In law school, one of my professors encouraged students to review familiar rules (Rules of Civil Procedures or Trial Court Rules) no less than annually to avoid complacency in our knowledge and understanding of them. This is a practice that has served me well for thirty-one (31) years and provided me with a solid foundation of the fundamentals. Several times recently this fundamental knowledge has been put to good use as I have been asked to explain the different uses of motions, resolutions, orders, and ordinances. So, with my professor’s advice in mind, let us refresh our collective memories on some of the basics.
Unlike the federal and state systems, local governments typically do not have separation of powers. For instance, a city council may in a single council meeting act like a legislature, the executive branch, and quasi-judicially. The trick is knowing which hat the governing body has on at any one time. The type of action before you will give you a clue:
When adopting generally applicable laws that would apply in future circumstances, the sovereign body is acting as like a legislature. In that case, an ordinance is the proper vehicle. You can compare it to a bill before the Oregon legislature. Those ordinances or bills are often then complied together into a code to make it easier to track and research the enactment.
The hiring of employees, awarding a construction bid, approving a contract, or simply providing instruction to staff, are common examples of a sovereign body acting in an executive capacity to run the government. The more formal of these decisions are typically made by resolution, and the less formal by motion, but all are types of the same action. Likely you will find that you pass more resolutions than ordinances and orders combined.
A judicial or quasi-judicial action is typically seen in areas like land use applications or code enforcement appeals. In these cases, the body sits in judgment of a unique factual issue and applies pre-existing standards (think ordinances or policies) to those facts to reach a result. That result is typically in the form of an order which explains how the issue was decided and either allows or disallows the action.
This is a general explanation, but as we all know, things in real life are not always so clear. For instance, the Oregon Local Budget Manual states that a budget may be passed by ordinance or resolution and gives this explanation:
Governing body resolution or ordinance:
A resolution is a formal expression of the opinion or will of an official body. An ordinance has the character of an enactment of law by an established authority. For purposes of the Local Budget Law, either a resolution or ordinance by the governing body at this stage of the budget process provides the legal authority to establish or dissolve funds, make appropriations for expenditures, adopt the budget, impose and categorize taxes, and all other legal actions pertaining to adopting the budget and making tax levies.
It is important to look to your city charter or enabling legislation for specific requirements that may apply to your entity. We are always here to help, so if you are unsure, give us a call.