On February 22nd Commissioner of Finance Michele Madigan sent the following email to Assistant City Attorney Tony Izzo thus focusing attention on one of the perennial controversies that surround charter commissions. Her email reads:
I am trying to determine what types of educational or advocacy activities a Charter Commission is permitted to engage in. I have heard anecdotal evidence that they are not allowed to use public funds to advocate for the passage of their proposed revisions or new Charter. Could you draft an opinion on this that I could share with the Council and the Charter Commission?
Thank you and please contact me if you have any questions.
This is not the first time the issue of what kind of activities a charter commission can engage in to communicate to the public about the charter change they are proposing has arisen.
The problem is the law on this kind of thing is frustratingly confusing. As Tony Izzo’s opinion confirms charter commissions are supposed to educate the public about their proposed charter change but they are not to use public money to “advocate.” Distinguishing the line between education and advocacy seems like a thankless process for which attorneys could devote a great deal of time. If the charter commission recommends an end to the commission form of government and the adoption of a city manager form would an explanation as to why there is a problem with one and a solution in the other be “advocacy” or “education”?
The distinction between the two terms became the focus of the controversy with the “Voter Guide” sent out by the 2006 charter commission. Among other statements it included the following in a highlighted box on its cover page:
“If the proposal passes we will have—at long last—a government with true checks and balances.”
I think a reasonable person could argue that this assertion crossed the line from education to advocacy. This was certainly the opinion of Commissioner of Accounts John Franck who announced at a Council meeting the night of the vote that he would refuse to pay for the mailing which had already gone out. Then Commissioner of Finance Matt McCabe also stated he would refuse to transfer the money to pay for the mailing if requested. Other questions about the mailing done by that charter commission included who had already paid for the mailing, its timing, and whether it had adhered to the city’s bidding requirements. While the Council approved payments for other expenses encumbered by the charter commission there was no action taken to pay the bill for the mailing.
Commissioner Franck referred the matter of the mailing to then Comptroller Alan Hevisi claiming “without question…the ‘voter guide’ advocated for a ‘Yes’ vote on the proposition against a ’No’ vote “. Hevisi acknowledged the receipt of the letter but never responded to the substance of Franck’s complaint. The issue became mute when the charter commission found private funds to cover the cost of the mailing and took no legal action regarding the city’s refusal to pay.
So here is Tony Izzo’s response to Commissioner Madigan’s request this year for clarification as to the types of activities this charter commission is permitted to engage in:
To: Members of the City Council, Members of the Charter Review Commission
From: Anthony J. Izzo
Re: Public education by Charter Commission – issues
Date: February 28, 2017
This is in response to Commissioner Madigan’s inquiry about public comments from charter commission members that might be critical of the present charter. The issue is essentially whether commission members, in their efforts to educate the public, may appropriately make critical remarks or express opinions that go beyond mere factual comparisons between the current charter and the one they propose.
To begin with, a 1978 Comptroller’s opinion makes it clear that a charter commission may not spend public funds for the purpose of advocating for the adoption of the proposed charter. Such publicity expenditures should be solely for the purpose of educating the public as to the content of the new charter, Opinions of State Comptroller 78-682. I have requested the full text of this opinion from the Comptroller’s Office and I will forward it to you as soon as I receive it.
With respect to commission members engaging in advocacy that does not involve any spending of public funds, the analysis is less clear. Section 36 of the Municipal Home Rule Law provides only that a commission “…shall conduct public hearings at such times and at such places within the city as it shall deem necessary.” and that it “…shall make a report to the public…in which it shall refer specifically to the unchanged part and explain its decision to leave such part unchanged.” Sections 36(6)(f) and 36(5)(a). The law, as far as I can determine, makes no mention of a charter commission’s ability to advocate for its proposed charter in instances where no public funds are spent.
The NY State Division of Local Government’s publication “Reviewing City Charters in New York State” contains a lengthy section on public education. That section contains one paragraph that suggests it is appropriate for a commission to support the approval of its charter:
“In addition to its concerns with keeping the public informed, the charter commission will want to keep in mind that yet another dimension of its purpose is to gain approval of its charter. Regardless of the thoroughness of the public education program, it will not be possible to reach and inform every voter who can be expected to vote in the referendum. As noted earlier, many votes are certain to be determined on the basis of comments expressed and positions taken by opinion leaders in the community.
It is therefore advisable to take three more steps: to seek help and support from influential citizen groups, to solicit editorial support of the local newspapers, and to obtain the endorsement of municipal officials and, if possible, political party leaders. Experience has indicated that any one or all of these may be especially significant in influencing the outcome at the polls.”
The remainder of the section discusses only public education, polls, publication of pamphlets, etc.
The NYCOM Charter Guide, however, makes no reference to any other manner of activity by a commission other than educating the public. Clearly the majority of commentary describes a commission’s role as one of education and information rather than persuasion.
I am aware that some commission members have made public statements in which they have compared their proposed changes favorably as against the current form. I understand that these statements have been made in interviews and opinion letters at no cost to the public. I would caution, however, now that publicity funds have been specifically authorized by the city council and will likely be spent in various ways, that it might become more difficult to separate instances where a commission member’s public statement is not in any way supported or made possible by public funding. It will of course be difficult, after so many hours of hard work, for commission members to avoid speaking enthusiastically about their proposal, but I believe that they would do well to recall that their purpose, as reflected by most of the available authority, is to educate and inform.
Please call if you have questions.
Commissioner Madigan’s request and Tony’s response became the first item of discussion at the current charter commission’s meeting on March 2. There was a strong reaction at least from some members of the commission particularly Jeff Altamari, Chairman Bob Turner, and Gordon Boyd.
I will summarize here what were for me the highlights of this discussion but I would strongly urge my readers to review the video for themselves. Here is an excerpt from the meeting representing the discussion. It is about fifteen minutes long.
Jeff Altamari’s first reaction was to ask Tony Izzo “did the Commissioner ask you to be a conduit to this commission?” He then asks “Why is the Commissioner concerned about us talking about what we believe to be the best thing for our citizens?” He told Tony that we need to know that “going down the stretch you are right down the middle of the fairway [JK: This mixed metaphor is not representative of Mr. Altamari’s skills as a speaker]. My antennas are up.” Tony noted that the Mayor had asked him to serve as counsel to the commission but that if they were not satisfied with him he would step aside and “ wish them well.” Altamari said he was not asking for Tony’s resignation.
Chairman Turner next tells Tony that the appropriate answer to the Commissioner’s inquiry would have been “Article I of the Constitution: Congress should make no law abridging the freedom of speech.” [JK:I think Chairman Turner actually meant the 1st Amendment to the Constitution since Article I establishes the legislative branch of the federal government.]
Gordon Boyd asked if the Commissioner’s email to Tony contained “any legal reference to the basis for the constraint of speech for commission members.” He went on to argue that there are basically no restraints on the commission even if they are using public funds citing the Supreme Court Citizens United decision . As treasurer he said he was “personally committed that this committee not spend any public money on creating material that people should vote one way or the other on what ends up on the ballot but that is a personal preference.” He insisted that it was impossible to have a standard and “even using taxpayer money would probably be approved by the courts. “
Pat Kane’s reaction was simpler and more succinct. “Harassment” he said and did not elaborate.
It was left to Matt Jones to return to the central question. He asked Tony “What are your thoughts about our ability to speak our minds about any aspect of the Charter. “ Specifically he asked if there were any legal impediments .
Tony replied “the only legal impediment is spending public funds to advocate for the adoption of the charter.”