Former Commissioner of Public Safety Lew Benton Opposes Current Charter Change Proposal: Excellent Piece Exposes False Claim That New Charter Will Have Separation of Powers

[JK: I received this from Lew Benton who served as the Commissioner of Public Safety. ]

Thoughts of the Proposed Charter

Four years ago the City’s then Charter Revision Commission invited former council members to share their views on the form of government.  

Recently I stumbled upon the comments I made to that Commission.  They represent a rather harsh assessment of the commission form of government.  

Those comments included the following:

“As you know, the current Charter was presented to the community on September 4, 2001, was approved at referendum that year and became effective January 1, 2004.  As such, it postdates my years as commissioner but I note my membership on the Commission which prepared it.

“It did not change the form of our government but rather was designed to more definitively describe the role and function of council members and certain other City officials, promote greater efficiency in programs and services, prescribe a comprehensive budgeting process, promote openness, require periodic reviews of the Charter itself and other presumed essential plans and programs, etc.

“In essence it was an attempt to reform and modernize – not change – our form of government. In hindsight, attempting to reform major governmental functions without recognizing and addressing the barriers to reform was probably akin to putting new wine in old skins.”

“From my perspective as a former public safety commissioner, a life long member of the community and a member of the 2000 – 2001 Charter Review Commission, I believe the changes resulted in certain benefits to the public and improved the administration of some key  governmental functions (operating and capital budgeting for example).   But they did not and could not address the fundamental flaws in our commission form: i.e., there remains no separation of powers between the executive function and the legislative function; the inherent conflict between the dual roles of legislator and administrator/executive was not addressed; the form’s inbred parochialism further impedes the legislative function, hinders oversight, argues against economies of scale and promotes turf struggles; and the recognition that the commission form was designed for extreme crisis management, not governance of a progressive, stable and fiscally sound city such as ours.”

Then, as now, I favored a mayor/council form with the mayor serving as the chief executive officer and members of the council serving solely in a legislative and policy making capacity, a form that would finally allow for a system of checks and balances and the separation of powers.

But the current proposal fails to distinguish the legislative and executive functions. In the final analysis, its failure to separate powers only aggravates the conflicts found in the commission form.  It is difficult to understand why the authors did not separate the executive functions, particularly since they claim to have done so, but that failure alone negates the benefits of scraping the commission system.

 Proposed Charter Does Not Separate Powers or Establish Checks and Balances

Many of those supporting the proposed charter cite separation of powers as its primary attribute.  And the proposal’s stated purpose (see Article I, Sec. 1.01) is to “…  provide for the separation and balance of legislative and executive functions and responsibilities in order to promote clarity, efficiency and responsibility within City government.”

But saying it does not make it so.  The proposed charter does NOT allow for separation of legislative and executive responsibility.  In fact, it does not recognize or establish an executive function.  

In Title 3, the current charter names the mayor as the City’s chief executive officer and at Title 2 establishes the City Council as the legislative body.  Granted, the mayor is a voting member of the Council and thus her powers are both executive and legislative.  But at least the current charter, with all its flaws, distinguishes  executive and legislative roles.   The proposed charter does not.

Under the proposed charter not only is the mayor’s executive authority removed, but all administrative duties as well.  Consider Section 2.04 of the proposal: “The Mayor shall be recognized as the head of City government for all ceremonial purposes, but the Mayor shall have no administrative duties …”  

And the proposed charter (see Section 3.04) casts the city manager as the “chief administrative officer” and the budget officer appointed by and serving at the pleasure of the city council.  The proposed charter does not and cannot empower the manager to serve in the executive capacity. So where is it vested?
 
By default, the executive function would fall to the new City Council as a whole.   This does not separate the legislative and executive roles but rather makes the two powers indistinguishable, powers that would be held jointly by all council members.  The City Council thus becomes the sole executive authority and the city manager becomes the administrative officer who serves at the council’s pleasure. In effect, the proposal would further entangle legislative and executive power, not separate them.  

Proponents may argue that the manager is a de facto executive, but executive authority cannot by law be given or transferred to a non-elected “manager,” even if that is the intended or stated purpose.  And it is not.

Yes, the proposal would at long last remove the administrative duties now vested with the four commissioners, but that alone does not accomplish the fundamental need to separate power and create a true system of checks and balances.  Rather it creates a potential power struggle between and among the council members and the city manager.

Better to keep what we have — with all its shortcomings and flaws — than to trade it for something worse.  Regrettably, in my view, the failure of the proposal to address the greatest flaw in the commissioner form of government – the absence of checks and balances and the separation of powers – has not been discussed or even recognized.

This charter is NOT what many of its advocates have said it is and I hope all actually read it before voting.

The Appropriation of James Madison

The fallacy that the proposed charter separates the legislative and executive functions has been advanced, knowingly or unknowingly, by many of its supporters.

Rather than detail how the proposal would separate powers and create a system of checks and balances, one endorsement decrees that it is “… consistent with our fundamental democratic ideals …”  and suggests that it is the very essence of the structure of government conjured by James Madison.  It is not.

In announcing its August 22 endorsement of the proposal, the chair of one of the City’s major political parties said:

  “We believe that the proposed change in the form of our local government is consistent with our most fundamental democratic ideals, including the separation of executive and legislative powers.”

Indeed, in its endorsement resolution, the party committee wrote that “ … a fundamental principle of democracy is the separation of executive and  legislative powers, as this ‘separation of powers’ is, in the words of Federalist Paper number 51, ‘The Structure of the Government [That] Must Furnish the Proper Checks and Balances Between the Different Departments…’ “

No doubt Madison, as author of Federalist 51, would be flattered.  But this proposed charter is no more representative of what Madison envisioned than the current commission form is.  Suggesting the proposed charter is a worthy example of the Madisonian model of checks and balances is embarrassingly  ignorant, arrogant and cringe worthy.

In early 1788, Madison, writing anonymously as “Publius,” published The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, otherwise labeled Federalist.

Addressed to the People of the State of New York, Federalist 51 began by establishing what Madison saw as the essence of what he called “… the foundation for that separate and distinct exercise of the different powers of government …”  Here it is with my emphasis:

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of he government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

The proposed charter does NOT meet the most fundamental elements of what constitutes separation of power and checks and balances as presented in Federalist 51: i.e., the means of keeping the legislative and executive authority “in their proper places” and “…  so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

A few examples:

The city council cannot even appoint its own clerk unless the clerk is nominated by the city manager.

The city manager can unilaterally fire the clerk to the city council.

The council can appoint the city attorney only from a list provided by the city manager.

It has already been noted, but warrants repeating, that the mayor and the city council will, by default, share the executive power.

The executive and legislative functions are not separated but rather co-joined and indistinguishable.

Council members are prohibited from dealing with city officials and employees.

Council Members Prohibited From ‘Dealing’ with City Officers and Employees

Advocates of a ward system argue that it would result in greater representation.  Residents, they argue, of each ward would have a direct link to their council member, someone who could address their  neighborhood concerns, resolve local issues and respond to inquiries.   But the proposed charter actually prohibits the council access to city officials and employees who have the resources, institutional knowledge and responsibility to respond.

Under the title Prohibitions, Section 2.08 C. of the proposed charter includes the following: “ …the City Council or its members shall deal with City officials or employees who are subject to the direction and supervision of the City Manager solely through the City Manager.”

Such a “prohibition” serves to limit a council members ability to seek out answers to constituent questions, address concerns or bring city resources to bear on identified problems in a neighborhood.  Why create a ward system – presumably to increase accountability – and then hobble the ward representative’s ability to address constituent needs and concerns?  

For example,  a group of residents in Ward 1 have a concern about a  drainage problem.  They ask their council member to address the issue but the council member cannot approach the city engineer or the Public Works Department.  The charter prohibits it.  The council member must present the matter to the City Manager who, in turn, presumably would ask the city engineer to investigate.  Then what?  Who knows?

Or imagine a constituent asks a council member a property assessment question.  The council member is not allowed to speak to the city assessor.  This is not representative government and it will not work.

Other Views

It is noted that two former commissioners of public safety, Ron Kim and Chris Mathieson, have come down squarely on the side of the proposed charter.

Former Mayor Ken Klotz argues in favor of keeping the current government which, notwithstanding the significant administrative and budgetary changes approved in 2001, has maintained the same form since 1915.  Ken specifically cites a council made of representatives of six city wards rather than at-large representatives for his opposition.  

I know, campaigned for and supported all three.  As members of the City Council they often acted with the political courage all too often absent in government.  I consider them friends but on this issue I disagree with all three.

I disagree with Ken on the question of form not on his opposition to a ward system.  And I believe Ron and Chris’s advocacy for a council/management form is misplaced because, again, it fails to establish a separate legislative and executive branch.

And I think Barbara Lombardo’s recent piece makes for a strong argument against the proposed ward system.

There are other legitimate concerns about the proposal but these are enough for now.  If adopted I hope the community will not end up with buyers’ remorse.