Lavish Spending On Rehabbing City Hall? Let’s Take A Look

Saratoga Springs City Hall!!!

Common Sense Saratoga is the flagship website for the advocates of the proposed charter change that will be on the back of the ballot tomorrow (November 3, 2020), and they have been a major promoter of false narratives in this campaign. Their most recent attempt is to try to persuade Saratogians that the rehab of city hall has been an excessively lavish expenditure. They falsely claim that the city has chosen to buy expensive furniture and has made other profligate expenditures while laying off police and firefighters.

In an earlier post I have documented that the decisions and expenditures of rehabbing city hall predated the pandemic shutdown.

I thought it would be helpful to visit city hall now that it is again open to the public and see what the rehab actually looks like.

As the pro-charter people focus much of their disinformation campaign on the expenditures associated with Commissioner Michele Madigan and the Finance Department Office, my inspection focused on this area.

Commissioner Madigan’s office actually takes up only a small part of the space allotted for the Finance Department which includes workspace for a number of department employees and IT as well space for the public to come to pay their tax bills.

I first looked at the chair at the Commissioner of Finance’s desk. I thought if there had been lavish spending this chair in particular would be a good example of that. Perhaps given the accusations coming from the pro charter people, it might even be throne like.

Here is a picture of that chair.

Commissioner Madigan’s Chair

A bit of a disappointment I thought.

And here is the Commissioner’s work area.

Commissioner Madigan’s Desk

A nice poster of horses but where are the Picasso and Van Gogh paintings?

Below is the entrance to her office. This glass wall was part of the original building that the architects successfully urged the city to maintain.

External Entrance To Commissioners Office

Fortunately most of the original panes (see below) have survived.

Pane of Glass From External Wall

Due to limited space the Commissioner’s office also serves as a conference room. This is the conference table.

Conference Table

Below are examples of the features that have made our city hall greener and will be energy savers now and into the future. These are state of the art cooling and heating devices.

Air Conditioner
Heater

Note the rug. As part of their disinformation campaign the pro-charter people have been circulating on social media that the rug cost $17,000.00. You will see in the photos and videos that the rug covers the floor of all the Finance Department offices, some 2,200 square feet and cost $7.73 per square foot. It has a twenty year warranty. Given the heavy use of the area it required high quality material.

The Deputy Commissioner of Finance and the person who manages the telephone system and the mail for all of city hall share a work area in this outer office.

Deputy Desk/Area
Manager of telephone system and mail

This is one of the two new public bathrooms on this floor. The old bathrooms were poorly lit funky places.

Public Bathroom

Behind this wooden wall is the office of Christine Gillmett-Brown, Director of Finance. (Note the carpet)

Finance Director’s Office

These are the offices that handle people’s tax payments. The outer office is where payments are received. (Note the carpet)

This is a view of the outer office where the money is received. The architects constructed the barrier for security reasons given that payments are handled here. (Note rug)

This is the beautiful, original ceiling for this office. This ceiling had been hidden by a drop ceiling. When the architects had the drop ceiling removed they found the stored papers of New York Senator Edgar Brackett (1853-1924). Senator Brackett was a major player in local and state politics. The Wikipedia entry about him is well worth the read.

Finance Offices Ceiling

This is a short video of the kitchenette for the staff.

Kitchenette

The chair of one of the staff members in the outer office. They liked their original chair and declined a replacement.

Staff chair

View of the public side of the Finance Office

Public side of offices (Tile Floor)

Small room for staff to meet privately with citizens who have questions and concerns.

Private space

Closet

This is on the top floor of City Hall. A lovely window in the Planning Department’s office area.

Window

Directory In Elevator

Directory

New Council chambers.

This picture shows the video screen in the Council chambers. Note the ducts high on the wall. When the chambers were filled by the public it was usually insufferably hot. Those near the pathetic excuse for a window air conditioner got little relief while the noise of the unit made it hard to hear. Hooray for greener and better heating and cooling.

Video screen and air ducts

Two views of the rehabilitated music hall on the top floor of City Hall (where the fire began).

Music Hall
Music Hall

This opening is in the music hall. It provides access to a small kitchen. The city expects to rent the music hall for events similar to the way it rents the Canfield Casino.

Kitchen Window

The architects saved this old “water elevator.” It is located just outside the music hall.

This is part of the tile floor at the entrance to the music hall.

Tile floor

These are some of the improvements that now make city hall Americans With Disabilities Act (ADA)compliant. New elevators and newly designed hallways that have ramps incorporated into them.

One of the new elevators
Hallway with ramps
Hallway with ramps

Video of Commissioner of Finance’s Office

Video of Area in front of Finance Director Christine Gillmett-Brown’s Office (more carpet)

Christine Gilmette’s Office

Video of office shared by the Deputy Commissioner of Finance and the telecommunications/Mail manager for city Hall (With a little unintended chatter in the background)

Deputies Station/Office

Video of Music Hall

Music Hall

Based on my tour of city hall, it appears to me that the rehab was thoughtfully done. I did not find anything that suggested excess. Those of us who frequented city hall over the years and those who have seen the “before” pictures cannot help but be struck by the improvements. The city hall belongs to the people of Saratoga Springs. These office spaces do not belong to individual commissioners. Others will occupy these spaces in the years to come. We are fortunate that the citizens of our city take great pride in its character and beauty and history. The fire that severely damaged city hall gave us the opportunity to make it greener and to redesign it to address long standing issues like where to put the police department and how to provide the city courts more space that the state required as well as making it ADA compliant.

It is just another example of the pro-charter people trying to turn what has been a laudable achievement into an alleged scandal.

I urge people to visit their city hall and decide for themselves.

Pro-Charter Supporters Misinforms Public On Water Bills

A glass of water macro shot

The Common Sense Saratoga website is the flagship site for the pro-charter group. The latest disinformation campaign on this site is a twelve alarm warning, alleging that the city has dramatically increased water rates. The warning is false.

Here is a sample from the pro-charter website which includes shrill videos touting their allegations.

Are you shocked by the increase in your water bill–like so many in Saratoga Springs? It’s really time to put professionals in charge of City Hall. First, the Rec Center’s funding is cut to balance the budget. Now, this. When we look at other cities in the region, none of going through the type of funding cuts we are.

Common Sense Saratoga

The reality is that some residents’ bills have gone up considerably and the city did increase water rates in March but only by 2%. There were no water rate increases in 2018 and 2019 and the fund balance and overall health of the water budget is very strong.

This is a link to the resolution that increased the water rate.

So how to account for an increase in water bills beyond 2%?

Reftelis is a consulting firm. Working with Duke University they have been analyzing water consumption during the pandemic. Here is a link to their report. What they found was that residential consumption was up and commercial consumption was down. The drop in commercial water use is not surprising when you consider how the hospitality industry for example has been devastated by the pandemic.

On the other hand there have been multiple factors that have increased residential consumption. For one thing, during the pandemic people have been spending much more time at home resulting in greater water consumption. In addition this summer was extremely dry verging on drought conditions so people have been watering their lawns and gardens more. The fact that water bills are sent out quarterly can also contribute to sticker shock.

So if a resident’s water bill has gone up more than 2% then it can only be due to greater consumption (or a faulty meter which could account for a particular individual’s bill but not for widespread increases).

In this video from a news story on WRGB, Commissioner Scirocco explains the issues.

https://cbs6albany.com/news/coronavirus/covid-19-brings-unexpected-rise-in-water-bills

A Matter of Ethics

I can understand the quandary facing people who think the proposed charter is an improvement but who are fully aware of the profoundly dishonest nature of the campaign that is promoting it. How do you support changing the city’s government while maintaining your integrity by distinguishing yourself from these people?

One thing would be fundamental, I would never donate money to the people who maintain sites like Common Sense Saratoga. If I agreed to appear in a video on their site I would insist on including a statement that I disavowed many of the tactics on that site.

The only person I am aware of who was both a supporter of charter change and who was critical of the proponents’ tactics is Barbara Lombardo. On her personal blog during the 2017 campaign she both advocated for the passage of that charter while expressing dismay at some of the tactics employed by its advocates. She is opposed to this year’s charter change proposal.

Pro Charter People Try To Create Virtual City Rife With Incompetence And Corruption

OMG! The City Is Going Under!

[This post has been corrected. The two homes mentioned in the TU article were not in Geyser Crest but in the Meadowbrook area]

In order for people to abandon their form of government it is only logical that they would need to believe that serious problems exist that necessitate a change.

So let’s step back and consider Saratoga Springs’ situation, putting aside whether the reader thinks there is a form of government that would serve us better.

Up until the pandemic

* the city had maintained one of the highest bond ratings of any municipality in New York State.

*the city had not had a tax hike in eight years.

*the City Council meetings, led by Mayor Kelly have been a study in efficiency and decorum.

*the city’s streets have been well maintained, we have outstanding recreation resources in terms of our playing fields, our recreation center, and our ice rink.

This city is the envy of many and its strong real estate market serves to demonstrate that people love living here or wish that they did.

Hey, we live in a wonderful place.

This has not been a great environment to try to convince people that Saratoga Springs is in desperate need of restructuring its form of government.

So utilizing social media the pro-charter people have attempted to conjure up a virtual Saratoga Springs where corruption is rife, the infrastructure is in a state of decay, elected officials are hostile to their constituents, the city’s finances are collapsing due to profligate spending by officials, and a sclerotic bureaucracy is impenetrable to all but well connected insiders and developers.

Fortunately for the pro-charter people, they have a willing partner in this mission in the Times Union whose quest for readers is aided by publishing the group’s dubious accusations. The actual stories usually include information that undermines the group’s claims but, the TU’s sensational headlines (“Lead In City Water”) are weaponized by posting them all over social media.

Corruption?

I have already reported on the complaint submitted to the New York State Attorney General (AG) about alleged collusion between the Independence Party and the members of the City Council. Bill McTygue and Anne Bullock made the same allegations in 2019 to the AG. The AG took no action. Now, just before this year’s election they did the same thing. The Times Union had reported on the previous complaint but wrote a new story as though this were some new revelation. Ms. Liberatore, the author of the article, failed to remind her readers about the previous complaint and the fact that the AG had apparently dismissed it.

Water Crisis?

Last week (October 23, 2020) the Times Union ran a story, again by Wendy Liberatore, about two residents who had experienced water problems. Neither resident agreed to be interviewed for the story.

The story reported that the neighbors had allegedly reached out to Dillon Moran regarding their problems. Moran ran unsuccessfully against Public Works Commissioner Skip Scirocco last year. Moran has been among the leadership of the pro-charter group and enjoys the dubious record of having created at least one fake website meant to confuse people looking for the website of those opposed to charter change.

The TU story is actually quite fair in its substance. Both homeowners had their water analyzed by a firm in Ballston Spa and in both cases their lead levels were elevated. Following the flushing of the city’s water system, the lead levels dropped to acceptable levels in one of the homes and while the turbidity continued the report noted that it has “no health effects” and the Department of Health said the water was in compliance with standards. In the case of the other homeowner, unfortunately the TU story did not report on the results after the flushing.

The story goes on to report that the health department affirmed that “…the city water is in compliance with standards.” The TU article quoted a NYS Health Department email that stated:

The [health] department was made aware of elevated lead levels in the drinking water sample collected from two homes on Saddle Brook Drive in Saratoga Springs. Although the city remains in compliance with current standards, the department, through its Glens Falls district office, is working with the homeowners to troubleshoot potential sources of lead within their homes.

New York State Health Department

In response to an inquiry by the TU, Commissioner Scirocco wrote to the newspaper:

No test results have been submitted by the resident to the city for review or confirmation to date…This would appear to be a home plumbing issue, it is not indicative of the city’s overall water as demonstrated by the annual water quality report.”

Commissioner Skip Scirocco

So the problem, according to the NYS Health Department, is not systemic but rather unique to the home. Instead of approaching the city about the problem, someone other than the homeowner, presumably Dillon Moran, went to the Times Union to generate a news story.

If the reader wants to dig deeper into the history of Saratoga Springs water and the evolution of its municipal water system, Saratoga Today had an excellent story some years ago.

The Not So Subtle Campaign To Hype The Story

The Times Union is in the business of selling newspapers so with that in mind, consider the headline that ran over this story:

Report Finds Lead In Water

Just as bad if not worse was the subheading:

Search ongoing for source of Spa City contamination

It makes you wonder if the author of these headlines bothered to read the full story or just went with the sensational first paragraph.

The result has been a social media blitz by the leadership of the pro-charter advocates taking off on the headline and lead paragraphs and ignoring the counter information that comes later in the story.

Pat Kane, aside from being among the leaders of the pro-charter group, was the person who doctored a picture meant to get someone who works for the city fired. Here is one of many, many posts he has done claiming city water is unsafe:

Thank you. I stopped using tap water for our dog’s bowl. They are white dogs that have brown stains around their mouths. Since I gave them only filtered water, the brown staining has been fading every day. I am having a full house filter installed next week. I am now using Zero Water for all of our drinking water.

Pat Kane on Next Door

Or this one from Joanne Yepsen:

Until the rest of us on the eastern plateau have our water tested, we won’t know the extent of the problem. I don’t think we want to mess around with the water quality that comes into homes that our family drinks. I started by replacing a new filter for my refrigerator and will buy more bottled water.

Joanne Yepsen on Next Door

The threads on Next Door are really both sad and disturbing. Kane et al have fostered in some anxiety over the safety of the water on which they depend. There are posts where people worry about a ring of discolor in their toilet.

With local disinformation like this there is no need for bots or foreign hackers to undermine people’s sense of security and faith in their public institutions.

Public Officials Gone Wild?

The pro-charter people have seized on the current pandemic driven economic crisis to promote the idea that elected officials are lavishly spending money for fancy offices while laying off police and firefighters and cutting back on rec programs.

This story began several years ago when the pro-charter people got Wendy Liberatore to publish a false story that part of the capital improvements in the Finance Office included a private bathroom for the Commissioner.

Again, the story that just appeared in the Times Union was largely accurate. The bathroom is no longer “just for the commissioner” but for the fourteen members of the department. Up to now they have had to use the public bathroom that is small and that must meet the needs of the public as well as the members of the Finance Office. If you ever have visited this bathroom late in the day, you will have sympathy for the city employees who have endured using it.

The reality, as reported in the article, is that the decision to do the capital project was made in 2016. The city bonded for the project and the payments fell well within the city’s budget.

In fact, the contracts for doing the work had been awarded and the work was underway before the full impact of the pandemic hit.

The pro-charter people would have the public believe that the city chose to refurbish the offices rather than pay for police and fire. In fact, the bond money was restricted to the rehab work and most of the money had already been encumbered.

Let’s remember that this is part of a larger project to make our city hall “greener,” safer, and more accessible. It resolved the issue of the overcrowded police department and addressed the continuing demand from New York State for larger space for the courts among many other issues.

I would observe that this is our community’s city hall.

The Hyped Version

Again the headline for the Times Union story was the titillating, “$1.16M in Saratoga Springs finance office renovations raises eyebrows.” This was all the pro-charter people needed to play on the public’s fear about spending. The story allowed Ron Kim, a leader of the pro-charter group, to opine about how the city “…should have pulled away from spending on anything that was not necessary.” He also asserted that the city could have “…withdrawn from its spending agreements,” when, in fact, the money had basically already been spent.

In a social media post representative of the kind of liberties the pro-charter people took in their campaign, Mark Pingel wrote on the website NextDoor:

And in light of the Times Union article on over spending and palatial officers (SIC) for our commissioners, we need to make a change to get checks and balances. We must prevent our government from running amok any longer.

Mark Pringel, NextDoor

This city now finds itself under considerable financial stress, but it is plainly dishonest to attribute the problems we now face to the kind of gross mismanagement and corruption that the pro-charter people would like the voters of our city to believe exists. The reality is that the city’s income has experienced a severe blow from the pandemic all the more so as we are a tourist town dependent on visitors to fill our restaurants and hotels.

Hopefully the cynical campaign by the leadership of the pro-charter group will not prevail. Hopefully thoughtful people will see through all this and make up their minds based on the merits of the proposed charter rather than hype and misinformation.

County Attorney Stephen Dorsey Announces His Retirement

The Times Union is reporting that the Saratoga County Board of Supervisor’s attorney Stephen Dorsey has announced his retirement to take effect at the end of December. He claims his retirement has nothing to do with the debacle over Covid related pay raises.

His advice not to explicitly authorize the bonuses in the Board of Supervisors’ resolution was central to the chaos that ensued.

His contention that the special Covid committee that granted the raises was not subject to the Open Meetings Law was identified in the independent investigation as not supported by New York State law.

It appears likely that the insurgent Supervisors will have the votes to take power in January. It is reasonable to assume he would not have survived such a change. It’s too bad that Spencer Hellwig doesn’t have the good grace to join Dorsey.

An Appeal To The Leadership of Common Sense Saratoga

In an earlier post I wrote about a video on the Common Sense Saratoga website. The video was originally captioned “Someone sent us this video.” The video purports to be of office furniture thrown away by the city and sitting in the rain outside the Rec Center. The video has a running banner that contains easily documented false statements:

  1. The Commissioner of Finance zeroed out the Rec Department budget (She didn’t.)
  2. The pile of discarded items shown in the video was furniture bought by the city (It wasn’t furniture, and the furniture the city did lease for the temporary offices at the Rec Center was returned to the vendor. The items shown in the video were in fact the partitions used to set up the temporary work areas and had been sold at auction to the high bidder who was scheduled to pick them up.)

Ron Kim and Julie Cuneo are the co-chairs of Common Sense Saratoga and the following is an open letter to them:


Dear Ron and Julie:

This is a follow-up to my email to you both regarding the video that falsely purports to show furniture discarded by the city. In my email I documented how the video contained demonstrably false allegations, and I asked you to take it down.

Your website continually displays banners calling for transparency and accountability. In this age of bots and fake websites, the spirit of that clarion call is welcome.

What I do not understand is how your site can so blatantly violate those principles by displaying that video.

I had taken the liberty of posting comments on your website Common Sense Saratoga exposing the falsehoods in the video. I went up on your site tonight and discovered that my comments are gone. I also found that the text about “somebody sending you the video” was gone.

While I do not support your charter I am sympathetic to your commitment to improve our city. I believe that the value of your proposed ward system is the kind of idea that people of good faith can disagree about.

What I cannot understand is how you can undermine the credibility of your entire proposal by highlighting a video that is so clearly false. I would also have thought that both of you would be embarrassed by such a nakedly dishonest set of claims.

I find it even more troubling that you appear to assume that if you remove my comments from your website that you will be able to take advantage of an innocent public unaware of the truth.

Paraphrasing the late Ronald Reagen, “Mr. Kim and Ms. Cuneo, take down your video.”

Image by WikiImages from Pixabay

Charter Advocates: More Disinformation and Quite A Coincidence

.The advocates for charter change have put up a video on their website that purports to show furniture owned by the city, dumped in the rain behind the recreation center.

Mark Pingel, who is identified as one of the founders of Common Sense Saratoga, alleged the same waste in a post on Next Door with a link to the video. He asserted on the site “We witness that when the recreation center furniture, used for 2 years and still serviceable, is thrown out so we can buy new, at the same time laying-off city workers.”

In the video, as it pans the pile of construction which is partially covered by blue tarps a banner proclaims:

While commissioner of finance zeros out the Rec Departments budget

Thousands of dollars worth of city owned furniture (some used, some never opened)

Sits in the rain outside the Center after the administration moved back to city hall

And the Center’s floor was so damaged, the city had to spend thousands

To restore it — And then cut the Center’s funding

Video on Common Sense Saratoga’s website

First of all it is patently false that the “commissioner of finance zeroed out the rec department budget.” The Commissioner of Finance in the draft version of the 2021 budget allocated $1.2 million to pay for the rec director and one staff position along with the maintenance of the city’s fields and facilities.

Secondly, the city did not throw out the furniture it used at the rec center. This furniture was leased and has been returned to the vendor.

Third, the city did purchase partitions (they are what what are shown in the video) using insurance money to construct the temporary offices at the rec center. These were auctioned and the high bidder is scheduled to pick them up.

The gym floor is redone annually.

I have written to Ron Kim and Julie Cuneo who chair Common Sense Saratoga and asked them to take the video down. I will post their response when I receive it.


Spectrum News did a story on the charter controversy. In a bizarre segment of the video Ron Kim and Julie Cuneo are shown walking in Geyser Crest. They stop at what appears to be a random house where a young man is raking leaves. The narrator of the video asks him what he thinks about charter change and he extolls the need for a new type government.

As it happens, the young man is the son of Gordon Boyd who is a leader of Common Sense Saratoga (he donated $10,000.00 to them). In the background, also raking. is Gordon’s wife, Sharon. Spectrum News is supposed to act with some kind of journalistic standard. I would love to know how this episode came about.

Commissioner Madigan Discusses 2021 Austerity Budget

[JK: This is from a speaking out piece Commissioner Madigan published in the Saratogian]

I presented the 2021 Comprehensive Budget to the City Council on October 6. Since then I have noticed a significant amount of confusion regarding the realities to which this budget responds and how it will affect delivery of city services.

The unpleasant reality is that the economic impacts of covid-19 are real and far reaching, with no end in sight. State and local governments are in dire need of aid from Washington. Absent such aid, services will be compromised or eliminated, with millions of people losing jobs and/or significant portions of their income. The City of Saratoga Springs is facing a significant revenue decrease in 2021, having already suffered severe reductions in 2020, and we have to be prepared to carry on without that much-needed federal assistance. I estimate that the revenues underlying the 2021 comprehensive budget will be $6.8 million less than those originally budgeted for 2020 – and that’s after increasing property tax rates by 6%. That means planned spending for 2021 needs to be $6.8 million lower than was planned in the original 2020 budget – a 14% decrease. This is the challenge I am faced with as Finance Commissioner. Cuts in spending must be made. It is my job to work with the Council to figure out how. We can’t spend money we do not have, and we can’t pay for operating expenses with debt. That’s akin to a family borrowing money for groceries and housing. It’s not sustainable.

To minimize the number of required layoffs, the budget contains a 10% reduction in all city employee salary lines. With a 10% pay cut we can limit the layoffs, but they are still significant: 25% reduction in Public Works labor lines and 15% in Public Safety. A lower pay cut requires more layoffs, fewer layoffs will require a larger pay cut. Furthermore, budgeted Recreation Department expenses have been reduced but not completely eliminated, maintaining only the costs of the Director of Recreation, one staff person, and building and grounds maintenance and utilities for a total budget of 1.12M to start with. This means Recreations programs cannot incur any additional costs to the city, it does NOT mean that Recreation is shutting down. As budget neutral programs are implemented, the Budget will be amended to include them. 

This is a best effort to construct a budget that works for the city while minimizing pain. I firmly believe it is better to share pain equitably amongst all of us than to ask relatively more of some than of others, and that is what I have set out to do. As we address these challenges we must also be concerned about the city’s financial sustainability and longer-term fiscal health. We were able to tap into reserves and our fund balances to weather the pandemic through 2020. I have used similar funding, within reason, in the 2021 budget to mitigate expected revenue decreases. Allowing these reserves and balances to drop below minimal thresholds will have material long term consequences and should only happen as a last resort, which is why the 2021 budget maintains them at prudent levels.

With a close to $7M expected reduction in revenues, the city must closely manage costs, reducing salaries and head count while ensuring that any non-essential services or programs are budget neutral. We must weather the uncertainties of 2021 together, as we are all riding out the same storm in the same proverbial boat. We’ll need a little luck, too – 2021 is not the time for unexpected or unnecessary additional expenses, such as the expense that will be created if residents vote to change our form of government. I am hoping we can all work together as a community to avoid such expenses and meet these challenges together as the great city we are. 

Keep Governor Cuomo From Killing The Working Families Party

Andrew Cuomo is notoriously thin skinned and is notoriously vindictive.

In the last primary for Governor the Working Families Party endorsed Cynthia Nixon over Andrew Cuomo. Predictably, Cuomo was the architect of a commission meant to create a new public finance campaign system which ended up as a vehicle to kill the Working Families Party. The result was a new and onerous standard for third parties to get on the ballot. In order to stay on the ballot third parties must now garner a minimum number of votes in each election year for either governor or president. It raised the required threshold for third parties to qualify for the ballot by threefold: from 50,000 to the much larger number of 2 percent of total voter turnout, or 130,000 votes. The commission also recommended that parties be required to qualify every two years, instead of every four years under previous election law.

When his commission’s actions were successfully overturned in court he incorporated the changes into his 2020 budget. This time a legal challenge failed so the new standard is being implemented in the November election.

The Working Families Party has provided an option for candidates supported by neither the Democrats nor the Republicans. In the case of Saratoga Springs, Michele Madigan was able to win election to Commissioner of Finance using the WFP line along with the Independence Party.

This is a story from a website called the Intercept chronicling Cuomo’s machinations.

I am urging those voting for Joe Biden for president to cast their vote on the Working Families Part line in order to keep them as a player in New York State politics.

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.