Boise council changes language in voter-approved ‘library ordinance’ limiting projects
An ordinance passed by Boise voters in November now looks a little different.
The Boise City Council voted Tuesday to modify “the library ordinance,” a section of Boise City Code enacted by voters last November that limit’s the city’s ability to work on library projects without voter approval.
Proposition 1 required a future citywide election on any city library project that cost more than $25 million in public money. It was passed with 69% of the vote.
The measure was a response plans by former Mayor David Bieter and the council to build a new library with a price tag of more than $100 million on the site at Capitol Boulevard and River Street where Boise’s aging main library is.
City officials worried that ordinance would make it difficult to do the work necessary to renovate existing buildings or undertake new space in the future.
“As currently drafted ... this city code chapter presents a Catch-22,” Jennifer Pitino, on the city’s legal staff, wrote in a memo to Mayor Lauren McLean and the council. “The city cannot spend any resources on developing a major library plan without the pre-approval of the voters, which requires presenting to the public a library plan. However, the city cannot develop a plan to present to the voters under the current code.”
So the council embraced a change to some of the language, which Pitino said did not “change the overall spirit or substance” of the voter-approved ordinance.
The revision removes language that prohibits the city from “directly or indirectly” appropriating or spending money on projects without voter approval but leaves in language that stops the city from incurring expenses defined in the law.
The revision retains prohibitions on “actual monetary payments, in-kind assistance, the value of land exchanges, direct or indirect payments to third parties, and any other consideration which promotes or enhances the development of a major library project.”
But it removes the “value of employee time” from the list of prohibited expenses and allows for expenses incurred for the development of a design.
Councilman Patrick Bageant said the changes better define what is considered an expense that would need to go before voters.
“We’re not trying to monkey with what people directed to us,” he said.
He also pointed to discussion last year about the constitutionality of the ordinances, a concern that stopped the council 13 months ago from enacting the ordinance before it went to voters.
Brian Ertz, the legal counsel for Boise Working Together, the community group whose petitions got the measure on the ballot, has said repeatedly that he believes the language would survive any court challenge.
But Bageant, an attorney who specializes in business and intellectual property law, said there was “legitimate reason” to think the ordinance “may not survive a court challenge.”
He argued that it is not clear if the Idaho constitution “even permits voters to direct this kind of expenditure,” calling it a “wonky legal question.” Last year, then-Council Member Scot Ludwig, also an attorney and a developer, expressed concerns over the same thing.
“The real question is: Are we going to have an ordinance that works while the courts potentially address this constitutional problem, or are we going to have an ordinance that broken and makes nobody happy?” Bageant said.
Several council members agreed, but Council President Elaine Clegg said the ordinance was unconstitutional.
“At the end of the day, I can’t shake the fact that to date, I have not voted for an ordinance that I believed was unconstitutional,” Clegg said. “I’m going to stick with that.”
The new language ultimately passed 5-1 with Clegg dissenting.
David Klinger, spokesman for Boise Working Together, said his group believed the city “must remain faithful to the original intent of the voters.”
“Boise voters were quite clear when nearly 70 percent of them voted last November for greater citizen oversight of the proposed $104 million events center/library complex,” Klinger said in an email. “ They wanted a better plan. They wanted a more open and transparent process. And they wanted an eventual citizen vote.”
Boise Working Together has said several times that the city would be able to move forward with library projects after an improved planning process.
“Any attempt to nullify or circumvent (voters’) will must naturally be opposed by Boise Working Together, acting on behalf of the voters,” he wrote.
This story was originally published July 28, 2020 at 7:54 PM.
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