Charter Commission Responds To Madigan Request For Legal Opinion: Advocacy Versus Education

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:

Hello Tony,

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.

Commissioner Madigan


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:

2006Mailing

“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.

advocacy2Advocacy1

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.”

 

29 thoughts on “Charter Commission Responds To Madigan Request For Legal Opinion: Advocacy Versus Education”

  1. “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.] ”

    LOL
    Catch of the Day.
    Kudos, John…

    Like

  2. Voting every four years on whether to change this successful form of Gov’t is the real HARASSMENT this whole process is disgraceful….the only new thing about this proposal compared to 2012 is nothing,we are being asked to VOTE on something we already rejected overwhelmingly……the problem is not the form of gov’t it’s the attention addict Pat Kane that is the problem!

    Like

    1. Here:

      https://saratogaspringspolitics.com/2017/02/28/charter-commission-moves-referendum-vote-to-november-election/#comments

      merlin wrote “What’s the current proposal?”

      Nine days later, merlin wrote, “the only new thing about this proposal compared to 2012 is nothing” (maybe he’s seen it, after all).

      Is he trying to have it both ways? Was the proposal leaked by Russian hackers? Think the public has a short memory? Can you yell louder than Rick Fenton? If you answered “yes” to all four, then JOIN MY TEAM! Have your people tweet my people. So many others have.

      #merlinsGottaGoToAFabulousResort It’s a perk.

      Like

      1. Don just got off the phone with one of your former team members,he told me you think of the change as as commission form in the body of a city manager who will be cheap to buy out in case the school board council makes a mistake in their judgement…..wait, wait I know in theory that never happens! How’d you know I was at a resort…..Assange? he leaked it right?

        Like

    2. Merlin, I am sorry that you feel that way. Actually there quite a few differences from previous reviews.
      Let’s grab a coffee when you have some time. 857-6129

      Like

      1. I called got a recording from 2012 which referred me to one from 2006,yea there’s alot of differences between this years and 2012….why does a successful city need a complete change of gov’t???Is it because a certain faction in the dem. party can’t beat a certain two on the city council?

        Like

      2. Pat, nice of you to offer to meet with Merlin one on one and sit down with JK for a chat about the charter but when do the rest of us get to see this finished document??? Wasn’t it supposed to be ready to go on the ballot for the election you wanted on May 30?

        Like

      3. Last time Pat,this city wants LEADERS they vote for not surrogates who will choose a person from east-bu-jesus and knows nothing about our city’s soul…but lets pay him or her or it a couple of years to learn it….now that’s better…save everybody thee inevitable and update the current charter which would be acceptable or.

        Like

  3. It would be hard to imagine why a charter review commission would not be expected to seek public support for its proposed charter. Commission members are appointed to do a lot of serious work on behalf of the people of the city. Along the way they do loads of research, interview dozens of people, and make a number of critical judgments toward crafting a charter that they think will empower and organize elected officials and the city workforce to make city government as efficient and effective as possible. They would be remiss if they didn’t make the effort to let people know why they came to the conclusions they did. The commission should be energetic in their outreach to the voters, with the enthusiastic support of our elected officials, to ensure that voters will have all the good information they need to make the best decision on Election Day.

    Like

    1. You must be joking….to say this bureaucratic city manager form of of governing would be better than the Commission Form is based on pure theory…bigger is more expensive and what you want is bigger not better…..this Committee had it’s mind made up before it vetted anything!

      Like

    2. I think the essential point is whether tax $$ should be used for that kind of advocacy… Take things off the Charter Commission for a moment. Many people would object to having, say the Comprehensive Plan Committee have the people pay for a mailing explaining their advocacy… Of course, the Charter Comm. members should be strong advocates for what they believe, and there are outlets to get the word out – like the media. If John (hypothetically) asked Professor Turner for an exclusive interview, he (Turner) should bolt out of the classroom if need be to make that happen.

      Like

      1. Straight Shooter:

        “It is not surprising that there should be a restriction on the use of public funds to persuade voters to vote on an action many may oppose.” Agreed. I am just saying this extends to council members and city employees.

        City Council members are expending public funds when they advocate from the council table by trying to block or facilitate one charter over then other. Council members also have a conflict of interest in this, their job and powerful position is on the line.

        “I like this form of government do not change it.”

        Council members are campaigning for one charter over the other and using their position to persuade voters for one over the other. If they want to do that on their own time OK but not from the table, in Cityhall or using city employees.

        Like

    3. Rick, you are correct it would be idiotic for commission members to create a city charter that they felt would be WORSE than what we have, so inherent in their being members of the charter review committee is the premise that each member will be an advocate for the new charter.
      What the attorney was saying was commission members can be advocates for the new charter but must do so on their own time with nonpublic monies. They cannot use public funds, much like sitting commissioner cannot use their city offices for campaigning. Public funds cannot be expended to advocate for one charter over another. The question becomes what constitutes an expenditure of public monies?
      Commissioner Madigan, by expending the time of the city attorney, by asking him to research this is actually spending public funds advocating for the existing charter. Commissioner Madigan, Scirocco and Frank, by being advocates for the old charter during commission meeting and are expending public funds in terms of their time and are violating the very thing the assistant attorney Tony is warning about. As the saying goes “Time is money”

      Like

      1. Spoken like a lawyer Paula but as you know it’s BS….the real Question is can you advocate and educate at the same time and use public monies for the sole purpose of ambiguous!…Good luck! The agenda of this group has nothing to do with making the government better,it’s a few rogue democrats desire to take over the city….it’s a power grab and will fail Paula!

        Like

      2. So, sorry, Paula, not following you again. The city attorney advising the charter commission on what they can and cannot do legally in terms of their use of public funds is advocating for the existing charter? And city council members are not commission members. So I’m trying to understand what they, as our elected representatives, expressing opinions at the council table on a public policy issues has to do with the restrictions surrounding the charter commissions efforts. Help me here.

        Like

  4. The issue that Mr. Fenton does not address in his comment is the issue of using taxpayer dollars to carry out these commission advocacy activities. It is the use of public funds that is the subject of Commissioner Madigan’s request to the city attorney and that is the focus of his reply.

    It is not surprising that there should be a restriction on the use of public funds to persuade voters to vote on an action many may oppose. Unions are restricted from using dues money for political action for the similar reason that not all members will want to pay to support a particular issue or candidate.

    As far as I know the Citizens United decision cited by Gordon Boyd does not address the issue of government entities spending public money in elections.

    The charter proposal drafted by this commission will be controversial enough. You’d think they would thank Commissioner Madigan and Attorney Izzo for bringing the issue of their use of public funds to their attention before they stumble onto yet another controversy to detract from their charter proposal.

    Liked by 1 person

  5. Merlin is correct:
    “Voting every four years on whether to change this successful form of Gov’t is the real HARASSMENT this whole process is disgraceful….the only new thing about this proposal compared to 2012 is nothing,we are being asked to VOTE on something we already rejected overwhelmingly……the problem is not the form of gov’t it’s the attention addict Pat Kane that is the problem!”

    But this is how Social-Marxism works.
    If you don’t get what you want, ram it down their throats until the gag reflex kicks in.
    Did everyone cut 7th grade social studies? Remember communism? They are now known as democrats.
    It was just a matter of time but nobody over 60 should be surprised. The rest of the rabble needs to wake up.

    AND:
    Tony (Izzo) replied “the only legal impediment is spending public funds to advocate for the adoption of the charter.”
    Well, that’s that.

    It’s time for the idiosyncratic-intelligentsia to take a hike.

    A good sign is that there are Friendly Sons of St. Patrick’s banners on Broadway.
    And St. Clement’s is celebrating its 100th!
    There is yet; hope.

    Like

      1. John– he should be amused! (add emphasis)
        Just seeing if anyone’s paying attention (lol).
        Keep up the good work.
        BTW– I read in the Saratogian that the Memorial Day Parade is going down Union again. Wasn’t it the Mayor’s office that failed to get the proper permits in time the reason for the SNAFU last year?
        Just wondering aloud; again.

        Like

      2. John. You are right. I am a registered Republican. I registered in 1976. I was born in the Saratoga suburb of Hadley NY some 60 years ago. The closest to Communism I got to was a visit to Key West and smoking a Cuban Cigar. i trust we will all be able to sit down one day and discuss the charter and many other topics.
        Thanks
        Pat

        Like

  6. If you review the video of last month’s council meeting, you will hear Com. Mathieson touting the new charter, right from the council table. Using the bully pulpit. According to our Paula, this shall not be done. What say you, Mr. Commissioner? Who we know is a follower of this blog.

    Like

  7. Agreed JK. I think JC was a bit out of bounds on that remark about Dems being Communists. I even hate it when Dems are labeled as liberals. When I see what is going on at 1600 Pennsylvania Ave. it makes me shudder.

    Like

  8. Dear John,

    I believe you have misunderstood what Jeff Altamari, Gordon Boyd, other members of the committee, and I were voicing our concerns about. Our comments concerned the First Amendment rights of the members of the Charter Review commission, not public funding of advocacy materials.

    In response to a question from an elected official opposed to charter change, the assistant city attorney suggested that private citizens serving on a city board should be careful what they say. This is a classic example of the “chilling effect,” where an individual’s speech or conduct is suppressed by fear of penalization by the law, in this case the City Council.

    At the previous City Council Meeting, Commissioner Madigan questioned whether charter members’ appearances on Look TV, editorials in the Saratogian, and other statements had crossed the line from information to advocacy. She subsequently sent an email to Tony Izzo, the assistant city attorney, that stated “I am trying to determine what types of educational or advocacy activities a Charter Commission is permitted to engage in.”

    Tony Izzo’s email, dated Feb 28, to the City Council in response to Michele’s question:
    “With respect to commission members engaging in advocacy that does not involve any spending of public funds, the analysis is less clear. … 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.

    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.
    Izzo’s legal memo to Commissioner Madigan suggested that there are limits on what members of the Charter Review Commission can say and that we should watch what we say. This is a clear violation of the First Amendment (yes, I misspoke).

    Commissioner Madigan, in a subsequent email to the Charter Review Committee, concurred with us. She wrote, “What you do and say on your own time, and with your own funds, has nothing to do with the city and Commissions use of public funds.”

    The secondary issue concerned whether public funds can be used for information or advocacy purposes. Both the Saratoga Springs Charter Review Committee and Commissioner Madigan agree 100% that public funds may NOT be used for advocacy purposes. We have identified a number of NY legal cases which spell out what constitutes the line between information and advocacy and look forward to working with members of the City Council to identity the criteria and process for distinguishing between information and advocacy.

    Like

    1. I really don’t want to get into a back and forth with members of the Charter Commission, but I have to respond to Prof Turner. He says the “secondary issue concerned whether public funds can be used for information or advocacy purposes”. Um, no, that was the only issue I asked about in my email to Asst City Attorney Izzo. It is really quite a stretch to turn this into a “chilling effect” on free speech, and he even quotes me saying as much (telling them they can do and say whatever they want on their own time and with their own funds).
      I am the Commissioner of Finance of Saratoga Springs. A big part of my job is to make sure taxpayer funds are spent appropriately – as the chair of the Charter Commission should be well aware – hence my rather mundane question to the Asst City Attorney. I often ask such questions in an effort to avoid any legal issues with how we use taxpayer funds. Accusations regarding censorship and harassment seem rather silly to me, and would be laughable if they weren’t so serious.
      I am not the only Council Member who has noted Charter Commission members’ numerous public statements bashing our current charter; other Commissioners have done so, more frequently and energetically than I have.
      Prof Turner also claims that I am “opposed to charter change”. I have never stated this, nor would it make sense for me to do so since his Commission has yet to disclose any details regarding the charter change they plan to propose. I like to wait for facts before making up my mind, so I do not have any opinion regarding this, yet. My only opinion thus far was that the taxpayers should not pay for a special election on this issue.

      Like

  9. Professor Turner’s and other commission members’ concerns over possible infringement on their freedom of speech seem to me to be just a tad overblown. The request for clarification that was made to the city attorney I would argue was perfectly legitimate particularly given the controversies over the materials produced by past charter commissions. Everyone seems to agree at this point that free speech is not an absolute right when the expenditure of public money is involved. End of story. I find it interesting how much time and energy the commission is expending on determining how they will sell a product that is not yet done.

    Like

  10. Paula,
    For me there is a difference between a charter commission spending designated funds which are regulated by law to advocate rather than educate and elected representatives expressing their opinions either for or against a charter change at a public council meeting. But that’s just my opinion. Also it seems to me a false argument that “Council members…have a conflict of interest in this, their job and powerful position is on the line” . It seems to me their jobs are on the line in November when they stand for election. Not all have even indicated if they are running and there is no guarantee they will have these jobs in the future.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s