Former Mayor Marty Kennedy is delighted the Lawrence City Commission is contemplating direct democracy. He just wishes it had happened sooner.

In 2002, then-Commissioner Kennedy wanted to put the controversial question of a city fireworks ban before the voters.

“We need to find out what it would take to let the people make the decision for a change,” Kennedy said at the time.

“The people” didn’t get to make the decision.

Other officials said City Hall wasn’t allowed to put such issues directly on the ballot. And in any case, Kennedy received little support for the idea from his fellow commissioners, who passed the fireworks ban over his objection.

So Kennedy was pleased last week when city commissioners said they would back a referendum on the latest hot issue: a ban on smoking in all “places of employment,” including bars and restaurants.

“I should have tried harder” in 2002, Kennedy said.

But within 24 hours of last week’s decision, Commissioner Boog Highberger, who proposed the public vote, was wavering on the issue. Commissioners are expected to reconsider their support for a referendum next month.

The concerns: that “outside money” would be a determining factor in election results, and that the commission would come under pressure to put every controversial item back in voters’ hands.

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“The reality is this does open the door for future confusion,” said Commissioner Sue Hack, who voted to back the ballot initiative. “I don’t think that was anybody’s intent, but that unfortunately may be the outcome.”

Regardless of what the City Commission does next, however, the issue still is likely to land on the ballot after a petition drive by opponents of a ban.

Opponents of a smoking ban applauded at City Hall last week when commissioners agreed to back a referendum. It’s only fair in a democracy, advocates said, for voters’ voices to be heard.

“I think it makes the most sense,” said Chuck Magerl, owner of Free State Brewing Co. and a ban opponent. “It will indicate whether the community is buying into this decision.”

Commission’s role

Until last week, commissioners for years steadfastly rejected calls to put divisive topics on the ballot.

“That’s not the form of government we signed on for,” Hack said. “We don’t have town-hall meetings in the center square to make decisions for the community. That’s why the people elected us.”

Commissioners say they will resist future calls to place controversial items on the ballot. But it’s likely they will hear those calls more frequently.

“They’ve set a precedent,” said John Nalbandian, a former mayor who teaches about city government at Kansas University. “Whether or not they want to set a precedent is irrelevant.”

In that case, Nalbandian said, commissioners need a rule to guide their decisions on whether they’d back future referenda efforts.

“If there is an issue that has the possibility of transforming the community, then I can see the commission saying, ‘This is such a big issue, we need to have a debate that goes beyond what the City Commission can discuss,'” Nalbandian said.

Highberger quoted Nalbandian’s “transforming the community” rule when discussing his change of heart.

“I don’t think it would make it under John’s standard,” Highberger said.

Vote likely, anyway

Bar and restaurant owners were planning before last week to gather the nearly 4,000 signatures needed to put a measure on the ballot. So even if the commission backtracks next month, voters still may get the final say on the issue.

“I actually thought this would end up with a public vote,” said Phil Bradley, director of the Kansas Licensed Beverage Assn., which has helped organize opposition to a ban. “Just not this way.”

Members of the anti-smoking group Clean Air Lawrence also are contemplating how to conduct a campaign.

“We are concerned about the funding for what becomes a political campaign, in some respects,” said Judy Keller, director of the American Lung Association of Kansas and a Clean Air Lawrence member. “We know we have the majority (of voters) supporting us, but we do not have the financial resources to run an advertising campaign. So that is a concern.”

Kennedy, meanwhile, has a suggestion for current commissioners, should they decide to go ahead with a referendum.

“If they’re going to put this to a vote, they might as well add the fireworks to it,” he said, “since we’re going to have to pay for the election anyway.”