditions of any law governing the issuance of bonds or notes.
6. A court has ordered an additional tax levy without the prior approval of the municipality's legislative department.
B. If the municipality fails to comply with this section, residents comprising ten per cent of the electorate of the municipality in the most recent preceding citywide election may file an appropriate petition to enforce this provision in municipal court or by special action in the superior court.
Sec. 2. Severability
If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.