The official word from the City Attorney. And we’re lucky, see the note about paratransit users below.
From: May, Michael
Sent: Thursday, January 15, 2009 3:33:50 PM
To: ALL ALDERS; Cieslewicz, Dave
Cc: Kamp, Charles; Peters, Tammy; Harmon, Ramon; Strauch-Nelson, Rachel;
Piraino, Janet; Hogg, Carolyn
Subject: Appeal on Bus Fare Issue
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———————————————————— —————————— —————————— —– Mayor Dave and Alders:Earlier today, Alder Konkel sent an email with a number of questions on the procedure for considering the appeal filed on the Transit and Parking Commission action on bus fares. This memorandum responds to those questions. I will paraphrase her questions.
1. May the appeal be set for determination on next week’s agenda, or must it be referred?
I had originally advised the Mayor and others that I believed the Council could take action on the appeal next week. I have changed my opinion.Alder Konkel pointed out that sec. 3.14(4)(j), MGO, provides as follows:“(j) Any decision of the Transit and Parking Commission may be appealed to the Common Council. Such appeal must specify the reason therefore and be filed with the Transit General Manager. The Transit General Manager shall transmit such appeal to the City Clerk who shall file such appeal with the Common Council. The Common Council shall fix a reasonable time for the hearing of the appeal and give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. The action of the Transit and Parking Commission shall stand unless the Common Council, by a majority vote of its members, reversed or modifies the action of the Transit and Parking Commission.“ (Emphasis added).
If we were writing on a clean slate, I think this language could be interpreted in a number of ways. For example, without doing any research, I suspect that the ordinances may often use the term “Common Council” when what is really meant the Council or someone they designate (by action or tradition), like the Clerk or other staff or the Council President. Moreover, one could interpret it as meaning the matter should be set for a hearing by the Clerk and if the Council wishes a different hearing date, it could refer the matter. Or, one could interpret it strictly, requiring that the Council itself set any date for a hearing.
There is some history of how this language has been applied. Last year, Alder Kerr appealed a determination of the Plan Commission regarding a demolition. See Legistar item # 10593. The item was first on the agenda for May 20, 2008 under the following:
“Appeal of the Plan Commission decision approving a demolition permit for two commercial buildings to allow construction of a four story, 48 room hotel at 1501 Monroe Street.
NOTE: THIS ITEM WILL BE REFERRED FOR PUBLIC HEARING. THE PUBLIC HEARING DATE WILL BE ESTABLISHED FROM THE COUNCIL FLOOR. “
At the meeting, the matter was referred to the next Council meeting, June 3, where it was decided.
The ordinance language under which Alder Kerr appealed is found in sec. 28.12(12)(h), MGO. It provides in part:
“An appeal from the decision of the City Plan Commission granting or denying a demolition or removal permit may be taken to the Common Council by the applicant for the demolition or removal permit or by the Alderperson of the district in which the building proposed to be demolished or removed is located. Such appeal must specify the grounds thereof in respect to the findings of the City Plan Commission and must be filed with the office of the Zoning Administrator within ten (10) days of the final action of the City Plan Commission. The Zoning Administrator shall transmit such appeal to the City Clerk who shall file the appeal with the Common Council. The Common Council shall fix a reasonable time for the hearing of the appeal, and give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time.” (Emphasis added).
Sound familiar? Yes, the same language that, for better or for worse, was transplanted into the TPC ordinance.
In addition, I consulted with Ms. Peters of the Clerk’s office and she was able to find one other appeal that predates me, in 2003, where a similar referral process was used.
Based upon this, it is my opinion that, although the language might be subject to different interpretations upon a clean slate, the Council has set a pattern or precedent of interpreting such language as bringing the appeal to the Council floor where the Council then refers it to another meeting for the hearing. I also believe that this practice is most in accord with the plain language of the ordinance. If the Council believes that a different practice should apply to appeals from the TPC than from the Plan Commission, the Council may wish to amend the ordinances.
Therefore, I have instructed Ms. Peters to place this on the January 20, 2009, agenda as a Communication to be referred by the Council for hearing at a future meeting.
2. Does the Council have authority to accept the $1.75 fare adopted by the TPC, decrease it, or increase it?
The Common Council has all of these options before it. It takes 11 votes of the Council to “reverse or modify” the action of the TPC. With 11 votes, the Council can essentially set the fares at any level, and may include or not include the low-income reduced fare proposal that was not adopted by the TPC. My understanding is that the appeal brings the entire fare structure before the Council.
It should be noted that all these actions regarding fares relate only to the revenues of the Metro Bus system. Even the low-income reduced fare plan relates to fares and thus to revenues, and thus does not constitute an appropriation that constitutes a budget amendment requiring 15 votes.
It should also be noted that, depending on the action taken by the Council, the Metro budget may not be balanced, and other future actions may be required by Metro Staff, the Council or TPC.
3. Is the Appeal to be a public hearing?
It is a public hearing under the Council’s rules, allowing 5 minutes per presenter. However, it should be noted that, unlike public hearing matters under the Zoning Code and the Plan Commission’s jurisdiction, there is no legal requirement by state law or the MGO for a public notice to be placed in the newspaper (it is possible that this publication requirement is a reason that the Zoning Code allows the Council to set the time of the hearing, a requirement not present in TPC matters). The ordinance gives to the Council the discretion as to how to give public notice. In our view, all that is required as a legal matter is proper notice under the open meetings law which is, by definition, public notice under sec. 19.84(1), Wis. Stats.
4. Would approval of the low-income fare proposal require separate action by the Council to adjust the budget?
No. As noted above, the Council is dealing with revenues, not appropriations. Although the effect of adopting this plan may mean that other payments planned by Metro must be delayed, since there is no new appropriation, no separate action other than approval of this plan as part of the fare structure is needed.
I believe this answers the questions posed by Alder Konkel. If the Mayor’s office or other Alders have additional questions, I ask them to send them to me separately.
Thank you. For those who may not have it handy, I attach our earlier memo on the TPC appeal issues.Michael P. MayCity AttorneyCity of Madison
Here’s the paratransit info I was sent by a TPC member:
Hope everyone who uses paratransit hears about this Common Council meeting on Tuesday Jan 20 soon. I don’t know if all customers know about the reduced time they willl have on Monday to schedule Tuesday rides. I intend no criticism of Metro staff for this service outage, which I imagine was scheduled some time ago. This is a common council agenda issue.
Paratransit users have to schedule rides at least 24 hours in advance; because of a computer upgrade, no rides can be scheduled this coming Monday until after 2 pm; and because of the MLK Jr. holiday, Metro customer service will stop taking calls at 4:30 pm.
From the Metro homepage:
PARATRANSIT SERVICE NOTE:
Book Rides Before or After Monday, Jan. 19
Due to computer network upgrades, Metro’s paratransit booking system will not be available until 2 PM on Monday, January 19.
Paratransit riders are encouraged to book rides before or after Monday.
And then, from http://www.cityofmadison.com/metro/Paratransit/HowtoScheduleTrip/HowtoScheduleTrip.html
Schedule your ride by no later than 4:30pm for next day service. For your convenience, rides can be scheduled up to seven days in advance. It is best not to wait until the last minute to call as the phone lines get very busy. Both the destination and return times are needed.
We are unable to schedule any `same-day’ ride requests.
