Chapter 3.35
SALE OF CITY-OWNED UTILITY
Sections:
3.35.010 Purchase offer approval.
3.35.020 Approving resolution.
3.35.030 Notice of election – Contents.
3.35.040 Public notice.
3.35.050 Election equipment – Election officials.
3.35.060 Registration lists.
3.35.070 Election procedure.
3.35.080 Election officials – Filling vacancies.
3.35.090 Election officials – Oaths – Powers and duties.
3.35.100 Election ballots – Form and contents.
3.35.110 Election – Counting and canvassing – Results.
3.35.120 Contest of election – Procedure.
3.35.010 Purchase offer approval.
If a fair market value purchase offer of a city-owned utility (the “utility”), as determined by the appraisal required by the protocol,1 is received by the city, and if acceptance of the offer will not cause a detrimental impact on a part of the utility system not included in the purchase offer and will not be detrimental to public interest, and if the offer is approved by the city council in its sole and exclusive discretion, then the question of whether or not to sell the utility shall be submitted to a binding referendum election of the city’s registered voters. [Ord. O-15-2002 § 1].
3.35.020 Approving resolution.
If the city council approves a fair market value offer to purchase a utility, then it shall consider and adopt a resolution for a referendum election in the city on the question of whether or not to sell the utility. The resolution approving such proposed sale shall state:
A. The utility that is the subject of such proposed sale;
B. The appraised value of such utility;
C. The proposed purchase price for the utility;
D. The proposed buyer of the utility;
E. The date of the referendum election, which shall not be less than 45 nor more than 90 days after the date of the resolution. A referendum election may be held and the proposition for sale of the utility may be submitted at any general, primary or special election permitted by state law or other date approved by the city council. A special election may, but need not, be held on the same day as any other election;
F. The hours during which the polls are to be open, which shall be those provided by law for the conduct of regular general elections; and
G. The designated voting places within the city approved by the city council. Voting precincts may be combined for purposes of the referendum election. [Ord. O-15-2002 § 2].
3.35.030 Notice of election – Contents.
Upon filing of the approving resolution, the city recorder shall prepare a notice of the referendum election stating:
A. The date of the election and the hours during which the polls will be open;
B. The voting place(s) of the election, which shall be those (if any) designated by the city council in its approving resolution unless otherwise prohibited by applicable law; and
C. The purpose of the election, including a description of the utility that is the subject of the proposed sale, the appraised value of such utility, the proposed purchase price for the utility, the identity of the proposed buyer of the utility, and such other matters as the city council’s approving resolution may require. [Ord. O-15-2002 § 3].
3.35.040 Public notice.
The city recorder shall provide the notice of the election to be published once a week during three consecutive weeks in a newspaper having general circulation in the city. The first publication shall be not less than 21 nor more than 35 days before the election. In addition, the city recorder shall post notices of the election in at least five public places in the city at least 21 days before the election. [Ord. O-15-2002 § 4].
3.35.050 Election equipment – Election officials.
Before the election, the city council also shall:
A. Provide for the necessary ballot boxes, ballots, paraphernalia, equipment, and supplies needed for the election as determined by the city council and applicable law; and
B. Unless the election officials to serve at each voting place are otherwise appointed under the provisions of general law, appoint three election officials, who shall be qualified electors of the city, to serve at each voting place. The city council may appoint one or more alternate election officials to serve in the case of the absence for any cause of the designated election officials. [Ord. O-15-2002 § 5].
3.35.060 Registration lists.
A. There shall be no special registration of voters for a referendum election and the official register last made or revised by the Utah County elections official prior to the election shall constitute the register for such referendum election except that:
1. If the referendum election is held on the same day as a general, special, primary, or other election held in the city, all persons registered to vote in such other election shall be considered registered to vote in the referendum election; and
2. If the referendum election is not to be held on the same day as any other election, then any person who registered to be a qualified elector at least 20 days before the referendum election and who thereupon was duly qualified as such by appropriate authorities shall be entitled to vote at the election.
B. The city recorder shall make available registration lists or copies of such lists available at each polling place for use by registered electors entitled to use such voting place. Relatively minor inaccuracies in the registration lists shall not be considered an irregularity or ground for invalidating the referendum election. [Ord. O-15-2002 § 6].
3.35.070 Election procedure.
A. The qualification as an elector of any person applying for a ballot at the election may be challenged for cause by any one or more of the election officials or any other person at the time the ballot is applied for, but notwithstanding any challenge hereunder, any such person shall receive a ballot and be permitted to vote if:
1. The person is shown on the registration lists as a registered voter in the city; and
2. The person takes an oath, in the general form set forth in Section 11-14-6, Utah Code Annotated 1953, or its successor, that he is a qualified elector of the city.
B. In the case of challenges made pursuant to subsection A of this section, the election officials shall keep a list of the names of each person challenged, the grounds for the challenge, and whether such person was permitted to vote. The list shall be made in duplicate and the duplicate list shall be made available to the city council when it canvasses the election results.
C. No referendum election shall be held invalid on the grounds that unqualified voters voted unless it shall be shown by clear and convincing evidence in a contest filed prior to the expiration of the period in which election contests may be filed that unqualified voters in sufficient numbers to change the result voted at the referendum election. When the election results are canvassed, the canvass shall show separately the number of votes which were challenged and the number of challenged voters who were permitted to vote, but the votes cast by the voters shall be accepted as having been legally cast for purposes of determining the outcome of the election, unless the court in an election contest shall find otherwise. [Ord. O-15-2002 § 7].
3.35.080 Election officials – Filling vacancies.
The city council may fill any vacancies in the office of election official at the referendum election. If any election official is unable or fails to attend or serve at the voting place designated at the hour fixed for opening the polls, the other election officials shall appoint, or in the absence of all officials the voters present shall elect, the necessary number of election officials to serve in the place of the absent or delinquent appointees. [Ord. O-15-2002 § 8].
3.35.090 Election officials – Oaths – Powers and duties.
Before opening the polls, the election officials shall be sworn to perform all the duties incumbent on them as such. The oath shall be taken before any officer authorized to administer oaths, or each election official may administer the oath to any other election official. The election officials may administer any oath and receive any affidavit provided for by law. The election officials at any referendum election shall have the same powers and duties in conducting the elections and in preserving order at the polls as are conferred and imposed upon similar officers under the general election laws. [Ord. O-15-2002 § 9].
3.35.100 Election ballots – Form and contents.
A. The city council shall prescribe the form of ballot to be used at the election, but the proposition appearing thereon shall include a description of the utility proposed to be sold by the city; its appraised value; its proposed purchase price; and the name of the proposed buyer. The proposition shall be followed by the words, “For the sale of the (name of the utility) utility” and “Against the sale of the (name of the utility) utility,” with appropriate boxes in which the voter may indicate his choice. If the referendum question is submitted at an election not specially held for that purpose, the referendum question may be combined with the candidate ballot.
B. Where voting machines are used, the ballot shall be in such form as is appropriate for such use, and absentee ballots shall be in the form prescribed by law for such ballots. [Ord. O-15-2002 § 10].
3.35.110 Election – Counting and canvassing – Results.
Immediately after the closing of the polls, the election judges shall proceed to count and canvass the ballots cast and make returns thereof to the city council. Not later than 10 days after the election, the city council shall meet and canvass the returns. The oaths taken pursuant to EMMC 3.35.070(A) and the ballots and ballot boxes shall be held in safekeeping in the manner and for the period provided by law with respect to ballots for other elections. The canvass of the election returns shall be made in public and at its conclusion the city council shall make an official finding as to the total number of votes cast, the number of affirmative votes, the number of negative votes, the number of mutilated ballots and the number of challenged voters as above required, and shall declare the proposition that was the subject of such referendum election to have carried or lost. Such findings shall be incorporated in the official minutes of the city council, and it shall not be necessary to file any statement or certificate of such results or affidavit with respect to the facts pertaining to the election with the county clerk or with any other official. The determination of the city council that a majority of the city’s qualified electors voting on the proposition have either assented to or rejected the sale of the utility shall be conclusive in any action or proceeding involving the validity of the election or determination or declaration of the result thereof instituted after the expiration of the period provided in EMMC 3.35.120 for the filing of actions contesting the validity of the referendum election. [Ord. O-15-2002 § 11].
3.35.120 Contest of election – Procedure.
A. The general election laws with respect to the contest of elections shall be applicable to referendum elections under this chapter. Any such contest shall be regarded as one contesting the outcome of the vote on the proposition rather than election to office; the city rather than a person declared to have been elected to office shall be regarded as the defendant; and one of the grounds of contest may be the lack of the required qualifications of voters in sufficient numbers to change the result of the referendum election.
B. When the validity of referendum election under this chapter is contested, the plaintiff must, within 40 days after the returns of the election are canvassed and the results thereof declared, file with the clerk of the district court of the county in which any part of the city is located, a verified written complaint setting forth specifically:
1. The name of the party contesting the election, and that he is an elector of the city;
2. The proposition voted on at the election that is contested; and
3. The particular grounds of such contest. No such contest shall be maintained and no referendum election under this chapter shall be set aside or held invalid unless such a complaint is filed within the period prescribed in this section. [Ord. O-15-2002 § 12].
Code Reviser’s Note: By its Resolution No. 09-00, adopted May 2, 2000, the city council of Eagle Mountain City, Utah, established a protocol for any future proposed sale of a city-owned utility.