Powers and Limits on Local Governments

All Local governments have powers and limits, granted by and placed on them by the state governments and the United States Federal government.

 The Powers given Local Governments include the following:

I. Sources of Power for Local Governments:

1. Federal Laws
2. State Constitutions
3. State Laws
4. State Enabling Acts
5. Local Ordinances

 

 The Limitations of Power placed on Local Governments include the following:

    II. Limitations on Power of Local Governments:

1. United States Constitution
2. Federal Regulations
3. State Constitutions
4. State Mandates
5. State Standards
6. Local Ordinances
7. Fiscal Resources
8. Fiscal Responsibility
9. Personnel Resources
10. Public Opinion

 

Previously, Local Government systems were discussed in its own special section of this website. There were different forms and divisions of local government according to their locations in the different states. Counties, cities, towns and parishes and any other divisions of local governments derive their powers from the state or states where they were formed or incorporated. As mentioned previously, there are no articles or provisions in the United States Constitution that specify structures for any local government. Article VI, Clause III of the United States Constitution ensures that all government officials, federal, state and local across the United States:

         “shall be bound by Oath of Affirmation, to support this Constitution.”^[1]

The Tenth Amendment to the United States Constitution states:

 

     “The powers not delegated to the United States by the Constitution,

      nor prohibited by it to the states, are reserved to the states,

      respectively, or to the people.” ^[2]

 

This amendment assures that the power to establish cities, towns, counties or special tax districts or any other divisions of local governments is left squarely with the states. Local governments are still subject to the United States Constitution as their regulations cannot supersede or violate federal law.

Local government officials are always subject to the United States Constitution per Article VI, section 3 which states:     

 

 

       “The Senators and Representatives before mentioned, and the members of

         the several state legislatures and all executive and judicial officers, both of

         the United States and of the several states, shall be bound by Oath or

         Affirmation, to support this Constitution; but no religious Test shall ever

         be required as a Qualification to any Office or public Trust under the United

         States.[3]

Each State has passed laws or have state constitutional provisions recognizing the United States Constitution’s oath requirement for their local officials.[4]

The State of Alabama’s Constitution provides:

 

      “The governing officials of the various cities or towns in this state shall take

        the Oath of Office prescribed in the Constitution of the State and none

        other.”[5]

The State of Alabama makes provisions for all oaths of office of all public officers of the State and each oath of office requires that the local official, whether town, city or county, “support the Constitution of the United States and Constitution of

Alabama.”[6]

 

l. Sources of Local Government Powers

 

1. Federal Law

The power of the oath of office is the first power granted to Local governments indirectly by the United States Constitution. The requirement to “support the Constitution of the United States and the Constitution of Alabama (or the state constitution of any of the fifty states) ensures, even though states have differing laws, federal law makes this equal across every state.

2. State Constitutions

Every state in the United States has a constitution, similar to the United States Constitution, that outlines the laws of a particular state. State constitutions create what governmental entities are allowed to exist below the state governmental level. These are the Local governments and their defined purposes. Unlike the relationship between the United States government and the states where there are some shared powers, counties, cities, towns and special purpose governments have only those powers granted them by the State Constitution of the particular state. This is a legal doctrine known as “Dillon’s Rule.”[7] This rule was established by Judge John Foster Dillon in 1872 and upheld by the United States Supreme Court in “Hunter v Pittsburg, 207 U.S. 161 (1907).” Dillon contended in

 “Clinton v Cedar Rapids and the Missouri River Railroad (24 Iowa 455, 1868):

 

 

            “Municipal corporations owe their origin to, and derive their

              powers and rights wholly from, the legislature. It breathes

              into them the breath of life without which they cannot exist.”[8]

 

 

 

In general, State Constitutions grant the following forms of power to Local governments:

 

1. Structural Power
2. Functional Power
3. Fiscal Power
4. Personnel Power [9]

 

    

1. Structural Power- States can give local governments the power to choose the form of government, such as “Council-Mayor” or other forms of municipal governments. Some states give their cities the power to make and enact charter revisions.
2. Functional Power- States can authorize cities (or other forms of local government) to exercise self-government in broad or limited ways.
3. Fiscal Power- Cities (or other forms of local governments) can have authority to determine revenue sources, set local tax rates, borrow money and carry on other related financial activities.
4. Personnel Power- Cities and other forms of local government are given authority to employ persons, set rules for employment, pay rates and employment conditions.

            

             Of these authorities, municipalities can exercise the most power, where 

             granted by state law, is with the structure of local government. These

             authorities given to local governments are determined by whether a

             state is a “Dillon’s Rule” state. In such states local governments have

             only those powers explicitly given them through the constitution of the

             state where the city is established.

         

            In the State of Alabama, municipalities are given powers in the following

           areas:

1. Policy and Statute Development
2. Public Services
3. Regulations[10]

           It is the view of the State of Alabama that:

 

             “Each municipality is virtually a microcosm of state government,

              carrying out within its corporate limits, all the functions that

              multiple state agencies perform statewide.”[11]

 

1. Policy and Statute Development

Under Section 11-45 of the Code of Alabama 1975, The Mayor and the City Council draft the legislation and the budget for the city, with the assistance of city attorneys and department heads. The City Council is responsible for publicizing ordinances and resolutions during open meetings, where public debate and input from citizens should have influence on their final actions. Unincorporated municipal boards or commissions can also advise the council on policies in areas under their jurisdiction. The City Clerk is responsible for recording, certifying, and codifying all legislation approved by the City Council. The Mayor, in a Mayor-City Council form of government is responsible for implementing and enforcing all legislation. In a City Manager-Council form of government, the City Manager is responsible for enforcement. City departments carry out any duties or changes that affect day to day city operations.[12]

 

2. Public Services

The Code of the State of Alabama imposes a “positive duty” upon municipalities to:

    a. Maintain streets in safe condition

    b. Construct and repair streets and bridges

    c. Install traffic signs and lights

    d. Mow grass along public rights of way

    e. Make travel easier for citizens

    f. Provide for Police protection of citizens[13]

            3. Regulations:

                 Title 11 Chapter 51 of the Code of Alabama authorizes towns and cities 

                 to collect local city taxes as well as receive municipal revenue through the

                 granting of business licenses, gross receipts or sales taxes, ad valorem

                 taxes, lodging taxes and taxes on the sale of alcohol and gasoline.

                 The city or town council is responsible for passing ordinances to regulate

                 collection activities and must allocate the funds to meet all city

                 expenditures and cover the debts owed by the city.[14]

 

3. State Laws

          

State Constitutions establish state laws which in turn, determine the formation and duties of Local governments within each state. State laws give local governments the responsibilities of maintaining:

1. Parks and Recreation
2. Public Safety (i.e., Police Departments, Fire Departments)
3. Public Transportation
4. Business Licenses
5. Public Libraries
6. Street Construction, maintenance and signage (i.e., Public Works)
7. Garbage pick-up (i.e., Public Works)
8. Sewer service (i.e., Public Works)
9. Water service (i.e., Public Works)

Other responsibilities that can be given to Local Government entities can also include:

10. School systems
11. Public Health
12. County Courts
13. Record archives
14. Emergency management systems
15. 911 services
16. Senior Citizens Services
17. Veterans Services
18. Other Public Services

Depending upon the state, each local government can have different degrees of control and power as indicated in the constitution of the particular state.

 

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located.  State and Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

 

 

4. State Enabling Acts

 

State enabling acts are those acts of a state that give cities, municipalities, townships and other forms of local governments powers in specific areas.

An Enabling Act is defined as:

“A piece of legislation by which a legislative body grants an entity, dependent upon that body, the power to take certain actions.”[15]

 

With the Covid 19 pandemic, many states, including the State of Alabama, had mandatory mandates concerning social distancing and the wearing of masks in public areas. On April, 9, 2021, The State of Alabama rescinded the mandatory wearing of masks state wide.[16] Certain cities, such as Birmingham and Montgomery extended their mandatory masks orders through May 9, 2021, without having to have prior state approval.  Smaller cities and towns have also kept their mask mandates in place to date, such as the City of Tuskegee, Alabama. Cities and municipalities in Alabama have the power of protecting public health.

 

Another area in which the State of Alabama “enables” the activities of cities is in the area of extending the corporate limits of the particular city or town. In the State of Alabama, there are three ways that a city or town can extend its corporate limits without any legislation by the state:

     1. Annexation by Local Act of the State Legislature

2. Annexation by Referendum

3. Annexation by Petition of 100% of the Property Owners[17]

 

1. Annexation by Local Act of the State Legislature allows the extension of municipal boundaries by local act of the legislature. Section 104(18) of the Constitution of the State of Alabama of 1901. The special legal requirements only required by Section 106 as amended by Amendment 341 to the Constitution. “This section requires that notice of the intention to apply for extension of the of the boundaries shall have been published, without cost to the state, in the county or counties where the matter or thing to be affected may be situated.” The substance of the proposed law must be stated and advertised for four (4) consecutive weeks in “some newspaper” published at least once weekly in the county or counties prior to a bill being introduced by its state legislators in both houses. If both the senator(s) and representative(s) approve the bill, it will most likely be passed under the “Local Courtesy Rule” in the legislature of Alabama. Section 11-42-6, Code of Alabama 1975 also requires that any bill seeking to annex territory to any municipality “or otherwise change the boundary lines of any municipality shall contain an accurate description of the territory proposed to be annexed to or removed from such municipality.” The Bill when introduced in the legislature must also contain a map of the territory to be annexed. The municipality should also adopt a resolution to extend the municipal limits.

 

2. Annexation by Referendum is the most complicated of the methods left solely to cities and municipalities. Under the Code of Alabama (1975), Sections 11-42-1 through 11-42-4, the basic requirements include:

1. Written assent of Electors and Property owns of the parcel to be annexed.
2. Map or plat of the area to be annexed - The property to be annexed must be contiguous to the city or town limits wishing to annex and must form a “homogeneous territory.”[18]
3. Resolution of the City or Municipal Council-The resolution should include statements that the public health or public good requires that the territory in question be brought into the limits of the city.

 

4. Certification of the Mayor filed with the Probate Judge-The Mayor of the city or town must certify the resolution of the City or town council to the Judge of Probate of the county where the property to be annexed lies. The certified copy of the resolution must include the map of the territory to be annexed as well as the names of the electors and property owners consenting to annexation.

 

   No election or vote by the people is required, if within ten (10) days from the   filing of the resolution with the Probate Judge, each of the qualified electors living on the land to be annexed, appears before the Probate Judge and consents in writing to annexation.[19](Note: if all electors do not appear, an election must be held, making the annexation process much longer.)

 

3. Annexation by Petition of 100% of the Property Owners is the petitioning of the owners of the property to be added to a city, to the municipal government to which these property owners wish to be annexed. When this occurs, the property owners must give written consent to the annexation. The consent must be in the hands of the Probate Judge when he or she receives the required resolution from the City of Municipal government petitioned to annex the property. This places in motion the call of an election by the Probate Judge, if consent is not unanimous among the property owners.   No election is necessary when consent is unanimous. The Probate Judge must record all documents in the minutes of the Probate Court. The annexation then occurs by unanimous consent of the governing body and an ordinance can be drawn up and codified into the local ordinances of the annexing municipality.[20]

 

Actions After Annexation:

Once Annexation has occurred, the annexing city or town should notify      the following Federal and State offices so that any effects of the annexation, such as increased share of revenues, ad valorem, excise, use and any other taxes can be noted and correctly applied. Not only will changes in city boundaries affect revenues, but also revenue distribution and voting rolls.[21] Agencies that should be informed are:

 

Federal Level:

United States Department of Justice-annexation has to comply with federal regulations

State of Alabama Level:

State Treasurer- annexation affects municipality’s share of tag taxes to that municipality

State Department of Revenue-

1. Income Tax Division- annexation affects the municipal share of State Financial Institutions Excise Tax.
2. Privilege Tax Division-annexation could affect assessment of utility and ad valorem taxes.
3. Sales, Use and Business Tax Division-annexation could affect amount of sales and use taxes collected by the State Revenue Department for the city involved.

                 State Comptroller- annexation affects the amount of the proceeds from

                 State Oil and gas Severance Tax.

 

                 State Administrator, ABC Board- annexation could increase the revenue

                 the municipality may receive from State of Alabama ABC Board profits.

                 Any change in city boundaries can also decide whether county or

                 municipal “approval is necessary in the granting of licenses.”[22]

 

                  State Legislative Reapportionment Office- annexation affects

                    the districts  where citizens of  Alabama vote.

         

                   Local Government Level:

1. County Board of Registrars- annexation will change municipal        voting lists held by the County about who is eligible to vote in    municipal elections.

                       b.   County Commission- changes of boundaries may affect proceeds

                              from TVA (Tennessee Valley Authority) funds received from the

                              State of Alabama that is shared with counties and cities in  

                              areas of the State served by the Tennessee Valley Authority.

                       c.    County Tax Assessors and Tax Collectors- annexation will change

                              ad valorem tax revenue collection for the municipality or city.

                       d.    Probate Judge- annexation may affect the revenue paid to the

                              city based on the automobile tag tax.[23]

 

             Other states have other enabling acts depending upon the needs in each

             individual state. The most standard or common use of state enabling acts

             deal with property. Most states have passed their own version of the

           “Standard State Zoning Enabling Act.” This gives municipalities and cities

             the right to regulate land use by establishing local zoning laws. Other state

             enabling acts allow local governments to create public utilities or establish

             impact fees.[24]

 

      The Standard State Zoning Enabling Act was formed in the United States   

      Department of Commerce   by then Secretary of Commerce,

      Herbert Hoover. It was first issued in 1922 and was revised and re-written in

      1927, and “laid the basic foundation for land development controls in the

      United States.”[25]

     

      Another important State Enabling act is the “Impact Fee.” Impact fees are

      “fees that can be imposed by local governments on a new or proposed

      development project to pay for all or a portion of the costs of providing

      public services to the new development.”[26] These fees help cities reduce

      the economic burden localities face when providing new services.

      Impact fees were first implemented in 1947 in Illinois.  The fee was

      Charged to defray the cost of new residential sewer lines. The use of

      impact fees have developed over time to fund local infrastructure. The

      underlying premise of impact fees is that “growth should pay its own

      way.”[27]  This method of development works best for local governments when

      all impact fees are used for the purpose intended, capital expenditures and

      not for operating expenses. Impact fees can be seen as positive so long as

      they are used to fund needed community infrastructure. This can include

      development of parks, schools, roads, sewer water treatment, utilities,

      libraries and development to new areas within the city or town. Most

      states recognize and allow impact fees and grant cities and municipalities this

      enabling act to use such fees for infrastructure.

 

 

5. Local Ordinances

 

A Local Ordinance is a law for a political division smaller than a federal or state government.   These local governments in the United States include

parishes (Louisiana), counties, cities and towns of all sizes and demographic

characteristics. These “laws” are enforced locally, and can be in addition to

state laws and federal laws. Ordinances are passed by the city council as the council is the legislative body of the municipality. Once the ordinance is passed, it is then signed by the mayor, who represents the executive body of city government.  The ordinance then has to be “codified” by the City Clerk. Codification is the organization of all Local government ordinances.  Codification is a necessary governmental function because it provides the Local government as well as its citizens the body of current and enforceable laws which should be easy to reference.  The type of ordinances a local government can enact depends on the state where the local government is located. Some states allow “Home Rule” for cities and counties. These states give local entities “broad government authority” under the influence of the “Cooley Doctrine.” This doctrine puts forth the principle that:

 

     “Local government is [a] matter of absolute right; and the state cannot

      take it away.”[28]

 

 In states where Local governments have “home rule”[29], this would mean that local ordinances are binding in the communities for which they apply   as long as no state laws or federal laws are violated.

 

 Local Ordinances deal with issues directly affecting the citizens in the legal  Subdivisions where they live. They are focused on health and safety for the      community. They can include ordinances that are meant to limit or increase activities that may pose risks or benefits to public health and safety.

Most commonly, municipalities, cities, and towns create and pass   ordinances affecting:

 

     Police and Public Safety

     Health

     Garbage and garbage pick up

     Parks and Recreation

     Zoning

     Levying local taxes and fees

 

          Local Ordinances, first and foremost should reflect the will of the citizens

          who live in the jurisdictions affected by the ordinances and should always be

          made available to those citizens for their input before passage as well as to

          inform the citizens of their rights regarding ordinances after they become

          local law.

 

II. Limitations on Local Government Powers

    

     First and foremost, it must always be remembered that the United States

     Constitution is the supreme law of the land.  State constitutions and state laws

     cannot violate or supersede federal laws nor the United States Constitution.

     Local ordinances cannot violate or supersede state constitutions and laws or

     the United States Constitution or federal laws. The limitations placed on local

     governments are as follows:

     

1. United States Constitution

There can be many areas where the United States Constitution can limit the

activities of Local governments. The three main ways include but are not

limited to:

1. Zoning Laws/ Ordinances
2. Eminent Domain Laws/Ordinances
3. Election Laws/Ordinances

 

 

1. Zoning Laws/Ordinances

Local zoning ordinances determine how certain areas within a town or city are used or developed for use. Areas in a city can be designated for residential, commercial or industrial use depending on location and use of the designated areas. No local government ordinance can violate the rights granted in the United States Constitution such as every citizen’s right to freedom of religion, freedom of speech, and freedom to assemble. An example of these limitations is illustrated in “City of Boerne v. Flores” heard by the United States Supreme Court in 1997.[30]  The Archbishop of San Antonio, Patrick Flores, applied for a building permit to enlarge

Saint Peter’s Church in Boerne, Texas. The original church building was built in the mission style and was located in the historic district in the

city. The City of Boerne denied the permit based on a city ordinance

controlling additions and construction in the historic district. Archbishop Flores sued the City of Boerne under the “Religious Freedom Restoration Act(RFRA) of 1993.[31] The Archbishop contended that the  City of Boerne’s denial  of his building permit to expand the existing structure of the church  to accommodate the growing number of church members constituted “a substantial burden on the free exercise of  religion without a compelling state interest.”[32] The United States District Court for the  Western District of Texas found in favor of the City of Boerne and struck down the RFRA as being unconstitutional. The United States District Court of Appeals for the Fifth Circuit, upon appeal found that the RFRA was constitutional and reversed the District Court’s decision in favor of Flores. The City of Boerne then petitioned the United States Supreme Court. The city’s case was supported by briefs from preservation organizations, notably the National Trust for Historic Preservation.[33] The Supreme Court found RFRA to be “unconstitutional” as well, as it applies to the states, as an unconstitutional use of Congressional enforcement powers and could not apply to state or local governments. In this case which tested the limits of a local ordinance, the City of Boerne prevailed. This case further illustrates that whenever an ordinance may have conflicts with the United States Constitution, the ordinance can be challenged in Federal Court.

 

Later, one aspect of the RFRA was upheld as “constitutional.”

In “Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal” (546) U.S.418.[34] The Supreme Court ruled that the state nor the local government had no compelling reason to deny the religious adherents to use their sacramental tea in services in a branch of a Brazilian Church in a city in New Mexico. The Supreme Court ruled in favor of the church, stating that the United States government could not, in detail, show the compelling interest in barring the religious use of ayahuasca, (a controlled substance found in a sacramental tea) when “strict scrutiny” is applied as required by the RFRA. The court ruled that the government failed to demonstrate a compelling interest in applying the Controlled Substances Act to the Uniao do Vegetal’s (UDV) sacramental use of ayahuasca.[35]This ruling shows how the United States Constitution can limit local government.

 

2. Eminent Domain Laws/Ordinances

The Takings Clause in the Fifth Amendment to the United States Constitution allows the federal government to take private property for public use if the government provides “just compensation.” The Fifth Amendment provides that:

   “No person shall be deprived of life, liberty or property without

    Substantive due process of law.”[36]

             This amendment in the Constitution originally only applied to the

             Federal government. In 1897, that application changed.

             In “Chicago B and Q Railroad v. the City of Chicago (166 U.S. 226 (1897),”

             The United States Supreme Court ruled that the provision concerning

             Eminent Domain in the Fifth Amendment also applied to states through

             The Fourteenth Amendment.[37] This ruling stipulated that states had to

             provide “just compensation” for seizing private property. Since Local

             governments must obey state laws (as well as federal laws), this decision

             also applied to local governments within the states. On October 9, 1890,

             the City of Chicago City Council decided to widen a street. This decision

             required that privately owned land be appropriated for city use. The

             land in question was owned by several private individuals as well as

             Chicago Burlington and Quincy Railroad Company. (CB&Q Railroad)

             In a jury trial, the City of Chicago was ordered to pay fair compensation to

             the individual landowners and only one dollar ($1.00) to CB&Q appealed

             the decision contending that they had not been given “due process”

             because the railroad did not receive “just compensation” for the property

             taken from them. The City of Chicago argued that due process was given

             to CB&Q because the city allowed the railroad company’s case to be heard

             and that the monetary payment was a matter of “local law.” CB&Q

             appealed.  The ruling of the United States Supreme court issued in 1897

              ruled, as stated by Justice Harlan for the majority of the Court:

                  “The legislative may prescribe a form of procedure to be

                   observed in the taking of private property for public use, but

                    it is not due process of law if provision not be made for  

                    compensation.”[38]

          (The Supreme Court went on to decide that $1.00 was just compensation to

           the railroad company.) In this instance, the City of Chicago believed that 

          “due process” was given to the CB&Q railroad because they had been

          “heard” as a matter of procedure only. This case was the first case which

            incorporated the “Takings Clause” of the Fifth Amendment into the

           “Due Process” Clause of the Fourteenth Amendment, making

           “just compensation” apply to the states. Further, by applying this decision 

            to the states, it also applied it to all divisions of the states, most notably

            to all divisions within the states, including local governments. Here again,

            Federal law is supreme, superseding both state and local government law. 

   

3.Election Laws/Ordinances

 

         The rules for all federal elections are set by the United States Constitution.

         Article Two of the Constitution sets the qualifications and duties of the

         President and Vice President and designates the President as the head

         of the Executive Branch. Article One of the Constitution designates the

         powers of elected members of the Congress as Senators and members of

         The House of Representatives. State and local elections are determined by

         state laws and state constitutions. Though states have the power to set and

         conduct their own elections, as well as those of local governments within

         their borders, state laws nor local ordinances can supersede or violate 

         federal laws or the United States Constitution. Many states have tried to

         limit the powers in the United States Constitution with their laws and this

         practice was passed to local governments in their formation of ordinances.

        

        One of the most compelling cases showing how a local government tried

        (and failed) to supersede the United States Constitution with a city

        ordinance occurred in “Gomillion v. Lightfoot,364 U.S. 339(1960).”[39]

        After the passages of the Civil Rights Act of 1957, more and more

        African American citizens of the city of Tuskegee, Alabama were

        registering to vote. The number of registered black voters was closely

        approaching the number of registered white voters in the city.

        Tuskegee, Alabama was (and is) the location of Tuskegee Institute

        (Now Tuskegee University) and a large Veterans Administration Hospital,

        entirely staffed and operated by African American professionals, including

        doctors, nurses and administrators. In 1957, the population of

        Tuskegee, Alabama was four black citizens to every one white citizen.

        Despite this, the majority did not have a say in their own city. The white citizens

        of Tuskegee held all the municipal elected offices at the time and feared that

        with the increase in black voter registration, white citizens would

       “lose control” of the managing the city and would end up being controlled

        by African American city officials.  In order to insure their sustained grip on

        municipal power and keep black citizens “in their (presumed inferior) place”,

        white citizens of Tuskegee, Alabama, lobbied the Alabama Legislature for

        assistance.

        Because Alabama was (and still is) a state where local governments have

       only those limited powers granted by the state, The Alabama legislature passed

       Local Law 140.[40] Local Law 140 changed the boundaries of the city of Tuskegee

       so that nearly all of the black voters living in Tuskegee were “redistricted” or

      “gerrymandered”[41] to   living outside of the city limits.

        Local Law 140 thus insured that the white citizens would maintain political

        control of the city.

 A.G.Gomillion, a professor at Tuskegee Institute, along with other African

 American citizens of Tuskegee, filed suit in the United States District Court of

 the Middle District of Alabama. These citizens maintained that the rights of the

 African American voters in Tuskegee had been violated by the change in city

boundaries under the Fourteenth Amendment to the United States Constitution. Gomillion and the other African Americans voters of Tuskegee

also mounted a city-wide selective buying campaign aimed at the white-owned

businesses in town, reasoning that if they could not vote in Tuskegee, they would not spend their money in Tuskegee. The United States District Court

dismissed the case, stating that the State of Alabama (and thereby the City of Tuskegee) had the right to draw boundaries of election districts in the state.

The African American citizens of Tuskegee appealed to the United States

Fifth Circuit Court of Appeals in New Orleans. This court upheld the Middle District Court decision, once again ruling that the State of Alabama had the right to draw the boundaries of election districts. Dr. Gomillion and the other

African American citizens appealed this decision to the United States Supreme Court in 1960. On November 14, 1960, The United States Supreme Court decided that Alabama Local Law 140 violated the Fifteenth Amendment of the

United States Constitution, which prohibits states (and thereby local governments) from “denying anyone their right to vote on account of race, color or previous condition of servitude.”[42] This was the opinion of the court issued by Justice Felix Frankfurter. Justice Charles E. Whittaker concurred, but in his opinion, he believed that the local laws should have been struck down under the Fourteenth Amendment’s “Equal Protection Clause.”[43]Again, a local ordinance found to be “legal” in the state where the local government was formed, was found to be “unconstitutional” under the United States Constitution. This proves, once again, that local government ordinances,

even those sanctioned by state laws, cannot violate or supersede the United States Constitution.

 

 

 

 

2. Federal Regulations

 

The Code of Federal Regulations is the “codification” of the administrative  laws that put federal regulations into action through the governmental process of rulemaking. This code is known as the “CFR” (Code of Federal Regulations).[44] When the Federal government makes rules, they are reviewed for a time period before becoming part of the CFR. The code directs how regulations within the federal government are carried out. The CFR is divided into fifty (50) titles which span from General Provisions to Wildlife and Fisheries.[45] All citizens have access to the CFR through the

Federal Register,[46]which is the official journal of federal government regulations of the United States. It The Federal Register is the listing of all government agency rules and public notices and are published every week day, excluding federal holidays,[47] and are codified by the CFR. The CFR limits the activities of local governments and is known as “United States Administrative Law.”[48] Administrative law includes statutes, common laws and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President. This office defines the powers and responsibilities granted to the various administrative agencies of the federal government. The Executive, Judicial and Legislative branches of government cannot always perform their constitutional responsibilities directly so federal agencies, boards and commissions are given specialized powers to oversee and monitor activities in specialized areas covered by administrative laws. Just as state and local laws cannot violate federal laws under the Supremacy Clause of the United States Constitution, state and local laws and ordinances are subordinate to federal administrative law, when there is a conflict between federal regulations and state and local laws.[49] This conflict can be a regular occurrence. For example, the United States Department of Transportation has regulations for workplace drug testing that apply to all U.S.DOT employees in every state and locality where they may work as federal employees. The time and type of testing may differ from that of any state or local government, and are not superseded by state laws or local ordinances. The rules of the Department of Transportation however, do not invalidate state laws or local ordinances for transportation employees working for state or local entities as they are not Federal government employees.[50]

 

Courts have ruled that agencies governed by codified administrative laws have the authority to interpret a federal regulation or statute about the extent of their own powers. The landmark case which established this principle was “Chevron USA, Inc. v.  National Resources Defense Council, Inc., 467 U.S. 837(1984)”.[51]  This decision originated from the lawsuit brought by Chevron, USA as an affected party in the National Resources Defense Council’s federal lawsuit against the Environmental Protection Agency (EPA) regarding the Agency’s interpretation of a change in the agency’s rule about “source of air pollutants” in buildings. In 1977, the EPA held that a source for air pollutants in planned buildings covered any significant changes or additions to a plant or factory. In 1981, EPA changed that definition to mean the plant or factory in its entirety. This meant that industries such as Chevron would not have to undergo new source review processes for an entire plant when increasing emissions in one part of the plant, if in the same plant, they simultaneously reduced emissions that would make the overall change in the total plant’s emissions equal to zero.[52] The National Resources Defense Council, (defending environmental rights for local communities), a non-profit environmental advocacy organization, challenged the EPA federal court and won, returning EPA to 1977 regulation interpretations. Since the Chevron Corporation was an affected party, they appealed the lower court’s decision before the United States Supreme Court. The Supreme Court had to decide:

 

       “What standard of review should be applied by a court to

         a government agency’s own reading of a statute that the

         same agency is charged to administer?”[53]

 

 

 

 

The United States Supreme Court established a two-step analysis

in this case:

1. Has Congress directly spoken to the precise question

at issue?

2. If the statute is silent or ambiguous on the specific issue, is the agency’s answer based on the “permissible” construction of the statute?[54]

 

             Using this process, The Supreme Court ruled that the “judiciary should

             defer to a federal agency’s interpretation of “ambiguous language” from

             congressional legislation relevant to the agency.”[55]

             This analysis became known as the “Chevron Deference” and has

             remained the standard used when decisions are made regarding specific

             effects of Administrative(federal) law upon state laws and local

             ordinances. Chevron prevailed and the later interpretation of the EPA

             regulations, in favor of plants and factories, like those owned by Chevron,

             stood.

             Again, even cases involving federal regulations (administrative laws)

             prevail over state laws and limits local ordinances, where a federal agency

             has jurisdiction.

             The following federal regulations often have stringent effects upon

             Local Governments. These include:

 

1. The Civil Rights Act of 1871

2. The Sherman Antitrust Act of 1890

3. The Clayton Antitrust Act of 1914

 

 

1. The Civil Rights Act of 1871

 

The Civil Rights Act of 1871 limits the powers of state and local government because it allows people to sue state and local governments for “deprivation of rights” guaranteed by the United States Constitution. This applies when a person “acting under color of state-level or local government law has deprived a person of rights created by the United States Constitution or federal statutes.  Local governments are often sued under the Civil Rights Act of 1871, Section 1, codified as a federal statute (regulation) 42 U.S.C. § 1983, in cases of police brutality and deprivation of the rights of the incarcerated. But local governments can be sued(successfully) under Section 1983 for other actions that they take, as well as actions they do not take in the course of what some local governments presume as “normal” business as usual. As stated earlier, local government powers cannot violate or supersede the United States Constitution, and Federal regulations, codes or federal laws. Section 1983 authorizes “monetary and injunctive relief against anyone who, acting under the authority of state law, deprived a person of their Constitutional rights.”[56] Under this section, persons can file suits in civil court for civil rights violations. Local governments cannot take any actions under “state color of law” that violate the constitutional rights of its citizens, even when local governments act in ways that they believe are within their “qualified immunity.” Qualified Immunity is a legal principle that grants government officials performing   discretionary (optional) functions, immunity from civil suits unless the plaintiff( person bringing the charge or charges)  shows that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”[57] Qualified Immunity is intended to “protect” officials of state and local governments who “make reasonable but mistaken judgements about open legal questions, extending to “all” [officials] but the plainly incompetent or those who knowingly violate the law.”[58] This immunity applies  only to government officials in civil actions. It does not protect the local government itself, from suits arising from the actions of the officials.[59] Local government officials must make sure that they do not take actions that violate § 1983 as they cannot use the “this is the way we’ve always done it” defense, or “that our “mode of operation” per our city charter or state law allows our actions, or that the local government operated in “good faith” defense. An example of this occurred in “Owen v. City of Independence, 445 U.S. 622(1980).”[60] This case involved the dismissal of the Chief of Police, Mr. Owen, by the City Manager of Independence, Missouri, Mr. Alberg. Mr. Owen was dismissed from his position as Chief of Police by the City Manager on or around April 10, 1972. The City Manager asked the Police Chief to resign and take another position in the Police Department. Mr. Owen refused and was released from employment by Mr. Alberg.  Alberg did not provide Owen with written notice of his dismissal, including the charges against him. Alberg used the City of Independence charter to justify his treatment of Owen. “§ 3.3(1) of the City’s charter, the City Manager has sole authority to “[a]ppoint, and when deemed necessary for the good of the service, lay off, suspend demote or remove all

directors or heads of administrative departments and all other administrative officers and employees of the city….”[61] Alberg had launched an investigation into “discrepancies” in the administration of the police department’s property room. In March of 1972, a handgun that had been reported as destroyed in Independence police property room records, was found to be in the possession of a felon in Kansas City, Missouri. The investigation, started by Alberg, but turned over to the City Attorney, showed that:

          “[t]here appears to be no evidence to substantiate any

            allegations of a criminal nature” and offered assurances

            that [s]teps have been initiated on an administrative level

            to correct these discrepancies.”[62]

Alberg made this assertion aa a public statement to the Mayor and the City Council on April 13,1972. Owen consulted with his attorney and then requested a “written notice of the charges against him and

a public hearing with a reasonable opportunity to respond”[63]to charges made against him. By letter, (to the City Manager) Owen stated:

 

“My Counsel…. have advised me that even though the City

Charter may give you authority to relieve me, they also say

you cannot do so without granting me my constitutional

rights of due process, which includes a written charge and

specifications, together with a right to a public hearing and to

be represented by counsel and to cross-examine those who

may appear against me.”[64]

 

Owen’s letter continued to point out that actions by the City Manager had violated civil rights guaranteed to Owen by the

United States Constitution, the Congress of the United States, as well as the Missouri Administrative Procedure Act. City Manager Alberg stated that he had not received the letter from Owen until

after Owen had already been fired.  At a city council meeting held on April, 17, 1972, a council member read into the meeting, his statement about an investigation of the police property room. At the end of his statement, he moved that the investigation report be released to the news media and turned over to the prosecutor to be presented to the grand jury and “that the City Manager take all direct and appropriate action against those persons involved in illegal, wrongful or gross ineffective activities brought out in the investigation reports.”[65] After discussion, the City Council

passed the motion, with no dissents and one person abstaining.

The City of Independence had just acted to deny Mr. Owen of his

civil rights. This case found its way to the District Court where Owen sought “declaratory and injunctive relief, including a hearing on his discharge, backpay from the date of discharge, and attorney’s fees.”[66] The District Court held a bench trial and ruled in favor of the respondents, Alberg and the City Council. Mr. Owen filed a separate action against Alberg, the City Manager and Roberts, the member of the City Council who read his report into the public record of the

Council meeting, in their individual capacities, seeking defamation damages in state court. Owen dropped the state suit against Alberg, but reached a financial settlement with former City Councilman, Roberts. The District Court then found that § 1983 did not create

“a cause of action against the city”, but that Owen could claim relief using the Fourteenth Amendment to the United States Constitution. The District Court then found that Owen’s “discharge did not deprive him of any constitutionally protected property interest, because as an untenured employee, he possessed neither a contractual nor a de facto right to continued employment as Chief of Police.”[67] The District Court also found that the “circumstances” of Owen’s dismissal did not “impose a stigma of illegal or immoral conduct on his professional reputation, and hence did not deprive him of any liberty interest.” The District Court believed that since the discharge notice given to Owen only stated that he was discharged under § 3.3(1) of the City Charter, that there was no stigma attached to his release. The District Court further ruled that the City of Independence was “entitled to assert and had in fact established a “qualified immunity”[68] against liability based on the good faith of the individual defendants”[69] who acted as “agents” on the city’s behalf.

The Court of Appeals partially reversed the District Court citing that while there was not any “property interest” in continued employment for Owen as police chief under Missouri law, alleged false public accusations had “blackened” petitioner’s name and reputation, thus depriving him of “liberty without due process of law.”[70] The Court of Appeals also stated that it was “immaterial” that no such negative charges were included in Owen’s official discharge notice. The fact remained that “the official actions of the City Council released charges against [petitioner] contemporaneous and, in the eyes of the public, connected (Owens) with that discharge.”[71]

The Court of Appeals ruled that the City of Independence was subject to Owen’s suit for reinstatement and back pay under an “implied right of action” arising directly from the Fourteenth Amendment to the Unites States Constitution. The Court saw no need to decide if Owen could recover backpay under § 1983 from the individual defendants in their official capacities, even though the award would be paid by the City of Independence. Instead, the Court awarded Owen damages instead of backpay, citing that had Owen been granted a hearing, he would have remained on the payroll and gotten paid at least until “a hearing is held and a proper determination on his retention is made.”[72] During the course of the court hearings, Owen reached the maximum retirement age and could not be reinstated to his position as Police Chief.  The Court of Appeals granted Owen a compensatory award that paid him the amount of money he would have received in salary until his retirement, had he been given his rights under the Fourteenth Amendment, offset by amounts actually earned and recovery Owen received in State court from former City Councilman Roberts. The respondents, including the City of Independence and individuals acting as agents of the city, petitioned for a review of the Court of Appeals decision by the United States Supreme Court.

The United States Supreme Court returned the case to the Court of Appeals for review, using the most recent decision involving qualified immunity, Monell v. Department of Social Services, 436 U.S. 658 (1978) (see the FSFAC website for more about Monell cases under “Our cases”- Section 1983). The Court of Appeals reaffirmed its original decision that the City had violated the civil rights of Owen under the Fourteenth Amendment, but held that all respondents, including the City of Independence were entitled to qualified immunity from liability. Under “Monell”:

     “a local government may not be sued under § 1983 for an injury

       inflicted solely by its employees or agents. Instead, it is when

       execution of a government’s policy or custom, whether made

       by its lawmakers or those whose edicts or acts may fairly be

       said to represent official policy, inflicts the injury that the

       government as an entity is responsible under § 1983.”[73]

 

The Court of Appeals, upon review, affirmed the judgement of the

District Court and denied Owen any relief against the city because

it stated that the City “could not have been aware of Owen’s right

to a hearing about his release. (This occurred because two cases decided by the United States Supreme Court, Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) and Perry v. Sindermann, 408 U.S. 593 (1972) decided this issue two months after the Owen case had already been discharged.) The Supreme Court of the United States reviewed this case and reversed the lower courts’ decisions. On April 16, 1980, the Supreme Court stated:

“…. The central aim of the Civil Rights Act (of 1871) was to provide

     protection to those persons wronged by the “[m]issue of power,

     possessed by virtue of state law and made possible only because  

     the wrongdoer is clothed with the authority of state law… By

     creating an express federal remedy, Congress sought to

    “enforce” provisions of the Fourteenth Amendment against those

     who carry a badge of authority of a state and represent it in some

     capacity, whether they act in accordance with their authority or

     misuse it.”[74]

 

The Supreme Court held that a “municipality has no immunity from liability under §1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability.”[75] State and Local governments cannot overrule rights assured to all citizens by the United States Constitution. The Civil Rights Act of 1871, codified in § 1983 is a federal regulation which

Enforces the Fourteenth Amendment to the United States Constitution.

 

2. The Sherman Antitrust Act of 1890

 

The Sherman Antitrust Act of 1890 is a United States antitrust law that governs “free competition” in commercial activities.   prohibitions provided by the Act include “the making of (a) anti-competitive agreements and (b) unilateral conduct that “monopolizes or attempts to monopolize the relevant market.”[76]

Under the Act, the Department of Justice is authorized to bring   legal actions to prohibit conduct in violation of the Act. It also authorizes private parties injured by violations of the Act to sue the offending party or parties for three (3) times the money amount in damages as the original violation cost them.  The basis for the Sherman Antitrust Act comes from the “Constitutional authority” held by Congress to regulate interstate commerce. The Sherman Antitrust Act became an important first step to regulate the activities of business corporations by promoting competition among businesses as well as prohibiting “price fixing, the operation of cartels, and prohibiting other collusive practices that unreasonably restrain trade.”[77]

 

3. The Clayton Antitrust Act of 1914

 

The Clayton Antitrust Act of 1914 served to “amend” the Sherman Act. In Clayton, further controls upon businesses were implemented. The Sherman Act had started “the largest wave of mergers in U.S. History, as businesses realized that instead of creating cartels, they could simply fuse into a single corporation and have all the benefits of market power that a cartel could bring.”[78]

Section 7 of Clayton allowed greater regulation of mergers, giving the Federal Trade Commission, also formed in 1914, and the Department of Justice the power to regulate all mergers and gave the federal government the discretion in approving or denying mergers.[79] Both the Sherman and Clayton Antitrust Acts were formed so that there would be few if any, practices by businesses or governments that reduce or stop the fair competition for goods and services in the market. These practices are called “anticompetitive practices.”[80] Local governments are also limited by these federal regulations and must ensure that all actions they take comply with all federal regulations.  As stated earlier, State governments and local governments cannot violate the United States Constitution, federal laws or federal regulations.

The purpose for all antitrust laws, both Federal and state, is to that “competitive practices” by businesses do not serve to harm or put at a disadvantage usually smaller businesses or consumers, seeking services from these businesses, by taking unfair advantage. Private businesses are not the only entities that sometimes use practices that prevent or reduce competition in a market. Local governments can and have also participated in anticompetitive behaviors and anticompetitive practices. Anticompetitive behaviors and anticompetitive practices can be used to kill any competition for essential services rendered to its citizens. This action effectively makes whatever essential services provided solely by that local government, “the only game in town.” These actions alone have the effect of reducing or eliminating altogether, competition for services as well as not allowing services to customers to improve through competition from other sources. Anticompetitive behaviors and practices also can inflate the cost of essential services to the customers(citizens) within the jurisdiction of local governments.

As stated by Jarod Bona, Antitrust Attorney:

    

      “Selling a product or service when there is little to no  

        competition is a great way to get rich… With less or no                  

        competition the amount supplied usually diminishes and the

        price goes up. The purchasers in this scenario lose and the

        supplier wins.”[81]

 

Some local governments have used this system to ensure that their

governments remained financed. Local governments can use this system to “leverage” their government to force a monopoly for the government in certain areas. A very obvious way is to use services provided by the local government. A perfect example of this type of monopoly exists within local governments when they “go into business” providing electrical, water and sewer, and garbage services to the citizens within their jurisdictions. They in fact, form a “monopoly” for services that citizens must use daily.    The Local Government then becomes the sole provider of these services and can often promote unfairly exploitive prices for services to increase municipal revenues.  An example of this behavior occurred when the Utilities Board of the City of Tuskegee and the franchise fee that it passed to its customers. The Utilities Board of the City of Tuskegee is the only provider of utility services, consisting of electrical, water and sewage, and garbage services to the citizens living within the city limits of the city of Tuskegee, Alabama. The Board also provides these services to other citizens, who live outside the city limits of Tuskegee, but live in Macon County, Alabama. The Utilities Board pays a five percent(5%) franchise fee directly to the City of Tuskegee on a monthly basis based on all of its receipts beginning in 2013.   The Utilities Board of the City of Tuskegee, also  included a five percent (5%) franchise fee with the monthly bill for all their utility services as a line item on the bills of all its customers, after the Utilities Board and the City of Tuskegee reached a settlement agreement in 2004.   These “fees” went directly to the City of Tuskegee. (The Utilities Board of the City of Tuskegee went into receivership on June 13, 2002,[82] due to a more than sixteen-million-dollar debt. No accounting has ever been given to the citizens about how the funds collected by the Utilities Board up to and including the point of receivership had been spent.) Utility customers of the Utilities Board of the City of Tuskegee had complained for years that the costs of utilities  in Tuskegee remained too expensive and the five percent(5%) franchise fee only made the bill higher.

 

In December 2015, Macon County Circuit Judge Ray Martin

“ruled the City of Tuskegee and the Utilities Board of the City of Tuskegee(UBT) illegally charged utility customers, both inside and outside of the municipality a five percent(5%) franchise fee.”[83]

 

Attorney for the utility customers, Dale Segrest stated:

 

     “There is a long history of questionable transactions

      and issues  with the utilities board, but we filed this

      lawsuit in 2013 when we realized that there were

      inappropriate monies being collected…While the law

      states that a 3 percent franchise fee can be enacted, it

      cannot charge the 5 percent that they were charging.

      Further, the city certainly is not entitled to money for areas

      outside its city limit and its police jurisdiction. In some cases,

      they(Utilities Board of the City of Tuskegee) were collecting

      funds from both.[84]

 

 

                   Judge Martin stated in his eleven- page decision:

                     

                       “As a license fee, it would be owed by the UBT and not

                         UBT customers. UBT has no authority to add a valid

                         license fee to the monthly statements of customers,

                         based on current use.”[85]

          

                 As a result of this decision, a partial summary judgement for the plaintiffs

                was rendered and a date to discuss “operative solutions was set.

                Segrest, attorney for the plaintiffs further stated:

                   “There are still many things left to be decided…One could also argue

                     that the rates should be adjusted. If the utilities board can afford to

                     pay 5 percent, the rates, which are among the highest in the state,

                     should be adjusted as well….They are not regulated by the Public

                     Service Commission, but a court can order the reduction if they find

                     the rates too high.”[86]

             

             When presented with the court’s ruling, then City of Tuskegee Mayor,

              Johnny Ford, seemingly dismissing the illegality pointed out by the court,

              promised to appeal the ruling stating:

                      “We’re convinced that we will prevail in court. And if not, we have

                         insurance. The mayor further explained, “the point of all this is you

                        operate the best you can to provide services.”[87]

             

             The  franchise fee being passed on to the  customers of

              The Utilities Board of the City of Tuskegee does not “provide services”.

              Customers were (and still are) “captives” of the Utilities Board of the City

              of Tuskegee for their electric, water and sewer, and garbage pick-up, with

              no competition in the area to give customers(who are also taxpayers in

              the City of Tuskegee) any other alternatives.  The Utilities Board of the City

              of Tuskegee has exclusive control over these services and as stated by

             Attorney Segrest:

 

           “They(The Utilities Board of the City of Tuskegee) are not

            regulated  by the Public Service Commission.” And by State of Alabama Law,

            The Public Service Commission, whose stated mission is “to ensure a

             regulatory  balance between regulated companies and consumers in order

            to provide consumers with safe, adequate and reliable services at rates

            that are equitable and economical”[88], were not allowed to regulate

            municipal utilities per Section 37-1-34 of the Code of Alabama.

 

           Without regulation by the State of Alabama through its Public Service

            Commission, anti -competitive practices through the Utilities Board of the

            City of Tuskegee continue to this date with little to no accountability to its

            Customers.  It would seem that providing accountability and reasonable

            rates would have been and should be a service to the customers and the

            citizens served by the Utilities Board of the City of Tuskegee. 

                   

                      

                                              

         

            

3. State Constitutions

 

             Each state in the United States of America has its own constitution.

             The state constitutions are often more detailed than the United States   

             Constitution because they outline all interactions between state

             governments and the people residing in a particular state. State

             constitutions are granted their powers through the United States

             Constitution through the “Guarantee Clause” in Article Four, Section

             Four which states:

                      “The United States shall guarantee to every state in this Union

                         a republican form of government….”[89]

            States also get their powers from the Tenth Amendment, which states:

                        “The powers not delegated to the United States by the

                          Constitution, nor prohibited by it to the states, are reserved

                          to the states, respectively, or to the people.”[90]

           

             States, through these provisions, adopted their own constitutions and

             fundamental state laws.  State constitutions then granted or denied powers

             to their subordinate government entities such as counties, parishes,

             cities, and towns. The State of Alabama is one state that “centralizes”

             powers in the state government and “divests” powers from its local

             government entities.[91]Almost all legislation that affects counties, cities and

             towns in Alabama have to be passed by the state legislature, with only a few

             counties having limited home rule. Just as state laws cannot overrule federal

             laws, local ordinances cannot overrule state or federal laws. The City of

             Birmingham, Alabama’s ordinance to increase the minimum wage within its

geographical limits provide an applicable example.

The State of Alabama has no state minimum wage, so the current federal

Minimum Wage of $7.25 per hour is the state minimum wage.[92] As of

2018, Alabama had the sixth highest poverty rate among states in the

United States.[93]While the “Fight for $15.00”to establish $15.00 as the

Minimum Wage $15.00 per hour, nationally started in 2012, The City of

Birmingham passed a local minimum wage ordinance in August 2015.

The Birmingham City Council voted to incrementally increase the city’s

minimum wage from $7.25 per hour to $8.50 per hour by July 2016

and then to $10.10 per hour by July 2017.[94] In almost “warp speed” the

Alabama Legislature passes a bill blocking cities and counties in all of

Alabama from setting their own minimum wages. Not to be totally

outdone, The City of Birmingham passed another ordinance to immediately

raise the city’s minimum wage to $10.10 per hour effective beginning

February 23, 20216. But the next day, Governor Robert Bentley signed

the state bill into law. The State law negated the City of Birmingham’s

ordinance and left the minimum wage in Birmingham at $7.25 per hour.

Though a federal lawsuit was filed, (not by the City of Birmingham but by

The Alabama NAACP for other affected individuals), it was at first dismissed

by The United States District Court. Upon appeal to the full Eleventh Circuit

Court of Appeals, the case, though compelling, (as described by the Appeals

Court) the full Eleventh Circuit sided with the district court against the

plaintiffs and the minimum wage in Birmingham remained $7.25 per hour.

The local ordinance in Birmingham, though it would have raised the income

of many in Birmingham, did not stand against the law of the State of Alabama,

even though the state law keeping local governments from enacting their own

Minimum Wage standards passed the day after the Birmingham ordinance.

Local ordinances cannot violate state laws.

 

 

4. State Mandates

 

State Mandates limit the powers of local governments within its

jurisdictions. A State Mandate is defined as:

       

             “a state law that requires a political subdivision to engage in

              an activity or provide a service or increase the level of its

              activities or services.”[95]

 

State Mandates include any state constitutional laws or executive orders

which require a local government to establish, expand, or modify its activities or structure in such a way as to affect “expenditures from local revenues.”[96](The United States government can also impose an enforceable duty upon states as well as local and tribal governments.)

The most recent of State mandates have been in response to the

Corona Virus pandemic. Some states imposed curfews as well as restrictions on certain social activities to reduce the spread of infections from the virus. Mandates in 2020 and 2021 included mandatory wearing of face masks in public places, limiting crowd sizes in public spaces and social distancing between individuals. These mandates assisted and enabled local governments to keep their communities safer in the midst of virus spread. States have also used the power of the mandate to restrict local governments. The State of Alabama (along with many other Southern states) has “preemptive mandates” or laws which prevent local government actions in the following areas:

1. Minimum Wage amounts (2016)
2. Fair Scheduling (applicable to work, 2016)
3. Project Labor Agreements (2016)
4. Paid Leave (2014)[97]

           

            These actions restrict and keep local governments from setting their own

            regulations which could help their local communities. Among the most

            recent of these mandates restrict local governments authority in removing

            Confederate monuments.[98] Symbols of the Confederate cause of

            preserving “a way of life” dependent upon chattel slavery of Africans and

            African Americans, are among the many monuments on public property to

            Confederate soldiers. States such as Alabama, Georgia, Kentucky,

            Mississippi, North Carolina, South Carolina, and Tennessee have state

            laws and mandates which interfere or prohibit their removal or fines

            if these monuments are removed (Alabama) or the withholding of state

            grants. (Tennessee)[99]

            Many of these same states also prohibit by state mandate, local

            ordinances that would raise the minimum wage or provide paid

            sick leave, thereby keeping basic living standards for all citizens, especially

            citizens of color, lower than in other parts of the country.[100]

            State mandates limit the powers of local governments and can either

            work for the good of the citizens of the municipalities affected or

            suppress the rights of local governments to improve the lives of the

            citizens living under their jurisdictions.

 

 

5. State Standards

 

State Standards are defined as: 

    “The general laws of each state(which) contain a number of

      statutes that set standards for, and govern aspects of, the

      operation and structure of a city, county village or town.”[101]

 

State standards have mandatory requirements which must be followed by

local governments. These standards can cover many areas primarily

controlled by local governments. Some of the standards that local governments must follow as directed by State Standards include water

quality and Common Core state standards for education.

 

Stemming from federal standards set by the Environmental Protection

Agency (EPA) under the Clean Water Act of 1972, states have set specific

standards for the quality of water in each state. In Alabama, the quality

of water in all cities and towns in the state is regulated by Chapter 335-6-10, “Water Quality Criteria,” from the Alabama Department of Environmental Management.[102] This section lists all requirements for water usage, all water quality criteria, waste treatment requirements and implementation of policies pertaining to water quality in every county and    municipality. These criteria must be followed so that each city or town as well as the State of Alabama remain in compliance with state and federal

standards. Failure to follow State standards could result in penalties for local governments.

 

Other State standards that apply in most states are academic standards every student from preschool through twelfth(12^th) grade. These standards are sometimes known as “Common Core State Standards Initiative.”[103] This initiative stemmed from a need to standardize what school aged students in grades kindergarten to twelfth grade so that every state would meet a standard as to what every student would know and be able to accomplish in each grade. The standards were developed by a group formed by the National Governors Association. The aim was to secure that a basic education would be uniform across the nation at the state level. Since 2010 forty-one (41) of the fifty (50) had been members of the Common Core State Standards Initiative while several other states either did not adopt the Standards on a state-wide level and others adopted parts of the Core Standards. Still other states wrote their own state-wide standards.

These standards meant that, depending on the location of the local school district, the school district had specific rules and curricula to teach in their schools. Not following the criteria in the given state could cause possible loss of local control and state funding for the particular local district. This is another example of how local governments are limited by state standards.

     

6. Local Ordinances

 

Local Ordinances set limitations on what their own jurisdictions can and cannot do in accordance with their particular state laws. Most local ordinances are created to keep communities healthy and safe. Because Local governments are closer to the citizens, local ordinances can be most responsive to the needs of the community.[104] Ordinances can foster equitable solutions to local problems but can also create local problems at times. An example of this can be shown through the life experience of the

late Arnold Abbott of Fort Lauderdale, Florida.[105] The City of Fort Lauderdale, Florida had an ordinance limiting the locations of the feeding stations sharing food with homeless persons across the city. Mr. Abbott was repeatedly cited, fined and arrested for feeding homeless persons on Fort Lauderdale’s beach every Wednesday under city ordinances that were made to stop the sharing of food (with the homeless). Mr. Abbott began feeding homeless persons on Fort Lauderdale Beach in 1991.[106] At that time, it was illegal to do so on the beach. Mr. Abbott and other volunteers with him had many confrontations with the City of Fort Lauderdale and the police department due to his every Wednesday feeding event. In 2014, the City of Fort Lauderdale passed another city ordinance placing even harsher restrictions on sharing food with homeless persons in public places. (Not counting food establishments such as restaurants) Food distributors were required to provide portable toilets where restrooms were not available, along with other restrictions.[107]

Mr. Abbott continued to feed the homeless and received his first citation while serving food in a park on November 2, 2014. The citation carried with it a five-hundred-dollar ($500) fine or up to sixty (60) days in jail. Mr. Abbott continued to feed homeless persons, receiving four (4) more citations, each with a five-hundred-dollar ($500) fine and sixty (60) days in jail.[108] Mr. Abbott who was ninety, (90), was arrested with two pastors for continuing to pass out food in direct violation of the ordinance. On December, 3, 2014, a Florida Circuit Court judge temporarily stopped the ordinance that stopped Mr. Abbott and other charitable organizations from feeding homeless persons in public.[109] The circuit court judge ordered the city and the charitable organizations (including Mr. Abbott’s organization, “Love Thy Neighbor”) to enter into mediation. The law had been in effect beginning October 31, 2014. Aside from bath room facilities, any groups providing that sought to continue to provide food, had to be “at least five hundred feet (500 ft.) away from residential properties, limit feeding sites for homeless persons to one site per block and prevent feeding sites from being within five hundred feet (500 ft.) of each other.”[110]

The fight to repeal this ordinance continued and in August 2018, the Eleventh Circuit U.S. Court of Appeals ruled that “feeding the homeless is expressive conduct protected by the First Amendment.”[111] This decision ended this ordinance. Nathan Pim, a member of “FOOD NOT BOMBS”, one of the plaintiffs in this case said:

     “We hope we are one step closer to something we’ve fought for over

       many years- simply being able to help people without being

       threatened with arrest by people who should be working with us.”[112]

 

The Fort Lauderdale ordinance, in this instance, limited the local city government’s ability to provide the most effective way to assist its homeless persons. It did not allow the city to provide effective service as it did not allow for meeting the needs of homeless persons “where they lived.”

 

7. Fiscal Resources

 

Every Local government has to have fiscal resources.

“Fiscal” is defined as:

   “Of or relating to taxation, public revenues or public debt, fiscal policy,   

     the city’s fiscal requirements.”[113]

These resources are the financials, “dollars and cents” that are needed to

provide services to the citizens served by local governments. Local Governments are funded by the residents and businesses that are located within their jurisdictions. When local governments spend money, they should do so in the best interest of all its citizens, who live in the county, city, or municipality being governed.  Local government leaders should not prefer one neighborhood or group above another. The needs of the entire community should always be priority.  Sources of local government income or revenue come from property taxes, sales taxes and other taxes.   According to The Tax Policy Center, taxes accounted for forty-two percent (42%) of local government income in 2017.[114] Every Local Government should have a yearly budget showing how all income received by that local government is allocated. Every Local Government should have a yearly audit to show how the income received is actually spent. Local governments exist to serve the citizens within their jurisdictions.

As such, Local governments are limited by the amount of income they collect. Collection amounts can depend directly upon increases or decreases in municipal or county populations. These changes can increase or decrease the type and number of services the Local government can provide to its citizens.  By state law in most states, Local governments must provide basic services for the health and safety of its citizens, so any

changes (either increase or decrease) in population can benefit or disadvantage a local government’s ability to function properly. Local governments should provide its citizens with full information concerning the sources of Local Government Income (comprehensive budget) and   full information on how all municipal funds were spent (comprehensive audit). Fiscal Resources in Local governments must be budgeted and used wisely for the survival and health of its citizens.

 

 

8. Fiscal Responsibility as a Resource and a Limitation

 

By state law, (in some states) part of ensuring that the fiscal resources of a

local government are used properly and for the benefit of the people that local government serves, it must show fiscal responsibility.  An example of this “proactive” limit on local governments exists in the State of Michigan.  Public Act 72 of 1990 is known as the “Local Government Fiscal Responsibility Act.” This is an act to:

“…. provide for review, management, planning and control

of the fiscal operation of units of local government, including

school districts; to provide criteria to be used in determining the

financial condition of a local government; to permit a declaration

of the existence of a local government financial emergency and to

prescribe the powers of and duties of the Governor, other state

boards, agencies, and officials, and officials and employees of units of

local governments; to provide for a review and appeals process; to

provide for the appointment and to prescribe the powers and duties of

an emergency financial manager; to require the development of financial

plans to regulate expenditures and investments by a local government in

a state of financial emergency; to set forth the conditions for termination

of a local government financial emergency; and to repeal certain acts and

parts of acts.”[115]

 

        The Local Government Fiscal Responsibility Act is a state statute in Michigan 

        which authorizes state officials “intervening” in units of local governments

        that experience serious financial problems or financial emergencies.[116] 

        The Act is triggered by “the failure by a unit of local government to pay

        creditors, to make timely pension contributions and payless paydays.”[117]

        The Act can also be triggered by “certain officials”, or residents of a unit of

        Local government may request a preliminary review under the Act, as may

        either the State Senate or the House of Representatives.”[118]

        Fiscal responsibility of Local governments is a direct indicator of the correct

        use of fiscal resources for the services which directly affect the safety and

        the quality of life of each citizen within the local government.

 

        While Michigan, (and about nineteen (19) other states as of 2013), have as

        part of the state law, intervention into the financial management of any local

        government experiencing fiscal distress, the State of Alabama has no such

        legislation, and no monitoring of the financial conditions of cities or local

        governments for the purpose of controlling or “mitigating” possible

        damages to the budgets of local governments. The Pew Trust’s research

        cited Alabama as one of the states that does not intervene:

 

            “Alabama with the largest county bankruptcy in U.S. History (as of 2011) …

             was chosen as an example of (a) state that historically does not assist

             local government.”[119]

 

On November 10,2011, as reported by National Public Radio (with references from the Birmingham News), Jefferson County, Alabama filed for municipal bankruptcy. In a 4 to 1 vote, the Jefferson County Commission voted to seek Chapter 9 bankruptcy protection for more than four (4) billion dollars in debts which spanned a decade.  The crippling debt was fueled by:

 

     “Bond issuance deals to upgrade its sewer system soared amid

       widespread corruption, bribery, and fraud charges that lead to

       twenty-two (22) convictions”.[120]

 

The Jefferson County government sought advice from its attorneys, but was not given any assistance from the State of Alabama.  The governor at the time,

Governor Robert Bentley and business leaders in Birmingham, did advise the county commission not to file for bankruptcy. Instead of having a pro-active plan in place to assist local governments in fiscal distress or a system to ensure accountability for the citizens served by local governments in Alabama, Governor Bentley stated:

        “I am extremely disappointed in the action that was taken by the 

             Commission today… We feel that everything was put into place 

             to save the county from bankruptcy and to help the ratepayers

             and keep this embarrassing situation from occurring in the

             State of Alabama. What we are going to do now is to try to control

             the damage to our state.”[121]

 

      At the time, Governor Bentley anticipated that the action by Jefferson County

      would drive up borrowing costs for local governments across the state.

      John Young, Jr., the court- appointed receiver of the Jefferson County Sewer

      System serving since 2010, called the bankruptcy, “a catastrophic mistake.”[122] 

          He further stated:

 

            “This decision by the Jefferson County Commission has devastating

              consequences for waste water customers, citizens of Jefferson County

              and the State as a whole.”[123]

   

   There were other experts who supported the Jefferson County Commission’s

   decision to file for Chapter 9 bankruptcy. Kenneth Klee, Professor of Law,

   Emeritus, UCLA School of Law, and bankruptcy law expert, founding member

   of Klee, Tuchin, Bogdanoff, and Stern LLP,[124]  specializing in corporate

    reorganization, insolvency, and bankruptcy law said:

             “The county had reached a point in its negotiations with the creditors

              where it believed that good faith negotiations had come to an impasse

              and no further negotiations to reach a central result were possible, and

              the time had come to take a step to go into Chapter 9 to resolve

              differences.”[125]

He further stated:

              “The county had no options. It had to look out for the best interests of its

                citizens and a consensual was not possible.”

 

Robert Brooks, a professor of Financial Management at the University of Alabama, Culverhouse School of Business, agreed that bankruptcy was the best

Choice for Jefferson County. He stated:

             “One of the problems here is that the creditors are some of these

               large investment banks that appear culpable in Jefferson County’s

               financial woes. No longer is Jefferson looking across the table

               from people they rightfully should not trust.”[126]

 

In the end, though difficult, the Jefferson County local government was able to end bankruptcy on June 4, 2013, without basic help from the State of Alabama.

 

 

One small local government could have used assistance or intervention from the

 in its local financial crisis when it defaulted on its bond in 2002. This local government was (and still is) The Utilities Board of the City of Tuskegee. The Utilities Board of the City of Tuskegee received a declaratory judgement on June 13, 2002, effective on June 17, 2002, stating that “the Utilities Board of the City of Tuskegee was in default.”[127]

The customers of the Utilities Board of the City of Tuskegee, were at that time required to pay their utility bills by the tenth(10^th) of each month or face loss of services. These services consisted of charges for electricity, water, and wastewater(sewer) services. Most citizens in Tuskegee and Macon County, from the time of the inception of the Utilities Board of the City of Tuskegee to 2002, paid their monthly utility charges in a timely manner. According to Macon County Circuit Court records, the Utilities Board of the City of Tuskegee, defaulted on the “refunding” of Series 1997 bonds in the amount of    sixteen million six hundred seventy thousand dollars ($16,670,000.00)[128] to Regions Bank. Not only was the Utilities Board of the City of Tuskegee in default to Regions Bank, it was also in breach of contract with the Alabama Municipal Electric Authority in the amount of three million eighty-six thousand four hundred eighty- four dollars ($3,086,484.00) for “non-payment” for electric power.”[129]  At this point, The Utilities Board of the City of Tuskegee was in default nearly twenty million dollars, due to “non-payment” of its bills. This put the Utilities Board of the City of Tuskegee in jeopardy of not being able to provide essential services to its citizens.

Instead of “pre-emptive” intervention by the State of Alabama (which may have halted the need for default or receivership), per state law, allowed the Utilities Board of the City of Tuskegee go into receivership. Under Alabama law, (Code of Alabama 6-6-620) a receiver was appointed to take over  all Board functions and to ensure that the “Indentured Trustee” (Regions Bank, Montgomery, Alabama) “received relief.”[130] The Court appointed a receiver, Mark S. Ennis. In his first report   to the Macon County Circuit Court under findings, Mr. Ennis stated:

        

    “Financially, the Systems are in poor condition. Rates and charges have not

      been implemented that produces revenues sufficient to upgrade and maintain

      the systems, to pay all operating expenses and to provide satisfactory levels of

      working capital and cash reserves.”[131]

 

Under “Actions” in this same report, Mr. Ennis further stated his actions:

          

         “1. By November 1, 2002, implement the following rate increases for the

               purpose of (1) funding the payment to the Alabama Municipal Electric

               Authority (AMEA) for unpaid wholesale power bills, (2) paying vendors

               for materials, equipment and services provided, (3) funding engineering

               and consulting services to further evaluate the operations of the systems,

              (4) increasing working capital and (5) building cash reserves.”[132]

 

Mr. Ennis, in his role as receiver, decided that the best way to accomplish the primary purpose of paying the debts owed was to raise the rates on the customers of the Utilities Board of the City of Tuskegee, without conducting an initial audit to find out (1) the amounts and types of funds being collected and (2) how the collected funds were being spent before his appointment as receiver. Mr. Ennis, himself pointed out in his report to the Macon County Circuit Court:

         

           “From an accounting perspective, The Board has failed to maintain

            proper books and records regarding the operation of the Systems and all

            receipts and disbursements with respect thereto. Proper accounting

            controls are lacking and the accounting practices that have been employed

            are so inadequate that the accuracy of the financial records is

            questionable. Essentially, the accounting function has not been performed

            since the close of fiscal year 1999.”

 

 

Mr. Ennis further states:

             

          “Unsurprisingly, given the condition of the accounting records, annual audits

            were not performed for fiscal years 2000 and 2001.”[133]

 

Even with this information, Mr. Ennis took no action to find out where monies collected from the monthly bills paid by customers of the Utilities Board of the City of Tuskegee was being spent nor did he take any actions to hold any employees or management of the Utilities Board accountable for the lack of accounting records. When the receivership was ordered by the Macon County Circuit Court, it gave the Receiver:

    

          “9. Pending further order, the Receiver is hereby authorized as a fiduciary to

                direct, control and manage all the business and affairs of the Systems,

                of whatever kind or character, to the exclusion of the Board.”[134]

 

The Circuit Court of Macon County granted Mr. Ennis the powers to manage and operate the Utilities Board of the City of Tuskegee, including all fiscal matters. But before the brunt of the fiscal damage was placed on the backs of the citizens as customers of the Utilities Board, no audit was conducted. Not surprisingly, the “compensation” for the services of the Receiver was set by the court as a “regular Operating Expense of the Systems” in the amount of “ninety-five thousand dollars annually.”[135]($95,000.00 per year) Since the Systems, according to Mr. Ennis, were in such poor shape, raising rates on the customers seemed to be the only way to secure the yearly salary of the Receiver, all without an initial audit of the monies brought in by the Systems. The Receiver as well as the receivership itself had only one purpose, paying the creditors (i.e., Regions Bank and others) of the Utilities Board of the City of Tuskegee, not accountability to the customers who paid their utility bills month after month.  As stated by one local citizen and utilities customer, Tommie L. Johnson, in the December 5, 2002 edition of the Tuskegee News:

 

     “… it was former President Harry S. Truman who had a sign on his desk in the

      Oval Office that stated: “The Buck Stops Here.” Our local politicians, some past

      and present were responsible for where “our bucks stopped” on the way to

      our current Utility Board receivership in June 2002.”[136]

 

The Receiver, by order of the Macon County Circuit Court, was required to:

 

        “(c) On a monthly basis, file with the Court and make available to the Board

              and the City of Tuskegee, a revenue and expense statement for the

              Systems’ operations.

 

          (d) Nothing herein precludes the Receiver from filing additional reports

                or from otherwise advising the Court and parties of matters that in the

                Receiver’s opinion should be noted.”[137]

 

The Receiver, in his first report to the Court, proposed rate increases upon the customers in the following amounts:

 

1. “By November 1,2002, implement the following rate increases for the

purposes of (1) funding the payment to the Alabama Municipal Electric Authority (AMEA) for unpaid wholesale power bills, (2) paying

vendors for materials, equipment, and services provided, (3) funding

engineering and consulting services to evaluate the operations of the systems, (4) increasing working capital and (5) building cash reserves.

1. Increase electric rates by ten (10%) percent.
2. Increase water rates by thirty-five (35%) percent.
3. Increase sewer rates by forty (40%) percent.

                      These rate increases are in addition to the rate increases that were

                      implemented prior to the appointment of the Receiver.”

 

These actions by a receiver illustrate the very real difference between what can happen when a receiver is court appointed rather than having the municipality seek relief in a Chapter 9 Title 11 Municipal Bankruptcy.

Jefferson County sought a bankruptcy available to municipal governments under Chapter 9, Title 11 of the United States Bankruptcy Code. The whole purpose of this chapter is “assisting them(municipalities) in the restructuring of debt.”[138]

In this manner, local governments can “restructure” debt to make it easier to repay and to make consequences less difficult for the customers of the utility systems which defaulted. A very important benefit of pursuing municipal bankruptcy is that an accounting of how funds may have been used is given and the municipality has to provide a list of debtors. Also under Chapter 9, a municipality can be granted an “automatic stay” on collections in order to re-organize the debt. The automatic stay halts most lawsuits, repossessions, foreclosures, evictions, garnishment attachments, utility shut-offs and debt collection actions.[139] Had the Utilities Board of the City of Tuskegee sought the protection of a Chapter 9 Bankruptcy,  lawsuits brought against the Utilities board brought by Regions Bank and others(AMEA) may have been stopped and debts may have been restructured to keep more reasonable utility rates for utility customers and citizens of the City of Tuskegee and Macon County, as well as allow the Utilities Board to restructure all of its debt, not just focusing on debt owed to two main creditors.  Chapter 9 bankruptcy filing is a complicated but sound legal procedure that may have accomplished this. In order to be considered for such protection:

1. Municipal Debtors must seek the protections afforded by Chapter 9 Bankruptcy voluntarily.
2. Municipal Debtors must file a list of all creditors. This list is usually submitted with the filing.[140]

 

To be eligible to file under Chapter 9, the following requirements must also be met:

1.  The Municipality must be authorized under state law, to be a debtor.
2.  The Municipality must be insolvent as defined in “USC paragraph   101(32)(C)
3.   The Municipality must desire to effect a plan to adjust its debts and
4.   The Municipality must either:

 

1. obtain the agreement of creditors holding at least a majority in amount of the claims of each that the debtor intends to impair under a plan in a case of Chapter 9;
2. negotiate in good faith with creditors and fail to obtain the agreement of creditors holding at least a majority in amount of the claims of each class that are “impaired” under the plan;
3. be unable to negotiate with creditors because it is not practical or;
4. reasonably believe that a creditor may attempt to obtain a preference.[141]

 

The Utilities Board of the City of Tuskegee could not exist had it not been authorized by the City of Tuskegee under Article 9 Chapter 47 of the Alabama Code. Since this was (and still is) the prevailing law, this meant that instead of allowing the creditors of the Utilities Board of the City of Tuskegee set the terms of how they would be repaid and making the citizens and customers of the Utilities Board bear the brunt of repaying the $16,670,00 bond.(sixteen million six hundred seventy thousand dollars)[142]  This bond was issued (per the wording in the bond) for “reasonable and necessary expenses of efficiently and economically operating the(Board’s electric distribution systems, water works and distribution systems and sanitary sewer system, respectively), including without limitation, the costs of electricity and water purchased or produced.”[143] In addition to the Trust Indenture( bond, loan) from Regions Bank, the Utilities Board of the City of Tuskegee also defaulted to the Alabama Municipal Electric Authority.(AMEA) By March 19, 2002, the Utilities Board of the City of Tuskegee owed three million four hundred eighty four thousand  dollars( $3,086,484.00) for electricity”, sold and delivered” to the Utilities Board from  August 1, 2001 through April 5, 2002.[144]  All these funds continued to be owed by the Utilities Board while the vast majority of the utility customers in Tuskegee and Macon County, continued to pay their monthly utility bills.  The Utilities Board of the City of Tuskegee exists as a special purpose government authorized by the State of Alabama as a public corporation. Special Purpose Governments are special districts, defined as:

 

           “Special Districts, as defined by the United States census, are local entities

             authorized by state laws to provide only one or a limited number of

             designated functions, and with sufficient administrative and fiscal

             autonomy to qualify as separate governments; know by a variety of titles,

             including districts, authorities, boards, and commissions.”[145]

The Utilities Board of the City of Tuskegee fit (and continues to fit) the definition of U.S. local government in the State of Alabama per the Alabama Code 11-81-3, which gives general authorization to a government body of any county, city, or town municipal authority to file under Chapter 9 bankruptcy. This fact, as stated earlier, would have given an automatic “stay” to all the debts owed by the Utilities Board, once the proper filing of municipal bankruptcy had commenced and would have allowed the Board itself to appoint its own receiver,[146] who could have given due consideration to all debts owed rather than being under a Circuit Court receivership which gave preference to two large creditors, Regions Bank and Alabama Municipal Electric Authority, without disclosure of all debt owed. The first responsibility of the Utilities Board of the City of Tuskegee is to its customers, the majority of which are the citizens in Tuskegee and Macon County, Alabama. Filing under Chapter 9 Municipal Bankruptcy would have included a true and accurate statement or list of all creditors owed. Instead, a receiver was appointed through the Macon County Circuit Court that benefited the full repayment of indebtedness to Regions Bank and Alabama Municipal Electric Authority, first and foremost, and no description of any other debt owed to other creditors or description of how collected utility payments from the customers was being dispersed.

 

Local Government officials must be accountable to the citizens they serve to ensure the sustained success of the communities they have been sworn to serve. To do this, leaders must be guardians of the best interests of all its citizens. They must make sure that all citizens are fully informed about the state of local governments’ financial health and the many decisions made to ensure that local governments maintain services to its citizens. Fiscal Responsibility is a needed limitation on all local governments.    

 

 

 

1. Personnel Resources        

 

Quite simply, personnel resources are the people who do the work, get the jobs of local government done. Every local government must have the set of people, who are qualified in every position to get the work of the city, municipality or county completed for the good of each citizen in the jurisdiction of the local government. Personnel or human resources have too long been regarded as just the Human or Personnel Resources manager. This manager is in charge of insurance benefits, instituting approved pay raises and any personnel paperwork, not the “person” who is material who is material to maintaining qualified “personnel”. Personnel resources are the workforce of the local government. The work force must be trained properly and placed in the appropriate positions where they perform the best for the needs of the local government. Employees can be local governments greatest assets. They often have more direct contact with the citizens and can alert their supervisors and local government officials to the service needs of the citizens in particular areas.[147] Personnel can only be a resource when placed in the proper positions.

 

Personnel resources can be the most important limiting factor for the success or failure of any local government. Citizens depend elected officials in leadership positions to keep the community informed about the true functions and progress of all city departments and projects. These officials must trust in the ability of the line employees to do the jobs. There must always be good communication between all employees, managers and elected officials in local government. It is never acceptable for a mayor, county commission chairperson, members of a city council or board to say that “he or she had no knowledge” of a specific condition in local government that affects its employees. Effects on employees can have adverse effects on the citizens in the community served by the local government. Research has shown that employees can perform at a much higher rate of productivity when their supervisors and managers paid more attention to them.[148] Lack of attention to the needs of the employees (Personnel Resources) can cripple needed services.

In May 2020, the Sanitation Workers of the City of Tuskegee, Alabama protested in front of the city hall. The workers stated that they were not receiving “adequate central pay as sanitation workers in other areas.” The Sanitation workers were also concerned about having to pick up trash and not having adequate PPE to protect themselves from the Covid-19 virus.[149]

The Mayor, as well as the City Manager work in City Hall in Tuskegee stated that neither has had “any communication” about the concerns of the Sanitation employees.  The Mayor (Tony Haygood) says that “he and City management are open to meet with them about their concerns.”[150]

As a result of the protest, garbage was not picked up on May 26, 2020. There were nine (9) garbage truck workers involved. This was a considerable limitation to the proper functions of city services that may have been cured by the Mayor and the City Manager paying needed attention to city’s most important resource, its workers.

Most Personnel Resources Managers advocate that Line Supervisors as well as higher Management Officials (Mayors, City Managers) invest time getting to know their employees or team members, professionally and to some degree personally. When employees feel highly valued, the value placed in them often reflects in their willingness to work and the quality of their work. [151]    Not taking the time to initiate contact with this most valuable resource will needlessly limit the primary goal of local government, service to its citizens.

The worst mistake that can limit local governments is the failure of any local government to invest in the development of their Personnel Resources. This error can begin as early as the hiring process. There are several ways that Local governments hire new employees. Below are some of the most common methods of recruitment:

 

1. Sourcing

Sourcing includes internal and external advertising through job portals and social media. Local governments can also get referrals from professional and specialty organizations whose members may meet specific qualifications.[152]

2. Social Network or Employee Referrals

Social network referrals can be “mass emailing of job announcements to those within current employees’ social network.[153]

3. Current Employee Referrals

Current employee referrals are candidates for positions who are recommended by existing employees of the local government.[154]Existing employees can sometimes improve the quality of the candidate pool for a specific job being filled. This method can result in an “improved applicant pool” because responsible current employees have already “screened” the prospective new employee to some degree. The current employee is putting his or her reputation on the line, which should increase the likelihood of the local government employing a more suitable candidate.

 

When potential candidates for a position are assembled, they must be evaluated using the set standards and the set job description of the position to be filled. Local Governments must follow all applicable Federal, state, and local laws when hiring employees. It is also vital that Local Governments use hiring practices that foster diversity and that do not promote nepotism, patronage and cronyism.

 

1. Diversity

Local Governments should recognize the need for diversity, not only in what employees look like, but also in the areas and economic backgrounds personnel may have. Local Governments cannot progress for all the citizens they serve if all citizens are not represented in their government workforces. “The challenge is to avoid recruiting staff who are in the likeness of existing employees.”[155] A more diverse municipal workforce can add stability to the functioning of the local government.

                

              Three factors that can limit or impede the successful use of personnel

              resources are Nepotism, Patronage and Cronyism.

       

2. Nepotism

Nepotism is the practice or inclination to favor a group or person who is a relative when giving promotions, jobs, raises and other benefits to employees.[156] Family ties should not be the sole reason a personnel decision is made. All employees should meet all the stated qualifications of the position they seek. 

Many small Local governments leave themselves open to corruption when strict enforcement of hiring practices that do not include “family ties” as an “unofficial” job qualification.

 

3. Patronage

Another practice which can limit the effectiveness of personnel resources in Local governments is the patronage system. When jobs and contracts are given in return for prior favors, the most qualified persons or companies to provide services are often not hired to vital job positions or to complete valuable projects. Patronage systems bypass the formal rules and hiring practices and can cost Local governments more in money and resources over time.[157] Patronage is often used by local government office holders to gain support for local legislation as well as votes in an election, but could also put a local government at a legal disadvantage.

 

4. Cronyism

Cronyism is one of the worst limitations that a Local government often places upon itself when it comes to Personnel resources. “Cronyism” is the practice of partiality in awarding jobs and other advantages to friends or trusted colleagues, especially in politics, between politicians and supportive organizations.”[158] All Local governments have an obligation to the citizens they serve to spend taxpayer dollars in the most efficient manner to benefit all of its citizens, not just “the few” who have political or monetary influence. Cronyism is a proponent of Local government corruption. Socioeconomic conditions as well as the size of the population served by a Local government can be factors which lead to corrupt practices.[159] Smaller towns and cities can be more likely to have corruption (cronyism and nepotism) with local government because in small towns personal relationships and opinions constitute a major role in political decisions. Smaller municipalities often do not use the resources they have to attract the most experienced and qualified individuals to fill critical personnel positions. Personnel positions that are filled by cronyism convey the employee’s allegiance and responsibility to the person or persons who got the employee the position, rather than to the local government which requires that employee’s skill.

 

Local governments can also be limited in Personnel resources because they quite often do not attract the best qualified individuals due to the inability to compensate them. Citizens served by smaller Local governments also tend to elect and re-elect the same “inbred” set of elected officials so there is either no change or not much change in basic accountability or methods of accomplishing needed outcomes for the community. This can greatly limit the progress of the entire local government. 

The” established” political culture” in a Local government can place severe limitations on that government’s ability to succeed for all its citizens. They have a certain way of doing things using certain practices that do not change over time. This can severely limit upgrading personnel resources and sometimes creates and encourages low accountability to citizens as well as corruption. 

The political culture is most often reflective of the condition of the local economy. Economic dependance on certain industries can often lead to less money available to fund governments as well as unstable governments.[160] Dependent economies lead to increased levels of poverty in specific communities and few, if any, opportunities for some citizens to escape poverty at all. The City of Tuskegee, Alabama is a small local government which is dependent, for the most part, on industry and development outside of its municipal boarders.  The Macon County Development Authority, which is responsible for fostering and developing industry in Tuskegee as well as the rest of Macon County, lists existing industries, (in its “Industry Spotlight”) located in Tuskegee to be two (2) out of the sixty-five (65) industries listed as of the website list on March 6,2022.[161]

 

In an effort to foster economic development with a direct impact for the City of Tuskegee, the City of Tuskegee and the Macon County Economic Development Authority sought to develop Exit 38 on Interstate 85 North to produce “significant economic impact” for the City of Tuskegee.  Construction was expected to begin by September 2017. [162]  This was based on a report given to the Tuskegee Area Chamber of Commerce from Joe Turnham, Director of the Macon County Economic Development Authority. The project was estimated to cost twenty million dollars to complete. Reporting by WSFA news on September 21, 2017 showed that the timeline for the start of construction moved to the beginning of 2018.[163] In the WSFA new report Director of the Macon County Economic Development Authority, Joe Turnham, stated: “We had some issues on some of the wetlands and other issues that delayed that process by a number of months but we’re confident now the money is in the bank, the contracts have been signed and we’re confident that things are moving forward as they should.”

 

The Exit 38 Travel Center project only cleared its first bar to begin construction in May 2019. It was to begin construction on May 15, 2019, with a projected completion date of March 2020.[164] At the time, many entities were planned for Exit 38. They included a hotel, gas station, several restaurants and a Greyhound Bus station. As of August 6, 2019, as reported by the Alabama News Network, the completion date for the development was Fall 2020.[165]  By  October 2021, it became clear that Director Turnham’s assertion that “things are moving forward as they should” was not as accurate as first believed. There was a work stoppage at Exit 38 because additional funding was needed. On October 14, 2021, a special called meeting was held at the Tuskegee Municipal Complex. “Members of the Utilities Board of Tuskegee, City of Tuskegee and the UBT Cooperative District each held meetings to provide assistance to help ‘Skegee Travel Center reach completion.”[166] The amount in question to “restart” the work at Exit 38 was another two hundred fifty thousand dollars. ($250, 000.00) The Tuskegee City Council “debated a $250,000.00 injection into the Center to help complete the work…that had been stalled in recent weeks.” Carl Young, member of the UBT Cooperative District wrote a letter which was read into the minutes of the public City Council Meeting on October 14, 2021 which “highlighted  several points that he would like to see disclosures provided on before the city provides $250,000.00 to the travel center.”[167] (The Tuskegee News Article did not state what the specific concerns were, that were read into the minutes on October 14, 2021 and  as of March 9, 2022, a search of the City Council Minutes of the City of Tuskegee on the city’s website shows: “Search Results: Your search did not match any documents”.)     The most information about this meeting came from the public announcement advertised per state law in the local newspaper one week earlier, stating that the joint meeting for The City Council of the City of Tuskegee, The Board of Directors of the Utilities Board of the City of Tuskegee and the  Board of Directors of the Tuskegee-UBT Cooperative District will “hold a joint meeting, which will constitute a public meeting, to consider, discuss, vote open, and take other action authorizing and approving the amendment to the Project Agreement entered into between the Public Entities and Skegee Travel Center, LLC ( “STC”) and Skegee Travel Center Holdings, LLC (“STCH” and together with STC, the “Developer”) dated as of April 15, 2019 (the “Agreement”). Such Amendment to Project Agreement (the “Amendment”) shall authorize the use and grant of public funds of the City to incentivize a travel center development….”[168] The intent of the meeting was to go ahead and authorize the payment of another $250, 000.00 to the “developer” of the Skegee Travel Center to “promote and continue economic and industrial development within the City and otherwise promote the health, welfare and prosperity of the citizens of the City.”[169]

The “welfare and prosperity of the citizens of the City” did not include any line-item accounting of how the funds for the building of the Skegee Travel Center had already been spent. District Two Councilman Johnny Ford spoke in favor of the “fiscal assistance” to the project. The Tuskegee News article stated that Councilman Ford “provided evidence to support his view by highlighting the point of the center will serve as an important economic development tool for the community.”  Joe Turnham updated the Council on the “oversight the development has with bodies such as the USDA, U.S. Treasury, banks and many others having watchful eyes on the project.”[170] The $250,000.00 was an additional payment to the “developer”, Jeff Potter who is the Skegee Travel Center developer and owner.  Although District One Councilwoman, Norma Jackson did inquire as to how the project had gotten to a state of a pause in work and how could the City of Tuskegee know that the project would not be at another standstill “a month or so down the line after (the City) committing $250,000.00 to the project, Turnham, who “has worked closely with the Skegee Travel Center developer and owner, Jeff Potter”, had only an answer to part of the question.

He responded to the City Council: “the project simply ran out of money.” [171] Turnham cited a factor such as “a sharp increase in the cost of materials since the project began in 2019. Material cost are estimated to have risen 30 to 50 percent since that time.”[172] Turnham continued to emphasize “the safeguards of the massive oversight the project has and the fact that if Potter is unable to open the business the bank will.”[173] There was also a discussion about how the City would be repaid the money.  The article in The Tuskegee News stated:

 

        “Still keeping the numbers in mind, before committing a quarter of a million

          dollars to the project, council learned how the repayment would work.

          Based on tax revenue generated by the business council would receive 38.5

          percent while UBT would receive 61.5 percent until invested funds were

          repaid. UBT committed $400,000 to the project. It is estimated off of early

          projects the city and UBT investments will be repaid in a period of around 22

          months.” (Note: This statement seems to be referring to taxes on “projected

          income” assumed to be produced by the successful completion and

          operation of the Skegee Travel Center.)

      

But the second part of the question was never answered about the travel center possibly needing another “injection” of money in “a month or so down the line.”

Nor was there any public accounting of how the funds possibly already invested by Citizens of the City of Tuskegee through its City Council and other city government entities had already been spent.  The City Council of the City of Tuskegee are also Personnel Resources who must also be accountable to the citizens they serve. A full accounting of all citizens’ tax resources spent on the Skegee Travel Center should have been made available at this public meeting so that the most important stakeholders know specifically how their tax dollars are spent.  Only in this way can all citizens realize the benefits provided by Local Governments and have true faith in the actions of their Local Governments. This is the responsibility of all Local Government Personnel Resources.

 

 

10. Public Opinion

            

            Among the most important limits on Local Governments is that of

public opinion, “The Will of the People.” Public Opinion is defined as:

 

   “The collective opinion of the people of a society or state on an issue or

     problem.”[174]

 

The “term” public opinion was thought to have been derived from the French “opinion publique”, first used by Michel de Montaigne in 1588 in his second edition of Essays (Chapter XXII).  There were many uses of this phrase as well as “general opinion” by William Temple in his 1672 work, “On the Original and Nature of Government”. John Locke used the phrase “law of opinion” in his work, “An Essay Concerning Human Understanding.”[175]   History shows that the application and use of public opinion occurred much earlier. Definitions of Public opinion are thought of as a purely “European” concept. History shows us that Public Opinion, as a concept, formed much earlier in some “non-European” cultures. From the early 1400’s through the 1700’s, the Haudenosaunee Confederacy had formed a true democratic form of government based on public opinion of its people. (The “Europeanized” name “Iroquois” was derived from the French during the colonial era in North America.)[176] The People of the Five Nations, also called the League of Five Nations, were governed by “sachems” (chiefs), fifty (50) in number, representing each of the clans of each of the Nations.  In 1722, the original League of Five Nations became the League of Six Nations, with the addition of the Tuscarora to the original members, the Mohawk, the Oneida, the Onondaga, the Cayuga, and the Seneca. The foundations of the League occurred sometimes between the year 1142 and the year 1450. According to oral traditions, it was formed by two men and one woman. The role of women as “clan mothers” was the bringing forth of issues to the assembly for the decisions of the Five (and then Six) Nations.  These women had to consider the “public opinion” of the clan members for any changes within the Nations’ structure. The history of these women was undervalued and underreported by male Europeans, who had contact with and collected “selective” history regarding Native Americans, who they saw as “primitive and savage.”[177]

European male historians largely interviewed male Nation members, discounting female oral history.  Because of the “clan mothers”, it is said that the League created “a highly egalitarian society.”[178] In 1749, one British colonial stated:

      “…. The Iroquois had such absolute notions of Liberty that they allow

       no Kind of Superiority of one over another, and banish all Servitude

       from their territories.”[179]

The Council of Fifty (50) ruled on all disputes seeking consensus in their decisions. This “consensus” represented the “public opinion” of the Haudenosaunee People, the People of the Six Nations known as the “Iroquois.”

 

The notion of Public Opinion firmly took hold in European countries through urbanization and numerous political and social forces.

William Temple disagreed with other English thinkers of the sixteen and seventeen hundreds (1600’s and 1700’s) who believed that “the basis of government lay in a social contract” and “thought that government was merely allowed to exist due to the favor of public opinion.”[180]

 

 

Temple observed:

“…. When vast numbers of men submit their lives and fortunes absolutely to the will of one, it must be force of custom or opinion which subjects power to authority.”[181]

 

The real emergence of European or western “public opinion” occurred when more people of all economic classes began to learn to read. At the time of the Protestant Reformation, the Bible was the only book that most members of the general public were first able to read. During the Seventeenth century, other pamphlets and “non-religious” novels became popular. Reading societies and clubs became widespread. At the turn of the Seventeenth century, the circulating (or lending) libraries opened in London. They increased the access to information to members of the public who could read, but did not have their own books. By the middle of the Seventeenth century, public opinion was fostered by coffee-houses in Europe.[182]( These houses were frequented by the upper classes and tradesmen. They were all men.)  King Charles II in England tried to suppress

The coffee-houses, maintaining that they were:

 “…places where the disaffected met and spread scandalous reports concerning the conduct of His Majesty and His Ministers….”

Coffee-houses were places where men of differing interests congregated to stay informed about news or business dealings of the day. By 1739, there were more than five hundred (500) coffee-houses in London. Each attracted men interested in various occupations, attitudes and varying social classes. (Notably, none of these coffee-houses included any women and very few men of color.)   There were political interests, such as the “Whigs and the Tories.” There were merchants, lawyers, and “stockjobbers.”[183] There were also the “Wits”, famous authors and playwrights of the day. One French visitor to a London coffee-house,

Antoine Francois Prevost stated:

     Coffeehouses, “where you have the right to read all the papers for and

     against the government, were the seats of English Liberty.”[184]

 

Coffee-houses were eventually replaced by Gentlemen’s Clubs of the Eighteenth-century London and continued to have great influence into the late Nineteenth century. It was at this point that government began to recognize the importance of managing and directing public opinion, as these clubs gave greater access to information to more people. Gentlemen’s clubs reached true influential power during the late Nineteenth century. Many men used these clubs as a base to seek elected offices so that their point of view could have the most influence on the government. This would not have been possible without the influence of Public Opinion.  Jeremy Bentham, an advocate of the importance of public opinion thought:

 

         “…. all government acts and decisions should be subject to the 

           inspection of public opinion because to the pernicious exercise

          of the power of government, it is the only check.”[185]

 

Public Opinion is a check on both Federal and state governments. It can have some of its greatest effects on local governments. Examples of this can be seen daily in the activities of many activist groups all over the

United States. Social justice movements, such as the Civil Rights Movement and Black Lives Matter serve to educate and inform the general public about issues that have critical effects and consequences for persons, beginning at the local government level. Support for or against certain local issues can be built by generating full awareness of all the facts to the general public. This helps to influence public opinion over time.

A vivid example of this principle is the advancement of the Civil Rights Movement. The Civil Rights Movement had its start during the era of Reconstruction, following the end of the Civil War. It continues into the present day, twenty-first century with the Black Lives Matter Movement continues the basic principles of “liberty and justice for all”[186] in the United States.

 

The Civil Right Movement, though it has and continues to have national and world-wide impact, had its start by bringing vivid attention to the inequalities and atrocities suffered primarily by persons of color asserting their rights as American citizens demanding their right to participation in local governments. The need for local protests for change grew out of the history of the United States of America at its inception. Years before the founding of America, all those living on the lands that would become the “United States of America” were not viewed as “worthy” of being treated fairly or equally. Native Americans and Enslaved persons, including men, women, and children, here, before the landing of Columbus in the “New World” and the Mayflower, on the Eastern Sea coast of the Americas, were seen as “lesser” by colonists from all over Europe.

After proclaiming in the Declaration of Independence that “all men are created equal”,  the very lives and futures of Indigenous Peoples and enslaved Africans and their descendants were “edited out” of the freedoms promised to almost all other Americans.(Note: Women of all cultures were also not included in the majority of the freedoms promised) While Thomas Jefferson is credited as the author of the Declaration, Jefferson wrote at the direction of the “Committee of Five”, formed on June 11, 1776.[187] The Committee of Five included:

 

1.  John Adams- Representative of Massachusetts, future Second

 President of the United States- did not own Enslaved Africans.[188]

2.  Benjamin Franklin- Representative of Pennsylvania, First U.S.    Minister to France, one of the most famous Founding Fathers-owned six (6) Enslaved Africans from 1735 to 1781 in chattel slavery.
3.  Roger Sherman- Representative of Connecticut- only man to sign all four (4) of the United States of America’s official documents: The Continental Association, the Declaration of Independence, the Articles of Confederation and the United States Constitution-did not own Enslaved Africans.[189]
4.  Robert R. Livingston, Representative of New York, later U. S.   Minister to France and negotiator of the Louisiana Purchase-did not own Enslaved Africans.[190]
5.  Thomas Jefferson, Representative of Virginia, future Third President of the United States, chosen by the “Committee” to write the Declaration of Independence where he proclaimed “all men are created equal”, owned over his lifetime, more than six hundred (600) Enslaved Africans in chattel slavery. (He owned about180 Enslaved Africans at the time he wrote the Declaration of Independence.)

 

 On June 28, 1776, the Committee of Five presented its first draft of the  Declaration of Independence to the Second Continental Congress. Included in the draft was a paragraph attacking chattel slavery and implying that Great Britain, (in the person of King George III), had forced the colonies into maintaining chattel slavery. This paragraph caused the most intense debate before the full body of the Second Continental Congress for the rest of the Spring of 1776, into the Summer before it was ultimately removed. It read:

 

“…. He has waged cruel war against human nature itself; violating its most   sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and as to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus, paying off former crimes committed again the Liberties of one people, with crimes which he urges them to commit against the lives of another.”[191]

 

This portion of the Declaration of Independence was “deleted” due to the “economics” of chattel slavery and to make sure that all the colonies, Northern and Southern would support independence from Great Britain. The very profitable economics of the forced, unpaid labor involved in chattel slavery could not be discarded even for the moral good by the Founding Fathers as they espoused the concept of “all men are created equal.” The Declaration of Independence was adopted on July 2, 1776, without the paragraph, voted on and passed on July 4, 1776, and was announced to the American people.[192] The contradiction between the stated principle of “all men are created equal” and the brutal reality of enslaved persons in the United States was noted by many when the Declaration was published in 1776. Thomas Day, English abolitionist, in a letter he wrote that same year noted:

        “If there be an object truly ridiculous in nature, it is an American Patriot

          signing resolutions of independency with one hand, and with the other

          brandishing a whip over his affrighted slaves.”[193]      

 

Thomas Jefferson, himself a participant in chattel slavery and owner of more than 600 enslaved persons (note Enslaved Africans), including enslaved children he fathered, wrote in his autobiography:

 

          “The clause too, reprobating the enslaving of the inhabitants of Africa

            was struck out in complaisance to South Carolina and Georgia, who

            had never attempted to restrain the importance of slaves, and who

            on the contrary, still wished to continue it. Our Northern brethren also,

            I believe, felt a little tender under these censures, for though their

            people had very few slaves themselves, yet they had  been pretty

            considerable carriers of them to others.”[194]

 

It was Public Opinion that fostered the continuation of Chattel Slavery,[195] through the Atlantic Slave Trade, keeping and selling hundreds of thousands of men, women and children and their descendants in lifetime bondage at the same time that the Founding Fathers encouraged the white colonists to fight for their “inalienable” right to freedom and equality for themselves. Integral to that “freedom and equality” was the economic wealth of the Thirteen Colonies as they sought “a more perfect union.” In 1807, United States laws prohibited the further importation of enslaved persons into the United States.[196] The law became effective on January 1, 1808 and made all international trading of enslaved persons illegal in the United States. This Congressional act, seen as an active first step towards ending chattel slavery, did nothing to stop the Domestic Slave Trade in the United States. The Act came not long after the modern cotton gin was invented by Eli Whitney in 1793. His innovations to the cotton gin helped to increase the production cotton in the United States. In 1791 cotton production in the United States was only a small part of world production of cotton at about 2000 pounds.[197]

By 1801, the annual cotton production in the United States, had reached more than 48.5 million pounds, and by the early 1830’s the United States produced the majority of the world’s cotton. By this time cotton had surpassed tobacco as the “primary cash crop” in the South.[198] Cotton as an exported good exceeded the value of all other United States products during this time, combined. This made the production of cotton more lucrative for southern plantation owners and even started a land rush in 1817 named “Alabama Fever.”[199] Settlers poured into the Alabama Territory in 1817 through 1819 and after The United States Congress passed the “Indian Removal Act of 1830.”, the population of the State of Alabama increased from less than 10,000 persons in 1810 to more than 300,000 persons in 1830. By 1860, Alabama’s population was 964,201 persons of which 435,080 persons were enslaved Africans and 2690 free persons of color.[200] The growing and cultivating of cotton using the chattel slavery of enslaved black persons brought huge profits to the owners of large plantations in Alabama, Georgia, Mississippi, and Louisiana as these states, by 1859 grew 78% of the world’s cotton. The southern plantations dramatically increased in size to increase the possibility of large and larger profits from cotton production. With increased land for production, plantation owners needed more “free labor” provided by Chattel Slavery. The Domestic Slave Trade increased between the Upper South( North Carolina, Tennessee, Virginia, Kentucky, and West Virginia), where a shift to more mixed crops( not primarily cotton) required fewer enslaved persons, and the Deep South(Alabama, Georgia, South Carolina, Mississippi, Louisiana, Texas and Florida), which concentrated on the production of cotton.[201] Since the international slave trade had been illegal, since 1808, the breeding of enslaved persons only grew the profits for white plantation owners. Slave breeding is defined as:

 

“…   the practice in slave states of the United States of slave owners to systematically force the reproduction of enslaved people to increase their profits.^[1] It included coerced sexual relations between enslaved men and women or girls, forced pregnancies of enslaved women, and favoring women or young girls who could produce a relatively large number of children.^[1] The objective was to increase the number of slaves without incurring the cost of purchase, and to fill labor shortages caused by the abolition of the Atlantic slave trade.^[2]”[202]

 

 Plantation owners not only made huge profits due to the rich soil but also due to the cruelty of Chattel Slavery. Slave owners could sell the cotton for profit as well as sell the enslaved persons for profit as well. Afterall, cotton was “king.”  As Senator James Henry Hammond boasted in 1858:

 

“Without firing a gun, without drawing a sword, should they make war on

us, we could bring the whole world to our feet…What would happen if no    cotton was furnished for three years?...England would topple headlong and carry the whole civilized world with her save the South. No, you dare not to make war on cotton. No power on the earth dares to make war upon it. Cotton is king.”[203]

 

So lucrative was Cotton production in the Deep South, there were land areas known as the “Black Belt.”[204] The term referred to the fertile black soil where cotton was grown, controlled by white plantation owners who were made rich by their cotton crops and by the forced and unpaid labor of enslaved black people. In the 1890’s and after, the term “Black Belt” referred not only to the soil but also to the majority African American population of these areas in the Deep South. In Alabama, twelve (12) counties from the eastern border to the western border of the state have a majority African American population. In 1901, the great educator and first President of Tuskegee Institute, Booker T. Washington defined the Black Belt in these terms:

 

 “I have often been asked to define the term “Black Belt.” So far as I can learn, the term was first used to designate a part of the country which was distinguished by the colour of the soil. The part of the country possessing this thick, dark and naturally rich soil was, of course, the part of the South where the slaves were most profitable, and consequently, they were taken there in the largest numbers. Later, and especially since the war, the term seems to be used wholly in a political sense- that is, to designate the counties where the black people outnumber the white.”[205]

 

Public Opinion established the views of many Americans about chattel slavery. Although many viewed slavery as immoral and wrong, many others saw chattel slavery (free labor) as the “only” viable way to sustain the cotton-based Southern economy and thereby the economy of the United States. After 1830, whites, more specifically white southerners stopped calling slavery a necessary evil for the economy of the South. Instead, they referred to slavery as “a beneficial institution that created a hierarchical society superior to the leveling democracy of the North.”[206] This was a shift that southerners used to rationalize chattel slavery. More than before, public opinion shifted to regarding all enslaved human beings as no more than chattel. Chattel Slavery[207] is defined as:

 

“A form of servitude where workers are treated as property, receive no compensations other than basic necessities, and are coerced into labouring by threat of violence. Such slaves cannot resign on their own will.”

 

By this definition, all enslaved persons were seen as cattle, not people with will, feelings or any self- determination. (Enslaved persons in the United States during this period were almost always Africans or African-Americans.) This made the “breeding of enslaved persons an acceptable common practice among, slave owners. After all, the United States Constitution prohibited the federal government from passing any law” that would restrict the importation of slaves into the United States prior to 1808.”[208](Article One, Section 9, Clause 1). On December 6, 1806, President Thomas Jefferson during his annual message to Congress wanted to:

 

“withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.”[209]

As the importation act took effect on January 1, 1808, states deeply invested in the free labor provided by enslaved persons, began to create laws that fostered the notion that enslaved persons were not “persons” at all.  They were property to be bought and sold and “bred” just as their owners would their livestock. As long as enslaved persons were seen as “property”, public opinion reaffirmed the idea that enslaved persons, who were persons of color, were less than human and held no rights at all.

 

      The subjugation of enslaved Africans and enslaved African Americans was 

      taken as a “natural right” not only of slave owners but of all white people in

      the United States. Public opinion of this idea was reenforced not only by white

      slave owners but by the United States Supreme Court. On March 6, 1857, The

      United State Supreme Court ruled against an enslaved African American man,

      Dred Scott, who sued his enslaver for his freedom. Mr. Scott asserted that

      since his enslaver had brought him and his family into free territories in the

      United States, that he and his family could not be returned to enslavement.

      When the case made its way to the Supreme Court, the ruling was against

      Mr. Scott. But more than just being against him, it relegated an entire race

      of Americans to less than even second- class citizenship, but no citizenship

      at all. Chief Justice Roger Taney, writing for the court stated:

 

“[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”[210]

This decision cemented the idea that enslaved Africans as well as their enslaved children, born in the United States were not regarded as citizens in the country where they were forced to work, with no rights and no benefits.

This precept was firmly cemented in the Southern states as the “natural right “of white people when Alexander H. Stephens, Vice President of the Confederate States of America gave his “Cornerstone Address” in Savannah, Georgia, March 21,1861.   Stephens recognized in his address that the “immediate cause of secession” was “disagreements over the enslavement of African Americans” and further stated the Confederacy, contrary to the United States Constitution, was not founded on the belief that “all men are created equal”:

      

         “Our new government is founded upon exactly the opposite ideas;

          its foundations are laid, its cornerstone rests, upon the great truth

          that the negro is not equal to the white man; that slavery, subordination

          to the superior race, is his natural and normal condition. This, our new

          government, is the first, in the history of the world, based upon this great

          physical, philosophical, and moral truth. The truth has been slow in the

          of its development, like all other truths in the various departments of

          science….May we not therefore look with confidence to the ultimate

          universal acknowledgement of the truths upon which our system rests?[211]

 

 

  Though chattel slavery ended with the end of the Civil War and

  the “slave laws” were demolished, public opinion set by persons

  like Stephens persisted. The Reconstruction Era brought hope for

  African Americans recently freed. By 1877 Reconstruction had ended

  and whites, particularly in the South, found new ways to return to the

  pre -civil war hierarchy. The “Black Codes” also known as “Jim Crow”

  laws started in 1877 and lasted through 1954 until the United States

  Supreme Court decision in “Brown vs. Board of Education of Topeka.”

   The 1954 decision abolished the principle of “separate but equal”

schools for white and black students in public education. Before the

Brown decision, local governments in the South, as well as other segregated

areas in the United States often established two separate school systems,

one for whites and one for persons of color. There was never equal

allocation of resources so the persons of color (African-Americans, Native

Americans, and other persons of color of non-white origin) were given, often

by law, inferior schools and inferior resources.

The Black Codes sought to keep African- Americans and other persons of color

in second class citizenship, even though they paid local, state and Federal taxes.

These laws not only limited the lives of persons of color but also limited the

resources of local governments as they created two separate systems, when

creating one educational system with equal access would have been

given the possibility of equal access for all.

“Plessy v. Ferguson”, 163 U.S. 537(1896) made “separate but equal” the law of

the land in all areas of life for people of color in the United States for more

than half a century (58 years) until it was overturned by the Brown decision.

The court cases, demonstrations, boycotts and protests that followed the Brown

Decision started to strike down the “legal framework” for segregation. From the end of Reconstruction in 1877, and continuing to the founding and beginning of “Black Lives Matter” in  2013, Public opinion has been used to protest for and protect the rights of black persons, and to “highlight racism, discrimination, and inequality experienced by black people.”[212]  Black Lives Matter,(BLM) originated by activists, Alicia Garza, Patrisse Cullors, and Opal Tometi, took hold after the shooting death of Trayvon Martin, a black teenager and the acquittal of the white person who killed him. With the murder by the police of George Floyd in Minneapolis, Minnesota in 2020, more protests brought attention to and changed Public Opinion about the use of police brutality against the lives of black persons, locally, state-wide and nationally across the United States. Public Opinion previous to Mr. Floyd’s murder had always been to accept the will and processes of local policing as being in the best interest of the general public. The facts in the Floyd case, (bolstered by the cell phone video of the general public) showing just how Mr. Floyd was murdered specifically by one member of the Minneapolis Police Department while other officers stood by and watched, shifted Public Opinion towards more controls and increased accountability for the actions of police. It is estimated that between fifteen million (15,000,000) to twenty-six million (26,000,000) people actively protested for justice for George Floyd in the United States,[213] alone, making BLM one of the largest movements in United States history. BLM had and continues to have global attention.

 

Another movement which influenced Public Opinion is the “Me Too” Movement.

This social movement was started by Tarana Burke, a survivor of sexual assault. Tarana Burke, an African- American woman first used the phrase “Me Too” on social media in 2006. She used the phrase and her  experience “to help other women with similar experiences to stand up for themselves.”[214] Burke stated that the purpose of “Me Too” “is to empower sexually assaulted people through empathy and solidarity through strength in numbers, especially young and vulnerable women, by visibly demonstrating how many have experienced sexual assault and harassment, especially in the workplace.”[215] The Me Too movement has  continued to affect Public Opinion as wide spread media coverage and protests targeting industries which seemed to have ignored exploitive behaviors explicitly against women,( but also against men) have encouraged more women to speak out and have helped increase prosecutions against those who have participated in harassing activities. By 2017, many women associated with the entertainment industry used the #MeToo to highlight sexual harassment within the industry. There have also many high level job terminations as well as changes to laws regarding sexual harassment due to the spotlight of Public Opinion being shined on the issue through Public Opinion and the power of the people.

 

The power of Public Opinion continues to give power to as well as limit the powers of Local governments. Public Opinion, the will of the people continues to evolve through every period of history in the United States. Public Opinion can only function as it should when accurate facts, not opinions, are used to objectively evaluate the actions of all those elected to office. Public Opinion supported by factual evidence remains the most powerful limitation on the actions of Local Governments.

 

 

    

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