Resolution or Ordinance?
September 22, 2014
by
Paul Sullivan
Category:
Legislative Body
It’s a dilemma. Should a council or board action be taken by ordinance? Or by resolution?
Sometimes the answer is easy, as a statute or charter may specify which to use. For example, ordinances must be used to adopt a code city budget (RCW 35A.33.075) and to vacate a county road (RCW 36.87.120). And actions taken initially by ordinance can only be amended or repealed by ordinance.
The answer may be driven by more practical considerations as well, such as cost and process. For example, a city ordinance (or a summary of the ordinance) must be published, and publication can be expensive. See, e.g., RCW 35A.12.160. Passage of an ordinance may also be cumbersome and time consuming. Passage requires a certain number of affirmative votes and some local rules require multiple “readings” be made over several meetings before passage can occur. Typically, ordinances cannot go into effect immediately and some may be subject to referendum.
There are no similar requirements, however, for the adoption of a resolution. In most instances resolutions go into effect immediately, need not be published and can be adopted by a majority of the membership present, assuming there is a quorum. (There are relatively few instances when a county ordinance or resolution must be published, but there are some. See, e.g., RCW 36.32.120(7), which requires publication of police or sanitary regulations.)
If neither statute nor charter specifies a resolution or ordinance, which legislative form should be used? In an old state supreme court decision, State ex rel. Sylvester v. Superior Court, 60 Wash 279, 287 (1920), the court advised that, if no particular form of action is required, “any authorized action of a municipality may be taken by resolution, as well as ordinance.” There is an exception, however: the court in State ex rel. Morrison v. City of Seattle, 6 Wn. App. 181, 189 (1971), held that an act with a general legislative purpose must be done by ordinance, adding that “ministerial or administrative actions which do not have a general legislative purpose may be done by resolution.” What is legislative? “Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.” Durocher v. King County, 80 Wn.2d 139, 153 (1972).
Ordinances are local laws, similar in nature to statutes enacted by the legislature, passed according to procedures required by state law or charter (such as notice, public hearing, required number of votes, and publication). They can be used to fix legal rights and duties, to regulate activities or, for acts considered criminal, to prohibit them altogether. Ordinances typically are considered “permanent,” although they can be amended. Resolutions, on the other hand, are more informal, less solemn, and often cover matters of a more limited duration. For example, a resolution might express an opinion (the city council states its opposition to . . .) or take an administrative act (a public hearing is set for February 1, 2013 at 8:00 p.m. . . .) or offer recognition (the board states its appreciation for Tom Smith’s 40 years of employment with . . .).
Except when a particular form of action is required by statute or charter, there may be flexibility in determining which form to use. If there is a question as to the proper form, it is suggested that the city or prosecuting attorney or other legal counsel be contacted. Municipal Research can also be contacted for advice.
Sometimes the answer is easy, as a statute or charter may specify which to use. For example, ordinances must be used to adopt a code city budget (RCW 35A.33.075) and to vacate a county road (RCW 36.87.120). And actions taken initially by ordinance can only be amended or repealed by ordinance.
The answer may be driven by more practical considerations as well, such as cost and process. For example, a city ordinance (or a summary of the ordinance) must be published, and publication can be expensive. See, e.g., RCW 35A.12.160. Passage of an ordinance may also be cumbersome and time consuming. Passage requires a certain number of affirmative votes and some local rules require multiple “readings” be made over several meetings before passage can occur. Typically, ordinances cannot go into effect immediately and some may be subject to referendum.
There are no similar requirements, however, for the adoption of a resolution. In most instances resolutions go into effect immediately, need not be published and can be adopted by a majority of the membership present, assuming there is a quorum. (There are relatively few instances when a county ordinance or resolution must be published, but there are some. See, e.g., RCW 36.32.120(7), which requires publication of police or sanitary regulations.)
If neither statute nor charter specifies a resolution or ordinance, which legislative form should be used? In an old state supreme court decision, State ex rel. Sylvester v. Superior Court, 60 Wash 279, 287 (1920), the court advised that, if no particular form of action is required, “any authorized action of a municipality may be taken by resolution, as well as ordinance.” There is an exception, however: the court in State ex rel. Morrison v. City of Seattle, 6 Wn. App. 181, 189 (1971), held that an act with a general legislative purpose must be done by ordinance, adding that “ministerial or administrative actions which do not have a general legislative purpose may be done by resolution.” What is legislative? “Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.” Durocher v. King County, 80 Wn.2d 139, 153 (1972).
Ordinances are local laws, similar in nature to statutes enacted by the legislature, passed according to procedures required by state law or charter (such as notice, public hearing, required number of votes, and publication). They can be used to fix legal rights and duties, to regulate activities or, for acts considered criminal, to prohibit them altogether. Ordinances typically are considered “permanent,” although they can be amended. Resolutions, on the other hand, are more informal, less solemn, and often cover matters of a more limited duration. For example, a resolution might express an opinion (the city council states its opposition to . . .) or take an administrative act (a public hearing is set for February 1, 2013 at 8:00 p.m. . . .) or offer recognition (the board states its appreciation for Tom Smith’s 40 years of employment with . . .).
Except when a particular form of action is required by statute or charter, there may be flexibility in determining which form to use. If there is a question as to the proper form, it is suggested that the city or prosecuting attorney or other legal counsel be contacted. Municipal Research can also be contacted for advice.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.
About Paul Sullivan
Paul worked with many local governments and authored numerous MRSC publications on local elections, ordinances, and general local government operations in his many years at MRSC. He is now retired.
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