The City Attorney's Office says a petition for a higher minimum wage in Greensboro is invalid. The Greensboro Minimum Wage Petition Committee says it's good.
The City Council can take a stab at the question this evening if it wants, but it might prefer to seek a third opinion.
My opinion is that the City Attorney's Office is right, but no one calls me Your Honor. Eventually, real judges might decide this interesting case.
Assistant City Attorney Terry Wood, in a Dec. 10 memo, pointed out that petitioners didn't gather enough signatures.
The city ordinance (2.71) says: "Voters seeking to propose an ordinance subject to initiative shall proceed by way of initiative petition addressed to the Council and containing the full text of the proposed ordinance. Any initiative petition must be filed with the city clerk and must be signed by qualified voters of the city equal in number to at least 25% of the qualified voters of the city who voted at the last preceding election for City Council members."
The petition was filed with the city clerk Dec. 3, a year after the petition was registered with the county board of elections office. A year ago, petitioners set out to collect the required number of signatures based on the voter turnout in November 2005. Unfortunately for them, by the time they filed their petition, another city election had occurred, and it drew a much larger number of voters. Thus, their 25 percent threshold was raised, and they failed to meet it.
Responding for the petitioners, Edward L. Whitfield, who is not a lawyer, complains this isn't fair because, beginning their campaign 11 months before the November 2007 election, they would have had to guess at how many signatures they needed. True. But they could have avoided that problem by filing their petition before Nov. 6, 2007. Then the November 2005 election still would have been the most recent and stood as their (shorter) yardstick.
Wood also cites General Statute 160A-174(b)(2) that prohibits a local ordinance that "makes unlawful an act, omission or condition which is expressly made lawful by State or federal law." Wood argues that the fact the state has enacted its own minumum wage, which is lower than the proposed Greensboro minimum wage, means the city can't make it unlawful for Greensboro businesses to pay wages that the state regards as lawful.
Whitfield answers that the Fair Labor Standards Act of 1938 "specifically provides that states and municipalities can set higher standards than the federal minimum," and that many do.
I'm sure Whitfield is right about that, to an extent. However, he may be overlooking the fact that, in North Carolina, city governments are considered legal extensions of state government and can't exert powers not authorized by the state. Therefore, while North Carolina cities may raise local minimum wages above federal standards as the FLSA says, they can only do so with permission from the state.
That's just my interpretation, but we've certainly seen the state dictate what cities may do in terms of smoking regulations, to cite one example. Raleigh can do the same here, too. But perhaps that should be tested in court.
From the standpoint of local autonomy, I could argue for granting discretion to municipalities. But I could argue the other way from a public policy perspective. After all, different wage standards from city to city and county to county could create lots of confusion and inequity.
So, that's my take. People smarter than I am will have to decide who's right or wrong.