In this article, we will be talking about the differences between an ordinance and a resolution and how they are used.
First, let’s start with ordinances. An ordinance is used when a municipality exercises its legislative powers. §10-3-702 of Utah State Code states that the governing body may pass any Ordinance to regulate, require, prohibit, govern, control or supervise any activity, business, conduct or condition authorized by this act of any other provision of law.
When it comes to the form or formatting of an Ordinance, the State of Utah requires the following: (§10-3-704)
- A number;
- A title which indicates the nature of the subject matter of the Ordinance;
- A preamble which states the need or reason for the Ordinance;
- An ordaining clause which states “Be it ordained by the _____ (name of the governing body and municipality):”;
- The body or subject of the Ordinance;
- When applicable, a Statement indicating the penalty for violation of the Ordinance or a reference that the punishment is covered by an Ordinance which prescribes the fines and terms of imprisonment for the violation of a municipal Ordinance; or, the penalty may establish a classification of penalties and refer to such Ordinance in which the penalty for such violation is established;
- When a penalty for a violation of the Ordinance includes a possibility of imprisonment, a Statement that the municipality is required, under Section 78B-22-310 of Utah State Code, to provide for indigent defense services, as that term is defined in Section 78B-22-102 of Utah State Code;
- A Statement indicating the effective date of the Ordinance or the date when the Ordinance shall become effective after publication or posting as required by State Code;
- A line for the signature of the mayor or acting mayor to sign the Ordinance;
- A place for the municipal recorder to attest the Ordinance and fix the seal of the municipality; and
- In a municipality where the mayor may disapprove an Ordinance passed by the legislative body, a Statement showing:
- If the mayor approves the Ordinance, that the governing body passes the Ordinance with the mayor’s approval;
- If the mayor disapproves the Ordinance, that the governing body passes the Ordinance over the mayor’s disapproval; or
- If the mayor neither approves or disapproves the Ordinance, that the Ordinance became effective without the approval or disapproval of the mayor.
Utah State Code also requires that Ordinances passed or enacted by the governing body of a municipality be signed by the mayor, or if he/she is absent, by the mayor pro tempore, or by a quorum of the governing body, and shall be recorded before taking effect. Ordinances which do not have an effective date shall become effective 20 days after publication or posting, or 30 days after final passage by the governing body, whichever is sooner. (§10-3-705) Ordinances may also become effective at an earlier or later date after publication or posting if so provided in the Ordinance. (§10-3-712)
Before an Ordinance may take effect, the legislative body of each municipality adopting an Ordinance, shall: deposit a copy of the Ordinance in the office of the municipal recorder; and
- Publish a short summary of the Ordinance at least once: in a newspaper published within the municipality; or if there is no newspaper published within the municipality, in a newspaper of general circulation within the municipality; OR
- Post a complete copy of the Ordinance:
- for a city of the first class, in nine public places within the city; or
- for any other municipality, in three public places within the municipality.
It should be noted that any Ordinance, code, or book, other than the State Code, relating to building or safety standards, municipal functions, administration, control, or regulations, may be adopted and shall take effect without further publication or posting, if reference is made to the code or book, and at least one copy has been filed for use and examination by the public in the office of the recorder or clerk of the city or town prior to the adoption of the Ordinance by the governing body. Any State law relating to building or safety standards, municipal functions, administration, control, or regulations, may be adopted and shall take effect without further publication or posting if reference is made to the State Code. The Ordinance adopting the code or book shall be published in the manner provided by State Code. (§10-3-711)
The municipal recorder is responsible for recording, in a book used exclusively for that purpose, all Ordinances passed by the governing body. The recorder is required to give each Ordinance a number, if the governing body has not already done so. Immediately following each Ordinance, or codification of Ordinances, the recorder is required to certify a Statement stating the date of passage and of the date of publication or posting, as required. (§10-3-713)
The contents of all municipal Ordinances, the dates of passage, and the date of publication or posting may be proved by the certification of the municipal recorder under the seal of the municipality. (§10-3-714)
Other key points to know about Ordinances include:
- An officer of the municipality may not be convicted of a criminal offense where he/she relied on or enforced an Ordinance he/she reasonably believed to be a valid Ordinance. (§10-3-702)
- The governing body of a municipality may impose a criminal penalty for the violation of any municipal Ordinance by a fine not to exceed the maximum Class B misdemeanor fine under Section 76-3-301 of Utah State Code, by a term of imprisonment up to six months, or by both the fine and term of imprisonment. Additional parameters regarding criminal and civil penalties can be found in §10-3-703 of Utah State Code.
- All fines, penalties, and forfeitures for the violation of any Ordinance, when collected, shall be paid in accordance with Sections 51-4-2 of Utah State Code. A violation of this section constitutes a Class C misdemeanor. The retention or use of any fine, penalty, or forfeiture by any person for personal use or benefit constitutes a Class B misdemeanor, except that if the amount or amounts exceed $1,000 the offense is a Class A misdemeanor as defined in the Utah Criminal Code.
A Resolution is used when a municipality exercises its administrative powers. §10-3-717 of Utah State Code states that unless otherwise required by law, the governing body may exercise all administrative powers by Resolution including:
- establishing water and sewer rates;
- setting up charges for garbage collection and fees charged for municipal services;
- establishing personnel policies and guidelines; and
- regulating the use and operation of municipal property.
- Note: A municipality may not impose a punishment, fine, or forfeiture by Resolution.
Utah State Code also requires that any Resolution passed by the governing body of a municipality shall be in a form. They must al contain sections substantially similar to that prescribed for Ordinances. (§10-3-718)
Resolutions may also become effective without publication or posting. They can take effect on passage or at a later date as the governing body may determine. Resolutions may not become effective more than three months from the date of passage. (§10-3-719)
Best Practice Recommendations:
- When creating an Ordinance or Resolution, it is important to have your municipality’s legal council review the document before the governing body considers it for adoption. This in ensures the document and its contents comply with the requirements of Utah State Code.
- Public meetings and hearings of the municipality’s governing body for consideration of an Ordinance or Resolution should be held in compliance with the Open Public Meetings Act (OPMA) of Utah State Code.
- Don’t forget, both Ordinances and Resolutions are public records. Careful care and considerations should be made to ensure, once adopted, they are recorded, codified, and stored. This helps so the information contained on them can be retrieved/referenced easily for use by the governing body, boards and commissions, staff, members of the general public, etc.
- See the attached document “Proper Ordinance Formatting” for civiclinQ recommended Ordinance format.
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