The Payson Town Council will explore ways to pull Propositions 401 and 402 from the town code after the town’s contract attorney advised the voter-approved measures are probably unconstitutional.
Those two propositions, passed in 2018, require the council to seek voter approval for expenditures greater than $1 million.
Contract Town Attorney Aaron Arnson told the council at its Feb. 11 meeting that he believes previous court rulings suggest the propositions go beyond the powers granted through the Arizona Constitution and its statutes “to refer matters to voters,” he said.
“So … we’re left in this kind of awkward position where we have provisions of a code, that give council referral authority that the council doesn’t have by the Constitution or statute,” he said.
The two propositions won with a 60% majority during the 2018 election. The propositions require the town to seek voter approval before entering contracts or leases totaling more than $1 million.
The propositions took aim at a proposed contract with a private prep school to renovate and upgrade Rumsey Park to create a swim and ice skating center and playing fields the school could then lease. Mayor Tom Morrissey and Councilors Suzy Tubbs-Avakian and Jim Ferris made support of the propositions the cornerstone of their campaigns.
However, the council discovered the unconstitutionality of the propositions when it sought to purchase two new fire trucks in late 2019 for $1.4 million, said Arnson.
At the time, he advised the council the state Constitution does not require the council to put purchases such as fire trucks to a vote. In response, the council unanimously voted to buy the two trucks.
But the legality of the propositions in other situations remained outstanding.
The proposal to rewrite the town code to nullify the voter-approved measure split the council, with Morrissey and Tubbs-Avakian voting to uphold the will of the voters.
“The people have spoken on this issue by a pretty big majority. So, I will not support doing anything other than respecting the will of the people,” said Morrissey. Tubbs-Avakian agreed.
The other five council members said, in part, that they felt it left “a false perception” and seemed “disingenuous” to have sections of the town code that seem to say all such contracts require a public vote if the town doesn’t actually have the legal authority to abide by the propositions.
“I just don’t feel that it’s right to have that on (the town code sections) because that isn’t the reality. That’s the perception, but that’s not true,” said Vice Mayor Chris Higgins. “So, that’s where I feel it would be best to have these removed from our code.”
But Arnson stopped short of recommending a course of action.
“I’m here to present that legal situation and help the council understand. Now you have these two provisions of code and I guess next is to determine what direction to take and what to do about it,” he said.
Ferris asked if the code could be re-written to accommodate the constitutional and statutory limitations.
Arnson said neither he nor his colleagues had any ideas on how to do that.
Arnson cited a recent court case that overturned a voter-approved initiative as an example of possible remedies. The voters in the town passed an initiative that would have limited council terms. Arnson said in that case, the court ruled that general law towns like Payson — as opposed to charter cities — can’t go beyond what’s already in state law.
“What the court concluded in that case was the statutes and the Constitution of this state don’t say you can impose term limits on council members. It says, here are the qualifications for council members, but it includes no term limits. Therefore, the initiative couldn’t have had a legal effect because there isn’t a statute or Constitution that says that you can do that,” he said.
In that case, the Arizona Legislature later gave towns the right to impose term limits, but a town council in a general law city didn’t have the ability to do that on its own.
The Payson council on a 5-2 vote then directed the town staff to draw up a resolution to remove the titles and sections from the town code relating to Propositions 401 and 402 to discuss the matter at a future meeting.