Revising City Charters In New York State

JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES

A Division of the New York Department of State

Andrew M. Cuomo, Governor Rossana Rosado, Secretary of State

Publication Date: June 1998 Reprint Date: 2015

NEW YORK STATE DEPARTMENT OF STATE99 WASHINGTON AVE

ALBANY, NEW YORK 12231-0001http://www.dos.ny.gov

TABLE OF CONTENTS

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Historical Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

City Charters: The Constitutional and Statutory Base. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Restrictions on the Content of City Charters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Public Hearings and Referenda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Approaches to Charter Revision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Revision by Charter Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Charter Revision by initiative and Referendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Charter Revision and Direct Legislative Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Charter Commission: Organizing for Work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Charter Commission at Work: The Charter Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Work Plan for a Charter Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Charter Commission and Public Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Major Issues for Charter Commission Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Determining the Form of City Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Issues of Structure and Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Structure and Powers of City Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Issues That May - or May Not - Be Especially Troublesome. . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Appendix.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Areas to be Covered in Department Head Interviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 

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INTRODUCTION

What is a city charter? It is the basic document thatdefines the organization, powers, functions andessential procedures of the city government. It iscomparable to the State Constitution and to theConstitution of the United States. The charter is,therefore, the most important single law of any city.1

Why should cities undertake charter revision? There are several reasons, generally stemmingfrom the fact that a charter affects everything thecity government does. It provides the basis formost municipal regulatory functions and for thedelivery of municipal services.

An obsolete charter can be responsible for manymunicipal problems. If it contains provisionswhich are unworkable under current conditions,municipal officials may have to make a difficultchoice between being responsible for inferiorservice delivery or inviting legal challenge fordeliberate, albeit well-meaning, deviation fromthe law. Until such provisions are eliminated, themost competent officials will be unable to carryout their responsibilities both efficiently andlegally.

Even though a charter may not be so obsolete asto present dilemmas of conscience, revision maywell lay the basis for improved governmentaloperations. A good charter should provide a cleardistribution of the powers of city government andclear descriptions of the duties and powers ofmunicipal officials.

A common failing of many city charters whichwere written prior to the early 1960s is that theyoften covered every detail of city operations,perhaps in an attempt to ensure certain home rulepowers. The length and detail of those olderdocuments tend to discourage citizen interest andunderstanding. Now that home rule is moresecurely established, charters can be (and often

are) used to delineate basic powers and structurewhile leaving the details of operation to becovered in an administrative code. It is essentialfor effective citizen participation that the generalpublic be able to understand the basic documentof their municipal government.

Many existing charters have been weakened andcomplicated by frequent piecemeal revisionsover many years. They may needcomprehensive review to determine the extentof revision required and to ensure internalconsistency.

Charter revision can result in improved citygovernment organization and operations. Reconsideration of governmental structure canresult in elimination of costly unproductivepositions. Clear delineation of lines ofresponsibility and authority facilitates the workof municipal officials, legislative as well asexecutive.

HISTORICAL BACKGROUND

The first State Constitution, adopted in 1777,recognized the colonial charters of two cities,New York and Albany. The Constitution furtherprovided that the legislature should “arrange forthe organization of cities and incorporatedvillages and to limit their power of taxation,assessment, borrowing and involvement indebt.” Thus, a special legislative act wasrequired to establish each new city and to amenda city charter. However, as the home rule powerof cities in New York expanded, cities won theright to amend their charters by local law.

By 1834, seven new cities had been charteredalong the State’s principal trading route, theHudson-Mohawk arterial between New YorkCity and Buffalo. These new cities wereBrooklyn, Buffalo, Hudson, Rochester,Schenectady, Troy and Utica. Thirty-two more

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cities were created between 1834 and 1899 asthousands of immigrants were drawn to the Stateto work in the multiplying and expandingindustrial and commercial enterprises. The mostrecently chartered city in New York is Rye, whichcame into being in 1942, bringing the number tothe present total of 62.

In the absence of a general law providing for theincorporation of cities, city government in NewYork differs substantially from city to city,although the basic purposes and functions of citiesare similar.

Since each city has been separately chartered bythe legislature, there is no general constitutional orstatutory standard of population or geographicalarea. As a consequence, the populations of thecities (other than New York City with its morethan 7 million people) range from 2,864 (Sherrill)to approximately 328,100 (Buffalo). Land areasrange from 0.9 square miles (Mechanicville) to 72square miles (Rome) with 303.7 square miles inNew York City.

There is no concept of progression in size amonglocal governments from village to city. Forty-nineof the State’s 62 cities had 1990 populationssmaller than that of the largest village, and 182 ofthe State’s 556 villages had more residents thanthe smallest city.

The struggle for increased home rule powers forcities in New York State has been long and hard. It was not until the late 1800s that the Legislaturebegan applying statutes to cities generally ratherthan passing specific laws on individual localmatters. Municipal home rule was a major issueat the Constitutional Convention of 1894, and as aresult of its recommendations, cities were dividedinto three classes by population to enable theLegislature to pass general laws that wouldaddress the problems of cities of various sizes.

Finally, in 1924, a Home Rule Amendment to theConstitution, followed by the enactment of theCity Home Rule Law, granted powers to cities to

choose their own form of government and toamend their charters by local law withoutspecial action by the Legislature. Theprovisions of the City Home Rule Law wereincorporated without substantial changes intothe present Municipal Home Rule Law when itwas enacted in 1963.

CITY CHARTERS: THECONSTITUTIONAL AND

STATUTORY BASE

The nature and scope of subject matter whichmay be included in a city charter or charteramendment is that which the cities mayaccomplish by local law. The grant of local law2

powers to cities is derived from the New YorkState Constitution, Article IX, as implementedby, and spelled out in, the Municipal Home RuleLaw. Under this basic grant of local law power,cities may:

1. Adopt or amend local laws in relation to their“property, affairs or government” that are notinconsistent with the provisions of theConstitution or with any general law; and

2. Adopt or amend local laws not inconsistentwith the Constitution or any general lawrelating to several specifically enumeratedsubjects, whether or not these subjects relateto the “property, affairs or government” ofcities.

The term “property, affairs or government,” asused in section 10 of the Municipal Home RuleLaw, constitutes a broad grant of local lawpower to cities to manage their governmentalaffairs and operations and to discharge theirresponsibilities to satisfy local needs as thoseneeds are perceived in the cities themselves.

Specifically enumerated areas in which a citymay adopt local laws include:

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P the powers, qualifications, number, mode ofselection, removal, terms of office,compensation and hours of work of its officersand employees;

P the creation and discontinuance of governmentdepartments;

P the protection of its environment;

P the health, safety and welfare of persons andproperty within its boundaries;

P the licensing of businesses and occupations;

P the levy, collection and administration of localtaxes and assessments;

P acquisition and management of real andpersonal property;

P authorization of benefit assessments for localimprovements; and

P the membership and composition of itslegislative body.3

In some instances, a city’s scope of authority toadopt and amend its charter may be broader thanthe city’s local law power. The provisions of anyexisting charter, or general or special state lawpreviously enacted conferring a right, power orauthority or imposing a duty or obligation on acity may be continued in a new city charter oramendment of an existing charter. If, therefore,4

the State legislature has delegated a specificpower to a city, even though the city in the firstinstance had no authority by local law to assumefor itself such power, the power may be continuedin a new charter or amendment of an existingcharter.

Restrictions on the Contentof City Charters

The power of cities to enact local laws is subject

to several limitations which likewise limit theirauthority to adopt and amend their charters.

First, the constitutional grant of authority tocities for the adoption of local laws itselfcontains certain restrictions. A local law cannotbe inconsistent with a general state law or theNew York State Constitution. A general law isa law enacted by the State Legislature which interms and effect applies alike to all cities.5

Second, the State Legislature in enacting theMunicipal Home Rule Law (section 11),specifically restricted the adoption of local lawswith respect to several particular subject areas.For example, a local law may not supersede astate statute if the local law removes arestriction relating to the issuance of bonds orother evidences of indebtedness; affects themaintenance, support or administration of theeducational system or a teachers’ pension orretirement system; or applies to or affects thecourts.

Third, the scope of local law authority isrestricted with respect to subjects which thecourts have determined to be areas of stateconcern. A matter of state concern is a subject6

area which the courts have decided affects theresidents of the entire state rather than only the“property, affairs or government” of a particularlocality. The courts have determined that suchareas include taxation, transportation andhighways, parks, incurring of indebtedness,water supply, education, social services, health,banking, rapid transit, civil service, housing andmunicipal boundaries. Generally speaking, acity may not adopt a local law relating to amatter of state concern unless such enactment isauthorized specifically by the Municipal HomeRule Law, section 10(1)(ii) or unless the StateLegislature has specifically granted such powerto the city.

Finally, local laws may not be enacted withrespect to subjects for which state law clearlyindicates a state purpose to preempt or

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completely occupy a particular field. Preemption7

occurs when state regulation in a particular area isso comprehensive as to indicate an intention toexclude local legislation.

Public Hearings and Referenda

When city charter revision is to be accomplishedthrough the adoption of a local law by a legislativebody, a statutory public hearing is required, as isthe case prior to enactment of any local law.8

In the case of charter revision submitted by acommission or voter initiative, a public hearing isnot mandatory, but highly desirable.

The Municipal Home Rule Law section on charterrevision by commission does specify that a chartercommission is responsible for publicizing theprovisions of the proposed charter oramendments.

A local law, enacted by a city council, establishinga new charter for a city, is subject to mandatoryreferendum. Amendments to existing charters by9

local law may be subject to referendum, eithermandatory or on petition, if they meet specificcriteria enumerated in sections 23 and 24 of theMunicipal Home Rule Law. A new charter orcharter amendment proposed by elector initiativepursuant to Municipal Home Rule Law, section 37must be submitted to the city’s voters forapproval, as is the case when proposed by a citycharter commission.10

APPROACHES TO CHARTERREVISION

The Municipal Home Rule Law provides threeways to revise a city charter: by chartercommission, by initiative and referendum or bydirect legislative action.

Revision by Charter Commission

A charter commission may be established byany of three procedures set forth in section 36 ofthe Municipal Home Rule Law.

The city’s legislative body may establish acharter commission by local law, or it maysubmit to the city voters the question (also in theform of a proposed local law, to take effect uponvoter approval) of whether or not there shall bea charter commission. In both instances, thelocal law enacted by the council may eitherindicate the number of members of thecommission or provide a method fordetermining the number. Whether the membersshall be elected or appointed must also bespecified. The local law also must prescribe themanner of appointment or election ofcommission members.

The mayor of a city may create a chartercommission by appointing no less than nine normore than 15 residents of the city to serve asmembers. The commission is established uponthe filing with the city clerk of the mayor’scertificate of appointment, which also will namethe chairman, vice chairman and secretary.

The establishment of a commission by voterinitiative requires signatures equal to 15 percentof the votes cast within the city for Governor atthe last gubernatorial election — or 45,000,whichever is less. If the petition is found tomeet all the requirements of law, the legislativebody is required to submit to a referendum thelocal law as proposed. The local law mustprescribe the composition and structure of thecharter commission and provide a method forappointment or election of its members. It mayalso include the names of specific persons toserve on the commission.

After a charter commission has been createdpursuant to section 36, it is charged withresponsibility for reviewing the entire charter

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and preparing a draft of a proposed new or revisedcharter. The new charter or amendments are to becompleted and filed with the city clerk in time forsubmission to the voters at the next general or aspecial election. The proposed charter oramendments may be submitted in a singleproposal or may be presented in parts withalternative provisions among which the votersmay choose.

Charter Revision by Initiativeand Referendum

A city charter may be amended under section 37of the Municipal Home Rule Law. Under thismethod, if a number of city voters equal to at least10 percent of the votes cast for Governor in thelast gubernatorial election — or 30,000,whichever is less — sign a petition for submissionto the voters of a proposed local law providing fora new charter or charter amendments, theinitiative process is under way. The petition andproposed charter changes are filed with the cityclerk, who is required to determine the legalsufficiency of the petition, subject to judicialreview. Whether or not the clerk determines thatthe petition is legally sufficient, he is required tosubmit the proposal to the city legislative body.

If the proposed changes to the charter are not of akind which require a mandatory referendum, thelegislative body may, if it wishes, adopt theproposed local law itself. If the proposed changesrequire a referendum, the legislative body maysubmit the proposal to the voters at the nextgeneral election.

If, however, the legislative body fails to adopt thepetition without change within two monthsfollowing its filing and such petition meets all therequirements of law, a number of voters who didnot sign the original petition equal to five percentof the votes cast for Governor at the lastgubernatorial election — or 15,000, whichever isless — may file an additional petition with the cityclerk requiring the submission of the proposed

local law at the next general election for voterapproval.

If this additional petition is found to beadequate, the clerk is required to present thematter to the election officials for referendumwithout further action on the part of thelegislative body.

If the proposed local law amending or revisingthe charter receives the majority of the votescast in the referendum, it is adopted, and thenew charter or charter changes will be in effectas provided in the proposal.

Charter Revision and Direct Legislative Action

A third method of revising a city charter is bydirect action of the legislative body under itslocal law power as provided in section 10 of theMunicipal Home Rule Law. Although thisoption is infrequently used, it is possible for acity council, for example, to proceed directly torevise the city charter in this manner rather thanby creating an independent charter commission. In this case, the city council, in effect,constitutes itself as a charter commission andproceeds, usually through its own committees,to accomplish the amendment of revision of thecharter. Whatever changes are agreed upon arethen enacted by local law subject to mandatoryreferendum or referendum on petition if sorequired by the Municipal Home Rule Law,sections 23 and 24.

THE CHARTER COMMISSION:ORGANIZING FOR WORK

Establishment of a charter commission andinitiation of its work involves the considerationof many preliminary details, such ascomposition, staffing, financing, organizationand general procedures.

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Only in the case of a mayor-appointedcommission are there legal provisions regulatingthe size of a charter commission: no less than ninenor more than 15 members. There is no hard andfast rule specifying the most desirable size of acommission. A major consideration indetermining composition, however, which mayinfluence the size, is the type of representationdesired. Representation in turn depends to a greatextent on the degree of social and economichomogeneity of the community. For example, insome cities where council members are elected bywards, each council member and the mayorappoint one person to the charter commission,thereby transferring to the charter commissionmuch the same refection of community interestsas are found in the council.

The question often arises as to whether theappointees should be elected officials or laycitizens. There is no hard and fast rule whichapplies in all cases. Experience has shown,however, that elected officials and other keyopinion leaders in the community havedisproportionate influence upon the outcome of acharter revision effort. No matter how good apublic opinion program (discussed later in thismanual) is, opinions expressed publicly, pro orcon, by well-known individuals are likely to havea significant impact on voters. It is, therefore,usually advisable that elected municipal officialsplay a meaningful role in the charter revisioneffort from the outset, to gain the benefit of boththeir experience and their sense of what will beacceptable to the public.

The most important consideration in thecomposition of a charter commission is that itinclude representation adequate to give a voice tothe diverse viewpoints in the city, includingpolitical interests and ethnic communities, whichare likely to have a stake in the substance of thecharter. The formula for providing suchrepresentation must be devised with specificcommunity characteristics in mind, since successin one city is no guarantee of success in the next.

The basic organization of a charter commissiondepends in part on how it came into being. Ifthe commission was established by the mayor,the chairperson, vice chairperson and secretarywill have been named by the mayor. In the caseof a charter commission created either by thelegislative body or by initiative, the choosing ofthese officers will be the first order of thecommission, unless the legislation creating thecommission also specifies its membership andorganization. If no chairperson has been named,the mayor or a member of the legislative bodycan convene the first session of the commission.

Once the basic organization is established, thecommission may wish to name a treasurer andparliamentarian and to set up a committeestructure. It is usually desirable, however, todevise a work plan before the committeestructure is determined.

Other issues that may be considered at the firstmeeting are:

P how often the commission will meet;

P whether it will establish its own set of rulesor operate under general parliamentary rules(particular attention should be given todefining a quorum);

P how decisions will be made (by simple orextraordinary majority vote or by consensus);

P what are the commission’s financial needs;and

P what type of expert assistance should besought.

Provision should be made to supply eachmember of the commission with a copy of thecurrent city charter before their deliberationsstart. At the same time, members shouldbecome familiar with the legal andconstitutional provisions that affect the work ofa charter commission and those relating to city

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charters in general. Basically, this means learningabout what the Municipal Home Rule Law sayson the subject. One way of accomplishing thisobjective is to invite a speaker to attend acommission meeting.

Charter commissions may need two kinds of staffassistance: for gathering data and administrativeanalysis; and legal expertise of the preparation ofa draft charter. It is also assumed that thecommission and its staff will have, or have readyaccess to, adequate clerical and stenographicassistance.

The staffing of a charter commission can beprovided in a variety of ways: managementconsultants and/or attorneys may be retained; full-time or part-time clerical and professional staffmay be employed; or a combination of thesearrangements may be suitable. Locating expertsin charter work, however, is not an easy task,since several kinds of competence are desirable.

The members of charter commissions usually lookfirst to the legal profession to find expert help, andlegal expertise is essential to good charter work. An attorney who has experience in public affairsand/or the field of municipal law is well qualifiedto provide assistance.

Persons with special competence in municipalgovernment organization, administrativeoperations and public administration can be foundin universities, governmental research institutionsand consultant firms. In some communities, aformer public official with long experience inlocal government may be available to assist thecharter commission.

Overall, municipal government generalists,working with legal counsel, can provide thecompetence needed for charter drafting andrevision. The flexibility in staffing a chartercommission, of course, will be determined largelyby the financial resources available.

Realistically, a charter commission will need

some money to conduct its work. Even ifconsultant expenses are not to be incurred, thecommission will need secretarial services,supplies, postage, printing and, perhaps, a smalltravel budget and funds for disseminatinginformation to the public.

Potential sources of money to cover chartercommission expenses include grants frompublic or private sources and in-kind servicesfrom city agencies, a local governmentalresearch bureau or other private sources. Recognizing the diminishing fiscal resources ofcities, it is nevertheless the city’s responsibilityto make some financial commitment to a charterrevision effort which is designed to keep thecity’s fundamental law up to date. In any event,a charter commission without funds may finditself severely handicapped and a potentiallysuccessful product jeopardized.

THE CHARTER COMMISSION ATWORK: THE CHARTER PROCESS

Before a city charter can be drafted or revised, asubstantial amount of preliminary work isnecessary to ensure a good quality product. Theentire process should be carried out inaccordance with a plan. The question of how toensure, to the greatest extent possible, theadoption of the proposed revised charter shouldreceive careful consideration. Moreover, manyspecific issues must be explored, understood,discussed and resolved before actual charterwriting is undertaken.

Work Plan for a Charter Commission

The preparation of a work plan and a timetableis recommended as the first step in the revisionof a charter. An orderly method of proceeding

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will facilitate the work of the commission, willenable the members to understand the relationshipof their separate tasks to the overall project andwill help to assure completion of the work withintime constraints imposed by state law. While thework of the commission and its schedule willdepend in part on whether or not it retains aconsultant, the work plan will include commonelements.

The timetable developed by the chartercommission should set specific times forbeginning and completing each of the elements. Itwill be apparent that it is possible to carry outmore than one element at a time. In any event, theschedule will have to stay within time limitsimposed by law and by a decision as to when theproposed revised charter is going to be submittedto the voters. A charter commission which setsout to accomplish a complete charter revision orthe drafting of a wholly new charter is welladvised to schedule its work over at least a fullyear.

A work plan normally begins with one or moreorientation and education sessions for chartercommission members. Normally included in thiselement is a general briefing on the functions of acity charter, some background information onprinciples of governmental organization andadministration and examination of samplecharters.

Research and analysis of the existing municipalgovernment is necessary to permit commissionmembers to identify areas of municipalorganization and operations which can beimproved by charter changes. Some chartercommissions find that the city government is insome respects operating outside the charter, if notin violation of it. An important consideration,therefore, is to determine the extent to which thegovernment is currently operating according toprovisions of the charter. This step can beaccomplished by a combination of twotechniques:

P First, a review of operating budgets,departmental annual reports and otherdocuments can reveal patterns of citygovernment organization and operations.

P Second, a survey of the department heads andpossibly other employees by questionnaire orinterviews, or both, conducted by consultantstaff and/or charter commission members canprovide valuable insights to supplementtestimony given by department heads atmeetings of the charter commission. Asample outline of questions for such a surveyis provided in the Appendix.

The charter commission might simultaneouslyundertake a general review and analysis of theexisting charter because this work and thegovernmental survey are closely interrelated. Several questions to be answered during thispreliminary phase are whether the charter isoutdated, whether it is too detailed, whether it isambiguous concerning the powers and duties ofvarious city officials and operating units, andwhether it is internally consistent. It would alsobe useful at this time to review the principalfeatures of past charter revisionrecommendations and to determine, if possible,why they succeeded or failed to gain voterapproval.

At this stage, the commission needs to considerkey issues and have alternatives outlined for italong with a review of pros and cons for eachoption. It is at this stage, in the identificationand description of key issues and alternativecourses of action, that a consultant can providevaluable service. Lacking a consultant, thecharter commission may want to seek outtemporary assistance to guide it through thecrucial stage of identifying and consideringmajor issues and making decisions essential forcharter drafting. It is essential, also, to follow asystematic format for orderly presentation anddiscussion of topics.

It is often desirable, during the deliberation

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phase of charter revision, to provide opportunitiesfor citizens and groups to express opinions on themain charter issues at public meetings set asidefor this purpose. The information gained can beextremely helpful to commission members inassessing the public’s receptivity to possiblemajor changes, such as abolishing or adding anelective office. Several meetings of the chartercommission can be set aside to receive publicviews on specific issues under consideration.

If possible, the commission should reachdecisions on all major issues before charterdrafting is started. If all major questions havebeen resolved, the commission will be able todevote full attention to questions on how thedecisions can best be implemented. The charterdrafter can then be given the necessaryinformation and guidelines to prepare a first draftof a revised charter. An undisputed point is thatthe charter commission as a body cannot write acharter. If no consultant is available for the task,the commission members should be organizedinto small committees to handle the drafting ofspecific sections, with one person responsible forassembling the separate drafts into an internallycoherent charter.

If the revised charter is a short document, it maybe feasible for the commission to review the entiredraft as a unit. Usually, however, it is preferableto present the draft one section at a time as it iscompleted. This procedure will divide theworkload more evenly over time and avoidswamping the commission at the end with alengthy document to be reviewed under deadlinepressures. As discussion proceeds on these draftproposals, it is, of course, possible for thecommission to reverse its judgments in light offurther reflection, additional information orinsurmountable difficulties in developingimplementing language.

The only legal obligation to be met by the chartercommission at this stage in the charter revisionprocess is the responsibility for publicizing theprovisions of the proposed charter or

amendments. Some cities provide for moreextensive public review of the proposeddocument by printing and distributing copies inaddition to holding full-scale public hearings.

As a result of the final public hearing, thecommission may make further revisions in theproposed charter. When the document is at lastin final form, it must be filed with the city clerkwithin the statutory deadline imposed on thecommission’s work for submission to the votersin accordance with the Municipal Home RuleLaw.

The Charter Commissionand Public Education

An effective public education programconstitutes one of the most important aspects ofa charter revision effort. From its first meetingto its last, a charter commission should considerits relationship to the public whose ultimatejudgment of the commission’s work will beexpressed in the form of referendum votes. It isdifficult, at times, to keep a new charter frombecoming a political — even a party — issue. Opponents might adopt a critical stance withrespect to a commission’s efforts to educate thepublic about the revised charter, andparticularly, with any effort it might make toadvocate passage of the proposal.

Regardless of how it conceives its role, it isessential that the charter commission conduct apublic education program. The earlier it isstarted, the greater the chances for generatingand sustaining widespread interest in thecommunity. Another benefit is to permit thecharter commission to test public reaction tovarious viewpoints and proposals underconsideration. In addition, it may be valuable interms of developing public support foralternatives to the status quo to be proposed bythe charter commission. Finally, thecommission will want to prepare the voters tovote intelligently.

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A variety of techniques can be used to conductsuccessful public education programs. During theinitial phases of the charter commission’s work, amember or subcommittee should takeresponsibility for issuing accurate and completepress releases following each meeting. Designated members, or in some cases, allmembers, can make themselves available forinterviews and public appearances to explain thefunctions of the charter commission and create apositive image from the outset. Mediarepresentatives should be invited to attend allcommission sessions.

Another successful method used in some cities isa series of public hearings. As was pointed outearlier, public hearings throughout the charterrevision effort, though not required, can be aneffective way of both increasing citizen awarenessand measuring public opinion — a two-wayprocess. The public hearing is also a vehicle forconsulting various groups and organizationsconcerning their views and ideas on the city’sgovernment and charter revision. Among themost important groups in the community thatshould be consulted are city officials andemployees. The public hearing can serve as ameans for soliciting their ideas and opinions. It isessential to get their input in terms of informationand advice on operations of the city and thepossible effect of various charter proposals onmunicipal operations. By turning to theseofficials, and carefully considering their views, thecommission may gain the support of thisinfluential group.

The schools should not be overlooked as amedium for the conduct of a public educationprogram. The preparation of a new city charterprovides important and interesting subject matterfor citizenship and public affairs education in theschools. This will educate future voters and willalso inform older family members when studentscome home and discuss “what they did in schooltoday.”

The most active phase of public information

begins after the proposed charter revision hasbeen drafted. The traditional public informationtechniques such as brochures with briefquestions and answers, open letters withendorsements published in newspapers,interviews on news programs, and public serviceannouncements on the media are equallyapplicable to charter revision efforts. Oneapproach thought to be particularly beneficial isfor charter commission members to explain thenew charter in speaking engagementsthroughout the community.

Public opinion polls on specific issues may beof some value, although they should be usedwith caution, even when conducted by areputable consultant, since it is often difficult toapply reliable techniques in relatively smallareas. A further consideration is thatprofessional polling is often excessively costlyin relation to the value of the results.

Yet another option to be considered inimplementing the public education program ispublishing in a pamphlet either the draftproposed charter or a narrative final report offindings, or both. Many charter commissionshave found that the narrative is most effective. It is a statement to the voters in languageunderstandable by lay citizens. It can spell outthe main features and merits of the new charterand explain why each provision was proposed. It can help to ensure that the impressions andinterpretations made, especially by the press, arecorrect and as favorable as possible.

In addition to its concerns with keeping thepublic informed, the charter commission willwant to keep in mind that yet another dimensionof its purpose is to gain approval of its charter. Regardless of the thoroughness of the publiceducation program, it will not be possible toreach and inform every voter who can beexpected to vote in the referendum. As notedearlier, many votes are certain to be determinedon the basis of comments expressed andpositions taken by opinion leaders in the

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community. It is therefore advisable to take threemore steps: to seek help and support frominfluential citizen groups, to solicit editorialsupport of the local newspapers, and to obtain theendorsement of municipal officials and, ifpossible, political party leaders. Experience hasindicated that any one or all of these may beespecially significant in influencing the outcomeat the polls.

THE MAJOR ISSUES FOR CHARTERCOMMISSION DECISIONS

A commission undertaking a review and revisionof a city charter will find it necessary to makesome early basic decisions which will have muchto do with the remainder of its work. Some ofthese will relate to the commission’s objectivesand its conception of its function. Others willrelate to the determination of what kind of citygovernment the commission wishes to proposeand will result in part from the way thecommission sees its purposes and in part fromconsideration of certain fundamental alternatives.

With exceptions for special local situations, thebasic issues which call for decisions by a chartercommission are much the same for all cities. Twoissues related to the form of a city charter requiredecisions before the commission can proceedeffectively with its work. The first of these iswhether to revise the charter by amending specificprovisions while leaving others relatively intact,or to draft a wholly new charter. The second,relevant primarily to wholly new charter drafting,is whether to propose a “long-form” or a “short-form” charter.

In deciding whether or not to propose piecemealamendments to the existing charter or to propose awholly new charter, the charter commission willweigh a number of basic considerations. The firstof these is the mandate to the charter commission,which may or may not indicate clearly whether the

commission is to proceed with drafting a newcharter or with amending the old.

A second consideration is the judgment of thecommission members as to the reasons why thecharter commission was created. To make thisdetermination, the commission will want toanalyze carefully the nature of specificobjections to the existing charter. If the charteris merely old, contains archaic provisions andinappropriate or ambiguous language, or if someof its provisions have been made inoperative bystate legislative or judicial action, it is possiblethat a piecemeal amending process mayaccomplish the desired purposes. If, however,in addition to all of these conditions, thedeficiencies relate to important structural oroperational arrangements in the citygovernment, or if there is a desire to make basicchanges in form and organization of thatgovernment, a wholly new charter is clearlyindicated.

A third consideration will be the commission’sjudgment of how best to make the proposedchanges intelligible to the voters of the city. Presentation of a number of separate proposalsfor change has the advantage of keepingcontroversial proposals from impairing thechances of less controversial amendments in areferendum. On the other hand, a host ofseemingly unrelated proposals may confuse andbewilder the voters. It is difficult to produce aconsistent, coherent result with a piecemealapproach to charter revision.

Lastly, the charter revision effort may be madean ongoing activity over a period of severalyears, if that seems desirable. Individualsubjects or sections of the charter can be takenup and a limited number of revisions presentedto the voters each year. This approach maywork particularly well in areas such as financialprocedures, which can be addressedindependently. It should be noted, however, thatthe charter commission would have to berenewed after every election at which

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propositions are presented.

In many cities, the number of controversial issueslikely to cause a complete charter revisionproposal to be defeated may in fact be quitelimited. In such a case, New York law permits acompromise between presenting a singlecompletely revised charter document and a seriesof separate amendments. What can be and hasbeen done effectively is to submit to the voters acomplete charter but with alternative provisionsfor those sections where lack of such a choicemight generate sufficient negative votes to defeatthe whole charter.

Whatever may be its final choice as to method ofsubmission, a charter commission will want tomake an early decision as to whether its objectiveis to produce a completely new charter or topropose a limited number of amendments. Thecommission’s work plan and time schedule willdepend largely on this decision.

How does a charter commission determinewhether it will keep or produce a long-form orshort-form charter? Most city charters are long,involved documents containing large bodies ofdetail relating to the organization and operation ofthe city government. The terms “short-form” and“long-form” relate to the amount of detailincluded in the charter document.

A short-form charter provides only for thestructure and powers of the city government,establishes the basic offices and sets forth generaloperating arrangements. The details oforganization and operations, and for implementingthe powers and carrying out the functions of thecity government, are left to an administrative codeenacted by the legislative body as a local law. Asa general rule, the charter is subject to voterapproval but an administrative code is not, since itassigns no powers but only specifies how powersare to be exercised and how duties are to becarried out. A sometimes quoted rule of thumb isthat a charter says “what can be done and providesthe machinery for doing it, while an

administrative code spells out how it is to bedone.” While this statement is no doubtoversimplified, it suggests the basic distinction.

In recent years, the weight of opinion hasfavored the short-form charter andadministrative code. For example, in theenumeration of powers of the city council, it isalways safer to make a general grant of power,which is legal in New York State, than to try tolist every power the council may need andthereby to run the risk of unintentionallylimiting home rule. It is felt that the chartershould serve as a framework within which thecity government can solve problems as theyarise, rather than as a well of solutions to everyimaginable municipal problem. Thomas Reed, awell-known municipal consultant, some yearsago advised, “The main purpose of a charter...isto empower, not to restrain. If that is kept inmind, your charter will not repeat the long-winded folly of some of its predecessors.”

Determining the Form of City Government

A city charter commission faces a number ofbasic questions relating to the kind of citygovernment it wants to propose. The bulk of thecommission’s work will be devoted to obtainingthe necessary information to resolve these issuesand to evaluating alternatives. In deciding theissues of charter content the charter commissionwill be making decisions that will largely shapethe city government and thereby influence thefuture of the community.

In making a complete review of the citygovernment, a city charter commission mustdecide whether to change the form of the citygovernment. The following paragraphs outlinethe standard forms of city government in theUnited States and review some considerationsinvolved in choosing among them. Citygovernment forms fall generally into four broadcategories.

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In a council-manager form, an appointed,professional manager is the administrative head ofthe city; the council is the policy-making body andthe mayor, who may be elected by the voters or bythe council from among its own members, ismainly a ceremonial figure. The manager usuallyserves at the pleasure of the council, has thepower to appoint and remove department heads,recommends legislation, directs and supervisesday-to-day municipal operations and prepares thebudget. The manager does not have a veto powerover council actions.

In a strong mayor-council form, the popularlyelected mayor is the administrative and executivehead of the city government and the council is thepolicy-making body. The mayor usually hasextensive power to appoint and remove agencyheads from office, to supervise and directmunicipal operations and to prepare the budget. The mayor ordinarily has broad veto powers overcouncil actions as well. This form sometimes alsoprovides for a professional administratorappointed by the mayor and is then called themayor-administrator plan.

In a weak mayor-council form of government, themayor, even though popularly elected, is mainly aceremonial figure. The council is not only thepolicy-making body, but also provides acommittee form of administrative leadership andexercises the powers of appointment and removalof agency heads and budget preparation. There isgenerally no mayoral veto power, and committeechairmen tend to wield extensive powers.

The fourth category of city government is thecommission form. Commissioners, elected tohead and administer the individual departments ofthe city government together form a council that isthe policy-making and law-making body. In somecases, one of the commissioners may bedesignated to perform the ceremonial duties of themayor.

In recent decades, most cities selecting a newgovernment have chosen either the council-

manager or strong mayor-council form. Thecommission and weak mayor-council plans findlittle favor as ways of dealing withcontemporary municipal problems.

The commission form has had no new adoptionsfor many years in New York State or in the restof the country, so far as can readily bedetermined; nor has the weak mayor-councilform been chosen with any frequency. Moreover, unsatisfactory performance of theweak mayor-council plan in many cities is thestimulus for many charter revision movementstoday.

As between the strong mayor-council andcouncil-manager plans, a charter commissionwill find many advantages in both. There is noquestion, however, about the trend toward thesetwo plans, the basic characteristic of which isthat they provide a more centralizedadministrative direction of city activities. Thecouncil-manager form nationally is found mostfrequently in younger cities of relativelyhomogeneous composition, with populations inthe middle range (25,000 - 50,000). Very largeand very small cities are more likely to use themayor-council form, as are older cities withmore heterogeneous populations made up of avariety of ethnic or economic population groups.

It is interesting to compare New York with allcities in the United States as regards the use ofthe major forms of government.

Forty-one of New York’s 62 cities, or 66%,operate under the mayor-council system. Eighteen, or 29%, use a council-managersystem, while only three or 4.8% employ acommission system. Nationwide, thepercentages are — roughly — 54% mayor-council, 37% council-manager, 3% commission,and 7% “town meeting” (a system not in use inNew York).

SOURCE: New York Local GovernmentHandbook (4th Ed.); ICMA Municipal Year

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Book (1990).

Obviously, the mayor-council form has greaterrelative popularity in New York than in the UnitedStates at large. This difference can probably beattributed to the diverse socioeconomiccharacteristics, as well as the age, of many NewYork cities. The commission form, oncepromoted as a tool of municipal reform, has lostmuch of its popularity over the years.

Issues of Structure and Powers

Most city governments have basically similarfunctions, duties and responsibilities. A basicsimilarity, therefore, exists among city charterswith respect to the structures they provide and theways in which powers and responsibilities areallocated. Within these basic likenesses, however,there are significant diversities of detail. Thesedifferences result not only from choices as to theform of city government, but also from differinglocal preferences, pressures and circumstances.

Among these differences, the most substantial arein the powers and functions of the executive andin the relationships the charter sets up between theexecutive and the legislative elements of the citygovernment. There are also differences in theorganization and structure of the administrativesector.

All such differences reflect options a chartercommission faces, its choice depending in eachcase on its judgment of local needs andpreferences. It is not possible in a manual of thissize and purpose to array and discuss all suchalternatives. It is useful, however, to identify themajor areas concerning structure and powers withwhich a charter commission must deal, and to listcomponent areas of decision within each majorconcern. This is the purpose of the followingoutline.

STRUCTURE AND POWERS OFCITY GOVERNMENT

I. The Legislative BodyA. Is the council to have the broadest

possible scope of powers consistent withNew York State law and the philosophyof municipal government? If not, whatpowers are to be exercised elsewhere?

B. Council qualifications and compensation1. Member qualifications2. Prohibitions3. Vacancy and forfeiture of office4. Council to be the judge of the

qualifications of its members5. Council compensation: to be set in

charter or to be set by council in budget

C. Council representation and composition1. Number of members2. Terms of office: number of years;

staggered or concurrent3. Nomination method4. Election method: wards, at large,

combination (if wards, method ofdistricting and apportionment)

D. Council organization and procedures1. The presiding officer: election by

voters at large or chosen by council,duties (voting power)

2. The council’s secretary, selection andduties

3. Time and place of regular meetings4. Method of calling special meetings5. Meeting procedures

a. Public meetingsb. Council to establish rules of

procedurec. Voting, quorum, binding action

requirements

II. The Executive FunctionA. Strong mayor-council form

1. Mayor’s qualifications and

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compensation: set in charter or bycouncil in budget

2. Method of electing mayor: by voters orcouncil

3. Mayor’s term of office: number of yearsand how related to terms of councilmembers

4. Vacancy and forfeiture of office5. Full-time or part-time6. Enumeration of mayor’s authority and

responsibilitya. Presiding officer of councilb. Law enforcementc. Messages to councild. Veto authority, council overridee. Item veto authority, council overridef. Administrative supervisiong. Appointing authority: department

heads, boards and commissions, withor without consent of council

h. Preparing and submitting proposedbudget

i. Other responsibilities

B. Council-manager form1. Manager’s qualifications2. Method of appointing manager3. Council to fix manager’s compensation4. Components of a removal procedure5. Provision for acting manager6. Specific authority and responsibility of

the managera. Supervisory authorityb. Appointing authorityc. Budget preparationd. Attend council meetingse. Advise councilf. Other responsibilities

C. Mayor-council-administrator: same as II-Aabove with the following added:1. Method of appointment and

qualifications of administrator2. Administrator’s relationship to the mayor

defined3. The authority and responsibility of the

administrator

4. Administrator’s authority,responsibility and compensation: to bespecified in the charter or inadministrative code

III. Administrative organization: how muchdetail will be spelled out in charter? Howmuch will be left for an administrativecode?

A. Departments: there must beadministrative departments in every citygovernment. May want to provide forkey ones such as finance, law, publicsafety and public works. Less detailgives council flexibility to adaptorganization to meet changingrequirements. Generally preferable toprovide for plans and proposals tooriginate with manager or mayordepending on form of government.

B. Boards, commissions and quasi-independent agencies: should they beretained? Which ones? To do what?

C. Administrative authority: are alladministrative units to be integrated underauthority of a chief administrator? If not,which ones are to be insulated fromcentral control?

D. Appointive or elective: Thomas Reedsays to elect an administrator “as nearlynever as is politically practicable.” Heprefers appointment by andresponsibility to the chief administrator,i.e., mayor or city manager.

IV: Financial procedures: how much of thedetail of financial procedures can bedeferred to an administrative code?

A. Municipal fiscal year

B. The office responsible for preparation ofthe budget and capital program

C. Components of the budget and the capital

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program

D. Budget and long-range program adoptionprocedures

E. Procedures for amendment of the budget

F. Appropriation lapse

G. Provisions for budget implementation andadministration

H. Real property tax administration

I. Nonproperty taxes

V. Other ProvisionsA. Conflict of interest for municipal officers

and employees

B. Activities expressly prohibited for officersand employees1. Discrimination based on race, sex, age,

political or religious affiliation2. Falsification of records, documents, tests3. Bribery4. Holding office in a political party5. Solicitation of political contributions

C. Separability of the charter provisions

D. Transitional provisions: are they toprovide for:

1. First election2. First council (initial staggering of terms)3. Mayor4. Continuance of officers, employees5. Initial salaries of officers6. Transition in departmental affairs,

contracts7. Laws repealed or inconsistent8. Fiscal year

Issues That May — or May Not —Be Especially Troublesome

Charter commission members should be awareof some possible troublesome issues thatfrequently arise in city charter revision.

Among these issues, the distribution of authoritybetween the mayor and the legislative body withrespect to the exercise of the appointing powerand the legislative role in budget developmentcan be especially difficult in cities where anattempt is being made to move away from theweak mayor-council toward the strong mayor-council form of government. The power ofappointment can rest with the mayor alone orwith the mayor subject to approval by thecommon council. This authority may be parallelor be different for department heads and boardsand commissions.

With respect to the legislative role, the questionthat arises most often is whether the mayorshould have veto power over the council’sactions and, if so, what majority must thecouncil have to override the veto. In the contextof the budgetary process, the key issues are: whoprepares the budget, and whether the mayor canveto individual items in the proposed budgetand, if so, should the item veto be limited toincreases.

Another frequently raised issue is whether toretain independent or quasi-independentadvisory boards and commissions. From apolitical point of view it is often advisable not totamper with these bodies, if to do so may riskdefeat of an entire charter revision. From anadministrative point of view, however, they maytend to impede the ability of the chiefadministrative officer to manage effectively theaffairs of the city, particularly if their membersare elected and operate from an independentpower base.

How long should terms of office be? This issue

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must always be faced but may be especiallytroublesome in connection with the office of themayor, as it relates to the terms of councilmembers. It is said that the people have morecontrol over government if officers are elected,say, every two years. On the other hand, theargument in favor of a longer term is that a newlyelected official takes a year to learn about thegovernment and his official role, but spends closeto a year campaigning for reelection. This issuetakes on added significance in the case of a mayorwho is to be a strong chief executive.

A fourth issue that may cause heated discussion isthe question of election or appointment ofdepartment heads. As in the case of boards andcommissions, the administrative point of viewfavors appointed department heads. In fact, it ismore essential for a chief administrator to havesome control over appointment of departmentheads than over boards and commissions. Moreover, in many cases there is no justificationfor retaining elected department heads unless theyare to exercise policy decision-making authority.

Election of the governing body can be yet anotherthorny issue charter commissions may face. Thequestion is whether to elect council members bydistricts, or at-large, or by some combination. If acombination, how many should be elected at-largeis the question. The greater the homogeneity in acity the more likely it will find at-large electionsatisfactory, whereas election by districts is morecommon in heterogeneous communities with avariety of ethnic groups and divergent interestsidentified with definable geographical areas.

CONCLUSION

A city charter is not a panacea for all localgovernment problems, but it is an important toolfor making better government possible. Thegoals of charter revision are in fact the same asthose of better city government: better municipalservice delivery and more efficient use offinancial and human resources in carrying outthe functions of government.

For these reasons, those who undertake torevise city charters will want to have as theirobjective the presentation of the best charterpossible. This objective can be accomplished byfollowing the advice in this manual: devise awork plan and timetable, engage in carefuldecision-making, and make public educationand citizen involvement a top priority.

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ENDNOTES

National Municipal League “A Guide for Charter Commissions,” New York, 1972.1

Municipal Home Rule Law, section 36(5); 37; 10(c)(1).2

Municipal Home Rule Law, section 10(1)(ii).3

Municipal Home Rule Law, section 10(4)(c) and 36(5).4

Municipal Home Rule Law, section 2(3).5

Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929).6

Wholesale Laundry Board of Trade v. City of New York, 17 App. Div. 2d7

327, 234 N.Y.S. 2d 862 (1962) aff’d 12 N.Y. 2d 998 (1963).

Municipal Home Rule Law, section 20(5).8

Municipal Home Rule Law, section 23(2-a).9

Municipal Home Rule Law, section 36(5-b).10

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APPENDIX

Areas to be Covered inDepartment Head Interviews

1. Duties and responsibility of the department and its

subunits.

2. Laws (local, state, federal): governing/affecting work

of department; where legal authority comes from;

mandates/controls by other units of government.

3. Organization and staffing: table of organization,

number of employees, method of appointment of

department heads. (Obtain copy of schedule of

positions and salaries and an organization chart.)

4. Lines of authority/internal relationships: who reports

to whom, supervisory responsibility; where to get help

on money problems, policy direction, personnel,

administrative matters, conflict resolution.

5. External relationships: with mayor, city manager,

other departments of the city, the common council,

committees of the common council, advisory boards

and commissions, other governments; nature, purpose

and frequency of relationships.

6. Budget: fiscal year, current budget figures, how needs

are determined, who prepares

request; revenues such as dues, fees, state or federal

grants; performance budgeting or other formats:

capital budgeting. (Obtain copy of current operating

budget.)

7. Administrative procedures: written manual; reports to

whom, how often, what kind; record keeping;

formalized deadlines; purchasing, what items are

needed.

8. Day-to-day operations: main services, program

activities; how assignments are made to department

heads and to staff; how things run on a day-to-day

basis. (Obtain copy of annual report.)

9. Evaluation of operations: obtain frank estimates of

strong and weak points including service delivery,

financial, staff and external relationship

considerations; barriers to needed improvements.

10. Changes: 5-10 year projection for

increase/decrease in operations, services delivered

by one agency or department which could better be

delivered by another; general changes

recommended.

11. Charter revision: specific suggestions or

recommendations regarding charter revision.