In Re Initiative Petition No. 27 of Oklahoma City

HODGES, J.

111 The issue before this Court is whether Initiative Petition No. 27 of the City of Oklahoma City, Oklahoma, violates article XVIII, section 4(a) of the Oklahoma Constitution. We hold that Initiative Petition No. 27 addresses administrative matters outside the scope of the powers of initiative reserved to the people of municipal corporations under article XVIII, section 4(a).¹

I. SUBSTANCE OF INITIATIVE PETITION NO. 27

2 Initiative Petition No. 27 (Petition) covers Oklahoma City's permanent non-supervisory and non-confidential employees as defined by the National Labor Relations Board. Employees in the police and fire departments are excluded. The Petition would provide for the creation of a Labor Relations Board and for the selection of arbitrators. It would establish a procedure for collective bargaining and for arbitration of unresolved issues.²

3 If the Petition were adopted, when the covered employees file a petition to be represented by a collective bargaining agent or when Oklahoma City files a petition stating that a labor organization claims to be the exclusive employee representative, the Labor Relations Board (Board) would be convened. The Board (1) would review the petition, (2) would establish procedures for conducting a hearing, (8) if needed, would authorize an election to determine the employee representative, and (4) would certify an exclusive employee representative.

1 4 The Board would deal with unfair labor practices which are defined in the Petition as acts which interfere with the collective bargaining process. When dealing with unfair labor practices, the Board could establish procedures for hearings and could hear disputes. The Labor Relations Board could grant appropriate relief including issuing orders prohibiting a bargaining agent or Oklahoma City from engaging in any unfair labor practices.

1 5 Under the Petition's provisions, a panel of three arbitrators would hear unresolved employee contract issues between Oklahoma City and the employees, acting through their representative. Oklahoma City would submit an offer to the arbitration panel on the unresolved issues, as would the employees. The arbitration panel would chose between the two offers. Oklahoma City could accept the panel's decision. If Oklahoma City rejected the panel's decision, the two offers would be submitted to a vote of the Oklahoma City residents.

T6 The Petition has other provisions. It would prohibit employees from participating in strikes and work stoppages or slowdown. The arbitrators' fees and expenses would be allocated between Oklahoma City and the employee bargaining agent. Lastly, the Petition contains a severability clause.

II. HISTORY OF INITIATIVE PETITION NO. 27

T7 The Petition, together with signature pages and signature verifications, was received by the Clerk of Oklahoma City (Clerk) on December 12, 2002. The Clerk caused notice to be published as required by law. On December 20, 2002, Brett Robinson filed a protest with the Clerk. Robinson protested on the grounds that the Petition "encompasses matters outside the seope of initiative and referendum for municipal corporations and involves administrative functions of elected officials in contravention" of the Oklahoma Constitution as interpreted in Fite v. Lacey.³

T8 After a hearing on the protest, the Clerk sustained the protest, finding that the Petition was substantially the same as the initiative petition invalided by this Court in Fite. The Clerk held that the Petition was legally insufficient to be submitted to a vote of the people. The Proponents filed an appeal in this Court. By order this Court determined the procedure to be followed in this case.

III. MOTION TO DISMISS CLERK

T9 The Proponents are seeking to have the Clerk dismissed as a respondent. Section 15-102 permits cities to provide their own procedures for exercising their initiative and referendum powers. Oklahoma City adopted the procedures set forth in title 34 of the 1951 Oklahoma Statutes. If appeal is taken from a city clerk's decision, the procedures require the appellant to serve notice on the city clerk.⁴ Under this provision, not only does the Clerk have standing as a defendant, but is a necessary party.⁵ By virtue of the ordinance, the Clerk is brought into Court, rendered subject to the Court's jurisdiction, and subject to any orders involving the performance of the Clerk's duties which may be enforced against the Clerk.⁶ Thus, the motion to dismiss is denied.

IV. LEGAL SUFFICIENCY OF THE PETITION

110 This Court has long held that the powers of initiative and referendum reserved to the people of a municipality, "apply only to legislative matters and not to administrative acts."⁷ The line between legislative matters and administrative acts is not always clear.⁸ As a general rule, "[ale-tions 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.⁹ Essentially, "f the proposed initiative would put into execution previously declared policies or laws, it is administrative in nature." ¹⁰ When an extensive knowledge of fiscal matters are "of prime importance in the decision-making process which [is] the topic of the initiative petition," the petition is usually administrative.¹¹ Because wages, benefits, working conditions, and hiring and firing decisions require a comprehensive knowledge of a municipality's fiscal affairs, decisions regarding personnel matters are usually administrative.¹²

{ 11 In In re Supreme Court Adjudication of Sufficiency of Initiative Petition of Tulsa,¹³ the City Auditor of Tulsa had determined that an initiative petition establishing a minimum number of police officers and setting salaries for police officers was legally insufficient.¹⁴ This Court upheld the auditor's finding because the subject of the petition was administrative in nature.¹⁵

{12 In Fite the initiative petition proposed collective bargaining and binding arbitration for firefighters and police officers of the City of Muskogee.¹⁶ Because of the impermanence of economic conditions effecting decisions "involving wages, hours or other conditions of employment," the subject of the initiative petition, collective bargaining and arbitration, was administrative.¹⁷

{18 In Fite and Initiative Petition in Tulsa, the subject matter of the petitions, personnel matters, was the determining factor. The fact that the petitions in these cases required binding arbitration was not decisive. The Petition in this case involves the same subject matter as the petitions in Fite and Initiative Petition of Tulsa: employee wages, hours and other conditions of employment. Thus, the subject of the Petition in this case is administrative, not legislative, and contravenes article XVIII, section 4(a) of the Oklahoma Constitution.

T14 The Proponents rely on Fraternal Order of Police v. City of Choctaw.¹⁸ In Fraternal Order of Police, this Court upheld the Fire and Police Arbitration Act¹⁹ (the Act) against an attack that it violated title XVIII, section 4(a) of the Oklahoma Constitution. This Court found it unnecessary to address whether the Act was administrative because it was not presented through the initiative process and, thus, not restricted by title XVIII, section 4(a). Proponents' reliance on Fraternal Order of Police is misplaced.

V. SEVERABILITY

1 15 The Proponents argue: (1) this Court should declare only the interest arbitration provisions offensive, (2) they should be severed, and (8) the remaining provisions should be submitted to a vote. The Protestant attacked the entire Petition before the City Clerk. When ruling on the Petition, the Clerk did not confine the decision to certain provisions but found that the Petition was "legally insufficient and invalid on its face" because it involved administrative functions in contravention of the Oklahoma Constitution.

116 Because the collective bargaining and interest arbitration provisions violate the Oklahoma Constitution, this Court must consider whether they are severable.²⁰ The remaining portions of the Petition prohibit city employees from engaging in work stoppages and slowdowns and allow city employees to select a collective bargaining agent. Offending provisions of an initiative petition are not severable if they are fundamental to the petition.²¹ Because we view the collective bargaining and interest arbitration provisions as fundamental to the petition, we do not view them as severable.

VI. CONCLUSION

117 In conclusion, the Clerk correctly found the subject of Initiative Petition No. 27 of the City of Oklahoma City was administrative and, thus, the Petition was legally insufficient for a vote of the residents.

RELIEF DENIED.

1 18 WATT, C.J., OPALA, V.C.J., LAVENDER, HARGRAVE, KAUGER, WINCHESTER, JJ., concur. T 19 SUMMERS, BOUDREAU, JJ., (joins SUMMERS, J.), concur in part; dissent in part.

1 . Okla. Const. art. XVIII, § 4(a), provides:

The powers of the initiative and referendum, reserved by this Constitution to the people of the State and the respective counties and districts therein, are hereby reserved to the people of every municipal corporation now existing or which shall hereafter be created within this State, with reference to all legislative authority which it may exercise, and amend-menis to charters for its own government in accordance with the provisions of this Constitution.

2 . This type of arbitration is known as interest arbitration which is the process used to resolve impasses which parties reach when negotiating new contract terms. Fraternal Order of Police v. City of Choctaw, 1996 OK 78, ¶ 9, 933 P.2d 261, 265.

3 . 1984 OK 83, 691 P.2d 901.

4 . Okla. Stat. tit. 34, §§ 8, 51 (1951).

5 . Cattron v. Hough, 1933 OK 398, 23 P.2d 677, 679 (1933).

6 . See In re Initiative Petition No. 23, State Question No. 38, 1912 OK 611, 127 P. 862, 864.

7 . Brazell v. Zeigler, 1910 OK 193, 110 P. 1052; Fite v. Lacey, 1984 OK 83, ¶ 16, 691 P.2d 901, 904; See Okla. Const. art. XVIII, § 4(a). Section 4(a)'s restriction does not apply to acts of the Oklahoma Legislature, which are governed by article V, § 36. Article V, § 36 provides:

The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.

8 . See 5 Eugene McQuillin, The Law of Municipal Corporations 1 16.57 (3rd ed.1996)

9 . Id. at 116.55; Fite, 1984 OK 83 at 117, 691 P.2d at 905.

10 . McQuillin, at § 16.55.

11 . Fite, 1984 OK 83 at 119, 691 P.2d at 905.

12 . See Fite, 1984 OK 83, 691 P.2d 901; In re Supreme Court Adjudication of Sufficiency of Initiative Petition in Tulsa, 1979 OK 103, 597 P.2d 1208.

13 . 1979 OK 103, 597 P.2d 1208.

14 . Id. at ¶ 2, 597 P.2d at 1209.

15 . Id. at ¶ 9, 597 P.2d at 1211.

16 . Fite, 1984 OK 83 at ¶ 1, 691 P.2d at 902.

17 . Id. at ¶¶ 19, 21, 691 P.2d 905.

18 . 1996 OK 78, 933 P.2d 261.

19 . Okla. Stat. tit. 11, §§ 51-101 to 113 (Supp. 1979).

20 . In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 15, 649 P.2d 545, 548.

21 . Id.