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HomeMy WebLinkAbout10/20/2009 20 Emergency Powers of Mayor, Council, Manger, YMC Amendment to 6.06.030 • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON • AGENDA STATEMENT Item No. For Meeting of October 20, 2009 ITEM TITLE: Consideration of ordinance relating to the proclamation of a civil emergency and the action that may be taken iri a civil emergency; - amending Chapter 6.06 entitled "Emergency Powers of Mayor, City Council and City Manager" of the City of Yakima Municipal Code, specifically Section 6.06.030 entitled "Action which may be taken." SUBMITTED BY: Helen Harvey, Senior Assistant City Attorney CONTACT PERSON/TELEPHONE: Helen Harvey, 575 -6030 SUMMARY EXPLANATION: The City of Yakima passed an ordinance in 2004 entitled "Emergency Powers of Mayor, City Council and City Manager" which appears in Chapter 6.06 of the Yakima Municipal Code ( "YMC "). This ordinance provides for delegation of certain emergency powers to the Mayor in a civil emergency in the event that decisive action is required prior to the City Council being properly convened. Any order issued by the Mayor is . to be presented to the City Council for ratification and confirmation at the earliest practicable time and in no event more than 72 hours after the proclamation of the emergency. This ordinance authorizes the City Manager to enter into contracts and authorize expenditures in a civil emergency, subject to presentation for review and appropriate legislation to the City Council at the earliest practicable time. At the City Council meeting on October 6, 2009, the 411/ City Council directed staff to prepare for its consideration amendments to YMC Section 6.06.030 including the deletion of YMC Section 6.06.030(A)(7). The proposed amended ordinance makes that deletion and makes limited additional changes in a new YMC Section 6.06.030(C). , Resolution Ordinance X Other (Specify) Contract Mail to (name and address): Phone: Funding Source: c. APPROVED FOR SUBMITTAL: J City Manager STAFF RECOMMENDATION: Pass Ordinance. BOARD/COMM ISSION RECOMMENDATION: COUNCIL ACTION: At the City Council business meeting on October 6, 2009, the City Council directed staff to prepare amendments to Yakima Municipal Code Section 6.06.030 for Council's consideration. • • ORDINANCE NO. 2009- AN ORDINANCE relating to the proclamation of a civil emergency and the action that may be taken in a civil emergency; amending Chapter 6.06 entitled "Emergency Powers of Mayor, City Council and City Manager" of the City of Yakima Municipal Code, specifically Section 6.06.030 entitled "Action which may be taken." BE IT ORDAINED BY THE CITY OF YAKIMA: SECTION 1. Section 6.06.030 of the Yakima Municipal Code is amended to read as follows: Chapter 6.06 Yakima Municipal Code EMERGENCY POWERS OF MAYOR, CITY COUNCIL AND CITY MANAGER Sections: 6.06.010 Proclamation of civil emergency— Emergency defined. 6.06.020 Line of succession. 6.06.030 Action which may be taken. 6.06.040 Delivery to news media. 6.06.050 Violation — Penalty. 6.06.010 Proclamation of civil emergency— Emergency defined. • Whenever a civil emergency, or the imminent threat thereof, occurs in the city and results in or threatens to result in the death or injury of persons or the destruction of or damage to property to such extent as to require, in the judgment of the mayor, extraordinary measures to protect the public peace, safety and welfare, the mayor shall forthwith proclaim in writing the existence of a civil emergency. In the absence or unavailability of the mayor, such a civil emergency may be declared by the person indicated in YMC 6.06.020 on the line of succession. For the purposes of this chapter, a "civil emergency" shall mean: A. A riot, unlawful assembly, insurrection, enemy attack, terrorist attack, sabotage, or other hostile action; or (1) For the purpose of this chapter, the term "unlawful assembly" means any threat, actual or implied, to use force or violence when accompanied by immediate power to execute such force or violence by three or more persons acting together without authority of law and where the threat to use the same would endanger or tend to endanger the safety of property or persons. B. A natural or human - caused disaster, including fire, flood, storm, explosion, earthquake, volcanic disturbance or eruption, or other natural cause. (Ord. 2004 -75 § 1 (part), 2004). 6.06.020 Line of succession. A. Line of Succession of Elected Officials for Appointment as Acting Mayor. The line of succession for elected officials to serve as the acting mayor is as follows: (1) Mayor. (2) Mayor pro tem. • (3) Council members by seniority unless a member is unavailable or declines to serve. "Senior" or "seniority" shall mean the number of years served on the city -1- • council. In the event of exact seniority by two or more members, the members shall mutually determine who shall act as mayor. B. Staff Official Appointed Acting Mayor. In the event that the entire council is unavailable, too injured, or is deceased, the line of succession for city employees to serve as the acting mayor is as follows: (1) City manager. (2) Assistant city manager. (3) Police chief. (4) Fire chief. (5) Public works director. C. Powers and Duties of the Acting Mayor. Every provision of law in relation to the powers and duties of the mayor, and in relation to acts and duties to be performed by others toward him or her, extends to the person performing for the time being the duties of mayor. (Ord. 2004 -75 § 1 (part), 2004). 6.06.030 Action which may be taken. A. Upon the proclamation of a civil emergency by the mayor, and during the existence of such emergency, the mayor may make and proclaim any or all of the following orders: (1) An order imposing a general curfew applicable to the city as a whole or to such geographical area or areas of the city and during such hours as he or she deems necessary, and subsequent orders from time to time to modify the hours such curfew will be in effect and the area or areas to which it will apply; (2) An order requiring any or all business establishments to close and remain closed • until further order; (3) An order requiring the closure of any or all bars, taverns, liquor stores and other business establishments where alcoholic beverages are sold or otherwise dispensed; provided, that with respect to those business establishments which are not primarily devoted to the sale of alcoholic beverages and in which such alcoholic beverages may be removed or made secure from possible seizure by the public, the portions thereof utilized for the sale of items other than alcoholic beverages may, in the discretion of the mayor, be allowed to remain open; and further provided, that such orders shall be subject to the laws of the state of Washington by and through the Washington State Liquor Control Board; (4) An order requiring the discontinuance of the sale, distribution, giving away, or possession of gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle or except in connection with normal operation of motor vehicles, normal home use or legitimate commercial use; (5) An order requiring the discontinuance of the sale, distribution or giving away of firearms and /or ammunition for firearms in any or all parts of the city; (6) An order requiring the closure of any or all business establishments where firearms and /or ammunition for firearms are sold or otherwise dispensed; provided, that with respect to those business establishments which are not primarily devoted to the sale of firearms and /or ammunition and in which such firearms and /or ammunition may be removed or made secure from possible seizure by the public, the portions thereof utilized for sale of items other than firearms and ammunition may, in the discretion of the mayor, be allowed to remain open; - 2- ® (87) An order closing to the public any or all public places, including streets, alleys, public ways, schools, parks, beaches, amusement areas and public buildings; (g8) An order requesting federal and /or state assistance in combating such civil emergency, including but not limited to requesting the assistance of the National Guard; (4-(49) An order directing the use of all public and private health, medical, and convalescent facilities and equipment to provide emergency health and medical care for injured persons; (41 -10) An order authorizing, in cooperation with utility management and appropriate state and federal agencies, the shutting off, restoration, and operation of utility services in accordance with priorities established for combating such civil emergency; (4211) Such other orders as are imminently necessary for the protection of life and property; provided, however, that any such orders shall, at the earliest practicable time but in no event more than seventy -two hours after the proclamation of the respective order(s), be presented to the city council for ratification and confirmation, and if not so ratified and confirmed shall be void. B. Upon the proclamation of a civil emergency by the mayor and /or the city council, and during the existence of such emergency, the city council may make and proclaim any or all of the following orders: (1) An order providing for the evacuation and reception of the population of the city or any part thereof; (2) Such other orders as are imminently necessary for the protection of life and property. • C. Upon the proclamation of a civil emergency by the mayor and /or the city council, and during the existence of such emergency, the mayor and /or the city council may make and proclaim any or all of the following requests or consultations: (1) A request that the governor proclaim a state of emergency or disaster when in the opinion of the mayor and /or the city council the resources of the city, area or region are inadequate to cope with the emergency or disaster; (2) A request that the governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting any or all of the activities listed in RCW 43.06.220; (3) A consultation with local, state . and federal emergency management agencies about the emergency or disaster; (4) Such other requests or consultations as may be imminently necessary for the protection of life and property. GD. Upon the proclamation of a civil emergency by the mayor and /or the city council, and during the existence of such emergency, the city manager shall have the power by order to enter into contracts and incur obligations necessary to combat such disaster, protect the health and safety of persons and property, provide emergency assistance to the victims of such disaster, and direct the finance department to draw and to pay the necessary warrants for expenditures to respond to the emergency. Such powers shall be exercised in light of the exigencies of the situation without regard to time- consuming procedures and formalities prescribed by ordinance (excepting mandatory constitutional requirements), including, but not limited to, budget law limitations and requirements of competitive bidding and publication of notices pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the ®. purchase of supplies and materials, and the appropriation and expenditures of public funds; provided, that the city manager shall, wherever practicable, advise and consult -3 • with the city council with respect to disaster response activities, and any such order shall at the earliest practicable time be presented to the city council for review and appropriate legislation including: (1) Findings by resolution with respect to actions taken; (2) Authorization of payment for services, supplies, equipment loans and commandeered mandeered property used during disaster response activities; (3) Approval of gifts, grants or loans accepted by the city during the emergency; (4) Levy of taxes to meet costs of disaster response and recovery operations; and upon such review the city council may ratify and confirm, modify, or reject any such order, and if rejected, any such order shall be void. (Ord. 2004 -75 § 1 (part), 2004). 6.06.040 Delivery to news media. The mayor shall cause any proclamation issued by him or her, pursuant to the authority of this chapter, to be delivered to all news media within the city and shall utilize such other available means, including public address systems, as shall be necessary, in his or her judgment, to give notice of such proclamation to the public. (Ord. 2004 -75 § 1 (part), 2004). 6.06.050 Violation — Penalty. it is unlawful for any person to fail or refuse to obey any such order proclaimed by the mayor or the city council. Any person convicted of a violation of this chapter shall be guilty of a misdemeanor and shall be punished by a fine not to exceed five hundred dollars, or by imprisonment in jail for .a period not to exceed ninety days, or by both such fine and imprisonment. (Ord. 2004 -75 § 1 (part), 2004). • SECTION 2. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance is declared invalid or unconstitutional for any reason, such decision shall not affect the validity of the remaining portions of this ordinance. SECTION 3. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this day of , 2009. ATTEST: David Edler, Mayor City Clerk Publication Date: Effective Date: -4- Page 2 of 4 Westlaw. • West's RCWA 43.06.220 Page 1 P West's Revised Code of Washington Annotated Currentness Title 43. State Government -- Executive (Refs & Annos) c Chapter 43.06. Governor (Refs & Annos) 43.06.220. State of emergency— Powers of governor pursuant to proclamation (1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area de- scribed by the proclamation issue an order prohibiting: (a) Any person being on the public streets, or in the public parks, or at any other public place during the hours declared by the governor to be a period of curfew; (b) Any number of persons, as designated by the governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private; (c) The manufacture, transfer, use, possession or transportation of a molotov.cocktail or any other device, instru- ment or object designed to explode or produce uncontained combustion; • (d) The transporting, possessing or using of gasoline, kerosene, or combustible, flammable, or explosive liquids or materials in a glass or uncapped container of any kind except in connection with the normal operation of mo- tor vehicles, normal home use or legitimate commercial use; (e) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person's place of residence or business; (0 The . sale, purchase or dispensing of alcoholic beverages; (g) The sale, purchase or dispensing of other commodities or goods, as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace; (h) The use of certain streets, highways or public ways by the public; and (i) Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace. (2) The governor after proclaiming a state of emergency and prior to terminating such may, in the area described • © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?sv = Split &prft= HTMLE &fn = top &mt =... 10/14/2009 Page 3 of 4 West's RCWA 43.06.220 Page 2 by the proclamation, issue an order or orders concerning waiver or suspension of statutory obligations or limita- tions in any or all of the following areas as further specified and limited by chapter 181, Laws of 2008: (a) Liability for participation in interlocal agreements; (b) Inspection fees owed to the department of labor and industries; (c) Application of the family emergency assistance program; • (d) Regulations, tariffs, and notice requirements under the jurisdiction of the utilities and transportation commis- sion; (e) Application of tax due dates and penalties relating to collection of taxes; and (f) Permits for industrial, business, or medical uses of alcohol. (3) In imposing the restrictions provided for by RCW 43.06.010, and 43.06.200 through 43.06.270, the governor 411 may impose them for such times, upon such conditions, with such exceptions and in such areas of this state he or she from time to time deems necessary. (4) Any person willfully violating any provision of an order issued by the governor under this section is guilty of a gross misdemeanor. CREDIT(S) [2008 c 181 § 1, eff. June 12, 2008; 2003 c 53 § 222, eff. July 1, 2004; 1969 ex.s. c 186 § 3.] HISTORICAL AND STATUTORY NOTES Part headings not law -2008 c 181: "Part headings used in this act are not any part of the law." [2008 c 181 § 701.] Intent -- Effective date - -2003 c 53: See notes following RCW 2.48.180. Laws.2003, ch. 53, § 1 provides: "The legislature intends by this act to reorganize criminal provisions throughout the Revised Code of Washing- ton to clarify and simplify the identification and referencing of crimes. It is not intended that this act effectuate © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?sv = Split &prft= HTMLE &fn = top &mt =... 10/14/2009 To Mayor and Council October 6, 2009 From David Poling I am addressing the issue of the City maintaining Emergency Powers 6.06(a)(7) prohibiting firearms outside the home or business. This is an issue of the law abiding in our City being threaten to have our Right of Self Defense as provided for in our Washington State Constitution, in a period of time where our very lives could be placed in jeopardy by vandals, gangs or others that may threaten our safety. Laws as this only affect the law- abiding citizens and will do one of two things, disarm those in a time of need to provide for their Self Defense, or forced them to break the law to ensure their safety. This law will not stop the criminal element, as they will continue to ignore the laws. To enact this prohibition the Governor must make a proclamation as prescribed in RCW 06.010 and then apply the restriction in RCW 43.06.220. Without it the Cities ability to enact prohibitions on firearms is non - existent as it will be outside the scope of RCW 9.41.290. What really takes me back is a recommendation or attitude of we have never enacted this 110 law nor do we foresee we ever will, or just because another City has adopted a similar ordinance that is also outside the RCW's, a recommendation of taking no action, is beyond belief. I certainly hope our Mayor and Council will act and remove this Prohibition in the Cities Emergency Powers. Reference Material. Washington State Constitution ARTICLE I DECLARATION OF RIGHTS SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. RCW 9.41.290 State preemption. The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only • those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, . and are consistent with this chapter. Such local ordinances • shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality. Attorney General Opinion 2008 No. 8 Reaffirms that Washington State maintains jurisdiction on firearms laws and Cities, Towns and Municipalities ordinances are preempted. RCW 06.010 Governor General powers and duties. (12) The governor may, after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace, proclaim a state of emergency in the area affected, and the powers granted the governor during a state of emergency shall be effective only within the area described in the proclamation; RCW 43.06.220 State of emergency -- Powers of governor pursuant to proclamation. (1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting: • (e) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person's place of residence or business; Better known as the ROBERT T. STAFFORD DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT, 42 USC Sec. 5207 01/08/2008 By enacting a prohibition on possession of firearms outside the home or business during a Disaster or Emergency could pose legal jeopardy to the City in U.S. District Court. •