Advice on Charters
(from Maine Townsman, August 1992)
by Jo Josephson
They should be tailored to the community
Municipal charters. They are often seen as the "blueprints" for governing a community and as such they are often called the "constitutions" of local government.
They are often also seen as a vehicle for those seeking to change local government and as such they are often also a source of fear for those fearing change.
Which is to say, they are also adding fuel to fan the flames of the factions within a community. Which is to say, once in a very rare while, a charter causes such dissension within a community, it is challenged in court.
Consider for a minute, the Town of York's controversial charter, which was adopted by its residents last November. It has not only produced a sharply worded "minority report" from dissenting members of the charter commission, it has also produced two lawsuits pitting the town, the school committee and the charter commission against each other.
For those unfamiliar with the highly publicized case, the residents of York, after numerous failed attempts over the years to switch from an open town meeting to a representative council form of government, adopted their first charter on November 5, 1992 by a vote of 2,427 to 1,758.
What they adopted was a charter that kept the town meeting-selectman-manager form of government and added to it a system of secret ballot voting on all issues and a budget committee with broad powers, including the final authority to determine the dollar amount for each article in the school budget.
To date, York County Superior Court Justice William S. Broderick has ruled that those portions of the charter dealing with the school budget are in violation of state law, "usurping" the authority of the school committee. He has also, at the request of the selectmen, put a temporary restraining order on certain provisions in the charter.
The case went back to the York County Superior Court this month; some predict it will eventually wind up in the State's Supreme Court as a test case.
But this article is not about the pros and cons of the controversial York charter. It is noted here merely to underline the fact that the road to charter creation, adoption, revision, or amendment is underlain with potential land mines, both legal and political.
What this article is about is the sharing of some seasoned advice on charters from four towns which have been through the charter process both successfully and unsuccessfully. But first a bit of background on charters in general. (For detailed information consult the references listed in the sidebar).
A Brief History of Charters in Maine
To begin with, it should be understood that when the term "charter" is used in this article, it is not referring to the act of the legislature by which a town or city is incorporated or "chartered". Under this definition, all towns and cities in Maine are "chartered".
When the term charter is used in this article, it refers to the document that serves as a local "constitution", spelling out the distribution of power between the legislative, executive and administrative branches of government. Under this definition, approximately 75 towns and cities in Maine have charters.
That said, municipalities are not required to have the so-called constitutional-type charters, but by adopting such a charter, a municipality can custom design its form of government to fit its particular needs.
Drawn up by a citizens committee (charter commission) and approved by the vote of the residents of the municipality, the charter reflects the needs and values of a community. As such, no two charters should be exactly alike.
While there are numerous reasons to adopt a charter, there are at least three things a municipality cannot do unless it has adopted a charter:
- It cannot change its legislative body,
- It cannot recall a municipal officer (selectmen, council member, mayor) or school committee member, and
- It cannot establish a different method of selecting its school committee members,
- nor can it alter their terms as set forth in Title 20 M.R.S.A. Section 2301.
As noted above only 75 Maine municipalities have such charters. Auburn was the first Maine municipality in 1917 to adopt a council-manager form of government. To do so, its charter had to be approved by the State Legislature before its residents could adopt it.
In 1969, the Legislature pulled out of the charter process, with the adoption of the "home rule amendment" to the Maine Constitution. Among other things, the enabling legislation that went into effect in May 1970, gave municipalities the power to adopt or amend municipal charters without the involvement of the Legislature and spelled out in detail the procedures for adopting or amending those charters. (see 30-A M.R.S.A., sections 2101-2109).
Since then, approximately 16 Maine communities have adopted a charter under the powers of home rule.
A Brief Charter History of Four Municipalities
Two of the towns interviewed by the TOWNSMAN were successful in their charter efforts; two were not. Their history follows, setting the stage for their advice.
Lisbon. Population: 9,457. Lisbon has tried three times, each unsuccessfully, to adopt a charter. The first time, in 1983, a charter calling for a council form of government with a town meeting override was defeated by 50 votes. The last two attempts to create a charter commission in 1987 and 1991 were defeated.
Wales. Population: 1,223. Wales adopted its first charter on November 5, 1991 by a vote of 222 to 116; it was the third attempt at a vote on the charter due to the fact that at two previous meetings the proposed charter could not be voted upon for lack of the required voters. The charter does not change the town meeting form of government in Wales; it merely sets down in one place the procedures currently used to run the town.
Fairfield. Population: 6,718. Fairfield adopted its town meeting-council-manager form of government in 1979. An attempt to amend the charter to do away with town meeting in 1989 failed. An attempt to amend the charter in 1991 to, among other things, appoint the town manager and department heads on a one-year basis and to limit the public's right to overrule actions of the council was defeated by a vote of 912-782.
Gray. Population: 5,904. Gray's council-manager charter was adopted in 1969. Since then it has been amended four times. In November of 1990 residents voted overwhelmingly 1,598 to 791 in favor of several amendments to the charter, including one that made provisions for the recall of elected municipal officials.
Some Advice on Charters
Every town has its own political history; pay attention to it.
"Every town has its own issues; there is no one solution; look at your own community," says Lisbon Selectman David Bowie, who chaired Lisbon's one and only charter commission.
MMA's staff attorney William Livengood couldn't agree with Bowie more. When asked by charter commissions for copies of the charters of other towns, he advises them to look at the issues in their own town first; to look at what is working and what is not working in their town.
"Don't adopt something just because other towns are doing it; if it doesn't fit your political history it might pass, but it probably won't stick," says Livengood.
Charters usually mean change; make sure there is a compelling reason for making the changes.
Apparently it was not enough that there was abysmally low attendance at town meeting in Lisbon or that the meeting sometimes lasted four nights.
Apparently it was not enough that the vague wording in the Fairfield charter had resulted in several lawsuits.
"You succeed when you respond to genuine concerns in the community, when the residents can relate the change to real issues," says Gail Walker, who served on Gray's Charter Commission as a representative of the town council. Above all, "the change should not be frivolous or transitory," says Walker.
Walker notes that what sparked the formation of the charter commission in Gray was a lawsuit filed against the town by a member of the council and his real estate partner challenging the legality of a mobile home park moratorium the council had imposed until it developed a state-mandated mobile home park ordinance.
The suit prompted some questions about a possible conflict of interest. "While there is nothing in the state statutes that forbids a councilor from suing the town, the situation made people realize that they had no provision in their charter to recall this councilor or any other one if they wished to," says John Welch, a member of the Gray Town Council, who spearheaded the move to add a recall provision to the town's charter.
Welch stresses the fact that "the recall amendment itself was not targeted at any one individual" but was introduced to fill what he called "a glaring void" in the charter, a glaring void brought to their attention by the lawsuit.
Charters should not be political tools.
Fairfield's proposed charter limited the terms of the town manager and the department heads to one year. It was defeated.
York's charter created a budget committee with broad powers, including the final say on the school budget before it went to the voters. It was adopted by the residents but that portion of the charter dealing with the budget committee has been contested by the school committee and overruled by the court.
The most common reasons for adopting a charter are to change the legislative body and/or to give citizens the power to recall a municipal official.
You do not have to nor should you change your form of government because you are having problems with a particular individual. "There are other ways of dealing with personnel issues, than changing your form of government," says Livengood.
Nor should you use the charter to usurp the authority of another body, as in York, where Superior Court Justice William Broderick has ruled "that the Budget Committee created by the York Charter, in its present form, illegally usurps power and authority reserved to the School Committee."
As noted above, York's charter created a budget committee with broad powers. A budget committee that had the power over not only the municipal budget but the school budget as well. A budget committee that had the last say on the budget before it went to the voters, who in turn had no recourse but to accept or reject it by secret ballot.
In his ruling Broderick argued that "the Legislature has never expressly authorized the establishment of municipal budget committees with the authority to overrule school committees."
Politics aside, it should also be noted here that it is a misconception that a charter is needed when a town wishes to adopt a town-manager form of government, advises MMA's Livengood. If you switch to a town manager form of government you might want to consider the state's so-called "town manager plan" and bypass the need for a charter. Livengood sees the plan as a "prepackaged charter."
While there was no "legal" need for a charter in Wales, the town went ahead with one anyway, as a matter of codifying its structure. Another good, but not necessarily compelling, reason for adopting a charter.
The terms of the selectmen had been increased, but there was no formal record of it, explains George Gustin, who chaired the charter commission in Wales. "It made for a real hectic mess trying to figure out whose term expired when," he says. The charter was seen as a document that would take care of all that.
It was also seen as a document to attract young blood in the running of the town, explains Richard Wells, who served as the charter commission's secretary. "If we were going to attract new people, we needed something to show them how the town was run," he says. The charter would take care of that.
MMA's Livengood notes there are other ways other than through the adoption of a charter to codify a town's structure: through an administrative code or through ordinance.
You have got to prove that the democratic process is not being lost but is being refined.
The retention of town meeting appears to have been a key factor in the passage of York's controversial charter. They had tried to do away with it before and failed; this time they retained it and won. In Lisbon, they tried to do away with it and lost. In Wales, they retained the town meeting and won. In Fairfield, they tried to cut the people's right to overrule the council and lost.
"Town meeting is pure democracy; there is no purer form of democracy," says Ed Wall, who was the only member of the Lisbon Board of Selectmen to oppose putting the question of forming a charter commission on the Lisbon ballot last year.
Wall also contends that town meeting is a 'cleansing process'. How many times has he heard his colleagues say: "Town meeting will never go for that... It's amazing how many bad ideas are shelved before they get to town meeting," says Wall.
Wall believes that people (the town meeting) are a better gauge of the issues than the elected officials. "The minute someone gets elected to an office they are brought into the fold and become very timid," says Wall.
He also believes that those who want to change to the council form of government have the attitude "that people don't have the intelligence to govern themselves."
"It's a political power game," says Wall of the whole charter process in Lisbon; "it's trying to consolidate power in the hands of a few."
Lisbon's Bob Berube, also a member of the board of selectmen, disagrees with his colleague, saying that from an opponent's perspective "it is easy to promote scare tactics, arguing that by eliminating town meeting you are putting power in the hands of the few."
He says he has seen this argument used in many small towns, but he questions whether Lisbon is a small town any more, with its population of 9,000 plus.
"It's a real paradox," says Berube. "In theory and in small towns the argument about town meeting as a form of pure democracy is true. But it's not true in Lisbon, where there are 6,500 registered voters and only 2 percent to 3 percent of them vote."
Berube speculates that if the Lisbon Charter Commission had been approved, it might have been successful in getting a council-manager charter approved, if it had retained some form of the town meeting where the town meeting vote was required for expenditures over a certain amount and for bonded indebtedness.
"Perhaps this would have allayed the fear of losing control," says Berube.
When Wales wrote its first charter last year, to underscore the fact they were not doing away with town meeting, they included the following sentence: "The legislative authority of the Town of Wales shall continue to be vested in the Inhabitants of the Town acting by means of the Town meetings."
So why did they adopt a charter? According to George Gustin, who chaired the Wales Charter Commission, Wales merely wanted a single document that would formalize what it was already doing and to use that document to increase public participation by attracting "young blood" to the governing process.
The original mandate in Fairfield had been to clean up the wording of the charter, to make it less ambiguous and less susceptible to lawsuits, in other words to make it more workable, says Fairfield Councilor Dawnalyce Clifford who initiated the charter commission.
The final product limited the terms of the town manager and department heads, and equally important in the minds of the opponents limited the public right to overrule actions of the council, a right they had previously held. The charter was defeated.
Assess the mood for change in your community.
There has got to be some "restlessness in town," say the folks in Lisbon. Listen to the "talk on the street." Read the letters to the editor of your local paper, advise the officials in Gray.
Gray Selectman, John Welch says, "From the outset there was a feeling that a great majority of the residents were in favor of the proposed change in the charter."
Both Donnell Carroll, who chaired the Gray Charter Commission, and commission member Gail Walker concur. They note "the talk on the street" and the "number of letters to the editor" that appeared in the local paper on the conflict of interest-recall issue, well before the council's initiative to establish a charter commission.
They also note that a lot of people wanted to be on the charter commission, indicating an active interest in the project. "More people ran than there were slots for," says Walker. According to law, three members are appointed and six are elected.
Carroll also notes there was a sense of change in the air: the town had just hired a new manager; it had also just changed its fiscal year.
David Bowie, Lisbon's charter commission veteran, suggests another way of assessing/testing the municipal mood for change is to present an article at the May town meeting, asking for money to support a future charter commission.
"If there is no support for the article, then it may well indicate that there will be no support for the charter commission and the charter it produces; if there is support then put the question of a charter commission on the November ballot," says Bowie.
Lisbon's Jean Harris, who was on the Lisbon Board of Selectmen for seven years, in addition to serving on its one and only charter commission, says another way of assessing the mood of the people is to conduct a survey.
Ask them if they attend town meeting. Ask them if they are satisfied with how their local government is run. Ask them if they think they are well represented. Ask them if they think the town would be better represented by a council form of government.
Then analyze the results. If it appears that a change is desired, then and only then ask to form a charter commission, says Harris.
As Lisbon's Berube phrases it, there has got to be a "restlessness with how town government is going. The people have got to want a more efficient government, if you are going to successfully switch to a representative form of government," says Berube.
In hindsight, there were signs that Fairfield might not have been in the mood for change long before the vote of the proposed changes occurred, recalls Fairfield Charter Commission Chair Clifford Clark.
Not only was the idea for a charter commission proposed by the council, rather than by a citizen's petition, the vote (149 to 148) to establish the commission was lukewarm at best.
But that was not the only indicator: of the six elected positions to the commission only one person, Clark, openly ran for a seat on the commission; the rest were write-ins. The final vote on the proposed charter (584 to 892) was a resounding no!
Do some up front public education.
Lisbon's Harris suggests that before broaching the idea of a charter commission it would be a good idea to hold public meetings-but not your traditional public meeting.
"Go to the many organizations in town. Go to the Chamber of Commerce. Go to the senior citizens groups. Explain to them the basis for a charter and what the intent of the current movement is. Be up front and anticipate their fears. Be sure to explain that the intent is not to take away their rights."
"Change and charters are an emotional issue, especially for the older generation," says Harris.
"Make sure the people understand the difference between a charter and a charter commission," says Lisbon's Bowie, who feels that one of the reasons for the defeat of the recent attempt to form a charter commission was the confusion in some people's minds as to what they were voting for. Some believed that by voting for the commission they were in fact voting to change their form of government, says Bowie, adding that while you are at it, educate the community about the whole process.
Survey and public meetings aside, Wales provides another approach to the charter process. "We took our time; we worked slowly, we worked informally at first," is how Richard Wells describes the charter process in Wales.
It started with an invitational meeting to all residents in town to attend a meeting to learn how the committees in town were organized and what they did in an effort to attract new blood.
"Our little ad hoc group of eleven or twelve people served a good purpose; it got people to thinking," says Wells.
"Out of that meeting arose the idea that maybe we ought to get it down on paper. We considered the idea of having each committee adopt bylaws. But we agreed we wanted the whole picture on one piece of paper and that meant a charter," recalls Wells.
The rest is history. Two and a half years later, Wales had its first charter.
Charters are not created in isolation; check your timing.
"When times are (economically) bad, people are not going to want to relinquish control," says Lisbon Selectman Ed Wall.
David Bowie agrees with Wall that the timing on this last attempt to form a charter commission in Lisbon was poor.
"I would not have chosen this year for the charter; we've come through a period of tremendous upheavals, people are sick of government; they don't want to hear anything about government," says Bowie, referring to the S & L crisis at the national level and the state budget crisis here in Maine.
While Wall argues that "town meeting is the highest form of democracy," Bowie puts a twist on the phrase and says "people perceive that town meeting is the highest form of control" and adds "this time 'round people did not want to change that."
Poor timing appears to have plagued Lisbon in all three of its attempts to adopt a charter. Bowie surmises it was the cause of the failed attempt to form a charter commission in 1986. "It was too soon after the last vote (in 1983)," says Bowie.
And of the 1983 vote, the only time there was an actual charter to vote upon, timing played a major role in the defeat of the proposed charter.
While that charter made provisions for a council form of government, it also included what Bowie calls a "popular measure," a provision that allowed voters to override the council's action. The provision called for a petition signed by 10 percent of the voters in the last gubernatorial election, followed by a special town meeting attended by no less than 500 voters.
Both Bowie and Harris believe that charter would have passed, had not the vote followed and been "complicated by another issue."
That issue was a $1 million federally funded Community Development Block Grant. The town was required to hold a special meeting to accept the grant. But only 50 people showed up and it was rejected 20 to 18. "In the best interest of the town, I decided we should hold another special town meeting," says Bowie, who was on the board of selectmen at the time.
The second meeting attracted 250 residents, but the issue was no longer the acceptance of the grant, but whether the meeting should have been held. As Bowie recalls, the sentiment was: "Are you going to keep holding meetings until you get the answer you want?"
Not only did the grant go down to defeat but the issue generated enough anti-government feeling to defeat the charter a few months later, recalls Bowie.
"I feel certain if the grant issue hadn't occurred, it (the charter) would have passed. As it was, it was defeated by 50 votes."
Timing was a key issue in the defeat of the proposed charter in Fairfield, according to former Fairfield Councilor William Croce.
Not only had the voters turned down an attempt by the council to do away with town meeting, the council had more recently refused to reappoint the town manager, who in turn was in the process of suing the town for damages.
One member of the council was reported (Central Maine Morning Sentinel 2/21/90) to have said as the council considered the establishment of a new charter commission that he didn't think the timing was right and argued that the town should wait another year. "Things need to calm down," he was quoted. Needless to say his advice went unheeded.
If the past upheavals weren't enough, following the establishment of the charter commission, the town council underwent its own major upheaval, including a recall of three of its members and a new election.
While the old council, which had voted not to reappoint the town manager, was in favor of changes to the charter, according to Croce, members of the new council, including Croce, were not.
In fact, just prior to the vote on the proposed charter, three members of the council adopted a resolution against the charter, saying the proposed charter did not serve the best interests of the town, charging that not enough input had been gathered from the town in preparing it.
More important, they disagreed with a major provision in the proposed charter which would limit the terms of the town manager and department heads.
Timing. The proper timing. It's crucial.
Make sure the charter commission knows what it is doing.
State statutes spell out very clearly the requirements for establishing charter commissions, holding public hearing on the proposed charter, even the number of residents who cast their vote on the proposed charter.
Lisbon's Bob Berube says you'd better be more than familiar with those requirements. "You have got to know what you are doing; if you falter, the opposition will have ammunition for shooting you down," he says.
Berube ought to know. He thinks that the fact that there was an insufficient number of signatures on a petition calling for a vote to establish the charter commission in Lisbon last fall was a factor in its defeat.
State law requires that the petition calling for the vote be signed by a number equal to 20 percent of the voters in the last gubernatorial election. In Lisbon, the town clerk told those circulating the petition they only needed 10 percent, which is the number required on all other types of petitions.
As Berube describes it, it was an honest mistake but there was insufficient time to collect the remaining signatures: they had set their goal to have the vote during the November election to attract a large number of voters.
So the board of selectmen, to help facilitate the process, agreed, although not unanimously, to put the question on the ballot.
The confusion fueled the opposition and caused opponents of the charter commission to charge that the lack of signatures indicated that the question did not have the full support of the community, says Berube.
MMA's Livengood draws attention to another requirement under the law: the requirement that an attorney certify that the proposed charter does not contain any provision prohibited by the federal or state constitution or the general laws.
His remark is a timely one, given Justice Broderick's recent ruling on the York charter's controversial budget committee provision claiming it usurps the authority of the school committee.
Strive for a balanced charter commission.
You don't want all the town radicals on the charter commission. But you don't want people without opinions, either. Invite the opposition to join you, advise the veterans.
Donnell Carroll, who chaired the Gray Charter Commission, says he worked hard to keep the politics out of the charter commission's work. He did so by making sure the process was an open one. While individuals may have joined the commission hoping to press their own personal narrow agenda, Carroll says it was important that all of those issues were laid on the table, up front, from the start.
"If they aren't expressed openly and argued, the subcurrents will drown you," says Carroll, adding that his goal was to reach 100 percent on every issue; that meant compromise. "But, then, I wanted to come out with a unanimous report," says Carroll. He did.
Lisbon's David Bowie admits that in every community there are a number of influential and conflicting viewpoints. "There will always be those opposed," says Bowie.
"If possible involve both sides," says Bowie, adding that it is hard to do because those who are opposed often won't join. "Try to channel their energies," says Bowie, who suggests you "acknowledge their opposition and invite them to share it as a member of the commission."
Bowie notes that by law the board of selectmen or council has the responsibility to appoint three people to the nine-member commission (the voters elect six).
"Use those three slots to balance out the commission," he advises.
Wales Charter Commission member Richard Wells concurs with Bowie, saying often times it is the old guard that does not want to make changes so it is very important to get the old guard involved and represented on the charter commission.
Give yourself enough time and money.
State statutes spell out clearly when the charter commission is to hold its first public hearing-within 30 days after its organization meeting-and when the draft should be presented to the public, and how many voters must participate in the referendum.
They also note that under specified conditions, the municipal officers may extend the time limit from 12 to 24 months. They also note that the municipality is required to credit a minimum of $100 to the charter commission's account.
One of the charges the opponents to the charter in Fairfield raised against the charter was there had not been enough public input into the process; that if people did not attend the public hearings, the commission should have gone to the people; that a promised second public hearing on the final draft was not held.
Fairfield Charter Commission Chair Clifford Clark would be the first to agree that the commission needed more time to do its work and should have sought an extension. Under the law, within 12 months after it is elected, the commission must submit a final report.
Clark said they needed more time in order to hold a promised second public hearing on the final draft and should have sought an extension but didn't feel it would be granted by the voters who opposed the charter.
The commission was behind schedule from the start, says Clifford, due in part to the loss of three of its members: one member resigned, another dropped out for personal reasons and a third died. We had to replace three members, recalls Clifford, who was the only member who ran actively for a seat on the commission.
The fact that they only had $500 also hampered their progress, says Clifford, forcing them to do a lot of their own legal research, slowing them down.
Fairfield Councilor William Croce, a strong critic of the charter commission, says the input process is definitely flawed in that the statutes require only one public hearing. Clifford agrees, saying "we should have brought it to a second public hearing."
Croce argues there was not enough effort to get local input. "If no one shows up at the hearings, then look for other ways to get input from the public," says Croce, who also acknowledges that "the best efforts could be for naught, because people don't get involved until the 11th hour."
MMA Information Packet: Municipal Charters
This packet of materials available from the MMA's Legal Department contains a four-page summary on municipal charters that was prepared by MMA's legal staff in 1991. Among other things, the review includes the procedures that must be followed in adopting a charter and the role of the commission. The packet also contains a copy of the home rule statute, 30-A M.R.S.A. sections 2101-2109. It also contains two articles on charters appearing in the MAINE TOWNSMAN. "Town Manager Plan by Charter or Statute," MAINE TOWNSMAN April 1977; "Charter Revision or Charter Amendment," MAINE TOWNSMAN May 1982.
Maine Municipal Government: Charter Study Series
This series of five booklets on charters was prepared by the Bureau of Public Administration at the University of Maine in 1971. "Introduction to the Charter Drafting Process" and "Guidelines for Charter Drafting" are two of the five titles in the series.