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Working Paper - Charter Review
Page 1 of 1 Sherry Mashburn - Materials for June 1 Charter Commission Meeting From: "Bochner, Brian" <b-bochner@tamu.edu> To: "Sherry Mashburn (smashburn@cstx.gov)" <smashburn@cstx.gov> Date: 5/31/2011 2:06 PM Subject: Materials for June 1 Charter Commission Meeting CC: "Carla Robinson (Crobinson@cstx.gov)" <Crobinson@cstx.gov> Attachments: Suggestions Of Charter ProvisionsFor Potential Revision 053111.docx; COMPARISON OF PEER CITY CHARTER PROVISIONS 053111.docx Sherry, Attached you will find two files for tomorrow's Charter Commission meeting: • An expanded comparison of peer city charter provisions that now includes Lubbock per suggestion of our former chair • As a result of my reading of the charter, a list of (mostly minor or editorial) changes that I suggest we look into in addition to the items already listed. Most of these should be reviewed by Carla as part of her review for consistency with state law or editorial clean up of the existing charter. At least three of these would benefit from input from you or other city staff. I am forwarding the second item to you in advance of the meeting so you have time to consider how we can best handle these. I suggest that these be referred to staff for review and that they be addressed during our reviews of the applicable charter article. I am not proposing any action June 1 other than to submit them to staff for review and scheduling in the work plan. That could be done under agenda item 10 or be held until the following meeting when we could take commission member suggestions for review. If you prefer to handle these in a different way, please let me know. The easier and more efficient the better. Thanks very much. Brian Att: Brian Bochner Senior Research Engineer Texas Transportation Institute CE/TTI Building, 3135 TAMU Texas A&M University System College Station, Texas 77843-3135 tel. (979) 458-3516, fax (979) 845-7548 For express delivery: 2929 Research Parkway, Room 366, College Station, Texas 77843 http://tti.tamu.edu file://C:\Documents and Settings\smashburn\Local Settings\Temp\XPgrpwise\4DE4F5E2Ci... 6/1/2011 COMPARISON U. : EER CITY CHARTER PROVISIONS Provisions Bryan Denton Frisco Lubbock McKinney Pearland Plano San Marcos Sugarland Nominations, elections Resident, reg. voter at Self nomination; reg. Reg. voter; city resident Resident of City and Reg. voter; resident in Rea. voter; resident 6 Reg. voter; resident of Reg. voter; 1 year Age 21: resident 1 year tiling; 6 months in voter; district resident 1 1 year district at time of tiling; district at time of filing months city I year; own taxable resident district year election by districts property in city (mayor at large) Council compensation -- By ordinance Mayor: S900year S50/meeting with $2500 Council recommends Set by council Set by ordinance in As determined from time 1 Council: S300,ryear annual max; $100 month then votes on annual budget to time by council additional for mayor recommendation Council districts (7 5 by districts. I at -large 4 by districts; 2 "at- 6 at large by place plus All council members by 4 districts; rest at -large; Mayor + 5 at -large Mayor+ 8 council Mayor+ 6 council Mayor + 2 council members incl. mayor plus mayor large' from 2 districts mayor district; 6 districts district boundaries council members mennbers; = by district members, all at -large members at -large; 4 unless stated each; mayor at -large reviewed biennially members by district otherwise) Office terms 3 years 2 years 3 years Mayor 2 years; council 3 years 3 years 3 years Mayor 2 years; council 3 2 years 4 years years Tenn limits (years) 2 (+2 as mayor) 3 in one place; 12 years 3 (+3 as mayor) Not stated 2 terms per position Council 2 terns; no limit 3 (+ 3 as mayor) 4 terns over 9 years; total for mayor mayor considered separate position No. council members _ (in rules) (in rules) -- In rules set by ordinance Per procedures set by to put item on agenda council Vacancies Special election; uniform Special election except Special election within Per charter or Per Texas constitution "Filled by special I" vacancy filled by Per state law If more than 15 months election date within 120 days of 120 days per state ordinance; nothing election called by appcintme.at until next remain in tern hold scheduled election for election code. specific in charter. council" mun: election; call special election; if 3-15 seat: uniform election special election within 10 months appoint day days oft"" vacancv; replacement for mayor if election per state code. less than 3 months then mayor pro-tem serves as mayor Initiative (1), I — 10% of registered 1, Ref— 25% of votes h Recall —greater of 150 I, Ref— 25% of I, Ref— 25% of votes I. recall — greater of 150 I — greater of 150 or 20% h ref, recall— 10% of 1, ref— 30% of voters in referendum, recall voters cast at previous regular or 30% of votes cast in qualified voters in last cast in previous regular or 30% of registered or voters in last regular registered voters; last election; recall — muni election. Recall — previous mayoral regular election. muni election; Recall - voters; referendum not muni election; Recall — 25% of registered voters Franchises, public Sec. 16 utilities Compliance with state -- law 25% of votes cast for that election; Ref - not stated Recall — 25% of 25% of votes cast in stated greater of 150 or 30% of council member plus qualified voters in previous regular muni voters in the regular opponents. district in last regular election and 15% of mum election; ref— not election, including at registered voters. stated least 10% of last election's voters who certify they voted for member proposed for recall. Sec. 13 Art. 10 Art. !, Sections. 10-14, Chap. 17 Art. 9 Art. 10 Art. 11 Not found -- -- 18,24 -- -- -- -- -- -- Commission Suggestions Of Charter Provisions For Review And Potential Revision Brian Bochner suggestions May 31, 2011 I suggest that the Charter Commission or Legal Department staff (as stated below) review the following existing provisions to determine if revisions are needed or would be beneficial. These suggestions are in addition to those already scheduled for consideration. Most are editorial or for clarification and may be appropriate to refer to the City Attorney to address. Pave' Art. Sec. Proposed Chance or Ouestion Comment -- -- -- I did not see any provision that specifies that in case of conflicts between the City Refer to City Charter or ordinances and the state constitution or codes that the state law prevails. Attorney to check That should be self evident but I understand that it created uncertainty during the past year. Should this be added to the charter? 7 III 17c Last sentence — change to "...Council three (3) years after later-, of ntihis Editorial successor has been elected..." clarification; refer to City Attorney 8 III 17e Delete; no longer needed. Applied following a previous charter amendment. Refer to City Attorney 8 III 17f Delete line 1 and first 3 words of line 2. No longer needed; applied to a previous Refer to City charter amendment. Attorney 14 III 29 Line 3 — This requires the City Attorney to be a resident within the City. The City Ask City Attorney if Manager has a related requirement (see Art. III, Sec. 40 below) but no other this is state employee has that same requirement. Consider changing requirement to residency requirement. If not, within _ days of starting employment or dropping from charter and including in consider change city code. with Art. III, Sec. 40. 16 III 35 Lines 7-8 — requires notice published in "official newspaper." Should this be Ask City Attorney if broadened to "official newspaper or City website" to reflect evolving newspaper is state communications? requirement. If not consider change. 19 III 40 Lines 4-5 — See comment regarding Art. III, Sec. 29. For City Manager, the Consider with Art. residency requirement is "at appointment he need not be a resident, but during his III, Sec. 29 tenure of office he shall reside within the City." Is that starting employment day #1 or starting just sometime while employed? Consider changing requirement to residency within _ days of starting employment or dropping from charter and including in city code. 22 III 51 (editorial) Line 4 — change "it" to City Council" Refer to City Attorney 24 III 59(2) Line I — Is "public peace" sufficiently defined in the state code for this to be clear? Refer to City If not, do we need to define? Attorney 30 IX 80 Last 2 lines — Does the 20 days provide enough time for current early voting Refer to City practice? If not, ask City Secretary to recommend more appropriate lead time. Secretary 50 XII 119 (editorial) Aren't the last 2 sentences redundant? Also request City Attorney to Refer to City check per recent case law and state laws regarding city liabilities. Attorney to propose change if needed. 53-4 XII 131 Paragraphs 1, 3 — Delete; no longer relevant. Substitute language that will apply to Request City any future proposed charter amendments or replacement charters. Attorney to propose language. 1 Page number in double-spaced draft provided by Sherry Mashburn Numeric Not Hispanic Not Hispanic Numeric Percent Not Not Not Not Numeric Percent Change Not Not Numeric Percent or Latino: or Latino: Change Change Hispanic Hispanic Numeric Percent Hispanic Hispanic Numeric Percent Not Not Change Change Hispanic Percent Hispanic Hispanic Change Change Black or Black or Not Hispanic Not Hispanic or Latino: or Latino: Change Change or Latino: or Latino: Change Change Hispanic Hispanic Not Hispanic Not Hispanic Numeric Percent Hispanic or Latino Change or Latino: or Latino: Not Hispanic Not Hispanic African African or Latino: or Latino: Asian Asian Not Hispanic Not Hispanic Other Other Not Hispanic Not Hispanic or Latino: or Latino: or Latino: or Latino: Change Change or Latino Hispanic or Populatio Hispanic or White White or Latino: or Latino: American American Black or African Black or African Alone Alone or Latino: or Latino: Race' Race* or Latino: or Latino: Two or Two or Two or Two or Total Total Total Total Populatio Latino n Latino Alone Alone White Alone White Alone Alone Alone American Alone American Alone Populatio Populatio Asian Alone Asian Alone Populatio Populatio Other Race' otherRace* More Races More Races More Races More Races Summary Population Population Population Population n Population 2000- Population Population Population Population Population Population Population Population Population n n Population Population n n Population Population Population Population Population Population Level State Place Name 2000 2010 2000-2010 2000-2010 2000 2010 2010 2000-2010 2000 2010 2000-2010 2000-2010 2000 2010 2000-2010 2000-2010 2000 2010 2000-2010 2000-2010 2000 2010 2000-2010 2000.2010 2000 2010 2000-2010 2000-2010 160 48 15976 College Station city 67,890 93,857 25,967 38.25% 6,759 13,165 6,406 94.78% 51,362 64,060 12,698 24.72% 3,647 6,161 2,514 68.90% 4,932 8,518 3,586 72.70% 304 432 128 42.11% 886 1,521 635 71.67% iGl 93, t� t.. i.�0 G 6 � �' � c-a 5 ARTICLE I INCORPORATION: FORM OF GOVERNMENT: TERRITORY Incorporation Section 1. The inhabitants of the City of College Station, within the corporate limits as now established or as hereafter established in the manner provided by this charter, shall continue to be a municipal body politic and corporate in perpetuity, under the naive of the "City of College Station" Form of Government Section 2. The municipal government provided by this charter shall be known as the "council- manager government". Pursuant to its provisions and subject only to the limitations imposed by the state constitution and by this charter, all powers of the City shall be vested in an elective council, hereinafter referred to as the "City Council", which shall enact local legislation, adopt budgets, determine policies, and employ the city manager, who shall execute the laws and administer the government of the City. All powers of the City shall be exercised in the manner prescribed by this charter, or, if the manner be not prescribed, then in such manner as may be prescribed by ordinance. Boundaries Section 3. The bounds and limits of the City of College Station are hereby established and described as shown by the articles of incorporation, the several annexation ordinances and the official zoning map of said city. Creation of Precinct Boundaries Section 4. The City Council shall divide the City of College Station into precincts for voting purposes only, and when practicable they shall conform to the county voting precincts. ARTICLE II CORPORATE AND GENERAL POWERS Powers of the City Section 5. The City shall have all the powers granted to Home Rule Cities by the Constitution and laws of this State, as fully and completely as though they were specifically enumerated in this Charter, together with all the implied powers necessary to carry into execution such granted powers, and the powers are hereby adopted that are conferred upon cities by Article XI, Section 5, of the Constitution of the State of Texas (Home Rule Amendment). Among other powers, the City shall have the power to contract and be contracted with; to acquire property in fee simple within or without its corporate limits for any municipal purpose, or any lesser interest or estates, by purchase, gift, devise, lease, or condemnation, and may sell, lease, mortgage, hold, manage and control such property as its interests may require, except as prohibited by the Constitution or restricted by this Charter. The City may use a corporate seal; may cooperate with the government of the State of Texas or any agency thereof, or any political subdivision of the State of Texas, or with the United States or any agency thereof, to accomplish any lawful purpose for the advancement of the interest, welfare, health, morals, comfort, safety and convenience of the City and its inhabitants; and may pass such ordinances and enact such regulations as may be expedient for the maintenance of good government order and peace of the City and the welfare, health, morals, comfort and safety of its inhabitants consistent with the provisions of this Charter. The enumeration of particular powers by this Charter shall not be deemed to be exclusive; and in addition to the powers enumerated or implied herein, the City shall have all powers not prohibited by the Constitution or laws of this State. Extension of City Limits Upon Petition Section 6. The City Council may extend the City's boundaries by annexation petition in accordance with the provisions of the statutes of the State of Texas. Extension of City Limits by the City Council Section 7. The City Council shall have the power to fix, by ordinance, the boundary limits of the City of College Station, and to provide for the extension of such boundary limits and the annexation of additional territory lying adjacent to the City, with or without the consent of the inhabitants of such area to be annexed. The City Council shall have the power to detach, by ordinance, any territory, with or without the consent of the inhabitants of such area to be detached. When any territory shall be so annexed, the same shall be a part of the City and the inhabitants thereof shall be entitled to all the rights and privileges of all the citizens and shall be bound by the acts, ordinances, resolutions and regulations of the City. When territory has been detached, the same shall no longer be a part of the City. Eminent Domain Section 8. The City shall have the full right, power and authority to exercise the power of eminent domain when necessary or desirable to carry out any of the power conferred upon it by this charter or by the constitution or laws of the State of Texas. hi all cases where the City seeks to exercise the power of eminent domain, it may be controlled, as nearly as practicable, by the laws governing the condemnation of property of railroad corporations in this state, the City taking the position of the railroad corporation in any such case. The City may also exercise the power of eminent domain in any other manner now or hereafter authorized or permitted by the constitution and laws of this state, or in the manner and form that may be provided by ordinance of the governing body of the City. The power of eminent domain hereby conferred shall include the right of the City to take the fee in the lands so condemned and such power and authority shall include the right to condemn public property for such purposes. The City shall have and possess this power of condemnation of property within or without the corporate limits for any municipal or public purpose, even though not specifically enumerated herein or in this charter. Establishment and Control of Streets Section 9. The City shall have the power to lay out, establish, open, alter, widen, lower, extend, grade, abandon, discontinue, abolish, close, care for, pave, supervise, maintain and improve streets, alleys, sidewalks, parks, squares, public places and bridges and regulate the use thereof, and require the removal from streets, sidewalks, alleys and other public property or places of all obstructions and encroachments of every nature or character upon any of said streets, alleys, sidewalks, and public property. The City shall have exclusive domain, control and jurisdiction in and upon, and over and under the public streets, avenues, alleys, and highways of the City. The City's exclusive domain, control, and jurisdiction in, upon, over and under the public streets, avenues, alleys and highways of the City shall also include, but not be limited to, the right to regulate, locate, relocate, remove, or prohibit the location of all utility pipes, lines or wires, or other property. Street Improvements Section 10. The City may provide for the improvements of public streets, avenues, alleys and highways by paving, repaving, raising, draining, or other improvements, and may assess the cost of such development and improvements partly or entirely by assessments levied as a lien against the property abutting thereon and against the owners thereof. If improvements be ordered constructed in any part of any area used or occupied by the tracks or facilities of any railway or public utility, then the City shall have the power to assess the whole cost of improvements in such area and the added costs of improvements in such area and the added costs of improvements in areas adjacent thereto made necessary by such use or occupancy against such railway or utility, and shall have the power, by ordinance, to provide for the enforcement of such assessments. As an alternative and cumulative method of developing, improving and paving any and all public streets, sidewalks, waterways, alleys, highways and other public ways, the City shall have the power and authority to proceed in accordance with V.T.C.A., Transportation Code, as amended. Garbage Disposal Section 11. The City Council shall have the right by ordinance to adopt and prescribe rules and regulations for the handling disposition of all garbage, trash and rubbish within the City of College Station, and shall further have the right to fix charges and compensation to be charged by the City for the removal of garbage, trash and rubbish, and to provide rules and regulations for the collection thereof. Municipal Court Section 12. There shall be a court for the trial of misdemeanor offenses known as the Municipal Court of the City of College Station, with such powers, procedures and duties as are given and prescribed by the laws of the State of Texas for a Municipal Court. Sanitary Sewer System Section 13. The City shall have the power to provide for a sanitary sewer system and to require property owners to connect their premises with such systems; to provide for fixing penalties for failure to make sanitary sewer connections; and to provide for fixing a lien against any property owner's premises who fails or refuses to make sanitary sewer connections and to charge the cost against said owner and make it a personal liability. The City shall further have the right to fix charges and compensation to be charged by the City for sewerage service, and to provide rules and regulations for the collection thereof. Public Utilities; Powers of the City Section 14. In addition to its power to buy, own, construct, maintain and operate utilities and to manufacture and distribute electricity, gas or anything else that may be needed or used by the public, the City shall have such further powers as may now or hereafter be granted under the constitution and laws of the State of Texas. Signs and Bill Boards Section 15. The City shall have the power to license, regulate, control or prohibit the erection of signs or billboards. Nuisances; Control and Policing Section 16. The City shall have the power to define all nuisances and prohibit the same within the City and outside the City limits for a distance of five thousand (5000) feet; to have power to police all parks or grounds, speedways or boulevards owned by the City and lying outside the City; to prohibit the pollution of any stream, drain or tributaries thereof, which may constitute the source of water supply of the City and to provide for the policing of the same as well as to provide for the protection of any water sheds and the policing of same; to inspect dairies, slaughter pens and slaughter houses inside or outside the City limits, from which milk or meat is furnished to the inhabitants of the City. ARTICLE III THE CITY COUNCIL Number, Selection, Term Section 17. The City Council shall be composed of the Mayor and six (6) Councilmen and be known as the "City Council of the City of College Station." (a) The Mayor and other members of the City Council shall be elected from the City at large. (b) The Mayor shall be the presiding officer of the City Council and shall be recognized as the head of the City government for all ceremonial purposes and by the Governor for purposes of military law, but shall have no regular administrative duties. The Mayor shall be entitled to vote on all matters under consideration by the City Council. (c) Each Councilman, unless sooner removed under the provisions of this Charter, shall serve for a term of three (3) years, beginning with the first meeting of the Council following his election, and ending with the first meeting of the Council three (3) years later, or until his successor has been elected and duly qualified. The Mayor, unless sooner removed under the provisions of this Charter, shall serve for a term of three (3) years, beginning with the first meeting of the Council following his election and ending with the first meeting of the Council three (3) years later, or until his successor has been elected and duly qualified. (d) No person shall be deemed elected to an office unless that person receives a majority of all the votes cast for such office. The Council shall, upon declaring the official results of the election, order a run-off election for each office to which no one was elected. In the run- off election, the two candidates who received, in the preceding election, the highest number of votes for each office to which no one was elected, shall be voted on again by the qualified voters, and the candidate who receives the majority of the votes cast for such office in the run-off election shall be elected to such office. (e) In 2004, the regular elections for Places 4 and 6 shall continue to have two (2) year terms. In 2006, and subsequent years, the regular elections for Places 4 and 6 shall be for three (3) year terms. In 2004, and subsequent years, the regular elections for the Mayor and Places 1, 2, 3, and 5 shall be for (3) three year terms. (f) Beginning in 1999, there shall be no limit to the total number of terms served by the Mayor or Councilmen; however, no person shall be eligible to be elected to serve in the capacity of the Councilman for consecutive regular terms totaling more than six (6) years; nor shall any person be eligible to be elected to serve in the capacity of Mayor for consecutive regular terms totaling more than six (6) years. Qualifications Section 18. The Mayor and Councilmen shall be citizens of the United States and qualified voters of the State of Texas; shall have resided for at least one (1) year next preceding the election, at which they are candidates, within the corporate limits of the City of College Station; and shall not be disqualified by reason of any provision of any other section of this Charter. A member of the City Council ceasing to possess any of the qualifications specified in this section, or any other section of this Charter, or convicted of a felony while in office, or who absents himself from three (3) consecutive regular Council meetings without consent of the Council, shall immediately forfeit his office. Compensation of Members Section 19. Members of the City Council shall serve without pay or compensation; provided, however, they shall be entitled to all necessary expenses incurred in the performance of their official duties. Presiding Officer; Mayor Section 20. The Mayor shall preside at meetings of the City Council and shall be recognized as head of the City government for all ceremonial purposes and by the governor for purposes of military law, but shall have no regular administrative duties. He shall be entitled to vote upon all matters considered by the City Council, but he shall have no veto power. The City Council shall elect a Mayor Pro Tern from its membership who shall act as Mayor during the absence or disability of the Mayor. Vacancies Section 21. A vacancy in the City Council shall be filled by a special election which shall be called within thirty (30) days of the occurrence of such vacancy. If any such vacancy shall occur within ninety (90) days preceding a general election, then no special election shall be called; provided, however, that the unexpired term shall be filled at the next general election. Powers Section 22. All powers and authority, including the determination of all matters of policy which are expressly or by implication conferred upon or possessed by the City, shall be vested in and exercised by the Council; provided, however, that the Council shall have no authority to exercise those powers which are expressly conferred upon other City officers by this Charter. Without limitation of the foregoing, and among the other powers that may be exercised by the City Council, the following are hereby enumerated for greater certainty: (1) To appoint and remove the City Manager. (2) To establish administrative departments and establish the organization and functions of divisions. (3) To adopt the budget of the City. (4) To authorize the issuance of bonds by a bond ordinance. (5) To inquire into the conduct of any office, department or agency of the City and make investigations as to municipal affairs. (6) To provide for a planning commission, a zoning commission and a zoning board of adjustment, and appoint the members of all such commissions and boards. The planning and zoning commissions may be combined. Such boards and commissions shall have all powers and duties now or hereafter conferred and created by this Charter, by City ordinance or by law. (7) To adopt plats. (8) To adopt and modify the official map of the City. (9) To adopt, modify and carry out plans proposed by the planning commission for the replanning, improvement and redevelopment of neighborhoods and for the replanning, reconstruction or redevelopment of any area or district which may have been destroyed. (10) To adopt, modify and carry out plans proposed by the planning commission for the replanning, improvement and redevelopment of neighborhoods and for the replanning, reconstruction or redevelopment of any area or district which may have been destroyed in whole or in part by disaster. (11) To regulate, license and fix the charges or fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the City. (12) To provide for the establishment and designation of fire limits; to prescribe the kind and character of buildings, structures or improvements to be erected therein; to provide for the erection of fireproof buildings within certain limits; and to provide for the condemnation of dangerous structures, buildings, dilapidated buildings or buildings calculated to increase the fire hazard and the manner of their removal or destruction. (13) To prevent the construction and use of housing accommodations below standards fixed by the City Council as proper for the purpose of promoting the health, safety, morals or general welfare of the City. Appointment and Removal of City Manager Section 23. The City Council shall appoint an officer of the City who shall have the title of City Manager and who shall have the powers and perform the duties set forth in this charter. No Councilman shall receive such appointment during the term for which he shall have been elected, nor within one year after the expiration of his tenn. The salary of the City Manager shall be fixed by the City Council, and he shall hold office at its pleasure; but if he is removed at any time after six (6) months following his appointment, he may demand written charges and a public hearing thereon before the City Council prior to the date on which his final removal shall take effect, but pending such hearing the City Council may suspend him from office. The action of the City Council in suspending or removing the City Manager shall be final, it being the intention of this Charter to vest all authority and fix all responsibility for such suspension or removal in the City Council. Council Not to Interfere In Appointments or Removals Section 24. Neither the City Council nor any of its members shall direct the appointment of any person to or his removal from office by the City Manager or by any of his subordinates; provided, however, that the appointment or dismissal of department heads shall be subject to the approval of the City Council. Except for the purpose of inquiry the City Council and its members shall deal with the administrative service solely through the City Manager, and neither the City Council nor any member thereof shall give orders to any subordinates of the City Manager, either publicly or privately. Rights of the City Manager and Other Officers in Council Section 25. The City Manager, and such other officers of the City as the City Council may invite, shall be entitled to take part in all discussions of the City Council relating to their respective offices, departments or agencies. Administrative Departments Section 26. There are hereby created the following administrative departments: Finance, Police, Fire and Public Works. The City Council may, if it deems it advisable, consolidate into one department not more than two of the departments hereby established; and by ordinance may create, change and abolish offices, departments or agencies other than the offices, departments and agencies established by this Charter. City Secretary Section 27. The City Council shall appoint an officer of the City who shall be the City Secretary, who may be removed from office by the Council. The City Secretary or Assistant City Secretary shall give notice of Council meetings, shall keep a journal of its proceedings, shall authenticate by his signature and record in full in a book or books kept and indexed for that purpose all ordinances and resolutions, and shall perform such other duties as the City Council shall assign to him and those elsewhere provided for in the Charter. The City Secretary shall have the power to appoint an assistant or assistants, if deemed necessary by him, subject to the approval of and at such compensation as may be fixed by the City Council and such assistant or assistants may be removed from office by the City Secretary. Municipal Court Judge Section 28. The City Council shall appoint an officer of the City who shall be the Municipal Court Judge, who may be removed from office by the Council. The City Council may appoint alternate Assistant Municipal Court Judges, who may be removed from office by the Council, who shall serve in the absence of or in addition to the Municipal Court Judge. All costs and fines imposed by the Municipal Court, or by any court in cases appealed from judgments of the Municipal Court, shall be paid into the City Treasury for the use and benefit of the City. City Attorney Section 29. The City Council shall appoint an officer of the City who shall be the City Attorney, who may be removed from office by the Council. The City Attorney shall be a competent and duly licensed attorney, who shall reside in the City of College Station. The City Attorney shall represent the City in all litigation. He shall be the legal advisor of and attorney and counsel for the City and all officers and departments thereof. The City Attorney shall have power to appoint an assistant or assistants, if deemed necessary by him, subject to the approval of and at such compensation as may be fixed by the City Council; and such assistant or assistants may be removed from office by the City Attorney. City Internal Auditor Section 30. The City Council may appoint an officer of the City to be the City Internal Auditor, who may be removed from office by the Council. The City Internal Auditor shall carry out the audit functions and shall perform such other duties as the City Council shall assign to him. The City Council may also enter into a contract for the duties of City Internal Auditor, to be carried out by an outside firm, if it so chooses. The City Internal Auditor shall have the power to appoint an assistant or assistants, if deemed necessary by him, subject to the approval of and at such compensation as may be fixed by the City Council; and such assistant or assistants may be removed from office by the City Tnternal Auditor. New Section created by the approval of votes°v at Charter amendment election hell on May 13, 2006. Induction Into Office; Meetings Section 31. The induction into office date shall be set by ordinance by the City Council, or as otherwise provided by law, following each regular municipal election held under this Charter, or any special election for the purpose of filling vacancies in the City Council. The City Council shall meet at the usual place for holding meetings and the newly elected members shall qualify and assume the duties of office. Thereafter, the City Council shall meet regularly at such times as may be prescribed in the rules, but not less frequently than once each month. Special meetings shall be called upon request of the Mayor or a majority of the members of the City Council. All meetings shall be subject to the provisions of the Texas Open Meetings Act, V.T.C.A., GOVERNMENT Code, Ch. 551, Open Meetings, as amended. City Council to be Judge of Qualification of its Members Section 32. The City Council shall be the judge of the election and qualifications of its members and for such purpose shall have power to subpoena witnesses and require the production of records, but its decision in any such case shall be subject to review by the courts. Rules of Procedure; Journal Section 33. The City Council shall determine its own rules and order of business. It shall keep an indexed journal of its proceedings and the journal shall be open to public inspection. Ordinances Section 34. In addition to such acts of the City Council required by statute or by this Charter to be by ordinance, every act of the City Council establishing a fine or other penalty, or providing for the creation of public debt as that term is used in the Texas Constitution, shall be by ordinance. All other official acts may by resolution, ordinance, or order duly entered in the minutes. The enacting clause of all ordinances shall be `BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION." Procedure for Passage of Ordinances Section 35. Every ordinance shall be introduced in written or printed form and, upon passage, shall take effect at the time indicated therein; provided, however, that any ordinance imposing a penalty, fine or forfeiture for a violation of its provisions shall become effective not less than ten (10) days from the date of its passage. The City Secretary shall give notice of the passage of every ordinance imposing a penalty, fine or forfeiture for a violation of the provisions thereof, by causing the caption or title, including the penalty, of any such ordinance imposing a penalty, fine or forfeiture for a violation of the provisions thereof, to be published in the official newspaper of the City of College Station at least twice within ten (10) days after the passage of such ordinance. He shall note on every ordinance, the caption of which is hereby required to be published, and on the record thereof, the fact that same has been published as required by the charter, and the date of such publication, which shall be prima facie evidence of the legal publication and promulgation of such ordinance; provided, however, that the provisions of this section shall not apply to the correction, amendment, revision and codification of the ordinances of the City for publication in book or pamphlet form. Except as may be otherwise provided by this charter, it shall not be necessary to the validity of any ordinance that it shall be read more than one time or considered at more than one session of the City Council. Every ordinance shall be authenticated by the signature of the Mayor and City Secretary and shall be systematically recorded and indexed in an ordinance book in a manner approved by the City Council, but it shall only be necessary to record the caption or title of ordinances in the minutes or journal of council meetings. The City Council shall have power to cause the ordinances of the City to be corrected, amended, revised, codified and printed in code form as often as it deems advisable, and such printed code, when adopted, shall be in frill force and effect without the necessity of publishing the same or any part thereof in a newspaper. Such printed code shall be admitted in evidence in all courts and places without further proof. Investigation by City Council Section 36. The City Council shall have power to inquire into the conduct of any office, department, agency or officer of the city and to make investigations as to municipal affairs, and for that purpose may subpoena witnesses, administer oaths and compel the production of books, papers and other evidence. Failure to obey such subpoena or to produce books, papers or other evidence as ordered under the provisions of this section shall constitute a misdemeanor and shall be punishable by fine not to exceed ($100.00) dollars. Independent Annual Audit Section 37. Not less than thirty (30) days prior to the end of each fiscal year, the City Council shall designate a qualified public accountant or accountants who, as of the end of the fiscal year, shall make an independent audit of accounts and other evidences of financial transactions of the City government and shall submit the report to the City Council. Such accountants shall have no personal interest, direct or indirect, in the fiscal affairs of the City government. They shall not maintain any account or record of the City business, but, within specifications approved by the City Council, shall post -audit the books and documents kept by the City and any separate or subordinate accounts kept by any other office, department or agency of the City government. Housing Authority Section 38. The City Council may create a housing authority of such number, terms and compensation of members as it may determine and may delegate to that authority such powers relating to the planning, construction, reconstruction, alteration, repair, maintenance or operation of housing projects and housing accommodations as it may deem wise. Disabled Employees; Pensions and Insurance Section 39. The City Council shall have authority to provide for rules and regulations for maintaining employees when injured and disabled while performing their duties, and it may provide for such plan of insurance as it deems proper. The City Council shall also have authority to establish and to do all other proper things necessary for the effective administration of a pension and retirement system for any or all groups of officers and employees on such basis as it may determine consistent with or authorized by state laws. Such system may be in cooperation with or participation in any district or statewide pension or retirement system which has been or which may be hereafter authorized or established by the legislature of the State of Texas. ARTICLE IV THE CITY MANAGER Qualifications Section 40. The City Manager shall be chosen by the City Council solely on the basis of his executive and administrative qualifications with special reference to his actual experience in, or his knowledge of, accepted practice in respect to the duties of his office as hereinafter set forth. At the time of his appointment he need not be a resident of the City or State, but during his tenure of office he shall reside within the City. Powers and Duties Section 41. The City Manager shall be the chief executive officer and the head of the administrative branch of the city government. He shall be responsible to the City Council for the proper administration of all affairs of the City, and to that end he shall have power and shall be required to: (1) Appoint and, when necessary for the good of the service, remove all officers and employees of the City except as otherwise provided by this Charter and except as he may authorize the head of a department to appoint and remove subordinates in such department. (2) Prepare the budget annually and submit it to the City Council and be responsible for its administration after adoption. (3) Prepare and submit to the City Council at the end of the fiscal year a complete report on the finances and administrative activities of the City for the preceding year. (4) Keep the City Council advised of the financial condition and future needs of the City and make such recommendations as may seem to him desirable and proper. (5) Perform such other duties as may be prescribed by this charter or required of him by the City Council. Absence of City Manager Section 42. To perform his duties during his temporary leave of absence or disability, the Mayor may designate by letter filed with the City Secretary a qualified administrative officer of the City to serve for the City Manager. Concerning out of town business, illness, or vacation the City Manager may be delegated authority to designate an individual to serve in the absence of the City Manager. Director of Departments Section 43. At the head of each administrative department there shall be a director. He shall be an officer of the City and shall have supervision and control of the department subject to the City Manager. Two or more departments may be headed by the same individual; the City Manager may head one or more departments, and directors of departments may also serve as chiefs of divisions. Departmental Divisions Section 44. The work of each administrative department may be distributed among the divisions thereof subject to approval of the City Manager. ARTICLE V THE BUDGET Fiscal Year Section 45. The fiscal year of the City of College Station shall be determined by ordinance of the Council. Such fiscal year shall also constitute the budget and accounting year. Preparation and Submission of Budget Section 46. The City Manager, between thirty (30) and ninety (90) days prior to the beginning of each fiscal year, shall submit to the City Council a proposed budget which shall provide a complete financial plan for the fiscal year Proposed Expenditures Compared With Other Years Section 47. The City Manager shall, in the preparation of the budget, place in parallel columns opposite the various items of expenditures the actual amount of such items of expenditures for the last completed fiscal year, the estimated for the current fiscal year, and the proposed amount for the ensuing fiscal year. Budget a Public Record Section 48. The budget and all supporting schedules shall be filed with the City Secretary when submitted to the City Council and shall be a public record for inspection by anyone. The City Manager shall cause copies to be made for distribution to all interested persons. Notice of Public Hearing on Budget Section 49. At the meeting at which the budget is submitted, the City Council shall fix the time and place of a public hearing on the budget and shall cause to be published a notice of the hearing setting forth the time and place thereof at least five (5) days before the date of the hearing. Public Hearing on Budget Section 50. At the time and place set for a public hearing on the budget, or at any time and place to which such public hearing shall from time to time be adjourned, the City Council shall hold a public hearing on the budget submitted, and all interested persons shall be given an opportunity to be heard for or against any item or the amount of any item therein contained. Proceedings on Budget After Public Hearing Amending or Supplementing Budget Section 51. After the conclusion of such public hearing, the City Council may insert new items or may increase or decrease the items of the budget, except items in proposed expenditures fixed by law. Before inserting any additional item or increasing any item of appropriation which will increase the total budget by three (3%) percent or more, it must cause to be published a notice setting forth the nature of the proposed increases and fixing a place and time, not less than five (5) days after publication, at which the City Council will hold a public hearing thereon. Proceedings on Adoption of Budget Section 52. After such further hearing, the City Council may insert the additional item or items, and make the increase or increases, to the amount in each case indicated by the published notice, or to a lesser amount; but where it shall increase the total proposed expenditures, it shall also provide for an increase in the total anticipated revenue to at least equal such total proposed expenditures. Vote Required for Adoption Section 53. The budget shall be adopted by the favorable vote of a majority of the members of the entire City Council. Date of Final Adoption; Failure to Adopt Section 54. The budget shall be finally adopted not later than the twenty-seventh day of the last month of the fiscal year. Should the City Council take no final action on or prior to such day, the budget as submitted by the City Manager shall be deemed to have been finally adopted. Effective Date of Budget; Certification; Copies Made Available Section 55. Upon final adoption, the budget shall be filed with the City Secretary. The final budget shall be printed, or otherwise reproduced, and a reasonable number of copies shall be made available for the use of all offices, departments and agencies, and for the use of interested persons and civic organizations. Budget Establishes Appropriations Section 56. From the effective date of the budget, the several amounts stated therein as proposed expenditures shall be and become appropriated to the several objects and purposes therein named. Budget Establishes Amount to be Raised by Property Tax Section 57. From the effective date of the budget, the amount stated therein as the amount to be raised by property tax shall constitute a determination of the amount of the levy for the purposes of the City in the corresponding tax year. Contingent Appropriation Section 58. Provision shall be made in the annual budget and in the appropriation ordinance for a contingent appropriation in an amount not more than three (3) percent of the total budget expenditure, to be used in case of unforeseen items of expenditures. Such contingent appropriation shall be under the control of the City Manager and distributed by him, after approval by the City Council. Expenditures from this appropriation shall be made only in case of established emergencies and a detailed account of such expenditures shall be recorded and reported. The proceeds of the contingent appropriation shall be disbursed only by transfer to other departmental appropriation, the spending of which shall be charged to the departments or activities for which the appropriations are made. Estimated Expenditures Shall Not Exceed Estimated Resources Section 59. The total estimated expenditures of the general fund and debt fund shall not exceed the total estimated resources of each fund. The City Council may by ordinance amend the budget during a fiscal year if one of the following conditions exists: 1. If during the fiscal year the City Manager certifies that there are available for appropriation revenues in excess of those estimated in the budget, the City Council, by ordinance, may make supplemental appropriations for the year up to the amount of such excess. Before approval, the Council shall hold a public hearing on the proposed budget amendment. A notice of the time and place of a public hearing on the supplemental appropriation shall be published in the official newspaper of the City of College Station. The notice shall be placed in the newspaper at least five (5) working days before the date of the hearing. 2. To meet a public emergency affecting life, health and property of the public peace, the City Council may make emergency appropriations. Such appropriations may be made by emergency ordinance. To the extent that there are no available unappropriated revenues or a sufficient fiend balance to meet such appropriations, the Council may by such emergency ordinance authorize the issuance of emergency notes, which may be renewed from time to time, but the emergency notes and renewals of any such notes made during a fiscal year shall be paid not later than the last day of the fiscal year next succeeding that in which the emergency appropriation was made. 3. If at any time during the fiscal year it appears probable to the City Manager that the revenues or fund balances available will be insufficient to meet the amounts appropriated, he shall report to the City Council without delay, indicating the estimated amount of the deficit, any remedial action taken by hint and his recommendations as to any other steps to be taken. The Council shall then take such further action as it deems necessary to prevent or reduce any deficit and for that purpose it may by ordinance reduce one or more appropriations. Lapse of Appropriation Section 60. All appropriations shall lapse at the end of the fiscal year to the extent that they shall not have been expended or lawfully encumbered. ARTICLE VI CITY BONDS AND TIME WARRANTS General Obligation Bonds Section 61. The City of College Station shall have the power to borrow money on the credit of the City and to issue general obligation bonds for permanent public improvements or for any other public purpose not prohibited by the Constitution and laws of the State of Texas, and to issue refunding bonds to refund outstanding bonds of the City previously issued. All such bonds shall be issued in conformity with the laws of the State of Texas. Revenue Bonds Section 62. The City of College Station shall have the power to borrow money for the purpose of constructing, purchasing, improving, extending or repairing of public utilities, recreational facilities or any other self-liquidating municipal function not prohibited by the Constitution and laws of the State of Texas, and to issue revenue bonds to evidence the obligation created thereby, and to issue revenue refunding bonds to evidence the obligation created thereby; and to issue revenue refunding bonds to refund outstanding revenue bonds previously issued. Such bonds shall be a charge upon and payable solely from the properties, or interest therein, pledged, or the income there from, or both, and shall never be a. debt of the City. All such bonds shall be issued in conformity with the laws of the State of Texas. Incontestability of Bonds Section 63. All bonds of the City, having been issued and sold and having been delivered to the purchasers thereof, shall thereafter be incontestable; and all bonds issued to refund outstanding bonds shall, after such issuance, be incontestable. Time Warrants Section 64. The City shall have the authority to issue time warrants, certificates of obligation or other forms of public debt allowed by state law and to issue refunding warrants, certificates, or bonds to refund outstanding warrants or certificates previously issued. All such time warrants, certificates of obligation, and bonds shall be issued in conformity with the laws of the State of Texas. Investments Section 65. Any surplus in any fund may be invested, upon approval of the City Council, in any lawful securities, accounts, certificates, or investments. Any such surplus may be used for the purchase and retirement of bonds, time warrants, or certificates not yet due. ARTICLE VII FINANCE ADMINISTRATION Financial Department; Appointment Section 66. The City Manager may appoint a chief financial officer. Fees Shall be Paid to City Section 67. All fees received by any officer or employee of the City shall belong to the City and shall be handled pursuant to the City's rules, regulations and policies. Contracts for Improvements Section 68. The City shall make expenditures to promote the best interests of the citizens of College Station. The City shall encourage free and unrestricted competition on all bids and purchases, ensuring the taxpayers the best possible return on and use of their tax dollars. It shall be the policy of the City to fully comply with and make all purchases or expenditures pursuant to the City's policies, rules, regulations, procedures, and state and federal law. Disbursement of Funds Section 69. All checks and vouchers or warrants for the withdrawal of money from the City accounts shall be handled pursuant to the City's rules, regulations, policies, and state and federal laws. Borrowing in Anticipation of Property Taxes Section 70. In any fiscal year, in anticipation of the collection of the property tax for such year, whether levied or to be levied in such year, the City Council may by resolution authorize the borrowing of money by the issuance of negotiable notes of the City, each of which shall be designated "tax anticipation note for the year " (stating the budget year). Such notes shall mature and be payable not later than the end of the fiscal year in which the original notes have been issued. Borrowing in Anticipation of Other Revenues Section 71. In any fiscal year, in anticipation of the collection or receipt of other revenues of the budget year, the City Council may by resolution authorize the borrowing of money by the issuance of negotiable notes of the City, each of which shall be designated "special revenue note for the year " (stating the budget year). Such notes may be renewed from time to time, but all such notes, together with the renewals, shall mature and be payable not later than the end of the fiscal year in which the original notes shall have been issued. ARTICLE VIII TAX ADMINISTRATION Power to Tax Section 72. The City Council shall have the power under the provisions of state law to levy, assess and collect an annual tax upon taxable property within the city to the maximum provided by the constitution and general laws of the State of Texas. Property Subject to Tax; Method of Assessment Section 73. All property, real, personal, or mixed, lying and being within the corporate limits of the City of College Station on the first day of January in each year, not expressly exempted by law, shall be subject to annual taxation according to the procedures set forth in the constitution or general laws of the State of Texas. Taxes; When Due and Payable Section 74. All taxes due to the City of College Station shall be payable to the City of College Station or such other person or entity as may be designated by the City Council, and may be paid at any time after they fall due. Taxes shall be due and shall become delinquent as provided in the TEXAS TAX CODE, as amended, which code further provides for delinquent taxes, interest, and procedures for the collection of taxes. Seizure and Sale of Personal Property Section 75. The seizure and sale of personal property for taxes due shall be accomplished according to the provisions of the TEXAS TAX CODE, as amended. Tax Liens Section 76. The tax levied by the City shall be a first and prior lien upon the property upon which the tax is due, which lien may be enforced and foreclosed according to the provisions of the TEXAs TAX CODE, as amended. ARTICLE IX NOMINATIONS AND ELECTIONS Municipal Elections Section 77. The regular city election shall be held on an annual date set by ordinance by the City Council, or as otherwise provided by law, at which time members of the Council shall be elected to fill those offices that become vacant that year. The City Council shall fix the hours and the place for holding such special election. The City Council may by resolution, order a special election, fix the time and place for holding same, and provide all means for holding such special election. In the order, ordinance, or resolution of the City Council calling any election at which more than one Councilman shall be elected, the City Council shall in calling such election provide for a separate place on the ballot for each vacant seat to be filled at such election, designating the Mayor, and such Places as Place No. 1, 2, 3, 4, 5, or 6. If an unexpired term is to be filled at such election, the Place for the unexpired term shall be so designated. Regulation of Elections Section 78. The City Council shall make all regulations which it considers needful or desirable, not inconsistent with this charter or the laws of the State of Texas, for the conduct of municipal elections, for the prevention of fraud in such elections and for the recount of ballots in case of doubt or fraud. Municipal elections shall be conducted by the appointed election authorities, who shall also have power to make such regulations not inconsistent with this charter, with any regulations made by the city council or the laws of the State of Texas. How to Get Name on Ballot Section 79. Any qualified person may have his name placed on the official ballot as a candidate for Councilman or Mayor at any election held for the purpose of electing Councilmen or Mayor by filing with the City Secretary at least forty-five (45) days prior to the date of election a sworn application in substantially the following form: do hereby certify that I am a candidate for the office of , and request that my name be printed upon the official ballot for that particular office in the next city election. I am a qualified voter of the State of Texas and am and have been a bona fide resident of the City of College Station, Texas, for at least one (1) year. I am not disqualified or ineligible to serve on the City Council if elected. I reside at Precinct College Station, Texas. Signed Council Ballots Section 80. The full names of all candidates for the city council as hereinbefore provided, except such as may have withdrawn, died or become ineligible, shall be printed on the official ballot without party designation. If two candidates with the same surnames, or with names so similar as to be likely to cause confusion, are nominated, the addresses of their places of residence shall be placed with their names on the ballot. The order of the names on the ballot shall be determined by lot. The official ballot shall be printed not less than twenty (20) days before the date of election. Laws Governing City Elections Section 81. All City elections shall be governed, except as otherwise provided by this charter, by the laws of the State of Texas governing general and municipal elections, so far as same may be applicable thereto; and in the event there should be any failure of the general laws or of this charter to provide for some feature of the city elections, then the City Council shall have the power to provide for such deficiency; and no informalities in conducting a City election shall invalidate the same, if it be conducted fairly and in substantial compliance with the general laws, where applicable and the Charter and ordinances of the City. Canvassing Election Section 82. Returns of elections, general and special, shall be made by the election officers to the City Council not later than the second Wednesday next following such election, when the City Council shall canvass the returns and declare the results of the election. ARTICLE X INITIATIVE, REFERENDUM AND RECALL Power of Initiative Section 83. The electors shall have power to propose any ordinance, except an ordinance zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes, and to adopt or reject the same at the polls, such power being known as the initiative. Any initiative ordinance may be submitted to the City Council by a petition signed by qualified electors of the City equal in number to at least twenty-five (25) percent of the number of votes cast at the last regular municipal election. Power of Referendum Section 84. The electors shall have power to approve or reject at the polls any ordinance passed by the City Council, or submitted by the City Council to a vote of the electors, such power being known as the referendum, except in the case of ordinances zoning or rezoning property, authorizing the issuance of bonds, or making the annual tax levy. Ordinances submitted to the City Council by initiative petition and passed by the City Council without charge shall be subject to the referendum in the same manner as other ordinances. Within twenty (20) days after the enactment by the City Council of any ordinance which is subject to a referendum, a petition signed by qualified electors of the city equal in number to at least twenty-five (25) percent of the number of votes cast at the last preceding regular municipal election may be filed with the City Secretary requesting that any such ordinance be either repealed or submitted to a vote of the electors. Form of Petitions; Committee of Petitioners Section 85. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition the naives and addresses of five electors, who, as a committee of the petitioners, shall be regarded as responsible for the circulation and filing of the petition. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that it bears a stated number of signatures, that all signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be. Filing; Examination and Certification of Petitions Section 86. All petition papers comprising an initiative or referendum petition shall be assembled and filed with the City Secretary as one instrument. Within ten (10) days after the petition is filed, the City Secretary shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified electors. The City Secretary shall declare any petition paper entirely invalid which does not have attached thereto an affidavit signed by the circulator thereof. If a petition paper is found to be signed by more persons than the number of signatures certified by the circulator, the last signatures in excess of the number certified shall be disregarded. If a petition paper is found to be signed by fewer persons than the number certified, the signatures shall be accepted unless void on other grounds. After completing his examination of the petition, the City Secretary shall certify the result thereof to the city council at its next regular meeting. If he shall certify that the petition is insufficient, he shall set forth in his certificate the particulars in which it is defective and shall at once notify the committee of the petitioners of his findings. Amendment of Petitions Section 87. An initiative or referendum petition may be amended at any time within ten (10) days after the notification of insufficiency has been sent by the City Secretary, by filing a supplementary petition upon additional papers signed and filed as provided in case of an original petition. The City Secretary shall, within five (5) days after such an amendment is filed, make examination of the amended petition and, if the petition be still insufficient, he shall file his certificate to that effect in his office and notify the committee of petitioners of his findings, and no further action shall be had on such insufficient petition. The finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose. Effect of Certification of Referendum Petition Section 88. When a referendum petition, or amended referendum petition, has been certified as sufficient by the City Secretary, the ordinance specified in the petition shall not go into effect, or further action there under shall be suspended if it shall have gone into effect, until and unless approved by the electors, as hereinafter provided. Consideration by City Council Section 89. Whenever the City Council receives a certified initiative or referendum petition from the City Secretary, it shall proceed at once to consider such petition. A proposed initiative ordinance shall be read and provision shall be made for a public hearing upon the proposed ordinance. The City Council shall take final action on the ordinance not later than sixty (60) days after the date on which such ordinance was submitted by the City Secretary. A referred ordinance shall be reconsidered by the City Council and its final vote upon such reconsideration shall be upon the question. "Shall the ordinance specified in the referendum petition be repealed?" Submission to Electors Section 90. If the City Council shall fail to pass an ordinance proposed by the initiative petition, or shall pass it in a form different from that set forth in the petition therefor; or if the City Council fails to repeal a referred ordinance, the proposed or referred ordinance shall be submitted to the electors not less then thirty (30) days nor more than sixty (60) days from the date the city council takes its final vote thereon. The City Council may, if no regular election is to be held within such period, provide for a special election. Form of Ballot for Initiated and Referred Ordinances Section 91. Ordinances submitted to vote of the electors in accordance with the initiative and referendum provisions of this charter shall be submitted by ballot title, which shall be prepared in all cases by the City Attorney. The ballot title may be different from the legal title of any such initiated or referred ordinance and shall be a clear, concise statement, without argument or prejudice, descriptive of the substance of such ordinance; and if a paper ballot, shall have below the ballot title the following propositions, one above the other in the order indicated: "FOR THE ORDINANCE" and "AGAINST THE ORDINANCE". Any number of ordinances may be voted on at the same election and may be submitted on the same ballot, but any paper ballot used for voting thereon shall be for that purpose only. If voting machines are used, the ballot title of any ordinance shall have below it the same two propositions, one above the other or one preceding the other in the order indicated, and the elector shall be given an opportunity to vote for either of the two propositions and thereby to vote for or against the ordinance. Results of Election Section 92. If a majority of the electors voting on a proposed initiative ordinance shall vote in favor thereof, it shall thereupon be an ordinance of the City. A referred ordinance which is not approved by a majority of the electors voting thereon shall thereupon be deemed repealed. If conflicting ordinances are approved by the electors at the same election, the one receiving the greatest number of affirmative votes shall prevail to the extent of such conflict. Repealing Ordinances; Publication Section 93. Initiative and referendum ordinances adopted or approved by the electors shall be published, and may be amended or repealed by the City Council, as in the case of other ordinances. Recall; General Section 94. Any member of the City Council may be removed from office by recall. Recall Procedure Section 95. Any elector of the City of College Station may make and file with the City Secretary an affidavit containing the name or names of the officer or officers whose removal is sought and a statement of the grounds for removal. The City Secretary shall thereupon deliver to the elector making such affidavit copies of petition blanks demanding such removal. The City Secretary shall keep a sufficient number of such printed petition blanks on hand for distribution. Such blanks when issued by the City Secretary shall bear the signature of that officer and be addressed to the city council, and shall be numbered, dated and indicate the name of the person to whom issued. The petition blanks when issued shall also indicate the number of such blanks issued and the name of the officer whose removal is sought. The City Secretary shall enter in a record to be kept in his office the name of the elector to whom the petition blanks were issued and the number issued to said person. Recall Petitions Section 96. The recall petition to be effective must be returned and filed with the City Secretary within thirty (30) days after the filing of the affidavit required in Section 95 of this Article. The petition must be signed by qualified electors of the City equal in number to at least forty (40) percent of the total number of votes cast for the office in question at the last regular municipal election at which the office in question was filled and must conform to the provisions of Section 85 of this Article. No petition papers shall be accepted as part of the petition unless they bear the signature of the City Secretary as required in Section 95 of this Article. Recall Election Section 97. The City Secretary shall at once examine the recall petition and if he finds it sufficient and in compliance with the provisions of this article of the charter, he shall within five (5) days submit it to the city council with his certificate to that effect and notify the officer sought to be recalled of such action. If the officer whose removal is sought does not resign within five (5) days after such notice the city council shall thereupon order and fix a date for holding a recall election. Any such election shall be held not less than thirty (30) nor more than sixty (60) days after the petition has been presented to the city council, however, such election may be held at the same time as any municipal election held within such period. Ballots in Recall Election Section 98. Ballots used at recall elections shall conform to the following requirements. (1) With respect to each person whose removal is sought the question shall be submitted "Shall (name of person) be removed from the office of councilman by recall?" (2) Immediately below each such question there shall be printed the two following propositions, one above the other, in the order indicated: "For the recall of (name of person)" "Against the recall of (name of person)" Results of Recall Election Section 99. If a majority of the votes cast at a recall election shall be against the recall of the officer named on the ballot, he shall continue in office for the remainder of his unexpired term, subject to recall as before. If a majority of the votes cast at such an election be for the recall of the officer named on the ballot, he shall, regardless of any technical defects in the recall petition, be deemed removed from office and the vacancy shall be filled as in other vacancies. Limitations on Recalls Section 100. No recall petition shall be filed against a Councilman within six (6) months after he takes office, nor in respect to an officer subjected to a recall election and not removed thereby, until at least six (6) months after such election. District Judge May Order Election Section 101. Should the City Council fail or refuse to order any of the elections as provided for in this article when all the requirements for such elections have been complied with by the petitioning electors, then it shall be the duty of the District Judge, upon proper application being made therefor, to order such elections and to enforce the carrying into effect of the provisions of this article of the charter. ARTICLE XI FRANCHISES AND PUBLIC UTILITIES Control Over and Powers With Reference to City Property Section 102. The ownership, right of control and use of streets, highways, alleys, parks, public places and all other real property of the City of College Station is hereby declared to be inalienable to the city, except by ordinances passed by vote of the majority of the governing body of the City, as hereinafter provided; and no franchise or easement involving the right to use same, either along, across, over or under the same, shall ever be valid, unless expressly granted and exercised in compliance with the terms hereof, and of the ordinances granting the same. No act or omission of the City, its governing body, officers or agents shall be construed to confer or extend by estoppel or indirection, any right, franchise or easement not expressly granted by ordinance. The City of College Station shall have the power, subject to the terms and provisions hereof, by ordinance to confer upon any person or corporation, the franchise or right to use the property of the city, as defined in the preceding paragraph, for the purpose of furnishing to the public any general public service, including heat, water, light, power, telephone service, refrigeration, steam, manufacture and distribution of ice, and the carriage of passengers or freight, within the city and its suburbs, over the streets, highways, and property of the City, or for any other purposes whereby a general service is to be furnished to the public for compensation or hire, to be paid to the franchise holder, whereby a right to use the streets, highways or other property of the City is necessary or proper; and generally to fix and regulate the rates, tolls and charges of all public utilities of every kind operating within the corporate limits of the City of College Station. Limitations Section 103. No exclusive franchise or privilege shall ever be granted; nor a franchise, nor a privilege to commence at any time after six (6) months subsequent to the taking effect of the ordinance granting the same; and no franchise shall be directly or indirectly extended beyond the term originally fixed by the ordinance granting the same, except as provided by the terms of this charter; nor, except as hereinafter provided, shall any franchise be granted to any person, firm or corporation, their associates, assignees or successors, to acquire the physical property, rights or franchise of another person, firm or corporation to whom or which a franchise has already been granted by the city, whereby the rights and properties held and used under such franchise are assigned to any other person, firm or corporation which holds a franchise from the city extending beyond the time of the expiration of the franchise of the person, firm or corporation selling such physical properties, rights or franchises; provided, however, that when it shall appear that the public welfare will be promoted by permitting or requiring the properties of two or more companies doing the same character of business to be under one common ownership the city may, in granting a franchise for such properties, allow or require the ownership of such properties to become vested in one ownership or one corporation, provided that no debts or obligations of any of the companies so consolidated shall be assumed by the corporation, person or association of persons acquiring the ownership of such properties except such debts and obligations of said companies, or either of them as could at the time of the creation of such indebtedness, lawfully be created under the Constitution and laws of the State of Texas; and only to the extent that the assumption of such indebtedness is permitted under the provisions of the ordinance granting such franchise and the amount of such indebtedness shall be fixed or limited in such ordinance and the same shall not thereafter be increased except by such actual moneys as may hereafter be expended pursuant to the rules and regulations to be formulated by the city council from time to time, Procedure Section 104. The City of College Station shall have the power by ordinance to grant any franchise or right mentioned in the preceding sections hereof, which ordinance, however, shall not be passed finally until it shall have been read at three (3) separate regular meetings of the City Council. No ordinance granting a franchise shall pass any reading except by a vote of the majority of the City Council, and such ordinance shall not take effect until sixty (60) days after its adoption on its third and final reading; provided, however, that if at any time before such ordinance shall finally take effect a petition shall be presented to the City Council signed by not less than forty (40) percent of the bona fide qualified voters of the City, then the City Council shall submit the question of the granting of such franchise to a vote of the qualified voters of the City at the next succeeding general election to be held in the City, provided that notice thereof shall be published in at least ten (10) successive issues of the official newspaper of the City of College Station prior to the holding of such election. Ballots shall be used briefly describing the franchise to be voted on and the terms thereof and containing the words, "For the granting of a franchise", and "Against the granting of a franchise". The vote shall be canvassed by the city council, and should it result that a majority of those voting thereon cast their votes "For the granting of a franchise", then by order entered in its minutes, the city council shall so declare and such franchise shall at once take effect. But should a majority of the votes be cast "Against granting a franchise", then the City Council by order entered in its minutes shall so declare and such franchise shall not take effect. In case a franchise is refused by the City Council, then the matter may be submitted to the qualified voters on petition, as hereinbefore provided, and a failure to finally pass on an application within six (6) months after the filing of such application shall be construed as a refusal. The City Council in passing an ordinance granting a franchise may provide therein that it shall not take effect until the same shall have been submitted to and approved by a majority of the qualified voters voting therein at a general election. All expenses of publication shall be borne by the applicant for the franchise, who shall make a deposit in advance to cover the estimated cost of publication, the amount of the deposit to be determined by the City Manager. Term and Conditions Section t05. No determinate or fixed -term franchise shall ever be granted for a longer term than twenty-five (25) years; nor shall any right, privilege or franchise now in existence be extended beyond the period now fixed for its termination, directly or indirectly, or through any means whatsoever, and any ordinance in violation or evasion of this prohibition shall be absolutely void; provided, however, that any corporation, person or association of persons now holding any franchise under any charter, charters or ordinances of the City of College Station may, with the consent of the city council surrender such franchise or franchises, subject to the provisions of the City Charter then in force, and take a new franchise under such charter, or a new franchise may be granted to a new company or another person with the privilege of acquiring the properties of such franchise holder upon the surrender of the franchise rights then held. No subsidiary franchise or franchises of any character appertaining or relating to any other franchise holder, or to any person, firm or corporation acting directly of indirectly for such franchise holder, shall be granted, and any such grant in violation of this prohibition shall be absolutely void to the extent of the excess in time beyond the life of such main franchise. No franchise, privilege or easement shall ever be used or operated so as to extend or enlarge any other franchise or privilege granted by the City except upon surrender of such original franchise as herein provided, and any violation of this prohibition shall operate as a forfeiture of each and all such franchise privileges or easements. No holder of a franchise heretofore or hereafter granted shall have a right (unless such right is granted in the franchise) to transfer or assign its properties and franchise to any other person, firm or corporation without the consent of the city council, and such consent when given shall not operate as the granting of a franchise or as a new franchise. The City Council shall have the power to compel all persons, firms or corporations operating any public utilities in the city, whether operating under existing franchises, or franchises that may be hereafter granted, to extend their service, lines, pipes, etc., if the person to be benefited by such extension will pay the cost thereof, or if it can be shown that the revenue resulting from such extension will, within a reasonable time after same is made, pay a reasonable return on the investment, after making the customary allowance for depreciation. All public utility franchises in the City of College Station shall be held whether expressed in the ordinance or not, subject to the right of the city, each of the following being a condition: (1) To repeal the same by ordinance at any time for failure to begin construction or operation within the time prescribed or otherwise to comply with the terms of the franchise, such power to be exercised only after due notice and hearing. (2) To require an adequate extension of plant and service, and the maintenance of the plant and fixtures at the highest reasonable standard of efficiency. (3) To establish reasonable standards of service and quality of products and prevent unjust discrimination in service or rates. (4) To prescribe the form of accounts kept by such utility; provided, that if the utility shall keep its accounts in accordance with the uniform system of accounts for said utility prescribed by the National Association of Railroad and Public Utility Commissioners, the Federal Power Commission, the Federal Communications Commission, the Railroad Commission of Texas, their successor or successors, this shall be deemed sufficient compliance with this paragraph. (5) At any time to examine and audit the accounts and other records of any such utility and to require annual and other reports, including reports on local operations by each such public utility. (6) To impose such reasonable regulations and restrictions as may be deemed desirable or conducive to the safety, welfare and accommodation of the public. (7) To fix and regulate the price and rates for the service to be performed under the franchise. (8) To require such compensation and rental as may be pennitted by the laws of the State of Texas. Every public utility franchise hereafter granted shall be subject to the terns and conditions of this charter, whether such terms and conditions are specifically mentioned in the franchise or not. Utility Rates and Charges Section 106. The City Council shall have the power by ordinance to fix and regulate the price of water, gas, electric lights, electric power and steam heat, and to regulate and fix the fares, tolls and charges of local telephone service and charge of all public buses, carriages, hacks and vehicles of every kind, whether transporting passengers, freight or baggage; and generally to fix and regulate the rates, tolls and charges of all public utilities of every kind operating within the corporate limits of the City of College Station. Applicable to Streets and Highways Section 107. The right to the use of the public streets, highways, alleys and thoroughfares of this city which necessitates the digging up, or displacement thereof, for the installation of equipment, appliances or appurtenances, either on, above or below the surface of same to make the intended use thereof practicable, shall be deemed and considered "a franchise", the granting of which shall be governed and controlled in the manner herein provided. The use of such public streets, highways, alleys and thoroughfares of this city which does not require the digging up or similar interference with said streets, alleys or highways for the installation of equipment, appliances or appurtenances to make the intended use possible, shall be treated and considered as "a privilege", subject to the control and disposition of the city council; and such privilege over and upon the public streets, alleys, highways and thoroughfares of the city shall not be granted to any person or corporation except when public necessity and convenience may require such use, and then only by ordinance passed by the city council. All franchises for the use and occupancy of public streets, highways, alleys and thoroughfares of this city shall, in event public necessity and convenience so require, be subject to cancellation by the city council; and the City reserves the right to require all public utilities holding franchises from the City of College Station to conform to street grades, and alter or lower their underground structures to meet changing conditions. Public Service Corporation to File Annual Reports Section 108. It shall be the duty of the City Council to pass an ordinance requiring each public service corporation operating within the corporate limits of the city to file a sworn annual report of the receipts from the operation of such business for the current year showing how such receipts were expended, how much thereof for betterments or improvements, the rate of tolls or charges for services rendered to the public; and any other facts or information that the City Council may deem pertinent for its use in intelligently passing upon any questions that may arise between the City and the said public set -vice corporations; all reports to be filed with the City Secretary and preserved for the use of the City Council. Option to Purchase Section 109. Any public utility franchise may be terminated by ordinance after ten (10) years after the beginning of operation, whenever the City Council shall determine to acquire by condemnation or otherwise the property of such utility necessarily used in or conveniently useful for the operation of the city within the city limits. Consent of Property Owners Section 110. The consent of abutting and adjacent property owners shall not be required for the construction, extension, maintenance or operation of any public utility, but nothing in this charter or in any franchise granted there under shall ever be construed to deprive any such property owner of any right of action for damage or injury to his property as now or hereafter provided by law. Extensions Section I 1 l . All extensions of public utilities within the City limits shall become a part of the aggregate property of the public utility, and shall be operated as such, and shall be subject to all the obligations and reserved rights contained in this Chatter and in any original grant hereafter made. The right to use and maintain any extension shall terminate with the original grant and shall be terminable as provided in this charter. In case of an extension of a public utility operated under a franchise hereafter granted such right shall be terminable at the same time and under the same conditions as the original grant. Other Conditions Section 112. All franchises heretofore granted are recognized as contracts between the City of College Station and the grantee, and the contractual rights as contained in any such franchises shall not be impaired by the provisions of this charter, except that the power of the City of College Station to exercise the right of eminent domain in the acquisition of any utility property is in all things reserved; and except the general power of the City heretofore existing and herein provided for to regulate the rates and services of a grantee, which shall include the right to require proper and adequate extension of plant and service and the maintenance of the plant and fixtures at the highest reasonable standard of efficiency. Every public utility franchise hereinafter granted shall be held subject to all the terms and conditions contained in the various sections of this article, whether or not such terms are specifically mentioned in the franchise. Nothing in this charter shall operate to limit in any way, as specifically stated, the discretion of the City Council or the voters of the City in imposing terms or conditions as may be reasonable in connection with any franchise grant. Franchise Records Section 113. Within six (6) months after this charter takes effect every public utility and every owner of a public utility franchise shall file with the City Council, as may be prescribed by ordinance, certified copies of all franchises owned or claimed, or under which such utility is operated in the City of College Station, The City shall compile and maintain a public record of public utility franchises. ARTICLE XII GENERAL PROVISIONS Publicity of Records Section 114. Records and accounts of every office, department, or agency of the City shall be open for inspection and copying as provided by V.T.C.A., GOVERNMENT CODE, CH. 552, Public Information, as amended. Personal Interest Section 115. No member of the City Council or any officer or employee of the City shall have a financial interest direct or indirect or by reason of ownership of stock in any corporation, in any contract with the City, or be financially interested directly or indirectly in the sale to the City of any land, materials, supplies or services except on behalf of the City as an officer or employee; provided, however, that the provisions of this section shall only be applicable when the stock owned by the officer or employee exceeds one (1) percent of the total capital stock of the corporation. Any willful violation of this section shall constitute malfeasance in office and any officer or employee guilty thereof shall thereby forfeit his office or position. Any violation of this section with the knowledge expressed or implied of the person or corporation contracting with the City shall render the contract voidable by the City Council or City Manager. The prohibitions of this section shall not be applicable to city employee who applies for and or receives housing assistance or any other assistance that is offered to the general public under the same terms and conditions that the assistance is offered to other citizens. Approved by voters 1104 2008 No Officer or Employee to Accept Gifts Section 116. No officer or employee of the City of College Station shall ever accept, directly or indirectly, any gift, favor, privilege or employment from any public utility corporation enjoying the grant of any franchise, privilege or easement from the city during the term of office of such officer, or during the employment of such employee, except as may be authorized by law or ordinance; provided, however, that policemen and firemen in uniform or wearing their official badges may accept such free services where the same is permitted by ordinance. Any officer or employee of the City who shall violate the provisions of this section shall be guilty of a misdemeanor and may be punished by any fine that may be prescribed by ordinance for this offense, and shall forthwith be removed from office. Relatives of Officers Shall Not be Appointed or Employed Section 117. No person related within the second degree of affinity, or within the third degree of consanguinity, to members of the City Council or the City Manager shall be appointed to any office, position or service in the City. Oath of Office Section 118. Every officer of the City shall, before entering upon the duties of his office, take and subscribe to the following oath or affirmation, to be filed and kept in the office of the City Secretary: "I, , do solemnly swear (or affirm) that I will faithfully execute the duties of the office of , of the City of College Station, State of Texas, and will to the best of my ability preserve, protect and defend the constitution and laws of the United States and of this state and the charter and ordinances of this City; and I furthermore solemnly swear (or affirm) that I have not directly or indirectly paid, offered, or promised to pay, contributed or promised to contribute any money or valuable thing, or promised any public office or employment as a reward for the giving or withholding a vote at the election at which I was elected, or if the office is one of appointment, to secure may appointment. So help me God." Notice of Injury or Damage Section 119. The City shall never be liable for any personal injury, whether resulting in death or not, unless the person injured, or someone in his behalf, or in the event the injury results in death, the person or persons who may have a cause of action under the law by reason of such death or injury, shall file a notice in writing with the City Secretary within ninety (90) days after the same has occurred, stating specifically in such notice when, where and how the exact injury occurred, the full extent of the injury, the amount of damages claimed or asserted, and a list of persons, if known, who witnessed the injury. The City shall never be liable for any claim for damage or injury to personal property unless the person whose personal property has been injured or damaged, or someone in his behalf, shall file a claim in writing with the City Secretary within ninety (90) days after said damage or injury occurred, stating specifically when, where and how the damage or injury was sustained. The person giving notice under this Section shall subscribe his name to the notice under oath that the statements and facts contained in said notice are true and correct. Power to Settle Claims Section 120. The City Council shall have the power to compromise and settle any and all claims and lawsuits of every kind and character in favor of or against the City, including suits by the City to recover delinquent taxes. Service of Process Against the City Section 121. Legal process against the City shall be served upon the Mayor or Mayor Pro Tem. City Not Required to Give Security or Execute Bond Section 122. It shall not be necessary in any action, suit or proceeding in which the City of College Station is a party, for any bond, undertaking or security to be demanded or executed by or on behalf of the city in any of the state courts; but in all such actions, suits, appeals or proceedings, the same shall be conducted in the same manner as if such bond, undertaking or security had been given as required by law, and the City shall be just as liable as if security of bond had been duly executed. Liens Against City Property Section 123. No lien of any kind shall ever exist against any property, real or personal, owned by the City except that same be authorized by law, and created pursuant to an ordinance providing for such lien. Provisions Relating to Assignment, Execution and Garnishment Section 124. Property, real and/or personal, belonging to the City shall not be liable to be sold or appropriated under any writ of execution or cost bill. Funds belonging to the City, in the hands of any person, firm or corporation, shall not be liable to garnishment, attachment or sequestration; nor shall the city be liable to garnishment on account of any debt it may owe or funds or property it may have on hand or owing to any person. Neither the City nor any of its officers or agents shall be required to answer any such writ or garnishment on any account whatever. The city shall not be obligated to recognize any assignment of wages or funds by its employees, agents or contractors. Power to Remit Penalties Section 125. The City Council shall have the right to remit in whole or in part any fine or penalty belonging to the City which may be imposed under any ordinance or resolution passed in pursuance of this Charter. Church and School Property Not Exempt From Special Assessments Section 126. No property of any kind, church, school or otherwise, in the City of College Station shall be exempt from any of the special taxes and assessments authorized by this Charter for local improvements unless the exemption is required by state law. Sale or Lease of Property Other Than Public Utilities or Acquired by Tax Sale Section 127. Any real property owned by the City may be sold by the City Council when in its judgment such sale will be in the best interest of the City, subject to the provisions of V.T.C.A., LOCAL GOVERNMENT CODE, Chapter 272, Sale or Lease of Property by Municipalities, Counties, and Certain Other Local Governments, as amended, and such other laws as are applicable for Home Rule Cities pertaining to the necessity for public bids. The sale of land may be subject to referendum or initiative for a thirty -day period after the sale and shall not be effective until the expiration of said thirty -day period. If during such thirty -day period a referendum or initiative petition is presented to the City Secretary, which in all respects conforms to the referendum or initiative provisions of Article X of this Charter and the same is found sufficient, then the City Secretary shall certify the sufficiency of the same to the City Council and an election shall be called submitting the question of the sale of the property to the voters. This right of referendum or initiative shall not apply to public utilities or to property sold by the City at tax sales. Effect of This Charter on Existing Law Section 128. All ordinances, resolutions, rules and regulations now in force under the city government of the City of College Station and not in conflict with the provisions of this Charter shall remain in force under this charter until altered, amended or repealed by the City Council after this Charter takes effect; and all rights of the City of College Station under existing franchises and contracts are preserved in full force and effect to the City. When adopted, this Charter shall become the law of the City of College Station. Continuance of Contracts and Succession of Rights Section 129. All contracts entered into by the City of College Station prior to the taking effect of this charter shall continue in full force and effect. Public improvements for which legislative steps have been taken under laws or ordinances existing at the time this charter takes effect may be carried to completion in accordance with the provisions of such existing laws or ordinances. All suits, taxes, penalties, forfeitures and all other rights, claims and demands which have accrued under the laws heretofore in force governing the City of College Station, shall belong to and be vested in and shall be prosecuted by and for the use and benefit of the corporation hereby created, and shall not in anywise be diminished, affected or prejudiced by the adoption and taking effect of this Charter. Construction and Separability Clause Section 130. This Charter shall be liberally construed to carry out its intents and purposes. If any section or part of any section of this Charter shall be held invalid by a court of competent jurisdiction, such holding shall not affect the remainder of this Charter nor the context in which such section or part of section so held invalid may appear, except to the extent that an entire section or part of section may be inseparably connected in meaning and effect with the section or part of section to which such holding shall directly apply. Amending the Charter Section 131. This Charter may be amended in accordance with the provisions of the statutes of the State of Texas. Submission of the Charter to Electors Section 132. The Charter commission in preparing this charter finds and decides that it is impracticable to segregate each subject so as to permit a vote of "yes" or "no" on the same, for the reason that the Charter is so constructed that in order to enable it to work and function it is necessary that it should be adopted in its entirety. For these reasons the Charter commission directs that the Charter be voted upon as a whole and that it shall be submitted to the qualified voters of the City of College Station at an election to be held for that purpose on January 8, 1952. If a majority of the qualified voters voting in such election shall vote in favor of the adoption of this Charter it shall become the charter of the City of College Station, and after the returns have been canvassed the same shall be declared adopted. An official copy of the Charter shall be filed with the records of the City and the Mayor shall as soon as practicable certify to the Secretary of State an authenticated copy under the seal of the city, showing the approval by the qualified voters of such charter. In not less than thirty (30) days prior to such election the City Council shall cause the City Secretary to mail a copy of this Charter to each qualified voter of the City of College Station as appears from the Tax Collector's roll for the year ending January 31 preceding said election. Rearrangement and Renumbering Section 133. The City Council shall have the power, by ordinance, to renumber and rearrange all articles, sections, and paragraphs of this Charter or any amendments thereto; and upon the passage of any such ordinance, a copy thereof, certified by the City Secretary, shall be forwarded to the Secretary of State for filing. ol. . . ... . ... Terrell Blodgett, in more than six decades of public service, has been a city manager, administrative assistant to a Texas governor, a private consultant to state and local officials na- tionwide, and an endowed professor in urban management. After receiving his master's degree in public administration from Syracuse University in Syracuse, New York, his first job was as a research assistant in the Bureau of Municipal Re- search at The University of Texas at Austin. He began his local government career as personnel director and later assistant city manager for the City of Austin. He served as city manager of Waco and Garland, Texas before returning to Austin as an administrative assistant for urban affairs to Governor John Connally for whom he coordinated the activation in Texas of such new federal government programs as the "War on Poverty," law enforcement assistance, and highway safety. For 13 years, Blodgett directed governmental consulting in a nine -state southwest area for Peat, Marwick (now KPMG). He organized and directed management studies at local and state levels, including organizational analyses of several governors' and mayors' offices. Upon his early retirement from Peat, Marwick in 1982, he was appointed as the first Mike Hogg Professor in Urban Man- agement at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. His course topics included both local and state government administration. He organized the school's first course in the management of nonprofit or- ganizations, which is attended by graduate students and ex- ecutives in nonprofits. While at the LBJ School, he also conducted more than a dozen studies and assignments for the State of Texas, includ- ing a 1983 study for then Governor William Clements which called attention to the safety and fire hazard conditions in the 100-year-old state capitol. His recommendations were among the factors that led to the $185-million restoration and ex- pansion of the capitol, which was completed in 1994. In 1991, he served as Executive Director of Governor Ann Richards' Task Force on Revenue. Blodgett's honors for his public service include a Distin- guished Service Award from the International City/County Management Association and serving as chairman of the Na- tional Civic League in 1986 and 1987. The League is the home of the 60-year-old All America Cities competition and publisher of the widely used model city charter. He is an Hon- orary Life Director of the League, and a Fellow of the National Academy of Public Administration. Texas Home Rule Charters IF �mllv, 'IML T E X A MUNICIPAI,, I.,EAGUE Local self-government is the cornerstone of democratic government. Texas leads the nation in adherence to the concept and practice of local self-government. Credit for this is shared by the Texas Legislature and the 351 cities guided by a local constitution, identified nationwide as a home rule charter. Broadly speaking, "home rule" is a grant of a degree of local autonomy to local governments by constitution or statute. Nationwide, 48 states have granted their cities such status by one of these methods. Texas cities have en- joyed the privileges of constitutional home rule (preferred over statutory home rule) since 1912. Although adupliori of home rule charters has been one of the most important developments in Texas municipal gov- ernment in the twentieth century, only five comprehensive reports had addressed the subject until the original version of this book was published in 1994. Interest in adoption of new charters and the revision of older documents appear now to be at an unprecedented high. Only 24 of the 375 Texas cities over 5,000 in population have not adopted home rule status. First-time charters have been approved in Horseshoe Bay, Iowa Park, Lucas, Pittsburg, and Willis in just the past eighteen months. In response to this interest, the Texas Municipal League (TML), the professional and educational organization rep- resenting Texas cities for nearly a century, offers this in-depth review of the status of home rule charters in Texas today. The first edition of this document was written in 1994 by a nationally known expert in home rule charters, Professor Terrell Blodgett, the Mike Hogg Professor in Urban Management at the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin. Professor Blodgett served as chairman of the Model City Charter Revision Com- mittee for the National Civic League (formerly the National Municipal League) when it published the seventh edition of the Model City Charter in 1989. He has consulted with numerous charter commissions and civic groups interested in charter reform in Texas, Ohio, and New York. Texas cities have no greater friend than Terrell Blodgett. It was a distinct honor and pleasure for the TML staff to update his original report. This updated version of Professor Blogett's original work is largely a product of the TML legal staff led by Mr. Scott Houston, the League's director of legal services. We are proud of this document's significant content. Through the efforts of TML and the gracious as- sistance of city officials, the information in this report is based on a 73 percent response rate to our 2008 survey. The TML legal department is contacted frequently by charter commissions looking for guidance. We hope this doc- ument will enable us to be of even more assistance to our member cities as they draft new home rule charters or undertake periodic reviews of their basic constitutional document. Frank Sturzl Executive Director Texas Municipal League January 2010 r Preface (Editor's Note - The following is Terrell Blodgett's original preface to the 1994 version of the book.) The production of this monograph has been a labor of love for me. I have had a long-time interest in the structure of govern- ment, particularly at the local level. It was my privilege to au- thor the second of the five reports referred to in the Foreword by Mr. Sturzl. The first three of those reports all came from the Bureau of Municipal Research/Institute of Public Affairs at the University of Texas at Austin. Dr. Wilfred Webb wrote the first report, Municipal Home Rule Charters in texas, in 1947. My monograph, Municipal Home Rule Charter Elec- tions in Texas, in 1950, examined charter activity covering only a three-year period, 1947-50. The most comprehensive of the reports was Citv and Countv Home Rule in Texas, writ- ten by Dr. John P. Keith in 1951. Nothing else was published for over 25 years; thus, the 1978 report, Home Rule Charters in Texas Cities, written by Dr. Del Taebel and Bruce Stapleton, Institute of Urban Studies, The University of Texas at Arlington, filled a significant void. Dr. Taebel expanded and updated that report entitled A Citizen's Guide to Home Rule Charters in Texas Cities. We have used information from all five of these earlier reports and express our appreciation to the other four authors for their significant contributions to the history and practice of munic- ipal home rule in Texas. This current effort retraces the highlights of that history, but concentrates on reporting the current practices of the 290 home rule cities — such matters as length of city council terms; term limits; appointment powers of city managers; fis- cal year provisions; and actual use of initiative, referendum, and recall provisions in city charters. We also, for the first time in one place, list all of the major statutory provisions that limit home rule. Although the Texas Legislature has not imposed major restrictions on the home rule authority of Texas cities, it has nevertheless enacted a number of laws that limit authority formerly residing in the cities. This report originated with a request from the Texas Municipal League to the state's 290 home rule cities. (Editor's note: 351 in 2008). TML asked those cities to send a copy of their charters and to complete and return a two -page questionnaire relating to charter provisions. Upon receipt of the material from the cities, I reviewed each charter and completed a three -page worksheet that covered virtually every subject found in any charter. I then contacted each city, by telephone or facsimile, to obtain additional information I needed. The League data processing staff entered the information from both the two -page and the three -page questionnaires and summarized the figures. No attempt has been made in this monograph to set forth a model Texas city charter or to discuss extensively the duties and responsibilities of charter commissions —for new or amended charters. Those are subjects of separate publica- tions. I hope the discussion and tabulation of existing provisions in the charters will be useful to city councils and charter com- missions as they consider the necessity and desirability of making basic changes in their constitutional authority. Although there were hundreds of laws — state, local, and na- tional — that govern the conduct of city officials, they have by no means resulted in 290 city charters that read exactly alike. There is a freedom of spirit and unique character in each city that makes it different from the others. Maybe it is a heritage of the pioneer spirit that brought early Texans to the frontier. Whatever its source, it is reflected so obviously in charters that we are sharing samples of it with you in the boxed quotes scattered through this publication. All but two are from charters and usually it is the only one of its kind in all of the charters. All these quotes remind us that a city is a group of human beings: funny, serious, opinionated, opti- mistic, apathetic, perplexed, jointly struggling to understand their personal problems and those of their immediate environ- ment —the city. That reminder saves scholars and the pontifi- cators from viewing the city only as a cold and rigidly structured "entity" that is more responsive to the law, the courts, and the federal bureaucracy than to the people. I wish to express my deep appreciation to Frank Sturzl, Exec- utive Director of the League, and to his staff for their tremen- dous assistance and for all the courtesies they extended, I am particularly beholden to Ms. Susan Horton, General Counsel, and her staff for carefully reviewing the legal aspects of this monograph. Without their highly competent legal advice, this document would not have been possible. Mr. Richard Cantrell and his staff, Randy Overman and Anita Brown, patiently and accurately took the three -page worksheet and input the data so that the mass might be handled more quickly. I also wish to thank Mr. Ben Torres and his highly capable printing team that turned the final copy into the printed monograph. I am indebted to Ms. Barbara Ray for the overall appearance of the publication. I also wish to express special appreciation to Ms. Rose Hurst and Mr. Harold Sostand of the League staff with whom we worked more closely and whose courtesies and un- failing help are gratefully acknowledged. Ms. Debbie Warden entered the first draft in her computer and Ms. Gail Bunce then later skillfully converted the manuscript and graphics to clean, camera-ready copy for the League printing department. Preface My research was assisted considerably by the helpfulness of Ms. Linda Stout of the Texas Secretary of State's Office and by the staffs of the State Legislative Reference Library and the Archives Division of the Texas State Library. My thanks go to all of these individuals. I also express a deep sense of gratitude to William N. Cassella, Jr., Executive Director of the National Municipal League for 16 years, who was the "author" of the latest edition of the Model City Charter, who is the "supreme authority" on city charters, and who has taught me the beauty of structure and process. 2010 Preface (Editor's note: the following was prepared by Kelly McBride and Scott Houston) The 1994 version of this document served as an outstanding guide to home rule in Texas for more than a decade. It is often referred to as the "go -to" publication for information about home rule. Because of Terrell Blodgett's outstanding work on the original, our task was simply to update the data and vari- ous substantive sections of the document to ensure that it re- mains up-to-date. This second version provides cities that are contemplating home rule, and cities that are considering changes to their ex- isting charter, a fresh look at what other cities are doing, and why. Mr. Blodgett's attention to detail has provided a solid foundation from which we built the second edition. Three hundred fifty-one cities were surveyed for this update, with an astounding 73 percent response rate. The second edition was prepared by Kelly McBride and Scott Houston, with the support of the Texas Municipal League's (TML) legal department staff. Mrs. McBride served as a legal intern with TML while pursuing her Juris Doctorate from St. Mary's University School of Law. She earned her Bachelor's of Arts in 1989 and her Master's of Public Administration in 1991, both from the University of Dayton, Ohio. She brought over 10 years of municipal management experience to this project, serving as assistant city manager, economic develop- Finally, I thank my wife, Dorothy —communications consultant, writer and lecturer, and co-author with Jean Daniel and the late former governor, Price Daniel, Sr., of The Texas Governor's Mansion: A History of the House and Its Occupants —for her personal support and professional assistance. ment director, and city manager for three Ohio cities. Scott Houston graduated from Texas A&M University with a degree in political science. After studying law in Austria and Ar- gentina, he received his law degree from St. Mary's University School of Law in San Antonio. Scott is presently serving as director of legal services with TML and general counsel to the Texas City Attorneys Association. In addition, he has served as an adjunct professor of political science at Texas State Uni- versity, and recently received the American Bar Association's "Up and Coming Young Lawyer Award." Other members of the TML legal department staff, including Tiffany Ducummon, Laura Mueller, Katie Fleming, Bill Longley and Lauren Craw- ford deserve special kudos for their outstanding support. In addition, Charlie Zech with the municipal law firm of Den- ton, Navarro, Rocha & Bernal, P.C. provided research support for this project. Mr. Zech did so through his applied research project for the department of political science at Texas State University as a part of the requirements for the completion of his M.P.A. in 2008. John McDonald, currently serving as the director of community development for the City of Bellaire, Texas, also provided valuable research support for a similar M.P.A. project for Texas State University. A special thank you should go to the law firm of Denton, Navarro, Rocha & Bernal, P.C. for their countless hours of donated staff support for this project. v iv Table of Contents About the author ..... Foreword ................. Preface 1 Concept and history of local self-government................................................................................................1 Legal status of municipal corporations.............................................................................................................1 Originof city government in Texas...................................................................................................................1 Special legislative charters and general law......................................................................................................1 Homerule charters........................................................................................................................................2 Developments in charter adoptions since 1912................................................................................................2 Homerule charter cities today........................................................................................................................3 Charteradoptions, 1836 - 2009.....................................................................................................................3 2 Advantages of home rule status...................................................................................................................5 Thehome rule concept..................................................................................................................................5 Inherent powers of home rule cities.................................................................................................................5 Limitationson home rule powers.....................................................................................................................6 Cities over 5,000 population that have not adopted home rule charters..............................................................6 3 State preemption of local home rule............................................................................................................9 Charter language in cases of state preemption................................................................................................17 What is the proper way to handle state preemption.........................................................................................17 Subjects on which state statutes and charter are both silent............................................................................18 4 Adoption and amendment of home rule charters..........................................................................................19 Establishing the population of the city (first charter).......................................................................................19 Adoptingthe city's first charter.....................................................................................................................19 Adoption of a new charter (not the first charter).............................................................................................20 Preparing for the charter commission election................................................................................................20 Guidelines for the charter commission..........................................................................................................20 Preclearance under the Voting Rights Act of 1965..........................................................................................20 Submitting the new charter to voters.............................................................................................................21 Charter adoption: results and voter turnout...................................................................................................21 Charteramendments...................................................................................................................................21 Procedurefor amendment election................................................................................................................21 Preclearance under the voting rights acts of 1965..........................................................................................22 Thecharter amendment election...................................................................................................................22 Approval of amendment(s) by the voters........................................................................................................22 5 General design and format of Texas home rule charters................................................................................23 6 Form of government..................................................................................................................................25 Status of forms of government in the U.S, today.............................................................................................25 Brief history of forms of government in Texas.................................................................................................25 Major determinants of the form of government...............................................................................................26 Charter revisions to change the form of government........................................................................................26 7 Powers of the city ............................................29 Introduction................................................................................................................................................29 Inherentpowers of a city..............................................................................................................................29 Legislative restatement of broad powers and case law.....................................................................................30 The powers article in DeLeon charter.............................................................................................................30 Themodel charter.......................................................................................................................................32 Federalvoting rights act...............................................................................................................................32 v Table of Contents 8 The mayor..............................................................................................................................................33 Themayor in American history......................................................................................................................33 Distinctive differences in mayors' positions....................................................................................................34 Charter language regarding the mayor............................................................................................................34 Elements of the mayor's position that are relatively the same in the two forms of government .............................36 Concluding thoughts on the position of mayor in two forms of government........................................................36 9 The city council — election and service...................................................................................................... 37 Council elections through the years..............................................................................................................37 Methodsof council election..........................................................................................................................37 Survey results of council election methods....................................................................................................40 Termsof office............................................................................................................................................40 Charterlanguage on term limits....................................................................................................................42 Qualificationsfor office................................................................................................................................43 Compensationfor city council......................................................................................................................45 Councilstaff...............................................................................................................................................45 Personal liability of councilmembers.............................................................................................................45 10 The city council as a legislative body........................................................................................................47 Orientationfor the job..................................................................................................................................47 Organizationalmeeting................................................................................................................................47 Powersand duties of the council..................................................................................................................47 Citycouncil meetings.................................................................................................................................48 Consideration and passage of ordinances.......................................................................................................49 Prohibitions................................................................................................................................................51 Investigations.............................................................................................................................................. 51 Annualaudit...............................................................................................................................................51 Absencesfrom council meetings..................................................................................................................52 Vacancieson the council..............................................................................................................................53 11 Elections... ............................................................................................................................................ 55 Plurality/majority/cumulative voting...............................................................................................................55 Electiondates.............................................................................................................................................56 Nonpartisanelections..................................................................................................................................56 Theelections article....................................................................................................................................57 Summary....................................................................................................................................................57 12 City manager..........................................................................................................................................59 Appointment and removal of city manager.....................................................................................................59 Dutiesof the city manager............................................................................................................................61 Other provisions in the article on city manager...............................................................................................62 "Weak" council-manager charters.................................................................................................................63 Optional council-manager charters................................................................................................................63 Unusual council-manager charters................................................................................................................63 Summary....................................................................................................................................................63 13 Departments, offices, agencies and boards...............................................................................................65 Creationof departments... ............................................................................................................................ 65 Cityattorney...............................................................................................................................................65 Citysecretary..............................................................................................................................................66 Judgeof the municipal court... ..... _ ............................................................................................................. 67 Influence of form of government on selection of officers above ........................................................................68 Planningfunction........................................................................................................................................68 Personneland civil service...........................................................................................................................69 Healthfunction...........................................................................................................................................71 Boardsand commissions..............................................................................................................................72 vi Table of Contents 14 Financial administration..........................................................................................................................73 Organization for financial administration........................................................................................................73 Designationof the fiscal year........................................................................................................................74 Theproperty tax..........................................................................................................................................74 Otherrevenues............................................................................................................................................75 Preparation and adoption of annual operating budget......................................................................................75 Operating budget —executing and monitoring...................................................................................................77 Capitalbudget............................................................................................................................................79 Purchasingand contracts.............................................................................................................................80 Municipal debt —short and long-term..............................................................................................................80 Summary....................................................................................................................................................82 15 Initiative, referendum, and recall.............................................................................................................83 Introduction................................................................................................................................................83 Early history of initiative, referendum, and recall (I R & R) ..............................................................................83 1 R & R at the local level..............................................................................................................................83 NCLmodel city charter................................................................................................................................84 Charterprovisions today..............................................................................................................................84 1 R & R in action.........................................................................................................................................86 Summaryof survey results............................................................................................................................86 16 Franchises.............................................................................................................................................87 Early history of utilities in Texas....................................................................................................................87 Franchises and rate regulation prior to 1975..................................................................................................87 Public utility regulatory act (PURA) of 1975..................................................................................................87 Gasutility regulatory act (GURA)..................................................................................................................87 Otherutility operations................................................................................................................................88 Municipalutilities.......................................................................................................................................88 The franchise article in a home rule charter...................................................................................................88 Summary....................................................................................................................................................89 17 General provisions..................................................................................................................................91 Standards of conduct and conflict of interest.................................................................................................91 Legalprovisions..........................................................................................................................................92 Governmentoperations................................................................................................................................93 Remaindersand reminders...........................................................................................................................93 Continuityin change....................................................................................................................................93 Summary....................................................................................................................................................94 18 Charter Amendments..............................................................................................................................95 Charterrevision commissions.......................................................................................................................95 Practical consequences regarding amendment elections..................................................................................96 Amendment adoption results........................................................................................................................96 Oneamendment elections............................................................................................................................97 Summary....................................................................................................................................................97 19 Afterword...............................................................................................................................................99 Challengesfacing cities today.....................................................................................................................100 Notes......................................................................................................................................................101 vii Table of Contents Appendices...............................................................................................................................................104 A - Texas home rule charter survey(2008)...................................................................................................104 B - The Home Rule Amendment to the Texas Constitution, Article XI, Section 5..............................................110 C- Home Rule Charters in Texas................................................................................................................110 D - Home -Rule Municipality, Chapter 9, Texas Local Government Code...........................................................121 E - Term of office exceeding two years in home rule and general law cities; vacancies Article XI, Section 11, TexasConstitution..............................................................................................................................123 F - Dual office holding, Article XVI, Section 40, Texas Constitution................................................................123 G - Oath of office for elected and appointed officials, Article XVI, Section 1, Texas Constitution ......................125 Bibliography............................................................................................................................................126 Index.......................................................................................................................................................128 Figure 3-1: State preemption of home rule provision......................................................... Figure 6-1: Forms of government.................................................................................... Figure 7-1: Article III - Municipal powers........................................................................ Figure 7-2: Article I - Powers of the city.......................................................................... Figure 8-1: Differences in mayor's positions..................................................................... Figure 8-2: Setting the salary of the mayor...................................................................... Figure 9-1: Method of council election........................................................................... Figure 9-2: Contested mayor and council elections........................................................... Figure 9-3: Term limits in years when limits are separately applied .................................... Figure 9-4: Maximum years service when limits separately applied .................................... Figure 9-5: Term limits in years when service applied together ........................................... Figure 9-6: Filing requirements for city council................................................................ Figure 10-1: Sample powers of the city council article ...................................................... Figure 10-2: Emergency ordinances................................................................................ Figure10-3: Prohibitions............................................................................................... Figure 10-4: Charter requirements for fulfillment of vacancies ........................................... Figure 12-1: Article IV city administration....................................................................... Figure 12-2: Years before city councilmembers eligible to serve as city manager ................ Figure 12-3: Powers and duties of the city manager......................................................... Figure 13-1: Selection of city attorney............................................................................ Figure 13-2: Selection of city secretary/clerk.................................................................. Figure 13-3: Selection of municipal court judge............................................................. Figure 13-4: Typical charter provision for planning commission ......................................... Figure 13-5: Departments established by charter............................................................. Figure 13-6: Boards and commissions established by charter ............................................ Figure 14-1: Article VI I - Fiscal plan............................................................................... Figure 14-2: Preparation and submission of budget.......................................................... Figure 14-3: Amendments after adoption of budget.......................................................... Figure 14-4: Capital program.......................................................................................... Figure 15-1: Signature requirements for initiative............................................................. Figure 15-2: Signature requirements for referendum........................................................ Figure 15-3: Signature requirements for recall................................................................. Figure 16-1: Maximum franchise term............................................................................ Figure 18-1: Charter review............................................................................................ Figure 18-2: Most recent charter amendments by decade ................................................. Figure 18-3: Number of amendments submitted to voters, 2000-2007 .............................. ..............9 ............25 ............30 ............32 ............34 ............34 ............40 ............40 ............42 ............42 ............42 ............44 ............47 ............50 ............51 ............53 ............59 ............60 ............61 ............66 ............66 ............68 ............69 ............72 ............72 ............76 ............77 ............78 ............79 ............85 ............85 ............86 ............89 ............95 ............97 ...........97 Legal status of municipal corporations "The word municipal is derived from the Roman mu- nicipium, which means a free city capable of governing its local affairs, even though siihordinate to the sovereignty of Rome. In early England, the term was applied to self-govern- ing cities and towns; hence, from its origin, [lie word munic- ipal connoted local self-government." So begins the book The Law of Local Government Operations by the renowned author- ity on municipal government, Charles S. Rhyne.' In colonial America, a number of municipal corpora- tions originated in a grant of power from the King of England. Following the American Revolution, this power of the crown passed to state legislatures. "In three instances, New York, Pennsylvania and Maryland, the first constitutions expressly recognized the transfer of power to the legislature. The in- evitable result was that democratic principle and legal theory disagree on the issue of self-rule. Democratic doctrine says the government closest to the people governs best. The pre- vailing legal theory has been that in the absence of constitu- tional protection, municipal governments are totally dependent upon, and subservient to, the will of the legisla- ture."z That view was expressed by Judge J. F. Dillon in 1886 in a case before the Iowa Supreme Court: "The true view is this: Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature."' This doctrine was affirmed by the U.S. Supreme Court in a later case." Since the early 1900's, the Texas courts have fol- lowed the rule set by Judge Dillon. The rule was clarified by the Texas Supreme Court in 1926 when it stated, "Municipal Corporations (including home rule cities) are created for the exercise of certain functions of government in so far as their character is governmental, they are agencies of the state and subject to state control." Yett v. Cook, 115 Tex. 205 (Tex. 1926). This idea, that cities are subdivisions of the state, has been reaffirmed throughout the twentieth century and most recently by the Texas Supreme Court in 2004. Texas Dept. of Trans. V. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004). Texas cities exist to perform duties for the state as well as to fulfill needs and desires of local residents, but al- ways at the will of the state. This doctrine has restricted local powers rather severely as we will see in greater detail in chap- ter three. Such complete legislative supremacy caused no real harm when cities were small and their needs limited, but as cities grew, the rurally -dominated legislative bodies were in- creasingly unable to cope with city problems. To trace how the state of Texas has dealt with these questions, we now turn to a brief review of the development of home rule in Texas. Origin of city government in Texas The history of Texas municipalities as corporate enti- ties begins with the establishment of the Republic of Texas in 1836. While Texas was under the jurisdiction of Spain and Mexico, the term "municipality" was applied [u a local gov- ernment unit that included the surrounding rural regions as well as the town proper. There never was any distinction be- tween the government of the town and the outlying districts. With the birth of the Republic, this changed, and the territory of the municipality became the county, and the urban regions began to be incorporated. The first congress incorporated some eighteen cities and towns, and before the end of the Re- public, there were 53 municipal corporations.' All of them were established by special congressional acts; in several cases, multiple communities were incorpo- rated by one act. These early special acts were articles of in- corporation and municipal charters rolled into one document; some were very brief and merely stated that a certain com- munity was being incorporated by the special act. Gradually, they began to resemble more closely charters as we know them, with provisions for the governing body, qualifications for office, powers of the city council, and —occasionally —fire and street duty and taxation. Some even reflected the begin- ning glimmer of home rule. For example, the charter granted by the congress in 1837 to San Augustine provided that the board of aldermen could pass any ordinance for the benefit of its inhabitants, as long as it did not conflict with the laws or constitution of the Republic.6 Special legislative charters and general law The two most important developments during state- hood and prior to Civil War (1845-61) were the passage of a law in 1858 that provided general rules for the incorporation of small cities and towns and the first provision for local rati- fication in a charter written by the legislature. In 1846, the legislature granted a special charter to New Braunfels, subject to that charter being ratified by the local voters at a special election.' During this sixteen -year period (1845-61), terms of office longer than one year began to be written into the leg- islative charters and some cities were given responsibility for local education. Although school districts were made separate entities later, the charters of such cities as Temple, Bryan, and others continued to have provisions for city hall control of local schools for several years after the change. Some char- ters still have this obsolete provision. Texas Rome Rule Charters Civil War and Reconstruction chaos wiped out all the local government gains. There were no municipal incorporations from 1862 to 1866. An 1870 legislative act provided that the governor appoint the mayor and board of aldermen of each incorporated city in the state. After the citizenry regained control of state government in 1874, this act was rescinded, and in 1874 cities were allowed to amend their legislative charters by action of the board of aldermen and their citizens." The Constitution of 1876 provided that cities under 10,000 population could be chartered only under general laws; cities over 10,000 would continue to be subject to the special laws of the legislature. This seemed to work for a few years. But cities over 10,000, most in need of self-govern- ment because of individual requirements, chafed under the special law provisions. This situation worsened when the con- stitution was amended in 1909 to lower the population re- quirement to 5,000 population. The legislature finally realized its capacity to debate and resolve issues of statewide importance was being usurped disproportionately by the attention it gave to city charters. One legislative official complained in 1911 that these local bills made up more than one-half of the legislative workload. A count revealed this estimate was high. Actually, about 25 percent of all bills applied to municipal charters, but the point was made. When there were only a few cities over 5,000 in population, the legislature could afford to take the time to pass special legislation just for them. But by 1910, the cities were growing and each one presented unique circumstances. By 1910, San Antonio and Dallas were near 100,000 in population; Houston and Fort Worth were well over 50,000; and a total of 40 cities in the state each had more than 5,000 population. "It was in a mood of reform that the Legislature listened to a few advocates of home rule expound the virtues of that method of handling the relations between the state and its subunits."9 Home rule charters The time to act in Texas had finally arrived. Other states had already crossed that threshold. In 1875, Missouri was the first state to grant its cities home rule powers by con- stitutional amendment. Texas had struggled through an at- tempt to make special legislative charters work; it also tried to formulate general laws that would apply to both small and large cities. Neither was successful. The state finally em- braced the third method of municipal governance, home rule. Texas voters in 1912 adopted the Home Rule Amend- ment to the state constitution and the legislature followed in the regular session in 1913 with the necessary enabling act. The constitutional amendment, Article XI, Section 5, provides that any city over 5,000 may adopt a home rule charter, sub- ject to the requirements that the legislature might establish. Such a charter may not contain any provision that is incon- sistent with the state constitution or the statutes. Further, home rule cities are limited to a property tax rate of $2.50 per $100 valuation and their charters cannot be amended more often than every two years. The Home Rule Enabling Act is no longer in the statutes. The powers listed in that Act have been relocated in other laws and codes as the legislature has codified the laws relating to local government. Like the home rule provisions in other state constitu- tions and statues, Texas' Home Rule Amendment is generally considered to have three major objectives: (1) to create a favorable climate for more direct governing of cities by their citizens, (2) to secure adequate powers so that municipalities could meet increased demands for services, and (3) to avoid interference in local government by the state leg- islature.10 These are noteworthy goals, but early writers were not sure they would ever be accomplished. John Keith felt com- pelled to take one full chapter of his monograph to review ex- tensively the criticisms of public officials and others that the wording of almost every phrase and sentence in the amend- ment is ambiguous." Constitutional authority George D. Rraden, however, fools that the section is uue of the more in- telligibly drafted of any in the constitution12 and there is no talk today of trying to improve on the wording of the amend- ment. What Braden does point out, however is that "home rule is not unconditionally and fully guaranteed to Texas cities."13 Braden argues the position generally taken by mu- nicipal attorneys today that the section as interpreted by the courts guarantees only that cities may act without affirmative permission of the legislature. Cities are resigned to the fact that charters must not conflict with the state constitution or statutes enacted prior to adoption of a charter, and that a state general law affecting cities passed tomorrow supersedes a city charter provision en- acted today or yesterday. Similarly, cities also realize that al- though Article I1I, Section 56, of the state constitution forbids local laws regulating the affairs of cities, such laws are passed occasionally by using the device of population -bracket bills. These are laws with provisions that are applicable only to cer- tain cities based on population. For home rule to be effective, cities must zealously guard concepts of the amendment and the court cases that keep it viable. Developments in charter adoptions since 1912 All the criticisms and concerns enumerated above were unknown to city officials in 1912. They just knew that the citizens of Texas had spoken and had told the legislature that they wanted their cities to have more freedom and local autonomy. "Before the Legislature passed an enabling act on the home rule amendment, twenty-four cities had drafted their own charters or amendments to their special legislative char- R Concept and history dlocal self government ters."14 By 1920, sixty-five cities had taken advantage of the home rule privilege. And except for the depression era of the 193Os, the movement has steadily continued. A Model Charter for Texas Cities was prepared by Dr. Herman G. James, Director of the Bureau of Municipal Re- search and Reference of The University of Texas, in February 1914. Its provision for a competent chief administrator se- lected by and responsible to the city governing body foreshad- owed an increasing interest in a form of government new to the state: the council-manager plan.15 Other influences on early charters were those of cities that had reacted quickly to the home rule provision. The adoption by Amarillo in 1913 of a charter provided a model for other cities in the state. At one time, at least one-fourth of the charters then being written reflected both the arrangement and language of the Amarillo Charter. The home rule amendment did not immediately stop the legislature from granting charters and amendments by special law. The same legislature that passed the Home Rule Enabling Act amended three charters.16 Other charters were amended or granted from then until a court decision in 1920 held such action unconstitutional." Special law cities have since completely disappeared. Home rule charter cities today Today, 351 Texas cities have home rule charters. The Texas Municipal League directory lists only 24 cities with pop- ulations over 5,000 that have not adopted charters —about seven percent. Of the 351 home rule cities, 21 cities have now dropped below 5,000 population but retain their charter. A constitutional amendment, actively sought by TML and adopted by voters in 1991, assures those cities that they have retained full home rule powers and may amend their charters although their populations may not now meet the minimum set out in the original Home Rule Amendment to the Texas Constitution. Charter adoptions, 1836-2009 Appendix C is an alphabetical listing of all 351 home rule charter cities. The chart provides special dates regarding each city including: • date of first special legislative charter, • date of first home rule charter, • date of current home rule charter, and • date of latest charter amendment. This information was obtained from the Texas Secre- tary of State's records, the archives of the Texas State Library and the cities themselves. Since 1912, Texas cities have belonged to one of two categories from a legal standpoint —home rule or general law. In brief, home rule cities are larger cities —cities over 5,000 whose citizens have adopted home rule charters. The legal position of home rule cities is the reverse of general law cities. Rather than looking to state law to determine what they may do, as general law cities must, home rule cities look to the state constitution and state statues to determine what they may not do. Thus, if a proposed home rule city action has not been prohibited or preempted by the state, the city generally can proceed. The second category, general law, is composed of smaller cities, most of which are less than 5,000 population. All general law cities operate according to specific state statutes prescribing their powers and duties. General law cities are restricted to doing what the state authorizes or per- mits them to do. If state law does not grant general law cities the express or implied power to initiate a particular action, it may not be taken. A recent example of this distinction involves regis- tered sex offender residency restrictions. A 2007 attorney general opinion (GA-052) addressed a fast-growing trend among cities in Texas and nationwide: ordinances that prohibit convicted sex offenders from living within a certain distance of schools, churches, or the homes of children. The opinion concluded that home rule cities' residency restriction are not preempted by state law and are thus valid. The opinion also concluded, however, that general law cities do not have ex- press authority under current state law to adopt or enforce such an ordinance. Throughout this publication, we will be discussing matters that have legal implications. We have written this document primarily for elected policymakers, appointed ad- ministrators, and potential charter commission members. We urge those individuals to take questions they may have to their city attorney and to consult with that individual prior to taking any action based on information in this publication. Your city attorney really can be your best friend if you are a local gov- ernment official. The home rule concept In Forwood v. City of Taylor, the Texas Supreme Court summarized Texas' home rule doctrine as follows: It was the purpose of the Home -Rule Amendment... to bestow upon accepting cities and towns of more than 5,000 population full power of self-govern- ment, that is, full authority to do anything the leg- islature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitation on their powers. (Emphasis added.)19 As a result of the Forwood case and other court decisions up- holding their broad powers, home rule cities have the inherent authority to do just about anything that qualifies as a "public purpose" and is not contrary to the constitution or laws of the state. Of course, legislative preemption is becoming more and more commonplace. Inherent powers of home rule cities An "inherent power" is one that is possessed by a city without its having been specifically granted by the state. It is the right to perform an act without having received that right from the Texas Constitution or the state legislature. Home rule cities have many inherent powers. A dis- cussion of some of the inherent powers of major significance may explain why so many cities have chosen to adopt home rule charters. Municipal organizations In contrast to counties, general law cities, and special districts (whose organizations are fixed by state law), the gov- ernmental structure of a home rule city is left entirely to the discretion of local voters. Subject to compliance with the fed- eral Voting Rights Act, the citizens of a home rule city are free to decide their form of municipal government (mayor -council, council-manager, and so on); choose between a large or small city council; provide for the election of the city council at large, by single -member districts or by place; fix the terms of office for councilmembers at two, three, or four years; or es- tablish overlapping terms of office. Moreover, they can decide whether the mayor is to be elected directly by the voters, se- lected from among the members of the council, or chosen by some other method. The citizens of a home rule city also have total dis- cretion over the city's administrative structure. Subject only to local preferences, the charter can establish a simple ad- ministrative framework or a complex one, provide for the ap- pointment or election of major administrative officials, and so on. And finally, the charter can provide for the creation of any boards or commissions that local voters decide are necessary to make the city function effectively. Texas Home Rul Charters Annexation The inherent power to unilaterally annex adjoining areas is one of the most important home rule prerogatives. To annex "unilaterally" means that the city can bring an adjacent unincorporated area into the city without the permission of the persons residing in that area. There is no state law prohibiting home rule cities from annexing adjoining territories; therefore, annexation can be exercised as an inherent home rule power. The only require- ment is that the city charter authorize the city council to ex- ercise such power. Of course, the Municipal Annexation Act provides complex procedures that must be followed. It also has various limitations regarding when, where, and how home rule cities annex. The power of unilateral annexation is important for several reasons. First, it enables a city to guide the develop- ment of the city and the surrounding area. Second, it permits a city to maintain a strong economic base by extending its boundaries to bring in taxable properties and other resources required to finance essential municipal services. Dramatic evidence of the importance of unilateral an- nexation exists in other states where cities do not have that power. One source. summed it up as follows: Liberal state annexation policies in certain parts of the South (e.g., Jacksonville) and West (e.g., Hous- ton) have permitted cities in those regions to share the benefits of growth in surrounding areas. If San Antonio, Texas, for example, had the same bound- aries that it had in 1945, it would contain more poverty and unemployment than Newark, New Jer- sey.zo According to U.S. Census statistics, Texas' larger cities are among the fastest -growing in the U.S. These same figures also show, however, that many of these same cities ac- tually would have lost population during the past two decades if they had not expanded through annexation. Initiative, referendum, and recall Initiative, referendum, and recall are inherent home rule powers that are reserved for exclusive use by local voters in order to provide direct remedies in unusual situations. There is no constitutional or statutory authority for initiative, referendum, or recall. These powers are unique to home rule cities; they are not available to voters at any other level of Texas government, including the state. Initiative is a procedure under which local voters di- rectly propose or initiate legislation. Citizen lawmaking through the initiative process allows local voters to circumvent the city council by direct ballot box action on new ordinances that have wide support in the community, but that the council refuses to enact. Referendum is a procedure under which local voters can repeal unpopular existing ordinances the council refuses to rescind by its own action. Recall is a process by which local voters can oust members of the city council before the expiration of their terms. All three of these powers are discussed in detail in Chapter 15 of this book. Charter amendments In addition to initiative and referendum, direct law- making by local voters can be accomplished through amend- ments to the charter document itself. Under Section 9.004 of the Local Government Code, citizens can force the city council to call an election on a proposed charter amendment(s) by simply filing a petition signed by five per- cent of the qualified voters or 20,000 whichever is less. Voter -initiated charter amendments, if adopted, can change most aspects of the city government. Limitations on home rule powers Although the powers of a home rule city are extensive, they remain subject to all the limitations imposed by state and federal law. For example, the paragraph above on amend- ing a charter is a good example. State law prescribes that five percent or 20,000 voters, whichever is less, must sign a char- ter amendment petition. A city could provide in its charter that a petition signed by four percent or 19,000 voters, whichever is less, would force the city council to call such an election, but a city could not make it more stringent for voters to initiate such action. A charter provision requiring six per- cent or more signatures would not be binding and could not be enforced by the governing body of the city. Recently, more and more legislation has passed that restricts the powers of home rule cities. Cities over 5,000 population that have not adopted home rule charters Despite the advantages of home rule cited above, cit- izens in 24 cities that meet the population criterion have elected not to adopt a home rule charter. In 1994, the League asked officials in many of those cities to comment on the reasons their city had chosen not to adopt a charter. The responses were as follows: • citizens are not aware of advantages of home rule; • a charter commission had never been authorized; • a charter had never been considered; • city has no appreciable extra -territorial jurisdiction (ETJ); • issue was considered, but no one ever took action; • discussion being held now to possibly elect a commission; Advantages of Me Pule status i.,_v. .c.�.... �G,.,,. .�,�i� 2-s3 „%,- -.., fr,,,.. �.�" �/� �, i✓,,,i�� ,i, � „i�� � ��,n,. '��z �.✓�a �-�2 s�wti ia.�. ,'Jiir,�.3 ,u�. • very conservative community, and citizens feel less government is best; • three elections were held for charter commissions (1959, 1969, 1977), but all failed; • a charter would give "city hall too much control." From the responses, it would appear that many of the 24 communities were affected by voter distrust in govern- ment. A recent example of a failed charter election took place in the City of Willis. In 2005, the election failed 33 to 69. However, in 2008, the citizens voted to approve essentially the same document in a 72 to 18 vote. In the next chapter, we will examine in much more detail the areas in which home rule cities are free to act and those in which state law has now preempted home rule au- thority. As pointed out in previous chapters, constitu- tional home rule in Texas gives cities opportunities to re- flect their own cultures, traditions, and individual preferences. But even in 1912, there were some limi- tations on home rule powers; e.g., a maximum tax rate. In subsequent years, the legislature has enacted other general laws preempting such areas as methods and dates of elections, conflict of interest for city coun- cilmembers, and others. This chapter will review, in brief, huw state law circumscribes home rule authority today. Detailed discussion of state limitations can be found in the chapters in this report that cover particular func- tional areas. In the figure covering the following several pages, in the right-hand column, the notation "charter may provide..." is not meant to imply that all these options should be placed into a charter. Several subjects are certainly candidates for inclusion in an ordinance rather than the charter. Examples of this might include pay of the city council, creation of cer- tain buards and commissions, certain procedures regarding passage of ordinances, and others. Figure 3-1: State preemption of home rule provision July 2009 A. Basic municipal structure 1. Form of government B. Governing body 1. Size of governing body 2. Terms of office of governing body. 3. Term limits 4. Method of city council election Any one of three forms of government: Silent (1) mayor -council, which may range from strong mayor to weak mayor (2) council-manager (3) commission Silent A city may have as few as three members of the governing body; there is no maximum. Texas Constitution provides maximum of four-year term for city officials. Article XI, Section 11. Silent Charter may provide for one-, two-, three-, or four-year terms. It may also provide for concurrent or staggered terms. Charter may provide for term limits. Silent Subject to the federal Voting Rights Act, charter may provide for at large, at -large by place, single -member district, cumulative or a combination of the above. 9 5. Election by majority or plurality 6. Selection of mayor 7. Selection of administrative personnel 8. Creation of boards and commissions 9. Compensation of the governing body 10. Filling vacancies on Governing body Texas Constitution (Article XI, Section 11) provides that for any term of office more than two years, vote must be by majority. Section 275.003 of the Election Code provides that in any city over 200,000 in population, members of the governing body must be elected by majority vote. In cities of less than 200,000 population, charter may provide for either majority or plurality if council is elected for one- or two-year terms. Silent Charter may choose to elect the mayor by direct vote of the people or have the position filled by the council choosing one of its own members after all members of the governing body have first been elected as council - members. Silent Charter may allow the voters to elect, the city council to appoint, or the city manager (if the city has one) to appoint administrative officials such as the city secretary, municipal court judge, city attorney, and others. Some requirements on planning and zoning commissions (See Chapter 211, LGC). State law also regulates establishment of some other boards; e.g., housing authorities, zoning boards of adjustment, and others. Silent, except for cities with a population greater than 1.9 million. Salary of mayor, city council, and controller is controlled by provisions Section 141.005 of LGC. Texas Constitution (Article XI, Section 11) provides that vacancy on council must be filled by election if term of office for that council is more than two years. Charter may establish any number of advisory boards to assist the city council in the governance of the city. Charter may provide that the governing body shall not be paid at all, may establish any amount of salary citizens feel is appropriate, or may provide that the governing body shall set its own pay. Charter may provide for filling vacancies by either appointment of governing body or election by citizens, if the council is elected for one- or two-year terms. 10 11. Qualifications for governing body 12. Election dates for governing body 13. Governing body as judge of the qualifications of its own members 14. Meetings of governing body — openness and frequency of meetings 15. Passage and publication of ordinances Basic qualifications for elected public official set out in Texas Election Code, Section 141.001. Elections for members of governing body must be held on one of two uniform election dates provided by Election Code, Section 41.001. Charter can require candidates to be up to 21 years old, rather than 18, can require residence of up to 12 months rather than 6 months set out in Election Code, and can require candidate to be qualified voter (Election Code is silent). City caniioL disqualify candidate for failure to pay property taxes. Run-off elections and elections to settle a tie vote may be held on date other than a uniform election date. Also, election to fill a vacancy required under the Constitution may be held on date other than a uniform election date. Silent Charter may provide that governing body may be the judge of the qualifications of its own members and may empower governing body to remove a member for lack of attendance at city council meetings or misconduct in office, defined in various ways. All meetings must be open to the public except as allowed by the Texas Open Meetings Act. Silent on frequency of meetings. For ordinances carrying a penalty, city may publish caption of ordinance in lieu of charter requirement that text of ordinance be published. If charter does not provide for method of publication, full text or caption with penalty indicated may be published at least twice in official newspaper. (See Section 52.013, LGC). Charter prevails if it has more restrictive provisions for open meetings than state law. Charter may provide for frequency of meetings. Subject to requirements in second column, charter may provide for exact procedures governing body must take for passage and publication of ordinances. 16. Codification of Ordinance adopting a code of Subject to requirement in ordinances municipal ordinances must be second column, charter may published in a newspaper provide for codification of (See Section 53.002, LGC), ordinances. (See Chapter 10). 17. Emergency succession Presiding officer of governing Charter may provide for line body, designated as the of succession for governance emergency management director of city in event of that reports to the governor. emergency. (See Chapter (See Section 418.1015, GC). 17). 18. Staff and benefits members of governing body C. Mayor 1. Powers of mayor (Mayor -council form) 2. Powers of mayor (any form of government) Silent Charter may provide for whatever staff and benefits citizens feel council should h ave. Silent; see below. Although there is no general statute setting forth power of mayor, there are some specific statutes, including the power to declare an emergency and power to appoint mernbers of local housing authority. D. Expansion and contraction of city area 1. General purpose Several restrictions placed on annexation cities by Chapter 43, LGC 2. Limited purpose State law (Section 43.121, annexation LGC) allows cities over 225,000 to annex land for limited purposes if such is authorized in their charter. Law has certain restrictions. 3. Disannexation State law provides for procedures for disannexation for failure to provide services (See Section 43.141, LGC). State law allows charter to set out procedure for voluntary disannexation by city (See Section 43.142, LGC). 12 Charter may provide for appointment and budgetary power to extent desired by charter drafters and voters. Charter may provide that: —mayor does or does not have veto; —mayor has regular vote, or can vote only in case of tie; —mayor can call special meeting of council; and/or —in times of emergency, mayor can be given extra- ordinary powers over city government operations. Charter may provide for unilateral annexation by city Charter may provide for limited purpose annexation. Charter may provide for voluntary disannexation of territory by city. E. Administrative organization 1. City manager/city administrator 2. Municipal court F. Municipal finance 1. Ad valorem (property tax) Silent Charter may provide for mandatory or optional appointment of city manager by city council; may make residence requirements, provide or not provide for public hearing for city manager on discharge; may provide that individual must post bond; may prescribe duties. (See Chapter 12). State law establishes a muni- cipal court in every munici- pality in the state. The law also establishes the specific jurisdiction for the court and provides that home rule cities in their charters may provide for the method of selection of the judge. State law now controls most of the matters establishing municipal courts of record. (See Chapters 29 and 30, GC). State Property Tax Code controls three of the four basic procedures for administering the property tax. Appraisal of property, handling protests regarding value of property, and assessment of taxes (prepara- tion of the tax roll) are now all handled by appraisal districts. State law heavily preemptive. (See Chapter 13). Charters may provide for the fourth tax function, the collection of current and delinquent taxes. 2. Other revenues State law controls all or a significant Charter may provide for user part of the following sources: city fees, federal grants, special sales tax, street rentals, fines, license assessments, and such mis- and permit fees, hotel -motel tax, cellaneous sources as income taxes on alcoholic beverages, and from sale of city property. and occupation taxes. 3. Annual operating budget Uniform Budget Law (Chapter Charter may provide for 102 LGC) sets out additional requirements. basic requirements city budgets (See Chapter 14). must meet. 4. Annual audit Texas cities must comply with Charter may provide for the requirements of Section 103.001 additional requirements. et seq., LGC, which require an (See Chapter 14). annual audit of the city's financial affairs. 13 5. Internal auditor Silent Charter may address this position. 6. Depository State law makes certain require- ments regarding city depository. (See Chapter 105, LGC). 7. Purchasing State law requires a competitive procurement for most expenditures over $50,000. State law allows the city council to override charter provisions of lesser amounts by adopting an ordinance. (See Chapter 252, LGC). Charter may allow the governing body to select a depository for city funds. Charter may provide for lower limit on requiring bids. (See Chapter 14). 8. Public works contracts LGC Chapter 252 applies to all Charter may stipulate certain purchases; certain provisions of LGC requirements but they must Chapter 2-11 address public be consistent with state law. works contracts. City must comply with both. G. Issuance of debt 1. Short-term borrowing 2. Certificates of Obligation (C.O.) 3. General Obligation (G.O.) Tax Bonds 4. Revenue bonds Silent Charter may allow governing body to borrow money, to be repaid in the same fiscal year, without a vote of the citizenry. Chapter 271, LGC regulates purposes of and length of maturity of C.O.s. State law directs most of the procedures concerned with issuing G.O. bonds. (See Chapters 1501-1510, GC) These may be issued under state law, without a vote of the people. Corms Christi v. Flato, 83 S.W.2d 433 (Tex. Ct. App. -San Antonio, 1935 Writ dism'd) Charter may provide for governing body to issue C.O.'s for a wide variety of purposes for as long as 40 years without a vote of the citizenry. Charter may provide for governing body to issue debt to pay for facilities upon favorable vote of the citizenry. Charter may provide for this type of bond, secured by revenues from an income - producing facility, without a vote of the people. (See Chapter 14). 14 H. Elections other than those for governing body and charter amendments 1. In General Chapter 41, Texas Election Exceptions to the uniform Code, sets forth uniform election dates for run-off election dates. elections for city council. I. Initiative, Referendum, and Recall 1. In General Silent Charter may provide for all, some, or none of these direct legislation methods. (See Chapter 15). J. Franchises 1. In General Several state laws set forth City's powers are limited by regulatory restrictions on several state laws. (See utility franchises, rate, and (Chapter 16 ). services. K. Personnel functions, civil service, merit system, city employees 1. Municipal fire and police 2. Residency of city employees Beginning in 1947, Texas Legislature has enacted laws relating to fire and police officers. Section 150.021 of LGC prohibits city from requiring city employees to live within city limits. See next column for exceptions to this law. 3. Right of certain municipal Chapter 174, LGC, requires employees to purchase some cities to provide this continued health insurance coverage under certain coverage at retirement. conditions. L. Planning and Zoning 1. Zoning The legislature has provided detailed provisions for the exercise, by home rule cities, of the zoning power. The statutes include procedures for the zoning commission, composi- tion and duties of the zoning board of adjustment and a wide spectrum of other requirements. 15 Some cities have defeated and some have enacted optional portions of fire and police legislation. City, by charter or otherwise, may require members of governing body and department heads appointed by mayor or governing body to be residents. May also set reasonable time within which employees who reside outside the city must respond to a civil emergency. City charter may address health insurance for retirees consistent with state law. Within broad parameters, city may provide in charter for zoning commission and mandate it to recommend a ordinance to the governing body. Charter may provide for continuous update of that ordinance. 2. Planning The legislature has provided detailed provisions for the exer- cise, by home rule cities, of the power to plan for orderly growth and development. These statutes also provide for establishment of public improvement and municipal management districts, housing fi- nance corporations, and procedures for financing capital improvements. (See Chapters 371-380 and 391-395, LGC). M. Standards of conduct 1. In general Texas Constitution and statutes address several subjects regard- ing slandards of conduct. Chapter 9 and 17 of this report speak to these situations in in some detail. N. Conflict of interest and ethical matters 1. Dual office holding 2. Incompatibility 3. Separation of powers Texas Constitution and state statutes govern this area. Texas court case ruling prohibits an individual from holding two offices where a subordinate position is subject to the super vision and control of the other position. Attorney general opinions have stated that an individual is prohibited from serving in two offices where there are potentially conflicting interests between the two positions. No longer a bar to dual office holding. (AG Opinion GA-0348). Charters may provide for the preparation and adoption of a comprehensive plan, for a capital improvements program, and budget, and procedures for control of land development. Charter can be more restrictive than Constitution or statutes; e.g., charter can contain restrictive provisions regarding personal or financial interest on part of city councilmember. Charters can have provisions more restrictive than Constitution or applicable statutes. See Chapter 9 of this report under "Qualifications for Office." Charter may provide for additional requirements. 16 4. City actions that benefit Chapters 171 and 176 of the LGC Charter may address this mayors and council- requires the public disclosure of area. State law provides that members conf►icts between the public provisions of Chapter 171 interest and councilmembers' and 176 are cumulative; that private interests. is, both state law and charter restrictions would apply. 5. Nepotism This is addressed in Section Charter may provide for 573.041 of the Texas Government stricter bounds of nepotism Code. than state law. Charter may alsn apply nepotism provision to city manager or city department heads whom state law does not address. 6. Political activities There are constitutional, statutory, Cities have some authority to and case law restrictions on an regulate in some manner employee's political activity, but political activities of their also on the city's right to prohibit employees as long as it some activities. Situations must is a reasonable restriction be handled on a case -by -case on an employee's right to basis. become a candidate for office. (See Chapter 17). Charter language in cases of state preemption There are four different ways in which a city can ad- dress the question of state preemption when drafting a new charter or charter amendments. All four of these methods are being used by city charters today with no particular consis- tency of approach. The four alternatives are: (1) Charter is silent. The charter omits any reference whatsoever to subject areas already preempted by state law. For example, a number of charters make no reference to the oath of office, incompatibility, and other similar state -pre- empted areas. (2) Charter lists subiect and immediatelv incoraorates state law by reference. Examples of this include references to open meetings and open record acts, purchasing, issuance of long-term debt, and other items. (3) Charter repeats state law. Examples of this in- clude charters that cite the state open meetings law and list the exceptions that are allowed by that law. Other examples of this method include repeating the law of nepotism and dual office holding. (4) Charter has even stronger or more detailed nrovi- Sion than state law on liven subiect. Two examples of this method are the following: Regarding separation of powers, it is not unusual for a charter to not only prohibit a current coun- cilmember from serving as city manager but also to prohibit former councilmembers from serving as city manager for a pe- riod of time. In fact, two city charters prohibit former mayors and councilmembers from ever being appointed as city man- ager. Next, the state law regarding adoption of the annual op- erating budget is fairly general and many cities have much more detailed requirements than the state sets out. What is the proper way to handle state preemption? There is no "proper" way to treat the matter of state preemption of certain areas of concern. An argument could be made for utilizing two or more of the methods listed above, depending on the topic. Cities should always have extra copies of charters on hand so that individual citizens have ac- cess to them. We would expect that charters would be easier to access and read than state statutes. Several city officials and urban experts argue against repeating state law in the charter just to have it in there. But it might be prudent and "customer -friendly" to develop a fifth method of handling 17 such laws. The charter language might just have a brief state- ment such as: Open Meetines. City council meetings shall be con- ducted in accordance with applicable state law. (See Appendix _ for recitation of state law.) The appendix to the charter could contain the text of all applicable state laws. Two advantages to this approach: (1) an appendix would not have to be adopted by the citizens as a charter amendment; and (2) the appendix could be printed separately as often as desired to keep up to date with changing state law. By putting the detailed state law in the appendix, a citizen is given a more complete picture of the legal environment in which the city operates. Subjects on which state statutes and charter are both silent A subject related to the question of state preemption is the handling of subjects when state statutes and the charter are both silent. One area, for example, is that of compensa- tion of city councilmembers. As noted above, there is no state statute speaking to the question of the amount of compensa- tion for the governing body in home rule cites. If a given char- ter is also silent on this question, municipal attorneys have generally reasoned that city councils can establish compen- sation for themselves by ordinance. This is an area in which prudent action by the council would seem to be advantageous. If the council gets "greedy" and establishes what the citizenry considers unreasonable compensation, the council might well be faced with a charter amendment election that would not only establish a pay level, but might also invoke a level of compensation much lower than presently enjoyed by members of the governing body. Presumably under the theory of "home rule," if state law and the charter are both silent, the city, by ordinance en- acted by the city council, could undertake a wide range of ac- tions. 18 Having discussed the concept and history of home rule and the restrictions of state law upon charters, we now turn to a brief description of procedures for adopting a new charter and amending an existing charter. This chapter con- tent is primarily for neophytes in city government, but it seems prudent to repeat sumo basic information because a few Texas, n,ities have misread some of the requirements in the Constitution and/or statutes. As an example: One city adopted charter amendments in three successive years, de- spite the constitutional requirement that charters be altered or amended no more often than once every two years. Another city interpreted the statute on amending the charter to permit amendment by ordinance; the councilmembers used this in- terpretation to give themselves a pay raise by an ordinance. A charter can be amended only by the voters, of course. Establishing the population of the city (first charter) Before the governing body takes any action in regard to a charter commission, it must determine that its city is over 5,000 inhabitants and hence eligible under the constitution to adopt a home rule charter. If the preceding U.S. Census recorded a population of at least 5,001, the city qualifies. The city council can state this fact in its ordinance calling for a vote on framing a new charter, in accordance with Section 9.002 (d) (discussed in more detail later). (See Appendix D, which includes Texas Local Government Code, Sections 9.002 and 9.003, spelling out requirements for adoption of a new charter). If the last official census recorded less than 5,001 inhabitants, the city council must make a good faith finding that the city has grown to 5,001 or more. To do this, cities generally have used an unofficial census conducted by civil volunteers, or have used utility connections with a multiplier. Cities should consult with legal counsel prior to making the finding. Improper evidence has led some cities into legal trouble on the issue. For example, in City of Granite Shoals. v. Ted Winder, 280 S.W.3d 550 (Tex. App. — Austin 2009), a city councilmember testified that the city simply multiplied the number of utility connections by three (a number allegedly selected at random). The court concluded possible bad faith because the city did not use demographics or census data to determine the multiplier. After establishing by one of these or other reasonable means that the city has more than 5,000 inhabitants, the council is ready to consider the question of electing or appointing a charter commission to frame a charter for the city. Adopting the city's first charter Section 9.002 of the Local Government Code pro- vides two different methods of selecting a charter commission to draft a first-time charter. One way is for the governing body to provide fur an election that gives, tha voters an npportunity to elect a charter commission to draft a charter, and at that same election, to choose the members of that charter corn - mission. That same Section 9.002 provides that the charter commission may be chosen in another way. This method will be discussed later. Elected charter commission To begin the elected charter commission process, the governing body must adopt an ordinance by a vote of not less than two-thirds of its membership to submit this question to a vote of its citizenry: "Shall a commission be chosen to frame a new charter?" If the governing body does not pass such an ordinance voluntarily, it may be required to do so if presented with a petition signed by at least ten percent of the qualified voters of the municipality. The elected commission approach is not the only way to choose a commission, but it may still be the best way in that it gives the voters an opportunity to indicate whether they really want to proceed with the drafting of a charter. Section 9.002 (b) reads: "The election ordinance shall provide for the election to be held on the date of the municipality's next general election scheduled after the 301" day but on or before the 90", day after the ordinance is adopted. However, if no general election is scheduled during that period that allows sufficient time to comply with other requirements of the law, the election shall be ordered for the first authorized uniform election date prescribed by the Elec- tion Code that allows sufficient time to comply with other re- quirements of law and that occurs after the 3011' day after the date the ordinance is adopted and published in a newspaper in the municipality." Section (c) provides that the same election shall pro- vide for the election from the city at large of a charter com- mission to draft a charter if a majority of the qualified voters voting on the question of choosing a charter commission ap- prove the question. This sentence has generally been inter- preted as requiring the two questions of framing a new charter and selecting the members of the charter commission to be asked separately, though they may be on the same ballot. The commission must consist of at least 15 members, but if it has more than 15 members, it may not have more than one mem- ber for each 3,000 residents of the city. The ballot may not contain any party designation. 19 Texas Rome Rule Charters Alternative to elected commission Section 9.002 (d) provides for an alternative way of choosing a charter commission for a first-time charter. The alternative way has been used more frequently in recent years. To reduce the opportunity for misinterpretation, it is best to quote this subsection directly: (d) The provisions of Subsections (a), (b), and (c) regarding the selection of a charter commission to do not apply to the first charter election in a municipality if: (1) (a) the governing body of the municipality selects a charter commission; (b) a charter commission is selected at a mass meeting; or (c) the mayor of the municipality appoints a charter commission; and (2) the charter commission has proceeded with the formation of a charter for the municipality. Adoption of a new charter (not the first charter) There is no question regarding the selection of a char- ter commission when a city that previously has adopted a charter decides to completely rewrite the document and adopt a new charter. The provisions of 9.002 (a) through (c) must be followed requiring an elected charter commission. The definition of a "completely new" charter has not been litigated. Cities have adopted numerous amendments to an existing charter, including changing the form of govern- ment and/or the election of the governing body, as well as many other changes, and have done so under the statutes cov- ering "charter amendments," not the requirements for a new charter. The record for number of amendments at one election appears to be 81, submitted by one Texas city at a 2006 elec- tion, with 80 amendments being approved by voters. If such an election is not contested by a citizen, there appears to be no upper limit to the changes that can be made by amend- ment. Preparing for the charter commission election Several different ordinances must be passed, ballots must be prepared, and other specific steps must be taken to hold and then report the results of the charter commission election. Because these requirements can change from year to year, samples of those documents are not included here but may be obtained from the Texas Municipal League by con- tacting the TML Legal Department. Guidelines for the charter commission If a majority of those voting at the charter commission election favor creating a charter commission, the 15 or more members of that body can proceed with drafting a proposed charter. A charter commission is a very unusual governmental body. Most cities will not have such a group more than a few times in a 100-year period. Many of the individuals involved in the work will be serving on a governmental body for the only time in their lives. Because of the Commission's unusual na- ture, the National Civic League has published a Guide for Charter Commissions to accompany its Model Citv Charter (see Bibliography). Both publications can be ordered from the National Civic League through its Web site at www.ncl.orR/publications. We submit herewith the original copy of a proposed Home Rule Charter for the City of drafted by the Charter Commission elected by the people on April 5, _. We urge that the Council, having taken the initiative in recommending the Charter Commis- sion for this purpose, endorse this proposed Charter unanimously to the citizens of for adop- tion. We recommend the following steps for the Charter: 1. Send to City Attorney for legality. 2. Hire young lady to retype with enough copies for City Council. 3. Have Council approved printing of Charter. 4. Return to Charter Commission to take to printer in form they have planned to use for readability. 5. Mail to citizens of 6. Call election for February 17, . Preclearance under the Voting Rights Act of 1965 The city must obtain "preclearance" of the charter election from the U.S. Attorney General's Office. Section 5 of the federal Voting Rights Act prohibits the enforcement of any voting qualification or procedure with respect to voting rights unless it is approved by the U.S. Department of Justice or by the U.S. District Court of the District of Columbia. The simpler process for gaining approval is to submit the proposed changes to the U.S. Attorney General's Office. The approval process is designed to ensure that the proposed changes in the election process will not have the effect of denying or 20 Adoption and amendment of home rule charters abridging the right to vote "on account of race or color or membership in a language minority group." 42 U.S.C. Sec- tion 1973c. If you have any questions about the preclearance process, it may be helpful to visit the U.S. Department of Justice Web site at: www.usdoj.gov/crt/voting/sec-5/guideIines.php Additional questions may be answered by speaking with a Civil Rights Analyst at the U.S. Attorney General's Of- fice by calling (202) 307-2767. Preclearance submission may now be submitted elec- tronically thrmigh the following Web site address: www.usdoj.gov/crt/voting/sec-5/making.php Preclearance submissions may be submitted by reg- ular mail to the following address: Chief, Voting Section Civil Rights Division Room 7254 - NWB Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530 Preclearance submissions may be submitted by overnight express mail to the following address: Chief, Voting Section Civil Rights Division Room 7254 - NWB Department of Justice 1800 G St., NW Washington, D.C, 20006 Submitting the new charter to voters At the completion of its work, the charter commission notifies the governing body and submits its proposed charter to that body and to the citizens of the city. The governing body has no authority to change any of the work of the elected commission (or the appointed commission if it is operating under the provisions of Section 9.002 (d)). To emphasize the point, we repeat that in the case of a NEW charter, the gov- erning body has no authority to change any of the provisions of the proposed document. Section 9.003 prescribes the election data for con- sideration of the charter, and the governing body must set the election in accordance with these provisions. This same section provides that a copy of the pro- posed charter shall be mailed to each registered voter of the city at least 30 days before the election. The section also states that the charter shall be pre- pared by the commission so that each subject within it may be voted on separately —to the extent practicable. As a matter of practice, no charter to our memory has been submitted in any way except as a complete document with the voters asked to vote "for" or "against" the document as a whole. This re- quires voters to accept the parts they dislike or to oppose them along with the parts they favor. Such a "one -vote" submission may appear to be somewhat unfair to the voters. However, it is virtually impos- sible to separate sections of the charter and then make provi- sions in the document for alternatives. Because of this difficulty, no court, to our knowledge, has ever turned down a charter adoption because the document was submitted to the citizens as "all or none." Charter adoption: results and voter turnout A total of 61 cities have adopted first-time charters since the publication of this document in 1994. These 61 first-time charters adopted in the past 15 years are a reflec- tion of the tremendous growth of the state, particularly in the metropolitan areas. Charter amendments Charter amendment elections are held much more frequently than elections for new charters. Some cities have had numerous amendment elections over the past 50 years while others have been content to stick with the original doc- ument. Very few communities have their original charter in place. Most have found it necessary to modify the original document with amendments to provide for the best adminis- tration of their cities It appears the city with the oldest char- ter in Texas with no amendments is the City of Hearne, being adopted in 1964. Other communities have older charters and have not amended their charters for decades, including the City of Stamford which adopted its charter in 1918 with the last amendment occurring in 1955, and the City of Gorman which adopted its charter in 1920 and last amended it in 1960. When a city holds a charter amendment election and adopts one or more amendments, it must wait a full two years before holding another such election. Section 41.0041 of the Texas Election Code allows a few days leeway in holding some elections which require a certain waiting period, but this law does not aaol_v to charter amendment elections since they are controlled by the constitution. Procedure for amendment election Charter amendment elections are precipitated in one of two ways: (1) the governing body on its own motion may submit one or more amendments to the electorate, or (2) the governing body must submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified vot- 21 Adoption and amendment of home fule charters ers equal to at least five percent of the number of qualified voters of the municipality, or 20,000, whichever is the smaller. (See Appendix D for complete wording of statutory requirements.)* Charter amendment elections usually result from the first procedure above. In most cases, this is preceded by a charter revision commission appointed by the governing body. State statutes do not address charter revision bodies. The commission may be any number of individuals, may meet for as short or long a time as the governing body allows, and usu- ally is given a specific charge by the governing body to look at one or more specific charter provisions that the governing body thinks may need to be changed. A significant difference between the elected first charter commission and the appointed charter revision com- mission is that in the latter case, the governing body has no obligation to accept any of the recommendations of the ap- pointed revision commission for changes in the current char- ter. As a matter of practical politics, however, governing bodies generally give strong weight to the findings of the com- mission, even though it is not unusual to find some deviation from the recommendations when the election is actually called. Preclearance under the Voting Rights Act of 1965 Charter amendment elections must be precleared by the U.S. Attorney General's Office. See section under Adop- tion of New Charters for procedure. The charter amendment election Approval of amendment(s) by the voters If the voters of the city approve one or more amend- ments, the governing body must enter an order in the records of the city (minutes of a council meeting) declaring the adop- tion of the charter amendment(s). In addition, as soon as practicable, the mayor or chief executive officer of the city must certify to the Secretary of State an authenticated copy of the amendment(s) under the city's seal showing the approval by the voters of the city. Requirements for ordering the amendment election and publishing required notices are all contained in Section 9.004, LGC. Although the notice in the newspaper is required to be a "substantial copy" of the proposed amendment, most cities include actual charter language to be changed in that notice, and this procedure is recommended to give voters full knowledge of what they are voting on. Section 9.004 also states that any "amendment may not contain more than one subject." This requirement has troubled city officials through the years, but has generally been resolved through logical interpretation of the term "one subject." For example, if a city is changing the form of gov- ernment to a council-manager form, most cities have included in one amendment the provisions for appointment of the man- ager and all related language, even though such language may appear in several different articles of the charter. Similarly, when cities have desired to eliminate sections that are in con- flict with state law, the general practice has been to consider the "conflict with state law" as the one subject, and cite var- ious sections in the charter affected, but all under one amend- ment to the charter. Neither of these practices has been challenged to our knowledge. 22 The work of elected charter commissions and ap- pointed charter revision commissions has provided some very interesting and diverse charters in Texas. Charters range from eight or ten pages to as many as 70 pages —the latter on legal size paper, incidentally. Short charters are not always the best because they may leave ouL provisions that should be in eluded. It is true that short charters are preferred —simplicity and flexibility with a minimum of detail. This is the recom- mendation of the Model Citv Charter of the National Civic League (NCL), now in its eighth edition. Many Texas cities pattern their new charters at least roughly along the lines of the NCL model. A copy of this publication can be ordered from NCL at www.ncl.orE/publications. The NCL model charter has provided a degree of stan- dardization in charter formulation and has resulted in a num- ber of common elements among home rule charters in Texas.21 As the basic legal document of cities, most charters begin by specifying the corporate name, reciting the form of govern- ment under which the city intends to function, and setting forth the boundaries of the city. To establish the boundaries, some cities have utilized three or four pages to set out by metes and bounds the exact city limits even though that de- scription probably is outdated by the time the charter is printed. Most cities now simplify with a brief paragraph that states that the boundaries shall be enacted by ordinance and may be changed as the city annexes by amendment to the basic ordinance. Usually, the charter provides that the official maps of the city shall be maintained in an office in city hall and that changes must be filed with the county clerk. The three items recited above generally constitute Article I of many charters. Article 11 is most frequently a statement of the powers of the city. This can vary from a one -page statement to several pages comprising as much as one-half of the total charter. The lengthy sections on powers may be a result of the home rule amendment legislation originally enacted in 1913. The legislature at the time listed 34 different powers that home rule cities would have. Despite the listing by the legislature in 1913, most municipal attorneys now feel that the statement of powers can and should be a brief, all -encompassing statement. The full discussion of city powers is the subject of Chapter 7. Following the listing of powers in Article 11, many Texas charters follows the order of major subjects addressed in the NCL model charter. This would include major articles on: • the city council • the city manager (in a council-manager charter) • departments, offices, and agencies • financial procedures • elections Many other Texas charters, however, include major articles on: • initiative, referendum, and recall • franchises • municipal planning and zoning The NCL model charter concludes with three final ar- ticles covering general provisions, charter amendments, and transition separability provisions. Almost all Texas charters close with the same three articles as the model charter. 23 The first decision most charter commissions make in grief history of forms of government developing a new charter is what form of government the in Texas fledgling home rule city will have. Status of forms of government in the U.S. today The International City Managers Association pub- lishes the Municipal Yearbook annually with figures on the number of U.S. cities operating under each of the different forms of government. The latest survey of this type was pub- lished in 2009 and produced the following results. Form of All Cities Cities Under 10,000 50,000 Over Government 10,000 to to 250,000 50,000 250,000 Mayor -Council 3,145 1,967 942 197 39 Council-manager 3,534 1,661 1,463 383 27 Commission 143 72 62 7 2 Town meeting 340 233 107 0 - Rep. Town Meeting 63 17 41 5 - Total all cities 7,225 3,950 2,615 592 68 In the 1994 edition of this book, among all cities and towns, the mayor -council form of government was the most popular of any listed. Compared to the 2009 numbers, there has been a 37 percent increase in communities utilizing the council-manager form of government, while there has been an 18 percent decrease in those cities operating under a mayor -council system. Among cities having populations from 10,000-50,000 and 50,000-250,000, the council-manager plan is the leader. The mayor -council form predominates among the older northeastern cities and in older cities of the Midwest and south. The council-manager plan is most popular in Cal- ifornia, Texas, Michigan, Illinois, and Maine. The commission plan is favored by only about two percent of the cities reporting in this survey. "The very small percentages of cities which have identified themselves as hav- ing a commission form of government in this study have, by charter, mandated the hiring of a city manager. To that extent, they are not a 'true' commission form of government but rather operate as a council-manager form of government." Zech, Charles E., "An Analysis of Texas Home Rule Charters" (2008), Texas State University Applied Research Projects, Paper 280, p. 44. In the early days, all Texas cities were variations of the mayor -council form of government. This changed in 1900 when Galveston's mayor -council government collapsed during the disastrous storm and tidal wave. A group of citi- zens persuaded the legislature to grant the city a new charter, providing for a government by five commissioners, three ap- pointed by the governor and two elected by the citizenry. Each member of the municipal governing body —the city commis- sion —simultaneously served as commissioners and heads of the city's administrative departments, exercising day-to-day supervisory authority over a particular department. A court decision in 1903 ruled all five commissioners should be lo- cally elected. The plan spread like wildfire. Houston adopted it in 1905, and five more cities adopted it in each of the leg- islative years of 1907, 1909, and 1911. By 1915, there were at least 39 home rule cities in the state, the large majority choosing the commission plan.22 By then, however, the stage had been taken by an- other reform movement — the council-manager plan. Begun in Virginia, South Carolina, or California —depending on the version of the story you like —this plan was advertised as being patterned after business. Stockholders (the voters) elect a board (a city council) and that body appoints a chief executive officer (a city manager). Amarillo kept the commission plan only a few short years and in 1913 jumped to the council- manager plan, with Taylor, Terrell, and Denton following the next year. A short but steadily growing list of cities changed from commission or the mayor -council form to council-man- ager each year from 1913 to 1932. Today, Texas has more council-manager cities than any state in the union except Cal- ifornia. The commission plan reached its zenith in the early 1900s and then fell rapidly out of favor. Today, Texas does not have a single city with the commission form. In the entire nation, Portland, Oregon, is the only major city with that form of government. The mayor -council form of government, the origi- nal form in the colonies, continues to make a strong showing particularly in the largest cities of the nation and in the very small cities and towns. Forty-four percent of the 7,225 U.S. cities and towns with populations of 2,500 residents are gov- erned by a mayor -council system; with six of the nation's ten largest cities using the mayor -council form. However, for the ten largest cities in Texas, only Houston utilizes the mayor - council form of government. In Texas, Houston and Pasadena are the major cities with this form of government. Houston, for a period of five years in the 1940s, changed to the coun- cil-manager plan, but reverted to mayor -council in 1947. 25 Texas Home Rule Charters It should be noted that the mayor -council form of government is sometimes defined as two different forms: the "strong" mayor and the "weak" mayor forms. The ultimate in a "strong" mayor form would probably be Denver, Colorado, where the mayor of that city/county is authorized to: • sign contracts up to $500,000 without any notice to or confirmation by the city council; • prepare the annual operating budget, which can be changed only by a two-thirds vote of the 13-member city council • appoint and remove some 50 department heads, includ- ing county judges and board and commission members, all without approval or confirmation by the city council; and • select the outside auditor to conduct the annual audit of city operations. Certainly, no Texas mayor claims this level of au- thority. On the other hand, a "weak" mayor form usually means several of the following are in the charter: • the mayor has no veto; the mayor's appointments of de- partment heads and boards and commissions must be confirmed by city council vote; • the mayor has a vote in the council chamber only in case of a council tie vote; and • the mayor's budget authority is circumscribed. Major determinants of the form of government With these choices available, how do new charter cities in Texas make their choice? Undoubtedly, the total number of cities in the state and in the U.S. with each type of government influences the decision of charter makers. But the two most important determinants of this decision are prob- ably: (1) the form of government of the city's neighboring cities —particularly larger ones, and (2) the form of government the city has been operating under as a general law city. There is no question that the form of government of neighboring cities —particularly larger cities in the area —in- fluences the choice of form of government for new home rule cities. It is no accident that the area around Houston (mayor - council) has more cities with this form of government than might otherwise be expected. A few cities undoubtedly influ- enced by Houston's choice include Pasadena, Texas City, League City, and Hitchcock. Conversely, the Dallas/Fort Worth metroplex has virtually no mayor -council cities. Here, the in- fluence of those two large council-manager cities certainly has been felt through the years. The second determinant —the general law plan cur- rently operative —is also a factor in choice of the form of gov- ernment for the new home rule city. Those who write a city's first-time charter are ob- viously very familiar with the current organization and prac- tices of the city as it is then operating as a general law city. The charter writers undoubtedly decide that they would like to duplicate some of the current practices while happily dis- carding other general law requirements and procedures. The two most influential practices of general law cities that appear to be carried over to home rule charters might well be: (1) the six -member city council with the mayor as the sixth mem- ber voting only in case of a tie, and (2) the position of city ad- ministrator which more than 300 general law cities have established by ordinance. Of the home rule cities governed by a six -member council, it is somewhat common for the mayor to vote only in case of a tie. This arrangement has been known to cause some problems as we shall see when we ad- dress the role of the mayor in Chapter 8. The experience of the general law city with a city administrator will likely be the factor that determines whether the charter commission rec- ommends a council-manager or a mayor -council form for the new home rule city. Charter revision to change the form of government Regardless of their size, cities with existing char- ters may also change the form of government if they so choose. texas cities have been extremely reluctant to exercise this option in the last 60 years; only four major cities have made such a change during that time. Houston, mentioned earlier, changed briefly and reverted back to mayor -council in 1947. San Antonio (1951), Laredo (1981), and more re- cently El Paso (2004), abandoned the mayor -council form for the council-manager plan. Following the 2007 election year, charters were adopted by the cities of Buda, Celina, Hondo, Los Fresnos, Roma, and Windcrest. The 2008 election produced addi- tional charter cities in Iowa Park, Lucas, and Willis. Horse- shoe Bay, Pittsburg, and South Padre Island approved home rule charters in 2009. The count for each form of government is as follows: Council -Manager: 87% 89% Mayor -Council: 13% 9% Commission: 0% 2%k The count above is accurate, but at the same time, does not tell the whole story. The council-manager plan has changed from the original structure of the plan, which called for: (1) a mayor who was selected from among the council after all winners had been seated as councilmembers, (2) a non -paid governing body, and (3) at -large elections. Al- though a few cities still adhere to these criteria, most coun- cil-manager cities have long ago changed to electing the mayor at -large, with some or all of the councilmembers elected by districts. Pay for the mayor and council is a sig- nificant change, and the dollar figure keeps rising every year. The great majority of council-manager cities con- tain all the basic elements of the plan: selection of a profes- a 26 0 Form of government sional administrator, prohibitions against council interference with the city manager's appointments and day-to-day opera- tions, and charging the city manager with responsibility for budget preparation. Some cities, however, have at best a weak manager plan. Evidence of this type charter is council appointment of various department heads, including at times the police chief, fire chief, city engineer, and others. The Temple charter calls for council appointment of a finance di- rector and the Sweetwater charter for the appointment of a city comptroller. "'The very small percentages of citics which have identified themselves as having a commission form of government in this study have, by charter, mandated the hiring of a city man- ager. To that extent, they are not a 'true' commission form of government but rather operate as a council-manager form of government." Zech, Charles E., "An Analysis of Texas Home Rule Charters" (2008), Texas State University Applied Research Projects, Paper 280, p. 44. 27 Introduction The purpose of the home rule amendment to the Texas Constitution was to free cities over 5,000 inhabitants from going to the legislature each session for authorization to take care of some problem at home. Perhaps the enabling act spelling out 34 specific powers left charter drafters unsure whether the constitutional amendment would be upheld to be as broad as intended. Whatever the reason, cities that are supposed to have any power not prohibited to them still have charters that devote 20-25 pages doing what amendment writers in 1912 were trying to avoid —spelling out powers in endless detail. Not one but dozens of charters take from one- fourth to one-half of the total charter to spell out the powers of the city. These charters spend several pages on the details of the power of the city to maintain peace and order, to regu- late streets, to levy assessments; to spell out the powers of eminent domain and annexation, the power to maintain a li- brary, hospital, parks and playgrounds and other city facilities; and finally, to provide and supervise the municipal court. Several of the powers spelled out in some of the more detailed sections have been preempted by the legisla- ture. These include assessments for street improvements, much regulation of public utilities, and the basic operating practices of a municipal court. The preemptions of these specific powers above is reason enough not to try to spell out in excruciating detail every conceivable situation that may occur to a charter drafter. In this day of rapid societal change, the old adage "to include does not intend to do so, but by its very nature excludes every- thing not specifically included" can come back to haunt us. Inherent powers of a city23 Chapter 2 discussed briefly the concept of inher- ent powers possessed by a city and used four examples of such powers —municipal organization; annexation; initiative, referendum, and recall; and charter amendments —to illustrate the advantages of home rule over general law. There are nu- merous other examples of powers that Texas home rule cities enjoy. These powers are cited in some detail here not to en- courage cities to spell out these powers in a charter, but to portray the wide variety of powers possessed by a home rule city. All these can be encompassed in broad statements that the DeLeon charter, described later in this chapter, illustrates quite well. The police power The council has the power to regulate a wide range of local activities in order to promote the general welfare of the city's residents. This is known as the city's "police power," and it encompasses all governmental powers exer- cised for the public good. More particularly, the police power is defined as the city's authority to preserve and promote the health, safety, morals, and welfare of local citizens. It is based on the prem- ise of the supremacy of the rights of the general public over individual rights. Some of the more common methods by which municipal police powers are exercised are described below. In order to preserve the peace, the city council has the power to create a police department to maintain order, enact ordinances controlling noise and other disturbances, and prevent animals from running at large. The council also can declare certain activities to be public nuisances and pe- nalize persons who create them. The courts have held the city's authority to protect the health of the public to be gen- erally broader than other municipal police powers. The regulation of dogs and other animals, the reg- ulation of unwholesome business practices, and the regulation of slaughter houses are just a few of the powers the city coun- cil may exercise to protect the health of its citizens. The council also has the power to enact quarantine regulations, regulate cemeteries, and inspect and license restaurants and other food service establishments. Additionally, the city council can enact a zoning ordinance to regulate the height and size of buildings, the size of lots and density of population, the location and use of buildings and other aspects of land and improvements thereon, and the uses to which they are put (Chapter 211, Local Government Code). The city council also has the au- thority to prescribe standards for the construction of buildings within the city, regulate the condition of buildings, and con- demn unsafe buildings (Chapter 214, Local Government Code). While home rule cities still have broad powers, the Texas legislature often passes laws that preempt city authority. This practice is usually directed at the activities of one or a few cities, but has become a troubling practice because it can affect all cities. 29 Planning and subdivision controls The city council has the power to spend municipal funds to compile statistics, conduct studies, and make plans for the orderly growth of the city and the welfare of its resi- dents. The council can create a planning commission to de- velop and maintain a city plan and can establish a planning department to implement the plan (Chapters 211, 212, 213, Local Government Code). The council can establish rules and regulations governing the subdivision and development of land within the city. The city also can extend its subdivision controls to land located within the city's area of extraterritorial jurisdiction in order to assure the orderly development of outlying areas. Annexation If permitted under the charter, the council can ex- ercise its annexation powers to bring adjoining unincorporated areas into the city without the consent of the residents in those areas (Chapter 43, Local Government Code). Since state law controls many aspects of annexation by a home rule city, it is prudent for a city council to bring its city attorney into any discussion of annexation. Regulation of streets and other public places The city council has supervisory powers over all streets, alleys, sidewalks, bridges, parks, and other public ways and places within the city. The council has the power to: (1) regulate the use of streets and other public ways, pro- vide for cleaning and lighting, prevent and remove encroach- ments, and direct and regulate the planting of trees; (2) regulate openings for laying out gas, water, and other mains and pipes; (3) regulate the use of sidewalks and require the owners or occupants of abutting premises to keep their side- walks free from obstructions; (4) prevent activities that would result in damage to streets, alleys, or other public grounds; (5) regulate crosswalks, curbs, and gutters; (6) regulate the posting of signposts, handbills, and similar items on streets, sidewalks, and other grounds; (7) regulate traffic and sales on streets, sidewalks, and other public spaces; and (8) control weedy lots and junked vehicles. 30 Construction public facilities In addition to its regulatory powers, the council has the authority to erect, construct, and maintain a wide va- riety of facilities for public use, including water and sewage systems, airports, hospitals, parks, libraries, market houses, traiisil systems, electric and gas systems, streets, bridges, cul- verts, sidewalks, street lights, and many other kinds of facili- ties. Legislative restatement of broad powers and case law In codifying the statutes pertaining to local gov- ernment in 1987, the legislature tried to restate the law to make it perfectly clear that home rule cities have "full power of local self-government." In fact, that phrase is quoted from the Local Government Code (Section 51.072, paragraph (a)). Paragraph (b) of that same section states: "The grant of pow- ers to the municipality by this code does not prevent, by im- plication or otherwise, the municipality from exercising the authority incident to local self-government." In addition, the cases excerpted in the LGC, fol- lowing Section 5.072, reiterate over and again the rulings of courts that have consistently upheld a city's broad powers. The powers article in DeLeon charter Barney Knight, former city attorney of Temple and Austin, and now representing various small cities through his private practice, redrafted the "powers" section of the City of DeLeon's charter several years ago. Mr. Knight spent consid- erable time researching and wording that statement of powers to take advantage of every power authorized by the Constitu- tion and statutes, while still being brief. That wording in the DeLeon charter, of which Mr. Knight and the city are justly proud, is as follows: SECTION 1. The said City of DeLeon shall have power to ordain and establish such acts, laws, rules, regulations, resolu- tions, and ordinances, not inconsis- tent with the Constitution and laws of Texas and of this Charter, as shall be needful for the government, interests, health, welfare and good order of said City and its inhabitants. Under the name of the City of DeLeon it shall be known in law and have succession and be. capable of contracting and being contracted with, suing and being Powers of the city sued, impleading and being im- limited or extended, are hereby con - pleaded, answering and being an- ferred upon the City of DeLeon as fully swered unto, in all courts and and completely as if such powers were tribunals, and in all amounts whatso- herein separately enumerated. ever, subject to the laws of the State B. All powers, privileges and immuni- of Texas, or which shall hereafter be ties conferred upon cities of more passed. than five thousand inhabitants, by Section 4 of Chapter 147, Acts of the The City of DeLeon shall have the 3311 Legislature, General Laws Regu- power to take, hold, lease, grant, pur- lar Session, at Page 310 to 316, enti- chase and convey such real property tled, "An Act Authorizing Cities or mixed property or estate, situated Having More Than Five Thousand In- witlwithout,eof, habitants, by a Majority Vote of the as the purpose of said corporation may (qualified Voters of said City;at an require and shall have and use a cor- Election Held for the Purpose to Adopt porate seal, and change and renew the and Amend their Charters, etc; and same at pleasure. such powers are hereby conferred upon the City of DeLeon as fully and SECTION 2. Rights Reserved - All suits, taxes, completely as if each of said men - penalties, fines, forfeiture, and all tioned powers were herein separately other rights, claims and demands, of enumerated; but enumeration of spe- every kind and character, which have cial powers herein, or in the Statutes accrued under the laws in favor of said referred to, shall not be held or con - city, heretofore in force governing the strued to preclude the city from exer- same, shall belong to and vest in said cising all powers of local government city and shall not abate by reason of not inhibited by the Constitution and the adoption of this Charter, and shall Laws of the State of Texas, or by spe- be prosecuted and collected for the cial limitations in this Charter con - use and benefit of said City of DeLeon tained, the purpose of this Charter and shall not be in any manner af- being to enlarge upon the power ex- fected by the taking effect of this tended by the general laws of cities in - charter; but as to all of such rights, corporated thereunder, and to secure the laws under which they shall have to the City of DeLeon, all the powers accrued shall be deemed to be in full conferred by the Constitution and force and effect. Laws of this State upon cities having more than five thousand inhabitants. SECTION 3. Local Self -Government - The City of DeLeon shall possess and may exer- cise the full power of local self-govern- ment. It may hold, by gift, deed, devise, or otherwise, any character of property, including any charitable or trust fund, and subject to and within the limits of superior law may act in perpetual succession as a body politic. SECTION 4. For greater certainty, the following are hereby especially enumerated and referred to as being among the other powers which are hereby conferred upon and which may be exercised by the City of DeLeon, to -wit: A. All of the powers conferred upon cities and towns by Title 22 of the Re- vised Civil Statutes of Texas, 1911, except as may hereafter be denied, 31 TeMS Home Rule Charters The model charter Perhaps one day in the twenty-first century case law will be so well established that a powers statement could be shortened even further to read as the NCl- model city char- ter suggests: Section 1.01. Powers of the City. The city shall have all powers possible for a city to have under the constitu- tion and laws of this state as fully and completely as though they were specifically enumerated in this char- ter. Section 1.02. Construction. The powers of the city under this char- ter shall be construed liberally in favor of the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power granted in this article. Section 1.03. Intergovernmental Relations. The city may participate by contract or otherwise with any governmental en- tity of this state or any other state or states or the United States in the per- formance of any activity which one or more of such entities has the authority to undertake. Federal Voting Rights Act There is one cautionary note in this discussion of powers. The city council needs to continually be aware of the requirements of the federal Voting Rights Act, for it not only restricts the city's freedom in city council elections, but also must be taken into account before annexing laird. Under that Act, federal approval is required for: • the relocation of a municipal election polling place or changes in any precinct boundary line; • the annexation of territory that affects local voting pat- terns to any degree whatsoever; • a change in the method of electing city councilmembers (for example, a change from at -large elections to elections by wards, or vice versa); and • a change in the terms of elected municipal officials or a change in the method of selecting any official (for in- stance, providing that an official whose office is presently appointive will in the future be elective, or vice versa). This list is not all inclusive; rather, it offers a few examples of the kinds of election -related actions that are sub- ject to federal approval. The scope of the Voting Rights Act is intentionally broad and, as the administrative procedures written to implement it indicate, the Act applies to any "change affecting voting," which includes any voting qualifi- cation, prerequisite to voting, standard, practice or procedure different from that in force on November 1, 1972, however minor or indirect the difference might appear to be. Under the Act, prior to final implementation of any annexation, any change of polling place, change in the term of any municipal elected official, or any other "change affecting voting," the city must do one of the following: (1) obtain a declaratory judgment from the U.S. District Court for the District of Columbia that the proposed change will not re- sult in the denial or abridgement of the right of any person to vote because of his or her race or color; or (2) submit the pro- posed change to the U.S. Attorney General. If, within a spec- ified time, the Attorney General fails to object to the proposed change on the basis that it will have the effect of abridging or denying any person's voting rights on account of race or color, the change can be implemented. Of note is the 2009 U.S. Supreme Court decision in the case of Northwest Austin Municipal Utility District v. Holder, 129 S.Ct. 2504 (2009), which concluded that a po- litical subdivision may apply to federal court in Washington, D.C., to "bailout" (be exempted) from the Act's requirements. In any event, the city council should seek the counsel of an attorney whenever it contemplates any action that might result in a "change affecting voting." Failure to comply with the re- quirements of the Act can subject city officials to civil and criminal penalties and can mean that any "cliange affecting voting" will always be subject to challenge. i 32 "The Mayor" is one of the most prestigious polit- ical positions in American politics. From that position, indi- viduals have advanced to governor, United States senator, presidential cabinet member, and other less prominent posts. Although some would say the position does not carry the power it once did, U.S. presidents still listen to mayors. As the political head of a city, the mayor is ex- pected to provide the leadership necessary to keep it moving forward. Except under the council-manager form of govern- ment, the mayor is the city's chief executive officer. Virtually all charters recognize the person in that position as the cere- monial and governmental head of the city. In addition, the mayor is usually designated the city's chief executive in times of disaster and emergencies. Several Texas charters delegate extraordinary powers to the mayor in emergency situations. Most of the day-to-day powers and responsibilities of the mayor are spelled out in the city charter or in ordinances. Very few mayoral powers are prescribed by state law. The mayor's most important duty is to furnish the political and community leadership to build and maintain a healthy and viable city. This is often achieved through work- ing with a city council and the city administration for a goal - oriented legislative and budgetary program to meet the needs of the citizenry. As presiding officer of the city council, the mayor can exercise a considerable amount of influence through the power of recognizing councilmembers for motions or statements, ruling on questions of procedure, and in some cities, vetoing actions of the city council. Historically, the mayor's real powers have fluctu- ated, depending on the form of government utilized and the complexity of problems faced. The mayor in American history Certainly the mayor was the key figure in early American cities. In early times in Texas, as throughout the nation, cities were governed by the mayor -council form of gov- ernment, and many mayors wielded extensive powers through appointments and patronage. He —and they were all males for a long time —was the undisputed chief executive officer of the city. This did not change with the advent of the commission form of government in 1900, but did begin to change with the initiation of the council-manager movement in the early 1900s. Richard Childs, one of the founders of the council- manager plan, was adamant about calling the person in the position "chairman," not mayor. He insisted that individuals run for the city council and then select one of their own as chairman. Childs and other early proponents of the council- manager plan believed the strength of the plan was in the pol- icy and political leadership of the council as a whole, not in a single individual. But as cities throughout the country grew, many citizens felt the need for a single, strong political leader in the person of "the mayor" to keep their city in the forefront of economic development and prosperity. Thus, the "strong" mayor plan flourished in many cities and produced such leaders as Ivan Allen, Sr., and later Ivan Allen, Jr., in Atlanta; Louie Welch in Houston; and Richard Lee in New Haven. They and others were hailed for their political and community leadership. Those mayors "ruled" from charter strength. But a different type of mayor evolved in the larger cities under the council-manager plan — a "facilitative" mayor. With none of the appointment, budgetary, or executive power of the men mentioned above, mayors such as Eric Jonsson in Dallas and Henry Cisneros in San Antonio led their cities by sheer per- sonal magnetism and intellect, facilitating local successes through the joint action of the total city council and profes- sional administrators. Today, mayors in both forms of government are re- lying to a great extent, not on the formal authority of the of- fice, but on personal informal authority as the "elected spokesperson for the community. They work with all segments of the city and the region to initiate, expand, and improve gov- ernmental services." Neal Peirce, in his book, Citistates, says it this way: In virtually every city there is a cry for leadership — for someone to take a strong hand to organize the town for the future. Yet an individual who tries to take too prominent a role or steps on toes of any in- terest group suddenly finds himself or herself under fire, oftentimes in the local press ... None of that means we need leaders any less ... A central civic challenge for today's citistates is thus to nurture, encourage, and advance a replacement generation of civic entrepreneurs. Some will surely be from businesses large and small. But others need to be from universities, citizens groups, minority commu- nities, and especially the expanding professions of the new service economy, from law to medicine —to accounting. Peirce acknowledges inherent problems in civic efforts: major corporate officials too occupied with global sur- vival to participate, lack of media support, racial groups sus- picious of less than a fair share, too many plans never implemented. He concludes, however, that the problems un- derscore the importance of the goal. 33 Texas Hanle Rule Charters Nevertheless, the absence of effective leadership, a citistate totally adrift, is a more frightening prospect. The nurturing of new leaders and the cre- ation of metropolitan partnerships that open a way for those leaders to play important region -wide roles are two of the most critical challenges for American citistates in the 1990s.24 Distinct differences in mayors' positions There remain, however, distinctive differences be- tween the charter authority and duties of a mayor leading a mayor -council city and a mayor leading a council-manager city. A comparison of key elements of the mayor's role in the three largest cities in Texas pinpoints the differences. Factor Houston Dallas (Mayor -Council) (Council -Man Pop. - 2,208,000 Pop. - 1,240, Pay $14,583/month $5,000/mont Appointment of city's Appoints, subject to No individual decision No individual decision Department heads City Council approval authority in this area* authority in this area* mayor. Mayor -council charters thus address the mayor as the elected head of the city and the chief executive officer. For the latter role, the provisions are similar to the city manager sections in a council-manager charter. The Dallas charter, and many other council-man- ager charters, devote one section (one paragraph) to the mayor exclusively. Other sections cover the responsibilities of the mayor as a member of the entire city council. Selection of the mayor Mayors of all mayor -council cities in Texas are elected at -large by the voters. Although this is the practice in the great majority of council-manager cities, mayors in six percent of council-manager cities are elected as councilmem- bers and then selected by their colleagues as the city's mayor. Selection of the rnayur by Hie cuuucrl is reported in some 35 percent of coun- San Antonio cil-manager cities na- ager) (Council -Manager) tionwide. The Texas 000 Pop. - 1,328,000 number at six percent is down from the nine h $366/month percent of the cities in Texas reporting this method in 1994. Annual budget Prepares for City No individual decision No individual decision Compensation Council approval authority in this area authority in this area of the mayor *The City Council, with mayor voting, does appoint the city manager, city attorney, city secretary, and city auditor. It seems obvious from the comparison in figure 8- 1 that an examination of the mayor's role demands two sepa- rate tabulations for the two forms of government. It would be useless to repur[ that [lie average salary of the mayors In the three largest cities in Texas was something like $6,649 per month. Yet, some national and state publications in the past have combined mayors of all cities into one summary tabula- tion.21 Charter language regarding the mayor The pay and responsibility table displays the dif- ferences between the mayor's position in Houston, Dallas, and San Antonio reflecting the content of the "Mayor" articles in their respective charters. The Houston charter, and similarly the mayor - council charters of Pasadena, Bay City, and others, devote a specific article to the mayor. These articles cover such areas as the definition of the mayor's position, general powers of the mayor, privilege of vote and veto, authority for removal of appointive officers and employees, and compensation of the Salary of the mayor is addressed in two different ways by Texas charters. The table below shows these provisions and the number of charters, by form of government, that utilize each of these methods: Mayor -Council Council -Manager charters charters 1994 2008 1994 2008 Council sets pay* 46% 38% 1 55% 38% Charter sets specific 54% 62% I 45% 62% salary or salary range 'These figures include charters that specifically state the city council shall set its own compensation and charters that are silent on this subject. Where a charter is silent, Section 141.004 of the Local Government Code provides that a gov- erning body of a home rule city may establish a level of com- pensation for itself. 7 34 I The mayor Salary is an area in which the difference between the two forms of government is very apparent, particularly in the larger cities. The average pay of the mayors in mayor - council cities is $861.68 per month. This is virtually mean- ingless, however, since that figure includes not only Houston and Pasadena, but also DeLeon (pop. 2,400) and Olney (pop. 3,300) as well as a host of other smaller cities. It is important to note that 45 percent of mayors in mayor -council cities re- ceive no compensation at all. It is more enlightening to note that the salary of mayors in cities over 50,000 using the mayor -council form of government ranges from $14,583 on the high end (Houston) to $50 per month on the low end (San Angelo), with an avorage salary of $5,277. Overall, the average mayoral pay of the council- manager cities is $159 per month. The average pay for the three largest council-manager cities — Dallas, San Antonio, and Austin — is $3,677.88. If the San Antonio mayor's salary at $4,020 per year were omitted, the average of the other two would be $5,333 per month. Mayors in council-manager cities not only receive less in salary, but also the difference between the mayor's salary and the councilmembers' salary is usually small. Vote in council meetings Mayor -council charters do not give mayors the un- restricted right to vote as those in council-manager cities gen- erally do. Among the mayor -council cities, 40 percent allow mayors to have a regular vote in council meetings, while 55 percent allow the mayor to vote only in case of a tie by the council, and the remaining 5 percent allow for no vote at all. In council-manager cities, 65 percent have a regular vote, while 35 percent of the mayors vote only in case of tie. Again, these figures are not unlike national survey figures. Deciding when a mayor votes has caused at least two Texas council-manager cities a lot of grief. Several cities have retained in their home rule charters a provision of the Type A general law municipality. State law provides that if a Type A city is not divided into wards (and many smaller home rule cities are not), the governing body shall always consist of a mayor and five councilmembers, and the mayor shall vote only in case of a tie. The two cities in question had retained this council number and the mayor's restricted vote provision when they adopted home rule charters. The city councils fired their city managers over the protest of the mayor in each city. Both mayors cited provisions in their charters that purported to give the mayors voting power in the event of a vote on dis- missing the city manager. The district court in one county upheld one council's dismissal of the manager, ruling the mayor could not vote. A district court in an adjoining county reversed the council decision of the second city and reinstated the manager! The difficulty in both charters came from trying to delineate the cases in which the mayor might have a vote, other than on a tie vote by the council. Both cities have since gone to an odd number on the council and given the mayor a "regular" vote. Because of the problems of these two cities and the difficulty of wording a charter clearly, several charter consultants recommend that councils be composed of an odd number of individuals and that mayors be given a "regular" vote just as any other councilmember—on all matters. Urban experts offer other reasons for allowing the mayor to vote on all issues. They concur that a mayor's leadership role can be enhanced by the power to vote, particularly on such critical policy issues as appointment and removal of a city manager or chief administrative officer and on bond issues, tax rates, and the adoption of the annual budget. Veto The veto power of the mayor is generally another distinguishing mark of the difference between the two forms of government. Veto provisions in mayor -council charters are much more common than in council-manager charters —na- tionwide and in Texas. Of those communities with mayor - council charters in Texas, 32 percent provide for a mayoral veto of council actions. Usually these vetoes can be overcome only by a two-thirds or more vote of the council. But in a few cases, the council can simply reconsider the action. If it votes the action again by a majority vote, the mayor has no authority to veto the item a second time. Only nine percent of council-manager cities pro- vide for a mayoral veto. The denial of the veto is a reiteration of the historic background of the council-manager plan, which saw the strength of the city in a body of policymakers, not in a single individual. Budget role The mayor in 25 percent of mayor -council cities prepares the budget and submits it to the city council. In some small mayor -council cities, the charter says the council shall prepare a budget. Budget formulation and submission is one of the chief differences between the two forms of government. Only three percent of the cities under the council-manager plan provide for the mayor to prepare the budget. In the council- manager plan, the charter directs the city manager to prepare the budget for the council as a whole. Increasingly, managers are asking their city councils to give them early policy guid- ance on the council's priorities for the coming year. The mayor obviously can play a lead role in this priority -setting, but councilmembers are often fond of pointing out that in adoption of the final budget, the mayor has only one vote —just as the other councilmembers do. Although it is very rare, mayors are outvoted on budget matters as they are sometimes outvoted on other items in council-manager cities. The Texas practice in both types of government parallels the national experience. 35 Texas Home Rule Charters Appointment of city department heads Mayors in mayor -council cities are generally given charter authority to appoint city department heads, subject to confirmation by the city council. No Texas mayor has the free- dom of appointment possessed by the Denver, Colorado, mayor who can appoint approximately 50 department heads without approval. In Texas, the appointments by the mayor generally include the city attorney, city judge, city secretary, and such department heads as the police and fire chief, di- rector of the departments of public works and utilities, and directors of such departments as parks and recreation and li- braries. These appointments take only a majority vote of the council to approve; a handful of charters provide that the council also shall have a voice in dismissal of these same ex- ecutives. The classic council-manager charter does not pro- vide for council confirmation of the city manager's appoint- ments, but in 25 percent of council-manager cities in Texas, these appointments are subject to council approval. Here again, the mayor has only one vote in this process. A small number of council-manager cities provide for council confir- mation of only one or two key departments heads —most often the police chief (39 percent), the finance director (20 per- cent), as well as the fire chief (five percent). Typically, the city attorney, city secretary, and the municipal court judge are appointed by city council. Several charters allow for the city manager to make these selections; however, they often require these appointments to be approved by city council. Appointment of boards and commissions The typical mayor -council charter in Texas pro- vides for mayoral appointment of boards and commissions, subject to the approval of the governing body. These appoint- ments are normally made by the council as a whole in coun- cil-manager cities, although there appears to be the beginning of a trend in these cities to give the mayor the lead role and allow him/her to make such appointments subject Lu council agreement. In some Texas cities representing both forms of government, the council, but not the mayor, may remove board members. Mayor's staff Mayor -council charters are more likely to discuss staff than council-manager charters. Several of those charters provide for a chief administrative officer. No council-manager charters in Texas authorize the mayor to have any staff. The small staffs that some coun- cil-manager mayors have are simply authorized in the annual budget. Elements of the mayor's position that are relatively the same in the two forms of government 1. Terms of office Terms of office are generally the same in both forms of government. Some individual cases are noteworthy. Pasadena elects its mayor for four years and its council for two years, lending additional prestige and unspoken authority to the position of mayor. Dallas also adopted a four-year term for mayor and kept the council terms at two years. Lubbock, Del Rio, and Bellaire, all council-manager cities, took the op- posite route — the mayor serves for two years whereas city councilmembers serve for four. 2. Filling vacancies Methods of filling mayor vacancies are not gener- ally determined by the form of government. The most com- mon method of filling a mayor's vacancy created by death, resignation, or removal is council action to replace the indi- vidual from its own members. Some charters call for the mayor pro tem to automatically step into the job. 3. The mayor as member of council in mayor -council cities A few mayors are not a part of the city council. This feature of an entirely separate executive is more often found in larger cities and in other parts of the country. Typi- cally, the mayor is a member of the council in council-man- ager cities in the state; although, as pointed out earlier, the position is sometimes not given a full vote. In addition, in some of these council-manager cities, the presence of the mayor cannot be counted as part of the quorum. Concluding thoughts on the position of mayor in the two forms of government As pointed out in Chapter 6 and developed in more detail here, there are major charter differences in com- pensation, voting, veto power, budget role, and appointment powers of the mayor in the two major forms of government in Texas and nationwide. Mayors in council-manager cities have always understood their leadership must come from their pow- ers of persuasion. Over time, mayors In mayor -council cities have seen governance, particularly in larger cities, become so complex and fragmented that they, too, no longer have the power they once did. They also must exercise the power of persuasion to move their city forward — perceptively and un- stintingly promoting cooperation that minimizes debilitating conflict.", 36 As the governing body of the city, councils are the focus of a separate article in virtually all charters. This article sets forth the basic requirements for election and organization of the council and covers a wide range of other subjects, all relating to the structure and operation of the council. The city council is such a key ingredient of well - functioning city governments that this book devotes two chap- ters to it. Some of the topics could be covered in either chapter. They are divided with a goal of improving clarity. The first chapter emphasizes the role of coun- cilmembers as individuals: election, terms of office, term lim- its, compensation, benefits and staff, and personal liability. The second chapter examines the council as a leg- islative body: powers and duties, conduct of council meet- ings, absence from those meetings, and filling vacancies. Since the methods of electing councilmembers and setting term limits continue to be two of the most contro- versial subjects in city government, they are discussed first. Council elections through the years The governing body of towns incorporated during the Republic of Texas was the Board of Aldermen. The termi- nology derives from Old English, "older man," who assisted the Anglo-Saxon king in governing a subunit of the kingdom. Colonists probably brought the term to Texas. The term "alderman" is used today by some gen- eral law cities. Other general law cities use the term "Board of Commissioners" for the governing body. Almost all home rule cities have abandoned both terms and use "City Council." A very few cities cling to a portion of their general law heritage and call the governing body the "City Commission" or "Board of Commissioners." In the Republic, aldermen were usually elected from wards. Election of aldermen by wards continued into this century until the reform movement's advocacy of elec- tion -at -large to escape the "evils" of ward politics. Over the last quarter century, the trend has reversed somewhat to elec- tion by wards. Now, however, proponents have changed the term to "districts" to avoid the negative connotation of wards. In fact, the Austin City Council in 1994 coined the term "neighborhood election districts," but the voters still rejected a single -member district plan for the fifth time. Methods of council election The two methods of electing the municipal gov- erning body are "at -large" and by "district." Each method has subdivisions, but they are variations of the two basic methods. The two basic methods also can be mixed to pro- vide still another configuration —the "mixed systems" form. Our review of the use of current election methods shows no apparent relationship between a city's size or form of government (mayor -council or council-manager) and the election method used. At -large and at -large -by -place At -large — All candidates are placed on the ballot and those receiving the most votes citywide are elected to office. Generally, these individuals are elected by plurality (the largest number of votes regardless of the percentage of the total vote). Atypical example: three council positions are vacant and there are five candidates. If a plurality is spec- ified, the top three vote -getters are elected whether any one of them receives more than 50 percent of the total vote. Occasionally, a city requires a candidate under the plurality measure to receive a minimum number of votes. Corpus Christi's charter states that "If fewer than three candidates for at large city council positions receive a plu- rality of at least twelve percent each of the total votes cast for all at large city council candidates, there shall be held on the second Saturday fo►lowing any such election a run- off election" and provides additional details for how the runoff will be conducted. In Ennis, commissioners (city council) are elected by plurality, but an individual must get 35 percent of the votes cast or face a runoff with the next highest person on the ballot. If a majority vote is specified, a candidate must receive more than 50 percent of the total votes cast. If vote totals do not produce a winner, the two top candidates must have a runoff election. At -large -by -place — This does not refer to a geographical area; rather, each council seat is designated a position or a place number: Place 1, Place 2, and so on. Candidates must run for a specific place and the race is between can- didates filing for that same place. The majority vote re- quirement has been stated in charters as a rule, but cities accused of discriminating in the election method may find they must change to a plurality requirement, since this is believed to offer minorities a better opportunity to be elected in the "place" method of election. Minority groups have been critical of both types of at -large elections. The federal government has often agreed and mandated through the courts and the Justice De- partment that many cities in Texas convert from at -large to single -member district elections. The conversion began in the late 1970s and continues to spread to medium and smaller cities. 37 TeXas Home Rule Charters j,f i r ,sra <, i ,..�'� : / /,f ,i' cy ,., 2' The specific arguments proponents use for single - member district systems include: • provides direct representation by a single counci (member; • makes voting easier and assures greater accountability from those elected; • reduces campaign costs; and • gives less affluent and minority areas of the city representation. Proponents of at -large elections cite the following as advantages of this method of election: • promotes community -wide council vision; • fosters unity rather than divisiveness; • provides voters a "voice" in election of all members rather than just one; • eliminates restriction by districts, allowing election of any qualified person; and • avoids ward politics and political machines. Cumulative voting Examination of another election method of at - large voting is important. This method includes cumulative, limited, and bullet voting. Cumulative voting represents an al- ternative to the single-memher district form of representation that characterizes government on all levels in Texas and the United States. Cumulative voting systems allow voters to cast as many votes as there are seats on a particular board or com- mission. Candidates must run for a specific seat (e.g., seat #5) as they do in single -member district representation. How- ever, voters can use all their votes on a single candidate or distribute their votes among the contenders for several seats. Robert Brischetto and Richard Engstrom studied cumulative voting and noted that "Cumulative voting, in short, allows vot- ers to do more than choose among candidates, it allows them to express the intensity of their pref-rences as well." Cumu- lative Voting and Latino Representation: Exit Surveys in Fif- teen Different Communities 78 Social Science Quarterly 973 (1997). Cumulative voting permits the voter to cast his or her votes in the traditional way, but it also permits "intensity vot- ing." For this reason, it is argued that it will increase voter interest and participation in the election.27 Two variations of cumulative voting are in use in some jurisdictions —limited voting and bullet voting. Under limited voting, a voter has fewer votes than the number of po- sitions to be filled (e.g., two votes with three positions to be filled). A variant of limited voting is called bullet voting, in which voters can cast a single vote in a multiple -position elec- tion. With bullet voting, a minority candidate can be elected to office more easily than under the pure at -large system. The recognized Texas expert on cumulative voting is Dr. Delbert Taebel, Professor of Urban Affairs and Political Science at The University of Texas at Arlington. Dr. Taebel has written extensively on the general subject of alternative systems and is a frequent speaker to charter commissions and civic groups exploring election methods. Dr. Taebel and others argue that under any of these methods, the election outcome will more nearly reflect the major groups within a community without the rancor that sometimes accompanies single -mem- ber district systems. There is some evidence that ethnic mi- nority groups are now supporting cumulative voting instead of suing cities to adopt single -member districts. In May 1994, the City of Andrews, under threat of a lawsuit, adopted charter provisions to institute cumulative voting as its city council election method. The first city coun- cil election using cumulative voting occurred in May of 1995. An additional 16 small Texas communities, with populations ranging from 1,109 to 3,908, also adopted cumulative voting in response to lawsuits alleging voter dilution. Cities in Texas are not the only entities now utilizing cumulative voting. Thirty-two school districts and one hospital district have also adopted this form of voting in Texas. Cumulative voting is now used to elect local governing bodies, including cities, school boards and hospital districts, in 60 local governments in 5 states. Prior to this, only two cities in the country experi- enced cumulative voting —Alamogordo, New Mexico, and Peo- ria, Illinois, also in response to lawsuits. Alamogordo, under a consent decree in 1987, agreed to use cumulative voting for at -large positions in elections in 1987, 1990, and 1994. In March of 1997, voters there approved an amendment to the city charter and began the process to dissolve the use of cumulative voting. The charter language provided that "For the March 1998 City election only, the Commission shall con- sist of three (3) Commissioners elected at -large and one Com- missioner from each of four (4) districts, elected by the voters of that district in the March 1996 City election. A Commis- sioner representing a district shall be a resident of that dis- trict. Beginning with the March 2000 City election and continuing for all subsequent City elections, the Commission shall consist of one Commissioner from each of seven (7) dis- tricts, elected by the voters of that district. A Gnmmissioner representing a district shall be a resident of that district." Elections based on single member districts are still in place today. Peoria held an election for its at -large council seats by cumulative voting in 1991. A lawsuit settlement in 1990 ordered the city to use cumulative voting. The court order is in effect permanently, so Peoria will use cumulative voting for its at -large elections every four years. 38 Preferential voting One non-traditional election method appeared in two charters. Gorman, in its original charter of 1920, called for councilmembers to be elected by preferential voting. Sweetwater adopted its first charter in 1947 and followed suit. Gorman may have influenced Sweetwater since the two cities are only about 100 miles apart. Under preferential vot- El The city council - election and service ing, a voter marks his/her first and second choices for as many candidates as there are places to be filled. If no candidate receives a majority (more than 50 percent of the vote), the election officials go back to each ballot and count second choices until enough candidates to fill the vacancies receive a majority vote. The Gorman charter states that second choices shall be counted, but does not designate a weight for them. The Sweetwater charter is more specific. It says a first choice counts as one vote, and a second choice counts as one- half vote. The counting provision is now immaterial, be- cause Gorman has not used the system in at least 40 years, and Sweetwater discontinued it in the early 19BOs. Gorman now elects the council by majority vote; Sweetwater by plu- ra I ity. Variations of district elections The single -member district approach is the alter- native system that such groups as the National Association for the Advancement of Colored People (NAACP) and the Mex- ican -American Legal Defense Fund (MALDEF) have advocated since the mid-70s in Texas. They have argued, successfully in most cases, that a city council elected completely by this method provides the greatest opportunity for ethnic minority representation. Single -member district — The single -member district sys- tem divides the city into a specific number of geographical areas (wards or districts). For convenience, these districts are usually numbered: District 1, District 2, and so on. In a "pure" single -member district configuration, a candidate for District 1 must live in that district and is voted on only by voters in that particular district. The adjective "pure" also has been used by advocates to describe the election system for the entire city when all candidates, with the ex- ception of the mayor, are elected from single -member dis- tricts. "Pure" single -member district examples are San Antonio, Fort Worth, and Lubbock. A few Texas cities elect all members of the gov- erning body by the single -member district system. The council then elects a mayor from its own membership at the first council meeting after the election. This variation of the system can cause the mayor substantial problems. A former mayor of Pasadena, California, which employs these procedures, once remarked that when he was elected mayor by his colleagues, he was confused when he had to vote on an issue in a council session. He did not know whether he was supposed to represent "the city as a whole" as its mayor or the district that elected him. This problem alone would appear to be a sound reason for trying to avoid this type of election method. Variations of single -member district — A charter can re- quire candidates to live in a district, but be voted on city- wide for that seat. The reverse can be stipulated in the charter: a candidate can live anywhere in the city, can run for a seat in a district outside the area in which he lives, and stand for election only by voters in the district for which he filed. Both of these variations are in effect in a small number of Texas cities, and some of these cities re- ceived Justice Department sanction of these variations in earlier years. Mixed district — A number of Texas cities have charters allowing election of some councilmembers by district, with the mayor and one or more other councilmembers elected at -large. Advocates of this system say it cumbines the ad- vantages of both at -large representation and district or ge- ographical representation. Opponents believe it is a halfway measure to placate advocates of both systems and, as a result of the split, accomplishes neither purpose. Mixed system and majority/plurality voting — Mixed sys- tems (single -member and at -large) are used in a number of cities. The majority/plurality vote is used in Brownfield and El Campo. In these cities, the mayor is elected by majority vote, two at -large councilmembers by plurality, and five district councilmembers by majority vote. Except for the mayor, this is the type majority/plurality election that is many times sought by plaintiff minority groups and approved by the Justice Department. Many times, the Jus- tice Department requires the mayor to be elected by plu- rality. The reasoning behind the majority/plurality preference is that it is generally considered easier for a mi- nority candidate to be elected by plurality than by a ma- jority. Thus, the Justice Department has several times required both the mayor and at -large candidates to be elected by plurality. In contrast, in the single -member dis- tricts, presumably drawn to allow minority candidates to be elected in a minority district, the Justice Department has agreed to a majority vote. Unusual provisions Several cities have unusual provisions regarding single -member districts. Port Arthur and Victoria both have single -member districts covering the whole city, but also have "super districts" that overlay on top of the basic districts. Vot- ers have a vote for both a councilmember representing the basic district and one representing the super district. Local landmarks are used to divide the city in a version of single -member districts by Abilene and Vernon. Abi- lene requires three councilmembers to live north of the Texas and Pacific Railway mainline, which cuts the city in half, and three other councilmembers to live south of the track. Gatesville uses its Main Street as the dividing line, electing three councilmembers from the area north of Main Street and three from the area south of Main Street. Vernon uses a di- viding line that is described in the city charter. The citizens of Vernon elect two councilmembers from the east side of the line and two from west of the line. Both cities elect a mayor and the remaining councilmembers citywide. 39 Texas Home Rule Charters Some cities allow the city council to increase the number of wards periodically, such as the City of Woodway. Others, such as the City of Sherman, provide for additional councilmembers as the population increases. Currently, Sher- man's Charter provides for seven councilmembers. When the population reaches 75,000, two additional council seats will be added, bringing the total number of councilmembers to 9. The Jacksonville charter provides for a 5-member City council but authorizes future city councils to increase the number to seven and later to nine without a citizen vote of approval. Nei- ther option has been used as of 2009. Charters are not always clear about whether can- didates must live in the district from which they are elected or whether the vote is by district or at -large for councilmem- bers. An example of excellent wording, which has been in- cluded in city charters is as follows: "(Council)members shall be residents of and elected by qualified voters of single -mem- ber geographical districts of the city." Redistricting commissions Charter experts generally recommend that city councilmembers themselves not draw district lines. This ad- vice has fallen on deaf ears. All but Dallas and Laredo simply state that the city council shall redraw lines when necessary and usually specify a certain period of time within which they must examine the lines. These two cities each provide for ap- pointment of a redistricting commission. The Dallas commis- sion has 15 members, and the Laredo commission has 16. But both commissions are advisory. The city council is the final judge of the lines. Survey results of council election methods The at -large -by -place system is still the most pop- ular in the Texas home rule cities, but by a significantly smaller margin than in previous years. At -large: 13% At -large -by -place: 45% Single -member district: 26% Combination at -large and single -member district: 16% *This chart uses 1994 data, but other aspects of the recent survey indicate that the numbers are essentially the same. Mayor and council elections As a part of the questionnaire sent to city officials, each respondent was asked to enter the dates and voter turnout of the last two mayor and council elections. If neither of those two were contested, the official was asked to go back to an election in which there were at least two candidates and to enter that race also. Our objective was to verify the premise that contested races have much higher turnout than uncon- tested races. Not all cities completed this portion of the ques- tionnaire, but we were able to list 262 contested elections over the past two elections and 139 elections in which no one had any opponent. Overall, voter turnout was not something to be proud of. In the 262 contested races, only 13.24 percent percent of the registered voters bothered to show up; that comes to 7.68 percent of the total population reported by the cities. Percentage of Registered Voters Voting High Reported Low Reported 1994 2008 1994 2008 Cities under 10,000 64.7% 80.9% 3.9% 2.45% Cities 10,000 - 50,000 48.2% 43.3% 1.9% 2.60% Cities over 50,000 48.2% 21.5% 7.6% 4.60% As might be expected, the votes cast in non -con- tested races were abysmally low. The average for the 101 races was 10.6 percent of the registered voters, or about 5.5 percent of the reported population. Most cities, regardless of the election system used, have tried to schedule the terms of office in order for at least one citywide race (or alternatively, all district elections) to come up each time there is an election, in order to encour- age a higher turnout. This is not possible in every city; hence, the figures above are somewhat lower than they would be if we used only elections in which every voter in the city had a race in which he/she had a vote. Terms of office Although Texas charters overwhelmingly call for staggered two-year terms for mayors and councilmembers, it would nevertheless be pertinent to discuss, at least briefly, the generally cited advantages of two, three, and four-year terms, and of staggered versus concurrent terms. Two-year term: The principal advantage of the two-year term is that it requires coun- cilmembers to submit themselves frequently to the voters. It also permits citizens to serve as councilmembers for short periods of time. The disadvantage of two-year terms is that they require an almost constant campaign readiness for those members who wish to ex- tend their council service, or for potential op- ponents. For new members, two years is a short time to become acquainted with the in- 40 The city council - election and service tricacies of city government and to learn two incumbents or for two newcomers would about the problems of city agencies and pro- not necessarily change the stance taken by grams or those parts of the city with which the council prior to election. they may have had no prior experience. Three-year term: A three-year term's princi- Term limits pal advantage is that it lengthens the period of service before facing the voters, giving a Perhaps no legislative issue in many years has member time to compile a record and giving evolved with such gathering momentum as term limits. Orig- a new member time to become proficient in inally proposed for members of the U.S. Congress and, in the job. The three-year term also clearly dif- some states, for state -elected officials, term limits have now ferentiates council service from other public come to the local level. Actually, they may have started at the offices. It is a long enough time to a(.r.nm- local level in Texas. The citizens of the North Texas city of plish something, but too short to feel like Paris placed a two -term (four-year) limit on their city council there is a lease on the position. when they adopted their first home rule charter in 1948. A few other cities adopted such provisions in the 1970s, but The principal disadvantage of the three-year the real movement did not start until the late 1980s. Today, term is that one of every two municipal elec- 41 percent of Texas home rule cities have limits on the num- tions will fall in a state or national election ber of consecutive years their mayors and city councilmem- year. It could necessitate a separate elec- bers may serve; the form of government or size of the city tion, producing some voter confusion. There appears to have very little influence on voter adoption of term is also some prospect that the partisanship limits, of state and national elections would be car- Arguments rage back and forth over the merits of ried over into city elections. the "term limits" movement. Opponents generally include political scientists and so-called "urban experts" who insist Four-year term: Most observers of govern- that voters have the ability to terminate any elected official's ments tend to feel that four-year terms en- career by merely turning him/her out at the polls. Proponents courage those elected to them to invest more of term limits maintain that advantages of incumbency, both time in working on substantive and larger in campaign finance and in name recognition, deter or block problems of government, rather than thinking the termination vote. They argue that term limits are neces- about campaign strategy, and to become sary to bring "government back to the people." Along with a more proficient in policy issues. widespread distrust, or at least suspicion of government, this "back to the people" plea accounts for term limit elections Longer terms can, however, work to increase passing across the country with generally wide margins. the insulation of elected officials from the Whatever the merits, term limits appear to be here to stay; electorate; although, the many arenas for di- thus, this book will examine the charter provisions in Texas rect contact with constituents in city govern- cities and analyze the trend to 2008. ment appear to make this a far less severe One of the obstacles to analyzing this movement problem than it is for members of Congress is the wide variation in charter terminology. It is impossible or state legislatures.2' to ascertain in a few cities whether the limits apply to com- bined service of one person as a mayor and councilmember Staggered terms: More than 95 percent of or whether the two offices are meant to be considered sepa- Texas charters call for staggered terms. rately. An equally formidable obstacle is the absence of any Charter drafters in Texas have obviously felt case law history and the resulting proliferation of different in - that it is desirable to have some continuing terpretations. experience on the city council and avoid a Term limits in charters are expressed in one of two wholesale turnover of city councilmembers. ways. One way is to have separate limits for the mayor and Staggered terms do tend to provide some sta- members of the council. A typical charter with this type limit bility on the council. On the other hand, they is Friendswood. That charter states: "The mayor and coun- also thwart the will of the people to make a cilmembers shall be elected to serve for three-year terms as major change of direction. For example, with provided below, but no person shall be elected to serve in the a five -member council and two-year stag- capacity of councilmember for more than three consecutive gered terms, three members would come up three-year terms, nor shall any person be elected to serve in for election one year and two the next. If the the capacity of mayor for more than three consecutive three - council had taken or failed to take a stand on year terms." a major issue before the election year when two members were running, the vote for the 41 Teas Rome Rule Charters The other way to express limits is to count service as mayor and service as a councilmember together. The charter of the City of Rockport is very straightforward. It states; "No person shall serve more than ten consecutive years on the City Coun- cil." The statement to look for here to assure that the mayor is included in the definition of "City Council" is this additional statement found in the Rockport charter: " I he legislative and governing body of the City shall consist of a Mayor and four Councilmen and shall be known as the City Council of Rock- port." Separate limits on years of service A total of 36 cities have separate limits for mayors and councilmembers. The most popular limit for these cities is six years for each of the offices. This includes cities that have a three -term limit on two-year terms, as well as cities that have a two -term limit on three-year terms. The full break- down by limit in years is as follows: Cities in which Limit in years Cities in which the mayor has councilmembers have separate limits separate limits 93 4 7 18 6 18 9 8 10b 2 9 2 Total Cities: 38 37 Jacksonville and Waco have limits on mayors, but not on the council. "Pearland has limits on councilmembers, but not on the mayor. *This chart uses 1994 data, but other aspects of the recent survey indicate that the numbers are essentially the same. The chart above considers limits in one of the two positions — mayor or councilmember. In this type of language, a councilmember could serve his/her limit of, say, six years, and then run and be elected as mayor and serve another six years. Assuming both posts carry six -year limits, one individ- ual could legally serve 12 years. It should be noted that these limits have been constrained in six cities by imposing "combination" limits. For example, in Graham, although the mayor and coun- cilmembers have six -years limits individually, the charter lim- its any combined service in those two positions to ten years, not twelve years. The following chart portrays the maximum num- ber of consecutive/successive years a person could serve as council mP.mhPr nr mayor under the separate limits category: Limit on years Number of cities of service 10 1 12 15 16 8 18 2 Total cities: 36 *This chart uses 1994 data, but other aspects of the recent survey indicate that the numbers are essentially the same. Counting service years together Thirty cities combine mayoral and councilmember service into a single -term limit. The Rockport charter is an example: only "ten consecutive years" on the council. When examining these charter provisions, we find the following term limits: Limit on years of service Number of cities as member of city council, including mayor 4 2 6 19 8 3 9 1 10 3 (five two-year terms) 12 2 Total cities: 30 *This chart uses 1994 data, but other aspects of the recent survey indicate that the numbers are essentially the same. Charter language on term limits Since "model" language has not evolved on this subject, current charter language varies widely. Many charters simply place a limit on "consecutive" or "successive" terms, leaving unanswered the question whether a person appointed or elected to a partial term loses some of the time that might otherwise be allowed. Occasionally, a charter will clearly state that "a portion of a term" does not count as a term of office 42 The city council - election and service for purposes of a limit. Some charters use the word "full term" or "re ular term." These are generally interpreted to mean that if a person comes into a partial term, the partial time will not count toward the limit. Several cities require a person to "sit out" one year or one term before running for office again (one city re- quires that an individual must sit out 30 months). Whether this means that in the other cities a person reaching his/her maximum can never come back is unknown. Two cities do state that the term limit is for the "lifetime" of the individ- ual. Finally, a charter should make it clear whether the limits apply to current councilmembers. Several charters spell this out. Most do not at the present time. In summary, the term limit movement is still rel- atively young. If a city does not have this kind of provision in its charter and desires to have a charter amendment election, offi- cials are urged to carefully review with the city attorney the language to be used in order to avoid some of the ambiguities identified. In May 1994, Austin adopted a charter amendment limiting terms of office, but did provide that if an incumbent councilmember, when his/her limit of terms have been reached, can get a petition signed by five percent of the qualified voters in the city, his/her name shall go back on the ballot. Houston adopted such an amendment in 1991, had several councilmembers qualify under the petition route in the 1993 election, and decided at a January 15, 1994 election to rescind the petition by- pass. Thus, Houston's term limits have no exception to them. Qualifications for office Early Texas city charters included a detailed and lengthy list of qualifications for the prospective mayor or city councilmember. The first officeholders and voters had to be white, male, and citizens of the Republic. Several cities also had property and residence requirements. The original Galve- ston charter in 1840 required the mayor to own $1,000 worth of property. A number of charters still require ownership of property within the city and no indebtedness to the city, plus three years residence in the city before filing as a candidate. Arguably unenforceable, these provisions in current charters are historical reminders of practices before state law and court cases established the controlling criteria for qualifications of all public officials. For more than 30 years, state law has set forth re- quirements to run for public office in Texas and these require- ments apply to candidates for the governing bodies of Texas home rule cities. in addition, federal court cases have held that a city may not require an officeholder to be an owner of property and may not refuse to seat a councilmember for being delinquent in taxes to the city. The Election Code criteria are set out in Section 141.001. Under that section, a candidate must: (1) be a United States citizen, (2) be 18 years of age or older upon the commencement of the term to be filled at the election, (3) have been a resident of Texas for at least 12 months as of the deadline for filing for the office, (4) have resided in the city for at least six months as of the deadline for filing for the office, (5) not have been convicted of a felony for which he or she has not been pardoned or otherwise released from the resulting dis- abilities, and (6) not have been found mentally incom- petent by a final judgment of the court. Exceptions for home rule cities The Election Code authorized home rule cities to make two exceptions: (1) the charter can require council can- didates to be up to 21 years of age, rather than 18, upon the commencement of the term to be filled at the election; and (2) the charter can require candidates to be residents of the city for LIP to 12 months, rather than six months, as of the deadline for filing for office. Virtually every charter in the state says a candi- date must be a qualified voter. This is not required by state law, but a home rule city may include this requirement in its charter. Despite the provisions in the Election Code, some cities still amend their charters to add requirements that are not enforceable. In earlier days, charter writers might have been accused of placing unenforceable qualifications in the charter in an attempt to discourage citizens who might other- wise consider filing for office. It is believed that today's char- ter writers are simply not aware of the state law limitations that supersede any charter language. One disqualification for office that some charters have addressed is dual office -holding. There are two distinct legal barriers to holding more than one public office at the same time: (1) the Texas constitutional prohibition against dual office -holding; and (2) the common law doctrine of in- compatibility. All three of these barriers are too complex to dis- cuss in detail in this publication. Any mayor or councilmem- ber contemplating elective or appointive office in another 43 Texas Home Rule Charters governmental entity would be well advised to consult with the city attorney before making any definitive moves. Some charters provide that city employees must resign before they can run for the city council in their own city. Provisions of this type have. heen struck down by the courts for city employees covered under the state fire and po- lice civil service law.29 Financial disclosure The Colleyvilie, Friendswood, and San Marcos charters each have provisions that candidates must file fi- nancial disclosure statements with the city secretary before any election in which they are a candidate. Chap- ter 145 of the Local Government Code, en- acted in 2003, now mandates financial dis- closure for certain can- didates and officials in cities over 100,000 in population. Filing requirements The Election Code is very specific in regard to a candidate filing for a place on the govern- ing body of a city. (a) A city charter may prescribe require- ments in connection with a candi- date's application for a place on the ballot for an office of a home rule city. This section does not authorize a city charter requirement in connection with the timely filing of an applica- tion, and any charter requirement re- lated to an application's timely filing is Superseded by Section 143.007 and other applicable filing provisions prescribed by the code. (b) If a city charter prescribes the re- quirements that a candidate's appli- cation must satisfy for [fie candidate's riarne to be placed on the ballot, Sec- tion 141.031(4)(L) also applies to the application.* The other provisions of Section 141.031 do not apply. (c) If a city charter requires candidates to pay a filing fee, the amount of the fee and an alternative procedure to pay- ment of the fee shall be prescribed by the charter or by ordinance under charter authorization. However, if an ordinance prescribing an alternative procedure to payment of a filing fee is adopted before the effective date of this code without charter authoriza- tion, the ordinance, as it exists on the effective date of this code, continues in effect until the adoption of a char- ter provision prescribing an alternative procedure or authorizing prescription of an alternative procedure by ordi- nance. (d) For any petition required or authorized to be filed in connection with a can- didate's application for a place on the ballot for an office of a home rule city, the minimum number of signatures that must appear on the petition is the greater of: (1) 25, or (2) one-half of one percent of the total vote re- ceived in the territory from which the office is elected by all candidates for mayor in the most recent mayoral general election. (e) If the city charter of a home rule city with a population of more than 1.8 million, that holds nonpartisan elec- tions for its offices, requires both a petition and a $50 fee to be filed for a candidate's name to be placed on the ballot, those requirements super- sede this section. "Section 141.031(4)(L) referred to above requires a statement that the candidate is aware of the nepotism law, Section 573.041 of the Govern- ment Code, et seq. 44 A The city council - election and service Compensation for city council Salaries of city councils have received a great deal of attention, particularly in the larger Texas cities. The first question is to decide whether compensation should be estab- lished in the charter or by ordinance. Although some charters address the matter of compensation for councilmembers, there are a number of charters that are completely silent on the matter. Where this is the case, the Local Government Code, Section 141.004, authorizes councils to establish a salary for themselves by ordinance. Fringe benefits for city council Weatherford (a council-manager city) and Bay City (a mayor -council city) are examples of cities that give specific consideration to fringe benefits for councilmembers in their charters. The Weatherford charter says the mayor and council "shall be entitled to employee benefits, which may be paid for by the City of Weather- ford." The only fringe benefit in- volved currently is health insurance, and the mayor and council are covered under the same con- tract in effect for the city's full-time employees. The Bay City charter authorizes the council when it adopts the budget to "offer the mayor any fringe benefits available to other full- time employees including but not limited to health insurance and retirement." In a later section, the charter says coun- cilmembers "shall be offered any group health insurance available to full-time city employees." Since the Bay City mayor is a full-time position, the person in that position is fur- nished health insurance, as are other full-time employees, and is covered under the city's retirement system. City coun- cilmembers are entitled to apply for the health insurance plan covering full-time city employees but must pay the premium themselves. The Weatherford provision has been in the charter since a charter amendment was adopted in 1983. The Bay City provision is a part of the city's first charter, adopted in 1989. Voter attitudes toward public officials today may be the reason other cities have not considered fringe benefits. Charter writers may suspect the topic would receive a cool re- ception. In the past, it was assumed that councilmembers had fringe benefits from their "regular jobs," and that most would serve their city only a few years. (The movement toward term limits in some cities could mandate a short term of serv- ice.) However, fueled by political or economic trends, the issue of fringe benefits for elected officials will continue to draw attention in the future. Council staff The use of council staff was not surveyed since it is not covered in any city charter. Staff members, employed and supervised solely by councilmembers, usually are author- ized in annual operating budgets; many times there is no basis by ordinance or resolution for these pusitions. Personal liability of councilmembers Under the Texas Tort Claims Act, city governments may be liable for damages resulting from the actions of coun- cilmembers and other city officials. However, this Act does not speak to the issue of individual and personal liability of mayors and councilmembers. Federal courts have usually held that councilmembers are not personally liable for torts resulting from official actions, so long as they are made in good faith. However, the federal courts in the 1970s began to narrow the boundaries of immunity from personal liability of local officials for their official acts. Generally speaking, Texas courts have held that councilmembers are not personally liable for torts resulting from "discretionary" acts, but are liable for torts resulting from "ministerial" acts. A discussion of these legal defini- tions and rulings is beyond the scope of this book. Their im- plications, however, are important now and for the future. At least three charters in the state address this problem with an attempt to set forth "indemnification" or "hold harmless" clauses to protect their councilmembers. Longview and Missouri City have specific clauses that pre- sumably shift the financial burden of claims from the individ- ual councilmember to the city. Garland's charter mandates that the city provide liability insurance coverage for its offi- cials. Under Miscellaneous Provisions, the Charter states, "The City shall provide liability coverage to all officials and officers in a minimum of 5 million dollars to provide protec- tion..." Because of the complex nature of this subject, in- dividual officeholders are encouraged to consult their city at- torney about the appropriateness of a charter provision or an ordinance to address personal liability. An excellent brief dis- cussion of this subject is contained in TML's Handbook for Mavors and Councilmembgrs. (See Bibliography.) 45 Councilmembers are the city's legislators, and their primary duty is policymaking. This demands constant alertness to citizen needs, responsive program planning for current and changing needs, and continuing evaluation of the quality of service provided by city administrators. A councilmember, like elected members of any policymaking hody, has a number of roles —working with fellow members; voting on all issues unless there is a conflict of in- terest; and pursuing personal community initiatives (often enumerated during the campaign) through motions, resolu- tions, and ordinances. Orientation for the job Organiza- tional meeting Only one item of business is a "must" for the first post -election coun- cil meeting: taking the oath of office. The oath of office mandated for all public officials is in the Texas Constitution, Article XVI, § 1 (Appendix G). Elected councilmembers and appointed officials are admin- istered the same oath. A second item of business is often taken up at the first meeting and that is the election of a mayor pro tem. This individual performs the duties of the mayor in the mayor's ab- sence. The mayor pro tem is selected by a majority vote of the council, The term can be for the length of the coun- cilmember's term, or as in several cities, rotated periodically. In some larger cities, a deputy mayor pro tem is elected to distribute the ceremonial duties a little further. Powers and duties of the council Because the councilmember's powers and duties derived from charter provisions dictate what can and cannot be done in council meetings, powers will be reviewed before the council meeting process. Most city charters distinguish between the powers of the city as a whole and the powers of the city council. The charters of the cities of Killeen, Muleshoe, and Rich- land Hills provide a fairly typical recitation of council powers in a council-manager city. The following listing is a combination of pow- ers found in the char- ters of one or more of these cities. All powers of the City and the determina- tion of all matters of policy shall be vested in the City Council. Except where in conflict with and otherwise expressly provided by this charter, the city council shall have all powers authorized to be exercised by the city council by Chapter 4 of Title 28, Vernon's Annotated Civil Statutes (ed. note: now the Local Gov- ernment Code), and acts amendatory thereof and supplementary thereto, now or hereafter enacted. Without limitation of the foregoing and among other powers that may be exer- cised by the council, the following are hereby enumerated for greater certainty: 47 TeUS Home Rule Charters (1) Appoint and remove the city manager. (2) Establish other administrative departments and distribute the work of divisions. (3) Adopt the budget of the city. (4) Authorize the issuance of bonds by a bond ordinance. (5) Inquire into the conduct of any office, de- partment, or agency of the city and make in- vestigation as to municipal affairs. (6) Appoint all commissions, boards, commit- tees, task forces, and/or appointed groups to assist the Council in the performance of its duties and responsibilities; such powers sub- ject to the restrictions of the Charter and the laws of the State of Texas. (7) Fix the salaries and compensation for the non -elective City officers and employees. (8) Adopt and modify the zoning plan and the building code of the city. (9) Compromise and settle any and all claims and lawsuits of every kind and character in favor of or against the City. (10) Adopt plats. (11) Adopt and modify the official map of the city. Appointments In council-manager cities, three officials, in addi- tion to the city manager, are usually appointed by the city council: the city secretary, city attorney, and judge of the mu- nicipal court. Some charters discuss these offices in the city council article, but most either have separate articles on each of these officials or cover them, as we will, in a combined fashion in an article on "Departments, Offices, and Agencies." (See Chapter 13.) Several charters also have a provision in the coun- cil article for appointment of boards and commissions. In fact, a few charters employ considerable detail naming the boards and commissions that the council is authorized to ap- point, listing basic procedures for board operation, and stating member qualifications and board composition. (See Chapter 13.) Finally, in addition to the powers and duties found in this article, the city council's authority is frequently referred to in other articles of the charter, including particular articles on franchises; issuance of debt; and initiative, referendum, and recall. City council meetings The setting for most of the discussing and "cussing" of a city's problems is the council meeting. It is important, and possibly a matter of self preservation, to know the basic "ground rules" for these sessions. Council meeting basics The following is a listing of how various charters treat some of the basic matters regarding council meetings: Frequency of meetings — Virtually every charter pro- vides for a minimum number of sessions —once or twice a month or, in the case of larger cities, perhaps weekly. This study's comparison of charter provisions and the information in the TML membership directory reveals that most city councils meet more often than the charter requires. Open meetings — Council meetings are covered under the state Open Meetings Act. This state law super- sedes any less restrictive charter provision. The Texas Supreme Court has ruled that if a city charter is more restrictive regarding open meetings than the state law, then the charter prevails. State law allows ex- ceptions to the Open Meetings Act for discussion of certain enumerated subjects. However, a city's word- ing that: "All meetings of the council shall be open to the public," without any qualification, means lit- erally what it says. If a city with this wording is chal- lenged, it has no defense in citing the exceptions to the law. A more restrictive charter rule supersedes the state act! The preferable charter wording is, "All meetings of the council shall be open to the public except as allowed by state law." Quorum — cilmember required tc take actior The minimum number of attending coun- is usually spelled out. For the coun- cil to take offi- cial action, the charter's quorum provi- sion must be followed. City charters are divided on the portion of the city council required to be present in order to enact ordinances, resolutions, and so on. Several cities specify a quorum of five, for example, when they have seven -member councils. But how many votes are required to take an action? Of the Texas charters that address this issue, 16 percent specify that it takes a "majority of the total council to take action on any matter." That would be four for a seven -member council. Many other communities, 32 percent, allow action by a "majority of a quorum". 48 The city Council dS d legislative body The majority of cities, 52 percent, allow for action with only a "majority of those present." For a seven - member council with a five -member quorum, that could be as few as three persons. Some charter ob- servers insist it should take a majority of the total council to bind the city to an action. Others have no problem with three persons, using the example of a seven -member council, taking action on the part of the city. Agenda — Very few charters address agenda prepara- tion for council meetings. In council-manager cities, it is generally considered the responsibility of the manager, who honors requests for items from the mayor and council. Similarly, in a mayor -council city, the agenda subjects are usually considered to be those first listed by the mayor. The City of Webster council-manager charter has a simple and common paragraph on the council agenda. It states: Agenda - Items may be placed on the agenda by the mayor or by consensus of three councilmembers prior to the next agenda to be posted. Citizens to be heard — A minority of charters have specific provisions for hearing from citizens during council meetings. Such time is provided by most cities, however; although neither stated nor guided by the charter. Typically, a city council will adopt rules regarding citizens to be heard. There are many is- sues to consider when developing this policy includ- ing whether a citizen will be required to sign -in prior to the meeting and indicate which topic they would like to speak about, when the citizen may speak, the length of time he may speak, etc. There are many more issues that councilmembers should review in developing the city's policy and should consult with the city attorney to assure proper procedures are adopted. Rules of procedure generally — Charters usually do not contain detailed council procedures. They are considered subject to change from council to council and thus are most likely found in a handbook of pro- cedures adopted by resolution of the council. Consideration and passage of ordinances the distinction between ordinances and resolutions. The dis- tinction is in subject matter, not terminology. An ordinance is more formal and authoritative than a resolution; it is a local law that usually regulates persons or property and usually re- lates to a matter of general and permanent nature. On the other hand, a resolution authorizes action on an accompany- ing document; for example, it is used to authorize the mayor or city manager to sign a contract for supplies or building con- struction. There are certain state statutes that prescribe sub- jects which must be enacted by ordinance. The NCL model city charter has five sections within the article on the city council that discuss the passage and recording of ordinances. They are: • action requiring an ordinance; • ordinances in general (discusses form and procedures); • emergency ordinances; • codes of technical regulations; and • authentication and recording, codification, and printing of ordinances. Many Texas charters contain section titles similar to the model charter. Action requiring an ordinance In addition to actions required by state law to be enacted by ordinance, many Texas charters require any basic changes in the administrative structure of the city, regulation of land use or development, and all matters relating to fran- chises to be enacted by ordinance. As in most matters re- garding formal action by the council, the city attorney should be utilized by the council to guide the appropriate action. Form of the ordinance State law does not prescribe the form of an ordi- nance, except to require an ordaining clause (Section 52.002 Local Government Code) and authorization for publication of either the complete text or the caption of every ordinance that establishes penalties for violations (Section 52.013 Local Government Code). A form has evolved through the years and is now used by most cities. This and other information re- garding ordinances is in the Handbook for Mavors and Coun- cilmembers, a publication of the Texas Municipal League. Some charters have gone beyond state law in their requirement for publication, multiple readings, and other pro- cedures designed to assure adequate notice to the citizens of key matters covered by ordinances. Action by the city council on important policy or contractual issues is generally accomplished by ordinances or resolution. Some Texas city charters spell out in great detail the various requirements and procedures for adoption of ordi- nances; others have brief paragraphs referring to applicable state laws. Few charters address the purpose of resolutions or the procedures for adoption. It is important to understand 49 Texas Home Rule Charters Emergency ordinances A number of Texas charters contain procedures for the enactment of emergency ordinances. Such charters fre- quently follow the language in the NCL model charter; al- though in some instances, that wording is shortened. To meet a public emergency affecting life, health, property, or the public peace, the city council may adopt one or more emergency ordinances, but such ordinances may not levy taxes, grant, renew or extend a franchise, regulate the rate charged by any public utility for its services or authorize the borrowing of money except as provided in 5.07(b) An emergency ordinance shall be introduced in the form and manner prescribed for ordinances generally, except that it shall be plainly designated as an emergency ordi- nance and shall contain, after the enacting clause, a declaration stating that an emergency exists and de- scribing it in clear and specific terms. An emergency ordinance may be adopted with or without amend- ment or rejected at the meeting at which it is intro- duced, but the affirmative vote of at least members shall be required for adoption. After its adoption, the ordinance shall be published and printed as prescribed for other adopted ordinances. It shall become effective upon adoption or at such later time as it may specify. Every emergency ordi- nance except one made pursuant to 5.07(b)* shall automatically stand repealed as of the 61s1 day fol- lowing the date on which it was adopted, but this shall not prevent reenactment of the ordinance in the manner specified in this section if the emergency still exists. An emergency ordinance may also be repealed by adoption of a repealing ordinance in the same manner specified in this section for adoption of emer- gency ordinances. *Section 5.07(b) is a section in the model dealing with emergency appropriation of money. Texas state law does not address the passage of emergency ordi- nances. If the charter drafters in a particular city determine that one reading of an ordinance should be sufficient to enact it into law, then no provision for an emergency ordinance is neces- sary. Codes of technical regulations A number of charters establish procedures to ab- solve the city from having to reprint, as part of an ordinance, the voluminous technical regulations issued by recognized na- tional or international professional organizations and instead adopt the codes by reference. Commentary from the National Civic League on home rule charters notes that codes, such as building and sanitary codes, are often detailed and lengthy, and that the NCL charter provision allows a city to simply adopts the code by reference in an ordinance. The NCL, as well as numerous cities across the country, recognize this charter provision minimizes burden and expense while at the same time preserves the essential safeguards required for adopting an ordinance. The San Juan charter contains a typ- ical provision in this regard: SECTION 2.14 CODES OF TECHNICAL REGULATIONS: The City Commission may adopt any stan- dard code of technical regulations by refer- ence thereto in an adopting ordinance and as provided elsewhere by this charter. The pro- cedure and requirements governing such an ordinance shall be as prescribed for ordi- nances generally except that: (1) the requirements of governing law for distribution and filing of copies of the ordi- nance shall be construed to include copies of the code of technical regulations as well as of [tie adopting ordinance, and (2) a copy of each adopted code of technical regulations as well as of the adopting ordi- nance shall be authenticated and recorded by the city secretary pursuant to subsection 2.15 (A). Copies of any adopted code of technical reg- ulations shall be made available by the city secretary for distribution or for purchase at a reasonable price. Authentication and recording, codification, and printing of ordinances Charters generally instruct the city secretary to au- thenticate a properly enacted ordinance by signing and record- ing such ordinance in full in a properly indexed book reserved for this purpose. Many charters call for the mayor to sign all ordinances, but most also have a clause prohibiting invalida- tion for lack of a signature. Chapter 53 of the Local Government Code author- izes codification of a city's ordinances, including the state- ment in Section 53.005 that a municipal code of ordinances has the force. and effect of an ordinance regularly adopted in accordance with law. 50 A The city council as a legislative body Summary statement regarding ordinances Because of the wide variation in charter provisions regulating adoption of ordinances, this publication makes no attempt to conduct a physical count of each specific section in each charter. The use of the descriptive words "many char- ters" or "some charters" is admittedly very general but is an attempt to give some estimate of the occurrences of specific requirements found in Texas charters. The complex nature of ordinances necessitates a very brief treatment here. Councilmembers and charter com- mission appointees can gain a deeper understanding and knowledge from the Handbook for Mayors and Councilmem- bers and from their city attorney. Prohibitions This succinct heading, a common one in Texas charters, lists actions that the city council cannot take. Sub- sections B and C, quoted here from the Missouri City charter, are recognized as essential charter provisions to undergird a sound council-manager relationship. Councils are required in these subsections to deal with department heads and other employees solely through the city manager, except for infor- mation inquiries. If a councilmember is not satisfied with the manager's response to an expressed concern about an em- ployee, the next step is another conference with the manager, not contact with the employee behind the manager's back. The Missouri City charter section on "Prohibitions" is specific and typical of other such charter statements. A. Holding Other Office: Except where author- ized by law, no Mayor or Councilmember shall hold any other City office or City em- ployment during his term as Mayor or Coun- cilmember, and no former Mayor or Councilmember shall hold any compensated appointive City office or City employment until the passage of one (1) year after the ex- piration of his term as Mayor or Councilmem- ber. B. Appointments and Removals: Neither the Council nor any of its members shall in any manner dictate the appointment or removal of any City administrative officer or employee whom the City Manager or any of his subor- dinates are empowered to appoint, but the Council may express its views and fully and freely discuss with the City Manager anything pertaining to any such officer or employee. C. Interference with Administration: Except for the purpose of inquiries and investigations under Section 3.17, the Council or its mem- bers shall deal with City officers and employ- ees who are subject to the direction and supervision of the City Manager solely through the City Manager, and neither the Mayor nor a Councilmember may give orders publicly or privately to any such officer or employee. The prohibition language quoted above is from a council-manager charter. Some mayor -council charters con- tain these same prohibitions against council interference with the mayoral appointments of department heads, but the sec- tion is not found nearly as frequently in mayor -council charters as in council-manager charters. A few cities place language regarding political ac- tivities, acceptance of gifts, and other prohibitions in this sec- tion of the city council article, but most charters utilize the "General Provisions" article at the end of the charter to cover these and other miscellaneous topics (See Chapter 17). Investigations A section on council investigations is found in vir- tually every charter regardless of form of government. This provision is not in conflict with the previous prohibitions, but is designed to give the council authority to make investiga- tions into city operations when such action is necessary. This section is —and should be —used very sparingly. When it is nec- essary to invoke this section, it generally means there is some- thing amiss in city operations. The Rosenberg charter contains a rather typical paragraph on this power: Sec. 3.13. Investigation by the city council. The city council shall have power to inquire into the conduct of any office, department, agency, officer, or employee of the city and to make investigations as to municipal affairs, and for that purpose may subpoena witnesses, administer oaths, and compel the production of books, papers, and other evi- dence. Failure to obey such subpoena or to produce books, papers, or other evidence as ordered under the provisions of this section shall constitute a mis- demeanor, Annual audit Under Sections 103.001-103.004 of the Local Government Code, every city is required to have an annual audit of its financial records and accounts. The audit can be performed either by a certified public accountant or a quali- 51 TeDS Home Rule Charters fled city employee, and must be made available for public in- spection no later than 120 days after the close of the city's fiscal year. Although state law allows the audit to be con- ducted by a city employee, virtually all cities require an out- side firm or individual who has no connection with the city whatsoever. The audit involves examination of three aspects of the city's financial operations: (1) internal controls; (2) statements, records, and accounting transactions; and (3) compliance with statutory and budgetary requirements. Prop- erly conducted, the audit provides a double check on the city's financial status, a method for communicating with the citi- zenry, and a bona fide statement of the city's financial condi- tion. The provision for the audit can sometimes be found in the finance article of the charter. There are charters that have no provisions for an annual audit. It could be ar- gued this is irrelevant because state law controls. Most char- ter observers suggest, however, that this is a place where state law should be repeated in the charter or listed in an appendix, providing the citizen reading the charter with a greater sense of security. A few cities have a limit on the numbers of con- secutive years that one individual or firm can audit the city. Most cities leave it up to the governing body to decide whether to employ a different firm after a period of time. The Texas City charter is representative of what charters generally con- tain on the audit: Sec. 13. Annual audit. As soon as practicable after the close of each fiscal year, an independent audit shall be made of all ac- counts of the city government and corporations estab- lished by the city. The certified public accountants, appointed by the commission, shall have no personal interest, directly or indirectly, in the financial affairs of the city or any of its officers. The scope of the audit shall require a limited review of city -owned property and the results shall be reported with each annual au- dited financial report. Upon completion of the annual audit, the combined balance sheet thereof shall be published in the official newspaper of the city within thirty (30) days of commission acceptance of such audit. Copies of all audits shall be placed on file with the city's public library, the director of finance and the city secretary. Internal auditor Three large cities have provisions in the charter for council appointment of an internal auditor. In Dallas, the individual is appointed by council and "shall hold the office for a two year period" at which time council can make a de- termination whether to renew the individual for another two year term. In Austin, the auditor is appointed directly by the City council. The charter provision is brief and utilizes an or- dinance to clarify the auditor's duties and relationships with the council, audit committee, and city manager. In Fort Worth, the charter was recently changed from the person being rec- ommended by the city manager and appointed by the council to the auditor "shall be selected by the Council and shall be responsible to the Council." Absences from council meetings Over 50 percent of charters have provisions for re- moving a councilmember who regularly misses council meet- ings. Most of them state "absence from three consecutive regular meetings" is grounds for removal. Of course, illness or other compelling reasons relieve the councilmember from this requirement, but excuses are expected to be filed ahead of time except in emergencies. The "absence" language comes from state law governing Type A general law cities. Other charters include a variety of phrases regu- lating council attendance. The Alpine charter states that a member forfeits one-half monthly salary for each council meeting missed without excuse. Colleyville requires a mini- mum of 75 percent attendance during a year, and Mansfield requires 80 percent during a year. Others mandate a maxi- mum number of meetings that can be missed in a six-month period. Curious as to whether this requirement was en- forced even when the charter states "the councilmember shall be removed from the council," (emphasis supplied), we con- tacted city officials of cities in which these provisions exist. Although the great majority of cities indicated councils were reluctant to enforce these provisions, even to the extent of granting excused absences "after the fact," we did find sev- eral cities that had followed through with removal action. Both Mercedes and The Colony have the "three consecutive regular meetings" phrase, and both cities have ousted councilmem- bers who failed to attend the requisite number of meetings. In one city, a councilmember was indicted for a felony and jailed. The member had not yet been convicted of the felony dial would rneet the requirements for disqualitication under state law. However, the member was not able to attend meet- ings because of his incarceration, and the council took action under the absence phrase in the charter. The individual re- moved did not pursue the matter. Huntsville reported that a councilmember did resign from the council because of the same absence provision in its charter. A San Marcos official said the provision was in its charter now because of a previous problem before the provision was inserted. And finally, two other cities indicated that they had "come close" to invoking this charter provision, but had not to this date. It does appear that a statement on attendance is helpful in the charter; it gives the council some authority to urge regular attendance by members. i 52 The city coUncil ds d legislative body I Jill Vacancies on the council Vacancies on the council can result from resigna- tion, death, disability, recall, or failure of a councilmember to meet the requirements of the charter. In some instances, a vacancy can occur if a member of the council announces for another elective office. For example, under Article XI, § 11, of the Texas Constitution, in cities where the term of office for councilmembers is three or four years, any councilmember who announces for another elective office is automatically re- moved from the council if more than one year remains in his term at the time of such announcement. Also, some city charters with two-year terms pro- vide that any councilmember who runs for another office au- tomatically vacates his or her seat on the council. A city charter may provide that: If any officer of the city shall file as a candidate for nomination or election to any public office, except to some office under this charter, he shall immedi- ately forfeit his office. Procedures for filling vacancies vary from charter to charter. In some instances, charters require that vacancies on the governing body be filled by appointment of the council in every case; i.e., regardless of whether a regular municipal election is imminent. The most popular provision for cities with two-year terms of office is for appointment by the council in the case of one vacancy, or special election in the case of two or more vacancies. An election to fill a vacancy must be on one of the uniform election dates specified in the Election Code, unless it is a vacancy required to be filled under the Texas Constitution. Under Article XI, § 11, of the Texas Constitution, cities with three- or four-year terms mustfill all vacancies by election of majority vote within 120 days of the vacancy. Fi- nally, some cities with two-year terms require that all council vacancies must be filled by special election. Among these cities, the common practice is not to require special elections in cases where a regular municipal election is imminent; e.g., within 60 to 90 days of the time the vacancy occurred. Appointed Elected Provides for Either 1 Vacancy 36% 39% 25% 2 Vacancies 13% 67% 20% 53 The city election process traditionally has been the sounding board for public opinion. With their votes, citi- zens choose their leaders and endorse or reject such major decisions as issuance or assumption of bonds and sale of al- cohol. Because of their importance, city council elections and other elections conducted by the city are discussed in a sep- arate article in the NCL model city charter and most Texas charters. That article in today's city charters is primarily a recitation of the specific requirements for municipal elections in the very detailed Texas Election Code. This code addresses voter qualifications and registration, election officers and ob- servers, time and place of elections, supplies, the conduct of elections, absentee voting, laws pertaining to candidacy, reg- ulation of political parties, elections to fill vacancies, re- counts, election contests, and regulation of political funds and campaigns. Although the qualifications for mayor and/or coun- cilmember and the requirements for filing were discussed at length in Chapter 9, there are several additional areas of im- portance to city officials and charter commissioners that war- rant special treatment here. They include: • plurality/majority vote • cumulative voting • election dates (uniform and others) • nonpartisan elections • the elections article Plurality/majority/cumulative voting Section 2.001 of the Election Code is captioned Plurality Vote Reauired and states: "Except as otherwise pro- vided by law, to be elected to a public office, a candidate must receive more votes than any other candidate for the office." This is very clear— in an election for one place with three can- didates, the winner need only poll more than either of the other two candidates, not more than the two of them com- bined (that would be a majority, of course). The key phrase above, however, is "unless otherwise provided by law." There are two, and possibly three, situations that qualify under this phrase. First, any public official elected for a term of more than two years is required to be elected by majority vote. This is found in the Texas Constitution, Article XVI, § 11. Second, Section 2.75 of the Election Code provides that in cities of over 200,000, election of city officials shall be by majority vote. Third, home rule charters have been recognized as "law" as the term is used in Section 2.001 of the Election Code. Until 1994, no other kind of election was being con- ducted except by majority or plurality. As noted earlier, how- ever, the City of Andrews adopted a charter amendment in May 1994 calling for election of its council by cumulative vot- ing. Charter drafters are cautioned to be very careful in their use of the two terms —majority and plurality. Several Texas charters somehow wound up calling for election of their r.ity officials by both majority and plurality. In one city, the title of the section is "Election by Majority," but the text says, "The person receiving [lie highest vote..." In a recent court case, the district judge ruled that the majority vote language prevailed. In another city, one portion of the charter calls for "election by majority." A few pages later, it states that "elec- tion shall be by plurality." That city is utilizing majority vote until the charter can be corrected. Arguments for and against majority/plurality voting Cities under 200,000 population that have two- year terms have a choice of electing city councils by majority vote or by plurality. To assist in this decision, the following is a brief list of some of the arguments made for each method of election. Arguments in favor of plurality and against major- ity elections: (1) The election is clear and simple. Voters have to go to the polls only once, and all voters in the city vote in the same election. (2) When a majority is required to elect, there are usually only a few races in which no candidate receives a ma- jority of votes at the first election. This means that when the second runoff election is held, it is for only a few positions. When candidates run from single - member districts, the runoff election will be held in only a few districts. Little public attention gets fo- cused on the runoff elections. (3) The Texas majority runoff system has been accused of discrimination against women and minorities. They run and win in the first election against a wide array of other candidates, but then can be over- whelmed by a unified opposition in the low -turnout runoff election. The Justice Department, with in- creasing frequency, looks for alternative voting meth- ods that tend to increase the electoral clout of minorities. Cumulative voting, bullet voting, and sin- gle -shot voting each require a plurality system as a base. 55 TeMS Home Rule Charters f 4 c ::tii 1 is ,..`��w Arguments in favor of majority and against plurality elections: (1) Members of the city council should represent a clear majority of the voters in their constituencies. Only a majority vote gives them a clear mandate to pursue a program and speak for the interests of their district or other constituency. (2) When there are multiple candidates, the issues can be diffused and voters can be uncertain of the merits of the respective candidates. In such elec- tions, the narrowing of the race to the two strongest candidates sharpens the choice and re- moves the ambiguity from the electoral results. (3) The cost of a runoff election is small in compari- son with the added stature clear majorities give to those who are ultimately elected by clear majori- ties. Runoff elections are also important in diverse constituencies because they force the two con- tenders to appeal to those who supported other candidates in the first election. This contributes to building coalitions that include people whose interests might be safely ignored if a candidate could win with a plurality of votes, because each candidate must make a concerted appeal to the largest voting bloc in the constituency. Election dates The Texas Election Code prescribes certain days for holding municipal elections. City elections may be held only in May and November. Any municipal election held on a day other than one of those prescribed is void unless it is specifically authorized by the statute. The Texas Election Code reads as follows: or Section 41.0011, an election may not be held within 30 days before or after the date of the general election for state and county officers, general primary elec- tion, or runoff primary election. City council and charter amendment elections are not authorized on any day except the ones listed above. Section 2.025 of the Election Code prescribes a time for runoff elections to help cities with majority elections where no candidate receives more than 50 percent of the vote at the first election. Section 2.025 provides home rule char- ter cities with some flexibility to set the runoff date later if a delay will allow a joint election to be held with another polit- ical subdivision. Charters do not address the subject of joint elec- tions, but cities are urged to explore this matter to save money and obtain a higher turnout of voters. Chapter 271 of the Election Code contains the basic statutory requirements con- cerning joint elections. Nonpartisan elections Nonpartisan elections are such an integral part of municipal elections in Texas that they are taken for granted by city officials and citizens. Long-time municipal observers and many former mayors and city councilmembers believe that the nonpartisan election is one of the principal reasons for the outstanding reputaLion that Texas cities enjoy in the country. And nonpartisanship transcends the form of govern- ment. The two largest mayor -council cities —Houston and Pasadena —have nonpartisan elections. Similarly, Dallas, San Antonio, Austin, and Fort Worth, as council-manager cities, conduct their elections accordingly. The smaller cities using both forms of government follow suit. Arguments in favor of nonpartisan elections include: § 41.001.UNIFORM ELECTION DATES. (a) Except as otherwise provided by this subchap- (1) Nonpartisan elections focus candidate and voter at - ter, each general or special election in this state shall be held tention on city problems and their solutions. When on one of the following dates: city elections are held on a patLisau basis, Lhey tend (1) the second Saturday in May; or to be overshadowed by state and national contests, (2) the first Tuesday after the first Monday preventing the candidates and voters from focusing in November. on city issues. (b) Subsection (a) does not apply to: (2) Nonpartisan elections make it easier for councilmem- (1) a runoff election; bers from a variety of backgrounds and ideologies to (2) an election to resolve a tie vote; cooperate in resolving critical problems. Party poli- (3) an election held under an order of a tics are irrelevant to most issues, which are largely court or other tribunal; concerned with means rather than ends and which (4) an emergency election ordered under are not well -served by jockeying for partisan advan- Section 41.0011; tage to expand the scope of control over local offices (5) an expedited election to fill a vacancy or to enhance the chances of state and national party in the legislature held under Section tickets. 203.013; or (3) Competition in council elections is frustrated rather (6) an election held under a statute that than stimulated by party politics because many areas expressly provides that the requirement of of the city are solidly in the grip of a single party, Subsection (a) does not apply to the election. making it infeasible for good people of the other party (c) Except for an election under Subsection (a) to even consider running for council. Nonpartisan 56 A Elections elections make it much easier for voters to support an able candidate without concern for party affilia- tion. Arguments in favor of partisan elections include: (1) Partisan elections help voters identify the general governmental philosophy of candidates for council. (2) Partisan elections make it easier to hold councilmem- bers accountable for the overall performance of the government as well as for their own individual per- formance in uffice. (3) Partisan elections stimulate competition for council positions, enhancing voter participation and choice among candidates and programs. Parties provide mechanisms for recruiting candidates for council and mayor, and a mechanism for financing campaigns. Municipal officials and citizens in Texas have ob- viously given more weight to the arguments in favor of non- partisan elections. In summary, this is one election question that appears to be settled in Texas for a long time. The elections article So what does the elections article in a city charter address? A representative sample of charters shows a fairly uniform coverage of certain key items in the election process. Most of the language adjusts the state law requirements to the city in question. Typical sections in the charter's election article look like this in a number of cities: • Section 1 is titled "City elections" or "Calling and Regu- lating Elections." Language in this section might include authorizing the city council to call the elections, listing the date of the election, making provision for election judges, designating the hours and places of election, and stating the composition and method of election of the council. • Section 2 relates to filing for office (covered in this doc- ument in Chapter 9). • Section 3 relates to the official ballot and includes infor- mation on who draws up the ballot, how names are listed, and the deadline for printing the ballot. • Section 4 relates to canvassing the results. This would contain the statements about delivering the ballot boxes to city hall, meeting of the city council to canvass the re- sults, and other matters to complete the election process. • Section 5 relates to runoff elections and a tie vote. • Section 6 relates to election by plurality or majority. It includes a specific statement indicating how candidates are elected. Summary In Chapter 3, we emphasized that state law su- persedes home rule charters, and we listed options by which cities might deal with matters that the state heavily regulates. At that time, we suggested the possibility of repeating some state law language in a charter appendix —just to give the cit- izen a general idea of the process and procedures in a partic- ular function. The elections article would seem to fit this suggestion, listing enough information for citizens to get a good idea of the process, but sparing them every detail of the subject in question. 57 City managers are a twentieth century American invention. This new form of city government developed in the early 1900s with the goal of applying private business princi- ples to public management. This is why early city managers came from a business background, primarily engineering. In fact, when the Professional Association of City Managers was organized in 1914, it almost adopted a requirement that members be engineers. Through the years, emphasis on the engineering aspects of the position was superseded by emphasis on broad administrative ability. Texas managers today are attorneys, fi- nance specialists, and educated public administrators. As early as 1923, universities began offering special graduate level programs to prepare students for a career in city man- agement. Today, these programs are offered nationwide. In keeping with the trend toward specialized edu- cation, it is becoming more and more common for city man- agers in Texas to have master's degrees in "public affairs" or "public administration." This managerial background also is evident in very small cities where complex economic, social, and environmental problems are like those in larger cities. Citizens are demanding, in addition to business -oriented op- eration, a social awareness of their individual struggles with crime, education, and housing. Clean water and paved streets are no longer enough. Texas cities are embracing the city manager edu- cated in public administration as they earlier embraced the new council-manager form of government. From the adoption of the council-manager plan by Amarillo in 1913, the plan rapidly became the most popular method of city organization in the state. Conversions from the other two forms of govern- ment occur every year. Not just in Texas, but across the coun- try as well as indicated in the ICMA's 2009 Municipal Yearbook. Since this book was first published in 1994, over 60 additional communities have adopted the council-manager system as their preferred choice of local self -governance. One of the biggest changes occurred in 2004 when voters in El Paso amended their city charter to move from the mayor -coun- cil to the council-manager form of government. As of 2008, 89% percent of Texas' home rule cities operate under the council-manager form of government. Several other cities operate under an "optional city manager" charter that provides that the City Council may (emphasis sup- plied) appoint a city manager. The typical council-manager charter in Texas con- tains a separate article on the city manager and follows the language of the NCL model city charter in many respects. That article usually contains three subsections: appointment and removal of the manager, powers and duties, and other provisions. Appointment and removal of city manager The charter of the City of Alpine has a clear-cut statement: Section 4.01 City Manager (A) The Council shall, upon approval of a majority of the full City Council, appoint a City Manager who shall be the chief administrative and executive officer of the City, and shall be responsible to the Council for the administration of the affairs of the City. (B) The City Manager shall be chosen by the Council solely on the basis of executive and adminis- trative training, experience, and ability. (C) The City Manager shall be appointed for an indefinite term and receive compensation as may be fixed by the Council. (D) No member of the Council shall, during the time for which he or she is elected, nor for one (1) year thereafter, be appointed City Manager. (E) The Council may by affirmative vote of a ma- jority of the full City Council adopt a resolution re- moving the Manager from office. The action of the Council in removing the Manager shall be final; it being the intention of this Charter to vest all authority and fix all responsibility for such removal in the City Council. (F) The City manager may, by letter filed with the City Secretary and subject to approval by the City Coun- cil, designate a qualified City administrative officer to be Acting City Manager during the temporary absence or disability of the Manager. If the City Manager fails to make such designation or if the Council chooses to revoke such designation, the Council may appoint an Acting City Managerto serve during such time. The Council may remove an Acting City Manager at any time. Our review of council-manager charters in Texas focused on several of the individual requirements and state- ments above. The following is an analysis of key provisions. 59 Texas Houle Rule Charters Vote required for appointment Appnintment of the manager by majority vote of the entire membership of the council, not simply a majority Of a quorum, assures undisputed support for the appointee. Since that wording would require four votes on a seven -mem- ber council, even if there were two vacancies on the council, some cities use the phrase: "by the vote of a majority of all Councilmembers qualified avid serving." Texas charters have not paid that much attention to the wording, as only a few of the charters require this type of "full" majority for appoint- ment. Education/experience required Most charters use wording similar to that in the Alpine charter, giving the city council some discretion in eval- uating the education and experience that candidates bring to the job. The Laredo charter had one of the more restrictive statements on the qualifications of the manager requiring at least three years experience as a city manager or an assistant in another city. In the late 199O's, the charter was amended to require even more restrictive qualifications and the charter now reads: "The City Manager shall be appointed on the basis of executive and administrative quali- fications. He/she shall have a Bachelor's De- gree and no less than seven years experience in municipal government, five of which must be supervisory managerial experience. A Master's Degree in Public Administration is preferred. The City Manager need not be a resident of the City or State at the time of ap- pointment, but must reside inside the City while in office." Residence Residence is addressed in the NCL model city charter and in the great majority of Texas charters. The Model states: "The manager need not be a resident of the city or state at the time of appointment but may reside outside the city while in office only with the approval of the council." Texas charters generally do not include the exception quoted in the model charter above, but do allow some time for the manager to establish residence in the city after appointment. One charter states that residence must be established in four months; several others provide for six months. One charter requires residence be established within three years, prompt- ing one cynic to remark that the city manager wouldn't have to worry about this provision because he wouldn't be around that long. Term of appointment The great majority of charters follow the language found in subparagraph (c) of the Alpine charter. Terms of one to five years for the manager are found in a small number of charters. Appointment for an indefinite term is considered preferable, because contracting for a specified term reduces the discretion of the council to remove a manager. Most charters are quiet on the subject of contracts fnr the manager, but there are some exceptions. One charter states that the manager will be appointed for a definite period, not to exceed two years. One charter says a contract may be extended to the manager for a period up to four years, another allows up to five years, and yet another provides for up to six years. At least one charter limits severance pay to six months. Reports have shown that a number of cities, particularly larger ones, have some form of employment agreement with the manager. The Texas City Management Association has pre- pared a model agreement (available at www.tcrna.org) that many cities use as a starting document. Municipal attorneys generally agree the charter does not have to specifically give the council the authority to enter into these contracts with managers. Appointment of mayor or councilmember as manager Tabulation was made of the charters with a provi- sion prohibiting the appointment of the mayur or a city coun- cilmember as city manager during their terms of office. A substantial number of charters have such language. Figures were tabulated for the question: "Former member of the city council is not eligible for appointment as city manager for (one), (two), (three) years after going off the council." .!:::::: ,, ! Wi,:, hq; 1 1994 2008 1 Year 39% 34% 2 Years 15% 16% 3 Years 1% 1% Not Addressed in Charter 45% 49% Farmers Branch and San Antonio stipulate that a former mayor or councilmember shall never be eligible to serve as city manager. 60 9 The dtymanager Appointment of mayor or city coun- cilmember as acting manager following death, resignation, or removal of a manager Vote required for removal The NCL model charter requires a majority vote of the "full council" to remove the manager. Many Texas cities agree with that requirement, as 64 percent of the council- manager charters have it. Thirty percent of cities require only a majority of a quorum. The remaining six percent have other specific requirements for the removal of a city manager. Ex- ceptions include a charter that requires a 5/7 vote to fire the manager, another that requires a 4/5 vote, and another that requires a 2/3 vote unless a contract specifies otherwise. At least three charters prohibit the discharge of a city manager within 60 days after a council election if the manager has been in office for one year or longer, and then only with a 4/5 vote; another charter, in the same circumstances, requires a unanimous vote to discharge the manager. Public hearing before removal While the NCL model charter requires a hearing, Texas cities are of differing minds. Cities requiring a public hearing for the manager before removal total approximately 40 percent; the other 60 percent do not provide for a hearing or the charter does not address this issue. Arguments are mounted on both sides of this issue, but the fact remains that cities are not of one mind. Acting manager In order to remove any doubt as to the identity of the acting city manager, the manager is required, in most charters, to designate a city officer or employee to serve as acting city manager during the temporary absence or disability of the manager. The council is free, of course, to replace the acting manager if it is dissatisfied with performance, and the acting manager is not entitled to the protection of the removal procedures afforded the manager. Duties of the city manager The next major subjects addressed in virtually every Texas council-manager charter are the duties, some- times called the "powers and responsibilities," of the city manager. A great many charters have adopted all or a great deal of the language of the NCL model city charter which states: The city manager shall be the chief executive officer of the city, responsible to the council for the management of all city affairs placed in the manager's charge by or under this charter. The city manager shall: (1) Appoint and suspend or remove all city em- ployees and appointive administrative offi- cers provided for, by, or under this charter, except as otherwise provided by law, this charter or personnel rules adopted pursuant to this charter. The city manager may author- ize any administrative officer subject to the manager's direction and supervision to exer- cise these powers with respect to subordi- nates in that officer's department, office, or agency; (2) Direct and supervise the administration of all departments, offices, and agencies of the city, except as otherwise provided by this charter or by law; (3) Attend all city council meetings. The city manager shall have the right to take part in discussion but shall not vote; (4) See that all laws, provisions of this charter, and acts of the city council, subject to en- forcement by the city manager or by officers subject to the manager's direction and super- vision, are faithfully executed; (5) Prepare and submit the annual budget and capital program to the city council and im- plement the final budget approved by council to achieve the goals of the city; 61 Texas Home Rule Charters (6) Submit to the city council and make avail- able to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year; (7) Make such other reports as the city council may require concerning operations; (8) Keep the city council fully advised as to the financial condition and future needs of the city; (9) Make recommendations to the city council concerning the affairs of the city and facili- tate the work of the city council in developing policy; (10) Provide staff support services for the mayor and councilmembers; and (11) Assist the council to develop long term goals for the city and strategies to implement these goals; (12) Encourage and provide staff support for re- gional and intergovernmental cooperation; (13) Promote partnerships among council, staff, and citizens in developing public policy and building a sense of community; and (14) Perform such other duties as are specified in this charter or may be required by the city council. Appointment of department heads and other employees The major difterences between Texas charters and the NCL model is that 25 percent of Texas council-manager charters require council confirmation of department head ap- pointments. This does mean that the majority of the charters follow the model and allow the manager to appoint these key individuals without reference to the council —at least formally. A few charters require the confirmation of one or two sensitive department heads, but not every department head. The most likely department heads to require confirmation by the council are the police chief (39 percent), finance director (20 per- cent), and fire chief (5 percent). The city attorney, city sec- retary and municipal court judge often require confirmation by council when the City Manager is provided authority for these appointments (See Chapter 13). The great majority of charters do not require con- sultation with the council before removal of department heads. In a select few cities, the council, however, must con- firm removal of these officials; in another, the charter requires consultation with the council prior to such removal. Preparation of budget The NCL model charter provisions quoted above contain the standard provision found in most Texas charters. However, the Grand Prairie charter contains a more descriptive sentence in regard to the budget. Its charter mandates that the city manager shall: "prepare an annual budget designed to accomplish the goals and objectives established by the City Council, submit it to the City Council for approval and be re- sponsible for its faithful administration after adoption." Many charters contain more details in their articles on "finance and budget." Those details will be covered in Chapter 14. Other duties The Grand Prairie charter lists two additional du- ties of the city manager which, although not found in a ma- jority of the charters, nevertheless are worth mentioning. One of these duties is to "see that all terms and conditions im- posed in favor of the city or its inhabitants in any public utility franchise or other franchise or contract are faithfully kept and performed; and, upon knowledge of any violation thereof, to call the same to the attention of the city attorney, whose duty it shall be to take such steps as may be necessary to enforce the same." The other duty says the manager shall "prepare the agenda of each meeting of the City Council in accordance with this Charter and the rules of procedure adopted by the City Council." Agenda preparation is not mentioned in the great majority of council-manager charters; although, it is as- sumed by many to be the responsibility of the manager and not of the council. We did riot specifically survey the location of this responsibility. In our review of the charters, we did find that a few charters make provision for consultation with the mayor on preparation of the agenda and some others that allow councilmembers to request items to be placed on the agenda. Without charter provisions, it can only be surmised that agenda preparation is worked out between the manager and the council and perhaps covered in city council proce- dures which can be changed from time to time. Other provisions in the article on city manager A minority of charters have other provisions listed under this article. They include: Bonds — A number of charters specify that the city manager shall be bonded; some specify the amount, while others leave that decision to the council. Most charters omit this provision, presumably covering it by ordinance or resolution to the coun- cil. 62 11 The city manager Nepotism — The state law on nepotism arguably covers city managers that act as "a final hiring authority." Prohibitions against council interference — This matter was discussed in Chapter 10 and is an essential part of a sound council-manager charter. A few charters place this paragraph under the article on the manager. Administrative departments and directors of departments — These provisions are more commonly found in a separate char- ter article on "departmental organization" (or a similar title) and will be covered in the next chapter of this book. Investigations — A few charters authorize the city manager to investigate the conduct of any office or department and to subpoena witnesses. As discussed in the previous chapter, authorization for the city council to conduct such investiga- tions is found in the great majority of council-manager char- ters. The presence of such a provision enabling the manager to conduct such inquiries is fairly rare. "Weak" council-manager charters A few cities in the state have council-manager charters that weaken and dilute the form of government by placing obstacles to the council and manager relationship, and confusing the lines of authority and responsibility. One council appoints a comptroller; another appoints a director of finance. These appointments, made independent of the city manager, can divide responsibility for certain functions and confuse the council about who is accountable. One South Texas city charter states that the city council shall appoint and set the pay of the police and fire chief and the fire marshal. A central Texas city charter says if the manager and a supervisor differ over appointment of an employee, the city council shall resolve the issue. One North Texas community's council, by a 4/5 vote, can require the city manager to remove a specified city employee. And one coastal city has a provision for councilmembers to act as liai- son to certain departments of the city. None of these provi- sions provide for the clear line of authority necessary to create a good working relationship between the council and the man- ager. Another potential problem for council-manager re- lations is the failure of past charter commissions and city councils to eliminate conflicting language when changing forms of government from mayor -council to council-manager. It is not unusual for a mayor -council charter to authorize the city council to remove any officer or employee of the city at its discretion. However, this provision in a council-manager charter is obviously confusing since all council-manager char- ters authorize the manager to hire and fire city employees. More than a dozen council-manager charters still provide that the council can fire employees, and at least two cities reported problems arising from these conflicting provisions. Optional council-manager charters A council-manager charter is usually defined as one that establishes the city manager provision by use of the word "shall." The key phrase is: "The city council shall ap- point a city manager who..." The legal definition of "shall" means the city council is required to appoint a person to the office. It also means that only a charter amendment vote by the people can eliminate the position, not just a vote of the council. On the other hand, the word "may" in the legal sense allows a permissive act. The council may or may not appoint a city manager. It also may appoint and laler drop [lie position at any time without any requirement of a charter amendment election. Texas has a few cities in which appointment of a city manager is optional; these cities either state in their char- ter that the council "may appoint a manager" or use other lan- guage indicating that the manager position is not a firmly fixed one, but rather exists at the whim of the council. In ad- dition, one charter states that the city council may designate the city secretary as city manager; it can, of course, also de- desi2nate such nomination. Unusual council-manager charters Four other cities with unusual charter provisions have been defined as council-manager cities. In two cities, the mayor chooses the city manager, but that individual's ap- pointment and removal must be approved by the council. In- volvement of the council meets one of the key criteria for the form of government; the mayor cannot hire and fire the man- ager or administrator. Two other cities originally have optional language. Both charters have statements that the city council "may at such time as the financial condition of the City make it feasible, appoint a city manager..." This statement alone would tend to classify them as optional cities, but the charters have another provision that states that the position, once filled, can be terminated only by a petition of the voters, fol- lowed by a referendum vote to retain or abandon the system. Both cities filled these positions several years ago; thus, any abandonment can be accomplished only by a vote of the peo- ple —a charter amendment. Summary Texas council-manager charters have generally fol- lowed good precedents: the NCL model charter or area char- ters that contain sound council-manager language. The national reputations of some of the Texas council-manager cities as role models attests to the fact that: (1) Texas cities have a solid legal and structural foundation; and (2) city coun- cils and city managers are jointly and effectively delivering quality services to their citizens. 63 The title of this chapter is the same as that used in a number of Texas charters as well as in the NCL model city charter. However, the predominant title in Texas charters for the subject matter covered in this chapter is either "Ad- ministration" or "Administrative Departments." In smaller cities, this charter article typically includes the city manager as well as other departments and offices. Other charters de- vote separate articles to each department or officer. This chapter will discuss the following: • Creation of departments • City attorney • City secretary • Municipal court judge • Planning function • Personnel and civil service • Health function • Other departments and officers • Boards and commissions Creation of departments The Marble Falls charter has a clear statement on the creation of administrative departments in a council-man- ager city: Section 4.02 Administrative Departments There shall be such administra- tive departments as are established by this Charter and may be established by ordinance and, excepting as other- wise provided in this Charter, these administrative departments shall be under the direction of the City Man- ager. The Council shall have power by or- dinance to establish administrative de- partments or offices not herein provided by this Charter. The Council may dis- continue, redesignate, or combine any of the departments and/or administrative offices. No changes shall be made by the Council in the organization of the ad- ministrative service of the City until the recommendations of the City Manager thereon shall have been heard by the Council. The head of each department shall be a director who shall have de- partmental supervision and control. Two (2) or more departments may be headed by the same individual and 65 the City manager may head one (1) or more departments. In most charters, three offices are specified by name: the city attorney, the city secretary, and the municipal r.niirt judge. An administrative code adopted by the council is the appropriate place for establishing the other departments or deflning their deparhnenl.al organization and operating rules and regulations. In fact, many aspects of the internal organization of departments or divisions should be governed by administrative order rather than by council action. City Attorney Each city should have either a full-time or part- time legal officer, depending on the size of the city and the volume of legal problems. Many small towns contract with a legal firm or with an individual. Some city councils prefer to contract with a firm, while others prefer to have an attorney full-time on the city staff. Very small cities have little choice if they do not have enough work for a full-time employee. Some slightly larger cities have a full-time employee because they want their own lawyer immediately available. Other cities can afford and have enough work for a full-time employee but contract with a firm because of its variety of expertise. Charters frequently provide that the city attorney, with council approval, can bring in special counsel when the need to do so for a particular court case or other problem arises. The West University Place charter has a typical section on the city attorney: The Council shall appoint an attor- ney, licensed by the State of Texas, to be the City Attorney. The City Attorney shall be entitled to compensation for services as established by the Council and shall serve at the pleasure of the Council. The City Attorney shall draft or approve as to legal form or file written objections to every ordinance proposed by the Council and shall review all contracts and other documents in which the City has an in- terest. The City Attorney, or other attor- neys selected by the City Attorney with the approval of the Council, shall repre- sent the City in all litigation. The City At- torney shall be the legal advisor to the City and counsel for the City and all its officers and departments in the conduct of City business. Texas Rome Rule Charters Survey Results Our survey of the state's charters produced the following figures in regard to selection of the city attorney: 1994 2008 By City Manager: 6% 2% By City Manager with City Council Approval: 9% 8% By City Council: 73% 72% By City Council on recommendation of City Manager: 3% 8% By Mayor with City Council Approval: 7% 9% Other: 2% 10/. TOTAL 100% 100% The large figures for "appointment by the city council" are a little misleading since they include the con- tracts with firms or individuals entered into by the council. For cities over 50,000, the figures look like this: 1994 2008 Appointed by city council — manager not involved: 64% 80% Appointed by the city manager or manager involved: 36% 20% The six largest cities in the state have an interest- ing mix of appointment methods. In Houston and El Paso, the mayor appoints the city attorney with approval of the city council; in Dallas, the appointment is by the council; in Fort Worth, the attorney is appointed by the city council on rec- ommendation of the city manager; and in San Antonio and Austin, the city manager appoints the attorney, and no council confirrnation is required. Various arguments are made for and against the council appointing the attorney. Some contend that legal questions are so crucial that the city council needs to be sure that the attorney's opinion is not "laundered" in any way by the manager before it gets to the council. On the other hand, having both the manager and the attorney report to the council can be divisive, particularly if the attorney has a disposition to mix some policy advice with legal advice. There is no single best answer to the question. Whatever the policy, the key is that all the players should be guided by an open, trusting relationship, City Secretary The term "city secretary" is used intentionally here. Survey results showed this title to be heavily preferred by 90 percent of Texas cities over the title "city clerk." The city secretary, like the city attorney, is frequently the subject of a separate article in the charter. The establishment of this position is also found in the city council article, and some- times within the mayor or city manager section of the charter. Wherever it is, the job is a critical one. Although a few charters do not establish this po- sition, the overwhelming number do. Those charters also stip- ulate responsibilities for the city secretary. Several charters include lengthy detail, but the Hurst charter really says all that is necessary: The city manager shall employ a city secretary and such assistant city secretaries as the city manager shall deem necessary. Such persons shall report to the city manager who shall establish their compensa- tion and duties. The city secretary or an assistant city secretary shall give notice of the city council meet- ings, take the minutes of such meetings, authenticate ordinances and resolutions by his or her signature and shall index and keep such minutes, ordinances and resolutions. Over the years, the duties of the city secretary/city clerk position have grown in scope in all cities, but particularly in small cities. In response to this expanded role, many mem- bers of the profession are members of the Texas Municipal Clerks Association (TMCA), which is a TML affiliate that is housed at The University of North Texas. To meet the profes- sional responsibilities of the position, a certification program for city secretaries and clerks was established. According to the TMCA website, over 500 Texas Municipal Clerks have completed the extensive three-year certification program. TMCA also has several reference tools for all city officials, in- cluding the Texas Municiaal Llection Law Manual (4th Edi- tion) written by Analeshe Mancy, the Texas Municiaal Law and Procedures Manual (5th Edition) written by Alan Bojorquez and the Texas Municipal Clerks Handbook (8th Edition) writ- ten by the TMCA. More information on TMCA and the certi- fication program can be found at http://municlerks.unt.edu. Survey results Our survey of the state's charters produced the following figures in regard to selection of the city secretary: 1994 2008 By City Manager: 24% 28% By City Manager with City Council Approval: 15% 20% By City Council: 35% 33% By City Council on recommendation of City Manager: 12% 11% By Mayor with City Council Approval: 7% 6% Other: 7% 2% TOTAL 100% 100% 66 f Departments, offices, agencies, and boards The majority for council appointment of the sec- retary is consistent with the widespread opinion of city offi- cials that this position is one that "belongs" to the city council. Judge of the municipal court • provide for the manner in which the judge is to be cho- sen —by appointment or election. If the judge is chosen by appointment, the appointing authority must be speci- fied in the charter. If a municipal court of record is es- tablished, selection is handled differently. • provide for the judge's term of office. This can be for a specified number of years or "at the pleasure of the city council" or other appointing authority. • provide for the appointment of associate judges and tem- porary judges. • state whether the judge(s) must be an attorney. • provide for a clerk of the court. Texas charters formerly were very detailed regard- ing the court; today, this is unnecessary. The Mission charter as amended in 1987 contains the essence of what a charter might address. Several cities in the state devote only one paragraph to the court and the judge (see Paragraphs A and B of the Mission section below): Section 4.05 Municipal Court A. There shall be established and main- tained a court designated as a municipal court for the trial of misdemeanor offense, with all such powers and duties as are now or hereafter may be prescribed by the laws of the State of Texas relative to municipal courts. B. The judge or judges of said court shall be a qualified voter or voters of the City of Mis- sion, shall be appointed by the City Council, shall hold his office at the pleasure of the City Council, shall receive such salary as may be fixed by the City Council, shall be under the ad- ministrative direction of the City Manager, and said judge shall not be an elected official. The City Secretary or an assistant City Secretary shall be ex officio clerk of said court. C. The Clerk of said court and his deputy shall have the power to administer oaths and af- fidavits, make certificates, affix the seal of said court thereto; and generally do and perform any and all acts usual and necessary by the Clerk of courts in issuing process of said courts and con- ducting the business thereof. D. The City Council by ordinance may pro- vide for the appointment of one (1) or more judges to serve if the regular judge, the presiding judge, or an associate judge is temporarily un- able to act. E. Each judge of said court shall be a duly licensed attorney if some such suitable attorney is available and provided that this shall not be a disqualification of the person serving in such ca- pacity at the time of the adoption of this Char- ter. The phrase in Paragraph B above that the judge "shall be under the administrative direction of the city man- ager..." is an unusual, but not rare arrangement. Cities, large and small, regardless of form of government, seem to have continual problems with the reporting relationship of the judge and the clerk of the court. Mayors, city councils, and city managers want the court to be "administratively efficient," but must tread softly since they are dealing with a separate and independent branch of city government. Judges are con- cerned with the "administration of justice" and usually do not have the time nor skill to worry about the "administration of the court" as a department of the city. Cities have tried a wide range of mechanisms to meet this challenge. It would be confining and inflexible if the city tried to dictate admin- istrative arrangements in the charter. Hence, most of these "solutions" have been left to ordinance or administrative order. 67 Texas Home We Charters Survey results Our survey of the state's charters produced the following figures in regard to selection of the municipal court judge: 1994 2008 By City Manager with City Council Approval: 3% 6% By City Council: 79% 74% By City Council on recommendation of City Manager: 3% 7% By Mayor with City Council Approval: 6% 8% Elected: 5% 3% Other: 4% 20% TOTAL: 100% 100% We tabulated the term of office for the judge. Fifty percent of the charters do not address the term of office for the judge. Of those charter that do specify the judge's term, the overwhelming choice (86 percent) was for the judge to serve at the "pleasure of the council." In the remaining cities, the judge served a specified numbers of years, any- where from one to four years (six percent) or noted the term was stipulated in some other manner (eight percent), such as at the pleasure of the city manager. Influence of form of government on selection of officers above Most of the cities that call for appointment by the city council of the city attorney, city secretary, and judge are council-manager cities. Most of the cities that call for ap- pointment by the mayor with approval of the city council are mayor -council cities. Planning function A number of Texas charters address the planning and zoning function. Some actually mandate a planning de- partment and a director of planning. In the most recent survey, 34 percent of charters now require the establishment of a comprehensive master plan, up from 20 percent in 1994 that established a master planning process. Many charters do not mandate a comprehensive plan with the legal phrase, "the city council shall adopt a plan." Without this charge, the city council may, instead, reject all or part of the plan. Below is a typical section from one of the charters that exemplifies the loophole through which many a master plan falls: Section 4. The Master Plan. The Master Plan for the overall physical development of the City shall contain the (Planning) commission's recom- mendations for growth, improvement and beautifi- cation of the City. A copy of the Master Plan, or any part thereof, shall be forwarded to the City Manager who shall thereupon submit each plan or part thereof to the Council with the City Manager's rec- ommendations thereon. The Council may adopt this plan as a whole or in part, and may adopt any amendment thereto, after at least one public hear- ing on the proposed action. The Council shall act on such plan, or part thereof, within sixty (60) days following its submission by the City Manager. If such plan, or part thereof, should be rejected by the Council, the Planning Commission may modify such plan, or part thereof, and again forward it to the City Manager for submission to the Council. All amend- ments to the Master Plan recommended by the Planning Commission shall be submitted in the same manner as that outlined above to the Council for approval, and all recommendations by the Coun- cil from any City Department affecting the Master Plan must be accompanied by a recommendation from the. Planning Commission. The quoted wording does not prohibit a council from adopting a master plan, generally considered a valuable asset to a city, and some of these cities have adopted a plan. No legal requirement, however, prompted their action. Under the wording above, the council could continue rejecting the plan forever. There is no clear-cut statement that "the council shall adopt a plan." Once a master plan or comprehensive plan is adopted, a city may have language such as the following to put "teeth" into the plan. This is from the Mansfield charter: Section 10.4 Legal Effect Of The Masterplan Upon adoption of a Master Plan by the Council, no subdivision, street, park, or any public way, ground or space, public building or structure, or public util- ity, whether publicly or privately owned, which is in conflict with the Master Plan shall be constructed or authorized by the City until and unless the loca- tion and extent thereof shall have been submitted to and approved by the (Planning) Commission. In case of disapproval, the Commission shall commu- nicate its reasons to the Council, which shall have the power to overrule such disapproval, and upon such overruling, the Council shall have power to pro- ceed. The widening, narrowing, relocating, vacating or change in the use of any street, alley, or public way or ground, or the sale of any public building or real property shall be subject to similar submission and approval by the Planning and Zoning Commis- sion, and failure to approve may be similarly over- ruled by the Council. The preparation and adoption of such a plan has been mandated by 38 percent of home rule cities, up from ten percent reported In the 1994 survey. The strongest lan- 68 71 Departments, of ices, agencies, and boards guage is in the Georgetown charter. It not only requires adop- tion, but also supports adoption with specific reasons that a master plan is valuable. Excerpts from this charter include the following: Section 1.08. Comprehensive Plan (1) Purpose and intent. It is the purpose and intent of this Article that the City Council establish comprehensive planning as a continuous and ongo- ing governmental function in order to promote and strengthen the existing role, processes and powers of the City of Georgetown to prepare, adopt and im- plement a comprehensive plan to guide, regulate, and manage the future development within the cor- porate limits and the extraterritorial jurisdiction of the City to assure the most appropriate and benefi- cial use of land, water, and other natural resources, consistent with the public interest. (Note: Paragraph (1) above contains more preamble leading into Paragraph (2)). (2) The Comprehensive Plan. The Council shall adopt by ordinance a revised comprehensive plan within two (2) years from the date the amended Charter is adopted, which shall constitute the master and general plan... Paragraph (2) goes on to detail the contents of the plan followed by Paragraph (3) entitled,"Legal Effect of Comprehensive Plan." Planning and zoning commission Section 3. Powers and Duties of Planning Commis- sion (a) The planning commission shall: (1) Review and make recommendations to the city council regarding the adoption and implementa- tion of a comprehensive plan, any element or portion thereof, and any amendments thereto; (2) Review and make recommendation to the city council on all proposals to adopt or amend land de- velopment regulations for the purpose of establishing consistency with the comprehensive plan; (3) Monitor and oversee the effectiveness of the comprehensive plan, review and make recom- mendations to the council on any amendments to the plan, and forward to the council comprehensive updates to the plan at least once every five years; (4) Review and make recommendations to the city council regarding zoning or requests for zoning changes in a manner to insure the consistency of any such zoning or changes in zoning with the adopted comprehensive plan; (5) Exercise control over platting and subdividing land within the corporate limits and the extraterrito- rial jurisdiction of the city in a manner to insure the consistency of any such plats with the adopted comprehensive plan; and (6) Review and make recommendation to the city council on the city's annual capital budget and any capital improvement bond program. Virtually all city charters formally establish a Plan- ning and Zoning Commission. The number of members on (b) The departments of the city government shall the Commission, their qualification and terms of office vary cooperate with the planning commission in fur - widely among cities, but the Corpus Christi charter is probably nishing it such information as is necessary in relation typical of the language on these bodies: to its work. Section 2. Organization of Planning Commission A planning commission is hereby established which shall consist of nine registered voters of the city. The members of the commission shall be ap- pointed by the city council for staggered terms of three years. The commission shall elect a chairper- son from among its membership each year at the first regular meeting in August and shall meet no less than once each month. Any vacancy in an unex- pired term shall be filled by the city council for the remainder of the term. (c) The commission shall be responsible to and act as an advisory body to the council and shall per- form such additional duties and exercise such addi- tional powers as may be prescribed by ordinance of the council. Personnel and civil service City government's relationship to its own employ- ees has undergone tremendous changes in the past half cen- tury. Emphasis formerly focused on little more than keeping employee records; that emphasis has shifted now to a broad human resources responsibility. Major activities for many cities include: 69 Texas Rome Rule Charters • sophisticated recruiting involving nationwide searches for some positions, including the employment of executive search firms to find not only city managers, but also de- partment heads in medium to large cities. • emphasis on diversifying the workforce including, in some cities, contacts with historic black colleges and working closely with such organizations as the local Urban League and other groups formed to help ethnic minorities find employment. • risk management, including renewed emphasis on job safety and claims control. • administration of a wide range of employee benefits, sometimes offered to employees on a "cafeteria" basis which complicates management of the package. • employee assistance programs to assist employees. • executive development and employee training programs offered at the work site and at distant locations. • continued experimentation with job classification and pay plans to remain competitive in the marketplace. Despite the major concerns of cities and employ- ees with these and other functions of a human resources of- fice, just 20 years ago the overwhelming number of charters were completely silent with regard to the personnel or human resources function. There has been a major shift with more and more charters addressing personnel functions. Of the Texas cities surveyed for this second edition, 35 percent of charters authorize a personnel department, while another 8 percent actually mandate this department. In addition, 43 percent of charters authorize personnel rules and another 15 percent mandate them. In light of this change, we want to re- view major state laws related to personnel. Fire and police civil service In 1947, the state legislature required that cities over 10,000 in population, when petitioned as provided by law, call an election on adopting provisions of a State Fire and Police Civil Service Law enacted by the legislature that year. When adopted by the voters, the law mandates the establish- ment of a fire and police civil service commission and sets up specific standards for recruitment, testing, grievance, promot- ing, and just about every other aspect of the personnel rela- tionship except for salary. Cities fit the special civil service provisions for fire and police into their overall employee policies and procedures in different ways. For example, while the state law is consid- ered particularly generous with vacation and sick leave for fire and police, some cities have adopted those provisions for other employees. Other cities feel they cannot afford to pro - vide "equity" for non -fire and police personnel. North Rich- land Hills preempts the law by putting all employees under a charter -mandated civil service program that incorporates vir- tually all of the state fire and police law. That city's civil serv- ice provisions in the charter account for almost one-half of the total charter. Charter mandated municipal civil service Despite the drafting of a Model Civil Service Code in 191430, only a few cities in the state have followed through with a civil service system in the charter for all employees. EI Paso's charter goes into detail ordinarily found in an ordi- nance. The El Paso civil service provisions, in fact, occupy exactly one-half of the total El Paso charter. Mesquite estab- lished civil service for all employees by charter amendment in 1966. Amarillo adopted a formal "merit system" in 1944. Five percent of home rule cities make a provision for a city- wide civil service system in their charters. Other fire and police charter provisions There is a long history of cities writing sections into charters addressing fire and police protection. This practice has car- ried over to many of today's charters with- out a compelling rea- son. In addition to civil service, prnvi- sions for police and fire, several city char- ters mandate staffing levels of these depart- ments as well as mini- mum salary requirements. Mesquite in 1993 adopted a charter amendment mandating a commissioned police officer ratio of 1.5 offi- cers per 1,000 popula- tion in the city. In 1990, Wichita Falls voters adopted a char- ter amendment man- dating minimum police i 70 r] Departments, offices, agencies, and boards levels for 1991, 1992, and 1993. The amendment stated that the city would have 180 commissioned police officers by October 1, 1993. In addition, the charter specifies the mini- mum wage for officers, sergeants, lieutenants and captains. In Corsicana, police officers in 1990 succeeded in securing a charter amendment that sets out seniority pay in detail. This was most recently updated when voters approved a charter amendment in 2005. Fire fighters attempted the same process in 1992, but were defeated at the polls. In 1994, Balch Springs voters approved two charter amendments: one mandating that the city maintain a police department of uni- formed personnel (not counting investigative, administrative, and support personnel) at a ratio of not less than one officer per 1,000 population; and one mandating the same minimum ratio for fire personnel. The police chief is the most likely operating de- partment head to be directly appointed by the council and the only one who is elected in some cities. The cities of Brown - wood, Coleman, and San Angelo all elect their police chiefs. The cities of Childress and Stamford amended their charters to change the position of police chief from an elected position to an appointed one. Ennis and Groves still elect a city marshal in- stead of a police chief. In a select few communities, the chief is appointed by the council. In a few of these, the fire chief and fire marshal are also both appointed by the council. Other State laws effecting Fire and Police De- partments Over the years, the legislature has defined the maximum number of hours certain cities may require fire and police per- sonnel to work; required a minimum pay level for city fire and police personnel, based on population ranges; mandated that cities pay fire and police personnel "salaries at the higher level" when fire and police personnel fill in temporarily for persons in positions above them; and told cities they had to begin to pay seniority pay to these employees. Health function Health concerned the early charter writers in the Texas Legislature. The City of Houston as early as 1839 was empowered to enact ordinances and by-laws "to maintain cleanliness."31 Galveston's 1866 charter introduced boards of health to the state.32 That charter provided for a three - member health commission named by the council and the mayor. Along with the city physician, the commission ascer- tained that all public carriers entering the city reported any sick passenger. A later law made it very clear that a local health officer who did not comply with his duties could be re- moved by the state board of health.33 Justified fear of contagious diseases knew no city limit boundary and spurred centralization of the health func- tion. Thus, from the beginning of the Republic, health was seen as a joint state - local function, directed and controlled by the state. The rapid spread of diseases in the 19th century also contributed to city -county coopera- tion. In most other functions, they acted and continue to act sep- arately. Older char- ters frequently ad- dressed the city's responsibility for public health. At least two dozen of the first 100 charters mandated the city council to appoint a health officer and about half that number also authorized a board of heath. Some of the cities carefully de- tailed the powers of the city in that regard. In the past several years, most charters have not addressed the health function. This is undoubtedly the result of significant state legislation in public health and expanded guidelines for organizing the functions at the local level. Today, the Texas Health and Safety Code recog- nizes four distinct organizational arrangements at the local level, with the flexibility in some instances to fold two of the four into one entity. The Code first addresses a "local health unit" in Section 121.004. A local health unit is defined as a "division of municipal or county government that provides public health services but does not provide each service re- quired of a local health department..." In Section 121.021, the law establishes the second type of health organization: a "health authority" which is an individual, not an organiza- tional unit. "A health authority is a physician appointed under the provisions of this chapter to administer state and local laws relating to public health within the appointing body's ju- risdiction." Section 121.031 defines the third entity that a 71 Texas Home Rule Charters county or municipality may establish to be a local health de- partment. The following section of the law provides minimum services that the department must offer to qualify and main- tain a local health department. Finally, Section 121.041 pro- vides for a public health district when two or more cities or two or more counties desire to enter together into an arrange- ment of this kind. Texas charters have unlimited freedom to estab- lish functions or departments. Several charters provide that the city may establish a library, a hospital, a cemetery, an air- port or several of the above. The chart belows provides an overview of the top departments authorized or mandated by city charters. Department Authorized Mandated Not Addressed Police 41% 27% 32% Finance 39% 27% 34% Planning 38% 11% 510/. Parks & Recreation 38% 7% 55% Fire 35% 24% 41% Personnel 35% 8% 57% Legal 34% 30% 36% Library 33% 5% 62% Health 27% 9% 64% Recreation 27% 4% 69% Aviation 19% 5% 76% Hospital 14% 4% 82% A number of charters also address city utilities. Some contain strong language on independence of utilities, prompted perhaps by earlier action when some city council tried to "raid" the earnings of the utility or sell it off. Cities with electric utilities are particularly sensitive to the possibility of losing that source of revenue. In the mid-90s, the voters of Georgetown overwhelmingly adopted a charter amendment stating that prior to consideration of a sale of the city's com- munity -owned electric utility, "the City Council shall hold a public hearing during which the City's financial advisor shall be required to present a report to the City Council concerning the revenue that has been earned by the City's com- munity -owned electric utility through the City's own- ership thereof and containing an analysis of the revenue to be lost by the City through the proposed sale of the electric utility. Any proposed sale of the City's community -owned electric utility would re- quire two affirmative votes of the City Council, twelve months apart, to call a referendum election concerning the sale of the electric utility. The ref- erendum must result in a favorable vote by a major- ity of the voters in that election in order for the electric utility to be sold." Boards and commissions According to our survey, 43 separate boards and commissions are established by Texas city charters. A signif- icant increase from the 20 different boards and commission identified in 1994. Virtually all of those listed are advisory only, although the Board of Adjustment is a quasi-judicial board, and several utility boards are independent. A few cities not only identify boards by name, but also set out requirements for membership, number of mem- bers, duties, and provisions for removal of a board member who does not attend or whom the council simply wants to re- place because the member is not contributing to the work of the board. One city has a diversity statement in regard to ap- pointments of boards, and several cities have specific provi- sions for councils to remove board members. The council can remove board members without specific authority in the charter, unless the board is established by state statute that provides for methods of removal. For example, a member of the Zoning Board of Adjustment can be removed only for cause on a written charge after a public hearing (Section 211.008, LGC). Additionally, any city policies or procedures concerning removal of board members would have to be ad- dressed. The charters vary significantly on the number and types of boards and commission that are provided for in the charters. Other boards and commissions identified in various charters include: Aging, Animals, Arts, Building Standards, Border Relations, Cemetery, Civic Events, Civil Service, Com- prehensive Planning, Ethics, Health, Hospital, Housing, Per- sonnel, Public Safety, Recycling, Streets, Technology, Traffic, and Veterans. Department Authorized Mandated Planning & Zoning 19% 32% Board of Adjustment 8% 19% Parks & Recreation 8% 11% Library 4% 3% City Development 4% 1% Airport 3% 0% Equalization 2% 5% Utilities 2% 1% i 72 This chapter is about how charters address finan- cial administration —revenues, budgets, taxes, bonds, purchas- ing —and how these matters are treated in city charters. Financial administration begins with collecting money to op- erate a city —from property taxes, utility charges, user fees, sales tax, and nurneruus other less important sources. It in- cludes annual and capital budgeting to allocate these rev- enues, monitoring expenditures throughout the year, and accounting for them at the end of the year in a financial state- ment. Financial administration is also issuing bonds to pay for long-term improvements and purchasing day-to-day sup- plies. The subjects will be discussed in this order: • Organization for financial administration • Designation of the fiscal year • The property tax • Other revenues • Operating budget, preparation and adoption • Operating budget, execution and monitoring • Capital budget • Purchasing and contracts • Municipal debt, short and long-term All these subjects are addressed in virtually every city charter in the state, some at great length. State law has preempted some of them, particularly property tax adminis- tration, but by and large, cities have substantial, and in some cases, complete freedom to adopt charter provisions to fit their individual needs. Organization for financial administration One of the most important duties for any munici- pal chief executive is maintaining fiscal responsibility. In a mayor -council city, it is the job of the mayor as the chief ex- ecutive. In a council-manager city, it is the city manager's job. It is the mayor or manager who holds the fiscal reigns. Charters in both forms of government are very specific in their statements of these powers and duties. In Houston, the article on the mayor includes, in addition to the power of appointment and other powers: (4) It shall be the duty of the mayor from time to time to make such recom- mendations to the council as he may deem to be for the welfare of the city, and each year to submit to the council the an- nual budget of the current expenses of the city. (5) To keep the council at all times fully advised as to the financial con- dition and needs of the city. A typical council-manager charter has almost identi- cal languago. This excerpt is from the Orange charter on duties of the city manager: 2. Prepare the budget annually and submit it to the City Council and be responsible for its administration after adoption. 4. Keep the City Council advised of the financial condition and future needs of the City and make such rec- ommendations as may seem to him desirable. Mayors and city managers in the two forms of gov- ernment have considerable freedom in how they accomplish these mandates. As a rule, the city's internal organization is not addressed in the charter. In Houston, for example, the city traditionally has housed many of the financial functions in the Department of Finance and Administration. There is a limit to that, however, for the charter provides for an elected City Controller who has wide-ranging responsibilities in the area of accounting and certifying that money is available for purposes needed by the mayor and council. Pasadena, the second largest mayor -council city, gives the mayor overall fis- cal responsibility. But that power is constrained by an inde- pendent city controller who is appointed by the city council. The charter states "and the Mayor shall have neither voice nor vote in the employment or removal and discharge of the City Controller nor of any personnel in the Department of Finance, it being the intent of this Charter to divest the Mayor of any authority, control, or direction over the Department of Finance, its officers and employees, except where specifically author- ized herein." The mayor does have a budget and financial planning officer who prepares the annual budget and multi- year plan. Smaller mayor -council cities omit such constraints in their charters. The NCL model charter and the typical council- manager charter give the manager full responsibility for the financial function. The director of finance reports directly to and can be removed by the manager. There are very few ex- ceptions to these clean lines of authority. We have mentioned earlier the independent director of finance in Temple and the comptroller in Sweetwater. Raymondville actually provides for an elected director of finance, but the city has never exercised 73 Texas Home Rule Charters =110 �.„F, ,: \c., ., ✓,,, ,,,,,,,,, ,,;,, , , ,9 ,,, , ., ,,,, /,,csv .,. -- R�rr ,.�sru::: \.... , i{, sfoi, ,/.... r �'r 4, r r that option. There are no more than six other cities that blunt the city manager's authority in this area. Some two dozen city charters provide for a director of finance and list that person's many functions. There is no harm or gain in this recitation of duties in the charter, but an ordinance would suffice. Some larger council-manager cities separate the finance function from the budget function, giving the former all financially related activities except the budget. This is not charter material, and we know of no city that has placed this detail in their charter. Finally, property tax administration is no longer the major assignment it once was. The state has preempted most responsibilities in this area except the actual rate -setting and collection of taxes. The department head, who was sep- arate from the finance director, is now most likely a position under finance, handling all revenue collections. Designation of the fiscal year A total of 95 percent of Texas charters have a charter -designated fiscal year of October 1 - September 30. No fiscal year is mentioned in only 1 percent of charters. The other beginning dates and the actual number of charters man- dating there are: January — 4 June-1 April— 2 July-3 May— 1 August-1 September-1 There is good reason for the widespread designa- tion of October 1 as the beginning of the fiscal year. Property taxes are levied as of January 1, are due the following fall, and delinquent beginning March 1 of the following year. The great majority of city elections — 96 percent of the cities — are held in May. Given that calendar, policymakers and managers figured out long ago that an October 1 budget year would en- able new councilmembers elected in the spring at least a cou- ple of months to get acquainted with the city operations. In contrast, if the budget year were April 1, the incoming council would be living under a previous council's budget for almost an entire year. Another good reason for the October 1 date is property tax receipts. They begin to arrive in October, with sizable payments in December and January. This is early in the fiscal year and means, in many cases, that the city does not have to borrow for operations early in its fis- cal year. A few of the very large cities have given considera- tion recently to a different fiscal year or election date. The reasoning: these large and complex operations have to start their budget planning well ahead of May when new coun- cilmembers are elected. Therefore, the council's goals and budget objectives are already set when any new councilmem- ber is elected. There is sound argument for establishing the fis- cal year in the charter. By leaving it to ordinance, the city runs the risk of some future council changing the date without adequate forethought. Any change of date will cause either a short fiscal year for the first year or an unusually long one. Either way, the change of a fiscal year is a confusing and trau- matic experience, not just for the citizenry, but for policymak- ers and administrators alike, and should be undertaken only after serious deliberation. The property tax Since there have been major changes in the statutes pertaining to the property tax and since it is still a major source of revenue for the cities, we discuss it first and separately. In 1979, the Texas Legislature adopted a new property tax code that established uniform appraisal policies and procedures. Now appraisals are conducted and appeals from those appraisals are all handled by central appraisal dis- tricts. Cities can control only their own tax rate and the col- lection of the taxes owed to them, both current and delinquent. Long and detailed charter articles on property tax administration were superseded, and some cities are now re- scinding (by charter amendment, of course) the entire tax ar- ticle. The city does not lose its right to collect the tax by wiping out the entire article. It is probably preferable, how- ever, to retain provisions setting the tax rate and collecting the taxes, current and delinquent, as well as a few other legal provisions. The Addison charter is typical of one amended after passage of the 1979 changes to state law. Its section on property taxes consists of nine brief subsections, titled as follows: • power to tax (including setting tax rate limitation if the council desires to set one in the charter) • where payable; • no demand necessary (states where taxes shall be paid; non -receipt of a tax bill does not relieve the property owner of paying the tax); • removing property from Addison (see seizure and sale of personal property below); • inadequate description (protects city in case it cannot completely identify a piece of property; • power to correct errors (allows city to cancel any non - collectable taxes on the tax rolls); • payment, delinquency, penalties (sets up due date and date taxes are delinquent; • provides for penalties when not paid by delinquent date); • tax levy and lien (creates lien on all property in favor of Town of Addison for all taxes due); • seizure and sale of personal property (more complete section on this general subject); and • general powers (summary statement of powers sec- tion). 74 NNW Ainistration Our survey asked whether the charter required a vote of a ma- ing the ensuing year;(5) the estimated rev- jority of the "full" council or just a majority of a council quo- enue available to cover the proposed budget; rum to adopt the annual tax rate. We found only a handful of and (6) the estimated tax rate required to charters that require a vote of the entire council. The reason- cover the proposed budget. ing is sound; to require the higher vote could prevent the city (2) The budget for each fiscal year must be from adopting a timely tax rate if one or two councilmembers adopted prior to adoption of the tax levy for decided to absent themselves from the meeting to keep their the new fiscal year. In most Texas cities, the "no new taxes" pledge. fiscal year begins October 1 and the levy Taxes may be paid in installments in several should be adopted by the last week of the old cities; discounts on early payments are provided only in a cou- fiscal year. Therefore, the budget should be ple of cities. Although these incentives are thought by some adopted by September 30 or earlier. to encourage payment of property taxes, the great majority of (3) A proposed budget that will require raising Texas cities do not believe either of these incentives are nec- more revenue from property taxes than in the essary. previous year must contain a cover page with the following statement in 18-point or larger Other revenues type: "This budget will raise more total prop- erty taxes than last year's budget by (insert Since property taxes now bring in a smaller per- total dollar amount of increase and percent- centage of total city revenues, there are obviously a substan- age increase), and of that amount (insert tial number of other revenue sources utilized by cities. Most amount computed by multiplying the pro- of these are not addressed in the city charters. Only street posed tax rate by the value of new property rental charges to utility companies, occupation tax levies on added to the roll) is tax revenue to be raised certain businesses and occupations, and special assessments from new property added to the tax roll this levied against abutting property owners have generally been year." found in Texas charters. Most other sources —city sales taxes, (4) The city's budget officer must prepare a pro - the hotel -motel taxes, alcoholic beverage taxes, and federal posed budget for the consideration of the city grants —are largely controlled by state or federal law. Texas council. In mayor -council cities, the law re - charters as a rule have not tried to address any of these quires that the mayor serve as budget officer; sources of revenue. in council-manager cities, the city manager For a discussion of these latter sources of rev- is the budget officer. enue, the reader is referred to the Revenue Manual for Texas (5) Copies of the proposed budget compiled by Cities, published by TML, the budget officer must be filed with the city clerk/secretary and made available for public Preparation and adoption of annual inspection and posted on the city Web site, if the city has a Web site. The initially pro - operating budget posed budget must be filed no later than 30 days prior to the date upon which the city The Texas Legislature passed the first uniform council sets the property tax rate for the next budget law in 1931. This act was amended in 1981 and fiscal year. 1985 and codified into the Local Government Code in 1987 (6) The city council must hold a public hearing as Chapter 102. The statute prescribes basic requirements on the budget after the 1511 day that the that most cities exceed by terms of their own charters or prac- budget has been filed with the city clerk or tices. Examples from specific charters that show how cities secretary. Notice of the public hearing must have extended the scope of policy and management follow the be given in a newspaper of general circula- highlights of the law listed below: tion in the county not less than 10 nor more than 30 days prior to the adoption of the (1) The city council must adopt an annual budget. budget and conduct the financial affairs of (7) Upon adoption of the final budget by majority the city in strict conformance with the vote of the council, copies must be filed with budget. The budget must contain a com- the county clerk and city clerk/secretary, plete financial statement of the municipality made available for public inspection and that shows:(1) the outstanding obligations of posted on the city Web site, if the city has a the municipality;(2) the cash on hand to the Web site. credit of each fund;(3) the funds received (8) After the new fiscal year has begun and the from all sources during the preceding year; budget has been put into effect, no expendi- (4) the funds available from all sources dur- ture "shall thereafter be made except in strict compliance with such adopted 75 TeXas Home Rule Charters budget," nor may the council amend the budget except for reasons of "grave public necessity" requiring "emergency expendi- tures to meet unusual and unforeseen condi- tions, which could not, by reasonable diligent thought and attention have been included in the original budget..." (9) The budget and any amendments to it must be filed with the county clerk. (10) The governing body may levy taxes only in accordance with the budget. The procedures for levying taxes are prescribed in the Texas Property Tax Code. The budget (fiscal plan) —the annual work plan of the city The annual operating budget is perhaps the most crucial single document debated each year by a governing body. A more expressive title for the budget — "Fiscal Plan" — is used in the Denver City 1985 charter and Seminole's 1991 charter. Here is the language used in both: The plan shall provide a complete program of action for the fiscal year. It shall contain the following: A. OBJECTIVES — Established by the City Council. B. GOALS — City Manager's program to meet the objectives of the Council. C. BUDGETS — Financial plan to meet the administrative needs of the City for the fiscal year consistent with the Objectives and Goals set by the City Council and City Manager. D. STAFF PLAN — A summary of the personnel requirements required to provide the services of the City. Addi- tions or deletions of personnel must be specifically identified and justified. (Note: In mayor -council cities, "city manager" above would read "mayor.") Both cities have subsequent provisions, the only two in the state, that budgets shall be prepared using the prin- ciple of "zero budgeting." The budget is projected from zero base, not factored from a prior year budget or from prior year expenditures. Aransas Pass, in its budget article, has a similarly unique provision, but not quite as strong or as dramatic as in the other two charters. Aransas Pass, as part of its "contents of the budget" section, closes with: (18) (proposed budget shall contain) ... a sug- gested legislative program and the high- lights of the proposed administrative program. These three cities and others in the state illustrate the initiative and forethought that have been given budget preparation in Texas. Although no city has placed language in its charter on "performance budgeting" (adopted by the legislature for state agencies in 1993), a number of Texas cities were ahead of the state in relating dollars to program accomplishments. Budget calendar City managers and budget officers, as a rule, de- velop a calendar for preparation and adoption of a budget. It coordinates dates, required action, and responsible individu- als. Most of the dates are for internal purposes and are not mandated by the charter. The first key date considered a nec- essary part of the charter is the latest date (or range of dates) the budget is to be submitted to the city council before the beginning of the next fiscal year. This will vary depending on the size of the city. Some small cities require only 30-45 days; larger cities may require 60-90 days. The second key date in a charter is the proposed date(s) or public hearings by the council; the third is the date by which the budget is to be adopted. (See state law highlights for required dates.) The dates referred to above are all in terms of "x days before the beginning of the fiscal year" or a similar phrase. This calendar will contain many more dates, but those are internal dates to be observed by the department heads, the budget office, and the city manager. Budget contents The state law (Chapter 102 - Municipal Budget, LGC) regarding budget contents is reproduced to show the exact language. Virtually all city charter requirements exceed these basic requirements. 102.003. Itemized Budget; Contents. (a) The budget officer shall itemize the budget to allow as clear a comparison as practicable be- tween expenditures included in the proposed budget and actual expenditures for the same or similar purposes made for the preceding year. The budget must show as definitely as possible each of the projects for which expenditures are set up in the budget and the estimated amount of money carried in the budget for each project. 76 Fiflancial administration (b) The budget must contain a complete finan- cial statement of the municipality that shows: (1) the outstanding obligations of the munici- pality; (2)the cash on hand to the credit of each fund; (3) the funds received from all sources during the preceding year; (4) the funds avail- able from all sources during the ensuing year; (5) the estimated revenue available to cover the proposed budget; and (6) the estimated tax rate required to cover the proposed budget. The law requires only the "preceding year" and the "proposed year" figures to be shown. Standard budget practice followed by many cities calls for the budget to have three expenditure columns: (1) for the last completed fiscal year, (2) for the current year (this will consist of 6-9 months of actual expenditures plus an estimate for the last 3-6 months), and (3) the proposed figures for the new year. The Carrollton language is fairly typical of many Texas charters: Section 4.02 Preparation and Submission of Budget The city manager, prior to August 1 of each year, shall prepare and submit the budget, covering the next fiscal year, to the council, which shall con- tain the following information. In preparing the budget, each employee, officer, board, and depart- ment shall assist the city manager by furnishing all necessary information. (1) The city manager's budget message shall out- line the proposed financial policies for the next fiscal year with explanations of any changes from previous years in expenditures and any major changes of policy and a complete statement re- garding the financial condition of the city. (2) An estimate of all revenue from taxes and other sources, including the present tax structure rates and property evaluations for the ensuring year. (3) A carefully itemized list of proposed expendi- tures by fund and service type and project for the budget year, as compared to actual expenditures of the last ended fiscal year, and an estimate of final expenditures for the current fiscal year. (4) A description of all outstanding bond indebt- edness, showing amount, date of issue, rate of interest and maturity date, as well as any other indebtedness referred to in Article V, which the city has incurred and which has not been paid. (5) A statement proposing any capital expenditures deemed necessary for undertaking during the next budget year and recommended provision for funding. (6) A list of capital project which should be un- dertaken within the five (5) next succeeding years. Public hearing and adoption Public hearing requirements are covered in slate law. Cities have Inng prnvided for public hearings; one city charter specifically provides citizens be given five minutes each to speak about the budget. Other charters demand a second public hearing if the council amends the budget after a first public hearing. Adoption of the budget requires a majority vote of the total council in 61 percent of city charters. In the remain- ing 39 percent of cities, it can be by majority of a quorum. Because the budget vote is such a crucial decision, many ex- perts prefer the requirement for a majority of the total. It is not a requirement of state law. State law does mandate action in another crucial area: the budget must be adopted before the tax levy is approved by the council and should be adopted before the beginning of the new fiscal year. With one excep- tion, every city charter in the state repeats this requirement. State law does not address the circumstance of a budget adopted after the beginning of the fiscal year, appar- ently presuming that everyone will obey the law. Occasionally some cities do not make the deadline. Charters deal with this potential problem in many cities. If the deadline is not met, 26 percent of charters call for the mayor/manager's oroaosed budget to become effective. In 36 percent of cities, the char- ter calls for the current budget to remain in effect until a new budget is adopted. The matter is not addressed in 36 percent of the cities, with the remaining three percent having alterna- tive provisions. Operating budget - execution and monitoring Once the budget is adopted, monitoring of expen- ditures begins. A few cities mandate the establishment of budget allotments by month and by department. This proce- dure was used originally to bring budget discipline to depart- ments and avoid overruns and is used by some cities today. It is not controlled or required in most charters. The city manager/mayor is frequently required to submit monthly or, as a minimum, quarterly reports to the city council to keep them updated on the city's financial condi- tion. In the budget law, the Legislature first prohibits amendment of the budget except for emergency purposes (Section 102.009 LGC). But Section 102.010 states that 77 Texas Home Rule Charters this chapter does not prevent the governing body of the mu- nicipality from making changes in the budget for municipal purposes." "Municipal purposes" is not defined, but it ap- parently gives the governing body some discretionary author- ity. This is contemplated in the NCL model city charter in its section on budget amendments. That language has been adopted verbatim by a number of Texas charters and is quoted below: Supplemental Appropriations If during or before the fiscal year the City Man- ager certifies that there are available for appro- priation revenues in excess of those estimated in the budget, the City Council by ordinance may make supplemental appropriations for the year up to the amount of such excess. b. Emergency Appropriations To address a public emergency affecting life, health, property, or the public peace, the City Council may make emergency appropria- tions. Such appropriations may be made by emergency ordinance in accordance with the provisions of § 2.14. k To the extent that there are no available unappropriated rev- enues or a sufficient fund balance to meet such appropriations, the Council may by such emergency ordinance authorize the is- suance of emergency notes, which may be re- newed from time to time, but the emergency notes and renewals of any fiscal year shall be paid or refinanced as longterm debt not later than the last day of the fiscal year next suc- ceeding that in which the emergency appro- priation was made. Reduction of Appropriations If at any time during the fiscal year it appears probable to the City Manager that the rev- enues or fund balances available will be in- sufficient to finance the expenditure for which appropriations have been authorized, the Manager shall report to the City Council without delay, indicating the estimated amount of the deficit, any remedial action taken by the manager and recommendations as to any other steps to be taken. The Coun- cil shall then take such further action as it deems necessary to prevent or reduce any deficit and for that purpose it may by ordi- nance reduce or eliminate one or more ap- propriations. d. Transfer of Appropriations At any time during or before the fiscal year the City Council may by resolution transfer part or all of any unencumbered appropria- tion balance from one department, fund, service, strategy or organizational unit to the appropriation for other departments or orga- nizational units or a new appropriation. The manager may transfer funds among programs within a department, fund, service, strategy or organizational unit and shall report such transfers to the council in writing in a timely manner. Limitations; Effective Date No appropriation for debt service may be re- duced or transferred, except to the extent that the debt is refinanced and less debt service is required, and no appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer of appropriations authorized by this section may be made effective immediately upon adop- tion. The Colony is the only city known to require a "fis- cal note" on ordinances or resolutions introduced in the mid- dle of the fiscal year. A "fiscal note," as defined in the charter quote that follows, clearly states the financial impact of the measure proposed. This type of cost analysis and disclosure has been an accepted part of the Texas state legislative process for several years, but evidently has not been consid- ered by cities with this one exception. The Colony's paragraph reads: SECTION 3.10 METHOD OF ADOPTION; GENERAL ORDINANCES Any ordinance or resolution (other than an emergency measure, the budget, or rou- tine expenditures of budgeted funds) which authorizes or requires the expenditure or di- version of any city funds for any purpose or proposed any new tax or increased or de- creased tax, fee, license, charge, or penalty shall have a separate statement signed by the city manager outlining the fiscal impact and probable gain or loss in income or cost of the measure each year for the first (3) years after its passage and a statement as to whether or not there will be cost involved thereafter. Such separate statement shall not be a part 78 F1ndnCidl ddministrdtion of the ordinance or resolution but shall re- main with the ordinance or resolution throughout the entire legislative process, in- cluding submission to the mayor. Finally, most city charters contain a short section on "Lapse of Appropriations" which provides that every ap- propriation, except an appropriation for a capital expenditure, shall lapse at the close of the fiscal year to the extent that it has not been expended or encumbered. Capital budget Nearly all mayors, councilmembers, and city man- agers agree that planning ahead for major city construction projects is essential, and 76 percent of charters actually man- date the preparation of a capital program or capital budget. The term that most city councils recognize is capital improve- ments program — CIP. Many cities boast of an annual CIP that is required by ordinance or, in some cases, dictated by tradi- tion. Cities have wide discretion in preparation and adoption of a CIP because state law does not address this subject. Just what is a CIP, and how does it differ from a capital budget, and how much of either or both should be the subject of a section in the charter? A capital improvements program (CIP) is a long- term plan, usually spanning five or six years, for financing major cost items that have a long, useful life: such items as buildings, streets, major utility lines, and expensive equip- ment. The CIP itself is a listing of those major projects scheduled for construction or acquisition during the next five or six years. The listing projects the date and total annual amount the city expects to spend on a capital project; the source of funding; and finally, and very importantly, the future operating and maintenance cost. Policymakers and adminis- trators are well aware that the construction funding of such items as fire stations and branch libraries is only the begin- ning of the outlay. The real cost is in staffing and mainte- nance. A CIP should be prepared each year, adopting Year 1 prior to, or in conjunction with, the annual operating budget and carrying forward the subsequent years. The following year, Year 2 (perhaps with revisions) becomes Year 1 and the plan is extended out to another year to keep the five or six years continually out into the future. Suggestions for projects in the CIP come from var- ied sources —the citizenry, neighborhood groups, city staff, and the council itself. The designated operating department has the first responsibility for putting these ideas together into a priority schedule. The planning office or the budget/finance office usually compiles the CIP suggestions. Public hearings may be held at this point prior to adoption of the CIP by the council. Up to this point, the council has adopted a "pro- gram of good works to be done," but has not committed itself to use current funds in the budget, to the issuance of bonds, or to the use of federal or state grant money. The program becomes a capital budget when the council commits itself to funding the first year of the program (or such portion of it with which they agree and can find the funds to commit). Some cities adopt the capital budget ahead of the operating budget. They argue that the staff and the council must know before the operating budget decision is made which capital projects the city will undertake. Other cities call for adoption of the capital budget on the same day the operating budget is approved. Beaumont has very clear language on the capital budget in Article VI. The section is reasonably short, leaving the details discussed above to ordinance or administrative order: Section 19 - CAPITOL PROGRAM (a) Submission to Council: The Manager shall prepare and submit to the Council a five (5) year Capital Program at least three (3) months prior to the final date for submission of the budget. (b) Contents: The Capital Program shall in- clude: (1) A clear general summary of its contents; and (2) A list of all capital improvements which are proposed to be undertaken during the five (5) fiscal years next ensuing, with ap- propriate supporting information as to the ne- cessity of such improvements; and (3) Cost estimates, method of financing, and recom- mended time schedules for each such im- provement. Section 20 — COUNCIL ACTION ON CAPITAL PROGRAM The Council shall give notice of a public hearing on the proposed Capital Pro- gram and shall hold said hearing in the same manner as provided in this Chapter for the annual budget. The hearing for the pro- posed Capital Program and the notice of same may be in conjunction with the annual budget. The Council shall, by resolution, adopt the Capital Program with or without amendment after the public hearing and on or before the 271h day of the last month of the current fiscal year. 79 Texas Home Rule Charters Purchasing and contracts A typical Texas charter contains three provisions re- garding purchasing and contracts: (1) a paragraph or more on competitive bidding for supplies and materials; (2) a state- ment on purchases the city manager can make (mayor in mayor -council city) without approval by the city council; and (3) a section on construction contract bids. A few charters also address limitations on the sale of city land. Supplies, materials, and construction The charter section quoted to the left is from a 1918 Texas city charter. The $250 figure requiring competitive pro- curement is now $50,000 by state statute. Another major change is the choice now avail- able to cities. Until 1993, state law regarding competitive bidding mandated that if charter limits were lower than the state figure, the charter figure prevailed. In 1993, however, the law was changed, and a city may adopt the state fig- ure even though its charter sets a lower limit. The result of this recent law is that a number of cities have the au- thority to preempt their charter limits without an amend- ment changing the limits. The differ- ence between re- sponse to this state law and others is that cities are al- lowed to choose whether they will adhere to their charter provision or 80 to state law when they differ. Most other state laws supersede charter provisions. Construction contracts In 2001, Subchapter H of Chapter 271 was added to the Texas Local Government Code and extended the authority to use alternative delivery systems, including best -value com- petitive bidding, competitive sealed proposals, design -build, construction management, and job order contracting, to Texas cities. Detailed information on these procurement methods are available from TML or the Texas attorney general's office in the publication known as "Texas Municipal Procurement Laws Made Easy." Accepting state law The City of Pflugerville adopted its first charter in No- vember 1993 and abdicated the entire area of purchasing and sale of city property and assets to the state. That charter's brief Section 9.09 simply reads: "All sales of city property, purchases made, and contracts executed by the city shall be made in accordance with the requirements of the constitution and laws of the State of Texas." When this verbiage is included in a city charter, the city council may, by ordinance, prescribe the sales, purchase, and contract limits the city manager may execute without ref- erence to the council, and require transactions over that set amount to come before the council. This ordinance route of- fers the advantage of flexible response to changes in the dollar value. Municipal debt - short and long-term Cities borrow money for the same two reasons as in- dividuals —to cover an emergency on a short-term basis and to acquire a major piece of equipment or property using long- term financing. Short-term loans to a city usually are made by local banks. The purpose is to provide temporary funds with the expectation of repayment within the current fiscal year. Our review of the charters revealed that 74 percent of them pro- vide specifically for borrowing in anticipation of tax collections or other revenues. A city's short-term loans must mature in the current fiscal year and do not require a voter referendum. Such loans should be used sparingly; excessive use can ad- versely affect a city's bond rating. The city of Denton has a fairly standard section on tax anticipation notes: Sec. 7.07. Borrowing in anticipation of property taxes. In any budget year, in anticipation of the collec- tion of the property tax for such year, whether levied r NNW administfation or to be levied in such year, the council may be res- olution authorize the borrowing of money by the is- suance of negotiable notes of the city, each of which shall be designed "Tax Anticipation Note for the year 19_" (stating the budget year). Such notes shall be renewable, shall mature and be paid not later than the end of the fiscal year in which the original notes have been issued. Long-term loans are of two kinds — "general ob- ligations" and revenue bonds. "General obliga- tions" are secured by a pledge of property taxes and include time warrants, certificates of obligation and ad valorem tax bonds (G.O. bonds). Revenue bonds are long-term loans secured by a pledge of revenue from an income -producing facility such as the city water system. Time warrants Time warrants are one form of general obligation debt payable from ad valorem taxes. Unlike G.O. bonds, which are sold for cash, time warrants are issued directly to vendors to pay for construction, equipment, and services. Also unlike G.O. bonds, time warrants do not require voter approval; al- though, the law does require that the city council publish no- tice of its intent to issue them and that the council call a referendum election upon presentation of a petition signed by 10 percent of the voters. The procedures for issuing time warrants are cumber- some and expensive and may result in the city paying a higher rate of interest than if the borrowing were accomplished with bonds. Nevertheless, time warrants can occasionally be ad- vantageous —for example, to complete the construction of a public works project where there has been a cost overrun and bond funds have been exhausted. Certificates of obligation (COs) COs are the second form of general obligation debt payment from ad valorem taxes. Like time warrants, they can be issued without voter approval except that upon notice of the city's intent to issue certificates, five percent of the qual- ified voters can force an election on the issue by submission of a petition. No charter provision is necessary to utilize the state law. (Subchapter C, Certificate of Obligation Act, Sections 271.041 - 271.063, Local Government Code.) In addition, if a city charter has a provision contrary to the CO law, the charter provision is overridden by law. The original CO law, enacted by the Legislature in 1971, was sought by cities primarily to provide a funding mechanism for overruns of GO bond projects. While the law even then allowed COs to be paid for materials and supplies and to mature over a period of as much as 40 years, cities used this new authority very carefully. To their credit, Texas cities have not misused this law and precipitated major citizen backlash. There is a temptation to: (1) buy materials, sup- plies, and small pieces of equipment with COs that could be purchased out of current operating funds, and (2) carelessly issue obligations of up to 40 years, avoiding voter approval. At least one urban Texas county has been criticized for having a "permanent" program of issuing COs each year for any equipment costing over $500. Ad valorem tax bonds Ad valorem tax bonds are commonly referred to as general obligation, or G.O. bonds. They are issued pursuant to an ordinance adopted by the city council typically following approval of the bonds at a referendum election. The bonds are examined as to legality by the Attorney General of Texas and then delivered by the city to the successful purchaser or bidder for payment in cash. This cash is then used by the city to pay for libraries, police buildings, city halls, and other public facilities with a long useful life. General obligation bonds have the highest degree of investor acceptance of any type of municipal indebtedness and command the lowest in- terest rates. Therefore, unless exceptional circumstances dic- tate otherwise, G.O. bonds are the preferred means of borrowing against a pledge of tax revenues. Charter provisions for issuance of G.O. bonds vary widely in detail. Some cities extensively detail the purpose for which these bonds may be issued, the conditions of sale, the initiation of a register to keep records, the establishment of a sinking fund to record annual bond payments, and the penalties for misuses of this fund. Conversely, the only provisions that a number of cities have are the following: (1) Recite that the city has the power to issue all types of debt instruments. (2) Provide for the passage of a bond ordi- nance. Several cities provide that bonds may be authorized only with a majority vote of the entire council. (3) State the maximum term of the bonds and other conditions of issuance. (4) Recite the conditions of sale —public sale, sealed proposals, note of sale to be pub- lished, authority of council to refuse all bids. (5) Provide for the register and set of books showing all the pertinent details concerning each type of debt issued. Spending/taxation limitations At least one home rule charter directly limits the ability of the city to increase taxes or expenditures from one year to the next. While tax and expenditure limits have been avoided as a matter of State law, a city's charter may be stricter. 81 Texas Home Rule Charters Summary When writing a new charter or amending an existing one, cities should not hesitate to obtain the counsel of bond attorneys to guide charter writers in the intricacies of state and federal law pertaining to debt insurance and manage- ment. a 82 The words are used so often together, one can almost see them as one word: initiativereferendumandrecall! They really are three separate facets of direct democracy or direct legislation, and you generally find provisions for all three in a charter. The citizens of California helped make initiative and recall household words. The public generally hears informa- tion regarding recalls in relationship to gubernatorial recalls. California, the most infamous of the recall states, received a great deal of attention in 2003 when Gray Davis was removed from office. This led the way for Governor Arnold Schwarzenegger to be elected to the top spot in California. In the last few years, members of local governing bodies in Texas have been the subject of recall elections as well. The trend has been for a dissatisfied public to utilize their rights as pro- vided for in the city charter. Introduction All three of these actions begin with a citizen petition to the governing body, and all three can lead to a vote by the people. An initiative petition asks the city council to act on a specific issue when it has not done so previously. If the peti- tion is valid, the council must adopt it or submit it to a vote of the people. Petitioners welcome council adoption, which is faster. A referendum petition asks the city council to re- verse an action already taken or proposed. The council can rescind the ordinance or submit it to a vote of the people. A recall petition asks the city council to call an election for a vote on removal of one or more councilmembers from office. If the targeted officials resign, an election is unnecessary. Although an election is the final possibility in all three situations, petitioners are delighted with any council or indi- vidual action that avoids an election. Early history of initiative, referendum and recall (I R & R) These three tools for direct citizen participation in government are residuals of prerevolutionary debates and, par- ticularly, of the drafting of the federal constitution.34 The de- bate participants, our founders, argued the merits of "direct" democracy with maximum citizen participation versus the merits of "representative" democracy with elected represen- tatives of the people as the predominant decision -makers. The direct democracy proponents, led by Benjamin Franklin and Thomas Jefferson, lost the debate to James Madison and John Adams. Thus, our U.S. Constitution and our state con- stitutions are instruments of representative democracy with periodic elections in which the people name the leaders to represent their interests. State constitutions were not submitted to the people for ratification until early in the nineteenth century. Texas went directly to the voters in 1845 for a pre -annexation vote on its draft constitution, and again five years later with a ref- erendum to determine the location of the capital. The movement toward greater use of initiative, refer- endum, and recall (IR&R) at the state level gained impetus in 1892 when endorsement of initiative and referendum at the state level was included in the platform of the Populist Party at its first national convention. In 1898, states began incorporating these direct methods into law. Oregon was first, followed during the next ten years by seven more states. By 1912, a total of 15 states had adopted both initiative and ref- erendum and three more states had adopted one or the other. The recall also appeared early in America. The 1780 Massachusetts Constitution stipulated that delegates to the Congress of the United States could be recalled at any time within their one-year terms, and others could be chosen and commissioned in their place.35 In the late 1800s, recall was considered to be prima- rily a weapon against governors and the executive branch gen- erally; whereas, initiative and referendum were being targeted to the legislative branch. Since governors at the turn of the century were more highly thought of than legislators, the recall movement did not have the impetus that the other two mech- anisms had. Also, the states could not decide if members of the judiciary should or should not be included in the list of officials subject to recall. For these and other reasons, the move to adopt recall along with initiative and referendum did not materialize as quickly. Texas, ironically, has no provision for any of the three citizen participation methods to be used at the state level, but about 100 years ago, shortly after the advent of commission government at the local level in Texas, the legislature began placing one or more of the three methods in the charters it is- sued. And to this day, the legislature has not enacted any law to block or even impede the use of the methods by home rule cities. R & R at the local level The circumstances surrounding the arrival and instal- lation in 1901 of the commission form of government in Galveston may have been the instigating factor for the addi- tion of one or more of these three "direct" citizen processes in early Texas charters. The commission form utilized a five - member elected board that served as both legislative and ex- ecutive branch and was acclaimed and embraced nationwide. The short ballot (in Galveston, it was five elected members of the governing body elected at large who replaced a mayor and 16 aldermen elected by wards) appealed to citizens. Praise 83 Texas Home Rule Charters was widespread for its "businesslike" approach to city gov- ernment. To offset the criticism that the new form concentrated power in too few hands, the Texas Legislature began placing one or more of three "direct" methods in almost all of the spe- cial legislative charter, issued to cities, beginning in 1907. All three features were placed in the Dallas and Forf Worth special legislative charters enacted in 1907, the Amarillo and Waco charters passed in 1909, and the Austin charter in 1911. Although all five of these cities, plus a host of others, changed from commission to council-manager forms of gov- ernment in the next few years, IR&R remained in their char- ters. NCL Model Charter The eighth and latest edition of the NCL model city charter provides a comprehensive section that addresses a va- riety of issues regarding IR&R including: general authority, commencement of proceeding, petitions, procedures for filing, suspension of effect of ordinance, action on petitions, and the results of the election. Below is the language provided on General Authority from the NCL Model Charter: General Authority for Initiative, Citizen Referendum, and Recall. (1) Initiative. The registered voters of the city shall have power to propose ordinances to the council and, if the council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, but such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of city officers or employees. (2) Citizen Referendum. The registered voters of the city shall have power to require reconsideration by the council of any adopted ordinance and, if the - council tails to repeal an ordinance so reconsidered, to approve or reject it at a city election, but such power shall not extend to the budget or capital pro- gram or any emergency ordinance or ordinance re- lating to appropriation of money or levy of taxes. (3) Recall. The registered voters of the city shall have power to recall elected officials of the city, but no recall petition shall be filed against any official within six months after the official takes office, nor, in case of a member subjected to a recall election and not removed, until at least six months after the election. Now Charter provisions today Today, an overwhelming number of Texas city charters call for all three, with the recall provision being the most prevalent; it is found in 93 percent of city charters. The ini- tiative and referendum are provided for in 88 percent of char- ters. In virtually every charter, IR&R are the subjects of a separate article. Several cities make requirements that apply to all three items. Seguin authorizes the city secretary to use a sampling to check signatures against the voter registration list when the petition names exceed 1,000. There must be a minimum of a 25 percent sample. Several cities have provi- sions for a minimum turnout before the election will be de- clared successful, and a couple of cities require a second petition in the case of initiative and referendum. These pro- visions state that if the petitioners submit one petition and the city council fails to act, the petitioners must then go back and get additional signatures to force an election. After an initiative or referendum is successful, cities provide various ways for reversing that decision. A few cities slate that the council, within months, can simply reverse the decision without an extraordinary vote of any kind. But most charters provide a waiting period before the council can take any action to reverse the vote, and several charters require a majority or greater vote of the total council to reverse the ac- tion even after a waiting period. Some charters prohibit peti- tioners from coming forward on the same question more often than every six months. Cities are almost evenly split over use of a petitioners' committee (usually five or ten persons). Proponents of such a committee argue that requiring a committee places clear re- sponsibility for the undertaking of initiative or referendum pro- ceedings. Opponents find fault, however, in the fact that such a committee is given the authority to speak for hundreds or thousands of petitioners, and may agree to a city council com- promise ordinance without consulting with the petition sign- ers. In some instances, charter writers have tried to save a little verbiage by combining petition percentages and other common language covering all three actions into one section, stating that it is speaking for all three mechanisms at once. This can be done if handled very carefully, but several charters trying to do this have confused the requirements. Even though it means repeating some requirements, the clearest and cleanest way to state the charter requirements is to do so one at a time for each of the three. In this way, there can be no doubt about meaning. Finally, when reading the following charts regarding the percentage of signatures required to file a valid petition, it should be remembered that many cities, in addition to re- quiring a certain percentage of voter signatures, require a min- imum number of signatures. The charter frequently provides that the petition rnust contain the greater of these two: a per- centage or a minimum number. 84 Initiative, referendum, and recall Initiative provisions in charters Most of the charters that provide for initiative prohibit petitions being presented to the council that address appro- priating funds or authorizing the levying of taxes. Occasion- ally, a charter prohibits other initiated actions that the framers of the charter felt were inappropriate for citizen initiation. Requirements on the number of required signatures vary widely. Some cities appear to purposely make it very dif- ficult for voters to initiate ordinances; others have made it fairly easy. The actual requirements reported are: Registered Voters Most Recent Election Percent: 1994 2008 1994 2008 3% .5 1.0 0 0 5% 2.5 2.0 .5 1.0 10% 14.0 18.0 4.0 3.0 15% 9.0 8.0 3.5 3.0 20% 7.0 9.5 15.0 13.0 25% 6.0 2.0 19.0 20.0 30% 2.5 3.0 10.0 9.0 33/33.3% 0 .5 1.0 .5 35% 1.0 .5 0 0 40% 0 .5 1.5 1.0 50% 0 .5 2.5 2.0 51% .5 1.0 0 .5 60% 0 .5 0 0 *Reading the chart: Using line 2 in the left-hand column, the figure means that signatures representing five percent of the voters must be secured; six cities require five percent of the registered voters; one city requires five percent of the last vote. Referendum provisions in charters Many cities and court decisions have declared several areas "off limits" for referendum petitions. Many charters prohibit referendum petitions on: (1) levying taxes, (2) ap- propriating funds, (3) ordinances fixing rates and charges for utilities, (4) annexations, and (5) ordinances authorizing the issuance of bonds that have been authorized by a vote of the people. Some cities prohibit referendum petitions relating to personnel and administrative matters. The requirements re- garding the number of signatures is usually the same as for initiative petitions. Registered Voters Most Recent Election Percent: 1994 2008 1994 2008 3% .5 1.0 0 0 5% 2.0 1.5 .5 1.5 10% 13.5 16.0 3.0 3.0 15% 9.0 7.0 3.0 3.0 20% 6.0 11.0 16.0 12.5 25% 7,0 3.0 21.0 21.0 30% 3.0 3.0 10.0 10.5 33'733.:3% 0 5 1.0 5 35% 1.0 .5 0 0 40% 0 0 0.5 1.0 50% 0 .5 2.5 2.0 51% .5 1.0 0 0 60% 0 0 0 0 "See explanation under Initiative for example of using this figure. Recall provisions in charters The recall sections of charters have several provisions unique to that device. In less than 5 percent of charters, any- where from one -tenth to one-half of all the petitioners must swear in the petition that they voted for the councilmember now the subject of their recall. In even fewer charters, can- didates to replace the councilmember are listed on the ballot, so that if the citizens vote to recall the councilmember, the individual on the ballot with the most votes is elected at that same election to succeed the recalled individual. Charters also vary as to whether accusations against a councilmember in a recall petition can be general or must list specific causes for action. North Richland Hills' charter carries a notation immediately under Article XV on recall stat- ing, "Note: Recall article of this charter has, by implication, been held to be invalid by a district court of Tarrant County in 1991." According to the city attorney of North Richland Hills, the City of Lake Worth had copied the recall provision of North Richland Hills. This provision states: Any city official elected by the people, shall be subject to recall and removal from office by the qualified voters of the city on grounds of incompetency, misconduct, or malfea- sance in office. A petition drive attempted to recall a councilmember in Lake Worth in 1991, and the court ruled that the provision was vague and unenforceable. This was a state district court decision that was not appealed. Therefore, the case's value as precedent is minimal. Most charter provisions on recall have a statement 85 Texas Home Rule Charters that if the mayor or city council does not call a recall election when presented with a valid petition, the county judge shall discharge these duties. Still other charters attempt to place this duty on the district judge. These requirements also pres- ent problems hncairse a city does not have the authority to prescribe duties for a county or district judge. The better rem- edy may be for the charter to provide that any citizen could file with the appropriate court for a writ of mandamus to force the city to call the election. Finally, charters with recall provisions do have some restrictions on use. First, 55 percent of charters give a newly elected mayor or councilmember a few months on the job be- fore they can be the subject of a recall petition. Our survey showed this grace period generally to be six months. Similarly, 26 percent of charters provide that after having weathered a recall election, a councilmember may not be subjected to another recall election within a certain period of time. Our review of the charters showed an array of "wait- ing periods." Again, six months was the norm, but the time frames ranged anywhere from one month to one year. To save money on an election, 12 percent of charters make a specific provision that recall petitions will not be hon- ored within a specified period before the person in question will come up for election. These times range anywhere from three months to one year, with three months being the most common, followed by six months. Finally, there are Texas charters which provide that a councilmember will not be subject to a recall election more than once during a term of office. The survey results in this regard are: Registered Voters Most Recent Election Percent: 1994 2008 1994 2008 3% 0 1.0 0 0 5% 1,5 2.0 0 1.0 10% 9.0 18.0 1.0 3.0 15% 5.0 8.0 .5 2.5 16% 0 0 .5 .5 20% 6.0 9.5 7.5 13.0 25% 6.0 2.0 10.0 20.0 30% 8.0 3.0 20.0 9.0 33/33.3% .5 .5 1.0 .5 35% 2.0 .5 2.0 0 40% 2.5 .5 2.5 1.0 50% 1.0 .5 5.0 2.0 51% .5 1.0 8.0 .5 60% 0 .5 0 0 kSee explanation under Initiative for example of using this figure. I R & R in action Our survey (Appendix A), which was sent to key offi- cials in every Texas home rule city, asked how many tunes each of the three provisions had been used in the last five years. We chose five years because we felt institutional mem- ory in most cities might not extend back beyond that period of time. Initiative results from the survey The initiative was reported to be used in 24 cities, a total of 41 propositions were presented to the voters, resulting in 31 propositions being approved by voters, seven being turned down by the voters, and three petitions being found invalid. The subject of the measures presented by the citizens varied widely -from an ethics ordinance to no smoking ordi- nances, as well as funding for facilities. But the largest num- ber of petitions dealt with freezing property taxes for senior citizens and disabled veterans (authorized by separate state law), all of which were approved. Referendum results from the survey Eleven cities reported use of the referendum in the past five years. A total of 15 propositions were placed on the ballot with 10 being approved, three failing, and two instances where the city council took action, thereby removing the issue from the election process. We attempted to eliminate all char- ter and bond issue votes; our interest was in the traditional use of the referendum petition. Here again, the diversity in subject matter represented all sorts of issues, such as the sale of alcoholic beverages in city parks. Recall results from the survey Twelve cities reported recall elections in the past five years, with disappointing results for petitioners. Of the 28 in- dividuals that were subject to recall, only twelve recall elec- tions resulted in turning out the individual involved; whereas, the remaining 16 elections resulted in a failure to recall. One city reported that while the recall election may have failed, none of the candidates subject to the recall vote were elected in subsequent elections. Summary of survey results Clinton Rogers Woodruff wrote words in 1911 that are still being used by advocates of the three mechanisms. He said there had been too few IR&R elections Lip to that time to justify a sound conclusion, and then added, "it may, however, be fairly argued that their existence constitutes a substantial, and on the whole, an effective safeguard. Their value rests in their existence, rather than in their use."3f This appears to be the case in Texas today, with only 14 percent of all home rule cities being forced into IR&R elections in the last five years. 86 Regulation of utilities is the subject of a separate ar- ticle in almost every charter in the state. Texas court cases indicate that a city's authority to require a franchise from a public utility operating inside municipal boundaries is derived from the statute that grants the city exclusive control of the public streets. In the case of a home rule city, such power is derived from Article 1175, Vernon's Annotated Civil Statutes. All three of the regulatory acts discussed below preserve the authority of a city to require franchise from public utilities. It should be remembered, however, that the right to operate a business in the nature of a public utility cannot be prohibited by a city; the city has only the power to regulate the use of its streets and alleys in the operation of such a business. The overall regulation of utilities, formerly the respon- sibility solely of the city, has changed in the past 30 years. Three different state agencies are involved now in utility reg- ulation —the Public Utility Commission (PUC) for electricity and telephone, the Railroad Commission (RRC) for gas utili- ties, and the Texas Commission on Environmental Quality (TCEQ) for water and sewer utilities. This chapter reviews the general regulatory environment for utilities and then examines some appropriate charter language. Early history of utilities in Texas The cities' relationship with utility services is referred to several times in Dick Smith's dissertation, "The Develop- ment of Local Government Units in Texas." Smith points out that as far back as the days of the Republic, cities were be- ginning to levy license fees on businesses of various types. Houston's special legislative charter issued by the Republic authorized "lighting of the streets" as one of its powers of the city. In the 1870s, cities were authorized to regulate railroads coming through town, including their speed and the construc- tion and lighting of crossings. Cities originally built small lighting plants to light the city; these were steadily bought by private operators who then dominated the marketplace from the 1800s to the present time. Franchises and rate regulation prior to 1975 From the beginning of regulation, cities were author- ized to require companies to obtain permission to use the pub- lic streets and right-of-way to conduct their businesses. Although exclusive franchises could not be granted, one elec- tric and one gas company (public or private) was usually the sole source of supply in any given city. With this privilege, the companies then agreed to regulation of rates, annual pay- ments of "street rental" charges, submission of annual reports to the city, and other regulatory restrictions. Lengthy provi- sions were placed in most early charters addressing every as- pect of these arrangements between the city and companies concerned. In rate regulation, cities were considered generally to be in a better position prior to state law changes made in the 1970's and 1980's. Before passage of the Public Utility Reg- ulatory Act (PURA) in 1975, the Gas Utility Regulatory Act (GURA) in 1983, and amendments to the Texas Water Code (1989), companies had to go to district court if they were dis- pleased with a decision of the city council on rate requests. Under the new legislation, appeals are directed to the Public Utility Commission (PUC), to the Railroad Commission (RRC), or to the Texas Commission on Environmental Quality (TCEQ). Public Utility Regulatory Act (PURA) of 1975 The first comprehensive state regulatory act, the Pub- lic Utility Regulatory Act (PURA), was passed in 1975. Article IV of PURA is devoted entirely to cities. The first statement emphasizes that no provision of PURA shall be construed as limiting the right of a city to grant or refuse franchises to use the streets and alleys within the city limits and to make charges for such use. Secondly, PURA continues the right of a city to en- gage rate consultants and other professionals to assist the city council in ratemaking proceedings. It also provides that the utility shall be required to reimburse the city for reasonable costs incurred for consulting any experts. Appeals from the ratemaking decision may be taken to the PUC (not district court) and may come from the com- pany, the city council, or citizens if the latter can secure a pe- tition. In actual practice, there is not much difference be- tween the actions of most cities that have retained original ju- risdiction and those that have ceded it to the PUC. In both cases, cities are joining with other cities in the same geograph- ical area of the state, and sometimes statewide, to employ ex- pert counsel to oppose rate and/or service requests that they feel are not in the best interests of their ratepayers in the city. This challenge to rate increases is now being mounted by cities before the PUC in virtually every case, instead of trying to defeat the utility in hearings at city hall. Gas Utility Regulatory Act (GURA) In 1983, the Texas Legislature enacted the Gas Utility Regulatory Act. GURA was enacted "to protect the public in- terest in the rates and services of gas utilities." Article III of that act is entitled "Municipalities" and sets out the rights 87 TeXas Home Rule Charters and responsibilities of cities in their relationship with gas companies serving their communities. GURA begins, as does PURA, with the statement that the act does not limit the rights and powers of cities to grant or refuse franchises to use the streets and alleys within its city limits. The act then declares that cities may require gas com- panies to furnish all necessary data in order for the city coun- cil to make a reasonable determination of rate base within the city. Further, the city may employ rate consultants, attorneys, auditors, and others necessary to conduct investigations and advise the governing body in its consideration of any matter brought before the council by the gas company, and the com- pany shall pay any reasonable costs of these services. Finally, the appeal procedure is like that under PURA. The appeal to the Railroad Commission may be made by the city, the gas company, or the citizenry upon the presentation of a petition. Other utility operations Telephone All telecommunication regulation is now under the PUC. Cities no longer have the right to regulate these rates, but are entitled to right-of-way compensation under Chapter 283 of the Local Government Code. Cable television In the past, regulation of cable TV and video providers has moved back and forth between Washington and individual cities; the PUC never had any authority in this arena. Cable and video operations are now under Federal Communications Commission (FCC) regulation, with the PUC granting the au- thority to provide service in the state. As with telephones, cities are entitled to right-of-way compensation under Chapter 66 of the Utilities Code. Taxicabs/limousines These companies are subject to local regulation by the city council. Municipal utilities Electric The PUC has no control over rates charged customers inside city limits by municipally owned electric utilities. Arti- cle IV of PURA states that ratepayers of a municipally owned electric utility outside the city limits may appeal any action of the governing body affecting the rates of the municipally owned electric utility by filing with the PUC a petition for re- view signed by the lesser of 10,000 or five percent of the ratepayers served by such utility outside the municipal limits. The remainder of Article IV sets forth the procedures to be fol- lowed by the ratepayers and the city in the appeal of such rates. Gas GURA has a provision almost identical to PURA in re- gard to ratepayers of a municipally owned gas utility outside the city limits. Water and wastewater The Water Code has, in Section 13.082, provisions similar to PURA. Rates of municipally owned water and wastewater utilities are exempt from regulation by the TCEQ except for service furnished outside the city limits. The franchise article in a home rule charter In our survey and review of city charters, we found that 52 percent of the cities require a majority of the total council to award a franchise. The serious deliberation that one would expect of a decision of this consequence is chan- neled by the majority of cities through two, and in many cases, three required separate readings of the ordinance granting the franchise, with the last reading being at least 15, or more often, 30 days after tho first reading. In addition to these pro- cedures, many cities require either the entire ordinance or a summary of the ordinance to be published in the official news- paper, one time a week, anywhere from one to four weeks. We did find a few charter provisions requiring a fran- chise to be submitted to a referendum of the voters if a peti- tion is presented by a certain number of signers. And the survey found a number of charter provisions that the city "shall have the right to buy, construct, lease, and maintain, operate and regulate public utilities." Several charters specif- ically provided that: No franchise shall be granted, renewed, ex- tended or amended, except on condition that the city shall have the right at any time within five (5) years of the expiration of the term thereof to purchase the property of the franchise holder at a price to be determined according to the method agreed upon in the ordinance granting, renewing, extending, or amending the franchise. Our analysis of street rental fees revealed most city charters provide for collection of this fee but do not specify a rate. Most cities now collect two percent of gross receipts, but some cities collect as high as four percent per year. Keep in mind that cable/video, telephone, and electric franchise fees are now governed by state law. Thus, much of this infor- mation is based on older, preempted charter provisions. Water 88 Franchises and/or gas franchises may be the most prominent exceptions. The original version of this book quoted extensively from ex- ample, perhaps outdated, charter language regarding fran- chises. Because of recent state law changes in this area, a city planning to adopt or amend a charter should visit with local legal counsel regarding franchises. A tally of the figures in number of years for which for which a franchise could be awarded gave these results: 1998 2008 10 years 1% 1% 15 years 2% 1% 20 years 25% 21% 25 years 17% 13% 30 years 15% 10% 31 plus years 10% 6% Not specified in charter 30% 48% TOTAL CITIES 100% 100% Municipally owned utilities Several charters contain an article or, sometimes, just one section on the city's own utilities. The most common sec- tion is one regarding financial statements for municipally owned utilities. The provision below is found in quite a few charters: Sec. 10.10. Accounts of municipal owned utilities. Accounts shall be kept for each public utility owned or operated by the city, in such man- ner as to show the true and complete finan- cial results of such city ownership and operation, including assets, appropriately subdivided into different classes, all liability subdivided by classes, depreciation reserve, other reserves, and surplus; also revenues; operating expenses including depreciation, interest payments, rental, and other disposi- tion of annual income. The accounts shall show the actual capital cost to the city of each public utility owned, also the cost of all extensions, additions, and improvements, and the source of the funds expended for such capital purposes. They shall show as nearly as possible the cost of any service fur- nished to or rendered by any such utility to any other city or governmental department. The council shall annually cause to be made by a certified public accountant, and shall publish, a report showing the financial con- dition of said public utility and the financial result of such city ownership and operations, giving the information specified in this sec- tion and such additional data as the council shall deem expedient. Summary Franchises are like long-term general obligation bonds —the city has made a commitment binding the current city council and councils for years to come. Common sense and public duty dictate prudent action on franchises only after getting the best advice available. Such action should result in the best possible decision for the present and the future. 89 Almost every city charter has a concluding article with con- tents so diverse that we found forty subjects covered in just a random look at seven charters. Altogether, the cities probably cover a 100 topics in this final article. Some of the para- graphs apply only to the particular city. Some emphasize im- portant state laws by repeating them. We have chusen 25 subjects to highlight in this chapter. These subjects are gen- erally the most frequently found in the General Provisions ar- ticle; most of them are important, but do not fit neatly into any other article of the charter. A general summary identified five broad categories: standards of conduct, legal provisions, government operations, remainders and reminders, and con- tinuity in change. Standards of conduct and conflict of interest Various provisions of the Texas Constitution and state statutes cover this general category. But many charters repeat or summarize the law to provide emphasis and easy access for charter readers. Personal or financial interest — Over 78 percent of charters prohibit councilmembers from having any personal or finan- cial interest in any contract with the city. Those charter pro- visions are more stringent than state law. Chapter 171 of the LGC allows councilmembers to vote on matters if they do not have a "substantial interest" in the business concerned; if the councilmember has a substantial interest, then he/she must declare it and refrain from voting. The Beaumont charter speaks specifically re- garding "Personal Interest" as follows: Section 16.9 Officers or Employees Not To Have Fi- nancial Interest in Any Contract of the City. No officer or employee of the City shall have a financial interest direct or indirect or by reason of ownership of stock in any corporation, in any con- tract with the City, or be financially interested di- rectly or indirectly in the sale to the City of any land, materials, supplies, or services except on behalf of the City as an officer or employee; provided, how- ever, that the provisions of this section shall only be applicable when the stock owned by the officer or employee exceeds one percent (1%) of the total capital stock of the corporation. Any willful viola- tion of this section shall constitute malfeasance in office and any officer or employee guilty thereof shall thereby forfeit the office or position. Any vio- lation of this section with the knowledge expressed or implied of the person or corporation contracting with the governing body of the City shall render the contract voidable by the City Council. Some cities have such stringent requirements regard- ing business ownership and financial disclosure that individ- uals with small businesses who might otherwise make excellent councilmembers choose not to run for the council because they do not want to disclose the names of their clients. In addition, financial disclosure requirements were added to state law in 2005 and 2007 (See Chapters 145 and 176, Local Government Code.) Nepotism — Nepotism prohibitions are found in 79 percent of charters, although these prohibitions are typically not more stringent than state law, as has been done with personal and financial interest prohibitions for councilmembers. They have summarized the state nepotism law found in Section 573.041 of the Government Code. The state law, in prohibiting the city council from hiring any person who is related to a coun- cilmember within the second degree by affinity (relationship by marriage) or within the third degree by consanguinity (re- lationship by blood), has three exceptions that many cities do not address. Many charters simply prohibit the potential con- flict completely. The state law prohibition does not apply to relatives who were continuously employed by the city for: (1) at least 30 days, if the councilmember is appointed; (2) at least six months, if the councilmember is elected at an elec- tion other than the general election for state and county of- fices; or (3) at least one year, if the councilmember is elected at the general election for state and county offices. One cau- tious West Texas city prohibits employment within the fourth degree of affinity and consanguinity. Several charters include a nepotism provision applying to the city manager. Acceptance of gifts — This prohibition is covered in 59 percent of charters. In many cities, the prohibition concerns only gifts received from the holder of a franchise. The Texas Penal Code has at least three sections that speak to the general question of gifts: Section 36.02 addresses bribery generally, Section 36.08 addresses bribes in return for help with bids or other financial transactions, and Section 36.09 addresses influenc- ing a public official's conduct or vote. Political activity — Charters in 49 percent of cities have spe- cific provisions outlawing or regulating political activity by city employees. Sections 150.002 and 180.001 of the LGC both prohibit fire and police personnel from taking an active part in another person's political campaign for an elective position 91 Texas Home Rule Charters 7777- 18,100i in the community and prohibit an individual from coercing a fire or police officer to participate, or to refrain from partici- pating, in a political campaign. Many charters have a general prohibition agairrsl officers or employees soliciting other em- ployees for political purposes. La Grange has this language in its charter: Section 11.03 Prohibitions Activities Prohibited: (3) No City official or employee, elected or ap- pointed shall orally, by letter or otherwise solicit or assist in soliciting any assessment, subscription, or contribution for any political party or political purpose whatever from any subordinate City offi- cial or employee holding any compensated City po- sition. (4) No person who holds any compensated City po- sition shall solicit or receive any contribution to the campaign funds of any candidate for municipal of- fice or take any part in the management, affairs, or political campaign of any municipal candidate. Legal provisions Most charters have provisions that set forth certain legal precepts designed to give the city legal standing if taken to court. These include: Construction of charter — A statement that the charter is a general grant of power and is not to be interpreted as limiting in any way. Judicial notice — A typical statement: "This charter shall be deemed a Public Act, and shall have the force and effect of a general law, may be read in evidence without pleading or proof, and judicial notice shall be taken thereof in all courts and places without further proof." Separability/severability/partial invalidity — One of these terms is used to declare that the charter will remain intact even if one section, paragraph, or sentence is declared to be uncon- stitutional. Publicity of records — This provision is generally a brief state- ment reflecting the Texas Public Information Act, which re- quires all city records, with a few exceptions, to be open to the public. City required to give security or execute bond — Usually states that the city is exempt from having to post bond or security in any kind of court case. Provision relating to assignment, execution, and garnishments — States that the city is not subject to these legal procedures. Written notice of injury — Requires that individuals injured by reason of a city's action or lack of action shall be required to give the city written notice of such claim within a certain num- ber of days of the incident. There have boon several cases construing police of claim ordinances to be in violation of the Open Courts provi- sion of the Texas Constitution. In Borne v. City of Garland, 718 S.W.2d 22 (Tex. App. - Dallas, 1986), the court held that the 30-day notice of claim provision in the City of Garland's charter was in violation of the constitution because it did not contain any exceptions such as "good cause" or "actual no- tice." Also, in the case of Fitts v. City of Beaumont, 688 S.W.2d 182 (Tex. App. - Beaumont, 1985, writ ref'd n.r.e), the court held that the city charter provision requiring written notice within 60 days violated the Open Courts provision of the constitution. Both cases generally discuss the statute of limitations in the Texas Tort Claims Act, which is six months, and discuss the fact that there was no exception for good cause shown. As a result of these two cases, cities have amended their char- ters or notice of clairn ordinances to provide specifically that a six-month notice is sufficient if good cause can be shown. These changes were made to address the concern of the court in the above —cited cases. Great caution should be exercised in denying a claim based solely on the fact that notice was not given within the time allowed under the charter or the no- tice of claim provision; however, it is certainly within the city's best interests to know as soon as possible about claims that may be made against it, and a charter provision or an ordi- nance such as this will certainly go a long way in accomplish- ing that purpose. The Temple charter has a detailed section on written notice: Section 3.8. LIMITATION OF LIABILITY FOR DAMAGES Before the City shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of arty kind, the person injured, or the owner of the property injured or destroyed, or someone on his behalf, shall give the City Manager notice in writing of such injury or destruction, duly verified, within sixty (60) days after the same has been sustained, stating in such written notice when, where, and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which claimant will settle, the actual residence of the claimant by street and number, and at the time the claim is presented, and the actual residence of such claimant for six (6) months immediately preceding the occur- rence of such injuries or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim, and, fur- ther, that suit be filed thereon within six (6) months from the date such injuries were re- ceived or destruction suffered; and a failure to 92 I General protions notify the City Manager within the time and manner specified herein and a failure to file thereon with six (6) months from the date such injuries were received or such destruction suf- fered, either or both, shall exonerate, excuse and exempt the City from any liability whatsoever. Further, this section shall not apply to the tak- ing, damaging or destruction of property as guar- anteed and covered by Section 17 of Article 1 of the Constitution of Texas. Oath of office — I he oath for both elected and appointive of- ficials is found in the Texas Constitution. This is one state requirement that does not need to be in the charter. Contractual immunity - Section 51.074 of the Local Govern- ment Code has long provided that a home rule city may "plead and be impleaded" in court. Recently, a plaintiff sued a city, claiming that the language in Section 51.074 provides a waiver of the city's governmental immunity. In Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), the plaintiffs suc- cessfully bid on a city contract whose term was stated to be for a three-year period. Prior to the end of the three years, the city notified them that the city was "discontinuing" the con- tract for lack of funding. The plaintiffs sued for breach of con- tract, asserting that they had relied on a three-year term in purchasing equipment. The Supreme Court of Texas held that the contract covered a governmental function of the city from which it was immune from suit. That immunity was not waived by Section 51.075 of the Local Government Code, which pro- vided simply that a home rule municipality "may plead and be impleaded in any court." In 2005, however, the legislature provided a limited waiver of immunity for contractual disputes between vendors and cities by enacting Subchapter H of Chapter 271 of the LGC. Government operations A wide variety of provisions specifically addressed to city operations may be found in one or more charters. These include authority to: • Condemn dangerous structures, • Provide retirement and health insurance for city employees, • Provide diversity on city boards and commissions, and • Give citizens priority in city employment. Remainders and reminders Many charters have unrelated provisions that do not fit readily in other sections but generally enable actions or serve as a reminder of actions mandated, and may include: Rearrangement and renumbering — Authorizes the city council to rearrange and renumber articles and sections in the charter to place like content together and construct a logical ordering of the articles. Gender — Some charters have a provision to make the charter gender neutral. Recording of the charter — Reminds future city officials of the necessity to comply with Sections 9.005, 9.007, and 9.008 of the LGC, regarding filing the charter with the city secretary and with the Secretary of State's office. Official newspaper — Some charters name the official news- paper in which to publish the official city notices. Continuity in change Most charters have some language that addresses the question of the transition when a city adopts a new charter or makes major structural changes, such as changing the form of government. Provisions that may be found in this regard include: Interim govern me nt/conti n uati on of officers/transfer of power, duties, and responsibilities (charters use one of these terms) —These items are self-explanatory. Several charters might be consulted here for anyone wishing further information on any of the above. Continuance of contracts — States that contracts already in force will not be affected by the new charter. Effective date of charter — Self-explanatory. Adoption of charter — Sets forth a brief report of the charter commission and the date and procedure for election. Disaster clause — Only a few cities have any provision for emergency succession in the event all or a majority of the gov- erning body is killed or incapacitated by some event. The City of Allen has this provision: Section 10.09 Disaster clause. In case of disaster when a legal quo- rum of elected councilmembers cannot oth- erwise be assembled due to multiple deaths or injuries, the surviving member or members of the elected council, or highest surviving city official, if no elected official remains, must within twenty-four (24) hours of such disaster, request the highest surviving offi- cers of the local chamber of commerce and the board of trustees of the local school dis- trict, and the county judge of Collin County to appoint a commission to act during the 93 Texas Rome Rule Charters -- fK � rri.:- � :.;.A,� f r f-1 :. Joy--- v,� -�- �✓�jj' x;. � ^� ../ / emergency and call a City election within fif- teen (15) days of such disaster for election of a required quorum, if for good reasons it is known a quorum of the present Council will never again meet. State law addresses emergency succession for the governor and the legislature and allows local governments to prepare a succession plan to be used in time of disaster. How- ever, the State's Emergency Management Plan requires cities and counties in their local emergency plans to have a section on "continuity of government - line of succession" in which they set out how the city would be governed in the event a legal quorum of the elected councilmembers cannot be as- sembled due to multiple deaths or injuries. Summary This listing of items generally found in a city's charter under the title "General Provisions," is only a sample of the content of Texas charters in this last article. We will repeat that some of these sections are a sum- mary of state law and do not have to be stated in the charter. However, it may be important to repeat some of the more prominent state laws in an appendix to the charter to help in- dividuals reading the charter become fully aware of the rela- tionships of state law to charters and to remind them of some of the basic ground rules of city governance. 94 In Chapter 4, we discussed the legal requirements for adopting a new charter and amending an existing one. We will now consider some of the practical problems in deciding the subject and number of amendments for the ballot. Charter revision commissions Most cities address amendments near the end of their charters. Several charters mandate city council consideration of charter revisions every five or ten years; others provide for appointment of a charter revision commission periodically, but leave details to the sitting council. A small percentage of cities provide instructions for appointment and list detailed responsibilities of a charter re- vision commission. The Pflugerville charter has a section that is typical of these charters: Section 11.11. Charter Review. (a) Charter review commission: Two years after the adoption of this charter and every five years there- after, the council shall appoint a Charter Review Commission composed of not fewer than thirteen nor more than twenty members who meet the re- quirements of section 8.02. Appointment shall be made at the first regular meeting following the an- niversary date of the charter's adoption. The Charter Review Commission shall serve for six months, or a longer term if extended by the city council, and shall meet at least once each month during its term. The mayor shall appoint three members and each council member shall appoint two members to serve on the Charter Review Commission. Remaining members shall be appointed by majority vote of the city council. (b) Rules of procedure: The commission must es- tablish its own rules of procedure, which must re- quire that a quorum consists of a majority of its members and that an affirmative vote of a majority of all members present is necessary to act. (c) Powers and duties: The Charter Review Commis- sion shall: 1. Inquire into the operations of city government and review the city charter to determine whether it requires revision. Public hearings may be held and the commission shall have the power to compel the attendance of city officers or employees and to re- quire the submission of city records necessary to its inquiry and review. 2. Propose any recommendations it deems desirable to ensure compliance with charter provisions by city departments. 3. Propose any charter amendments it deems de- sirable to improve the effective application of the charter to current conditions. 4. Make a written report of its findings and recom- mendations to the city council. (d) Council action: The council shall receive and have published in the city's official newspaper the Charter Review Commission's final report. It shall consider any recommendations and, if any amend- ments are presented, shall order the amendment or amendments submitted to the voters of the city. There are several interesting provisions in that sec- tion. The appointment of such a commission every five years is, in our opinion, a reasonable period of time to call for a re- view of the charter and any problems manifested in the last five years as a result of charter provisions. Some cities man- date a review every ten years. Many charters provide for re- view every two years. Two years may be more frequent than necessary for review of such a basic —presumably general —doc- ument. In addition, to provide for less than two years would be time consuming and impracticable as the Texas Constitu- tion, art. XI, § 5 provides, "Furthermore, no city charter shall be altered, amended or repealed oftener than every 2 years." The commission called for in the Pflugerville charter — and others like it — have the power, by some language or an- other, to inquire into the operations of the city. This is a fairly open-ended invitation for a citizen body and it may account for the reason that only a limited number of charters provide for this type of authority. Several charters require the city council to publish the report of the commission in a public newspaper. In some cases, a summary of the report, including any suggested char- ter amendments recommended by the commission, is re- quired. Another city requires the city council to post in three public places the findings of the commission. Only one city charter states that after publication in a newspaper, if the commission has recommended any charter amendments, "the council shall order such (emphasis sup- plied) amendment or amendments to be submitted to the vot- ers of the City." This last particular provision could have some ramifications, particularly if the city council did not care for one or more of the amendments proposed. Finally, of the charters with redefined charter com- mission responsibilities, almost all of them limit the life of the review commission to six months, at the end of which it is to file its report. 95 Texas Home Rule Charters j� �� rrsv ` ! f 3 u A �3yr i! ��,� - -ti» k �`' -. ��k�� W , 1rlG M_,�,,.,a,� � s .,c,�c . �,� �, ...,�� �uii„�i_., �3,.� ,�„�.. .� � � "0 One community adopted a charter amendment ex- tending the life of the commission for the full four years until appointment of a new commission is required. That same city also has a provision in its charter under which 100 or more citizens (qualified voters) may "require [lie city council to show cause as to an alleged noncompliance with the articles and sections of this charter." These two provisions are not found in any other charter in the state. Both actions appar- ently would require the current city council as well as future governing bodies to live with provisions that were, in all like- lihood, directed to some action(s) of a previous council. The majority of city charters that contain such detail are found in cities with populations below 10,000. Outside of that, there is really no other identifying factor, as they are located throughout the state and are represented in both forms of government. The great majority of charters leave consideration of amendments to the city council. If citizens believe charter revision is necessary, then can inform the city council. If nothing is done, they can replace them. Practical consequences regarding amendment elections Many mayors and councilmembers keep little note- books or other records noting sections, paragraphs, and/or phrases in the charter about which they have questions. At some time during their years of service, one of Lheir personal questions or a particular incident may prompt city councils and city administrators to begin to think about a charter amendment election. Sometimes at a "work session" of the council, the subject is broached and some thinking begins in earnest about the possibility of considering charter amendments. One of the interesting dynamics of this process is that there may be provisions in the charter that the council would just as soon be overlooked. These provisions may include terms of office, the manner in which the council is elected, the appointment of certain officials, or many other matters. There also may be subjects not now in the charter which consideration of a char- ter amendment election would bring to the forefront. The best example here is probably the question of term limits, but it is only one of a number of possibilities that arise when an elec- tion is considered. The numerous possibilities and their com- plexity may lead some individuals to favor keeping the problems in the current charter rather than opening "Pan- dora's box." And this may explain why charters are not amended very often. If the decision is made to go forward and consider re- vision, the council will want to ask the city attorney to devote a substantial amount of time to answering questions about possible amendments and to carefully reviewing the laws af- fecting the charter. TML also is prepared to advise on possible language and answer other types of questions. Cities should pay particular attention to eliminating conflicting language in the charter —language that may exist now or will exist if certain changes are made. Examples pointed out in previous chapters 96 include charters that call for both majority and plurality vote for city council, and others that provide that the city council and the city manager can both terminate employees. A subject that always arises when deciding about an election is how to handle provisions in the charter superseded by state law. It requires serious thought. It is hoped the al- ternatives presented in Chapter 3 may be of some value to city council and charter commissions when reviewing such questions. One city tried to anticipate federal and state law overriding charter language and recently adopted this amend- ment: Amendments to this Charter may be made in the fol- lowing manner: (A) In the event amendment is ne- cessitated by a preemptive state or federal law, by statute, court decision, or adminis- trative action, and such preemptive law or regulation is mandatory in its governance of this City, despite any action by the voters ei- ther for or against such a proposed amend- ment, then, and only in such an event, shall the City Council itself act to amend the Char- ter by ordinance. Upon the passage of such ordinance, a copy thereof, certified by the City Secretary and filed with a copy of this Charter, shall be forwarded to the Secretary of State for filing, as well as certified copies of such ordinance being filed with other ap- propriate offices. This type of amendment has a worthy goal —to keep the charter updated at all times. Unfortunately, state law does not set out this procedure as a recognized method of amend- ing a charter. It is thus presumed that a court would not up- hold this amendment should some legal question arise. Amendment adoption results Our survey instrument asked cities to indicate the date of the last charter amendment election held, the number of voters, the registered voters at that time, population of the city, and the results (number of propositions submitted and number favored by the voters). Several facts stand out as we view the tabulation of those questions. Most charters have been amended fairly recently, more than 42 percent in the last eight years. In response to the question asking the last time the charter was amended, the following answers were given: 11 Charter amendments No amendments 70 Between 1950 and 1959: 3 Between 1960 and 1969: 4 Between 1970 and 1979: 11 Between 1980 and 1989: 38 Between 1990 and 1999: 78 Between 2000 and 2008: 147 These figures would seem to indicate that cities —vol- untarily or pushed by one or more citizens' groups or the elec- torate as a whole —are responding to a variety of demands for changes in the charter. This would include: (1) allowing the city to respond to broader representation on the city council, and at the same time, term limits on city councils; (2) keeping the charter abreast of changes in state laws; and (3) stream- lining administrative responsibility. Charter amendments appear to be a constant at the ballot each year. For elections held beginning in 2000 and through 2007, 112 cities reported a total of 1,227 proposed amendments being placed on the ballot. When asked regard- ing the communities most recent charter amendments, the breakdown was as follows: One amendment elections It is interesting to note that, for elections held begin- ning in 2000 and continuing through 2007, 20 cities pre- sented only one amendment to their voters. Several of the seven cities had no choice because of unique circumstances, but there are significant disadvantages to submitting one amendment: (1) whether one amendment or twenty pass, the city cannot hold another charter amendment election for two years; and (2) whether an election is held to consider one amendment or twenty, the cost would be almost the same. Summary Decisions on charter amendment elections, like many government decisions, evolve more from intuition and practice than rules and law. The historic infrequency (10-20 years apart) of charter amendment elections is, however, a guide: move slowly and cautiously to avoid future confusion and costs. Year # of cities # of amendments submitted to the voters 2000 5 17 amendments 2001 7 94 amendments 2002 7 52 amendments 2003 9 113 amendments 2004 9 106 amendments 2005 20 215 amendments 2006 32 392 amendments, 81 were for 1 city 2007 23 235 amendments, 70 were for 1 city The most discouraging note was probably the voter turnout. It was not unusual in those amendment elections for only one or two percent of the registered voters to turn out. That means that less than 1 percent of the entire population are in some cases making amendments to the city charter. Even when there were a large number of amendments, voter turnout remained low. In 2006, one city proposed 81 amend- ments and only 14 percent of the registered voters partici- pated, which was six percent of the total population approving 80 of the 81 proposed amendments. The following year, an- other city proposed 70 amendments, this time only 11 per- cent of the registered voters cast their vote in the election, again this was 6 percent of the total population. The larger cities typically report more interest and a higher turnout in amendment elections. 97 Editor's Note: This is the original "Afterword" from the 1994 version. It still rings just as true today as it did then. Afterword Before the days of copy machines and computers, the new city manager of a city with 20,000 population was inter- viewing the chief building inspector about the procedures used in administering the zoning ordinance and the building, plumbing, and electrical codes. When the inspector showed him his files, the manager was surprised to see originals of letters to contractors and others rather than file copies. He asked if someone had failed to mail the originals and they got back in the files by mistake. "No," was the reply, "we always mail the carbon copy to the addressee and keep the original in our files. That way our files stay neat and clean. Carbon copies mess up our files." The manager made a note to check the legality of the action and the effect on the recipients who might think receipt of a carbon copy meant the city didn't consider them very im- portant.-' This incident assuredly later became a personnel workshop example of overemphasis on processes rather than goals! This handbook is about structure and processes and does not directly emphasize delivering quality services in an efficient manner. However, we strongly believe that city hall's services can be delivered more effectively and efficiently if we take the time to make our structure and our processes as clean and clear as possible. The danger is in making structure and processes an end rather than a means to an end. A well -written, coherent charter is not an end; it is a foundation on which to build an effective organization equipped to master the challenges fac- ing cities today. Properly drawn, a charter is a legal guideline comparable to a roadmap. It is a continually available refer- ence for principles and requirements to guide actions that avoid policy "potholes." It can be brought forward every five or six years and reviewed to see if any legal provisions need updating. In writing this handbook, we have tried to show the charter as an instrument that should set forth clear instruc- tions on organization, duties, responsibilities, and authority in order that the maximum time and energy of city officials can be expended in "results -oriented" activities. Three conditions of the current status of cities stood out for me as we researched and wrote this book. The first: Texas urban citizens have sharply divided opinions about the effectiveness of their city officials. The positive votes pre- dominant in charter elections statewide and the reluctance to "fire" city officials, evident in unsuccessful recall elections, both reflect more confidence in city government than is shown in the media. Citizen participation is also at an all-time high. On the other hand, low voter turnout, frequent defeat of in- cumbents, and the increasing adoption of term limits for elected officials reflect the national trend toward distrust of governrnenl. The second condition: the council-manager plan is the number one choice as a government form. Only 13 per- cent (Editor's note: now down to nine percent) of the charters call for mayor -council form of government. If you subtract from the number reflected in this percentage the cities utiliz- ing an optional city manager for many years, there are less than 25 charters operating under the mayor -council form of government. The council-manager plan has served the citi- zens of Texas well. Despite talk from time to time in some of the larger cities of changing the form of government, there doesn't appear to be any real sentiment toward change. A charter revision commission in Austin recently showed ab- solutely no interest in discussing the matter as a possible charter amendment. City councils apparently remain dedi- cated to the fact that professional administration is a strong plus for the city. And the third condition: Texas city charters are fairly well -written, but some are sources of problems caused by a weak original draft document. Too many charters appear to have been copied from neighboring cities without considering whether the original was well written and stated correctly. Charter commissions need advice from knowledgeable city ad- ministrators and attorneys as well as other sources on special- ized subjects. Lack of knowledge or carelessness have created documents with contradictions and confusing lan- guage, leading to contradictory and confusing interpretations. The observations above come from reading Texas city charters and the survey data accumulated as part of this proj- ect. The content was a mix of initiative, innovation, borrowed ideas, and local politics. The presentation methods were a mix of bound copies (plain or with color), age -yellowed newsprint copies, stapled copies, and computer printouts with pages not yet separated. The charter language is as diverse as the cities served. Some retain the language of the days when horses and buggies were downtown traffic. Some ex- pound endlessly on every possible legal problem that have only a remote chance of surfacing from now until eternity. Some are so succinct that not a single word is unnecessary. Regardless of the diversity of language, the test of charter quality is whether it establishes a sound legal and pro- cedural structure that enables elected and appointed city of- ficials to focus their total energy on the substantive problems that plague their cities. 99 Texas Home Rule Charters I Challenges facing cities today For 2overninR officials, the advice is embodied in the oath taken more than a thousand years ago by ancient Greeks The most pervasive problems in Texas cities today are the problems of our complex society. Their severity has esca- lated partly because cities have traditionally focused their ef- forts on basic services, such as fire and police, utilities, and street maintenance, rather than personal human service prob- lems. Almost simultaneously with a tight economy, unparal- leled population growth, and cutbacks in funding from state and federal levels, cities are faced now with rising costs for traditional services, and with crime, homelessness, and man- dated environmental cleanup and control. An increasing alienation of citizens disappointed with official response to problems produces the unrelenting pressure of bitter criti- cism, expressed individually and through special interest groups. Sociological problems, particularly crime and drugs, unemployment, and environmental pollution, know no bound- aries. They are not exclusive to large cities but have spread into the small towns as well. Cities need the best in elected and appointed leader- ship to meet and overcome their challenges. Every city needs strong mayors (in both forms of government), dedicated city councilmembers and committed city managers today and for the future. We need leaders who can motivate broad partici- pation, build teamwork, assess and redefine programs and services, develop strategies to link programs and services to citizens, evaluate and utilize community resources, explore new ways to generate revenue, encourage collaboration with other governmental agencies and in the private and nonprofit sectors, promote fiscal responsibility to pay now rather than later, and restore the community -wide view to counterbalance special interest influence. A widely held perception of citizens today is that they are not represented in government, according to William Grei- der, author of Who Will Tell The PeoDle? He says citizens are alienated from government by their inability to find a place where they can make their voice heard and by their conviction that the language of the system, understood by experts but not ordinary people, also shuts them out. It is imperative, he says, for governing officials to invent new ways to get people back in touch with government.38 A review of contemporary comments by experts on city problems today reveals a serious underlying weakness that impedes problem solving —the lack of a sense of common bonds and goals that unite the governing and the governed. It is not a new problem. On the contrary, it is as old as the art of governing; and many voices from the past bequeathed words of guidance. whose culture rested on the political organization of the city- state: WE WILL EVER STRIVE FOR IDEALS AND SACRED THINGS OF THE CITY, BOTH ALONE AND WITH MANY: WE WILL UNCEASINGLY SEEK TO QUICKEN THE SENSE OF PUBLIC DUTY; WE WILL REVERE AND OBEY THE CITY'S LAWS: WE WILL TRANSMIT THIS CITY NOT ONLY NOT LESS, BUT GREATER, BETTER, AND MORE BEAUTIFUL THAN IT WAS TRANSMITTED TO US. For the eoverned, the advice is embodied in the words spoken more than three hundred years ago by John Winthrop, the first governor of Massachusetts Bay Colony: "We must delight in each other, make others' conditions our own, rejoice together, mourn together, labor and suffer together, always having before our eyes our community as members of the same body."39 When Texas city officials and citizens restore their sense of union and commitment, they can build communities in which mutual respect will supersede charter provisions, laws, and the courts as the first consideration for policy and administrative decisions. 100 Notes 1 Concept and history of local Self-government 1. Charles S. Rhyne, The Law of Local Government Operations, p. 1 2. John P. Keith, Citv and Countv Home Rule in Texas, p. 9. 3. City of Clinton v. Cedar Raaids and Missouri River Railroad Co., 24 Iowa 455, 475 (1868). 4. Atkin v. Kansas and Trenton v, New Jersev, 191 U.S. 207, 220-221 (1903); 262 U.S. 182, 185-187 (1923), 5. Dick Smith, "The Development of Local Government Units in Texas," unpublished doctor's dissertation, p. 105. 6. H.P.N. Gammel, ed., Laws of Texas. 1822-1897, as quoted by Smith, p. 110. 7. Ibid, p. 114. 8. Acts 1874, 141h leg., p. 140, ch. 100; 8 Gammel's Laws 142, as quoted in Trueman O'Quinn, Title 28: Cities. Towns. and Villages. Historv. Status. and Function, Revised Civil Statutes of Texas, 1963. 9. Keith, op. cit., p. 24. 10. Delbert A. Taebel, A Citizen's Guide to Home -Rule Charters in Texas, p. 1. 11, Keith, op. cit., p. 29-44. 12. George D. Braden, The Constitution of the State of Texas: An Annotated and Com-parative Analvsis, p. 688. 13. Ibid., p. 688. 14. Bureau of Municipal Research. Units of Local Government in Texas, p. 33. 15. Wilfred D. Webb, Municipal Home Rule Charters in Texas, p. 8. 16. Smith, op. cit., p. 148. 17. State v. Vincent, 235 S.W. 1084 (Tex. 1920). 2 Advantages of home rule status 18. This chapter is lifted almost verbatim from a publication of the Texas Municipal League: They are: Handbook for Mayors and Councilmembers, September, 2009, 19. Forwood v. City of Tavlor, 214 S.W. 2d 282 (1948). 20. Urban Policy Group, the White House (Washington, D.C.: 1978) Unpublished. 5 General design and format of charter 21. Taebel, op. cit. p. 29. 101 i. nc 1a » 1-. iiN `�;.. '•� 3a r' Zi✓ ...F xc... �/ Y ;i r i� /. Y3t,✓• 6 Form of government 22. Chang, Tso Shuen, History and Analvsis of the Commission and Citv Manager Plans of Municipal Government in the. United States, n.d. 7 Powers of city 23. Much of the material in this chapter is taken directly from The Handbook for Mavors and Councilmembers: Home Rule Cities, Texas Municipal League. 8 The mayor 24. Peirce, Neal, Citistates, p. 325. 25. Tari Renner and Victor S. DeSantis, "Contemporary Patterns and Trends in Municipal Government Structure, The Mu- nicipal Year Book, 1993, p. 57-69. See also, Taebel, op. cit., Section 5. 26. For a fuller discussion of the role of the mayor in both forms of government, see James H. Svara, Official Leadership in the Citv: Patterns of Conflict and C000eration. 9 The city council 27. Delbert A. Taebel, "Alternative Reme-dies Under the Voting Rights Act," Public Affairs Comment, p. 5. 28. School of Social Sciences, The University of Texas at Dallas, "City of Dallas, Citizens Charter Review Committee: De- cision Guide," unpaged, 1989. 29. Stone v. City of Wichita Falls, 477 F. Supp. 581 (D.C. 1979); aff'd 646 F 2d 1085; cert. den'd 102 S. Ct. 637, 13 Departments, offices, agencies and boards 30. Herman James, A Model Civil Service Code for Texas Cities. 31. Gammel's Laws, Vol. II, p. 94-99. 32. Ibid. Vol. V, p. 1527-1570. 33. Revised Civil Statutes, Articles 4430-4431. 102 Notes 15 Initiative, referendum and recall 34. For a discussion of the entire initiative, referendum and recall movement, including its historical beginnings, see Thomas E. Cronin, Direct Democracv: The Politics of Initiative. Referendum. and Recall. 35. Ibid. p. 42. 36. Clinton Rogers Woodruff, ed., City Government by Commission, p. 314. Although this book is primarily about the rise of the commission form of government in the United States between 1901 and 1911, it addresses the subject ur IR&R in a substantial way as it argues that the three mechanisms were used in local government in the commission form of govern- ment as one way of assuring the citizenry that the small elected commission could be held accountable to the voters. 19 Afterword 37. LeRoy F. Harlow, Without Fear or Favor, p. 212. 38. See William Greider, Who Will Tell the People. 39. John Winthrop, "A Model of Christian Charity," Puritan Political Ideas. 1558-1794, p. 92. 103 APPENDIX A Texas Municipal League home rule charter survey City: Date: Completed by: E-mail: Title: Phone: Note: Unless otherwise indicated, the answers below should be based on current charter provisions. Please enter all of the information below even if some of it may be spelled out in your charter. If you have questions regarding this survey, please contact Scott Hous- ton with the TML legal department at (512) 231-7400. Form of Government a) Council -Manager b) Mayor -Council c) Commission d) Other Mayor Is mayor member of gov. body? a) Yes b) No Selection of mayor a) Elected b) By council c) Other Authority of Mayor Appoints boards and commissions a) Yes b) No —w/approval of council a) Yes b) No Regular vote a) Yes b) No Vote only in tie a) Yes b) No No vote a) Yes b) No Enumerated ceremonial duties a) Yes b) No Martial law a) Yes b) No Enumerated emergency powers a) Yes b) No Appoint CAO a) Yes b) No Appoint department heads a) Yes b) No — w/approval of council a) Yes b) No Prepare budget a) Yes b) No Mayor veto a) Yes b) No Council Total on council Number of members for regular meeting quorum _ Number of members for special meeting quorum Number of votes for council to take action on ordinary matters a) Majority of those presentb) Majority of quorum c) Majority of total council Residency length requirement a) Yes b) No If yes to previous question a) 6 mo b) 1 yr c) 2 yrs d) Other e) Not specific Reside in district a) Yes b) No Owner of property a) Yes b) No Minimum age Registered/qualified voter Barred if tax delinquent Other qualifications Missed meetings vacancy Council votes to impeach Council votes to override mayoral veto a) Yes b) No a) Yes b) No a) Yes b) No a) Yes b) No a) Yes # b) No a) Yes J# b) No 104 Texas Home Rule Charters Elections In some cities, a federal court or the U.S. Department of Justice has mandated a new way of electing city council members, BUT the charter has not been changed to reflect this new method. If your city council is NOT elected the way your charter currently reads, please check here Uniform election date to hold regular city election a) May b) November c) Other Filling one vacancy a) Appointment b) Election c) Either Filling two vacancies a) Appointment b) Election c) Either Term limit applies a) council and mayor b) Separately c) n/a Terms staggered a) Yes b) No c) n/a Elections by a) Majority b) Plurality Name on ballot a) Fill out form b) Petition c) Other If petition, number of names Fee for name on ballot a) Yes $ b) No Election Turnout Date of most recent mayor/city council election (MM/DD/YY) Contested? a) Yes b) No If yes, number voting in election Total registered at time of election Population at time of election Date of next most recent mayor/city council election (MM/DD/YY) Contested? a) Yes b) No If yes, number voting in election Total registered at time of election Population at time of election Council Meetings Required a) Weekly b) Twice/mo c) Once/mo d) Not specific Actual a) Weekly b) Twice/mo c) Once/mo d) Not specific Mayor Term a) 1 yr b) 2 yrs c) 3 yrs d) 4 yrs Council Term a) 1 yr b) 2 yrs c) 3 yrs d) 4 yrs Term limits a) Two b) Three c) Four d) Four+ e) n/a Mayor Salary Salary a) Yes b) No $ Per: a) Mtg b) Wk c) Mo d) Yr e) Other Salary set by Council a) Yes b) No Expenses: a) Yes b) No $ _ Per: a) Mtg b) Wk C Mo d) Yr e) Other Expenses set by council a) Yes b) No Mayor Pro Tern Salary Salary a) Yes b) No $ Per: a) Mtg b) Wk c) Mo d) Yr e) Other Salary set by Council a) Yes b) No Expenses a) Yes b) No $ _ Per: a) Mtg b) Wk c) Mo d) Yr e) Other Expenses set by council a) Yes b) No Council Salary Salary a) Yes b) No $ Per: a) Mtg b) Wk c) Mo d) Yr e) Other Salary set by Council a) Yes b) No Expenses a) Yes b) No $ Per: a) Mtg b) Wk c) Mo d) Yr e) Other Expenses set by council a) Yes b) No 105 Appendix A City Manager City manager established by charter a) Yes b) No City manager established by ordinance a) Yes b) No "it yes, please enclose a copy of the ordinance. Former member of CC not eligible for a) 1 yr b) 2 yrs c) n/a Manager participates in CC mtgs a) Yes b) No Vote required to hire manager a) Majority b) Majority of CC c) Other Hearing provided to discharge manager a) Yes b) No Council prohibited from interference in personnel matters a) Yes b) No c) n/a All department head appointments require confirmation by council a) Yes b) No If not all dept heads, which of the following require confirmation? Finance Director a) Yes b) No Police Chief a) Yes b) No Other a) Yes b) No Vote required to discharge manager a) Majority b) Mai of CC c) Other City Clerk/Secretary Title Appointed by Term City Attorney Appointed by Municipal Judge Appointed by Term Municipal Court Clerk Appointed by Term Financial Administration Outside audit required Fiscal year begins (month) FY may be changed by ordinance Borrowing auth in anticipation of revenue Limits set on sale of real property Limits set on sale of personal property Vote required for adoption of budget a) City Clerk a) Manager d) CC on rec of Mgr g) Mayor w/CC approval a) 1 yr d) 4 yrs b) City Secretary b) Mgr w/CC approval e) Mayor b) 2 yrs e) Pleasure of CC c) Council f) Mayor on rec of mgr c) 3 yrs f) Other g) n/a a) Manager b) Mgr w/CC approval c) Council d) CC on rec of Mgr e) Mayor f) Mayor on rec of mgr g) Mayor w/CC approval a) Manager b) Mgr w/CC approval c) Council d) CC on rec of Mgr e) Mayor f) Mayor on rec of mgr g) Mayor w/CC approval h) Elected a) 1 yr b) 2 yrs c) 3 yrs d) 4 yrs e) Pleasure of CC f) Other g) n/a a) Manager b) Mgr w/CC approval c) Council d) CC on rec of Mgr e) Mayor f) Mayor on rec of mgr g) Mayor w/CC approval a) 1 yr b) 2 yrs c) 3 yrs d) 4 yrs e) Pleasure of CC f) Other g) n/a a) Yes b) No 1 2 3 4 5 6 7 8 9 t0 11 12 a) Yes b) No a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a a) Simple Majorityb) Mai of CC L 106 I Texas Home Rule Charters If no vote by EOFY Detailed budget requirements Revenues must equal expenditures Transfer of appropriations Capital budget or program Vote required to set tax rate Vote required to submit bond election Purchase limit before CC must act Purchase limit before written bids required Charter maximum tax rate: If, yes: Operating a) Mgr/Mayor's budget effective b) Continuation of last yr c) No provision d) Other a) Yes b) No c) n/a a) Yes b) No c) n/a a) Mgr btwn depts b) w/approval of CC c) Council a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a $ Debt Service $ Total $ Initiative, referendum, recall Charter provides for initiative a) Yes b) No c) n/a If yes, % of a) Registered b) Last vote c) Minimum names If yes, how many times during the past five years has this provision been used by the citizenry and what were the results: Year Subject Resulting Action Charter provides for referendum a) Yes b) No c) n/a If yes, % of a) Registered b) Last vote c) Minimum names If yes, how many times during the past five years has this provision been used by the citizenry and what were the results: Year Subject Resultine Action Voluntary referendum a) Yes b) No c) n/a Charter provides for recall a) Yes b) No c) n/a If yes, % of a) Registered b) Last vote c) Minimum names _ If yes, how many times during the past five years has this provision been used by the citizenry and what were the results: Year Position (Mavor/CounciImember) Result Limits on recall a) Yes b) No c) n/a If yes, not before 6 months a) Yes b) No c) n/a If yes, after unsuccessful election a) Yes b) No c) n/a If yes, before election a) Yes b) No c) n/a Charter and Amendments Year of adoption of first charter Year of latest amendment Charter revision commission required every a) 5 yrs b) 10 yrs c) 15 yrs d) Other e) State Law f) Not addressed Charter revision commission presently underway? a) Yes b) No 107 a�a'.=4t . » ! ..: ', ., . , ,,. .. , „` :.:,� � „ ✓'_,:� ...� rri. ,::,, ,,,� .._,:.?h¢ , :✓,�,� . ...r>� .,.;.�ii .. �'�'' �, ,.,,.��.. s::,; ? ; % ,,.�., .:,ice... . s Charter revision commission presently contemplated? a) Yes b) No If so, what is expected date of charter election (MM/YY) Charter Amendment Election Voter Turnout Date of most recent charter amendment election (MM/DD/YY) Number voting in election Total registered at time of election Population at time of election Number of propositions on ballot Departments established by charter Finance a) Authorized b) Mandated Personnel a) Authorized b) Mandated Legal a) Authorized b) Mandated Planning a) Authorized b) Mandated Police a) Authorized b) Mandated Fire a) Authorized b) Mandated Recreation a) Authorized b) Mandated Park and Recreation a) Authorized b) Mandated Library a) Authorized b) Mandated Health a) Authorized b) Mandated Health Officer a) Authorized b) Mandated Aviation a) Authorized b) Mandated Hospital a) Authorized b) Mandated Other a) Authorized b) Mandated Boards established by charter Board Name Authorized Mandated Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y/N Y!N Y/N Y/N Y/N Y/N Y/N Y/N Personnel/Officers Charter establishes civil service a) Yes b) No c) n/a Charter establishes CS commission a) Yes b) No c) n/a Charter establishes merit system a) Yes b) No c) n/a Personnel department a) Authorized b) Required Personnel rules a) Authorized b) Required Own retirement system a) Yes b) No c) n/a Authorized to participate in retirement/pension system a) Yes b) No c) n/a Political activity prohibited a) Yes b) No c) n/a Acceptance of gifts prohibited a) Yes b) No c) n/a 108 11 Texas Home Rule Charters Nepotism prohibited a) Yes b) No c) n/a Personal interest in contracts prohibited a) Yes b) No c) n/a Miscellaneous Vote required to grant franchise Gross receipts Franchise subject to referendum Maximum franchise (yrs) specified Council required to adopt comp plan Redistricting commission established Eminent domain restrictions Revenue cap Annexation authorized Disannexation authorized a) Majority b) Maj of CC a) 1% b) 2% c) 3% a) Yes b) No c) n/a a) 10 b) 15 c) 20 a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a a) Yes b) No c) n/a d) 4% e) Not specified d) 25 e) 30 f) Not 109 Appendix B, C APPENDIX B Texas Constitution Article XI, Section 5 Home Rule Adoption and Amendments To Charter Sec.5.CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS. Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters. If the number of inhabitants of cities that have adopted or amended their charters under this section is reduced to five thousand (5000) or fewer, the cities still may amend their charters by a majority vote of the qualified voters of said city at an election held for that purpose. The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State. Said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half percent of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent thereon. Fur- thermore, no city charter shall be altered, amended or repealed oftener than every two years. Amended Aug. 3, 1909, Nov. 5, 1912, and Nov. 5, 1991. APPENDIX C Listing of Florae Rule Charters in Texas Displayed on the following pages are the key historical dates for each of the 351 home. rule city governments in Texas. This table begins with the first special congressional acts of incorporation (charter) by the Republic of Texas granted on June 5, 1837, to Houston, Nacogdoches, and 16 other communities (now either nonexistent or general law cities). Seventy-six current home rule cities began existence by passage of a special law, either by the Congress of the Republic of Texas, or the state legislature beginning in 1845. Until about the turn of the century, these acts all began: "An Act Incorporating the city of " However, these laws from the very beginning in 1837 were a form of charter for the community. The first act "to sue and be sued," "to hold and dispose of property," and to form a city government by the election of a mayor and eight aldermen who were authorized to levy taxes, enact ordinances for the preservation of order, and establish schools. We reviewed each of the "special legislative charters" which followed and all of them contained the same general language as above. We have therefore. in this table chosen to use these earliest dates as dates of their first charter. Other than three cases in which the citation is either missing or incomplete, the dates shown below in the second column are the effective dates of the acts shown. Appreciation is expressed to the staff of the Archives Division of the Texas State Library for their assistance in locating these documents. Dates in the other three columns were obtained primarily from city charters and city records, but a portion of these dates also were obtained from Secretary of State records, now housed in the State Library. Cities with footnote' by the date of their charter have changed the method of election and/or composition of their governing body from the way their current charter reads but have not incorporated such change in the charter yet. These changes have been made In each city as the result of an agreed settlement with an individual or organization or a federal court mandating such change. Footnotes 2, 3, and 4 are found only in the second column "Date of First Special Legislative Charter." They are the result of one day, March 20, 1911, in the Texas Legislature when that body approved five special legislative charters, four to be effective only on accept- ance by the local voters and the fifth effective without a vote of the local citizens. Cities with footnote 2 were authorized a special legislative charter, subject to a vote of their citizenry, and such charter was accepted by citizens in the two cities in elections held on the date shown. Cities with footnote 3 were authorized a special legislative charter, subject to acceptance by their electorate, and the charter in question was rejected by the local electorate, thus no date for such proposed charter is shown. One City, Terrell, footnote 4, was granted a special legislative charter on the same date (March 20, 1911) as the other four cities, but no referendum of the citizens of Terrell was provided in this case. 110 City Date of First Date of First Date of Special Home Rule Current Legislature Charter Charter Charter Abilene 1911, + 1962 same Addison ----- 1978 I same Alamo ----- 1979 I same Alamo Heights ----- f 1954 I same Alice ----- Ij 1949 I same Allen ----- I 1979 same Alpine I ----- Ij 1993 I same Alton I ---- I 1992 I same Alvin I ----- Ij 1963 I same Amarillo 1909 I 1913 I same Andrews ----- I 1959 I same Angleton ----- I 1967 I same Anna ---- I 2005 same Alison --`-- I 1920 same Aransas Pass --`-- I 1951 same Arlington ----- I 1920 I same Athens 1856 I 1960 1966 Ij Atlanta I I 1968 same Austin I 1839 1924 I 1953 Azle I 1971 same Balch Springs I ----- I 1990 same Ballinger I ----- I 1963 Sallie Bastrop ( ---- I 2002 I Sallie Bay City I ---- I 1989 I same Baytown I ----- I 1948' I same Beaunxlnt I 1838 I 1919 1947 Bedford I ----- 1966 I Sallie Beeville I ----- 1951 I Sallie Bellaire I ----- I 1949 I Sallie Bellniead ----- I 1955' Salle Belton 1852 I 1914 I 1951 Benbrook --`-- I 1983 Sallie Big ,Spring ----- ! 1926 I Sallie Boerne ! ---- I 1995 , Sallie Bonham I 1848 ! 1947 I Sallie Date of Last Charter Amendment 2006 1993 1992 2007 1999 2007 1995 none 2002 2000 1994 1991 none 2006 2006 2005 1977 2005 1998 1990 2006 2005 none 1996 2002 2003 2008 1978 2006 1961 2005 1998 1995 none 2006 Home Rule Charters In Texas City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter Borger I ----- 1927 1930 1998 ` Bowie ----- 1984 same 2000 Brady ----- 1982 same 2003 Breckenridge ----- 1954 same 1988 Brenham 1866 1920 same 1995 ` Bridge City ----- 1974 same 2002 Brownfield ----- 19541 same 2000 Brownsville 1850 1915 same 2001 Brownwood ---- 1916 same 1996 Bryan ----- 1917 1941 2006 ' Buda ---- 200*1 same none BurkbUrnett ---- 1923 same 2002 u jl Brleson 1969 same 1998 Burnet ---- 2000 same 2006 Cameron 1856 1956 same I 2007 Canyon ----- I 1959 same 1 1990 Carrizo Springs ----- 1959 same 1989 Carrollton ----- I 1961 same 2004 Carthage 1852 1948 same 1986 Cedar Hill 1975 same 2000 Cedar Park I ----- 1987 same none Ij Celina 2007 same none Center ----- 1984 same none Childress I ----- 1917 I same 1988 I Cibolo ---- I 2004 I same none iCisco ----- 1919 1974 none jl I Cleburne 1871 I 1914 1950 I 1986 Cleveland I -- I 1981 I same f 1993 Clute -- f 1957 same I 2001 Coleman ---- 1 1950 same I 2002 (I College Station I I 1952 same 2004 Colleyville - 1977 I same 2005 Colorado City 1948' same I 1988 Commerce I ----- 1954 same 1995 Conroe - - 1965 I same 1999 Converse --- ' 1991 same 2007 Coppell I --- 1986 same 2006 jl Copperas Cove ----- 1979 same 2005 11W, Home HU1e Charters in TeXas City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter Corinth I ---- + 1999 I same I none Corpus Christi I 1846 I 1926 same I 2006 Corsicana I 1854 I 1917 same I 1997 Crockett 1837 I 1964 same I 1996 Crowley ---- 1999 I same Ij 2001 Crystal City ----- 1958 I same 1983 Cuero 1873 1944 I 1969 2001 Dainger6eld 1851 1980 I same I 1989 Dalhart ----- 1960 same I 1979 Dallas 1856 ' 1914 ' same + 1997 Dayton ----- 1976 I same 1992 De Leon ----- ( ( 1919 I same 1992 Decatur ---- I 2002 same 2003 Deer Park ----- ( 1960 same 1981 Del Rio i ( ----- I 1918 1967 2008 Denison I 1873 I 1956 1975 I 1985 Denton I 1866 I 1914 I 1959 I 2006 Denver City I ----- I 1985 I same I 1988 Desoto ---- I 1949 I same I 2007 Diboll ---- I 1962 same I 2009 Dickinson ----- I 1987 I same Ij 2001 Dinunitt ----- I 1990 I same I none Donna ----- I 1957 I Sallie I 1994 Dumas ----- I 1955 I same I 1993 Duncanville I ----- I 1962 I Sallee I 2002 Eagle Pass I ----- I 1918 I 1964 I 2007 Eastland I ----- I 1919 I same I 1998 Edinburg I ----- I 1928 I 1949 I 1996 Edna I ----- I 1966 I same 1884 El Campo ----- I 1954 I same 2007 El Paso 1873 I 1984 I same 2004 Electra I ----- 1917 sallle I 1988 Elgin 05-31-1873 I 1985 I same I 1993 Elsa I ----- 1981 sallle I none Ennis ----- I 1913 I same 1997 Euless I ----- I 1962 sallle I 1995 Evernlan I ----- 1986 I same I 2004 Fairview I ---- I 2006 I same none 113 Home Rule Charters in TeXas City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter Farmers Branch ----- I 1956 same I 1999 Fate ---- 2001 Sallie i none Floresville 2004 Sallie none Flower Mound -- -- 1981 same , 2007 1 Forest Hill ----- I 1976 Sallie I 2007 Forney ---- 1997 same I none Fort Worth 1873 1924 same 2006 Fredericksburg ----- I 1991 same I none I Freeport ----- ` 1949 1960 2004 Friendswood ----- 1 1971 same 2007 li Frisco ----- I 1987 same 2002 I Gainesville 1873 1994 same 1996 l Galena Park ----- 1946 I same 1979 Galveston 1839 1960 1 same 1998 Ij I Garland ----- 1951 same 1994 Gatesville ----- 1966 same 1994 George West ----- 1980 same 1992 Georgetown 1866 1970 I 1986 2003 Giddings 1873 1982 I same 1984 Gilmer ---- 1996 Same I 2007 Gladewater 1874 1955 same 1985 Glenn Heights ----- 1987 I same none Gonzales 1837 1957 same 2001 Gorman ----- 1920 same 1960 1 Graham ----- 1920 Same 1991 1 Granbury ----- 1989 Sallie 2006 1 Grand Prairie ---- 1948 Sallie 1987 1 Granite Shoals ---- 2005 same 2008 Grapevine ---- 1965 same 1992 Greenville 1852 1953 I same 2005 Groves ----- 1953 same 2000 Gun Barrell City ---- 1996 same 2008 I laltonl City ----- 1955 same 2003 Barker Heights ----- 1971 same 1991 1larlingen ----- 1927 Sallie 1987 1learne 1871 1964 Sallie none 1 loath ---- 2002 same none Ilenderson 1845 1947 Sallie I 1985 114 Home Rule Charters in Texas r City Date of First Date of First Special Home Rule Legislature Charter Charter Hereford I ----- I 1952' Hewitt ----- I 1982 Hidalgo ---- I 1994 Highland Part: ----- 1975 Highland Village I ----- 1986 Millsboro I 1866 I 1948 Hitchcock I ----- I 1960 Hondo I ---- I 2007 I lorizon City I ---- I 1997 Horseshoe Bay I 2009 Houston I 1837 1913 Humble I ----- I 1970 Huntsville I 1845 I 1968 Hurst I ----- 1956 Hutto I ---- = 2004 Ingleside I ----- I 1979 Iowa Park I ---- 2008 Irving I ----- 1952 Jacinto City I ---- I 1981 Jacksonville I 1873 I 1931 Jasper 1838 1964 Jersey Village I ----- 1986 Joshua I ---- ' 1998 Katy + ----- I 1981 ' Kaufman 1866 I 1987 Keene ---- + 1999 Keller ----- 1982 Kennedale ---- 1998 i Kermit I --- I 1989 Kerrville ----- I 1942 Kilgore + ----- + 1960 Killeen ----- 1949 Kingsville ----- 1916 Kirby ----- I I 1988 Kyle ---- 2000 La Feria + ---- 1989 La Grange 1837 I 1983 La Marque ---- 19571 Date of Date of Last Current Charter Charter Amendment same same same same same 1981 same same same same same same same same same same same same same same Sallie same same same same same same same same same same same same same same same same same 1979 none 110110 2000 2006 none 1975 none none none 2001 2000 2004 2005 2006 none none 2005 1987 2001 1991 1993 none 2000 2003 none 1995 none none 2008 2006 2005 1994 2000 none none 2001 2004 IMI Home Rule Charters in TeXas City 1 La Porte Lacy Lakeview Lago Vista Lake Dallas Lake Jackson I Lake Worth Lakeway Lamesa Lampasas Lancaster Laredo League City Leander Levelland Lewisville Liberty Little Elm Littlefield Live Oak Lockhart Longview Los Fresno Lubbock Lucas Luton Luling Lumberton Manor Mansfield Marble Falls Madill Marshall Mathis McAllen McGregor IMcKinney Mercedes Mesquite Date of First Date of First Special Home Rule Legislature Charter Charter ----- 1949 ---- 1998 ---- I 2004 ---- I 1998 ----- 1954 ----- 1965 ----- 1990 1848 1837 1852 1871 1866 1844 1854 1945 1986 1956 1981 1962 1998 1949 1963 1958 2002 1959 1976 1973 1923 2007 1917 2008 1919 1977 1999 2007 1975 1986 1977 1913 2000 1927 1979 1913 1971 1953 Date of Date of Last Current Charter Charter Amendment 1980 1990 same none same I none same I 2005 same I 2W6 same � 2W2 same I 2W6 same I 2007 same none same I 2006 same 2006 same 1998 same none same 1992 same 2001 same I 2W6 same none same 1995 same 2006 same 2007 1978 2001 same none same 2004 same none 1966 1994 same 1996 same none some none same 1988 same 2002 same 1993 same 1962 same none same 2007 same 1989 1959 1988 same 2001 same 1987 116 Home Rule Charters in Texas City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter Mexia I 1873 1924 I same I 1999 Midland I ---- I 1940' I same 1996 Midlothian I ----- I 1980 + ' same none Mineral Wells I I 1980 1966 1991 Mission I ----- I 1928 I 1961 1987 Missouri City I _-^-- I 1974 same 1999 Ij Monahans I 1954 , same 1991 Mt. Pleasant 1848 I 1948 I same 2002 Muleshoe ----- I 1960 I same 1979 Murphy ---- I 2004 I same 2004 Nacogdoches 1837 I 1929' I same 2004 Nassau Bay ----- I 1973 I same I 1994 Navasota 1866 I 1922 I 1947 I 1984 Nederland ----- I 1955 I same I 2001 New Braunfels 1846 I 1944 I 1966 I 2005 North Richland Hills ----- I 1964 I same 2002 Odessa ----- 1945 I same 2002 I+ Olney I ----- 1979 I same I 1990 Orange 1856 1914 I 1960 I 2005 Ij Palacios --- I 2004 I same I 2004 Palestine ---- 1917 I 1983 I none Pampa I ----- 1927 I same I 1982 Paris I 1845 I 1948' I same 2007 Pasadena I ----- I 1943 I 1964 1992 Pearland I ----- I 1971 I same I 2006 Pearsall I ----- I 1994 I same I none Pecos City + ---- I 1985 same I 1989 Pllugerville I 1993 I same I 2006 Pharr ----- 1949 same 1989 Pittsburg ' I 2009 I same I none Plainview I ----- I 1920 same I 1997 Plano I 1873 I 1961 I same I 2005 Pleasanton I ---- 1982 same I 1995 Port Aransas ----- I 1978 I same I 1991 Port Arthur 1911 2 1932 1963 I 1992 Port Isabel I ----- 1984 same I none Pant Lavaca I ----- 1956' I same 1972 Port Neches I ----- 1955 I 1967 1983 117 Home RuleChdrters in Tens JN"".'\ 7 9"0 i 5 � ..a` �,. ':,7�. ;: ;. ✓,.,.�7%'�r.�.. ;1 ;s�4 c S���r <.nc, si„ -: ate.... Jr�y' ,. �� ds .%'�- „✓.; �. City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter I Portkuld I ----- (967 "Wile I 1997 IProsper ---- 2006 same. 1101lc OLKIrtalt ! - 1919 Stt111C I {)()t) i Ralwff I - 1911) � sank 1996 IRavillt)ildvilte I ----•- 105S { SWIle 1970 IRed OA 4 -..... 1997 ( S£1t11C 11011C I Richarkisol '---- 1950 ` 1()<110 2007 I Richland hills --- - It)R(1 salllc 1995 Rio (irtt+ld City I 200() , San,c MMW I Riticr Oaks --- 1949 tiuttlL I 1957 r t .oallo k,e •• w •^• 2008 Robinson 1999 Rtll,1948 Si(1<4'tl {I 1 _____ 1{) 1� `ittlt'_._._..__ { �'S 1)8 1 1978, S£ttlle Flcltlt I Rockport ( I S? 1 1 {)83 s.tlllc � 7004 I I Rockwall I - 1087 1993 IKonia I 2007 4 Sati,o I 110 tt', l t)sclll.,s'3' 19561 I Stii77i 2007 I IRflltt,d Rock ( ----- 1977 '.A{2Yllt', ' 00,81 Ruv, lets ----- 1980 2003 Rovse City 2004 2007 I Rusk 15?(i .... ...... ___._.-. I9S7 �_.__..__........,. satmc 1996 I"'acl)"w ' ----- ! 86 ti;nnr _1006 I5<1itl{t)\ I - - S1,10ll: tt{tnc `;an ; maelo ----- 191 ,:trnr NU()? I San Antonio i :t' 1951 �anlc 2004 ;lll ticilltit -__ 1<t�t} ti;(itit j 2007 € ,+011 JM117 - 1 t) Sitttl<' )lot)C nt ti'iit{ 4)h I`){' anlr 't)t}S 5ft13�t'i' ---- 1 `)tj`l tniC i}{}(y tianta t c - 1 {}81 itttti 1101l SeAlrook titat�rc�t iilc' I QW) tint {k) 1 tic;il} ( 906 ;attic t 't1t)b Scumn 1853 197I sank ticnlirlolc I - 1991 118 Home Rule Charters in Texas City Date of First Date of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter Sherman 1873 I 1915 I 1973 I 2007 Silsbee ----- I 1956 I same I 1987 Simon ----- I 1966 I same I 2005 Slaton ----- + 1929 I same + 1994 Snyder I ----- , 1952 I same 1989 Socorro ---- 2001 I same none Southlake I ----- 1987 I same 2007 Stafford ---- 2004 I same none Stamford ----- 1918, I same 1955 Stephenville ----- 1961 I same 2001 Sugar Land ----- 1981 I same 2004 Sulphur Springs 1852 I 1947 I same 1983 Sweeny ---- 2000 I same none Sweetwater ----- 1913 I 1947 ' 1983 Taylor -----3 1914' I same 2001 Temple I 1907 ' 1922 I 1953 2000 Terrell I 19114 1973 same 2004 Teri -ell Hills ----- ' 1957 I same ( 1996 Texarkana 1907 I 1960 I sane f 1983 Texas City I ----- I 1946 ( same I+ 1952 The Colony ----- I 1979 I+ same 1987 Tomball ( ----- 1987 same 1995 Trophy Club --- 2004 same I none Tulia ----- I 1972' I I Tyler 1850 I 1915 I same 1937 none I 1990 Universal City ----- I 1972 I same I 1989 University Park ----- I 1989 I same I 2006 Uvalde ----- I 1934 same I 1999 Vernon ----- 1916 same I 1999 Victoria I 1840 1915 1956 1994 Vidor ----- I 1969 I same 1998 Waco 1856 I 1913 1958 I 2005 Wake Village -- I 2001 I same I none Wataugaa ----- I 1980 I Sallee I 2007 Waxahachie 1871 I 1916 I 1971 I 1975 Weatherford I 1858 I 1918 I same I 1983 Webster I ---- I 1994 same I 2005 Weslaco I ----- I 1927 I same 1994 119 Texas Home Rule Charters City Date of First Bate of First Date of Date of Last Special Home Rule Current Charter Legislature Charter Charter Amendment Charter West Orange ----- 1956 same 2005 West University Pl. ----- 1940 1983 2007 1 Wharton 1866 1970 same 2003 White Oak ----- 1994 same none White Settlement ----- 1954 same 2005 Whitehouse ---- 1996 same 2006 Wichita Falls ----- 1913 1920 2006 Willis ---- 2008 same none Windcrest ---- 2007 same none Woodway ----- 1973 same 1994 Wylie ----- 1985 same 1998 YOaku177 ----- 1915 1988 none 5 Sources: Hans Peter Neilson Ganmzel, compiler, Laws of Texas, 1822-1897. Ann Arbor, MI: University Microfilms. Session Laws, Legislature of the State of Texas. Records, Office of the Secretary of State, Texas. Charters, Secretary of State's Record Group (RG 307), Archives Division, Texas State Library, Records, Offices of City Secretaries/Clerks, home rule cities, Texas. 120 Appendix APPENDIX D LOCAL GOVERNMENT CODE CHAPTER 9. HOME -RULE MUNICIPALITY Sec. 9.001. ADOPTION OR AMENDMENT OF HOME -RULE CHARTER. This chapter appliPF; to the adoption or amendment of a municipal charter by a municipality authorized to do so by Article XI, Section 5, of the Texas Constitution. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 9.002. SELECTION OF CHARTER COMMISSION. (a) The governing body of the municipality may, by an ordinance adopted by at least a two-thirds vote of its membership, order an elec- tion by the voters of the municipality on the question: "Shall a commission be chosen to frame a new charter?" The governing body shall by ordinance order the election if presented with a petition signed by at least 10 percent of the qualified voters of the municipality. (b) The election ordinance shall provide for the election to be held on the date of the municipality's next general election scheduled after the 30th day but on or before the 90th day after the date the ordinance is adopted. However, if no general election is scheduled during that period that allows sufficient time to comply with other requirements of law, the election shall be ordered for the first author- ized uniform election date prescribed by the Election Code that allows sufficient time to comply with other requirements of law and that occurs after the 30th day after the date the ordinance is adopted and published in a newspaper published in the municipality. (c) The ballot at the election on the question prescribed by Subsection (a) shall also provide for the election from the municipality at large of a charter commission to draft a charter if a majority of the qualified voters voting on the question of choosing a charter commis- sion approve the question. The commission must consist of at least 15 members, but if it has more than 15 members it may not have more than one member for each 3,000 inhabitants of the municipality. The ballot may not contain any party designation. (d) The provisions of Subsections (a), (b), and (c) regarding the selection of a charter commission do not apply to the first charter elec- tion in a municipality if: (1) (A) the governing body of the municipality selects a charter commission; (B) a charter commission is selected at a mass meeting; or (C) the mayor of the municipality appoints a charter commission; and (2) the charter commission has proceeded with the formation of a charter for the municipality. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 9.003. VOTE ON CHARTER. (a) The charter prepared by the charter commission shall be submitted to the qualified voters of the municipality at an election to be held on the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with other re- quirements of law and that occurs on or after the 40th day after the date the charter commission completes its work. The governing body of the municipality shall provide for the submission of the charter at the election to the extent that the provisions for submission are not prescribed by general law. (b) Before the 30th day before the date of the election, the governing body of the municipality shall order the municipal clerk or the mu- nicipal secretary to mail a copy of the proposed charter to each registered voter of the municipality. (c) The charter commission shall prepare the charter so that to the extent practicable each subject may be voted on separately. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1, Sec. 87(b), eff. Aug. 28, 1989. Sec. 9.004. CHARTER AMENDMENTS. (a) The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election. The governing body shall submit a proposed charter amendment to the voters for their approval at 121 Texas Rome Rule Charters ,....� .' a an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller. (b) The ordinance ordering the election shall provide for the election to he. held on the first authorized uniform election date pre- scribed by the Election Code or Lin the earlier of the date of the next municipal general election or presidential general election. The election date must allow sufficient time to comply with other requirements of law and must occur on or after the 30th day after the date the ordinance is adopted. (c) Notice of the election shall be published in a newspaper of general circulation published in the municipality. The notice must: (1) include a substantial copy of the proposed amendment; (2) include an estimate of the anticipated fiscal impact to the municipality if the proposed amendment is approved at the election; and (3) be published on the same day in each of two successive weeks, with the first publication occurring before the 14th day before the date of the election. (d) An amendment may not contain more than one subject. (e) The ballot shall be prepared so that a voter may approve or disapprove any one or more amendments without having to approve or disapprove all of the amendments. (f) The requirement imposed by Subsection (c)(2) does not waive governmental immunity for any purpose and a person may not seek injunctive relief or any other judicial remedy to enforce the estimate of the anticipated fiscal impact on the municipality. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg., ch. 1219, Sec. 5, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1349, Sec. 76, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 414, Sec. 1, eff. September 1, 2007. Sec. 9.005. ADOPTION OF CHARTER OR AMENDMENT. (a) A proposed charter for a municipality or a proposed amendment to a municipality's charter is adopted if it is approved by a major- ity of the qualified voters of the municipality who vote at an election held for that purpose. (b) A charter or an amendment does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the charter or amendment is adopted. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 9.006. CONCURRENT ELECTIONS. This chapter does not prevent the voters at an election to adopt a charter or an amendment to a charter from electing at the same election persons to hold office under the charter or amendment. Acts 1987, 70th Leg., ch. 149, Sec. 1 , eff. Sept. 1, 1987. Sec. 9.007. CERTIFICATION OF CHARTER OR AMENDMENT. (a) As soon as practicable after a municipality adopts a charter or charter amendment, the mayor or chief executive officer of the mu- nicipality shall certify to the secretary of state an authenticated copy of the charter or amendment under the municipality's seal show- ing the approval by the voters of the municipality. (b) The secretary of state shall file and record the certification in his office in a book kept for that purpose. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 9.008. REGISTRATION OF CHARTER OR AMENDMENT; EFFECT. (a) The secretary or other officer of a municipality performing functions similar to those of a secretary shall record in the secretary's or other officer's office a charter or charter amendment adopted by the voters of the municipality. If a charter or amendment is not recorded on microfilm, as may be permitted under another law, it shall be recorded in a book kept for that purpose. (b) Recorded charters or amendments are public acts. Courts shall take judicial notice of them, and no proof is required of their provisions. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. 122 r AppendixE, F APPENDIX E Texas Constitution Article XI, Section 11 Term of Office Exceeding Two Years and Vacancies Sec.11.TERM OF OFFICE EXCEEDING TWO YEARS IN HOME RULE AND GENERAL LAW CITIES; VACANCIES. (a) A Home Rule City may provide by charter or charter amendment, and a city, town or village operating under the general laws may provide by majority vote of the qualified voters voting at an election called for that purpose, for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years; provided, however, that tenure under Civil Service shall not be affected hereby; provided, however, that such officers, elective or appointive, are subject to Section 65(b), Article XVI, of this Constitution, providing for automatic resignation in certain circum- stances, in the same manner as a county or district officer to which that section applies. (b) A municipality so providing a term exceeding two (2) years but not exceeding four (4) years for any of its non -civil service of- ficers must elect all of the members of its governing body by majority vote of the qualified voters in such municipality, and any vacancy or vacancies occurring on such governing body shall not be filled by appointment but must be filled by majority vote of the qualified voters at a special election called for such purpose within one hundred and twenty (120) days after such vacancy or vacancies occur. (Added Nov. 4, 1958; amended Nov. 6, 2001.) (TEMPORARY TRANSITION PROVISION for Sec. 11: See Appendix, Note 3.) APPENDIX F Texas Constitution Article XVI, Section 40 Dual Office Holding Sec. 40. HOLDING MORE THAN ONE OFFICE; EXCEPTIONS; RIGHT TO VOTE. (a) No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace, County Commissioner, Notary Public and Postmaster, Officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States and enlisted men of the National Guard, the National Guard Reserve, and the Organ- ized Reserves of the United States, and retired officers of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and the officers and directors of soil and water conservation districts, unless otherwise specially provided herein. Pro- vided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted man of the National Guard, and the National Guard Reserve, or an officer in the Officers Reserve Corps of the United States, or an enlisted man in the Organized Re- serves of the United States, or retired officers of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and retired warrant officers, and retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and officers of the State soil and water conservation districts, from holding at the same time any other office or position of honor, trust or profit, under this State or the United States, or from voting at any election, general, special or primary in this State when otherwise qualified. 123 Texas Home Rule Charters (b) State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts. Such State employees or other individuals may not receive a salary for serving as members of such governing bodies, except that: (1) a schoolteacher, retired schoolteacher, or retired school administrator may receive compensation for serving as a member of a governing body of a school district, city, town, or local governmental district, including a water district created under Section 59, Article XVI, or Section 52, Article I II; and (2) a faculty member or retired faculty member of a public institution of higher education may receive compensation for serving as a member of a governing body of a water district created under Section 59 of this article or under Section 52, Article 111, of this constitution. (c) It is further provided that a nonelective State officer may hold other nonelective offices under the State or the United States, if the other office is of benefit to the State of Texas or is required by the State or Federal law, and there is no conflict with the original office for which he receives salary or compensation. (d) No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law. (Amended Nov. 2, 1926, Nov. 8, 1932, Nov. 7, 1972, Nov. 6, 2001, and Sept. 13, 2003.) 124 Appendix G APPENDIX G Texas Constitution Article XV1, Section 1 Official Oath ARTICLE 16. GENERAL PROVISIONS Sec.1.OFFICIAL OATH. (a) All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation: ..I, , do solemnly swear (or affirm), that I will faithfully execute the duties of the office of of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God." (b) All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the du- ties of office, shall subscribe to the following statement: „I, , do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, con tributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withhold- ing of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God." (c) Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Sub- section (a) of this section. All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office. (Amended Nov. 8, 1938, and Nov. 6, 1956; Subsecs. (a)-(c) amended and (d)-(f) added Nov. 7, 1989; Subsecs. (a) and (b) amended, Subsecs. (c) and (d) deleted, and Subsecs. (e) and (f) amended and redesignated as Subsec. (c) Nov. 6, 2001.) (TEMPORARY TRAN- SITION PROVISION for Sec. 1: See Appendix, Note 3.) 125 Bibliography This bibliography is highly selective, representing the author's Munro, William Bennett, ed. The Initiative, Referendum and Re - judgment about basic references in the areas discussed in this call. National Municipal League Series. New York: D. Appleton and book. It includes the sources of information listed in the notes Co., 1912. for the individual chapters. Beard, Charles A. and Birl F. Shultz. Documents on the State - Wide Initiative, Referendum and Recall. New York: MacMillan Co., 1912. Blodgett, Terrell. Municipal Home Rule Charter Elections in Texas. Austin: Institute of Public Affairs, The University of Texas, 1950. Bojorquez, Alan. Texas Municipal Law and Procedures Manual. Denton: Texas Municipal Clerks' Association, Fifth Edition. Braden, George D. The Constitution of the State of Texas: An Annotated and Comparative Analysis. Austin: Texas Advisory Commission on Inter -governmental Relations, 1977. Brischetto, Robert and Engstrom, Richard. Cumlative Voting and I atino Representation: Exit Surveys in Fifteen Different Commu- nities. 78 Social Science Quarterly 973 (1997). National Civic League. Guide for Charter Commissions. 5th ed. Denver: National Civic League Press, 1991. Handbook for Council Members: in Council -Manager Cities. 5th ed. Denver: National Civic League Press, 1992. Model City Charter. 8th ed. Denver: National Civic League Press. Muncy, Analeslie. Texas Municipal Election Law Manual (4th Ed.). O'Quinn, Trueman. Cities, Towns and Villages: History, Status and Function. Kansas City, Mo.: Vernon Law Book, 1963. Peirce, Neal R. Citistates: How Urban America Can Prosper in a Competi-tine World. Washington, D.C.: Seven Locks Press, 1993. Renner, Tari and Victor S. DeSantis. "Contemporary Patterns and Trends in Municipal Government Structure." The Municipal Year- book 1993, Washington, D.C.: International City -County Manage- ment Association (1993). Chang, Tso Shuen. History and Analysis of the Commission and City Manager Plans of Municipal Government in the United Rhyne, Charles S. The Law of Local Government Operations. States. University of Iowa Monographs: Studies in the Social Kingsport, Tenn.: Kingsport Press, 1980. Sciences, Vol. VI. Iowa City: University of Iowa, n.d. Cronin, Thomas E. Direct Democracy: The Politics of Initiative, Referendum, and Recall. (A Twentieth Century Fund Book) Cambridge, Massachusetts: Harvard University Press, 1989. Gammel, H. P. N., ed. The Laws of Texas, 1822-1897. 10 vols Austin: Gammel Book Co., 1898. Greider, William. Who Will Tell the People: The Betrayal of American Demo-cracy, New York: Simon and Schuster, 1992. Harlow, LeRoy F. Without Fear or Favor: Odyssey of a City Man- ager. Provo, Utah: Brigham Young University Press, 1977. Jarnes, Herman G. A Model Civil Service Code for Texas Cities. Austin: Bureau of Municipal Research and Reference. The Uni versity of Texas, 1914. A Model Charter for Texas Cities. Austin: Bureau of Municipal Research and Reference. The University of Texas, 1914. Keith, John P. City and County Horne Rule in Texas. Austin: In- stitute of Public Affairs, The University of Texas, 1951. Lyndon B. Johnson School of Public Affairs. Local Government Election Systems. Policy Research Project Report. No. 62. Austin: The University of Texas, 1984. School of Social Sciences, The University of Texas at Dallas. "City of Dallas, Citizens Charter Review Committee: Decision Guide." Dallas, 1989. Smith, Dick. "The Development of Local Government Units in Texas." Ph.D. diss., Harvard University, 1938. Stewart, Frank M. "What Municipal Home Rule Means Today." Na- tional Municipal Review. New York: National Municipal League, July, 1932. Svara, James H. Official Leadership in the City: Patterns of Con- flict and Cooperation. New York: Oxford University Press, 1990. Taebel, Delbert A. A Citizen's Guide to Horne Rule Charters in Texas Cities. Arlington: Institute of Urban Studies, The University of Texas at Arlington, 1985. "Alternative Remedies Under the Voting Rights Act." Public Affairs Comment, Lyndon Baines Johnson School of Public Affairs, The University of Texas, Austin (Fall 1990) 37, no. 1. Taebel, Delbert A. and Stapleton, Bruce. Home Rule Charters in Texas Cities. Arlington: Institute of Urban Studies, The University of Texas at Arlington, 1978. V 126 Bibliography Texas Municipal League. Handbook for Mayors and Councilmem- bers. Austin: November, 2009. U.S. Advisory Commission on Intergovernmental Relations. Measur- ing Local Discretionary Authority. Washington D.C., 1981. State Laws Governing Local Government Structure and Administra- tion. Washington, D.C., 1993. Weaver, Leon. "Nonpartisan Elections in Local Government." De- troit: Citizens Research Council of Michigan, 1971. Webb, Wilfred, MuniriPal HnmP Rule Charters in Texas. Austin: Bu- reau of Municipal Research, The University of Texas, 1947. Winfrey, Mary Evelyn. "Municipal Home Rule in Texas." Thesis, The University of Texas at Austin, 1931. Winthrop, John. "A Model of Christian Charity, "Puritan Political Ideas, 1558-1794, ed. Edmund S. Morgan. Indianapolis: Bobbs- Merrill, 1965. Woodruff, Clinton Rogers, ed. City Government by Commission. New York: D. Appleton and Co., 1911. 127 Index Abilene, 39 ACIR, see U.S. Advisory Commission on Intergovernmental Relations Addison, 74 Alamogordo, N.M., 38 Aldermen, board of, 37 Allen, City of, 93 Allen, Ivan Jr. and Sr., 33 Alpine, 52, 59-60 "Alternative Remedies Under the Voting Rights Act" Public Affairs Comment, 38 (note 27) Amarillo, 25, 59, 70, 84 Amendment procedures on charter revision commissions, 22-23, 95, 99 on preclearance, 20, 22 Andrews, 38, 55 Annexation full, 6, 13, 30 limited purpose, 12 see also Disannexation see also Powers of cities Aransas Pass, 76 Audit annual financial, 13, 51-52 Austin, 35, 37, 43, 52, 56, 66, 84, 99 Balch Springs, 71 Bay City, 34, 35 Beard, Charles A. Documents on the State -Wide Initiative. Referendum and Recall, 126 Beaumont, 79, 91-92 Bellaire, 36 Blodgett, Terrell Municipal Home Rule Charter Elections in Texas, iii Boards, and commissions creation of, 10 established by charter, 72 generally, 72 personnel and civil service, 15, 69 planning and zoning, 10, 15, 30, 68-69 Bojorquez, Alan. Texas Law and Procedure Manual. 5th Ed., 66 Braden, George D. The Constitution of the State of Texas: An Annotated and Com- parative Analysis, 2 on interpretation, Texas home rule charter amendment, 2 Brischetto, Robert. Curnlative Voting, 78 Social Science Quarterly 973 (1997), 38 Brownfield, 39 Brownwood, 71 Bryan, 1 Buda, 26 Budgets amendments, 78 annual operating, 13, 73, 75-76 calendar, 76 capital, 79 contents, 76-77 execution and monitoring, 77-79 fiscal work plan, 76 operating, 76-77 preparation, 75 Bureau of Municipal Research, UT Austin, see Institute of Public Affairs Capital Improvements Plan (CIP), 79 Carrollton, 77 Cassella, William N. Jr., iv Celina, 26 Challenges, cities today, 100 Chang, Tso Shuen History and Analvsis of the Commission and City Manaver Plans of Municipal Government in the United States, 25 (note 22) Charter commission election, 19-20 guidelines, 20 Charters home rule. see home rule charters legislative, special. see special legislative charters Childress, 71 Childs, Richard, 33 CIP. see Capital Improvements Plan Cisneros, Henry, 33 Citistates: How Urban America Can Prosoer in a COmpetitive World (Neal R. Peirce), 33 Cities. Towns and Villaees: Historv. Status, and Function. (Trueman O'Quinn), 2 (note 8) A Citizen's Guide to Home Rule Charters in Texas Cities (Delbert A. Taebel), iii, 2 (note 10), 23 (note 21), 34 (note 25) Citv and Countv Home Rule in Texas (John P. Keith), hi, 2 (note 2), 2 (note 9), 2 (note 11) City attorney, 10, 36 City council absences from meetings, 52 compensation, 10, 45 election methods. see Election methods, city council filing requirements, 44 fringe benefits, 45 history, 25 investigations, 51 liability, personal, 45 meetings, 11, 48 ordinances, passage of, 11, 49 orientation, 47 powers, 9-12, 47 prohibitions, 51 qualifications, 11, 43 resolution, passage of, 49 staff, 12, 45 technical regulations, Codes of, 50 128 TeXid Rome RUIe Charters term limits, 9, 41-43 term of office, 40-41 vacancies, 10, 53 City employees political activities, 17, 91-92 residency, 15 Citv Government by Commission (Clinton Rogers Woodruff, ed.), 86 City manager appointment and removal, 13, 59-61 duties, 61-63 qualifications, 60 residence, 60 "City of Dallas Citizens Charter Review Committee: Decision Guide" (School of Social Sciences, UT at Dallas), 41 (note 28) City secretary, 10, 36 Civil service charter mandated, 70 fire and police, state, 15, 70 Civil War, Affects Texas cities, 1 Claims, notice of, 92-93 Codification of ordinances, 11-12, 50 Coleman, 71 Colleyville, 44, 52 Commission form of government history, 25 in Texas, 25 in United States, 25 Comprehensive plan, 68-69 Conflict of interest, 16-17, 91 "Contemporary Patterns and Trends in Municipal Government Struc- ture" Municipal Yearbook, 34 (note 25) Constitution, Texas. see Texas constitution The Constitution of the State of Texas: An Annotated and Comoara- tive Analvsis (George D. Braden), 2 Corpus Christi, 37, 69 Corsicana, 71 Council-manager government characteristics, 26-27 history, 25 Texas total, 26 U.S. total, 25 Cronin, Thomas E. Direct Democracv: The Politics of Initiative. Referendum. and Recall, 83 (note 34 and 35) Cumulative voting. see Election methods, city council; Andrews, city of; and Lockhart Independent School district Dallas, 2, 26, 33-36, 40, 52, 56, 66, 84 Debt long term, 14, 80-81 ad valorem tax bonds, 13, 81 certificates of obligation (COs), 14, 81 short term, 14, 80-81 time warrants, 81 DeLeon, 29, 30-31, 35 Del Rio, 36 Denton, 25, 65 Denver City, 76 Departments, city creation of, 65 established by charter, 72 health function, 71-72 planning function, 68-69 DeSantis, Victor S. "Contemporary Patterns and Trends in Municipal Government Structure" Municipal Yearbook, 34 (note 25) "The Development of Local Government Units in Texas," Ph.D. diss. (Dick Smith), 1 (note 5), 3 (note 16), 87 Dillon, Judge J.F., 1 Direct Democracv: The Politics of Initiative. Referendum. and Recall (Thomas E. Cronin), 83 (note 34 and 35) Disannexation, 12 Documents on the State -Wide Initiative. Referendum and Recall, (Charles E. Beard and Birl E. Shultz), 126 El Campo, 39 Elections city council, 37-40 dates, 56 initiative, 6, 15, 83-86 law, see Texas Election Code recall, 6, 15, 83-86 referendum, 6, 15, 83-86 uniform dates, 11, 56 see also Election methods, city council Election methods, city council at -large, 37 al -large by place, 37-38 bullet voting, 38 cumulative voting, 38, 55, 9, 17 generally, 9-11, 37 majority voting, 10, 39, 55-56 mixed systems, 39 Plurality voting, 39, 55-56 preferential voting, 38-39 single -member districts, 37-38 survey results, 40 El Paso, 26, 59, 66, 70 Emergency succession, 12, 93-94 Ennis, 37, 71 Farmers Branch, 60 Federal communications commission. see Franchises Federal voting rights act. see Voting rights act, federal Financial administration 129 q l'l Q s ti // ;. \3 acv„3, \.'.--x..., / ✓ l ..N;� _/.a .a 3l/�� budget, 13, 74-79 fiscal year designation, 74 property tax, 13, 74-75 revenues, other, 13, 75 Fire and police civil service law, state, see also Civil service Fiscal year, 74 Forms of Government changing form, 26-27 determinant, major, in new home rule cities, 26 history in Texas, 25-26 status in U.S., 25 Fort Worth, 26, 39, 52, 56, 66, 84 Franchises cable TV, 88 electric, 88 gas, 88 generally, 15 water and wastewater, 88 history in Texas, 87 home rule charter provision, 88-89 rate regulation, 15, 87-88 gas utility regulatory act (GURA), 87-88 public utility regulatory act (PURA), 87-88 survey of charters, 89 taxicabs, limousines, 88 telephones, 88 Friendswood, 41, 44 Fringe benefits. see City council; Mayor Galveston, 25, 43, 71, 83 Gammel, H.P.N., ed The Laws of Texas. 1822-1897, 1 (note 6 and 7), 120 (note 31 and 32) Garland, 45, 92 Gas utility regulatory act (GURA). see Franchises General law cities eligibility for home rule, 5 influence on home rule charters, 26 Georgetown, 69 ,72 Gorman, 21, 38-39 Governing body of city. see City council Graham, 42 Grand Prairie, 62 Greider, William Who Will Tell the People: The Betraval of American Democracv, 100 Groves, 71 Guide for Charter Commissions, 5th ed. (National Civic League), 20 GURA. gas utility regulatory act. see Franchises Handbook for Council Members: in Council -Manager Cities, 5th ed (National Civic League), 126 Harlow, LeRoy F. Without Fear or Favor: Oclvsse.v of a City Manager, 99 (note 37' Health and Safety Code, Texas, 71 History and Analvsis of the Commission and Citv Manager Plans of. Municipal Govern-ment in the United States, (Chang, Tso Shuen), 25 (note 22) Hitchcock, 26 Horne rule charters adoption procedures, 19 on charter commission, 20 on federal voting rights act, 22 on first charter, 19 on history, 1, 2 on later charter, 20 on preclearance, 22 on preemption, state, 9, 17-18 on submitting to voters, 21 format, 23 Home Rule Charters in Texas Cities (Delbert A. Taebel), iii Home rule cities advantages, 5-7 annexation, 12, 30 concept, 5 enabling act, 2 limitations, 6 model charter (NCL). see Model city charter powers, 5-7, 29-32 Home rule doctrine, Texas. see Supreme Court, Texas. Forwood v. Citv of Tavlor Home rule. see Home rule charters, and Home rule cities Home Rule Cities: Handbook for Mavors and Councilmembers (Texas Municipal League), 5 (note 18), 29 (note 23), 45, 49, 51 Horseshoe Bay, 26 Houston, 25, 26, 33, 34 35, 43,56, 66, 71, 73, 87, 101 Huntsville, 52 Hiirst, 66 Initiative charter provisions, 85 survey results, 85 Initiative, referendum and recall charter provisions today, 85-86 definition, 6 early history, 83 at local level, 83-84 in model city charter (NCL), 84 The Initative. Referendum and Recall. National Municioal League Series (William Bennett Munro, ed.), 126 Institute of Public Affairs, UT Austin, iii Iowa Park, 26 International City -Management Association. see ML nrci.pal Yearbook Jacksonville, 6, 40, 42 James, Herman G. A Model Charter for Texas Cities, 3 James, Herman G. 130 0 Index A Model Civil Service Code for Texas Cities, 70 (note 30) Jonsson, Eric, 39 Judge, Municipal Court, 67-68 Justice Department, U.S., 20, 21, 37, 39, 55 Keith, John P. Citv and Countv Home Rule in Texas, iii, 1 (note 2), 2 (note 9) on criticism of Texas constitution home rule amendment, 2 (note 11) Killeen, 47 La Grange, 92 Lake Worth, 85 Laredo, 26, 40, 60 The Law of Local Government Operations (Charles S. Rhyne), 1 The Laws of Texas. 1822-1897 (H.P.N. Gammel, ed.), 1 (note 6 and 7), 71 (note 31 and 32) League City, 26 Lee, Richard, 33 Legislative charters. see Special legislative charters Local Government Election Systems, Policy Research Report No. 62, 126 Longview, 45 Los Frasmos, 26 Lubbock, 36, 39 Lucas, 26 Lyndon B. Johnson School of Public Affairs Local Government Elec- tion Svstems, Policy Research Project Report No. 62, 126 MALDEF. see Mexican -American Legal Defense Fund Mansfield, 52, 68 Marble Falls, 65 Mayor appointment powers, 36 budget role, 35 compensation, 34-35 charter language, 34 fringe benefits, 45 history in America, 33-34 in council-manager form, 12, 34 in mayor -council form, 12, 34 powers, 35-36 selection, 34 staff, 36 strong/weak, 26 terms, 36 vacancies, 36 veto, 35 vote, 35 Mayor -council government characteristics, 9, 25 history, 25-26 Texas total, 26 U.S. total, 25 Mayor pro tem, 47 Measuring Local Discretionary Authoritv (U.S. Advisory Commission on Intergovernmental Relations), 127 Mercedes, 52 Mesquite, 70 Mexican -American Legal Defense Fund (MALDEF), 39 Mission, 67 Missouri City, 45, 51 Model Charter for Texas Cities. A (Herman G. James), 3 Model City Charter revision committee, ii Model Citv Charter,-8th ed. National Civic League (NCL), iv, 20, 23, 32, 49, 55, 59, 60, 61-62, 65, 78, 84 Model Civil Service Code for Texas Cities. A (Herman G. James), 70 (note 30) "Model of Christian Charity, A," Puritan Political Ideas. 1558-1794, 127 Morgan, Edmund S., ed. "A Model of Christian Charity," Puritan Po- litical Ideas. 1558-1794, 127 Muleshoe, 47 Municipal Clerks Association, Texas, 66 Municipal Annexation Act, 6 Municipal Corporations (cities), 1 see also Home rule cities Municioal Home Rule Charter Elections in Texas (Terrell Blodgett), iii Municioal Home Rule Charters in Texas (Wilfred Webb), iii "Municipal Home Rule in Texas" (Mary Evelyn Winfrey), 127 Municioal Yearbook, 23, 34, 59 (note 25) Munro, William Bennett, ed. The Initiative. Referendum and Recall. National Municipal League Series, 126 NAACP. see National Association for the Advancement of Colored People National Association for the Advancement of Colored People (NAACP), 48 National Civic League Guide for Charter Commissions, 5th ed., 20 Handbook for Council Members: in Council -Manager Cities, 5th ed., 126 Model Citv Charter, 8th ed., iv, 20, 23, 32, 49, 55, 59, 60, 61- 62, 65, 78, 84 National Municipal League (NML). see National Civic League Nepotism, 17, 63, 91 New Braunfels, 1 NML. National Municipal League. see National Civic League "Nonpartisan Elections in Local Government" (Leon Weaver), 127 Nonpartisan elections, 56-57 North Richland Hills, 70, 85 Oath of office, council, 47, 93 Official Leadership in the Citv: Patterns of Conflict and Cooperation (James H. Svara), 36, (note 26) Official newspaper, 93 Open meetings, 11, 48 131 Index 1 Sri f r -'� , ^r'„ /� �!'ui /s 6 �`Y �.,:'. .sY.,,. Open records (publicity of records), 92 O'Quinn, Trueman Cities, Towns and Villaees: History. Status and Function, 2 (note 8) Orange, 73 Paris, 41 Partisan elections, 57 Pasadena, Texas, 25, 26, 34, 35, 36, 56 Pasadena, CA, 39 Pearland, 42 Peirce, Neal R. Citistates: How Urban American Can Prosoer in a Comoetitive World, 33 Peoria, IL, 38 Pflugerville, 80, 95 Pittsburg, 26 Population bracket bill, 2 drop below 5,000, 3 qualification for home rule, 2, 19 Port Arthur, 39 Port Neches, 43 Powers of cities, home rule annexation, 12, 30 DeLeon charter, 30-31 inherent, 29 police, 15, 29 preemption, state, q-18, 29 Property tax. see Financial administration Property Tax Code, State, 1979, 13, 74 Public utility commission, 87-89 Public utility regulatory act (PURA). see Franchises PURA public utility regulatory act. see Franchises Purchasing and contracts construction, 14, 30, 79, 80 personal property, 14, 80 state law, 80 supplies and materials, 80 Qualifications for office election code, 43 filing requirements, 44 financial disclosure, 44 home rule exceptions, 43-44 see also Mayor; and City council Railroad commission, Texas, 87, 88 Raymondville, 73 Recall charter provisions, 6, 15, 85-86 survey results, 86 Redistricting commission, 40 Referendum charter provisions, 6, 15, 85 survey results, 86 Renner, Tari "Contemporary Patterns and Trends in Municipal Government Structure" Municipal Yearbook, 34 (note 25) Representative democracy, 83 Republic of Texas, 1, 37 Rhyne, Charles S. The Law of Local Government Operations, Richland Hills, 47 Rockport, 42 Rosenberg, 51 Sachse, 43 San Angelo, 35, 71 San Antonio, 26, 33, 34, 35, 39, 56, 60, 66 San Augustine, 1 San Juan, 50 San Marcos, 44, 52 Schertz, 43 School of Social Sciences, UT at Dallas "City of Dallas Citizens Charter Review Committee: Decision Guide," 41, (note 28) Secretary of State, Texas, iv, .3, 22, 93, 96, 120 Seminole, 76 Sherman, 40 Shultz, Birl E. Documents on the State -Wide Initiative, Referendum and Recall, 126 Single -member districts. see Election methods, city council Smith, Dick "The Development of Local Government Units in Texas," Ph.D. dins., 1 (note 5), 3 (note 16) South Padre Island, 26 Special legislative charters history, 1-2 after 1912, 2-3 Stamford, 21, 71 Standards of conduct, 16-17, 91-92 Stapleton, Bruce Home Rule Charters in Texas Cities, iii State Laws Governine Local Government Structure and Administra- tion (U.S. Advisory Commission on Intergovernmental Relations), 127 State of Texas emergency plan, 94 Stewart, Frank M. "What Municipal Home Rule Means Today," 126 Sturzl, Frank, ii, iii Supreme Court, Iowa. see Dillon, Judge J.F. Supreme Court, Texas. Forwood v. City of Taylor on Texas home rule doctrine, 5 Sweetwater, 27, 38, 39, 73 Svara, James H. 132 I Index Official Leadership in the Citv: Patterns of Conflict and Co- operation. 36 (note 26) Taebel, Delbert A. "Alternative Remedies Under the Voting Rights Act." Public Affairs Comment, 37, no. 1, 1990, 38 (note 27) on alternative voting systems, 38 A Citizen's Guide to Home Rule Charters in Texas Cities, iii, 2 (note 10), 23 (note 21), 34 (note 25) Home Rule Charters in Texas Cities, iii Taylor, 5, 25 TCEQ. see Texas Commission on Environmental Quality Temple, 1, 27, 73, 92 Term limits, 9, 41-42 Terms of office length, 40-41 limits, 41-43 Terrell, 25 Texas City, 26, 52 Texas Commission on Environmental Quality 87, 88 Texas Constitution dual office holding, 16 election by majority, 10, 53, 55 filling vacancies, 10, 53 home rule amendment, 3 oath of office, 47, 93 standards of conduct, 16 terms of office, 9 Texas Election code, 10, 11, 43, 44, 55, 56 Texas Local Government Code (LGC). see specific subject Texas Municipal Election Law Manual_ (4th Ed.), Analeske Muncy, 66 Texas Municipal Law and Procedures Manual, (5th Ed, Alan Bo- jorquez), 66 Texas Municipal League (TML) Handbook for Mavors and Councilmembers. 5 (note 18) legal department, as information source, 20, 45, 48, 66, 75, 80, 96 Texas tort claims act, 45, 92 see also City council, liability The Colony, 52, 78 TML. see Texas Municipal League Texas uniform budget law, 13, 75, 77 U.S. Advisory Commission on Intergovernmental Relations (ACIR) Measurine Local Discretionary Authoritv, State Laws Governing Local Government Structure and Administration, 126 Vacancies. see City council Vernon, 39 Victoria, 39 Voting rights act, federal, 20-22, 32 Waco, 42, 84 Weatherford, 45 Weaver, Leon "Nonpartisan Elections in Local Government," 127 Webb, Wilfred, Municipal Home Rule Charters in Texas, iii Webster, 49 Welch, Louie, 33 West University Place, 65 "What Municipal Home Rule Means Today" (Frank M. Stewart), 126 Wichita Falls, 70 Willis, 7, 26 Who Will Tell the People: The Betraval of American Democracv (William Greider), 126 Windcrest, 26 Winfrcy, Mary Evelyn "Municipal Home Rule in Texas," 127 Winthrop, John "A Model of Christian Charity," Puritan Political Ideas, 1558-1794, 127 Without Fear or Favor: Odvssev of a Citv Manager (LeRoy F. Harlow), 99 (note 37) Woodruff, Clinton Rogers, ed. Citv Government by Commission, on value of initiative, referendum, and recall, 86 Woodway, 40 133 Sixth Edition Guide for Charter Commissions Chapter One: Introduction to the Charter Process Chapter Two: The Charter Review Chapter Three: The Charter Document Chapter One Introduction to the Charter Process It is difficult to think of any aspect of American life that isn't in some way affected by local government. In fact, of all levels of government local government is typically the most common point of governmental contact for the average citizen. While individuals may interact with representatives of the state or federal government a handful of times in their lifetimes, they will interact with local government employees on a much more frequent bay ,is as they speak to a police officer, pay their water bills, or greet those collecting household trash. Quite a lot is expected from local governments. They provide a vast array of services to residents, everything from public safety to utilities, recreation, education, transportation, storm water management, zoning and land use regulation and enforcement, construction permitting and inspection, and much more. And while cities, towns, villages, and counties are increasingly expected to be self-reliant in providing these services, they are also expected to execute policy mandates handed down from state and federal governments. Local governments are also expected to adjust to changing times and expectations. For example, there was a time when there were no cities providing recycling services. However, a heightened sensitivity to environmental concerns brought that issue to the forefront. Today, recycling is a common service provided at the local level that a growing number of citizens have come to expect. Without a doubt, managing and administering the business of local government is a challenging task that requires those in leadership positions to carry out an expanding array of public services efficiently and effectively day after day. The journey of a local government is one fraught with challenges and achievements, successes and failures, risks and rewards. One of the most interesting things about local governments is the flexibility they have in (urging their own paths. Within some constraints set by state law, municipal governments create their own futures through the decisions made by citizens and local elected officials. One important way that a local government controls its own destiny is through its charter. A charter is the foundation of a local government and functions as the municipal equivalent of a state or federal constitution, setting forth guiding principles for governance. Composed by citizens, a charter specifies the most fundamental relationships between a government and its community. It establishes the framework for how a local government operates in terms of its structure, responsibilities, functions, and processes. The way public officials are elected, the form of government, and the role citizens play in local government are just a few examples of the important choices articulated in a charter. Because a charter is the vehicle that allows a local government to officially control its operations, many cities adopt a charter soon after formal incorporation as a municipality. And, in spite of the differences in the legal status of cities and counties, many counties also adopt charters. This is particularly the case with counties that perform functions similar to those commonly provided by municipalities. A charter can be amended by following the process set out in its respective state constitution and sometimes in the charter itself. Although some states permit the council to make charter changes, any charter amendment proposed by a charter commission must be formally considered by the citizens in an election, or referendum, before it can be officially incorporated into the charter. Citizen approval is important because a local government's charter influences virtually every aspect of its operations, for better or for worse. Having competent, responsive, and effective individuals filling elected and administrative positions is critical to the success of any local government. The charter plays a role in this as well. If the local government runs efficiently, effectively, and openly, it is viewed in a positive light. Capable and civic -minded citizens are much more likely to volunteer their time and talents to an organization that is well -regarded. On the other hand, good men and women are reluctant to align themselves with a struggling government guided by an ineffective or out-of-date charter. Whether those in public positions are experienced or novice, they are much better positioned to be effective in moving the community forward if the locality is working with a well -constructed charter. Clearly, the benefits of an effective local charter are far-reaching. Reviewing the Charter - The Big Picture When facing a new or unfamiliar task, it is often helpful to step back and examine the "big picture." So, what brought you here? What has led your community or local government to the place where an examination of its charter is warranted? What are you trying to achieve? Understanding the circumstances surrounding the charter process is important. There can be many different reasons behind the initiation of a charter commission. Here are a few examples: ■ a law requires periodic evaluation of the charter ■ a small (but growing) city becomes increasingly complex, but is operating with an out-of-date charter that is simply not working any more ■ residents desire a more representative body of elected officials ■ a vocal group wants to change the existing form of government ■ a newly -incorporated local government needs to draft its first charter ■ widespread community discontent regarding a string of governmental policy or project debacles triggers an interest in making changes to the charter ■ residents desire greater governmental accountability ■ a newly -elected slate of public officials calls for change - including charter revisions ■ poor governmental performance is linked to overly -restrictive charter provisions ■ city officials realize that the charter conflicts with state law ,iatever has occurred in your local government to trigger an examination of its charter, it is critical that the reasons behind the effort be understood and carefully scrutinized. Initiating a process to change a local government charter should never be a "knee-jerk" reaction to a recent problem. If it is entered into by choice, a charter review should be undertaken only after serious consideration. Why Review the Charter? Most local governments are fortunate to have charters that were written by civic -minded and well-meaning individuals who engaged in serious deliberation and thoughtful discussions as they made charter -related decisions. There are reasons behind why the charter of each community was written as it was. However, new generations come into leadership positions with new ideas. Leaders of each generation need to learn, by precept and experience, what the previous ones had come to accept as true through experiences of their own. And, as is so common in local governments, dissenters emerge from time to time and criticize the "outdated" charter document created in the distant past and question how it could be relevant and useful today. Reviewing the charter does not necessarily mean changing the charter if it is sound in design. In some cases, the charter review can be viewed as a routine "check-up" that may find the patient is healthy. Many local governments have made changes to their charters since they were first adopted. Periodic general review can be a useful exercise. Some charters have added multiple revisions overtime without a comprehensive review while other revisions resulted from earlier efforts to carefully reform the charter. While updating and changing a charter can be beneficial, it should only be done for the right reasons within the proper context. A charter commission carries a ighty burden in exercising its judgment to determine which features should changed and which should be retained. So, why are charter changes necessary? The easy answer is "because things change" or "because we want to see real change in our local government." But the easy answer is not always the right answer. Changing a charter is not a cure-all. Many local governments are able to turn things around and make sweeping organizational changes without changing their charters. Examples abound of newly -elected public officials, innovative city managers, and creative department heads who have made considerable positive impact on the communities they serve without modifying their respective city charters. On the other hand, demographics, economics, and dynamics of cities, townships, and counties change over time. And, that may mean the values of the community have changed as well. For example, because of the unique characteristics of a growing number of residents living in different geographic pockets of the rity, the public interest aright be better served with council members elected by districts instead of at -large. Vocal representatives from the flni_rrishing business community may join together to support the idea of adding a professional manager to the city administration. Many consider the election of a fresh slatP of public officials to be a solution to poor governMerrt performance, waste, or corruption. This kind of wholesale change certainly can and has made a difference in many local governments. However, sometimes efforts by even the most seasoned and well-intentioned elected officials can be stalled or thwarted by an overly -restrictive charter. In some cases, only after charter revisions are in place can public officials make significant strides to improve governmental operations, processes, or policy. Things change with the passage of time, and so should charters. The process of writing a charter or drafting charter amendments is not an easy undertaking. This is by design. A charter provides stability and consistency to a local government. The charter writing process is a major task that has long-lasting impacts - not just for the local government, but also for its residents. Therefore, broad community involvement is needed. The process requires the commitment, time, and talents of citizens and governmental staff. Ultimately, voter approval is necessary for the proposed charter or charter changes to take effect. It is not a task that should be entered into lightly. When to Consider Changing the Charter ,Nnot every local government issue is a charter issue. Most problems governments face have nothing to do with the quality of the charter. Manyt concerns about the workings of local government can (and should) be handled other ways. There is a danger to making changes to a charter when those changes could be achieved another way. In as much as charter changes can bring about positive results, they can also produce overly cumbersome procedures, unjustifiable advantages for certain groups, and onerous restrictions on governmental leaders. So, before a decision is made on whether or not to pursue a desired change through the charter, other possibilities should be considered first. The following questions are suggested to sort out how best to address the area(s) of concern: 1. Can this problem be solved by the passage of an ordinance? 2. Can this problem be addressed with an administrative measure (such as amending an existing departmental or city-wide administrative policy or procedure)? 3. Does the mayor or city manager already have the authority to make changes that might address this problem? 4. Should a solution to this problem be sought by getting new officials in office? 5. Might state legislation address this problem more effectively than a change to the local charter? If the answer to any of these questions is "yes," that alternative should probably be tried first. While many problems could be solved through a charter amendment, most problems can be addressed more efficiently other ways. Furthermore, many local government services and regulations are mandated by federal or state law. In other words, altering a municipal charter cannot be eliminate or change policies or requirements established at higher levels. What Charter Change Can and Can't Do So what can charter change do? And, perhaps more importantly, what can it not do? charter change CAN... ■ alter a form of government so the new form is better aligned with the preferences of citizens ■ restrict or increase options available to governmental leaders ■ alter electoral representation ■ clarify ambiguity or confusion caused by existing charter language ■ redistribute powers among elected officials, appointed officials, and governing bodies as well as between city officials and citizens ■ set the stage for governmental leaders to achieve desired changes ■ convert elected governmental positions to appointed positions or vice versa Charter change CAN'T... ■ automatically increase the quality of governmental products and services ■ eliminate political in -fighting and make elected officials achieve consensus (although governmental form can affect the likelihood of conflict) ■ expand the scope of municipal powers in states without home rule ■ jumpstart the local economy ■ decrease local crime ■ improve the school system ■ stop a controversial public project ■ change or eliminate state -mandated activities A charter can easily become an tediously detailed document that hamstrings those in office as they work toward improving services, streamlining governmental functions, or reorganizing departments by severely limiting available options. While a certain level of control over governmental action is necessary and appropriate, balancing control with organizational and process flexibility and discretion should be the ultimate objective of any charter. Does Our Problem have a Charter Solution? Sometimes when a local government faces a difficult challenge, leaders consider conducting a charter review in an attempt to find a solution. In these cases, an objective and well-informed decision should be made that changing the charter is the best path to take. Some charters include a provision requiring a formal charter commission be appointed from time to time (every five or ten years, for example) to conduct a thorough review of the charter. In other cases, a charter review may be statutory - mandated by state law. This kind of routine examination may or may not involve an attempt to "fix" something that appears to be broken in the local government. So, what kinds of challenges justify convening a charter commission? The following are a few challenging topics faced by local governments that often warrant an examination of the charter. A Charter -Created Problem: This kind of problem is one that originates in the charter. It, therefore, can only be addressed by a change to the charter. For example, a city with a charter that establishes a rotating mayor (in which the mayoral position rotates between council members every year) may determine that this system for selecting a mayor is no longer effective. Over time, it has become evident that while many competent individuals have served as mayor, recurring problems continue. It appears that the real problem has nothing to do with the actions or abilities of those who have served as mayor over the years. Instead, the problem appears to be the rotating mayor system established in the charter. To address this, the rotating mayor system must be changed in the charter document. Lack of Formal Power: Regardless of the home rule status of a state, all local governments are able to adopt a charter to establish basic principles for local governance. Local government powers cannot be assumed by adopting an ordinance, enacting state -enabling legislation, adopting a new administrative policy or procedure, or taking any other action emanating from the city council, county commission, the mayor, or the city manager. If the local government has not assumed the available state -specific powers through its charter, the city's authority will be limited unnecessarily. I his challenge is faced by a recently -incorporated city functioning without a municipal charter. The city must adopt a charter that assumes all powers available to it so the city can exercise its legal authority and have formal control over all aspects of its operations. Form of Government: Governmental structure matters. The way a local government is structured affects how decisions are made and how the everyday business of government is carried out. This is particularly true with the form of government. When the values held by citizens about how the government functions are not in line with the values inherent to the city's particular form of government, a local government may consider changing its structure. This kind of structural problem requires a charter solution. A word of warning should be mentioned here. A form of government should never be changed in response to the desire, action, or inaction of a particular person. Changing a form of government does not change a person's leadership style, personality, approach to management, or preferred political strategies. Therefore, changing form of government should never be aimed at providing a person with more power. For example, the current mayor in a council-manager city may argue that he or she needs more power to an effective leader and changing to a mayor -council form will allow him or her to be more successful. This argument falls short for two reasons. First, future mayors may not be as effective as the current one. Changing a form of government Is not a short- term solution. Once the form is changed to mayor -council, city government would depend heavily on the mayor's political and administrative leadership under the leadership of both effective mayors and ineffective mayors. Second, mayors can exert substantial leadership within the council-manager form when they bring together a clear majority and set goals for the city manager. Finally, altering the city's form of government should never be used as a weapon to eliminate a person from the organization. If there is dissatisfaction with the person serving as city manager, for example, this person should be removed by the council rather than shifting from a council-manager to a mayor -council form and eliminating the position of city manager. While a change to the form of government might be pursued to give a position (such as the office of mayor) more or less power or different responsibilities, it should never be pursued to remove a specific person (such as the individual serving as city manager), to give a specific person (such as the individual serving as mayor) more or less power, or to change how a particular individual behaves. The question of whether change in form should be considered and, if so, which form should be chosen is a major issue in some charter reviews. A preliminary discussion of factors to consider in choosing form of government is presented as an appendix to this chapter. For additional information, see The Model City Charter published by the National Civic League. Once a general consensus exists that convening a charter review commission is the right approach or convening a commission is required by the charter, work may begin. The Road Ahead Residents of a community have the right and responsibility to shape their local government. While the level and extent of citizen participation may vary, a process of actively and effectively engaging citizens should be at the heart of any charter creation or revision. One of the first steps in changing a local government's charter is identifying a group of individuals who may be willing to ' serve on a charter review commission or a steering committee. A charter review commission is a body authorized by law and exists for the sole purpose of drafting and ultimately submitting to the voters either a new charter or revisions to an existing charter. Like a constitutional convention at the state or national level, a charter review commission closely examines the government and its present charter, studies the experience of other cities or counties under their respective charters and forms of government, determines the best principles of local government to build into proposed charter changes, d then drafts a new charter, charter amendments, or a presumably improved charter. Because the commission is Typically composed of community residents who are not involved in daily governmental operations, the commission, by design, is able to be objective and impartial in its evaluation. While the individuals appointed to this commission may be chosen various ways, there are some common features of their work that are consistent across the country. For instance, there is typically a time constraint placed on the commission to complete its work, the commission encourages and solicits citizen input, and the final commission recommendations are considered by voters at the polls. The group of individuals chosen to serve on this commission is charged with a unique and important civic -minded task. An opportunity to serve one's community in this way typically comes once in a lifetime. Fur Lhermore, if voters approve the changes, the commission's work will trove lasting impact for many years to come. Because each local government is unique in its strengths, community dynamics, power structures, and personalities, there is not one "right" way to conduct a charter review. This Guide is designed to be used in conjunction with the latest edition of The Model City Charter published by the National Civic League. The Model City Charter, which is judiciously updated from time to time to remain current and relevant, has proven extremely useful to many local governments that have written new a new charter or amended an existing charter. This Guide is intended to complement the Model City Charter by providing helpful suggestions and strategies aimed at facilitating what many consider a complex and overwhelming task: the process of charter review. Appendix Which Form of Local Government is Right for Us? A charter specifies a form of government. Because of its significance, a local government's form of government arguably influences every facet of its operation. Therefore, it is one of the most fundamental issues lu address In the early work of a charter commission. Oftentimes, form of government is not on the table for discussion. However, for many cities, the underlying form of government is fair game. It is certainly a matter of discussion for a newly -formed city writing its first charter. It is hard to exaggerate the significance of a city's underlying form of government. A city's form of government is the constitutional and legal basis for assigning authority and functions to government officials and creates its overall framework. Form shapes the nature of official roles and channels interactions into likely patterns of relationships, i.e., who talks to whom, who gives instructions to whom, and how are those instructions interpreted and acted on by the recipient. The United States is unique in having widespread use of two forms of government based on different constitutional principles. The essential differentiating characteristic is whether power is divided between the mayor and the council as in mayor -council governments, or resides in the council as in council-manager governments. A city's decision about governmental form should be made only after a thorough and thoughtful examination of the different forms, the governmental characteristics represented by each, and the qualities local citizens would like to see in their government. This single decision will arguably influence more facets of government than any other. If the community is discussing form of government as a part of the charter review process, it might be helpful to step back and ask why form of government is on the table. As mentioned earlier, governmental form is a critical and necessary question for a city establishing its first charter. In other cases, a city in the midst of charter ieforrn may consider moving away from its current form of government. To begin the discussion of the latter case, the following questions may be useful: • What is the specific catalyst or impetus for desiring a change in the form of government? How will the proposed change in structure, function, and powers impact governmental leadership, managemeiiI., operations, processes, and services - both positively and negatively? Interestingly, while form of government is one of the most profound decisions a community can make about its local government, it is also one of the most commonly misunderstood. How a particular form of government plays out in everyday governmental operations is often not understood by many citizens. This lack of understanding poses a challenge when attempting to engage citizens in a meaningful discussion on the topic. At times, misunderstandings and misperceptions regarding the different forms of local government undermine constructive dialogue. Informal opposing groups advocating one form over the other can spark potentially uncomfortable and passionate debates. For this reason, conversations surrounding form of government should be handled delicately. For those commissions discussing form, a useful starting point is the presentation of an unbiased, fact -based, educational overview of the different forms. Different Forms of Municipal Government Today, most cities operate under either the "mayor -council" form or "council-manager" form of government. The mayor -council form is modeled after the structure of the national government with checks and balances similar to those found in the U.S. Constitution. Like the constitution, little attention is given to the administrative responsibilities of the government. The council-manager form emerged as a proposal for reform in the early twentieth century. It was designed to focus on sound democratic governance determined by a unified mayor and council with professional advice provided by a professional city manager accountable to the council. The manager is responsible for advising the council, implementing council decisions, and acting as steward of municipal resources. The National Civic League, established in 1894 to facilitate more honest and efficient local governments, has been a strong advocate of the council-manager form since its second Model City Charter adopted in 1915. Although this form departs from the divided powers principle in the national and state governments in the United States, the governing board -appointed executive model is the predominant structure in school districts and other special districts, hospitals, and nonprofit organizations. ice it emerged, the council-manager plan has grown in popularity and is now the most widely used local government rorm in the United States in cities over 10,000. The council-manager form is also seen internationally in Canada, Australia, and other countries. Part of its appeal is its simplicity and its strong emphasis on democratic governance and professionalism. The International City/County Management Association (ICMA) reports that in 2010, there are more than 3,500 city governments in the U.S. operating under the council-manager form. Mayor —Council Within the mayor -council form, there are variations in the division of power and authority. (See Figure 1) In both categories discussed here, the primary executive role is assigned to the mayor and the primary legislative (policymaking) role is assigned to the council but other officials may be involved as well depending on the exact features of the form. The traditional mayor -council pattern is based on both separate and shared responsibility between the mayor, council, and other officials. It is often called the "weak mayor -council" form. Details differ but the top charts in Figure 1 illustrate two common examples. In addition to the division of policymaking and administrative roles between the mayor and council, a department head may report to a separate commission or a department head may be directly elected. Because of the fragmentation of authority under this form, arriving at consensus on a particular policy and achieving coordination can be difficult. Many mayor -council cities have eliminated the features that produce fragmentation of authority, but assign overlapping and offsetting authority to the mayor and council. As in the U.S. Constitution, the mayor may have authority to appoint top administrators, but job candidates are subject to confirmation by the city council. The mayor typically has executive power for the local government's day-to-day management and operations, prepares and administers the budget, and carries out policies. The mayor typically has the authority to veto legislation passed by the council but subject to override by a supermajority in the council. The strong mayor -council pattern emerged as a reform to weak mayor -council structures with highly fragmented authority and centralized more powers in the mayor's office. It is illustrated in the lower organizational chart in Figure 1. Not only is the mayor the chief executive officer but also enjoys a high degree of independence. For example, the strong mayor has executive power to hire and fire department heads and city staff and, to appoint members to city advisory boards. The mayor typically has greater latitude to act without council approval, for example, the authority to sign larger contracts. Information and analysis conducted by the city staff goes to the mayor who decides what information will be shared with the council and the public. Under this pattern, the city council is responsible for policymaking by way of resolutions and ordinances. Council members have no administrative power. The council has a broad oversight role but may have more difficulty getting information from administrative departments whose heads are the mayor's appointees. The mayor possesses the authority to veto actions of the city council. Although the council has authority to override the mayor's veto, the majority may not be able to assemble the super -majority that is required, for example, two thirds of the members rather than half plus one of the members. Stalemate between the mayor and council results in this situation when the mayor can block a council majority, but the council does not have the extra votes to override the veto. Those who champion the strong mayor -council pattern desire a strong independent political leader who also serves as the chief executive with centralized authority and limited checks on that authority. It is hoped that from electoral support, the mayor can successfully enact programs and policies that are supported by and in the best interest of the citizens. Supporters argue that political responsiveness and political control will result in governmental actions that are supported by a majority of the community. On the other hand, the concentration of political and administrative power in one office may contribute to the misuse of authority, a diminished role of the council, the dismissal of professional information and advice or a lack of transparency. The addition of a "chief administrative officer" (CAO) to the mayor -council form has become increasingly popular with mayor -council cities. The National Civic League recommends the addition of a CAO to all types of mayor -council governments. While the responsibilities of a CAO can vary widely, this individual is hired to handle some degree of the administration of the local government. How the CAO is appointed matters. The latest model city charter recommends a professional CAO who is either jointly selected by the mayor and the council or nominated by the mayor and approved by the council. This method encourages the CAO to be responsive to both the mayor and the council since both were involved in the hiring decision. Council -Manager The council-manager form of government emerged as a result of local government scandals and corruption in the late 19th century and early 20th century. In an effort to find an alternative to the mayor -council form, government reformers advocated the council-manager form in hopes that it would be a more business -like approach to local government. Consequently, the structure of this form mirrors that of a corporation. The citizen -voters serve as shareholders who elect a city council to fill the role of a board of directors. The mayor serves as the chair of the board. They, in turn, hire a professional manager (similar to a corporate CEO) to implement the policies established by the council. This trained, professional, nonpartisan manager serves as the chief executive, has authority to manage all aspects of local government operations, and is continually accountable to the elected officials. (See Figure 1) If the manager is not performing to the satisfaction of the elected officials, the manager can be removed at any time. In sum, the city council fills the policymaking role and an appointed city manager is responsible to the council for policy advice and the executive functions. Under this form, all local government powers rest with the governing body of elected officials which includes the mayor. Since the mayor is a part of the city council, he or she usually does not have veto power. The mayor's contributions are based on the dual role as leader of the community and leader of the council. Effective mayors develop a shared vision for the city supported by the council and facilitate cooperation within the council and between the council and the manager. The mayor does not play a direct role in the administration of any aspect of city administration. The city manager provides information and recommendations to the entire council in public sessions that assure complete transparency. In addition, the manager is accountable to the council as a whole to provide information on city government performance to the council's oversight function. While the governing body can issue instructions to the manager, elected officials are not allowed to go around the manager and issue a directive to any staff member under the authority of the manager. In this way, lines of accountability are clear. The city manager is singlehandedly responsible for all aspects of municipal operations including hiring and firing department heads (with the exception of the city clerk and often the municipal judge) and preparing and administering the municipal budget. The governing body holds the manager responsible for making sure their goals are being pursued and that the business of the local government is carried out efficiently and professionally. In addition, the city manager typically advises the council on various matters impacting the city. The city manager is a "controlled executive" chosen by the council to meet the distinct needs of the city, evaluated by the council on a regular basis, and can be removed at any time. The city council in a council-manager city, serving as the city's governing board, provides a much different kind of political leadership than that found in mayor -council governments. In council-manager governments, the city council and mayor focus all energy and attention on the "big picture" by setting goals, monitoring progress toward those goals, and overseeing governmental operations. Supporters of this form value its tendencies toward politically -neutral policy recommendations that stress a long-term and communitywide perspective, effectiveness of policy implementation and service delivery, efficiency, clear lines of accountability, and a professional approach to city management. Those who wish to alter either form's basic features should be cautioned. While a local government should adopt a form of government that fits its unique community, it is a mistake to think that one community is so "different" that it should tinker with the form and move away from the well -tested principles that have proven effective over years of experience local communities of all shapes and sizes. Under both plans, variations are seen in at -large vs. district elections and partisan vs. nonpartisan elections, for example. However, ignoring fundamental aspects of either form of government can easily undermine the central principles of organization and official responsibilities essential for success. Without question, the consequences of choosing one form of government over another should be carefully considered by charter commission members. Because there are so many excellent resources available that provide details about the plans as well as their advantages and disadvantages, the discussion offered here should be considered only a starting point or a "refresher" regarding the different forms of government. Chapter Two The Charter Review During the early 1900s, many cities faced serious challenges to effective governing. As a result, they became actively involved in charter reform. Since charter reform provides a way to redefine the basic rules of governmental operation, cities looked to their charters as a way of reducing corruption, enhancing local autonomy beyond what was granted by state governments, improving government efficiency, strengthening control over municipal tinances, and lessening the influence of partisanship. Over the twentieth century, more than eight cities in ten over 10,000 in population changed their form from the traditional weak mayor -council form or chose one of the new approaches as newly created cities. Today's Kcal governments also face challenges and often look to their charters for solutions. A well -functioning local government relies on established rules, regulations, practices, and precedent, and its charter is a large part of this. Sometimes a local "crisis" or series of public debacles bring into question some aspect of the charter. In other cases, a local government might be required to conduct a charter review every ten years, for example, to assess whether or not any changes should be considered. When a routine charter review is mandated, the review is necessary even if there is not a specific reason for a review. It is important to note that a charter review commission does not singlehandedly have the power to change the charter. Instead, this body has the ability to draft charter amendments or a new and presumably improved charter to be considered by local voters at the polls. While a charter contains the enduring guiding principles for governmental operations, it also must be able to be adapted and changed. Although many good charters stand the test of time, they are documents crafted by flawed human beings who are unable to see into the future. Therefore, charters need to be revised and updated from time to time - in good times and in bad. Charter review starts with the appointment of a commission made up of local residents who are tasked with methodically and objectively reviewing the existing charter and various aspects of local government operations. The scope of work assigned to charter commissions varies widely. As a result of the review, the group determines what (if any) changes should be considered for formal adoption. Because each community is different, there is not one "right" way to do this. Each charter review process will be unique to the community conducting it. While writing or rewriting a charter requires the involvement of local residents, interestingly only a handful of people have ever had any experience drafting a charter or changes to one. So for most people involved in the process, this is their first and only experience with such a task. Without a doubt, this hody is challenged with a uncommon and significant civic duty. Commission Membership Opportunities for direct citizen involvement in local government often garner a healthy amount of attention. While citizen involvement in committees, advisory groups, public hearings and the like is a significant and valuable part of local government operations, membership on a charter commission offers an uncommon opportunity for public service to one's community. Participation in the writing or rewriting of a charter is citizen involvement at a higher level and with greater potential impact. A charter commission is a body authorized by law and established for the single purpose of drafting and submitting to the voters a newly created local government charter or revisions to an existing charter. The appointment of this group of individuals, typically between 15-20 registered voters, is often governed by laws and regulations that specifically deal with charter creation and revision. For example, in some cases the commission members might be required to be appointed by the mayor. In other cases, it may be the council that appoints the members. In still other situations, these individuals are elected by the voters. In any case, this independent commission of citizens is empowered to organize its review within the assigned scope and establish its schedule in order to facilitate its study of the charter and certain aspects of the government. ien the importance of the commission's task, the membership of the charter commission is worthy of careful consideration. Individuals chosen to serve on the commission have a special opportunity for local statesmanship. If voters ultimately approve the work of the commission, the efforts of this group will have lasting impact on the future of the community and the local government. Therefore, selection of the individuals to serve in the charter process is a crucial decision. All participants should be eager to work hard and willing to share their talents and expertise. It is important to understand that participants bring with them unique value systems, biases, differing opinions on what "good government" is, good and bad life experiences living in different communities, and (in some cases) personal agendas. As a result, deeply -held beliefs and viewpoints set the stage for complex committee dynamics, passionate discussions, and heated debates. At the heart of this process is the active and focused engagement of a diverse and representative group of community members. Diversity is important for several reasons. The involvement of diverse groups and perspectives will not only contribute to a better final product, but also lend credibility to the validity of the final outcome. Therefore, no group should be left out. All segments of the community should be represented.. (language here) When the commission is composed of community residents who are not involved in day-to-day governmental operations, the commission is able to be detached, objective and impartial. The most effective charter commissions are not dominated by lawyers, scholars, and accountants, but made up of civic -minded, intelligent lay people with a common-sense approach to things. The members should a) be in touch with the perspectives present in the community; b) command respect from local residents; and c) bolster the confidence of citizens in the process and the work of the -ommission. Special mention should be made about the role of local elected officials. While in many cases the mayor and/or council plays a role in the appointment of commission members, the involvement of elected officials should end at that point. The charter process functions best when it is rooted in citizen involvement rather than one influenced (intentionally or unintentionally) by political officials directly serving as members. In some cases, the commission's recommendations go back to the council, which has the authority to decide whether the proposal will go to the people for a vote or may determine the final language of proposals. Still, the commission should do its work independently and give the council and the voters its best thinking about charter change. Key Commission Players The Chairperson. The chairperson of the commission will have a vital role to play. Because commission members are respected and intelligent individuals in their own right, it follows that they should be led by someone who is widely regarded as a person of integrity and good judgment who is politically neutral, accomplished, and widely -respected. The ability to collaborate is also valuable. This individual might be a former mayor or other well-known civic -minded individual who is level-headed and has a good sense of the work of a charter commission. A number of real advantages come from the city council naming a chairperson and commission members simultaneously. However, if the council does not choose a chairperson, it is up to the commission to do so. Oftentimes a commission takes up the subject at its first meeting without much thought. Due to the significance of this position, the selection of the person to head the commission should not be taken lightly. The most successful charter commissions led by a well-chosen chairperson. Unfortunately, instead of a thoughtful and deliberative decision, many times the _section of the chair is made quickly and relegated to a random selection from among those willing to be considered. So, what makes for a good commission chair? A good chair is skilled at conducting well -run meetings. But there is much more to being a successful chair of a charter commission. A good chairperson has a sincere passion for the work of the commission and is able to translate that passion to its members. A good chair motivates commission members and speaks personal words of support and encouragement when needed. A good chairperson connects ideas, challenges opinions, helps define problems, and ultimately assists the group in reaching consensus on the issues that must be addressed. These qualities are found when the chairperson uses a participatory style over an autocratic one to encourage active involvement among the members. This kind of chair acts more as a facilitator than as the local expert with all the answers. The chair leads the meetings, focuses the work of the commission, and keeps the process organized and on - track. The chair does not give up his or her right to participate in shaping the decisions of the commission but participates in a fair way. For example, the chair does not use the position to give advantage to some members or positions over others nor to discourage members who hold different views. Further, the fair chairperson does not forcefully express his or her views in order to discourage other persons from expressing their opinions. It is a lot to ask for the chairperson to singlehandedly address the myriad of issues that may arise during commission deliberations. Ideally, the commission chair will have the ability to call upon competent advisors to assist when needed. A discussion of two such advisors follows. A Resource Person. The intensity and scope of the work of a charter commission make it ripe for conflict. The politically - charged task for which this body is responsible can easily result in communication breakdowns and gridlock. For this reason, many chairs have found it valuable to have a substantive resource person, consultant, or other expert sit alongside the chairperson and serve as a "go -to" person when a complex or substantive question arises. This person may also make early presentations to the commission on form of government alternatives and on other key issues as they arise. This person is not a member of the commission and does not have a vote. A resource person might be educated in public affairs, political science, or public administration with experience in charter writing, such as a university professor or a senior staff member at an institute of government. In other cases, this person may be a consultant with a favorable record of involvement with charter commissions. If a charter commission does not have the luxury of engaging a paid substantive resource person, a "pro bono" volunteer from a university or governmental institute with charter experience may be an option to consider. Regardless, an outside resource person is often an extremely useful addition to the commission as a source of technical guidance, suggestions, and advice. The key is that this person has had experience with charter commissions and is willing to bring that experience to the commission. A Legal Expert. Every charter commission should have access to sound legal counsel. However, it is important to note that the study of law is by no means a study of local government, politics, and public administration. And, notjust any lawyer can provide the information the commission will need. For charter writers, it is highly important to be sensitive to the state -specific legal context in which the resulting charter must operate. A legal advisor can be invaluable in helping the group avoid potential conflicts with state provisions. Sometimes specific charter provisions must be included to allow a local government to take advantage of or to escape from laws established at the state level. City or county attorneys are of particular value to the commission because they are familiar with the existing charter, the legal problems the local government may have had with it, and the applicable state laws. Furthermore, laws that govern the county, school districts, and other units may come into play. The detailed and sometimes complex arrangements that exist among a local government and its public sector components, quasi -governmental entities, and associations underscore the value of a knowledgeable, state -specific legal advisor who can address questions that arise. However, not all legal experts are created equal when it comes to charter commissions. If the city attorney has experience drafting charters or charter revisions, that individual may be the preferable choice to serve as the commission's legal expert because this individual will be affordable and responsive. However, if the city attorney does not have this kind of experience, the commission needs the ability to hire outside legal counsel with state -specific experience drafting new or revised charters. If an outside attorney is hired, the city's full-time attorney should still be involved in the process by providing testimony to the commission and reviewing and commenting on the final draft document. After all, long after the commission has solved, the city attorney will be the one to defend the charter if and when it is attacked. Therefore, ongoing evolvement of the city's own legal advisor is a critical part of the process. Finally, a commission should not refrain from claiming power or including a provision in the charter just because there is doubt about how it will stand up in court. The powers of many local governments have been unduly limited not by the laws or courts of the state but by the timidity of the charter commission or the commission's legal counsel. Funding As a conscientious public body, the commission should make every attempt to minimize its financial obligation-,. However, every charter commission must have some money available to cover its necessary expenses. As often as possible, the commission should use public buildings for its meetings. It is likely that the local government will make its office staff and equipment available to the commission so that secretarial services, stationary, copying, and postage can be handled in-house. Even more technical matters such as website updates and bulk email messages may be completed by local government staff. Instead of paying outside experts for their time, local government staff members (such as the finance director, for example) should be considered because they typically prove to be informative advisors willing to share their expertise with the commission at no cost. While visits to other communities by commission members may occasionally be desirable, junkets at public expense are not appropriate. A better alternative is to invite speakers from outside the community to speak to the group during its meetings. commission member should be paid a salary or honorarium. Furthermore, commission members should never assume that they will be reimbursed for expenses without first consulting the appropriate government staff member. If a significant cost is identified and deemed necessary or appropriate, the commission should make a formal request to the local authorities for the needed funds. Only necessary expenses should be reimbursed - such as consulting fees or outside technical assistance. Accounts of all receipts and all expenditures should be carefully maintained. Public Outreach The best charter is of little value if voters do not approve it. For this reason, a concerted effort to win public understanding and acceptance should begin the day the charter commission is selected and continue until the day the vote is taken on the proposed charter or amendments. This may mean a small work group is charged with this task. Many former charter commission members would likely agree that only half of their job was charter writing. The other half was sound public relations. Many well -written charters have been defeated at the polls due to poor public relations and a lackluster voter education program. Positive publicity and voter education can be achieved a number of ways. The most common and long-standing approach is through public hearings. Unfortunately, public hearings are notoriously poorly attended and are considered by many to be ineffective. Fortunately, there are a number of other ways to gather public input and share information. Neighborhood -based meetings and specially designed "dialogue" session can be organized. At the latter, participants discuss the qualities they would like to see promoted in their government and their community rather than suggesting -ific charter provisions. Local government newsletters, speakers bureaus (including commission members), brochures, local magazines and newspaper articles, television and radio ads, public access television channels, and updates sent via email are other ways citizens can be informed of the process and invited to participate. The local government website should include the most up-to-date information about commission meeting times, agendas, and minutes. Also through this site, residents should be able to sign up for charter -related email alerts, press releases, and meeting reminders. Another useful idea is to make available well -written speeches, white papers, PowerPoint presentations, and talking points addressing the commission's work and related efforts. An online forum car be set up to collect views about the charter revision. In sum, extensive information about commission meetings shol,ld be easily accessible to the community, ideally published electronically and available online. It is not unusual for the work of charter commissions to pique the attention of schools and civic groups. Such an exercise in democracy is worthy of attention and serves as an excellent real -life case study of government in action. For example, junior charter commissions may be used as a learning tool for students. Of more immediate importance is that the attention of students will often indirectly invite the attention of their parents who, of course, are part of the voting public who will be asked to support the new charter at the polls. Therefore, the commission should willingly work with schools and civic groups to plan activities or projects related to the charter commission's work. Residents deserve the fullest opportunity to be informed and to participate in the process. To this end, charter commission members should encourage the involvement and attention of a variety of community groups. Local residents can never have too much information concerning the vital charter -related issues being discussed in commission meetings. That said, the information released to the public must be easily understood and clearly organized to avoid confusion often caused by information overload. Public involvement has many benefits. One important benefit of an aggressive public outreach and education proces! that it often results in a constructive and thorough review of the commission's work which, if considered honestly, wi improve the final product. Furthermore, when residents are afforded the opportunity to offer their opinions and suggestions in an environment in which ideas and input are taken seriously, residents are more likely to support the commission's recommendations at the polls. Therefore, it is not enough to rely on just a few avenues to effectively educate and update the citizenry on the commission's work. Publicity and education efforts must be multi -pronged. In all cases, the message should be consistent: a charter commission is active; its members are hard at work; it is considering complex and substantive issues; citizens are encouraged to get involved and offer their ideas and opinions; and once the commission has completed its work, citizens will decide in an election whether or not to adopt the proposed charter or charter amendments. In sum, the message to the broader community should be that the commission is working in good faith make the best decisions possible about what is best for the community and its local government. While communicating with the public is important, individual commission members should be wary of making any statements that are inconsistent with the overall public message endorsed by the whole commission. This includes taking a public stand prematurely on controversial matters which can undermine the progress of the group. When in public eye, it is important for commission members to guard against untimely public comment on issues on which the commission might change its mind in light of further study. Oftentimes, the best answer to some questions is, "We ar still studying the question." Every local political situation is unique to a certain extent. Without a doubt, local leaders best understand local dynan and can come up with the most effective public education strategies aimed at gaining the support of a majority of citizens. These efforts should become more intense during the final campaign. A good public relations and voter education campaign allows the commission to keep in touch with what the public is thinking and saying about the commission's work. This is important throughout the process, but is of particular importance as the election draws ne The "Charge" The task of a charter commission is to prepare and present to the voters the most straightforward, clear, and forward looking charter it can. Many times the specific "charge" for the commission's work comes from the city council. In particular, a commission may be authorized and empowered to do the following: 1. Examine the existing local government charter. 2. Conduct a comprehensive or limited study of various aspects of the local government. 3. Examine the procedures and interrelations of the different parts of the government to determine the role the charter plays in the current state of affairs. 4. Research the experiences of other cities or counties under their respective charters and forms of government to discover better governmental arrangements and practices. 5. Determine from independent study and investigation the principles of local government that should be built into the proposed charter or proposed charter changes. 6. Draft the proposed charter or charter amendments in a clear, logical, and consistent way. 7. Conduct its affairs in such a manner as to win the respect of local residents. 8. Educate citizens about the process and the progress of the commission and encourage adoption of the charter or its amendments. Sometimes a particular area of the charter is singled out for review. For example, a charter commission may be instructed to examine whether the mayor's term should stay the same or be lengthened, if a city administrator should be added to the mayor -council structure, or if the number of council members should be changed. Charter commissions are convened for a host of different reasons from the mundane (such as a legal requirement to do so every ten years) to the politically charged (such as in reaction to municipal scandal and corruption). Identifying the factors that serve as the impetus for charter review is extremely helpful to organizing the early work of the commission and in setting the right tone for productive meetings. Ns vein, many questions may cross the minds of commission members: • What are the expectations for the commission? • To whom is the commission accountable? • Is there a crisis in local government that gives clear purpose to the commission's work? If so, how might that situation influence the commission's work? Is the crisis related to conditions that can be affected by the charter? • Were any members of the commission "instructed" by someone (such as the mayor or council) to promote a certain position or advocate specific changes to the charter? • Will the commission's recommendations go directly to the voters or to the city council first for review and possible revision? Once these kinds of issues are addressed, the real work can begin. One suggestion is to hold a kick-off meeting early in the process to bring everyone together and work through any concerns such as those listed above. Getting Started Holding an initial kick-off meeting with the commission and local elected officials has a dual purpose. First, it officially conveys the reasons behind creation of the commission and offers a sense of purpose. Second, it provides an opportunity to address lingering concerns or questions and to dispel any uncertainty or doubt in the minds of commission members, local residents, and the media. seful exercise for the commission members themselves soon after the kick-off session is to create a "shared vision of government" - a statement aimed at drawing members together towards a shared purpose, motivating them when times get tough, and giving their work meaning. This vision should not specify particular charter provisions (such as an election method or form of government), but instead should describe the qualities of the government the community would like to have in the future. This is not a simple assignment. Creating such a statement requires an examination of the values held by the community and the unique characteristics of the population. It is an exercise in finding unity in the midst of diversity. While the individuals serving on the commission have different backgrounds, priorities, and beliefs, their shared aspirations for good government will be a uniting force. Discussing the diverse perspectives represented on the commission will be time-consuming. Supportively listening to the ideas of others requires patience. However, the tangible achievement of common ground evidenced by a written shared vision statement can he a significant early milestone. Another idea for the early meetings of the commission is to invite one or more members of previous charter review commissions to speak to the group. These individuals may be local residents who have participated in past charter efforts or individuals from other communities that have recently gone through the process. Those with charter -writing experience will likely have some "words of wisdom" to share with the group that can prepare and inspire them to face what lies ahead. The commission works together for only a limited period of time (generally no longer than 12 to 18 months) since there is typically a time constraint placed on the group to complete its work. Working with a strict time constraint places a premium on the efficient use of time. For this reason, many charter commissions find it helpful to establish a calendar at an early meeting. This calendar should set forth the work of the commission, meeting times, and important dates such as elections and other deadlines that are fixed and cannot be changed. It is not unusual for city councils to specify - or at least have in mind - when they want to hold the charter election. Other times there are legal restrictions on when an election may be held. For example, in Texas, cities have only two dates in a calendar year in which an election can be held. Knowing these kinds of deadlines up front is a key step to the success of any charter commission. The Commission at Work The work of charter writing is not easy. The issues are complex and change, if necessary, is not easy. While writing or amending a charter is challenging, it is not impossible. Frankly, the charter process often stirs passion and controversy. It can be messy, noisy, and complicated. Throughout the process, some members may feel that progress is not coming fast enough. Some will want to slow the process to allow for further study or public input. Others may want to move ahead without additional public comment. Some may become frustrated. Some may become angry. The challenge for the commission is to remain focused on the work at hand in spite of these obstacles. As uncomfortable and contentious as commission discussions may become, the best commission members stay focused on what they are asked to do. They are not afraid of what is hard, even when success is uncertain. The greater the success of the commission in writing a charter that advances the public welfare of the community, the more honor and satisfaction will come to its members. Typically, a commission holds many meetings and public hearings. Meetings should be held in a convenient and well- known location that encourages public involvement. Meeting attendance is critical and should be required of members. Because the ongoing involvement of the membership is so important to the process, members who are not able to attend meetings consistently should be replaced. For example, it is not uncommon for members who miss three consecutive meetings to be removed and replaced. Many charter commissions reach out to the community by holding certain meetings outside the confines of city hall or the commission chambers. One strategy to encourage participation is to hold some meetings in various public venues throughout the community - essentially moving select meetings to the "backyards" of local residents. During meetings, the commission hears testimony from public officials, staff, representatives of community organizations, and members of the public; receives reports on special topics, listens to experts make presentations on various issues, and debates important policy matters and discusses draft reports on special topics. Often, a city staff member or administrator serves as a non -voting liaison and provides some level of staff or clerical assistance. s possible and desirable for meetings to be both businesslike and informal at the same time. Meetings should be planned and organized, but not rushed. The chair should see that members stick to the business at hand while retaining an atmosphere of friendly informality. Meeting agendas are beneficial because they help focus the group's discussion. Everyone should be heard with time allowed for focused deliberation. Upon completion of its draft, the group should come back together to review all of the proposed changes. A few meetings should be set aside for this. Additional clarification or resolution may be needed to address any charter revision recommendations that are unclear or overlapping. Arriving at the proper charter language is a key final step because no matter how good the recommendations may be, they cannot simply be compiled. Legal edits and other modifications aimed at providing continuity and harmony will be required at this point. Therefore, if a substantive resource person was involved in the charter process, soliciting his or her comments and suggestions on the draft is a worthwhile step. If the local government did not engage such a person, the commission should attempt to get "pro bono" feedback and suggestions from a university or governmental institute resource person. The city attorney should also be called upon to provide comments. A good practice is to publish and circulate an official yet tentative charter draft and invite public scrutiny. Inviting reactions to the draft serves a number of purposes. First, it affords another opportunity for genuine feedback from citizens. Second, it informs the voters that the commission is, for the most part, done with its drafting work. Third, it allows the commission to make adjustments prior to the election which may strengthen the charter and improve its chances of success. Fourth, it helps to clear away doubts and rumors about what is and is not contained in the recommendations. Finally, it reminds residents that the final decision lies in their hands in the upcoming election. ,It the end of its work, the commission should prepare and issue a "Report to the Voters" that serves as an executive nmary telling the community what principles the commission followed and explaining the main features and merits of the proposed charter or charter amendments. Circulating such a document allows the commission to share candidly with the voters what benefits are expected from the proposed charter and the rationale behind various elements. If appropriate, an organizational chart illustrating the proposed governmental structure can often be helpful. If used, this Report should be released with the draft charter serving as a guide for reporters and editors as to what the commission considers the most important features of the recommendations. It is important that the first impression of the commission's work be an accurate impression. Should We Draft a Completely New Charter or Amend the old Charter? One question that commonly arises during the work of charter revision is whether to set aside the existing charter and draft a completely new charter - or simply amend the current version. The appropriate approach depends on a number of factors including the quality of the existing charter and the extent and characteristics of the contemplated changes. If the charter requires a number of fundamental changes (such as changing the form of government), it is often better to submit the changes as a clean, new draft of a complete charter. Charters have so many interlocking provisions that it is often difficult to produce a consistent, coherent result by submitting a series of separate amendments. Many local governments have been frustrated when attempts to produce a basic change with patchwork amendments have resulted in a disjointed, confusing document. If the entire charter is re -written, it has the additional benefit of allowing the commission to "clean-up" minor defects in the original document which, while needed, did not on their own warrant the convening of a charter commission. °e of the common arguments in support of charter amendments is that changing only certain parts of the charter is ly to encounter less opposition than presenting a completely new document to the voters. When voters are considering an entirely new document, opposition to one part of the charter might jeopardize public support of an otherwise acceptable charter. Such opposition is typically focused on just one or two sections. if this is a possibility, some states allow the commission to submit the charter to the voters with alternatives on the matter(s) in question. The burden, then, is on those who advocate the alternative option. They must then convince the voting public that their alternative position is better than the one recommended by the commission. In many cases where this approach has been taken, citizens supported the charter as a whole and approved the choice preferred by the commission. It should be noted that when submitting a proposition with alternatives, care should be taken to make sure that the alter' do not result in conflicting provisions. natives Dealing with Opposition Onnosition is often encountered with a good charter, so the commission should not be surprised or disheartened when it occurs. Strong opposition does not occur in all cases, however. Many charter reforms are strongly supported by local officials and members of civic -minded community organizations who know from personal experience the need for improvements to the workings of the local government. When they surface, opponents can and will come from very different places. Certain groups and individuals will be opposed to any departure from the status quo. Others will be opposed to changes because they do not go far enough. Elected officials often do not support changes to their offices, powers, duties, or salaries. It is not uncommon for leaders of political parties, influential community groups, or other factions with interests at stake to make their disapproval known. It is important to understand the viewpoints and fears of such groups in order to win their support, or, if necessary, counteract their influence. Often the support of these individuals is lost because it is assumed they are unalterably opposed to charter change. However, sometimes a group may be won over by a meeting to discuss their concerns. Other times, a non -objectionable provision in the proposed charter could be added to allay their concerns and win their support. While the commission should be sympathetic and open to listening to the demands and views of all local residents, it must take the high ground by appealing directly to those in opposition to support sound principles of government first and foremost. It cannot do this by appeasing each pressure group and yielding to its demands. Making weak compromises often results in an inferior document. The dignity, independence, and effectiveness of the commission will be destroyed if it gives in to the demands of special interest groups in ways harmful to the public welfare. The important thing to remember when compromises are suggested is that the essential features of a charter must be in harmony. More than one charter has failed at the polls or (worse yet) in implementation due to compromise provisions that are incompatible with its basic pattern. If enough broad support exists for the effort and the draft document as a whole, this support will override objections to small matters that are raised. Evidence is overwhelming that the vast majority of citizens in any community want "good government." That is, people desire a government that can be described as ethical, effective, and efficient. A useful byproduct of discussions about good government is that often the opposition comes to the realization that, while they won't agree with the majority on many things, common ground can be found when it comes to the underlying principles of good government. The commission's constant message of working for a better government coupled with a sincere interest in involving all citizens in a transparent and open process will do much to counteract the negative pressures of special interest groups that may surface in opposition to the work of the commission. The Election The process for how and when the charter or charter amendments are considered by voters varies greatly by community. Upon completion of its work, the commission forwards its final recommendations to either the elected officials for their consideration or directly to the voters. Ultimately, the decision is in the hands of the local residents. In many cases, recommendations of the charter commission are added to a scheduled upcoming election. In states that are covered by the Voting Rights Act, the Justice Department typically has to approve a charter election. In other cases, charter recommendations are a stand-alone issue and the timing of the election can be determined by the local government. If the charter commission is able to weigh in on the timing of the election, it should carefully consider the matter in light of the political calendar, weather, holidays, and other local community dynamics in an attempt to time election to encourage high voter turnout. Regardless of the timing of the election, appropriate and sufficient time should be allowed between the completion of the commission's work and the election to allow for ample public comment and feedback. Voter approval of the charter recommendations will be the test of the vision, courage, statesmanship, and public outreach exercised by the commission's members. Conclusion All charter reviews are different. Most commissions enjoy substantial discretion In what they can recommend to address the areas within their purview - frurn sweeping changes to no changes at all. For example, following an evaluation of the government and its charter, a commission may recommend leaving the current charter basically intact. On the other hand, a group may recommend a far-reaching change such as changing the city's form of government. In the end, the best commission recommendations are those based on transparency, diversity, and widespread public involvement. Dos and Don'ts for Commission Members DO be a team player. You should be intent on making significant improvements. So, share you r thoughts and ideas and respectfully listen to the comments of others. Be wholeheartedly engaged and committed to the process while respecting the time constraints imposed on the commission. DO be open to finding the form of government that best fits the preferences of local residents. If the commission is considering form of government in its deliberations, each member should put any preconceived ideas aside in order to evaluate the options objectively based on the fundamental features of each and the experiences of other cities. DO be willing to compromise and change your mind in light of evidence. Let go of the belief that if you lose, I win. That said, compromising does not mean giving up your good ideas and accepting inferior ones advocated by others. Taking the easy way is not the best way. Halfway measures have little usefulness or appeal. Statesmanlike compromise is a group process of give and take in which the most practical ideas rise to the top, are blended together, and made into a workable system. The end result may not please you in all respects, but it will represent legitimate consensus and, likely, substantial improvement. DO keep in mind that the voters are the final decisionmakers on whether to accept or reject the proposed changes. Be willing to play a part in educating the electorate and publicizing the work of the commission. An informed citizenry will make the best decision on election day. So, welcome the involvement of many people in the discussion. Be sensitive and responsive to what you hear from them. Know that ongoing community support for the work of the commission keeps naysayers in check and ultimately leads to good results when the votes are counted. DO be cautious of making premature public statements on charter -related matters DON'T refuse to support a good idea for improvement to the charter because you feel it is not good enough. The "perfectionist" - the person who insists on perfection or nothing - will likely be at best a distraction and at worst a serious roadblock impeding the important work at hand. DON'T use commission membership as a springboard for your future political career. You were chosen to be involved to serve the citizens, not your ambitions. Any attempt to use your involvement as a stepping stone toward a career in politics will not be lost on other members of the commission who will likely discount your opinions as political posturing. Commit to putting the public welfare ahead of your own career aspirations. Focus your attention on the work of the commission. If your work on the commission triggers in you a genuine desire to seek political office or if a citizen movement drafts you for office, so be it. In either case, you will get more respect as a political candidate when you make that decision made after your involvement on the commission rather than before. DON'T try to solve all the ills that might plague the local government by pushing for overly restrictive prohibitions in the charter. Power is always subject to possible abuse in the hands of the wrong people. The challenge is to establish a system that will enable local residents to hold their public officials responsible for the way they use power. There is no gain in setting up a new government and then hamstringing it by denying it the flexibility and power essential to any effective government. DON'T allow the commission to surrender sound principles of good government to the stubborn opposition. ### Chapter Three The Charter Document The most practical way of keeping a charter to moderate bulk is to restrain the tendency common among charter commissions of trying to solve all municipal problems right in the charter. This is not the proper function of a charter, which is rather to establish a framework within which the city government, representing the people, can solve its problems as they arise. -Thomas H. Reed Revising a City Charter Introduction While a charter is a legal document, it is also a rule book for running a local government. This dual purpose places a premium on how a charter is written. A charter is not only used by attorneys. It is used by a cross-section of the community - elected officials, government employees, and everyday citizens. Therefore, the language used and writing style employed should be user-friendly and easily understood by an average citizen. What Qualities Make a Good Charter? The better a charter is the easier it will be for public leaders and officials to operate a proactive and successful local government. A good charter functions as a harmonizing, integrating, and controlling document. Therefore, the qualities of a good charter are worthy of consideration. Good local government charters are (1) straightforward; (2) consistent; (3) thorough, but not exhaustive; (4) flexible; and (5) focused on the fundamentals. Straightforward. Simple and straightforward language facilitates comprehension. A good charter is easily understood uy laymen as well as lawyers. The reality is that elected officials, government professionals, community leaders, and average citizens - none of which are legal experts - will be the main users because they are the ones that will implement the charter and refer to it when a question arises. Good charters are understood without a law dictionary. That said, including certain clauses or phrases that have been accepted by the courts as having a precise meaning may be necessary to ensure the charter will hold up in the courts. Furthermore, much care should be taken in choosing the "right" words. The choice between words such as "shall" and "may" is an example of how exact wording is very important. 2. Consistent. Consistency throughout a charter is important on many levels. The writing style, verbiage, and content should be considered when looking at consistency. Comparable provisions should be handled similarly. Charter provisions of substance that do not harmonize with each other may lead to disunity, unhealthy bickering, and government paralysis. Inconsistencies not only breed confusion for the local government, but also can trigger future litigation. In addition, a charter should be free of any internal structural contradictions or inconsistencies. For this reason, once a basic form of government is chosen, the charter commission should be wary of adding elements of other forms or eliminating features inherent to the chosen form. For example, the structure of the council-manager form can be completely undermined by provisions that permit the mayor to wield administrative powers exercised in the strong mayor form. While adopting widely accepted variations within a form can be workable, caution must be taken to avoid creating a system that is essentially at war with itself. Thorough, but not Exhaustive. ,Aa good charter is comprehensive in terms of addressing all the necessities to ,ditate an effective government. However, it should not attempt to be exhaustive by addressing every possible future scenario. There is a fine line in which the goal should be to include all necessary and essential components in a thorough, yet concise manner. Details should be avoided as much as possible. However, brevity at the expense of clarity can lead to confusion and litigation. A good rule of thumb is to express the intended meaning with the fewest and best words, whether it takes ten or one hundred. Generally, better charters are shorter charters. That said, the length is somewhat an outgrowth of state law and what broad areas need to be included. Detailed procedures should established in administrative codes which are more easily updated and changed. 4. Flexible. Desires of citizens change over time. Stale arrd federal mandates on local governments are on the upswing. Residents demand new and expanded services. "Doing more with less" is a mantra often heard in local government. Those who make management and administration decisions are challenged every day to do just that. Officials must often use creativity and innovation to come up with new ways of doing things in order to free up time and resources to take on new programs or services. Providing local government leaders the flexibility to make changes is critical. Good charters leave far more discretion to local government officials than charters of the distant past. Simply put, a charter should confer upon the elected officials and administrative staff broad powers to implement it and to promote the community's welfare. In the interest of local self-government, the charter must free the hands of decision -makers rather than tying them. 5. Focused on the Fundamentals. Good charters set forth general principles rather than legislative details. A charter's focus can be limited to the fundamentals when it is supplemented by an administrative (or municipal) code that addresses the details of the local government's administration and procedures. An administrative code is simply a collection of ordinances that sets forth the particulars of how the broad statements in the charter will be implemented on a daily basis. When the details are handled in the code or elsewhere (such as a policy and procedures handbook, for example), the charter can focus exclusively on the most fundamental provisions aimed at protecting the riti7ens, the form of government, and the relationships between the elected officials and the administration. Essential Components of a Charter Local governments are not mentioned in the U.S. Constitution, and, therefore, are not created by the federal government. Instead, local governments are creatures of the states, are regulated by the states, and have only the powers and functions afforded to them by their respective state constitutions and legislatures. So, to discuss local governments in general terms is virtually impossible due to the different legal and political contexts represented by different states across the country. However, an important court decision that is widely accepted as governing the relationships between cities and states is known as "Dillon's Rule." Dillon's Rule is commonly referred to when a question arises about whether or not a local government is afforded a particular power. Iowa Supreme Court Chief Justice John Forrest Dillon's view was that since cities are creations of the state, they have only the powers specifically given to them by the state constitution or legislature or included in its state -approved charter. Furthermore, Dillon's Rule asserts that if there is ever a question or "gray area" regarding the power of a local government to do something, the answer was always "no." In other words, in cases where it is unclear whether or not a local government has the authority to take some action, the authority has not been granted. Chief Justice Dillon's narrow definition of the power of cities had significant impact in the late 1800s because other courts and legislatures adopted the same standard. A movement to counteract the effects of Dillon's Rule began to take root in the following years. Local governments intensely wanted power to make decisions about issues that impacted them. They wanted more flexibility and discretion. As a result, the concept of "home rule" emerged that supported the rights of cities to govern themselves. Supporters of home rule argue that municipalities should have the ahility to manage their affairs without state interference. Today, most states have provisions in their state constitutions or other legal instruments that allow some form of municipal home rule, allowing citizens to exercise expansive decision making powers through their municipalities. Local governments that operate under home rule have broad powers that include control over things that the state legislatures have not specifically granted and those things not specifically prohibited. Essentially, home rule frees a local government in many ways to take actions that those without home rule are not able to take. For this reason, many cities 'opt home rule charters. It is important to note that the degree of home rule afforded local governments varies greatly oy state and is often limited to specific classes of cities and counties, for example. Unfortunately, not all states have home rule. Local governments in these states still operate with restricted powers. To a large degree, the power of cities located in states without home rule is limited to the specific powers granted to them by their state legislatures. For example, a city located in a non -home rule state that encounters a situation in which a certain authority has not been specifically granted by the state is required to get special legislation passed at the state level before it can take that action. On the other hand, cities with home rule are freed from the necessity of running to the state legislature every time the public welfare requires something new to be done or an old function to be performed in a new way. A city in a home rule state should boldly include in its charter broad discretion over the scope of services it provides in order to take full advantage of the power available under the home rule provisions of its respective state. Doing so will provide the opportunity to undertake new policies or new methods to address issues that are not currently anticipated. Is there any real danger in this approach? The answer is no. In spite of broad powers that a far-reaching home rule charter might afford a municipality, there are several safeguards that will keep a city from venturing too far into uncharted territory: 1.) Most city councils are highly conservative about undertaking new services or enacting novel or inappropriate regulations that may put the reputation of the city at risk. 2.) Typically, city budget dollars are tight. Risky ventures that may impact the city coffers too severely are generally derailed before they get too far. 3.) Periodic elections, vocal residents, citizen surveys, governmental audits, and watchdog groups keep municipal decision makers mindful of the consequences of their actions. 4.) Regardless of charter provisions, legal restrictions still exist to limit some municipal activities and powers. Limits have set by the state constitution, state legislature, and the courts. The U.S. Constitution prevents any city, as an agent of the state, from depriving any person of life, liberty, or property without due process. The court system exists to test any possible abuse. Because particular laws and circumstances vary from place to place, the essential components of a charter will be discussed in general terms. Detailed and sometimes complex arrangements exist among a local government and its public sector components, quasi -governmental entities, and associations. Setting local peculiarities aside, the essential provisions found in most charters can be organized into a few specific categories: powers of the city; city council; city manager (if applicable); departments, offices, and agencies; financial management; elections; general provisions; charter amendment; transition and severability. 1. Powers of the City. A starting point for many local government charters is to address and define the scope of powers of the local government. Within the context of specific state law, a local government should claim all powers it may legally exercise through its charter. Again, a city in a home rule state should include a statement that allows for broad discretion in order to take full advantage of the power available under home rule provisions set forth at the state level. When writing a new charter or making revisions to an existing one, commission members need to remember that the rules established by charters do not exist in a vacuum in organizing, empowering, and regulating local governments. There is a "hierarchy of laws," so to speak. And while a charter which establishes various legal regulations is a part of A hierarchy, so are other laws. Federal constitution, federal laws, federal administrative regulations, state constitution, state laws are also a part of this legal context. For example, general state legislation and special legislation take precedence over charter provisions in regulating the activities of a local government. Even a city that operates under constitutional home rule may have no power to change some of the statutory provisions of law that bind it. 2. City Council. A challenge for every local government is to attract able, talented, and willing elected leaders that well - represent the community. The charter plays a role in this. Because there is not a special formula to make sure this will happen, local communities are left to come up with their own solutions. Many argue that concentrating council authority in a small, representative governing body is desirable because smaller legislative bodies are more effective than large councils. In addition, every member is essential in a smaller council and can be closely monitored by citizens and the media. This charter section discusses various details regarding elected officials, including the mayor and city clerk. The goal is to prescribe a way for elected officials to be chosen that allows for fair representation and fits with local values. Specifically, the charter should address issues of residency requirements and whether or not public officials are to be elected by district or at -large. Other issues such as powers and duties, eligibility, terms of office (number of years, staggered vs. concurrent), term limits, compensation (salary), prohibitions, vacancies, and ordinances are also included here. City council members. Regardless of form of government, the council is the decision making body that sets the direction of the local government through local policies. The expansive power of council members includes control over the local government's finances (budgets, revenues, expenditures, and borrowing), property, priorities, goals, and legislation. These individuals are elected by the citizens to represent them and be accountable to them. Much is expected of a city council member. Serving one's community in this way is a high calling. FvPry charter establishes the process for selecting council members. Specifically stating how public officials are elected is essential. Alternate approaches are discussed later in this chapter. The unique characteristics of each local government's population come into play here. Representation is key. The charter should allow for the election of a council that is truly representative of the entire community. While no specific design can guarantee effective, impartial, and equitable elected representation, the charter sets the stage for this to happen. Mayor. A community's history, traditions, preferences, and experiences factor into the decision of how to handle the selection of the mayor. The way the mayor is elected impacts the dynamics among all local elected officials and the overall effectiveness of the mayor's office, among other things. Therefore, careful consideration should be given to this procedure set forth in the charter. Two commonly used methods in council-manager cities are when (1) the council chooses a mayor from among its membership; and (2) the mayor is elected at -large. (All voters directly elect the mayor.) Both are workable alternatives, although the second is now the predominant practice. A mayor elected at -large increases the likelihood of effective mayoral leadership. Candidates for at -large mayoral positions have the opportunity to discuss citywide issues, and the broad base of community support needed to win the office provides the winner with a mandate for action. 3. City Manager. For those cities operating under the council-manager form of government, the Model City Charter recommends a section addressing the appointment, qualifications, compensation, removal, and powers and duties of the city manager. It is important to note that deviation from the tried and true ways of successfully operating a council- manager city should be avoided. If basic standards and protections of council-manager government are laid aside, the form can be seriously undermined setting up the city for failure. If a CAO is a part of a mayor -council city, a section in the charter should be designated to address this person's appointment, qualifications, compensation, removal, and powers and duties. As a source of professional advice, the CAO may function as a unifying force between the mayor and council. As stated earlier, the National Civic League in its latest Model City Charter recommends the CAO be either jointly selected by the mayor and the council or nominated by the mayor and approved by the council. This method encourages the CAO to be responsive to both the mayor and the council since both were involved in the hiring decision. 4. Departments, Offices, and Agencies. Every local government requires administrative departments to provide basic public services to its residents. Departments of a typical city include finance, human resources, parks and recreation, public works, library, water, sanitation, and public safety. These departments are responsible for conducting the business of the city and providing public services day after day. How these departments are organized and how they function in the administrative hierarchy differs across the country - and even over time within a single community. Administrative shifts and reorganizations occur for a host of different isons including taking advantage of organizational efficiencies, department head strengths, and personnel changes. departmental reorganizations can vastly improve the inner workings of a local government saving the government and taxpayers money and improving customer service. While most local government charters address governmental administration and departments to some extent, a charter should not identify a list of specific departments. Instead, it should simply state that the governing body may establish any office, department, or agency it deems necessary to carry out the functions of the local government. Consequently, the city council could approve changes such as combining or eliminating departments without changing the charter. While simple and general language is suggested, the Eighth Edition of the Model City Charter recommends special attention be paid in the charter to the critical areas of personnel, law, planning, and financial management. A rhartPr rnmmission should resist temptations to specify lines of accountability, add layers of complexity, or build in any extraneous features of supposed "safeguards." An example would be an independently elected department head. These additions are pitfalls for both efficiency and popular control. Instead, administrative departments should report to either the city manager (in the council-manager form) or the mayor (in the mayor -council form). In this way, the charter does not insulate any governmental function from popular control. The mayor is responsible to the voters for the administration's actions and is held accountable at the next election. The manager is responsible at all times to city residents through their council members who have the ability to dismiss the manager at will. These are essential features of each form of government. If the charter builds in any deviation from them, such as council confirmation of appointments made by the city manager or specified tenure for the manager, it will certainly reduce the chances of satisfactory operation of the government administration and weaken accountability. This means there is no room in either form of government for independently elected administrative personnel. Independent election of such officers undermines administrative responsibility and adds to the burden on and confusion of voters. ;thermore, departments should not be headed by or responsible to boards or commissions. Boards and commissions, more or less autonomous and more or less independent of city government, are found in municipalities across the country. While citizen boards and commissions play valuable advisory roles for local governments, they should not play a role in actual administration, supervision, or policy execution. Departmental functions should be under the responsibility of a single individual (department head) who is held responsible and is accountable to the manager or mayor. Possible exceptions include the city clerk and judge who are typically appointed by the council. So, where is the appropriate place for details of the organizational departments and functions to be enumerated? The answer is in the administrative (or municipal) code. And, the charter should mandate the city council to adopt one. An administrative code, adopted and amended by the council, governs the activities of the administration and sets forth the organization of the departments. Placing the administrative details in the code rather than in the charter allows for modifications without the burdensome and time consuming process of amending the charter. The administrative code is, of course, subordinate to the charter. Specifically, subjects that should be detailed in the code rather than in the charter include the following: administrative/departmental organization; accounting, expenditures, payroll; auditing; purchasing; bonding and borrowing procedures; franchises; eminent domain; special assessments; licensing and license revocation; nuisance abatement; planning and zoning. It should be noted that flexibility is crucial to build into the administrative code as well so that it is easily maintained. The code, and the charter for that matter, should be silent on internal departmental workings allowing the manager or mayor latitude to make changes administratively without being hindered by council -mandated requirements or restrictions. sum, local government leaders should have the ability to make necessary or desirable changes to the administrative ,e of the organization. A good deal of leeway allows for quick responses to changing requirements and environmental factors. A charter that addresses administration in a simple and straightforward way and incorporates an appropriate level of flexibility sets the stage for an effective, efficient, and responsive government administration. 5. Financial Management. A well -run financial system is a critical component of a well -run local government. Because strong financial guidelines help to ensure the fiscal health of a local government, this section of the charter focuses exclusively on the finance function of the local government, particularly the budget. Flexibility and sound budgetary practices should be emphasized. Topics addressed in this section include fiscal year, budget submission, budget message, budgetary council action, appropriation and revenue ordinances, budget amendments, budgetary administration and oversight, the capital program, independent auditing, and public availability of budget -related records. In an era of public sector financial scandals and problems, charter writers should pay particular attention to this section. Clearly articulating sound fiscal practices in the charter is a key step along the path of financial health. The requirements set forth in this section of the charter, such as the independent audit, serve as a robust layer of protection for the finances of any local government. 6. Elections. A goal of every charter should be to establish democratic control so the local government is responsive to the will of the people. State election laws typically apply to municipalities, leaving local governments little if any control in these matters. However, there are a few important areas still under the control of local governments. This section of the charter outlines various facets of the election process including election methods; when elections are held; partisan vs. nonpartisan elections; council districts and adjusting those districts; and initiative, referendum, and recall. Election methods. The two common ways to elect council members are by district or at -large. A mixed system is one in which district and at -large elections are combined in some way. District: District elections require a city to be divided in a number of geographical areas or districts. Each council member is chosen by the residents of a different district of the city. Candidate residency in the district is typically required. District elections have noteworthy benefits: They allow a minority group, particularly one living in a specific geographic area, to have a fair chance of being represented on the council. A council member elected by residents of a particular geographic area likely feels beholden to those living in the district. This often translates into a heightened sensitivity by the elected official to the concerns of those living in his or her district. Running a district campaign is less expensive than running a city-wide campaign. Therefore, district elections reduce the financial barrier for those seeking office as compared to running city-wide. As a result, the diversity and number of candidates could be strengthened with district elections. On the other hand, governing bodies made up of individuals elected by district can have a difficult time agreeing on community -wide goals since council members are predisposed to focus on the problems of their district rather than the priorities of the city as a whole. At -Large: In at -large elections, all candidates are placed on a ballot to be considered by all voters. Candidates in at - large elections occasionally run for specified seats on the council. Those candidates with the highest number of votes are elected to office. Public officials elected at -large represent the entire community. The at -large election system has noteworthy benefits as well. Unlike those elected by district, council members elected at -large theoretically are able to objectively view the priorities of the community os o whole and make impartial decisions based on the needs of all residents rather than on the priorities and desires of just one limited geographic area. If all council members are elected at -large, they all ideally embrace a holistic view of the community leading to a more unified and objective viewpoint as compared to a council composed of individuals elected from different districts wills very different priorities. Residents can voice their concerns to any of a number of council members rather than just one. This is because residents are represented by all council members. One possible negative effect of at -large elections is that it can dilute the ethnic or racial minority vote making it difficult for these groups to elect a representative to the council. Furthermore, at -large elections could result in the election of a number of council members who live in the same area of the city. This can raise questions regarding the fair distribution of public resources and the governing body's sensitivity to geographic areas where no elected officials reside. To address this particular concern, an outgrowth of the at -large system is the inclusion of a district residency requirement. In this scenario, council members are elected at -large, but not more than one council member can live in each district. Mixed System: Some cities have chosen to use a mixed system in which some council members are elected by district and some are elected at -large. Since the Justice Department approved this hybrid as a system that complies with the Voting Rights Act, it has gained popularity. Supporters of this system argue that it combines the best attributes of both district and at -large systems. For example, it facilitates a city-wide perspective offered by at -large elections while incorporating the "personal connection" between local government and voters promoted by geographically -based district elections. Problems can arise here as well when council members elected at -large believe their seats are superior to district council seats. To help combat this, all council seats should have the same duties and terms of office. It is important to note that courts have had a lot to say in this matter. The one man -one vote court decisions and the passage of the federal Voting Rights Act have heightened both awareness of and concern about how local elections are structured. Across the country, many municipalities have been forced by the Justice Department to abandon at -large elections and replace them with district elections to increase the chance that representatives from minority groups serve on city councils. Timing of Elections. If allowed by state election laws, the timing of local elections should be established in the charter. When a local election is held has certain implications. For example, if a local election occurs at the same time as a state and national election, voter turnout is generally high leading to more widespread participation by the electorate in local races. When elections are held at a time separate from state and national elections, local issues and candidates are the main focus and can be considered separately and apart from the broader political context. Both alternatives have sitive and negative impacts. The National Civic League does not take a stand on either option. Legal advice, local eferences, and community dynamics should dictate the proper approach prescribed in the charter. Nonpartisan vs. Partisan Elections. Political parties so prevalent and significant at the federal and state levels have little significance at the local level. It is unfortunate when local elections are decided solely on the basis of political party affiliation because of the limited importance of parties in municipal governance and because of the seed of division it plants before a single vote is cast on the council. Party primaries that nominate candidates from each party typically favor candidates who appeal to the most loyal "base" of voters within each party grouping. Primary voters are less likely to select moderates in each party and very unlikely to choose independents who are not affiliated with either party. While nonpartisan elections do not eliminate the involvement or influence of political parties in local races, it can minimize the emphasis on politics by shifting the focus from Democrat vs. Republican to that of local issues. When deciding among candidates on a ballot without party labels, voters typically elect a mix of Democrats, Republicans, and Independents who must all work together on the council. For very practical reasons, national party strife should be put aside at the Incal level to focus on the concerns of the community. The National Civic League supports nonpartisan elections as evidenced in its Eighth Edition of the Model City Charter, and it is not alone. A number of states have formally recognized the benefits of this approach and have passed legislation requiring nonpartisan elections at the municipal level. Elections that use ballots without party designation help place local politics on its own and free local governments from domination by national, state, or county party organizations. Local governments that willingly choose this approach recognize that it is an important part of genuine home rule. lincil Districts. If the election of local officials is based on the existence of districts, the establishment of districts and _)cess for re -districting is included in the charter. This section holds particular significance for political representation since re -drawing district boundaries is generally required after each U.S. Census based on population changes. The process, timing, and method (by districting commission or city council) are included in this section - not the actual district boundaries. Initiative, Referendum, and Recall. If permitted by the state, these three procedures of direct democratic control over government give citizens a degree of confidence in their ultimate control of the city. Therefore, a charter should not dictate a severely high threshold for signatures required to initiate these measures. The commission should be sensitive to setting the required number of signatures at a reasonable level. If the charter sets an impossible standard, it will render these measures worthless. While they can be considered a "last ditch effort" to push an action through the legislative system, initiative and referendum are viable alternatives that should be available to residents and included in a charter if legally possible. If the local government Is well -managed, responsive, ethical, efficient, and effective. lisp of Lhese measures is kept to a minimum. Recall gives voters a chance to remove an elected official from office who is not meeting his or her responsibilities. The permissible grounds for recall, however, should be limited to misconduct or failure to perform the duties of the office, not disagreement with a decision the council member has made. 7. General Provisions. Good government is rooted in public trust. To a large degree, this requires government, as far as possible, to be responsive, open, and transparent. In today's information age, transparency takes on a much different meaning than it did decades ago. Citizens have a high expectation for timely and accurate information to be available 24-7. Local governments should be proactive in making information available through all avenues possible. This moves beyond passing out copies of budget numbers at public meetings and issuing press releases on project updates. Citizens want and expect easy electronic access to considerable amounts of substantive public information. The National Civic League's Eighth Edition of the Model City Charter includes a section titled "general provisions" which covers conflicts of interest, ethics, basic prohibitions, and campaign finance. A charter that emphasizes transparency and openness in these areas encourages public trust in local government and those working in it. Again in these matters, the charter should present the process for dealing with these issues in light of specific state laws or, alternatively, mandate that a process be adopted by the governing body via ordinance. 8. Charter Amendment. A charter should stand the test of time. However, from time to time charter revisions are necessary. While amending a charter should be possible, it should not be too easy either. This helps ensure that successful charter amendments are both appropriate and necessary. For states that allow cities to adopt their own procedures for charter amendment, this section sets forth that procedure. Included here are regulations for the proposal of the amendment(s) and the subsequent election when voters approve or disapprove the proposed changes. Some charters include a provision here that requires a review of the charter every five or ten years, for example. Many cities have found the practice of mandated charter reviews to be a useful exercise. Any charter changes should, of course, require popular approval at a referendum. 9. Transition and Severability. Many charters do not address the possibility of a governmental transition from one form of government to another. However, charters that speak to this issue can be extremely helpful to those leading such a change by protecting a city from litigation, avoiding general uncertainty and confusion, and clarifying general city - related questions. While care should be taken to tailor this section to state law, the Model City Charter offers recommendations on how to handle existing employees, departments, and agencies; how to address pending legal and administrative matters; and the schedule for various upcoming meetings, deadlines, and elections. Conclusion One of the most interesting things about local government charters is that each one is a distinct reflection of its community. Because a charter is the document that allows citizens to determine their own structure of government within state -prescribed legal limits, a charter is, in many ways, a manifestation of a particular community's values. Each charter is built on a specific set of political and administrative choices that are determined by the values held by local residents. The final product of this process should be a charter built on widespread community involvement and, ultimately, widespread agreement on how the local government should function to best serve its residents. However, the charter process can result in even more. The call to action that the charter process requires can awaken a community's sensitivity to the importance and responsibility of civic involvement. If conducted successfully, the charter review process can result in a rebirth of widespread civic -mindedness - a quality that unfortunately is rarely seen in communities in a tangible way. the end, it is the community's values that build, alter, or reaffirm the foundation of its local government. In vibrant ,ommunities, citizens continually seek out new ways to improve how they govern themselves guided by the constitutional principles incorporated in their city charter. Ongoing refinement of the charter as a tool for effective governance is what the charter review process is all about. ^ more thorough discussion of all of these charter components is presented in the latest edition of the Model City arter published by the National Civic League. Commission members are urged to refer to the Model City Charter for background information, further detail, and insightful commentary on all aspects of charter revision discussed here. Department Department Department Department Department Head Head Head Head Head Strong Mayor -Council - - - Citizens Mayor Council Department Department Department Department Department Head Head Head Head Head Council -Manager Citizens Governing Body (Mayor and Council) Manager Department Department Department Department Department Head Head Head Head Head Suggested Readings Note: This abbreviated list of suggested readings represents just a sample oft he resources available that address the topics covered in this Guide. Adrian, C.R. 1988. Forms of City Government in American History. In International City Management Association (Ed.) The Municipal Yearbook 1988 (pp. 3-11). Washington, DC: International City Management Association. Anderson, E. 1989. Two Major Forms of Government: Two Types of Professional Management. In International City Management AssUCidtiUll (Ed.) The Municipal Yearbook (pp. 25-32). Washington, DC: International City Management Association. Blodgett, T. 2010. Texas Home Rule Charters, second edition. Austin, TX: Texas Municipal League. Box, R. C. 1995. Searching for the Best Structure of American Local Government. International Journal of Public Administration 18: 711-741. Fannin, W.R. 1983. City Manager Policy Roles as a Source of City Council/City Manager Conflict. Internationallournal of Public Administration 5(4): 381-399. Farnham, P.G. and Bryant, S.N. 1985. Form of Local Government: Structural Policies of Citizen Choice. Social Science Quarterly 66: 386-400. Frederickson, H.G., Johnson, G., and Wood, C. 2004. The Adapted City: Institutional Dynamics and Structural Change. Armonk, NY: ME Sharpe. Gurwitt, R. 1993. The Lure of the Strong Mayor. Governing 6(10): 36-41. Hansell, B. 2002. The Future of the Profession. Public Management 84(7): 30, 32. Montjoy, R. S. and Watson, D.]. 1995. A Case for Reinterpreted Dichotomy of Politics and Administration as a Professional Standard in Council -Manager Government. Public Adminisstrotion Review 55(3): 231-239. Nalbandian, J. 1987. The Evolution of Local Governance: A New Democracy. Public Management 69(6): 2-5 National Civic League. 2003. Model City Charter, Eighth Edition. Denver, CO: National Civic League. O'Neill, R. and Nalbandian, -J. 2009. Charter Reform: Ways to Think About It. Public Management November: 6-10. Parrish, C.T. and Frisby, M. 1996. Don't let FOG* Issues Cloud Community's Horizon: Models of Retention and Abandonment. Public Management 78(5): 6-12. Protasel, G. 1988. Abandonments of the Council -Manager Plan: A New Institutionalist Perspective. Public Administration Review 48(4): 807-812. Reed, T.H. 1947. Revising a city charter. New York, NY: Governmental Research Association. A Survey of America's City Councils: Continuity and Change. 1991. Washington: National League of Cities Svara, J.H. and Watson, D.J., Editors. 2010. More than Mayor or Manager: Campaigns to Change Form of Government in America's Large Cities. Washington, D.C.: Georgetown University Press. Svara, J. H. Editor. 2008. The Facilitative Leader in City Hall: Reexamining the Scope and Contributions. Boca Raton, FL: CRC Press. Svara, J. H. and Nelson, K. L. 2008. Council-manager government at 100: Growing and making a difference. Public Management 90 (7): 6-15. ,vara, J. H. 1994. Facilitative Leadership in Local Government: Lessons from Successful Mayors and Chairpersons. San Francisco: Jossey-Bass Publishers. Svara, J. H. 1990. Official Leadership in the City: Patterns of Conflict and Cooperation. New York: Oxford University Press. Svara, J.H. 1989. Is there are Future for City Managers? The Evolving Roles of Officials in Council -Manager Government. International Journal of Public Administration. 12(2):179-212. Svara, J.H. 1988. The Complimentary Roles of Officials in Council -Manager Government. In International City Management Association (Ed.), Municipal Yearbook (pp. 23-33). Washington, DC: International City Management Association. Watson, D. J., Hassett, W.L. and Caver, F. 2006. Form of Government and Community Values: The Case of Tuskegee, Alabama. Politics and Policy 34(4): 794-813. Wikstrom, N. 1979. The Mayor as a Policy Leader in the Council -Manager Form of Government: A View from the Field. Public Administration Review 39(3): 270-276. Eighth Edition Model City Charter A Publication of the National Civic League National Civic League National Headquarters 1445 Market Street, Suite 300 Denver, Colorado 80202-1717 Office: 303-571-4343 Fax: 303-571-4404 Web: www.ncl.om Washington D.C. Office 1319 F Street N.W. Suite 204 Washington, D.C. 20004 Office: 202-783-2961 Fax: 202-347-2161 Model City Charter, Eighth Edition Copyright © 2003 National Civic League, Inc All rights reserved; unauthorized duplication by any means is a violation of applicable law. To obtain additional copies, contact: National Civic League Press 1445 Market Street, Suite 300 Denver, Colorado $0202-1717 Office: 303-571-4343 Fax:303-571-4404 Web: www.ncl.org Email: ncl@ncl.org Dedicated to the Memory of Betty Jane Narver Table of Contents Acknowledgements........................................................................... i Introduction................................................................................... iii Model Building: A Continuing Process ................................................. vii PREAMBLE 1 Article I - POWERS OF THE CITY............................................................ 2 Section 1.01 Powers of the City ..................................................... 2 Section 1.02 Construction............................................................ 3 Section 1.03 Intergovernmental Relations .......................................... 3 Article II - CITY COUNCIL ................................................................... 5 Section 2.01 General Powers and Duties .......................................... 5 Section 2.02 Eligibility, Terms, and Composition ................................. 6 Section 2.03 Mayor .................................. I .............................. 10 Section 2.04 Compensation; Expenses ............................................. 12 Section 2.05 Prohibitions.......................................................... 13 Section 2.06 Vacancies; Forfeiture of Office; Filling Vacancies ............. 14 Section 2.07 Judge of Qualifications ............................................... 15 Section 2.08 City Clerk............................................................ 16 Section 2.09 Investigations.......................................................... 16 Section 2.10 Independent Audit ................................................... 16 Section 2.11 Procedure............................................................... 17 Section 2.12 Action Requiring an Ordinance ... ................................. 17 Section 2.13 Ordinances in General ............................................... 18 Section 2.14 Emergency Ordinances ............................................... 19 Section 2.15 Codes of Technical Regulations .................................... 20 Section 2.16 Authentication and Recording; Codification; Printing of Ordinances and Resolutions.......................................................... 21 Article III - CITY MANAGER............................................................... 22 Section 3.01 Appointment; Qualifications; Compensation ..................... 22 Section 3.02 Removal............................................................... 24 Section 3.03 Acting City Manager ................................................. 24 Section 3.04 Powers and Duties of the City Manager ........................... 25 Article IV - DEPARTMENTS, OFFICES, AND AGENCIES ............................... 26 Section 4.01 General Provisions ................................................... 26 Section 4.02 Personnel System .............................................. I .... 27 Section 4.03 Legal Officer.......................................................... 28 Section 4.04 Land Use, Development, and Environmental Planning ......... 29 Article V - FINANCIAL MANAGEMENT .......... ....................................... 30 Section 5.01 Fiscal Year............................................................ 30 Section 5.02 Submission of Budget and Budget Message ...................... 30 Section 5.03 Budget Message ...................................................... 31 Section5.04 Budget................................................................. 31 Section 5.05 City Council Action on Budget .................. I ................. 32 Section 5.06 Appropriation and Revenue Ordinances ........................... 34 Section 5.07 Amendments After Adoption ........... I ............... 34 Section 5.08 Administration and Fiduciary Oversight of the Budget ......... 36 Section 5,09 Capital Program ...................................................... 36 Section 5.10 City Council Action on Capital Program ........................ 37 Section 5.11 Independent Audit ................................................... 38 Section 5.12 Public Records........................................................ 39 Article VI - ELECTIONS ............................................... . ............. I ..... 39 Section 6.01 City Elections .......................................... I ............. 39 Section 6.02 Council Districts; Adjustment of Districts (for use with Alternatives 1I, III and IV of § 6.03).................................................. 42 Section 6.03 Methods of Electing Council Members ........................... 46 Section 6.04 Initiative, Citizen Referendum, and Recall ...................... 48 Article VII — GENERAL PROVISIONS ......................................... . ......... 53 Section 7.01 Conflicts of Interest; Board of Ethics ............................. 53 Section 7.02 Prohibitions ............. I . , .................. I ....................... 54 Section 7.03 Campaign Finance . . ............. .................................... 55 Article Vlll — CHARTER AMENDMENT .... . .......................... I ...... I .......... 56 Section 8.01 Proposal of Amendment ............................................. 56 Section 8.02 Election .............. . . .. . ............. . . . .............................. 57 Section 8.03 Adoption of Amendment .......................................... 58 Article IX - TRANSITION AND SEVERABILITY.................................... . ... 58 Section 9.01 Officers and Employees .............................. . .............. 58 Section 9.02 Departments, Offices, and Agencies ............................... 58 Section 9.03 Pending Matters ....................................... . ............. 59 Section 9,04 State and Municipal Laws .......................................... .59 Section 9.05 Schedule............................................................... 59 Section 9.06 Severability............................................................. 61 Appendix - OPTIONS FOR MAYOR -COUNCIL CITIES ................................. 61 Change with Continuity in the Values of Local Government Reform ........... 69 Citizen -Based Government: A Process to Engage Citizens in Charter Revision .. 73 ACKNOWLEDGEMENTS It is with great pride in the accomplishment that we present the eighth edition of the Model City Charter, one that is truly a model for the 21" century. A number of important changes have been made in accordance with the changing needs of communities in this new century. The Model itself is now over a century old but its importance as a guide for communities remains as relevant as ever. The 8`h Edition Model City Charter Revision Committee was appointed on March 29, 2001. The National Civic League's Board approved the new edition of the Model on November 16, 2002. Betty Jane Narver, Director of the Institute for Public Policy and Management of the University of Washington, first chaired the committee. Her untimely passing left far more than just the revision committee bereft of her wisdom and understanding. We were exceedingly fortunate to benefit from the admirable talents and leadership contributed by Bob O'Neill, who succeeded Betty Jane as chair of the revision committee. Bob is the executive director of the International City/County Management Association, a long-standing partner with the National Civic League in the charter revision process. We also benefited enormously from the continued dedication of a group of seasoned professionals whose expertise in this area is unmatched. Terrell Blodgett, professor emeritus at the LBJ School of Public Affairs, served as one of the senior advisors for the revision project. Blodgett also chaired the revision committee that produced the seventh edition of the Model, and he was the chairman of the National Civic League in 1986 and 1987. William Cassella, Jr., former executive director of the National Civic League (1969-1985) and coordinator for both the sixth and seventh editions, also served as a senior advisor. Robert Kipp, group vice president at Hallmark Cards, Inc., and James Svara, department head of political science and public administration at North Carolina State University, were the other senior advisors, and they both made invaluable contributions throughout the revision process. Once again we had the great fortune of assembling an outstanding set of individuals to serve as committee members for this project. The other members of the Bch Edition Model City Charter Revision Committee were Eric Anderson, City Manager, City of Des Moines, Iowa; Linda Barton, City Manager, City of Livermore, California; Donald Borut (ex officio), Executive Director, National League of Cities; Peter Buchsbaum, Greenbaum, Rowe, Smith et al., American Bar Association; John Buechner, President Emeritus, University of Colorado; Jacqueline Byers, Director of Research, National Association of Counties; Jim Dailey, Mayor, City of Little Rock, Arkansas; Mony Flores -Bauer, League of Women Voters; R. Scott Fosler, former Chair, National Civic League; George Frederickson, Professor, Department of Public Administration, University of Kansas; Christopher T. Gates, President, National Civic League; Guy Goodson, Councilperson, City of Beaumont, Texas; Charles Gossett, Director, Masters of Public Administration Program, Department of Political Science, Georgia Southern University; Neil Giuliano, Mayor, City of Tempe, Arizona; John Hall, Professor, Arizona State University; Bill Hansell, immediate past Executive Director, International City/County Management Association; James Keene, City Manager, City of Tucson, Arizona; Ron Loveridge, Mayor, City of Riverside, California; David Miller, Associate Dean, GSPIA, University of Pittsburgh; Sylvester Murray, Professor, Urban Studies, Cleveland State University; John Nalbandian, Chair, Department of Public Administration, University of Kansas; Neil Reichenberg, Executive Director, International Personnel Management Association; Dorothy Ridings (ex officio), President and Chief Executive Officer, Council on Foundations, and Chair, National Civic League; Tanis Salant, Director, Institute For Local Government, University of Arizona; Phil Schenck, City Manager, Town of Avon, Connecticut; David Schultz, Asst. Professor, Public Administration and Management Graduate School, Hamline University; David Sink, Professor, Department of Public Administration, University of Arkansas, Little Rock; Henry Underhill, Executive Director/General Counsel, International Municipal Lawyers Association; and John Vocino, Senior Analyst, U.S. General Accounting Office. The National Civic League also thanks the organizations that provided the financial support to undertake this work. Generous contributions from the Hallmark Corporate Foundation, the Carl and Lily Pforzheimer Foundation, the Murray and Agnes Seasongood Good Government Foundation, and the Alfred P. Sloan Foundation made the work of the 8'h Edition Model City Charter Revision Committee possible. Finally, I want to thank the staff of the National Civic League who worked so hard over the past two years to organize this effort and pull all the new ideas into the document you now hold in your hands. They were: Matt Krumme, Manager, Model City Charter Revision Project; Robert Loper, Research Director and Editor, National Civic Review; Camilla Modesitt, Director, New Politics Program; Derek Okubo, Director, National Headquarters; and Bill Schechter, Director, Community Services, Washington DC. Christopher T• Gates President i INTRODUCTION The eighth edition of the Model City Charter strongly endorses the council-manager structure of municipal government that was first proposed in 1915 as the National Civic League's (then the National Municipal League's) model form. In the years since, the Model has been refined to reflect the evolution of the council-manager plan, the most widely used governmental structure in American cities with a population over 10,000, The fundamental principle of the model, that all powers of the city be vested in a popularly elected council that appoints a professional manager who is continuously responsible to and removable by the council, has endured ever since. A Model for the 21St Century The realization that the Model City Charter has exerted enormous influence in promoting the municipal reform agenda for more than a century made those responsible for the eighth edition acutely aware of the model's evolution and of the obligation to make it an effective force for the future. Reforming reform is a delicate undertaking. To make revisions in the specifics of reform measures and to suggest alternatives to strongly held positions should not be viewed as rejecting the past but as building on it to meet changing circumstances with the benefit of wider experience. Institutions must be adapted to address new priorities and new concerns, and to be useful, models must assist in the process of adaptation. As the National Civic League's Model City Charter Revision Committee undertook development of the eighth edition, participants considered the concept of a model. Back in 1944, on the occasion of the National Civic League's 50th anniversary, Harold Dodds, then president of Princeton University and a former executive director and president of the National Municipal League, described the purpose of a model as being ... to set patterns clearly and specifically, delineating the best practice and the best thought on a problem, to correct existing defects, to set high standards which provide something to fight for instead of against ... the model laws brought stability, dignity and scientific fact to `reform.' They made readily available to officials and citizens the product of the able thinkers on governmental problems. There have been two views as to how best to fulfill this purpose. One insists that a model presents the ideal structure of local government while the other sees a model as being based on a general principle of organization or process. In the latter case the model presents alternative means for achieving the basic end. The first view was an essential part of the tactics of the zealous reformers of the Progressive Era. They were promoting new approaches with limited proven records, and they advocated the adoption of the new package in its entirety to ensure that the innovative logic for government reorganization was given a chance to work. At a time when the council-manager plan was a novel form of government, this view of the Model City Charter was quite understandable. The successors to the Progressive reformers advocated what they considered to be a tried-and-true approach and felt that alternatives deviating from this ideal were invitations to dilution and distortion that could undermine the basic reform goal. With the widespread acceptance of the council-manager form of government and its use in communities of varying size and circumstance, the current situation is quite different. A more pressing need today is to consider whether and how the council-manager plan might be adapted to respond to contemporary challenges. Such response may include using alternatives that depart from the original reform formulation. Beginning with the 1964 edition of the Model City Charter, a modification of the view of the earlier reformers was evident. The foreword to that edition stated: For the first time, the Model presents, in addition to the preferred provisions, alternatives on such matters as the composition and election of the council and the selection of mayor. Some advisors and consultants objected to the inclusion of legal texts which depart from the stated preferences, but the overwhelming majority agreed that it is advisable to provide guidance for adapting the council-manager plan to a variety of local circumstances without sacrificing the fundamental principle that the top professional serves at the pleasure of the governing body. The eighth edition of the Model City Charter continues to endorse the council-manager plan, but it presents alternatives for certain key provisions without indicatinj4 an absolute preference. A Model with Alternatives One of the changes made in the eighth edition is the inclusion of a preamble, which emphasizes that the charter is the constitution of the municipality adopted by its citizens. Some of the more important changes to the model provisions dealing with the council and the mayor are considered below. The Council. Out of a concern for increasing the capacity for governance, the second edition stressed the importance of a small council whose members had a perspective that was greater than that of a particular neighborhood or small section of city. At the same time, proportional representation from the city at -large, or from multi -member districts in "great" cities, was included to insure that the governing body provides "fair representation of all large minorities" and is "truly representative of all elements and groups of opinion." The option of using districts was dropped until the sixth edition, but through 1941, the Hare system of proportional representation was endorsed as the preferred way to elect the council. The current edition offers five alternatives. The importance of the at -large principle is emphasized, but the need for geographical representation or even more flexible proportional representation under certain circumstances is explained. There is strong support for the all at -large council alternative in smaller municipalities and in those cities where assuring fair representation of minority populations is not an issue. In cities where minority representation is enhanced by election from districts, consideration of the alternatives for mixed systems, with some council members elected at large and some by districts, is recommended. It is also recognized that councils elected entirely from districts frequently have been mandated by the U.S. Justice Department or by court decisions to assure equitable representation of racial minorities. Therefore, the all -district alternative is included in the article on elections and a special emphasis is given to districting criteria and procedures. The proportional representation alternative is continued. Concern for representation of minorities and the possibility of technological improvements that will simplify the voting process have renewed interest in proportional representation. IV Whatever the alternative used to determine the composition of the council, the wide use of the council-manager plan has emphasized the central importance of the municipal council in local government. The basic principle that the executive is appointed by and responsible to the council has meant that particular attention is given to the composition of the council when local charters are under review. The Mayor. The basic theory of the council-manager plan, which rejects the separation of powers concept with powers divided between the council and an elected chief executive, has been ambivalent on the role of the mayor in council-manager cities. Beginning in 1915, the Model City Charter provided that the mayor would be chosen by and from the council and would be the presiding officer of the council and head of the city for ceremonial purposes and for purposes of military law. No consideration was given to the role of the mayor as a policy leader. The 1964 edition recognized that in practice more than half of the council-manager cities had mayors elected directly by the voters. A direct election alternative was provided, but the preference for election by council was continued. The 1964 commentary on the mayor did take notice of the policy leadership role of the mayor and cited the fact that many mayors elected by the council -- the preferred model -- had provided dynamic leadership. One such mayor was Murray Seasongood of Cincirmati, who in the early 1960s said, "I am on record over the years as believing that the mayor should be a person of real importance in the council-manager plan and is as essential to its proper operation as is the manager.... The emphasis should be on giving the mayor greater stature than he now possesses in the ordinary council-manager government." This edition of the model charter emphasizes the need to further clarify the role of the mayor. It specifies certain duties of the non -executive mayor that are entirely consistent with the basic concept of the council-manager plan. The office is quite different from that of the elected chief executive in a system that separates executive and legislative powers. Rather, the mayor in the council-manager form is the chief legislator, the leader of the policy making team. This mayor can be a "strong" mayor who, not having to overcome the offsetting power of the council or not being bogged down with the details of managing the city's staff, can focus on facilitative leadership. The mayor is effective by helping the council and staff perform better. High involvement by the council and the manager and constructive relationships among officials are indicators of successful leadership by the mayor. Effectiveness does not mean charting an independent path or taking over tasks from the manager. The new Model also specifically addresses the importance of strong political leadership and the potential for such leadership by the mayor in council-manager cities. This is based on three premises. First, relationships among officials in council-manager cities are cooperative rather than contentious because powers are not divided among officials. Second, this approach to mayoral leadership stresses the contributions of all officials rather than focusing on the mayor as the driving force in city government. Third, the potential for mayoral leadership is inherent in the council- manager form so long as the office is not actually hamstrung by arbitrary limitations. The mayor occupies a strategic location shaped by his or her close relationships with the council, manager, and individual citizens and groups in the community. The mayor is able to promote communications among officials and with the public. Unusual powers are not needed for leadership and may actually curtail leadership by separating the mayor from other officials. Any augmentation of the role of the mayor must not be construed as reducing the power of the council but rather as a way to provide v I� ._ 1' .... ..,.. .. �.. .i; �� .:a:. P.',J�..:Si::.< is ',._ .•i' focus and leadership in the development of city policy. Nor should the role of the mayor intrude on the management of the city's operations by the manager. The Model presents two alternative methods for choosing the mayor without stating a preference: direct election by the voters and election by and from the council. Communities are advised to consider the local situation in choosing between the two alternatives, determining which would be most conducive to the development of strong political leadership and effective professional administration. Looking Ahead The latest revision of the model charter was undertaken with the recognition that most municipalities now operate in a regional context that makes intergovernmental cooperation a necessity. This understanding led members of the revision committee to specify that along with his or her other duties the city manager should encourage regional and intergovernmental cooperation. A greater role for citizen participation in local governance has also been emphasized in the new model. While a time will certainly come for this edition to be revised in turn, there is no doubt that it ensures continuity with the purposes of the Model City Charter even as it recommends changes to meet the challenges of a new century. ,: . _ •....... I:':_.-:.. .i':..: it � 1 :: 'i�...,.. .. „r� MODEL BUILDING: A CONTINUING PROCESS The influence of the Model City Charter, direct and indirect, can be measured in the ever- increasing use of the form of government it advocates. When it was proposed that the National Municipal League (League) endorse the council-manager plan as its model form, fewer than 50 cities had adopted the plan; by 2002 the number exceeded 3,000. Hundreds more communities operate with essential features of the plan, particularly the provision of responsible professional management. It has always been made quite clear that the model is not an absolute. It must be tailored to fit local circumstances, traditions, and legal restraints, and features of it may be used to strengthen governments, even those that do not follow the basic council-manager form. The Model City Charter through its several editions has been the product of many minds and has reflected an enormous diversity of experience and preferences. It has always been informed by an abiding and unanimous commitment to the strengthening of self-government in America. The Beginning The publication of this new edition of the Model is the latest stage in the continuing process that began in 1894 with the establishment of the League. At the conclave that launched the organization, Theodore Roosevelt told his fellow founders, the leaders of municipal reform: "There are two gospels I always preach to reformers.... The first is the gospel of morality; the next is the gospel of efficiency.... I don't have to tell you to be upright, but I do think I have to tell you to be practical and efficient...." These 1894 reformers agreed that to be practical and efficient" more was required than Roosevelt's exhortation for the "vindication of public virtue and popular rights of conscience and duty in public life...." They had a determination "to change the conditions which prevent good government [and] to simplify the machinery which interferes with free expression and practical enforcement of the intelligent will of the majority" (Horace E. Deming, City Club of New York). This group of farsighted leaders was clearly focused on the new century just ahead. They knew that they must develop a method for addressing not only the immediate crisis in city government but also a means for giving systematic attention -to -the- fundamental elements in the machinery of local government. Thus began the process of model building that has endured for over a century. The "elements of a model charter for American cities" were first laid out by Edmund Janes James, then a University of Pennsylvania political scientist and later the president of the University of Illinois. He emphasized that "a model city charter must be ... adapted to local and temporal conditions... That scheme of government is the ideal one ... which under any given set of conditions makes the working of good influence easy and of bad influence hard -- a form of government under which all the excellences of which a people or community is capable in a political sense can be realized ... a city charter should give the people of the city the greatest degree of self-determination, both as to the form of government and as to the things which the government shall do...." W The First Model City Charter In 1897 a onmmittee of distinguished scholars and civic reformers was given the task of developing a municipal program embodying "the essential principles that must underlie successful municipal government and ... set forth a working plan or system ... for putting such principles into practical operation...." In 1899 the committee reported its recommendations, which were published in 1900 as A Model Municipal Program. It included a proposed state constitutional amendment defining the relation of the municipality to the state and a model charter in the form of "a municipal corporations act." This first Model City Charter called for a council elected for six -year staggered terms, a strong, elected chief executive system with very extensive powers assigned to the mayor, including appointment of all major municipal officials (except the comptroller) without advice and consent of the council. An independent civil service commission and civil service regulations were also recommended. The recommendation of a strong elected executive was such a drastic departure from prevailing practice that it gained little acceptance. Indeed, there not only was an unwillingness to entrust such extensive powers to a mayor but there were also strong movements to interpose boards or commissions between the executive and the operating department heads to provide protective cover for many services, e.g., boards of public works, health, parks, recreation and planning. The desire was,to prevent scandal, but the result was to diffuse responsibility. A New Municipal Prop -ram and a New Model Charter. In the same year (1900) that the League published its first Model City Charter, the reform agenda was affected by the aftermath of a tidal wave in Galveston, Texas. The special commission used to deal with that emergency evolved into the commission form of municipal government. The legislative and executive functions were merged in a commission. The ballot was shortened and separately elected and independent boards were eliminated. It became a popular reform in the early years of the century. There was pressure for the League to endorse the commission plan model. Then as now, however, the League rejected the commission plan because it fragmented the executive and permitted too little attention to policy development. The question was how to combine the "short ballot" result that characterized the commission plan with the integrated, responsible executive provided in the League's first. model. The answer to this question was seen clearly by Richard S. Childs as he built on the short ballot principle that he had been espousing with Woodrow Wilson and others. He promoted the ingenious combination of experience in commission -governed cities and the basic organizational feature of private business -- the appointed chief executive officer. The Childs position was most persuasive in the deliberations of a new League Committee on Municipal Program, which was established in 1913 to review the first Model and other reform experience. The committee's first report in 1914 endorsed what became known as the council- manager plan. In 1915 the League adopted a new municipal program presenting the second Model City Charter, which provided that all powers be vested in the council and that the vin administration of the city's operations be by a city manager appointed by and serving at the pleasure of the council. The committee was not only convinced that the new form of government was sound in theory but was also able to observe it in operation in a few pioneering cities. The committee was unaware of a proposal made by the first secretary of the League of California Cities, Haven S. Mason, in 1899 for a "distinct profession of municipal managers" to administer the affairs of a city or the fact that the small town of Ukiah, California, in 1904 established the position of "executive officer," who was responsible to its governing body, to administer its activities, The, committee was aware that beginning in 1908, Staunton, Virginia, had a general "city manager" serving a two -house council and sharing the executive function with the mayor. The first city to have a manager responsible to a single elected council was Sumter, South Carolina, in 1912. It was followed two years later by Dayton, Ohio, the first city of substantial size to adopt the plan. By the end of 1915, the council-manager plan had been adopted by 82 cities, with the number almost doubling by 1920. Unquestionably, the League made the important shift in its model charter from endorsement of an elected chief executive to advocacy of an appointed manager because of the conviction that the latter provided the most desirable arrangement for securing a responsible chief executive. In describing the 1915 Model, it was stated: " ... the most distinguishing characteristic of the form of city government advocated in the New Municipal Program is to be found in the concentration of administrative powers and responsibilities in the hands of a city manager ... declaring that the city manager shall be the chief executive of the citv." It was clearly recognized, however, that the new Model rejected the "separation of powers" concept which characterized the national and state governments, stating: "The dominant note in our new Model City Charter is elimination of the system of checks and balances in the organization of our cities and the substitution therefor of responsible government under a small legislative chamber which in turn selects a single administrative head. The city manager plan not merely represents the type in common use in business corporations but also in parliamentary government." The Model has continued to endorse the unitary structure provided in the council-manager plan, although alternative approaches within this structure are now provided. Evolution of the Reform Agenda In addition to the provisions for the basic form of municipal government -- the legislative body and executive structure -- the Model has addressed other aspects of the reform agenda. Civil Service. The architects of the first two model charters included some of the leaders of the civil service reform movement. hrdeed, the chairman of the committee that developed the 1915 Model was William Dudley Foulke, who served as a member of the U.S. Civil Service Commission under Theodore Roosevelt and was president of the National Civil Service Reform League. Thus, it is not surprising that the early models contained detailed provisions for municipal civil service systems, including an independent civil service commission with extensive rule making authority with respect to "the appointment, promotion, transfer, layoff, ix reinstatement, suspension, and removal of city officials and employees ... [and the duty] to supervise the execution of the civil service sections [of the charter] and the rules made thereunder...." The manner in which municipal personnel organization and procedure are treated in the successive editions of the Model City Charter (1900, 1915, 1927, 1933, 1941, 1964, 1989, and 2002) shows how the reform agenda evolved during the 20th century. From the first two editions with an independent civil service commission, the Model moved in 1927 to an organization with a personnel director appointed by the city manager and a personnel board with limited powers. This was the approach followed in the 1933 and 1941 editions, but the provisions continued to be extremely detailed, covering classification procedures, promotions, pay plans, pensions and retirement systems. Notes accompanying these provisions indicated that some advisors were even then urging greater simplicity. This was done in the 1964 edition, which contained only a listing of the elements of personnel rules, restricted the personnel board to an advisory role, and recommended that details of personnel organization and procedure should be included in the administrative code. The Model now recognizes that personnel systems in some states are controlled in large part by state law and everywhere are subject to certain federal regulations. The charter simply states a commitment to the merit principle and mandates the council to provide by ordinance for a personnel system based on the merit system and consistent with state and federal law. Thus, the Model's treatment of municipal personnel administration has evolved from prescribing in detail an organization and procedures concerned with the elimination of spoils to a general and flexible provision permitting the city to provide by ordinance an adaptable system that will increase the competence of the public service in meeting changing needs. Platuiinp. Treatment of planning in the Model City Charter has had a somewhat different evolution. In early editions the provisions were quite general, with new sections on zoning and other detailed aspects of planning not being added until 1927. The 1941 edition had the most detailed planning provisions, continuing to call for an independent planning commission with specific powers but with the planning director appointed by the city manager rather than by the commission. There were provisions for the master plan, official map, subdivision control, plat approval, zoning, slum clearance, blighted areas, housing, neighborhood redevelopment and disaster areas. By 1964 the approach was substantially changed, with the Model indicating that planning should be considered preeminently a staff function tied directly to the city's executive, with the planning board's role being exclusively advisory. Further, it was indicated that planning policy is finally expressed and carried out by the council through various enactments. The Model did continue to provide procedures for adoption, modification and implementation of the comprehensive plan. The 1989 Model recognized that land use development and environmental protection are increasingly the subject of regulation by state and federal statutes. This continues to be the case. In order to permit the municipality the greatest possible flexibility to carry out the planning x function effectively, the Model does not provide for a specific structure. The city council is mandated to establish the planning organization and procedures. The eighth edition emphasizes the importance of integrating municipal planning with the planning of other local jurisdictions and regional agencies. Finance. The Model's treatment of financial procedures has undergone an evolution from relatively simple prescriptions in the early editions to highly detailed and restrictive procedures in 1941 and back to much simpler procedures in recent and current editions. The 1941 edition was closer in time to the local government financial crises in the 1930s. Its provisions seemed overly rigid and unnecessarily complicated to those developing the next edition 20 years later, when economic conditions and fiscal procedures in local governments were substantially improved. The 1964 edition emphasized the importance of developing a comprehensive financial program and maximum flexibility within the boundaries of sound fiscal practices. The 1989 edition made only minor modifications, clarifying some procedures and taking note of the need to provide for revenue ordinances covering non -property tax revenues. The eighth edition further clarifies financial procedures, renaming the relevant article "Financial Management." The provision for an independent audit, previously found in Article II dealing with the city .council now appears in Article V with new emphasis. The Model places attention on long-term goals and community priorities in the budget process and the importance of methods to measure outcomes and performance. Initiative, Referendum, and Recall. The enthusiasm for some reform measures has varied over time. Provisions for the initiative, referendum, and recall were first included in 1915. Initiative and referendum have been provided in all subsequent editions of the Model but support for their inclusion has been far from unanimous. The commentary on the 1964 provision stated: "Since the initiative and referendum are more valuable in their availability than in their use, this Model sets up an exacting procedure." The 1989 and 2002 editions have a simple provision that takes note of the fact that in most states where the initiative and referendum are available they are governed by the state election law. The recall was eliminated in the 1941 edition and was considered and rejected for inclusion in 1964 and 1989 but has been restored in the eighth edition. Ethics. Since its early editions, the Model has had provisions prohibiting municipal officers from having conflicts of financial interest. The 1989 edition replaced statutory language in the charter with a mandate for council passage of ordinances covering ethics issues and measures for their enforcement. The eighth edition continues this approach and provides additional guidance for the council. Campaign Finance. The eighth edition adds campaign finance disclosure and limitation provisions. xi Progress and Continuity The continuity of the model -building process is well illustrated by Luther H. Gulick (then chairman of the Advisory Committee on the Revision of the Model City Charter and subsequently chairman of the Institute of Public Administration), in the statement which introduced the 1964 edition: The American people have worked long and hard to achieve good city government. When the first edition of this Model City Charter was presented by the National Municipal League in 1900, the chairman of the drafting committee observed, "It has been confidently claimed by many that the most conspicuous failure of democracy... is demonstrated by the American city...." No one could make that statement today because it is no longer true. We now have many conspicuously successful local governments.... [A] new or modernized city charter ... not only presents a concise and workable legal framework for the government but also sets before citizens a clear picture of their own responsibilities and powers and before the officials and employees a statement of their duties and mutual interrelations. Thus the adoption of a good city charter is both an affirmation by the citizens that they mean to have good government and is the legal framework within which such government can be won and the more easily maintained. The objective of the Model City Charter is to present in the form of a legal document a general plan of municipal government which is (a) democratic -- that is to say responsive to the electorate and the community -- and at the same time (b) capable of doing the work of the city effectively and translating the voters' intentions into efficient administrative action as promptly and economically as possible. Accordingly, the Model embodies the provisions and tested legal language, which in theory and practice have helped to realize this double objective -- democracy and effective management. And, following the precedent established by the founding fathers when they wrote the Constitution of the United States, it does this with the fewest possible words.... This charter is based on the principles of the council-manager plan because the National Municipal League has found during many years of experience that this arrangement of powers, responsibilities and duties best fits the good government needs of the American city.... There are cities, especially in the largest population class, where the strong mayor plan is preferred. Provisions of this Model are appropriate for such a charter, or may be readily adapted.... The machinery of government, designed by constitutions and charters, is not an end in itself. It is rather an agreed -upon framework through which [citizens] work xii together to govern and to service themselves. The importance of the machinery is that these institutions when properly designed facilitate self-government and encourage effective management.... Participation by citizens will take many forms -- as voters, as members of local political or civic organizations, as elected officials, as appointed officials and employees, and as members of official and unofficial advisory bodies. The Model endeavors to present a fabric within which each type of participation and leadership can have its appropriate place. As [the Model] is used to aid charter drafting, each city should think in terms of how its particular resources of participating civic manpower will operate to make a new charter a vital going enterprise. There will be wide variation from city to city. Leadership. Those engaged in charter preparation will be particularly concerned with a search for leadership to achieve municipal progress. Local government problems today more than ever challenge imagination and courage. The task is more than one simply of reflecting popular sentiment and administering the resulting programs. Increasingly, the task must begin with an aggressive campaign to inform and educate the electorate on new programs. The Model presents no absolute prescription for the organization conducive to the development of necessary leadership. Nor can this be done from afar by anyone for a specific community. Another problem of overriding importance is how the city fits into the general framework of government. Few if any functions of government today are the absolute preserve of a city. Aspects of virtually all functions are distributed among all levels of government and frequently among several local units. The Model recognizes this fact of urban life. Again, it offers no formula, but suggests that charter commissions must look beyond the legal and geographical jurisdiction of the municipality. The effectiveness of local political leadership may well be judged ultimately by its capacity to mesh municipal programs with those of other jurisdictions. Responsibility. Finally, this Model ... asserts that the ultimate responsibility for all basic policy decisions should be assigned to a single responsible legislative body, the city council. It also insists that within the executive structure all officials be appointed by and under the direction of the chief executive ... It endorses the use of advisory bodies, with no operating powers but with significant duties, which can utilize the talents of citizens to assess the implications of future programs. This ... edition endeavors to refine and update the conception of municipal government and its component parts presented in earlier editions. It reaffirms the position that a municipality should have discretion to design the form and structure of its own local government directly or through a "home rule" charter. It sounds a warning, however, and emphasizes that home rule today does not mean isolation from neighboring local governments. The goal of efficient, economic and progressive municipal government is meaningful only when viewed as part of the local, state and federal partnership. Terrell Blodgett William N. Cassella, Jr. Terrell Blodgett is the former Mike Hogg Professor of Urban Management, Lyndon B. Johnson School of Public Affairs, University of Texas, Austin. He was chairman of the Model City Charter Revision Committee that developed the seventh edition and was the former chairman of the National Civic League. William N. Cassella, Jr., was coordinator for the Model City Charter Revision Committee that developed the seventh edition,,and he is the retired executive director of the National Civic League. Blodgett and Cassella were senior advisors to the committee that developed the eighth edition of the Model City Charter. xw PREAMBLE TO THE CHARTER Introduction. A preamble typically consists of three elements: an identification of the source of authority for the charter, a statement of the action that is to be taken, and a declaration of the intent of the charter. The source of authority for a city charter is the state constitution or statutory law. The action that is to be taken is the adoption of the charter. The declaration of the intent of the charter comprises subjective statements (not enforceable by law) that underscore or illuminate the characteristics of a municipality, such as the values of the city, lofty goals, or even the "personality" of the drafting commission. Charters within the same state often use the same language in their preambles; the type of language used and the manner in which issues are addressed often provide a glimpse of regional characteristics. PREAMBLE We the people of the [city/town] of , under the constitution and laws of the state of , in order to secure the benefits of local self-government and to provide for an honest and accountable council-manager government do hereby adopt this charter and confer upon the city the following powers, subject to the following restrictions, and prescribed by the following procedures and governmental structure. By this action, we secure the benefits of home rule and affirm the values of representative democracy, professional management, strong political leadership, citizen participation, and regional cooperation. Commentary. Source of Authority Identification of the source of authority tends to be standard: "We the people of Your City, under the constitution and laws of the state...." Occasionally, however, the source of authority is embellished with descriptive elements that reflect valued characteristics of the community. Two examples follow. "We the people of Your City, with our geographical and cultural diversity...." "Treasuring the many wonders of our unique environment and realizing that the power and duty to govern and protect this region is inherent in its people, we the citizens of Your City...." Action Taken The standard phrasing for the action statement is "do hereby adopt" or some variation. Following are two examples of action taken by the source of authority. ... do hereby adopt this charter." ... do hereby adopt this home rule charter." Intent This can be the most creative section of the preamble (and of the charter itself). The standard beginning of the intent section is: "By this action, we ..." An expression of objectives, goals, purposes, and/or values typically follows. The intent section can contain merely a reference to home rule or self-determination, or it can contain a combination of purposes, goals, values, and even civic aspirations. Preambles typically reflect values such as self' -determination, justice, equality, efficiency, responsiveness, citizen participation, and environmental stewardship. Three examples follow. "By this action, we: provide for local government responsive to the will and values of the people and to the continuing needs of the surrounding communities...." secure the benefits of home rule, increase citizen participation, improve efficiency, and provide for a responsible and cooperative government...." establish a government which advances justice, inspires confidence, and fosters responsibility...." Preambles should contain all three elements. The intent section at the least should contain a reference to home rule or self-determination (very few do) and could suggest elements of contemporary -governing values such as regional cooperation, economic vitality, diversity, comprehensive representation, strong community leadership, and citizen participation. Article I POWERS OF THE CITY Introduction. A charter should begin by defining the scope of the city's powers. It should address the context in which such powers operate, including the effect of state law and the desirability of cooperation with other localities. Section 1.01. Powers of the City. The city shall have all powers possible for a city to have under the constitution and laws of this state as fully and completely as though they were specifically enumerated in this charter. Commentary. The city should lay claim to all powers it may legally exercise under the state's constitution and laws. Nevertheless, some cities, particularly smaller ones, may not wish to exercise all available powers. Cities may restrict their own power: (1) by specific provisions in the appropriate parts of the 2 charter; (2) by ordinance, since the section does not require that all the powers claimed be exercised; or (3) by inaction---i.e., failure to exercise powers. The powers of the city may also be limited by state or federal court decisions. This section insures that the city claims the entirety of the grant of authority available to it from the state. Through this means, the charter is restricted from embracing less in its terms than the constitutional home rule grant allows or from containing an inadvertent omission or ambiguity that could open the door to restrictive judicial interpretation. This is the most that the charter can do as the extent of the powers available to the city will depend on the state's constitution and statutes and judicial decisions. The general powers provision of a charter must be tailored to the law of each state. The courts of some states do not give effect to a charter statement of powers expressed in general terms. Instead, they require that the charter enumerate all of the powers claimed. The words "as fully and completely as though they were specifically enumerated in this charter," at the end of § 1.01, cannot be used in a charter in a state that requires the enumeration of powers. Charter drafters should carefully study their state's law on local government powers before using this Model provision. To reduce the likelihood of restrictive judicial interpretation, a section like § 02 below should accompany this section. Questions of restrictive court interpretation aside, and assuming that a state's law does not require an enumeration, this section may be utilized effectively under any of the existing types of home rule grant, as well as that of the Model State Constitution (6th Edition, 1968) published by the National Municipal League. It may be used regardless of whether the home rule grant appears in a constitution, optional charter law, or other general enabling act. Section 1.02. Construction. The powers of the city under this charter shall be construed liberally in favor of the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power granted in this article. Commentary. A charter should encourage courts to interpret the powers of the city as broadly as possible. Such a provision discourages a restrictive interpretation of the general powers statement in § 1.01. If the charter enumerates powers, this section may prevent courts from interpreting the list of specific powers as evidencing intent to exclude other or broader powers. Section 1.03. Intergovernmental Relations. The city may participate by contract or otherwise with any governmental entity of this state or any other state or states or the United States in the performance of any activity which one or more of such entities has the authority to undertake. Commentary. This section empowers the city to participate in intergovernmental relationships —to receive assistance from the federal, state, and other local governments, to be represented in regional agencies established under federal or state law or intergovernmental agreements, and to perform jointly with any other governmental jurisdiction any function which any of the participating jurisdictions may perform alone. The nature of intergovernmental relations is rapidly changing. Most cities are an integral part of a region. In that regard, engaging in cooperative intergovernmental relations is fundamental to the effective functioning of a city and the region of which it is a part. Although the purpose of engaging in intergovernmental relations is primarily to further the ends of the city, the health of the region should also be of concern to the city. Superior state statutes (such as a general powers provision), which cannot be altered by a charter provision, may govern an intergovernmental relations provision. States may enact these on an ad hoc basis, each dealing with a particular project, program, or regional or metropolitan agency. With intergovernmental agreements becoming more common, states may have general intergovernmental authorizing statutes or constitutional provisions. For example, New Hampshire state law provides: N.H.R.S. Title 3, Chapter 53-A:1 Agreements between government units Purpose. — It is the purpose of this chapter to permit municipalities and counties to make the most efficient use of their powers by enabling them to cooperate with other municipalities and counties on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population, and other factors influencing the needs and development of local communities. If states have neither specific nor general authorization, charter drafters should look for court opinions on intergovernmental agreements in the state. Courts may provide guidance on the extent of a city's power to cooperate with other governments in the absence of enabling state legislation. Specific legislation on intergovernmental agreements often involves political questions and considerations of state constitutional and statutory limitations on cities' financial and borrowing powers. In joint federal -municipal projects involving substantial sums, state legislative control over municipal powers, coupled with restrictive judicial doctrines, may require specific state legislative approval. 11 Article II CITY COUNCIL Introduction. The city council, elected by, representative of, and responsible to the citizens of the city is the fundamental democratic element of the council-manager plan. Section 2.01. General Powers and Duties. All powers of the city shall be vested in the city council, except as otherwise provided by law or this charter, and the council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. Commentary. This section does not specifically enumerate the powers of the council. An enumeration of specific powers in this article will not enlarge the powers of the council and may operate to diminish them if utilized by the courts to support restrictive interpretations (see commentary to § 1.02). In his commentary on the first Model City Charter endorsing the council-manager plan ("The City Council" in The New Munici-oal Prop -ram, 1919), William Bennet Munro noted that So far as the composition and powers of the city council are concerned the plan set forth in the Model City Charter rests upon the conviction that there should be a place in the municipal framework for a body which will be avowedly deliberative, supervisory, and policy -determining, which will be wieldy enough to perform these functions properly and yet large enough to be truly representative of the community's options.... The Model City Charter accordingly provides for a council with a membership which can be enlarged or contracted according to the varying size and needs of different cities. This council is to be the pivot of the municipal system. It is to be the final source of local authority, not sharing its powers but delegating some of them. That is to say, to a city manager chosen by the council and holding office during the council's pleasure, it assigns the entire charge of administrative affairs ... As for the powers of the city council ... It is designed to embody, as it were, the sovereignty of the community. It is the legislative organ of the city exercising all the authority which the municipal corporation possesses —with one important exception only. This restriction is that the city council, once it selects a city manager, devolves all direct administrative authority upon him. Recognizing that all of the powers that can be exercised by the city rest in the popularly elected city council, the charter must provide for a council, which is truly representative of the community. Therefore, the Model presents several alternatives without expressing an absolute preference for any one, which was done in earlier editions. Each city's population pattern —economic level, racial, geographical, etc. —has implication for the method of electing the council to assure equitable representation. While the Voting Rights Act governs all jurisdictions, in some cities the problem of compliance with its provisions and avoidance of court challenges is a matter of particular concern. Just as there is no absolute model for providing competent and effective legislators, there is no absolute pattern which will assure equitable representation. As the body charged with making municipal policy, the council can create permanent or ad hoc mechanisms to assist in that process. For example, it can create planning and recreation boards or study committees. Likewise it can create agencies with quasi -legislative or quasi-judicial status, such as a human rights commission or a zoning appeals board. The Model makes no provision for specific instrumentalities designed to provide input at the neighborhood level for policy -making or service delivery evaluation. Nor does it list as charter agencies any advisory boards and commissions. The council has the power to establish such agencies. The Model provides that the mayor, however elected, shall be the presiding officer and a voting member of the council and shall perform certain specific duties which will enhance the mayor's role as policy leader. Section 2.02. Eligibility, Terms, and Composition. (a) Eligibility. Only registered voters of the city shall be eligible to hold the office of council member or mayor. Commentary. This section does not include length of residence requirements for city council candidates. In an era of great mobility in which people frequently live in one place and work in another, length of residence requirements lose what little validity they may once have had. A prospective council member need only be a registered voter of the city. (b) Terms. The term of office of elected officials shall be four years elected in accordance with Article VI. Commentary. The Model recommends four-year, staggered terms (§ 6.03). Under this approach, elections of council members take place every two years. In the seventh edition, the Model listed concurrent terms as an alternative. However, a strong majority of cities today-82.6% of cities surveyed according to the 2001 ICMA Form of Government Survey —have chosen staggered terms over concurrent terms to avoid dramatic changes in council composition at each election. The Model does not restrict reelection to subsequent four-year terms. Limiting reelection restricts the citizens' opportunity to keep in office council members of whom they approve. Unlimited terms allow voters to provide a vote of confidence for council members who represent majority sentiment Is W and a vote of opposition for members in the minority. Finally, the city benefits from the institutional memory of reelected council members, (c) Composition. There shall be a city council composed of [ ] members [see alternatives below]. Commentary. The Model does not specify the exact number of council members but recommends that the council be small — ranging from five to nine members. If the mayor were elected by and from the council (§ 2.03(b), Alternative I), there would be an odd number of council members. In the largest cities, a greater number of council members may be necessary to assure equitable representation. However, smaller city councils are more effective instruments for the development of programs and conduct of municipal business than large local legislative bodies. In the United States, it has been an exceptional situation when a large municipal council, broken into many committees handling specific subjects, has been able to discharge its responsibilities promptly and effectively. In large councils, members usually represent relatively small districts with the frequent result that parochialism and "log -rolling" —bargaining for and exchanging votes on a quid pro quo basis — distract attention from the problems of the whole city. In determining the size of the council, charter drafters should consider the diversity of population elements to be represented and the size of the city. Alternative I — Option A — Council Elected At Large; Mayor Elected by the Council The council shall be composed of [odd number] members elected by the voters of the city at large in accordance with provisions of Article VI. The mayor shall be elected as provided in § 2.03(b), Alternative I. Alternative I — Option B — Council Elected At Large; Mayor Elected Separately The council shall be composed of [even number] members elected by the voters of the city at large in accordance with provisions of Article VI. The mayor shall be elected as provided in § 2.03(b), Alternative II. Commentary. The Model continues to stress the value of the at -large principle in designing the composition of a city council, while recognizing the necessity of providing for representation of geographical areas under certain circumstances. In considering the appropriateness of using the at -large system, each city must assess its own situation. The at -large system has generally allowed citizens to choose council members best qualified to represent the interests of the city as a whole, Nevertheless, in larger cities, citizens may feel isolated from and unconnected to their government without some geographical basis of representation. Cities with significant differences in or conflicts 1 1 among ethnic, racial, or economic groups may wish to consider whether one of the alternative systems may achieve more equitable representation of the city's population and avoid legal challenges under the Voting Rights Act without sacrificing council effectiveness. Alternative iI — Option A — Council Elected At Large with District Residency _ Requirement; Mayor Elected by the Council The council shall be composed of [odd number] members elected by the voters of the city at large in accordance with provisions of Article VI. Not more than one council member shall reside in each district. The mayor shall be elected as provided in § 2.03(b), Alternative 1. Alternative II — Option B — Council Elected At Large with District Residency Requirement; Mayor Elected Separately The council shall be composed of [even number] members elected by the voters of the city at large in accordance with provisions of Article Vl. Not more than one council member shall reside in each district. The mayor shall be elected as provided in § 2.03(b), Alternative 11. Commentary. A complaint frequently lodged against the all at -large council system is that a majority of the council may live in the same area of the city. This may give rise to questions concerning the equitable distribution of services with allegations that particular sections receive partial treatment. This objection can be met while still maintaining a council elected at -large by establishing districts of* equal population and requiring that one council member reside in each district. Although this alternative builds geographical representation into an at -large system, depending upon the local situation, it may be subject to the same objections under § 2 and § 5 of the Voting Rights Act as Alternative I. Alternative III — Option A - Mixed At -Large and Single Member District System; Mayor Elected by the Council The council shall be composed of [odd number] of council members elected by the voters of the city at large and one member from each of the even -numbered council districts elected by the voters of those districts, as provided in Article V1. The mayor shall be elected from among the at -large members as provided in § 2.03(b), Alternative I [specifying that the mayor is an at -large member]. 3 Alternative III — Option B — Mixed At -Large and Single Member District System; Mayor Elected Separately The council shall be composed of [even number] members elected by the voters of the city at large and one member from each of the even -numbered council districts elected by the voters of those districts, as provided in Article VI. The mayor shall be elected as provided in § 2.03(b), Alternative ll. Commentary. The mixed system for a council with members elected at large and members elected by and from districts has become increasingly popular since the U. S. Department of Justice approved it as a method of electing the city council that is compliant with the requirements of the Voting Rights Act. This makes the mixed method suitable in places where the at -large system has been challenged but where change to a single -member district system is opposed. The mixed system combines the citywide perspective of the at -large council members with the local concerns and accountability of district council members. It can allow minorities who live in concentrated areas to influence or even determine the outcome of elections in their districts, A problem can arise in mixed systems when at -large council members consider their position to be superior to that of district members and are perceived as rivals to the mayor. To prevent this, at - large and district council members should have equal status with respect to offices, services, and length of terms. Local preference should decide the ratio of at -large to district members. Opinion ranges from favoring a majority being elected at large to a majority being elected by and from districts. However, for jurisdictions concerned about scrutiny by the U. S. Department of Justice or the courts under either § 2 or § 5 of the Voting Rights Act, precedent shows a cleat- preference for the majority of the council to be elected by and from districts. Alternative IV — Single -Member District System The council shall be composed of an even number of members each of whom shall be elected by district by the voters in that district. The mayor shall be elected in accordance with the provisions of § 2.03(b), Alternative II. Commentary. If communities adopt the district system, the mayor should be elected separately by the voters of the city at large and not chosen by and from the council. This provides a necessary at -large element in an otherwise all district system. The growing recognition that membership on councils should represent all racial and ethnic groups more adequately has spurred increased use of the single -member district system. With racial 111 minorities concentrated in particular sections of the city, it is easier to elect minority council members. Also, because district campaigns cost substantially less than citywide campaigns, single - member districts can open the way for greater diversity among candidates. Citizens feel closer to district elected council members, whom they can hold responsible for addressing their community concerns. In cities where courts have found that the at -large method of electing the city council violates the Voting Rights Act, the Justice Department has regularly approved the single -member district system as a replacement. The single -member system has drawbacks. An inherent problem is the danger that district elected members will subordinate citywide concerns to parochial problems. Single -member systems also have potential for the classic problem of "log -rolling" or vote swapping. Whenever districts are used, the drawing of district lines to provide "fair and equal" districts is of utmost importance and may involve litigation. Section 6.03 provides districting procedures and criteria designed to prevent gerrymandering and unequal districts, which are unconstitutional under the one person, one vote doctrine. Section 2.03. Mayor. (a) Powers and Duties. The mayor shall be a voting member of the city council and shall attend and preside at meetings of the council, represent the city in intergovernmental relationships, appoint with the advice and consent of the council the members of citizen advisory boards and commissions, present an annual state of the city message, appoint the members and officers of council committees, assign subject to the consent of council agenda items to committees, and perform other duties specified by the council. The mayor shall be recognized as head of the city government for all ceremonial purposes and by the governor for purposes of military law but shall have no administrative duties. (b) Election - Alternative I — Mayor Elected by the Council. The city council shall elect from among its members officers of the city who shall have the titles of mayor and deputy mayor, each of whom shall serve at the pleasure of the council. The deputy mayor shall act as mayor during the absence or disability of the mayor. Alternative II — Mayor Elected At Large. At each regular election the voters of the city shall elect a mayor at large for a term of [the same term as other council members] years. The council shall elect from among its members a deputy mayor who shall act as mayor during the absence or disability of the mayor and, if a vacancy occurs, shall become mayor for the remainder of the unexpired term. Commentary. (a) The office of mayor in cities having the council-manager form assumes a different character from city to city depending upon local political, economic, and social conditions. This variation has meant that the office is not well understood, and its potential has too often gone unrecognized. 10 While the mayor of a council-manager city is not an executive as in the mayor -council form, he or she is uniquely positioned to be the political and policy leader of the city. As the presiding officer of the council and ceremonial head of the city, the mayor is the most conspicuous official of the city. Freedom from executive responsibilities for the day-to-day municipal operations allows the mayor to focus attention on major policy issues and important facilitative_ activities. The mayor fills three facilitative roles that offer enormous leadership opportunities. First, the mayor may coordinate the activities of other officials by providing liaison between the city manager and the council, fostering a sense of cohesion among council members, and educating the public about the needs and prospects of the city. Second, the mayor may facilitate policy guidance through setting goals for the council and advocating the adoption of policies that address the city's problems. Third, the mayor is an ambassador who promotes the city and represents it in dealing with other governments as well as the public. The specific responsibilities of the mayor listed in the Model enhance the mayor's leadership position. The traditional responsibility of presiding at council meetings allows the mayor to set the tone for city government and help the council make decisions. Designation of the mayor as intergovernmental representative reflects the increased importance of relationships with other local gcvernments as well as with the state and federal governments. Mayoral appointment of boards and commissions with council advice and consent, and of the membership of council committees, creates the opportunity for purposeful balanced representation and can be used to forge coalitions and tap into networks of community activity. Finally, the mayor delivers the state of the city message. When the state of the city message includes the setting out of needs and goals for the city, it should reflect the thinking of the council and information provided by the staff, as well as the mayor's own priorities. In presenting the state of the city message, the mayor acts as spokesperson, educator, team leader, goal setter, and policy advocate. To avoid confusion, the time of delivery of the message should be sufficiently distanced from the presentation of the budget by the manager. (b) As with mayoral responsibilities, the method of election of the mayor has implications for office e Tectiveness. The Model provides two alternative methods for electing the mayor. A community's choice of election method depends on local preference and tradition and to some extent on the method chosen to elect the council (see Article VI). Many communities feel that local policy leadership can best function when a cohesive team of council members chooses its leader as mayor. These cities use Alternative I, election of the mayor by and from the council, and thus avoid the possibility of conflict between the mayor and the council majority. Such an approach may be best suited for cities with at -large council elections. In cities with councils elected from districts, council selection of the mayor presents the mayor with conflicting roles --district and citywide. Cities that provide for council selection of the mayor should avoid two practices which diminish the prospect of effective leadership. First is rotation of the office of mayor among members. This approach may hinder the emergence of a respected leader by preventing any one member from K acquiring experience and increasing competence in the exercise of leadership skills. It can also mean that the true leader of the council is not the mayor, which may create a misperception of inside dealing and secret manipulation. The second practice is to automatically designate as mayor the council member who receives the largest number of votes. This awkward approach prevents the council from choosing its leader and does not give voters full knowledge for which office —council member or mayor —they were casting votes. More than half of the cities operating with the council-manager form use the direct election at -large alternative (Alternative II). Many cities, particularly larger ones, believe that this method increases the potential for mayoral leadership by giving the mayor a citywide popular support base. This is particularly important when all or most o' the council members are elected from districts. A potential disadvantage of this method is that the mayor may have views that diverge widely from those of a majority of the council on some important issues. Whatever the method of election or the strength of the mayors leadership role, the mayor is preeminently a legislator, a member, and leader of the council; the mayor is not an executive. However, the office may require some special staff support. Whatever arrangements are made for support either through the city manager or staff in the mayor's office should be consistent with two Premises. First, the mayor should not encroach on the executive responsibilities of the manager. Second, the mayor and council collectively, as a body, oversee the operations of the city by the manager. Communities should avoid granting special voting status to the mayor (e.g., vote on council only to make or break a tie) Such power will likely impede rather than enhance the mayor's capacity to lead. Similarly, giving the mayor veto power in a council-manager city cannot help but confuse his or her role with that of the executive mayor in a mayor -council city. No structural arrangement for government will insure effective mayoral leadership. The person who occupies the office must understand the nature of the job —its possibilities, interdependencies, and limitations —and have the personal inclmation, energy, and talent to exercise necessary leadership. Without that, no amount of structural support will produce a leader. However, the method of selection and the statement of responsibilities provided in the charter should help insure the selection of a capable person with recognized leadership abilities who will make a significant contribution to the operation of the city. Section 2.04. Compensation; Expenses. The city council may determine tl-.e annual salary of the mayor and council members by ordinance, but no ordinance increasing such salary shall become effective until the date of commencement of the terms of ccuncil members elected at the next regular election. The mayor and council members shall receive their actual and necessary expenses incurred in the performance of their duties of office Commentary Under the Model, council members are par. -time officials and do not direct city departments. Council salary level depends on a variety of factors specific to each community, including the part- time nature of the position and the emphasis on policy -making rather than administration. The city should reimburse council members for expenses incurred in performing their duties, e.g., travel to the state capital to testify on behalf of the city. The Model rejects the setting of the actual amount of compensation in the charter except for the salary of the first council after the charter goes into effect (see § 9.05(f)). The delay in the effective date of any salary increases provides ample protection. The city should provide extra compensation for the mayor because, in addition to regular responsibilities as a council member, the mayor has intergovernmental, ceremonial, and city -related promotional responsibilities. Section 2.05. Prohibitions (a) Holding Other Office. Except where authorized by law, no council member shall hold any other elected public office during the term for which the member was elected to the council. No council member shall hold any other city office or employment during the term for which the member was elected to the council. No former council member shall hold any compensated appointive office or employment with the city until one year after the expiration of the term for which the member was electec to the council, unless granted a waiver by the Board of Ethics. Nothing in this section shall be construed to prohibit the council from selecting any current or former council member to represent the city on the governing board of any regional or other intergovernmental agency. (b) Appointments and Removals. Neither the city council nor any of its members shall in any manner control or demand the appointment or removal of any city administrative officer or employee whom the city manager or any subordinate of the city manager is empowered to appoint, but the council may express its views and fully and freely discuss with the city manager anything pertaining .o appointment and removal of such officers and employees. (c) Interference with Administration. Except for the purpose of inquiries, and investigations under § 2.09, the council or its members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager, and neither the council nor its members shall give orders to any such officer or employee, either publicly or privately. Commentarv. (a) This provision prohibits council members from concurrently holding other elective office, such as state legislator, as occurs in some states. Also prohibited is holding any other city office or employment during one's council term or for or-e year after leaving office. These provisions are designed to avoid conflict of interest situations. The charter is specific, however, that these prohibitions do not restrict any current or former officeholder from service on the boards of regional or other intergovernmental agencies. Soon service is particularly valuable in accomplishing the objectives of intergovernmental cooperation. (b) and (c) The prohibition against interference by council members in the appointment and removal of employees and in the administration of city programs does not include the broad language of earlier editions of the Model because it was considered too rigid and unrealistic. This provision, while expressing the general policy of noninterference, does not exclude communication between council members and the manager on questions of appointment and removal. The manager may seek advice from the council regarding appointments. Council members are strictly prohibited from giving orders to city officers or employees However, the prohibition against interference with administration does not prevent council members from making inquiries of department heads or employees for the purpose of obtaining information needed by them in the discharge of their duties including response to constituent requests. Information provided to one council member should be shared with the entire council as warranted. The council and manager should define the parameters for such requests and establish reasonable boundaries. In some cities, automated information systems make information on aspects of departmental operations readily available to council members on computer terminals. Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies (a) Vacancies. The office of a council member shall become vacant upon the members death, resignation, or removal from office or forfeiture of office in any manner authorized by law. (b) Forfeiture of Office. A council member shall forfeit that office if the council member: (1) Fails to meet the residency requirements, (2) Violates any express prchibition of this charter, (3) Is convicted of a crime involving moral turpitude, or (4) Fails to attend three consecutive regular meetings of the council without being excused by the council. (c) Filling of Vacancies. A vacancy in the city council shall be filled for the remainder of the unexpired term, if any, at the next regu.ar election following not less than sixty days upon the occurrence of the vacancy, but the council by a majority vote of all its remaining members shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term takes office. If the council fails to do so within thirty days following the occurrence of the vacancy, the election authorities shall call a special election to fill the vacancy, to be held not sooner than ninety days and not later than 120 days following the occurrence of the vacancy, and to be otherwise governed by law. Notwithstanding the requirement in § 2.11(c), if at any time the membership of the council is reduced to less than , the remaining members may by majority action appoint additional members to raise the membership to Commentary. The section specifies the events or conditions, which create a vacancy, the grounds for forfeiture of office, and the manner by which the council shall fill vacancies. Subsection (b)(3) requires forfeiture of office for crimes involving "moral turpitude." This is a legal standard that in most jurisdictions means the crime — felony or misdemeanor — violates community standards of morality and involves an element of knowing intent by the perpetrator. Court findings include In re Flannery, 334 Or. 224 (2002) (misrepresenting address in renewing driver license to obtain valid license to rent a car was not a crime involving moral turpitude); Klontz v. Ashcroft, 37 Fed. Appx. 259 (9th Cir. 2002) (petty theft and grand theft are both crimes of moral turpitude); Antorietto v. Regents of the University of California, 2002 WL 1265552 (Cal. App. 4 Dist. June 7, 2002) (misuse of university funds and fraudulent diversion of donor funds intended for the university are crimes that involve moral turpitude). Another approach focuses on felonies, as in Kansas City's charter, which reads: "No member of the council shall, during the term for which he is elected, be found guilty or enter a plea of guilty or nolo contendere to a felony under the laws of the United States or of any state, even if subsequently followed by the suspended imposition of the sentence." The council shall temporarily fill vacancies until the next regular election, when the voters will fill such vacancies for the remainder of the term (unless that election occurs within sixty days of the vacancy, in which case the candidates would have insufficient time to file). The provision calls for a special election if the council fails to fill a vacancy within thirty days. This provision should insure that the council will act, but in the event of a deadlock a special election will resolve the situation. Finally, the section provides for filling vacancies by council action even if the membership falls below the quorum otherwise required for council action by § 2.11(c). Section 2.07. Judge of Qualifications. The city council shall be the judge of the election and qualifications of its members, and of the grounds for forfeiture of their office. In order to exercise these powers, the council shall have power to subpoena witnesses, administer oaths and require the production of evidence. A member charged with conduct constituting grounds for forfeiture of office shall be entitled to a public hearing on demand, and notice of such hearing shall be published in one or more newspapers of general circulation in the city at least one week in advance of the hearing. 15 Commentary. This section makes council the judge of qualifications for office and of grounds for forfeiture. It provides procedural safeguards to protect a member charged with conduct constituting grounds for forfeiture. The provision authorizing the council to set additional standards for the conduct of its members empowers the council to impose on itself the highest possible ethical standards. Section 2.08. City Clerk. The city council or the city manager shall appoint an officer of the city who shall have the title of city clerk. The city clerk shall give notice of council meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned by this charter or by the council or by state law. Commentary. See §§ 2.15 and 2.16 for other duties assigned to the city clerk. In a number of states, certain statutory duties may be assigned to the city clerk, even in cities operating with their own charters. Section 2.09. Investigations. The city council may make investigations into the affairs of the city and the conduct of any city department, office, or agency and for this purpose may subpoena witnesses, administer oaths, take testimony, and require the production of evidence. Failure or refusal to obey a lawful order issued in the exercise of these powers by the council shall be a misdemeanor punishable by a fine of not more than $ , or by imprisonment for not more than or both. Commentary. This section gives the council, but not the manager, the power to make investigations. The manager has the power to appoint, remove, and suspend officers, but it is inappropriate for the manager to have the power to subpoena witnesses and compel production of evidence. Section 2.10. Independent Audit. The city council shall provide for an independent annual audit of all city accounts and may provide for more frequent audits as it deems necessary. Such audits shall be carried out in accordance with § 5.12. Commentary. The necessity for annual independent audits of the city's financial affairs has long been accepted. This section authorizes and charges the council to conduct them. 16 Section 2.11. Procedure. (a) Meetings. The council shall meet regularly at least once in every month at such times and places as the council may prescribe by rule. Special meetings may be held on the call of the mayor or of or more members and, whenever practicable, upon no less than twelve hours' notice to each member. Except as allowed by state law, all meetings shall be public; however, the council may recess for the purpose of discussing in a closed or executive session limited to its own membership any matter which would tend to defame or prejudice the character or reputation of any person, if the general subject matter for consideration is expressed in the motion calling for such session and final action on such motion is not taken by the council until the matter is placed on the agenda. (b) Rules and Journal. The city council shall determine its own rules and order of business and shall provide for keeping a journal of its proceedings. This journal shall be a public record. (c) Voting. Voting, except on procedural motions, shall be by roll call and the ayes and nays shall be recorded in the journal. members of the council shall constitute a quorum, but a smaller number may adjourn from time to time and may compel the attendance of absent members in the manner and subject to the penalties prescribed by the rules of the council. No action of the council, except as otherwise provided in the preceding sentence and in § 2.06(c), shall be valid or binding unless adopted by the affirmative vote of or more members of the council. Commentary. This section sets forth what are, for the most part, standardized and well accepted procedural rules to govern the official action of the council. The frequency of meetings can, of course, be suited to the needs of the particular city. The section contains the important, standard protection that meetings must be public and that a journal of proceedings be kept as a public record. Most states have open meeting laws which specify the circumstances when closed or executive sessions may be held; such meetings are sometimes necessary for effective council functioning. This charter and state law contain ample safeguards to assure open meetings. All council actions require majority vote, except actions to adjourn, to compel attendance of members in the absence of a quorum, and to appoint additional members if the membership falls below a majority of the total authorized membership as provided in § 2.06(c). Section 2.12. Action Requiring an Ordinance. In addition to other acts required by law or by specific provision of this charter to be done by ordinance, those acts of the city council shall be by ordinance which: (1) Adopt or amend an administrative code or establish, alter, or abolish any city department, office, or agency; 17 (2) Provide for a fine or other penalty or establish a rule or regulation for violation of which a fine or other penalty is imposed; (3) Levy taxes; (4) Grant, renew, or extend a franchise; (5) Regulate the rate charged for its services by a public utility; (6) Authorize the borrowing of money; (7) Convey or lease or authorize the conveyance or lease of any lands of the city; (8) Regulate land use and development; (9) Amend or repeal any ordinance previously adopted; or (10) Adopt, with or without amendment, ordinances proposed under the initiative power. Acts other than those referred to in the preceding sentence may be done either by ordinance or by resolution. Commentary. This section assures that the enumerated types of council action be taken only after compliance with all the procedural safeguards required for passage of an ordinance by the succeeding sections. Other subjects requiring an ordinance are not mentioned here because the requirement is specifical- ly stated elsewhere in the charter. These include adoption of codes of technical regulations (§ 2.15), appropriation and revenue ordinances (§ 5.06), supplemental and emergency appropriations and reduction of appropriations (§ 5.07), and creation of a charter commission or proposal of charter amendments (§ 8.01). Council may act via ordinance or resolution on matters other than those enumerated in this section or as required by law or by specific provision in the charter to be by ordinance. This does not pre- clude motions relating to matters of council procedure, which may involve even less formality than resolutions. Section 2.13. Ordinances in General. (a) Form. Every proposed ordinance shall be introduced in writing and in the form required for final adoption. No ordinance shall contain more than one subject, which shall be clear- ly expressed in its title. The enacting clause shall be "The city of hereby ordains ..." Any ordinance which repeals or amends an existing ordinance or part of the city code shall set out in full the ordinance, sections or subsections to be repealed or amended, and shall indicate matters to be omitted by enclosing it in brackets or by strikeout type and shall indicate new matters by underscoring or by italics. (b) Procedure. Any member at any regular or special meeting of the council may intro- duce an ordinance. Upon introduction of any ordinance, the city clerk shall distribute a copy to each council member and to the city manager, shall file a reasonable number of 18 I copies in the office of the city clerk and such other public places as the council may designate, and shall publish the ordinance together with a notice setting out the time and place for a public hearing thereon and for its consideration by the council. The public hearing shall follow the publication by at least seven days, may be held separately or in connection with a regular or special council meeting and may be adjourned from time to time; all persons interested shall have an opportunity to be heard. After the hearing, the council may adopt the ordinance with or without amendment or reject it, but if it is amended as to any matter of substance, the council may not adopt it until the ordinance or its amended sections have been subjected to all the procedures herein before required in the case of a newly introduced ordinance. As soon as practicable after adoption, the clerk shall have the ordinance and a notice of its adoption published and available at a reasonable price. (c) Effective Date. Except as otherwise provided in this charter, every adopted ordinance shall become effective at the expiration of 30 days after adoption or at any later date specified therein. (d) "Publish" Defined. As used in this section, the term "publish" means to print in the contemporary means of information sharing, which includes but is not limited to, one or more newspapers of general circulation in the city, and, if available, in a web site: (1) the ordinance or a brief summary thereof, and (2) the places where copies of it have been filed and the times when they are available for public inspection and purchase at a reasonable price. Commentary. This section dispenses with the unnecessary and cumbersome requirements of a full reading of all ordinances and publication of their full text both before and after adoption. Distribution of a copy to each council member obviates the need for a full reading, Permitting the printing of a brief summary, together with notice of the times and places where copies are available for public inspection, simplifies publication. Further simplification occurs in §§ 2.14 and 2.15, which contain special provisions for expeditious handling of emergency ordinances and for adoption by reference of standard codes of technical regulations. The section retains the basic safeguards of a public hearing following notice by publication, and a second publication with notice of adoption. It does not go so far as charters that dispense with publication or that permit adoption at the same meeting at which a non -emergency ordinance is introduced. It retains protective features deemed necessary for full and careful consideration. Section 2.14 provides sufficient leeway for emergency situations. Section 2.14. Emergency Ordinances. To meet a public emergency affecting life, health, property or the public peace, the city council may adopt one or more emergency ordinances, but such ordinances may not levy taxes, grant, renew or extend a franchise, regulate the rate charged by any public utility for 19 its services or authorize the borrowing of money except as provided in § 5.07(b). An emer- gency ordinance shall be introduced in the form and manner prescribed for ordinances gen- erally, except that it shall be plainly designated as an emergency ordinance and shall con- tain, after the enacting clause, a declaration stating that an emergency exists and describ- ing it in clear and specific terms. An emergency ordinance may be adopted with or without amendment or rejected at the meeting at which it is introduced, but the affirmative vote of at least members shall be required for adoption. After its adoption, the ordinance shall be published and printed as prescribed for other adopted ordinances. It shall become effective upon adoption or at such later time as it may specify. Every emergency ordinance except one made pursuant to § 5.07(b) shall automatically stand repealed as of the sixty- first day following the date on which it was adopted, but this shall not prevent re-enactment of the ordinance in the manner specified in this section if the emergency still exists. An emergency ordinance may also be repealed by adoption of a repealing ordinance in the same manner specified in this section for adoption of emergency ordinances. Commentary. To facilitate timely action, the charter permits an extraordinary majority to introduce and adopt such ordinances at the same meeting. Ordinances passed pursuant to this section may also have an imme- diate effective date. Section 2.15. Codes of Technical Regulations. The city council may adopt any standard code of technical regulations by reference thereto in an adopting ordinance. The procedure and requirements governing such an adopting ordinance shall be as prescribed for ordinances generally except that: (1) The requirements of § 2.13 for distribution and filing of copies of the ordinance shall be construed to include copies of the code of technical regulations as well as of the adopting ordinance, and (2) A copy of each adopted code of technical regulations as well as of the adopt- ing ordinance shall be authenticated and recorded by the city clerk pursuant to § 2.16(a). Copies of any adopted code of technical regulations shall be made available by the city clerk for distribution or for purchase at a reasonable price. Commentary. This provision permits adoption of standard and often lengthy, detailed, and technical regulations, such as building and sanitary codes, by an ordinance which simply incorporates and adopts the code by reference. Publication of the adopting ordinance satisfies publication requirements. The adopt- ing ordinance should indicate the nature of the code. The council is not required to include all such technical codes in the general city code pursuant to § 2.15. This approach minimizes burden and 20 expense while at the same time preserving the essential safeguards of the general ordinance procedure of § 2.12. Section 2.16. Authentication and Recording; Codification; Printing of Ordinances and Resolutions. (a) Authentication and Recording. The city clerk shall authenticate by signing and shall record in full in a properly indexed book kept for the purpose all ordinances and resolutions adopted by the city council. (b) Codification. Within three years after adoption of this charter and at least every ten years thereafter, the city council shall provide for the preparation of a general codification of all city ordinances and resolutions having the force and effect of law. The general codification shall be adopted by the council by ordinance and shall be published, together with this charter and any amendments thereto, pertinent provisions of the constitution and other laws of the state of , and such codes of technical regulations and other rules and regulations as the council may specify. This compilation shall be known and cited officially as the city code. Copies of the code shall be furnished to city officers, placed in libraries, public offices, and, if available, in a web site for free public reference and made available for purchase by the public at a reasonable price fixed by the council. (c) Printing of Ordinances and Resolutions. The city council shall cause each ordinance and resolution having the force and effect of law and each amendment to this charter to be printed promptly following its adoption, and the printed ordinances, resolutions and charter amendments shall be distributed or sold to the public at reasonable prices as fixed by the council. Following publication of the first city code and at all times thereafter, the ordinances, resolutions and charter amendments shall be printed in substantially the same style as the code currently in effect and shall be suitable in form for integration therein. The council shall make such further arrangements as it deems desirable with respect to reproduction and distribution of any current changes in or additions to the provisions of the constitution and other laws of the state of , or the codes of technical regulations and other rules and regulations included in the code. Commentary. Subsections (a) and (c) of this section state essential procedures for maintaining legally authenticated records of all ordinances and resolutions and for making them available to the public. The merits of the general codification provided for in subsection (b) speak for themselves. The Model provides for inclusion of pertinent parts of the constitution and state statutes, thus envisioning a city code to which people may turn for all state and local legislation governing the city. This contrasts to the situation still existing in many cities where much of this legislation, particularly state laws of limited application, are nowhere collected and are often out of print, unavailable, or difficult to find. 21 Article III CITY MANAGER Introduction. In the council-manager plan, the city manager is contimanusly responsible to the city council, the elected representatives of the people. Section 3.01. Appointment; Qualifications; Compensation. The city council by a majority vote of its total membership shall appoint a city manager for an indefinite term and fix the manager's compensation. The city manager shall be appointed solely on the basis of education and experience in the accepted competencies _ and practices of local government management. The manager need not be a resident of the city or state at the time of appointment, but may reside outside the city while in office only with the approval of the council. Commentary. Six of the twelve items in the Code of Ethics established by the International City/County Management Association (ICMA) for members of the city management profession refer to the manager's relationships to the popularly elected officials: Be dedicated to the concepts of effective and democratic local government by responsible elected officials and believe that professional general management is essential to the achievement of this objective. Be dedicated to the highest ideals of honor and integrity in all public and personal relationships in order that the member may merit the respect and confidence of the elected officials, of other officials and employees, and of the public. Submit policy proposals to elected officials; provide them with facts and advice on matters of policy as a basis for making decisions and setting community goals; and uphold and implement municipal policies adopted by elected officials. Recognize that elected representatives of the people are entitled to the credit for the establishment of local government policies; responsibility for policy execution rests with members [of ICMA, i.e., city managers]. Refrain from all political activities, which underniine public confidence in professional administrators. Refrain from participation in the election of the members of the employing legislative body [including the mayor]. Keep the community informed on local government affairs; encourage communication between citizens and all local government officers; emphasize 22 friendly and courteous service to the public; and seek to improve the quality and image of public service. (The ICMA Code of Ethics can be found online at www.icma.ort;. The other items in the code refer to the manager's personal and professional beliefs and conduct.) As a professional administrator, the manager must be trained and experienced in the effective management of public service delivery. The manager must use this expertise to efficiently and effectively execute the policies adopted by the elected city council. Furthermore, the manager's breadth of knowledge and experience in the increasingly complex areas of local government operations obligates him or her to assist the elected council in the policy -making process. The policy role of managers has been central to the definition of the manager's position from the beginning and continues to be readily acknowledged. Appointment of the manager by majority vote of the entire membership of the council, not simply a majority of a quorum, assures undisputed support for the appointee. Appointment "for an indefinite term" discourages contracting for a specified term or an arrangement that reduces the discretion of the council to remove a manager. The requirement that the manager be "appointed solely on the basis of education and experience in the accepted competencies and practices of local public management" was added to the eighth edition to stress the basic principle of the council-manager form that the manager is a qualified professional executive. The precise level of education and experience required for the manager will vary from one municipality to the other depending on such factors as size of population and finances. A useful guideline for the minimum qualifications for a city manager would be: A master's degree with a concentration in public administration, public affairs or public policy and two years' experience in an appointed managerial or administrative position in a local government or a bachelor's degree and 5 years of such experience (for more information see ICMA's voluntary credentialing program at www. i cma. org). While it is preferable for a manager to live in the community during employment, the Model does not require it. This flexible approach allows communities to attract and retain the most qualified individuals and accommodates the problem of housing availability and cost. It also enables two or more communities to employ a single manager. Increasingly, appointment of the manager involves an employment agreement between the municipality and the manager. These agreements can cover all aspects of the manager's job, including salary, other forms of compensation, duties, performance standards, evaluation, and severance procedures. Employment agreements provide mutual protection for the manager and the local government. However, they are not tenure agreements and do not impede the council's power 23 _ 'Ir;;, .ill t., ; I,fi:li .:i19:. �;'a�.:1'1;,=:.�''•:'}' d. .. _ I to iumove the manager. A model employment agrc'r_•tnriil c:a.n he found at htto://icma,orR/documents/icitia model emolovec aereement.doe. Section 3.02. Removal. If the city manager declines to resign at the request of the city council, the city council may suspend the manager by a resolution approved by the majority of the total membership of the city council. Such resolution shall set forth the reasons for suspension and proposed removal. A copy of such resolution shall be served immediately upon the city manager. The city manager shall have fifteen days in which to reply thereto in writing, and upon request, shall be afforded a public hearing, which shall occur not earlier than ten days nor later than fifteen days after such hearing is requested. After the public hearing, if one is requested, and after full consideration, the city council by a majority vote of its total membership may adopt a final resolution of removal. The city manager shall continue to _ receive full salary until the effective date of a final resolution of removal. Commentary. This section provides an orderly removal procedure when a manager declines to resign at the request of the council. This section does not protect the city manager's tenure. However, it assures that any unjust charges will come to light and be answered, by providing for presentation to the manager of a statement of reasons for removal in the preliminary resolution and the opportunity for the manager to be heard if he or she so requests. As an additional protection, this section requires a vote of a majority of all the members to pass a removal resolution, thereby preventing a minority from acting as the majority in a quorum. The council may delay the effective date of the final removal resolution in order to provide for termination pay. When an employment agreement exists between the city and the city manager, termination pay should be covered in that agreement. Section 3.03. Acting City Manager. By letter filed with the city clerk, the city manager shall designate a city officer or employee to exercise the powers and perform the duties of city manager during the manager's temporary absence or disability; the city council may revoke such designation at any time and appoint another officer of the city to serve until the city manager returns. Commentary. To remove doubt as to the identity of the acting city manager, the manager must designate a city officer or employee to serve as acting city manager during the temporary absence or disability of the manager. The council is free, of course, to replace the acting city manager if it is dissatisfied with performance. The acting city manager is not entitled to the protection of the removal procedure afforded the manager by § 3.02. Section 3.04. Powers and Duties of the City Manager. The city manager shall be the chief executive officer of the city, responsible to the council for the management of all city affairs placed in the manager's charge by or under this charter. The city manager shall: (1) Appoint and suspend or remove all city employees and appointive administrative officers provided for by or under this charter, except as otherwise provided by law, this charter or personnel rules adopted pursuant to this charter. The city manager may authorize any administrative officer subject to the manager's direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency; (2) Direct and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by this charter or by law; (3) Attend all city council meetings. The city manager shall have the right to take part in discussion but shall not vote; (4) See that all laws, provisions of this charter and acts of the city council, subject to enforcement by the city manager or by officers subject to the manager's direction and supervision, are faithfully executed; (5) Prepare and submit the annual budget and capital program to the city council, and implement the final budget approved by council to achieve the goals of the city; (6) Submit to the city council and make available to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year; (7) Make such other reports as the city council may require concerning operations; (8) Keep the city council fully advised as to the financial condition and future needs of the city; (9) Make recommendations to the city council concerning the affairs of the city and facilitate the work of the city council in developing policy; (10) Provide staff support services for the mayor and council members; (11) Assist the council to develop long term goals for the city and strategies to implement these goals; (12) Encourage and provide staff support for regional and intergovernmental cooperation; (13) Promote partnerships among council, staff, and citizens in developing public policy and building a sense of community; and (14) Perform such other duties as are specified in this charter or may be required by the city council. Commentary. Although this section equips the manager with the necessary legal authority to discharge administrative responsibilities, the manager's authority may be limited in some states by provisions 25 of state constitutions or laws. The listing of the manager's powers and duties assumes that the manager will not only perform managerial duties in the city's operations but will also have a significant role in the development of policy. There are important policy implications in the manager's duties to prepare and submit the budget; to report on the city's finances, administrative activities, departmental operations and future needs; and to make recommendations on city affairs. The duty to provide staff support for the mayor and council members includes providing information on policy issues before the council. The expanded duties listed in items 9, 11, and 13 of the eighth edition reflect the complex responsibilities assigned to managers to make the processes of governance work in the community. Constructive interactions among the local government, businesses, non -profits, faith -based and special interest organizations and neighborhood groups define a successful community. In a similar manner, the responsibilities anticipated in item 12 charge the manager with placing each community in the context of its region and promoting both community and regional interests. Article IV DEPARTMENTS, OFFICES, AND AGENCIES Introduction. This Article provides for the creation of the departments, offices, and agencies which perform the day-to-day operations of the city. It provides that the city manager appoint and supervise department heads. It makes exceptions in the case of the city attorney, acknowledging the close relationship of the department of law and the city council in some cities. Finally, the Article addresses planning, focusing on environmentally sensitive planning that takes the needs of the surrounding region into account. Section 4.01. General Provisions. (a) Creation of Departments. The city council may establish city departments, offices, or agencies in addition to those created by this charter and may prescribe the functions of all departments, offices, and agencies. No function assigned by this charter to a particular department, office, or agency may be discontinued or, unless this charter specifically so provides, assigned to any other. (b) Direction by City Manager. All departments, offices, and agencies under the direction and supervision of the city manager shall be administered by an officer appointed by and subject to the direction and supervision of the manager. With the consent of council, the city manager may serve as the head of one or more such departments, offices, or agencies or may appoint one person as the head of two or more of them. Commentary. This section authorizes the city council to establish city departments, offices, and agencies. It neither enumerates the operating departments nor details their internal organization. It provides that ►.. the manager appoint, direct, and supervise the officer who administers city departments, thus precluding administration by a board or commission. The number of departments will vary in accordance with Iocal needs as well as the distribution of functions among units of local government; for example, in some cases, cities or special districts will be responsible for services elsewhere performed by counties. An administrative code adopted by the council is the appropriate place for the details of departmental organization and operating rules and regulations; this allows for change without necessitating a charter amendment. In addition, many aspects of the internal organization of specific departments or divisions should be governed by administrative order rather than by council action. In a full service city, operating departments typically will include public works, parks and recreation, police, fire, health, library, water and other utilities. In large cities, public works may be subdivided into separate departments such as roads and streets, buildings, and sanitation. State law generally will prescribe the organizational arrangement for housing and urban renewal functions. The staff departments —such as finance, personnel, planning and law --likewise should be covered by the administrative code. To varying degrees, their organization may depend upon state law. For example, it may not be possible to provide for an integrated finance department which includes all aspects of finance administration. Instead it may be necessary to provide for a city assessor and tax collector. Section 4.02, Personnel System. (a) Merit Principle. All appointments and promotions of city officers and employees shall be made solely on the basis of merit and fitness demonstrated by a valid and reliable examination or other evidence of competence. (b) Merit System. Consistent with all applicable federal and state laws the city council shall provide by ordinance for the establishment, regulation, and maintenance of a merit system governing personnel policies necessary to effective administration of the employees of the city's departments, offices and agencies, including but not limited to classification and pay plans, examinations, force reduction, removals, working conditions, provisional and exempt appointments, in-service training, grievances and relationships with employee organizations. Commentary. The personnel provisions are designed to provide a flexible system which will encourage the development of competent staff. As personnel systems are increasingly controlled by state law and are subject to federal regulatory authority, the charter should not impose additional constraints and details affecting personnel administration. It should, however, strongly state the commitment to the merit principle. The Model states that commitment and calls on the council to provide, by ordinance, for the organization and procedures of the personnel system. It lists subjects that may be 27 covered by personnel policies. Particularly in smaller jurisdictions, state law may cover some of these adequately, and their inclusion in the local ordinance could be unnecessary. Section 4.03. Legal Officer. (a) Appointment. Alternative I There shall be a legal officer of the city appointed by the city manager as provided in § 4.01(b). Alternative II There shall be a legal officer of the city appointed by the city manager subject to confirmation by the city council. Alternative III There shall be a legal officer of the city appointed by the city council. (b) Role. The legal officer shall serve as chief legal adviser to the council, the manager and all city departments, offices and agencies, shall represent the city in all legal proceedings and shall perform any other duties prescribed by state law, by this charter or by ordinance. Commentary. Every municipality must have either a full-time or part-time legal officer, depending on the size of the city and the volume of legal problems. This officer normally will head the city's law department. Both the title and the precise nature of the legal officer's duties will depend on state law, local practice, and the organization of the court systems. Because of wide variations in local practice and state law, subsection (a) provides three alternatives for who appoints the legal officer. Strong arguments can be made for Alternatives I and II, Proponents of Alternative I point out that the legal officer, as a city department head, should have the same relationship to the manager as other department heads. The manager and the manager's top staff members, including the city attorney, serve as advisors to the council. Alternative II, which requires confirmation by the council, focuses on the special role of the legal officer as the city's attorney who must provide legal advice to the council and represent the council in legal proceedings. This Tneans that the legal officer has a different relationship to the council than other department heads. Alternative III is included as an option, though not a preferred one. Subsection (b) describes the role of the legal officer in advising and representing the city and its offices, departments, and agencies. Some communities allow the legal officer to represent, in 28 addition to the city, individual officers, and agencies in legal proceedings. For example, the charter of the Town of Avon, Connecticut, states: The Town Attorney shall: With approval of the Town Council based on criteria determined by said Town Council appear for and protect the rights of individual officers, members of boards, commissions, committees and agencies in all actions, suits or proceedings brought by or against them. Avon Town Charter, 6.1.1(v)(b). Other situations, such as dealing with labor relations or bond issues, may justify retaining outside counsel rather than adding to the city attorney's responsibilities. Implicit in the council's power to make investigations of the conduct of a city department (§ 2.09) is the power to engage special counsel in the unusual circumstances in which the council requires independent legal assistance, for example, if the city attorney would otherwise have a conflict of interest. Some cities have proposed creating separate positions of city attorney, one for city council, and one for the city manager or mayor. The eighth edition discourages this because of the belief that local government should be unitary. Section 4.04. Land Use, Development, and Environmental Planning. Consistent with all applicable federal and state laws with respect to land use, development, and environmental planning, the city council shall: (1) Designate an agency or agencies to carry out the planning function and such decision -making responsibilities as may be specified by ordinance; (2) Adopt a comprehensive plan and determine to what extent zoning and other land use control ordinances must be consistent with the plan; (3) Determine to what extent the comprehensive plan and zoning and other land use ordinances must be consistent with regional plan(s); and (4) Adopt development regulations, to be specified by ordinance, to implement the plan. The designated agency, the city manager, and the mayor and council shall seek to act in cooperation with other Jurisdictions and organizations in their region to promote integrated approaches to regional issues. Commentary. Regulation of land use and development is a council function and an important aspect of home nile, allowing local governments to manage growth and enhance quality of life in the community. However, federal and state laws on land use, development, and environmental protection impose not only regulation but in some cases specific procedures on local governments. The Model provision provides the needed flexibility for the city to establish workable structures and procedures 29 for exercising the planning function within the context of constraints imposed by higher levels of government. Most cities are integral pans of ;metropolitan and other regions. The planning and development policies of a city have implications beyond its boundaries. The overall health of a metropolitan region is dependent on some integration of local and regional planning. In addition to establishing appropriate processes and relevant agencies, a city should seek consistency with regional plans in its planning endeavors. Article V FINANCIAL MANAGEMENT Introduction. This article provides for the development of a comprehensive financial program, allowing maximum flexibility within the boundaries of sound fiscal practices. The budget and the budget approval process constitute the most visible and important activity undertaken by the government. The annual operating budget and multi -year capital plan are the products of the translation of disparate and often conflicting community goals and objectives into comprehensive financial documents. The financial planning process establishes a set of short- and long-term goals for the community and aids in resolving disagreements that arise in the execution of the operations of the government. The complete financial plan involves two major elements: 1) the current annual budget, and 2) the multi -year capital program which is coordinated with the annual budget. Section 5.01. Fiscal Year. The fiscal year of the city shall begin on the first day of and end on the last day of Commentary. It is strongly recommended that the fiscal year be set so that fiscally sound municipalities will not have to borrow for short terms in anticipation of taxes except in emergency situations. ft is recognized, however, that before changes in the fiscal year can be made consideration must be given to the fiscal patterns of the other taxing jurisdictions affecting the city. The dates when the state usually pays significant amounts of grants in aid to the municipality should also be considered in developing an advantageous fiscal calendar. Section 5.02. Submission of Budget and Budget Message. On or before the day of of each year, the city manager shall submit to the city council a budget for the ensuing fiscal year and an accompanying message. 30 Commentary. The specific submission date will depend upon the fiscal year but in any case it is suggested that it be at least 45 days prior to the beginning of the fiscal year to allow time for public input and council deliberation. Section 5.03. Budget Message. The city manager's message shall explain the budget both in fiscal terms and in terms of the work programs, linking those programs to organizational goals and community priorities. it shall outline the proposed financial policies of the city for the ensuing fiscal year and the impact of those policies on future years. It shall describe the important features of the budget, indicate any major changes from the current year in financial policies, expenditures, and revenues together with the reasons for such changes, summarize the city's debt position, including factors affecting the ability to raise resources through debt issues, and include such other material as the city manager deems desirable. Commentary. The budget message should clearly present the manager's program for accomplishing the council's goals and priorities for the community for the coming year as translated into financial terms. Programs of the various city departments should be explained and the city's debt position summarized. From a careful reading of the budget message, members of the council and citizens should be able to obtain a clear and concise picture of what the manager expects to accomplish in the coming year, the estimated cost, sources of revenue and changes in the city debt. Section 5.04. Budget. The budget shall provide a complete financial plan of all city funds and activities for the ensuing fiscal year and, except as required by law or this charter, shall be in such form as the city manager deems desirable or the city council may require for effective management and an understanding of the relationship between the budget and the city's strategic goals. The budget shall begin with a clear general summary of its contents; shall show in detail all estimated income, indicating the proposed property tax levy, and all proposed expenditures, including debt service, for the ensuing fiscal year; and shall be so arranged as to show comparative figures for actual and estimated income and expenditures of the current fiscal year and actual income and expenditures of the preceding fiscal year. It shall indicate in separate sections: (1) The proposed goals and expenditures for current operations during the ensuing fiscal year, detailed for each fund by department or by other organization unit, and program, purpose or activity, method of financing such expenditures, and methods to measure outcomes and performance related to the goals; (2) Proposed longer -term goals and capital expenditures during the ensuing fiscal year, detailed for each fund by department or by other organization unit when 31 practicable, the proposed method of financing each such capital expenditure, and methods to measure outcomes and performance related to the goals; and (3) The proposed goals, anticipated income and expense, profit and loss for the ensuing year for each utility or other enterprise fund or internal service fund operated by the city, and methods to measure outcomes and performance related to the goals. For any fund, the total of proposed expenditures shall not exceed the total of estimated income plus carried forward fund balance exclusive of reserves. Commentary. The budget is the translation of disparate and often conflicting community aspirations into a comprehensive financial document that reflects the governing body's goals. It is a complete financial plan for all funds and activities that includes both revenues and expenditures. Expenditures for current operations and capital outlays should be shown separately with the source of financing indicated. The Model does not provide a detailed classification of revenues, expenditures, and specific funds because classifications will be developed by ordinance or administrative order, if they are not established by state agencies concerned with local finance as part of a uniform accounting system. Proposed current expenditures are to be presented in terms of the work programs of the respective offices, departments and agencies; this approach is the fundamental feature of program or performance budgeting. Performance measures used in the budget may include input, output, efficiency, and outcome measures with comparisons over time so as to encourage the government to benchmark its performance for continuous improvement. A city should strive toward development of outcome measures which reflect actual impact of a program, service, or project on its citizens. Citizens, council, and city staff should work together to undertake performance measurement subject to the year-to-year needs and demands of the community. Section 5.05. City Council Action on Budget. (a) Notice and Hearing. The city council shall publish the general summary of the budget and a notice stating: (1) The times and places where copies of the message and budget are available for inspection by the public, and (2) The time and place, not less than two weeks after such publication, for a public hearing(s) on the budget. (b) Amendment Before Adoption. After the public hearing, the city council may adopt the budget -with or without amendment. In amending the budget, it may add or increase programs or amounts and may delete or decrease any programs or amounts, except 32 expenditures required by law or for debt service or for an estimated cash deficit, provided that no amendment to the budget shall increase the authorized expenditures to an amount greater than total estimated income. (c) Adoption. The city council shall adopt the budget on or before the day of the month of the fiscal year currently ending. If it fails to adopt the budget by this date, the budget proposed by the city manager shall go into effect. (d) "Publish" defined. As used in this article, the term "publish" means to print in the contemporary means of infnrmation sharing, which includes but is not limited to, one or more newspapers of general circulation in the city, and, if available, in a web site. Commentary. The only restrictions placed on the council with respect to action on the budget are those governing the adoption procedure, the requirement that certain mandatory expenditures may not be decreased or deleted, and the requirement that total authorized expenditures may not exceed the total of estimated income. No specific date as the deadline for adoption of the budget has been included. Setting a deadline for adoption does not preclude the earlier completion of action on the budget with ample time for public hearings and council consideration of the budget, if the manager submits it early enough. When amendments are made following public hearing but before adoption that result in significant changes in the budget which the public would not have anticipated, the council should consider holding an additional public hearing to consider the amendments. The Model promotes a favored course of action for dealing with the failure of the council to adopt the budget by the prescribed deadline. It recommends that the budget as submitted by the manager be deemed adopted. Among other possibilities in such a situation are (1) for the amounts appropriated for operations in the current fiscal year to be deemed adopted; (2) for the manager's budget to be deemed adopted but with amendments by the council being permitted during the first month of the new fiscal year; (3) to authorize the council to make temporary appropriations for a period not to exceed one month, during which time it would presumably complete adoption of the budget for the remainder of the fiscal year; and (4) to provide that the budget of the preceding fiscal year should be applicable automatically for the first month of the ensuing year, with the presumption that action will be completed during that time. The city is required to publish and make the budget publicly available. In doing this, as with any publishing, the city should also consider translating the budget into other languages to communicate better with residents if necessary. 33 Section 5.06. Appropriation and Revenue Ordinances. To implement the adopted budget, the city council shall adopt, prior to the beginning of the fiscal year: (a) an appropriation ordinance making appropriations by department, fund, service, strategy or other organizational unit and authorizing an allocation for each program or activity; (b) a tax levy ordinance authorizing the property tax levy or levies and setting the tax rate or rates; and (c) any other ordinances required to authorize new revenues or to amend the rates or other features of existing taxes or other revenue sources. Commentary. The previous edition of the Model in the adoption subsection provided: "Adoption of the budget shall constitute appropriations of amounts specified therein as expenditures from the funds indicated and shall constitute a levy of the property tax therein proposed." It took note that some states required that appropriations and the tax levy be by ordinance. Alternative language to cover that requirement was included. This edition specifically calls for appropriation ordinances and revenue ordinances and that appropriations be by department, fund, service, strategy or major organizational unit within each fund. The appropriations for each department or unit would not be broken down in the same detail as the budget. There would be a property tax levy ordinance and other revenue ordinances authorizing revenues from non -property taxes. Section 5.07. Amendments after Adoption. (a) Supplemental Appropriations. If during or before the fiscal year the city manager certifies that there are available for appropriation revenues in excess of those estimated in the budget, the city council by ordinance may make supplemental appropriations for the year up to the amount of such excess. (b) Emergency Appropriations. To address a public emergency affecting life, health, property or the public peace, the city council may make emergency appropriations. Such appropriations may be made by emergency ordinance in accordance with the provisions of § 2.14. To the extent that there are no available unappropriated revenues or a sufficient fund balance to meet such appropriations, the council may by such emergency ordinance authorize the issuance of emergency notes, which may be renewed from time to time, but the emergency notes and renewals of any fiscal year shall be paid or refinanced as long- term debt not later than the last day of the fiscal year next succeeding that in which the emergency appropriation was made. 34 (c) Reduction of Appropriations. If at any time during the fiscal year it appears probable to the city manager that the revenues or fund balances available will be insufficient to finance the expenditures for which appropriations have been authorized, the manager shall report to the city council without delay, indicating the estimated amount of the deficit, any remedial action taken by the manager and recommendations as to any other steps to be taken. The council shall then take" such further action as it deems necessary to prevent or reduce any deficit and for that purpose it may by ordinance reduce or eliminate one or more appropriations. (d) Transfer of Appropriations. At any time during or before the fiscal year, the city council may by resolution transfer part or all of the unencumbered appropriation balance from one department, fund, service, strategy or organizational unit to the appropriation for other departments or organizational units or a new appropriation. The manager may transfer funds among programs within a department, fund, service, strategy or organizational unit and shall report such transfers to the council in writing in a timely manner. (e) Limitation; Effective Date. No appropriation for debt service may be reduced or transferred, except to the extent that the debt is refinanced and less debt service is required, and no appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer of appropriations authorized by this section may be made effective immediately upon adoption. Commentary. Supplemental appropriations, which can be the bane of any good budget procedure, are restricted to situations in which the manager certifies to council the availability of money in excess of the total revenues estimated in the budget. Another possibility for use of such "windfall" sums is to require their use in the succeeding year's budget as revenue, which would have the effect of reducing the tax levy, Supplemental appropriations may be made only by ordinance and all the provisions regarding publication, notice of hearing, etc., applicable to other ordinances must be followed. Emergency appropriations may be budgeted in accordance with the procedure for emergency ordinances. Provision is made for reduction of appropriations when the manager believes available revenues will not cover appropriations and a deficit is likely. The primary responsibility is clearly the manager's but it is his or her duty to inform the council and then implement any ordinances or resolutions the council may enact. With appropriations being made by departments, finds, services, strategies and major organizational units and not by objects, the manager has the freedom to make transfers from unencumbered balances within departments of units but must notify the council of transfers. When an unencumbered balance exists in one department or unit, all or part of it may be transferred to the appropriation of another department or unit by council resolution. 35 Section 5.08. Administration and Fiduciary Oversight of the Budget. The city council shall provide by ordinance the procedures for administration and fiduciary oversight of the budget. Commentary. The council will by ordinance establish the procedures and controls for implementation of the budget. The council is entrusted with the fiduciary responsibility for the city and as such must provide review and oversight of the budget. The city manager administers the budget and manages the work programs and spending by departments within the policy goals and appropriations set by the council. Proposed work programs and requested allotments should be submitted to the manager by department heads following adoption of the budget. The manager should review the programs and allot portions of the total appropriation based upon the work expected to be performed during a particular period of time, usually three months. As chief administrator, the manager must have the authority to revise the allotments at any time during the year and for any reason. Section 5.09. Capital Program. (a) Submission to City Council. The city manager shall prepare and submit to the city council a multi -year capital program no later than three months before the final date for submission of the budget. (b) Contents. The capital program shall include: (1) A clear general summary of its contents; (2) Identification of the long-term goals of the community; (3) A list of all capital improvements and other capital expenditures which are proposed to be undertaken during the fiscal years next ensuing, with appropriate supporting information as to the necessity for each; (4) Cost estimates and recommended time schedules for each improvement or other capital expenditure; (5) Method of financing upon which each capital expenditure is to be reliant; (6) The estimated annual cost of operating and maintaining the facilities to be constructed or acquired; (7) A commentary on how the plan addresses the sustainability of the community and the region of which it is a part; and (8) Methods to measure outcomes and performance of the capital plan related to the long-term goals of the community. The above shall be revised and extended each year with regard to capital improvements still pending or in process of construction or acquisition. 36 Commentary. The Model's multi -year capital program provisions should compel long-range, goal -oriented, regionally sensitive planning of capital improvements. They should also help develop a meaningful relationship between capital and current operating expenditures. Finally, they should provide adequate time for systematic consideration of capital projects by the council. The Model requires that the manager submit the capital program three months prior to the final date for submission of the budget. This gives the council an opportunity to review the proposed projects and their cost and the methods of finance before the manager submits the annual budget. Actual capital expenditures are carried each year as the capital outlay section of the current budget. These expenditures may be in the form of direct capital outlays from current revenues or debt service payments. A sixth edition innovation continued in the seventh and eighth editions requires that the capital program include estimated operating and maintenance costs of proposed capital facilities. This forces more realistic projections of expenditures, because sometimes the operating cost of a facility will exceed the amortized annual capital charge. It also discourages neglect of maintenance. Section 5.10. City Council Action on Capital Program. (a) Notice and Hearing. The city council shall publish the general summary of the capital program and a notice stating: (1) The times and places where copies of the capital program are available for inspection by the public, and (2) The time and place, not less than two weeks after such publication, for a public hearing(s) on the capital program. (b) Adoption. The city council by resolution shall adopt the capital program with or without amendment after the public hearing and on or before the day of the month of the current fiscal year. Commentary. The capital program's adoption, which must be preceded by required publication, notice and hearing, means a positive commitment by the council to undertake a scheduled multi -year capital improvement program. The methods of financing the improvements will be detailed. Bond issues authorized by either a bond ordinance or by a popular referendum will finance major improvements. Most projects requiring bond issues will extend over a period of more than one year. Other projects, to be financed from current income, also may extend over more than one year and will normally involve construction contracts with adequate safeguards for both parties. Still other capital projects may be completed within a single fiscal period as part of the work program of various city departments. In all cases, actual disbursements for capital items during a single fiscal 37 year, whether in the form of debt service or direct outlays, are carried as the capital outlay section of the budget for that year. The requirement that the capital program each year be submitted well in advance of the budget enables the council to consider the proposed improvements, the methods for financing them, and the recommended priorities in sufficient time to make decisions on capital items which will be subsequently reflected in the budget. The fact that most capital improvement decisions must be made well in advance of actual disbursements means that the bulk of the capital items in a particular budget will be the result of decisions made several year earlier. Changes, often of a relatively minor nature, may be made each year. Because all states regulate borrowing for capital improvements by general legislation, no article on this subject is included. Section 5.11 Independent Audit. The city council shall provide for an independent annual audit of all city accounts and may provide for more frequent audits as it deems necessary. An independent certified public accountant or firm of such accountants shall make such audits. Such audits should be performed in accordance with Generally Accepted Auditing Standards (GAAS) and Generally Accepted Governmental Auditing Standards (GALAS). The Council shall designate no fewer than three of its members to serve as an Audit Committee. This Committee shall: (1) Lead the process of selecting an independent auditor; (2) Direct the work of the independent auditor as to the scope of the annual audit and any matters of concern with respect to internal controls; and (3) Receive the report of the internal auditor and present that report to the council with any recommendations from the Committee. The council shall, using competitive bidding, designate such accountant or firm annually, or for a period not exceeding five years, but the designation for any particular fiscal year shall be made no later than 30 days after the beginning of such fiscal year. The standard for independence is that the auditor must be capable of exercising objective and impartial judgment on all issues encompassed within the audit engagement. No accountant or firm may provide any other services to the city during the time it is retained to provide independent audits to the city. The city council may waive this requirement by a majority vote at a public hearing. If the state makes such an audit, the council may accept it as satisfying the requirements of this section. Commentary. Since the value of independent audits is directly related to the caliber of those who conduct them, it is provided that certified public accountants be retained, except when a state audit is required. M: Selection of a professional accountant or firm does not lend itself to the usual requirement, however, of choosing the "lowest responsible bidder." While the council should not disregard cost, this is a case where the factors of competence, reliability and reputation are more significant. For an audit to be most beneficial, some of it must extend over the entire year, which necessitates designation of the auditor during the first month. If the state conducts periodic audits of the city's finances that meet council -established requirements, the state audit may be an acceptable and money -saving substitute for an audit by a private firm. While the Model emphasizes financial audits, the council also has a responsibility to institute performance and management audits to evaluate the operations of departments, services, and programs, Section 5.12. Public Records. Copies of the budget, capital program, independent audits, and appropriation and revenue ordinances shall be public records. Commentary. In addition to compliance with the formal legal requirement that copies of the budget document and capital program be made available, many cities prepare and widely distribute popular summaries, which provide citizens with essential general information. Article VI ELECTIONS Introduction. Previous editions of the Model contained detailed provisions on the nomination and election process. Since the election laws of each state apply to municipalities whether or not they operate with a local charter, these provisions from earlier editions have been removed. The text on methods of electing council members that appears below has been moved from Article Il in the earlier editions of the Model. Provision for nonpartisan elections and control over the timing of elections are among the few aspects of elections that remain under local discretion. Operating within the limitations imposed by state law, the city may by ordinance adopt regulations deemed desirable. Section 6.01. City Elections. (a) Regular Elections. The regular city election shall be held [at the time established by state law] on the first [day of week], in [fall or spring month of odd- or even- numbered year], and every 2 years thereafter. (b) Registered Voter Defined. All citizens legally registered under the constitution and laws of the state of to vote in the city shall be registered voters of the city within the meaning of this charter. 39 (c) Conduct of Elections. The provisions of the general election laws of the state of shall apply to elections held under this charter. All elections provided for by the charter shall be conducted by the election authorities established by law. Candidates shall run for office without party designation. For the conduct of city elections, for the prevention of fraud in such elections and for the recount of ballots in cases of doubt or fraud, the city council shall adopt ordinances consistent with law and this charter, and the election authorities may adopt further regulations consistent with law and this charter and the ordinances of the council. Such ordinances and regulations pertaining to elections shall be publicized in the manner of city ordinances generally. (d) Proportional Representation. The council may be elected by proportional representation by the method of the single transferable vote. (e) Beginning of term. The terms of council members shall begin the _ day of — after their election. Commentary. (a-c) Although most states regulate local elections entirely or to a very substantial extent by state statutes, a local charter may provide certain variations. For example, home rule charters may provide for nonpartisan local elections as provided in this section. Traditionally, the Model has advocated separating municipal elections from state and national elections to allow a clear focus on local issues. State election laws and city charters frequently schedule municipal elections in the fall of odd -numbered years or in the spring of the year. However, recent evidence suggests that turnout is higher during state and national elections. Some now advocate moving local elections to coincide with state and national elections to increase participation in local races. The Committee that developed this Model recognized the trade-off involved with each choice and decided not to express a preference. If permissible under the state election laws, such timing should be specified in the charter. (d) As in the sixth and seventh editions, the eighth edition includes proportional representation (PR) via the single transferable vote method as an alternative means for electing the council. Until 1964 (when the sixth edition of the Model City Charter was published), the Model recommended the Hare system (also known as preference voting, choice voting, and the single transferable vote system) of PR as the preferred method of electing city councils, It had been used in 22 American cities but by the early 1960s had been discarded in all but Cambridge, Massachusetts, where it is still used to elect the city council and school committee. The Republic of Ireland also uses it to elect members of the House of Parliament. Unquestionably, PR provides the greatest equity in representing all sectors of the community. However, the relative complexity of PR when using antiquated voting procedures and the long and expensive process of counting ballots by hand concerned some voters where it was used and prevented it from becoming a widespread reform measure. There is renewed interest in PR because of its potential to assure representation of minority populations and because technological developments now allow a computerized voting and counting system, thus eliminating the major objection to PR. 40 The single transferable vote method allows voters to rank candidates in a multi -member district by preference. The method depends on creation of a winning threshold —a share of votes that each council member must receive to be elected. Election officials determine the threshold after all votes are counted, using a formula to determine the fewest number of votes that only the winning number of candidates can receive. In Cambridge, for example, officials divide the total number of valid ballots cast by the number of positions to be elected plus one. Under this approach, in an election for nine council seats where voters cast 15,000 valid ballots, the winning threshold is 1,501, or 15,000 divided by ten, plus one. Ten candidates theoretically could receive 1,500 votes, but only nine can obtain 1,501. Once a particular candidate receives the designated threshold of first choices, ballot counters redistribute any surplus votes for that candidate to another candidate based upon the voter's preferential ranking. Cambridge redistributes some ballots at full value, but modern technology now allows a more precise redistribution of the calculated share of every ballot at an equally reduced value. After all surplus votes are redistributed, the weakest candidate is eliminated, and ballots from that candidate are counted for the next choice candidate on those voters' ballots. This process of redistributing votes from winning candidates and weak candidates continues until the necessary number of candidates have reached the threshold, or only nine candidates remain. In Cambridge, this has consistently led to ninety percent of voters helping to elect a candidate, more than sixty-five percent of voters having their first choice candidate win, and more than ninety-five percent of voters seeing one of their top three choices win. The PR alternative assumes that the mayor will be elected by and from the council and thus calls for an odd -number of council members. If PR is used in conjunction with a separately elected mayor who serves on the council, there should be an even number of council members elected by PR. When considering the PR alternative, charter reviewers may also wish to investigate semi - proportional representation systems —the limited vote and cumulative vote —which have been adopted in more than 75 localities since 1985 to settle voting rights cases, including in Peoria (IL), Amarillo (TX), and Chilton County (AL). While more uneven in their results than PR, these systems increase minorities' access to representation and may boost turnout. More information about the mechanics of PR can be obtained from the Center for Voting and Democracy, www.fairvote.orv. Another relatively new voting procedure that incorporates the transferable vote method is the instant runoff. It can be used in single member districts or single office elections, such as the mayor's office. Instant runoff voting eliminates the need for costly runoff elections and the typical drop-off in turnout in runoffs. Voters rank candidates for a single office; if no candidate wins a majority of votes, election officials remove the candidate with the fewest first -place votes and redistribute those votes to other candidates based upon their second -place designations until one candidate achieves a majority. This ensures that a vote cast for a voter's favorite candidate does not potentially contribute to the election of that voter's least favorite candidate. It also means that the victor has a credible claim of majority support without recourse to a runoff. In 2002, San Francisco became the first major U.S. city to adopt instant runoff voting to elect its mayor, board of supervisors, district attorney, city attorney, treasurer, sheriff, assessor -recorder and public defender. The disadvantage is that voters may have difficulty sorting out the candidates in a large field of contenders and cannot rely on the runoff campaign to learn in more detail how the two remaining contenders differ in their characteristics and positions. Section 6.02. Council Districts; Adjustment of Districts (for use with Alternatives II, III and IV of § 6.03). (a) Number of Districts. There shall be city council districts. (b) Districting Commission; Composition; Appointment; Terms; Vacancies; Compensation. (1) There shall be a districting commission consisting of five members. No more than two commission members may belong to the same political party. The city council shall appoint four members. These four members shall, with the affirmative vote of at least three, choose the fifth member who shall be chair- man. (2) No member of the commission shall be employed by the city or hold any other elected or appointed position in the city. (3) The city council shall appoint the commission no later than one year and five months before the first general election of the city council after each federal decennial census. The commissions term shall end upon adoption of a dis- tricting plan, as set forth in § 6.02(c). (4) In the event of a vacancy on the commission by death, resignation or other- wise, the city council shall appoint a new member enrolled in the same politi- cal party from which his or her predecessor was selected to serve the balance of the term remaining. (5) No member of the districting commission shall be removed from office by the city council except for cause and upon notice and hearing. (6) The members of the commission shall serve without compensation except that each member shall be allowed actual and necessary expenses to be audited in the same manner as other city charges. (7) The commission may hire or contract for necessary staff assistance and may require agencies of city government to provide technical assistance. The com- mission shall have a budget as provided by the city council. (c) Powers and Duties of the Commission; Hearings, Submissions and Approval of Plan. (1) Following each decennial census, the commission shall consult the city coun- cil and shall prepare a plan for dividing the city into districts for the election of council members. In preparing the plan, the commission shall be guided by the criteria set forth in § 6.02(d). The report on the plan shall include a map and description of districts recommended. (2) The commission shall hold one or more public hearings not less than one month before it submits the plan to the city council. The commission shall 42 make its plan available to the public for inspection and comment not less than one month before its public hearing. (3) The commission shall submit its plan to the city council not less than one year before the first general election of the city council after each decennial census. (4) The plan shall be deemed adopted by the city council unless disapproved within three weeks by the vote of the majority of all members of the city council. If the city council fails to adopt the plan, it shall return the plan to the commission with its objections and with the objections of individual members of the council. (5) Upon rejection of its plan, the commission shall prepare a revised plan and shall submit such revised plan to the city council no later than nine months before the first general election of the city council after the decennial census. Such revised plan shall be deemed adopted by the city council unless disapproved within two weeks by the vote of two-thirds of all of the members of the city council and unless, by a vote of two-thirds of all of its members, the city council votes to file a petition in the Court, County, for a determination that the plan fails to meet the requirements of this charter. The city council shall file its petition no later than ten days after its disapproval of the plan. Upon a final determination upon appeal, if any, that the plan meets the requirements of this charter, the plan shall be deemed adopted by the city council and the commission shall deliver the plan to the city clerk. The plan delivered to the city clerk shall include a map and description of the districts. (6) If in any year population figures are not available at least one year and five months before the first general election following the decennial census, the city council may, by local law, shorten the time periods provided for districting commission action in paragraphs (2), (3), (4), and (5) of this subsection. (d) Districting Plan; Criteria. In preparation of its plan for dividing the city into districts for the election of council members, the commission shall apply the following criteria which, to the extent practicable, shall be applied and given priority in the order in which they are herein set forth. (1) Districts shall be equal in population except where deviations from equality result from the application of the provisions hereinafter set forth, but no such deviation may exceed five percent of the average population for all city council districts according to the figures available from the most recent census. (2) Districts shall consist of contiguous territory; but land areas separated by waterways shall not be included in the same district unless said waterways are traversed by highway bridges, tunnels or regularly scheduled ferry services both termini of which are within the district, except that, population permitting, islands not connected to the mainland or to other islands by 43 bridge, tunnel or regular ferry services shall be included in the same district as the nearest land area within the city and, where such subdivisions exist, within the same ward or equivalent subdivision as described in paragraph (5) below. (3) In cities whose territory encompasses more than one county or portions of more than one county, the number of districts, which include territory in more than one county, shall be as small as possible. (4) In the establishment of districts within cities whose territory is divided into wards or equivalent subdivisions whose boundaries have remained substantially unaltered for at least fifteen years, the number of such wards or equivalent subdivisions whose territory is divided among more than one district shall be as small as possible. (5) Consistent with the foregoing provisions, the aggregate length of all district boundaries shall be as short as possible. (e) Effect of Enactment. The new city council districts and boundaries as of the date of enactment shall supersede previous council districts and boundaries for all purposes of the next regular city election, including nominations. The new districts and boundaries shall supersede previous districts and boundaries for all other purposes as of the date on which all council members elected at that regular city election take office. Commentary. With three of the five alternatives provided for the election of the city council involving districts, the provision for drawing and redrawing district lines assumes particular importance. The process of drawing districts described in this edition and in the seventh edition differs from that of earlier editions, in response to the Voting Rights Act and related court decisions. Rather than a two-part process with an advisory commission recommending a plan, followed by city council passage of a plan (which might or might not resemble that of the advisory commission), the Model provides for a more direct process — redistricting by an independent commission. The lead time for redistricting should provide sufficient time to resolve some of the increasing number of local government redistricting suits and allow sufficient time to comply with the requirements of § 5 of the Voting Rights Act if applicable. In addition, the Model provides for ordered, specific criteria for redistricting based on population rather than the "qualified voter" standard of the sixth edition. The Model provides for a bipartisan commission. Even cities with nonpartisan elections may have problems with political parties (either local or national) wanting to dominate the process to achieve advantage. To facilitate the commission's ability to work together despite partisan differences, the Model recommends that the four council appointees (and mandates that at least three of the four) agree on the choice of chairman. Once the bipartisan commission submits its plan to the city council, the council can neither approve nor veto the result. This avoids the conflict of interest created when council members consider new districts whose lines may materially affect their political futures. The council may, however, 44 prevent implementation of the plan if it finds the plan in violation of the charter and files with the courts for such a determination. Subsection (d) lists the criteria that the commission must abide by when it draws the new districts. The criteria are designed to preclude gerrymandering that either protects or punishes incumbents or that prevents particular voting groups from gaining power. With the proper ordered criteria, the redistricting process is less open to manipulation. Flagrant gerrymandering will be almost impossible without a clear violation of the mandated criteria. The criteria concerning waterways and islands should be included in charters where appropriate. The exact terminology for election administration subdivisions (e.g., wards or equivalent subdivisions) should be adjusted to conform to state law. Depending on the jurisdiction, wards and districts sometimes have the same meaning and sometimes have different meanings. Some cities prefer that the city council perform redistricting. This may stem from a belief that the redistricting process essentially involves a series of political decisions, and that attempts to separate the process from the politics is futile and foolish. Or, where the city council has historically performed this function without causing unrest, such a preference may derive from the sense that there is no 'need for change. When a city opts for redistricting by the city council, the following provisions should be substituted in § 6.02(b) and (e) and a new § 6.02(d) be added as follows. (b) Council to Redistrict. Following each decennial census, the city council shall, by ordinance, adjust the boundaries of the city council districts using the criteria set forth in § 6.02(e). (c) Procedures. (1) The city council shall hold one or more public hearings prior to bringing any proposed plan to a vote. Proposed plans must be available to the public for inspection and comment not less than one month before the first public hearing on said plan. The plan shall include a map and description of the districts recommended. (2) The city council shall approve a districting plan no later than 10 months (300 days) prior to the first regular city election following the decennial census. (d) Failure to Enact Ordinance. If the city council fails to enact a redistricting plan within the required time, the city attorney shall, the following business day, inform the Court, County, and ask that a special master be appointed to do the redistricting. The special master shall, within sixty days, provide the Court with a plan drawn in accordance with the criteria set forth in § 6.02(e). That plan shall have the force of law unless the court finds it does not comply with said criteria. The court shall cause an approved plan to go into effect no later than 210 days prior to the first regular city election after the decennial census. The city shall be liable for all reasonable costs incurred by the special master in preparing the plan for the court. 961 Subsections 6.03(d) and (e) of the Model should be retained, relettered (e) and (f), respectively, and the words "city council" substituted for "c,nmmission," Subsection 6,03(d) of the substitute language (Failure to Enact Ordinance) gives incentive for the council to complete redistricting on time. Failure to redistrict will not result in another election using the old districts, as earlier editions provided. Even the most divided of city councils would probably prefer to compromise than have a special master redistrict for them —and few would want to explain the additional cost of paying someone else to draw up a plan that probably would not improve upon their own compromise. Section 6.03. Methods of Electing Council Members. The text in this section complements the information on the composition of the council found in Article II, § 2.02(c). _ Alternative I — Option A — Council Elected At Large; Mayor Elected By the Council At the first election under this charter council members shall be elected; the [one-half plus one] candidates receiving the greatest number of votes shall serve for terms of four years, and the [remainder of the council] candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall be elected for four-year terms. Alternative I — Option B — Council Elected At Large; Mayor Elected Separately At the first election under this charter council members shall be elected; the [one-half the number of council members] candidates receiving the greatest number of votes shall serve for terms of four years, and the [one-half the number of council members] candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall be elected for four-year terms. Alternative II — Option A -- Council Elected At Large with District Residency Requirement; Mayor Elected By the Council At the first election under this charter council members shall be elected; the [one-half plus one] candidates receiving the greatest number of votes shall serve for terms of four years, and the [remainder of the council] candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall be elected for four-year terms. 46 Alternative II — Option B — Council Elected At Large with District Residency Requirement; Mayor Elected Separately At the first election under this charter council members shall be elected; the [one-half the number of council members] candidates receiving the greatest number of votes shall serve for terms of four years, and the [one-half the number of council members] candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall serve for terms of four years. Alternative III — Option A — Mixed At -large and Single Member District System; Mayor Elected by the Council At the first election under this charter council members shall be elected; all district candidates and the at -large candidates receiving the greatest number of votes shall serve for terms of four years, and the at -large candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall be elected for four-year terms. Alternative III — Option B — Mixed At -Large and Single Member District System; Mayor Elected Separately At the first election under this charter council members shall be elected; all district candidates and the at -large candidates receiving the greatest number of votes shall serve for terms of four years, and the at -large candidates receiving the next greatest number of votes shall serve for terms of two years. Commencing at the next regular election and at all subsequent elections, all council members shall be elected for four-year terms. Alternative IV — Single -Member District System At the first election under this charter council members shall be elected; council members from odd -numbered districts shall serve for terms of two years, and council members from even -numbered districts shall serve for terms of four years. Commencing at the next regular election and at all subsequent elections, all council members shall serve for terms of four years. Commentary. The single -member district system should be used only where the mayor is elected at large as provided in Alternative II of § 2.03. 47 Section 6.04. Initiative, Citizen Referendum, and Recall. (a) Alternative I — Provisions Provided by State Law. The powers of initiative, citizen referendum, and recall are hereby reserved to the electors of the city. Alternative II - General Authority for Initiative, Citizen Referendum, and Recall. (1) Initiative. The registered voters of the city shall have power to propose ordinances to the council and, if the council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a city election, but such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of city officers or employees. (2) Citizen Referendum. The registered voters of the city shall have power to require reconsideration by the council of any adopted ordinance and, if the council fails to repeal an ordinance so reconsidered, to approve or reject it at a city election, but such power shall not extend to the budget or capital program or any emergency ordinance or ordinance relating to appropriation of money or levy of taxes. (3) Recall. The registered voters of the city shall have power to recall elected officials of the city, but no recall petition shall be filed against any official within six months after the official takes office, nor, in case of a member subjected to a recall election and not removed, until at least six months after the election. (b) Commencement of Proceeding; Petitioners' Committee; Affidavit. Any five registered voters may commence initiative, citizen referendum, or recall proceedings by filing with the city clerk an affidavit stating they will constitute the petitioners' committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed initiative ordinance, citing the ordinance sought to be reconsidered, or stating the name and title of the officer sought to be recalled accompanied by a statement, not to exceed 200 words, of the reasons for the recall. Grounds for recall should relate to and affect the administration of the official's office, and be of a substantial nature directly affecting the rights and interests of the public. Promptly after receipt of a recall petition, the clerk shall serve, personally or by certified mail, a copy of the affidavit on the elected officer sought to be recalled. Within 10 days of service of the affidavit, the elected officer sought to be recalled may file a statement with the city clerk; not to exceed 200 words, in response. Promptly after the affidavit of the petitioners' committee is filed, and the response, if any, of the elected official sought to be recalled is filed, the clerk shall issue the appropriate petition blanks to the petitioners` committee. 4b (c) Petitions. (1) Number of Signatures. Initiative and citizen referendum petitions must be signed by registered voters of the city equal in number to at least [5 to 10] percent of the total number of registered voters to vote at the last regular election. Recall petitions must be signed by registered voters of the city equal in number to at least [10 to 20] percent of the total number of registered voters to vote at the last regular election. (2) Form and Content. All papers of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. Each signature shall be executed in ink or indelible pencil and shall be followed by the address of the person signing. Initiative and citizen referendum petitions shall contain or have attached thereto throughout their circulation the full text of the ordinance proposed or sought to be reconsidered. Recall petitions shall contain the name and title of the official sought to be recalled, the statement of grounds for the recall, and the response of the official sought to be recalled, if any. If no response was filed, the petition shall so state. (3) Affidavit of Circulator. Each paper of a petition shall have attached to it when filed an affidavit executed by the person circulating it stating that he or she personally circulated the paper, the number of signatures thereon, that all the signatures were affixed in his or her presence, that he or she believes them to be the genuine signatures of the persons whose names they purport to be and that each signer had an opportunity before signing to read the full text of the ordinance proposed or sought to be reconsidered. (4) Time for Filing Referendum and Recall Petitions. Referendum petitions must be filed within 30 days after adoption by the council of the ordinance sought to be reconsidered. Recall petitions must be filed within [40 to 160] days of the filing of the petitioners' affidavit initiating the recall procedure. (d) Procedure after Filing. (1) Certificate of Clerk; Amendment. Within twenty days after the petition is filed, the city clerk shall complete a certificate as to its sufficiency, specifying, if it is insufficient, the particulars wherein it is defective and shall promptly send a copy of the certificate to the petitioners' committee by registered mail. A petition certified insufficient for lack of the required number of valid signatures may be amended once if the petitioners' committee files a notice of intention to amend it with the clerk within two days after receiving the copy of his or her certificate and files a supplementary petition upon additional papers within ten days after receiving the copy of such certificate. Such supplementary petition shall comply with the requirements of paragraphs (2) and (3) of § 6.04(c), and within five days after it is filed the clerk shall complete 49 a certificate as to the sufficiency of the petition as amended and promptly send a copy of such certificate to the petitioners' committee by registered mail as in the case of an original petition. If a petition or amended petition is certified suf- ficient, or if a petition or amended petition is certified insufficient and the peti- tioners' committee does not elect to amend or request council review under paragraph (2) of this subsection within the time required, the clerk shall prompt- ly present his or her certificate to the council and the certificate shall then be a final determination as to the sufficiency of the petition. (2) Council Review. If a petition has been certified insufficient and the petition- ers committee does not file notice of intention to amend it or if an amended petition has been certified insufficient, the committee may, within two days after receiving the copy of such certificate, file a request that it be reviewed by the council. The council shall review the certificate at its next meeting following the filing of such request and approve or disapprove it, and the council s determi- nation shall then be a final determination as to the sufficiency of the petition. A council member who is the subject of a recall petition shall not be eligible to act in the determination of sufficiency or insufficiency of the petition. (3) Court Review; New Petition. A final determination as to the sufficiency of a petition shall be subject to court review. A final determination of insufficiency, even if sustained upon court review, shall not prejudice the filing of a new peti- tion for the same purpose. (e) Referendum Petitions; Suspension of Effect of Ordinance. When a referendum peti- tion is filed with the city clerk, the ordinance sought to be reconsidered shall be suspended from taking effect. Such suspension shall terminate when: (i) There is a final determination of insufficiency of the petition, or (ii) The petitioners' committee withdraws the petition, or (iii) The council repeals the ordinance, or (iv) Thirty days have elapsed after a vote of the city on the ordinance. (f) Action on Petitions. (1) Action by Council. When an initiative or referendum petition has been finally determined sufficient, the council shall promptly consider the proposed initiative ordinance in the manner provided in Article II or reconsider the referred ordinance by voting its repeal. If the council fails to adopt a proposed initiative ordinance without any change in substance within sixty days or fails to repeal the referred ordinance within thirty days after the date the petition was finally determined sufficient, it shall submit the proposed or referred ordinance to the voters of the city. The council shall promptly order a recall election to occur within [30 to 90] days of the date the recall petition was finally determined sufficient. (2) Submission to Voters of Proposed or Referred Ordinances. The vote of the city on a proposed or referred ordinance shall be held not less than 30 days and not later than one year from the date of the final council vote thereon. If no regular city election is to be held within the period prescribed in this subsection, the council shall provide for a special election; otherwise, the vote shall be held at the same time as such regular election, except that the council may in its discretion provide for a special election at an earlier date within the prescribed period. Copies of the proposed or referred ordinance shall be made available at the polls. (3) Withdrawal of Petitions. An initiative, referendum, or recall petition may be withdrawn at any time prior to the fifteenth day preceding the day scheduled for a vote of the city by filing with the city clerk a request for withdrawal signed by at least two-thirds of the petitioners' committee. Upon the filing of such request the petition shall have no further force or effect and all proceedings thereon shall be terminated. (g) Results of Election. (1) Initiative. If a majority of the registered voters voting on a proposed initiative ordinance vote in its favor, it shall be considered adopted upon certification of the election results and shall be treated in all respects in the same manner as ordinances of the same kind adopted by the council. If conflicting ordinances are approved at the same election, the one receiving the greatest number of affirmative votes shall prevail to the extent of such conflict. (2) Referendum. If a majority of the registered voters voting on a referred ordinance vote against it, it shall be considered repealed upon certification of the election results. (3) Recall. Ballots used at recall elections shall read: "Shall [name] be recalled (removed) from the office of ?" If a majority of the registered voters voting on a proposed recall vote in its favor, the official is removed and the winning candidate for successor, if any, shall be elected as a replacement for the duration of the unexpired term. Otherwise the vacancy shall be filled in accordance with § 2.06 (c). Commentary. Unlike other provisions, this article must be completely self-executing. Detail should not be filled in by the council because these devices guard against possible inadequacies of council. 51 (a) Neither the initiative nor the referendum should be applicable to the budget, capital program, any ordinance relating to the appropriation of money or the levy of taxes, or, of course, to salaries of city officers or employees, for this would interfere with responsible officials striving to achieve a properly balanced long-range fiscal program. Recall should not apply to recently elected officials, because officials need time to establish themselves in office, and because election results should not be promptly challenged by another election. (b) Requiring a petitioners' committee places clear responsibility for the undertaking of initiative, citizen referendum, or recall proceedings. (c) The number of signatures required for initiative and referendum petitions in the seventh edition was fifteen percent of the total number registered to vote at the last regular city election. The eighth edition permits charter drafters to decide upon a reasonable threshold for their city, chosen from a range equal to or greater than five percent but less than or equal to ten percent of registered voters to vote at the last city election. The percentage used should neither be too easy nor too burdensome. Communities typically require more signatures for recall petitions than for initiative and referendum petitions. In determining the recall percentage, drafters should consider distinguishing between at - large and district offices. Limiting the period for filing a referendum petition to thirty days after passage insures that the effective date of an ordinance will not be delayed unless the referendum effort is of serious proportions. The timing of the recall procedure prevents the threat of recall from pending without limitation. The time period for signature collection should be reasonably related to the signature requirement and the size of the city, within the provided range of 40 to 160 days. (d) The mandatory language prevents the city clerk from delaying certification of the sufficiency or insufficiency of petitions beyond the twenty days specified. (e) The fact that filing a referendum petition with the city clerk suspends the effective date of an ordinance will spur the city clerk and the council into prompt action on the question of sufficiency. When an ordinance is subjected to a referendum vote and the council's action is sustained, termination of the suspension must be delayed until sufficient time has passed for official determination of the election results. This will vary with local practice. The thirty days indicated in § 6.04(e) (iv) is arbitrary. If there is a definite provision for the official reporting of election results, the lifting of the suspension should probably coincide with the reporting. (f) This section mandates council consideration of the proposed "initiative ordinance" and reconsideration of the "referred ordinance" prior to the circulation of petitions and the ensuing ballot question. The words "adopt a proposed initiative ordinance without any change in substance" permit correction of technical imperfections. If an election is necessary, provisions for submitting a proposed or referred ordinance to the voters, or ordering a recall election, permit considerable latitude as to the election date to encourage holding the vote at a regular election if possible. 52 One cf the most important reasons for requiring a petitioners' committee is to provide a mechanism for withdrawing an initiative, referendum, or recall petition if those originating the proceedings change their minds or feel that action of the council satisfies the need which prompted the petition. (g) Iritiative ordinances approved by the electorate become effective, just as is the case with an ordinance passed by council, in thirty days or at whatever later date is specified. Article VII GENERAL PROVISIONS Introduction. All communities should have fully developed provisions dealing with the ethical expectations essertial to responsible government. Ethics provisions foster public trust in the integrity of city government and serve as a check on improper or abusive behavior by city officials and employees. Corrmun_ties should also have a comprehensive campaign finance code requiring, at the least, disclosurV of sources of money used in the campaign for city office. The amount of money flowing into loca races continues to grow and must be regulated to help avoid the public perception of corriptio-i. Section 7.01, Conflicts of Interest; Board of Ethics. (a) Conflicts of Interest. The use of public office for private gain is prohibited. The city cou-icil shall implement this prohibition by ordinance, the terms of which shall include, but not be I mited to: acting in an official capacity on matters in which the official has a private fina-icial interest clearly separate from that of the general public; the acceptance of gifts anc other things of value; acting in a private capacity on matters dealt with as a public official; the use of confidential information; and appearances by city officials before other city agencies on behalf of private interests. This ordinance shall include a statement of purpose and shall provide for reasonable public disclosure of finances by officials with major decision -making authority over monetary expenditures and contractual and regilatory matters and, insofar as permissible under state law, shall provide for fines and imprisonment for violations. (b;, Board of Ethics. The city council shall, by ordinance, establish an independent board of ethiis to administer and enforce the conflict of interest and financial disclosure orcinances. No member of the board may hold elective or appointed office under the city or any other government or hold any political party office. Insofar as possible under state law, the city council shall authorize the board to issue binding advisory opinions, conduct investigations on its own initiative and on referral or complaint from officials or citizens, subpoena witnesses and documents, refer cases for prosecution, impose administrative fins, and to hire independent counsel. The city council shall appropriate sufficient funds to the board of ethics to enable it to perform the duties assigned to it and to provide annual tra.ning and education of city officials and employees, including candidates for public off ce, -egarding the ethics code. 53 Commentary. Many states have conflict of interest and financial disclosure laws which include local officials as weL as state officials. Cities in these states may wish to modify this section accordingly by either eliminatng duplication with state law or providing for local filing of state forms to provide local access to the information. Instead of providing essentially statutory language, this section mandates council passage of ordinances covering certain basic subjects and which provide for a specific mechanism to adminis:er and enforce the law. This permits amendment as may be required without a referendum, w1rch would be necessary if the charter covered the subject in detail. This provision shows that the charter :s serious about the need for dealing with ethics problems but at the same time leaves it to the city" council to adopt the formulation most appropriate for the specific situation. It makes a prcvision for a Board of Ethics but leaves details on the board's composition and procedure to the co mciL Ot-ier Frovisions councils could adopt, but not listed in the Model, relate to acting in an official capacity over any campaign donor who contributes $ or more to the official's campaign; the hiring of relatives; acting in an official capacity on matters affecting a prior employer within a designated time period after leaving the employer; accepting outside employment while in office; an] accepting employment with an employer over whom the official or employee acted in an off:cia- capacity, within a designated time period after leaving office. Westminster, Colorado, pioneered the conflict of interest approach to limiting campaign contributions, via charter amendment, and other cities have expressed interest in following its example either by charter or or3inasce. A substantial number of cities restrict hiring of relatives and prior, outside, and sibseauent employment arrangements. Section 7.02. Prohibitions. (a) Activities Prohibited. (1) No person shall be appointed to or removed from, or in any way favored or discriminated against with respect to any city position or appointive city administrative office because of race, gender, age, sexual orientation, disability, religion, country of origin, or political affiliation. (2) No person shall willfully make any false statement, certificate, mark, rating or report in regard to any test, certification or appointment under the provisions of this charter or the rules and regulations made there under, or in any manner commit or attempt to commit any fraud preventing the impartial execution of such provisions, rules and regulations. (3) No person who seeks appointment or promotion with respect to any city position or appointive city administrative office shall directly or indirectly give, render or pay any money, service or other valuable thing to any person for or in connection with his or her test, appointment, proposed appointment, promotion or proposed promotion. 54 st'i, ie i=?i :`3e 'E=`.`�ciy'':i (4) No person shall knowingly or willfully solicit or assist in soliciting any assessment, subscription or contribution for any political party or political purpose to be used in conjunction with any city election from any city officer or city employee. (5) No city officer or city employee shall knowingly or willfully make, solicit or receive any contribution to the campaign funds of any political party or committee to be used in a city election or to campaign funds to be used in support of or opposition to any candidate for election to city office or city ballot issue. Further, no city employee shall knowingly or willfully participate in any aspect of any political campaign on behalf of or opposition to any candidatc for city office. This section shall not be construed to limit any person's right to exercise rights as a citizen to express opinions or to cast a vote nor shall it be construed to prohibit any person from active participation in political campaigns at any other level of government. (b) Penalties. Any person convicted of a violation of this section shall be ineligible for a period of five years following such conviction to hold any city office or position and, if an officer or employee of the city, shall immediately forfeit his or her office or position. The city council shall establish by ordinance such further penalties as it may deem appropriate. Commentary. The activities prohibited by this section are antithetical to the maintenance of a sound, permanent municipal service. The prohibition against discrimination states basic municipal policy which applies to all personnel relationships. Prohibiting fraud or attempted fraud and bribery in connection with appointments and promotions by charter provision stresses the importance of maintaining the integrity of the public service. Prohibitions against political solicitation and participation in political campaigns afford protection for the employee as well as the integrity of the system. State law of general application may be sufficiently comprehensive to cover the activities prohibited by this section. If so, the charter need not contain these provisions except to give confirmation of public acceptance of these policies. Section 7.03. Campaign Finance. (a) Disclosure. The city council shall enact ordinances to protect the ability of city residents to be informed of the financing used in support of, or against, campaigns for locally elected office. The terms of such ordinances shall include, but not be limited to, requirements upon candidates and candidate committees to report in a timely manner to the appropriate city office: contributions received, including the name, address, employer, and occupation of each contributor who has contributed or more; expenditures made; and obligations entered into by such candidate or candidate committee. In so far as is permissible under state law, such regulations shall also provide for fines and imprisonment for violations. The ordinance shall provide for convenient public disclosure of such information by the most appropriate means available to the city. 55 (b) Contribution and Spending Limitations. In order to combat the potential for, and appearance of, corruption, and to preserve the ability of all qualified citizens to run for public office, the city shall, in so far as is permitted by state and federal law, have the authority to enact ordinances designed to limit contributions and expenditures by, or on behalf of, candidates for locally elected office. Ordinances pursuant to this section may include, but are not limited to: limitations on candidate and candidate committees that affect the amount, time, place, and source of financial and in -kind contributions; and, voluntary limitations on candidate and candidate committee expenditures tied to financial or non -financial incentives. Commentary. This section was added to the eighth edition in recognition of the substantial number of cities that have enacted campaign finance laws since the seventh edition. This trend indicates that increasingly large amounts of private money have penneated local elections and reflects public perception that such money has had a distorting influence on the democratic process. Section 7.03(a) provides for disclosure of candidate contributions and expenditures. A strong majority of cities in the United States have some form of campaign contribution and expenditure disclosure requirements. This section of the charter requires the city to provide for timely disclosure of such funds. It further requires that disclosure of contributions above a certain threshold include the donor's employer and occupation. Such information allows citizens to identify the sources of funding that influence local elections. The requirement that the city provide for "convenient public disclosure" is meant to encourage electronic disclosure over city web sites when such technology and resources are available. Section 7.03(b) provides the city with express authority, but not a mandate, to enact any of the several innovative campaign finance laws that cities have enacted over the last three decades. This includes options such as contribution limitations, time limits on fund raising, and public financing as an incentive for candidates to adhere to voluntary spending limits. Article VIII CHARTER AMENDMENT Introduction. All charters require modification from time to time. In states where the constitution or statutes prohibit cities from adopting their own methods of charter revision, this article cannot be used. Section 8.01. Proposal of Amendment. Amendments to this charter may be framed and proposed: (a) In the manner provided by law, or 56 r (b) By ordinance of the council containing the full text of the proposed amendment and effective upon adoption, or (c) By report of a charter commission created by ordinance, or (d) By the voters of the city. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by the same procedures and requirements prescribed in Article VI for initiative petitions until such time as a final determination as to the sufficiency of the petition is made, except that there shall be no limitation as to subject matter and that the petition must be signed by registered voters of the city equal in number to at least [5 to 10] percent of the total number of those registered to vote at the last regular city election. The petitioners' committee may withdraw the petition at any time before the fifteenth day immediately preceding the day scheduled for the city vote on the amendment. Commentary. This article lists four methods for proposing charter amendments. The first references any methods which are provided by state law, and the second is by the council itself. The third is by a charter commission, which in many states may be created by the council. Depending on the state, the procedures binding the charter commission may be found in the constitution or state law. Often the procedures allow formation of the charter commission by petition or by ordinance. The final method of charter amendment is by a voter -initiated petition. The signature requirement for charter amendment petitions should be a fixed percentage between five and ten percent of registered city voters. It is important that the number of signatures required be substantial. It should be relatively difficult to amend the charter, and charter amendments should not be used to harass officials. Section 8.02. Election. Upon delivery to the city election authorities of the report of a charter commission or delivery by the city clerk of an adopted ordinance or a petition finally determined sufficient, proposing an amendment pursuant to § 8.01, the election authorities shall submit the proposed amendment to the voters of the city at an election. Such election shall be announced by a notice containing the complete text of the proposed amendment and published in one or more newspapers of general circulation in the city at least thirty days prior to the date of the election. The election shall be held not less than 60 and not more than 120 days after the adoption of the ordinance or report or the final determination of sufficiency of the petition proposing the amendment. If no regular election is to be held within that period, the council shall provide for a special election on the proposed amendment; otherwise, the holding of a special election shall be as specified in state law. 57 I Section 8.03. Adoption of Amendment. If a majority of those voting upon a proposed charter amendment vote in favor of it, the amendment shall become effective at the time fixed in the amendment or, if no time is therein fixed, 30 days alter its adoption by the voters. Article IX TRANSITION AND SEVERABILITY Introduction. Many charters do not facilitate transition from an old to a new form of government organization. More than almost any other part of the charter, the article containing transitional provisions needs to be tailored to existing law and organization. The Model makes no claim to being complete in this regard but calls attention to matters that must be considered and provides a basic pattern for a transition article. Care in the preparation of this article will have important benefits. It can disarm arguments that adoption of a new charter will harm existing personnel and the processes of the government. It may also save the city from costly litigation and administrative confusion. Section 9.01. Officers and Employees. (a) Rights and Privileges Preserved. Nothing in this charter except as otherwise specifically provided shall affect or impair the rights or privileges of persons who are city officers or employees at the time of its adoption. (b) Continuance of Office or Employment. Except as specifically provided by this charter, if at the time this charter takes full effect, a city administrative officer or employee holds any office or position which is or can be abolished by or under this charter, he or she shall continue in such office or position until the taking effect of some specific provision under this charter directing that he or she vacate the office or position. (c) Personnel System. An employee holding a city position at the time this charter takes full effect, who was serving in that same or a comparable position at the time of its adoption, shall not be subject to competitive tests as a condition of continuance in the same position but in all other respects shall be subject to the personnel system provided for in § 4.02. Section 9.02. Departments, Offices, and Agencies. (a) Transfer of Powers. If a city department, office or agency is abolished by this charter, the powers and duties given it by law shall be transferred to the city department, office or agency designated in this charter or, if the charter makes no provision, designated by the city council. 58 _.— •. ",.. •. ..•.•••.•.,•.•"""••"........ .1.111,........... ..•.'......................i��i���i��iiiiiiiii�iiiiiiiiiiuimniiiiiiiiuuiuiiiiliiiouwilliiiiiuiwilimulliiiiulluluiliiullliliiuuiilillllliliiililillliilullllllllllllll�IIIIIIIIIIIIIIIIIIIIIIIl0111111111111111111111111111111YlYIIIYII� f (b) Property and Records. All property, records and equipment of any department, office or agency existing when this charter is adopted shall be transferred to the department, office or agency assuming its powers and duties, but, in the event that the powers or duties are to be discontinued or divided between units or in the event that any conflict arises regarding a transfer, such property, records or equipment shall be transferred to one or more departments, offices or agencies designated by the city council in accordance with this charter. Section 9.03. Pending Matters. All rights, clairns, actions, orders, contracts, and IPgal administrative proceedings shall continue except as modified pursuant to the provisions of this charter and in each case shall be maintained, carried on or dealt with by the city department, office or agency appropriate under this charter. Section 9.04. State and Municipal Laws. (a) In General. All city ordinances, resolutions, orders and regulations which are in force when this charter becomes fully effective are repealed to the extent that they are inconsistent or interfere with the effective operation of this charter or of ordinances or resolutions adopted pursuant thereto. To the extent that the constitution and laws of the state of permit, all laws relating to or affecting this city or its agencies, officers or employees which are in force when this charter becomes fully effective are superseded to the extent that they are inconsistent or interfere with the effective operation of this charter or of ordinances or resolutions adopted pursuant thereto. (b) Specific Provisions. Without limitation of the general operation of subsection (a) or of the number of nature of the provisions to which it applies: (1) The following laws and parts of laws generally affecting counties or city agencies, officers or employees are inapplicable to the city of or its agencies, officers or employees: [enumeration] (2) The following public local laws relating to the city of are superseded: [enumeration] (3) The following ordinances, resolutions, orders, and regulations of [former city governing body] are repealed: [enumeration] Section 9.00. Schedule. (a) First Election. At the time of its adoption, this charter shall be in effect to the extent necessary in order that the first election of members of the city council may be conducted in accordance with the provisions of this charter. The first election shall be held on the of . The [city officials to be designated] shall prepare and adopt temporary regulations that are applicable only to the first election and designed to insure OX 1 its proper conduct and to prevent fraud and provide for recount of ballots in cases of doubt or fraud. (b) Time of Taking Full Effect. The charter shall be in full effect for all purposes on and after the date and time of the first meeting of the newly elected city council provided in § 9.05(c). (c) First Council Meeting. On the of following the first election of city council members under this charter, the newly elected members of the council shall meet at [time] at [place]: (1) For the purpose of electing the [mayor and] deputy mayor, appointing or considering the appointment of a city manager or acting city manager, and choosing, if it so desires, one of its members to act as temporary clerk pending appointment of a city clerk pursuant to § 2.08; and Note: Omit bracketed words if § 2.03, Alternative II is used. (2) For the purpose of adopting ordinances and resolutions necessary to effect the transition of government under this charter and to maintain effective city government during that transition. (d) Temporary Ordinances. In adopting ordinances as provided in § 9.05(c), the city council shall follow the procedures prescribed in § 2.12, except that at its first meeting or any meeting held within sixty days thereafter, the council may adopt temporary ordinances to deal with cases in which there is an urgent need for prompt action in connection with the transition of government and in which the delay incident to the appropriate ordinance procedure would probably cause serious hardship or impairment of effective city government. Every temporary ordinance shall be plainly labeled as such but shall be introduced in the form and manner prescribed for ordinances generally. A temporary ordinance may be considered and may be adopted with or without amendment or rejected at the meeting at which it is introduced. After adoption of a temporary ordinance, the council shall cause it to be printed and published as prescribed for other adopted ordinances. A temporary ordinance shall become effective upon adoption or at such later time preceding automatic repeal under this subsection as it may specify, and the referendum power shall not extend to any such ordinance. Evei y temporary ordinance, including any amendments made thereto after adoption, shall automatically stand repealed as of the ninety-first day following the date on which it was adopted, renewed, or otherwise continued except by adoption in the manner prescribed in § 2.12 for ordinances of the kind concerned. (e) Initial Expenses. The initial expenses of the city council, including the expense of recruiting a city manager, shall be paid by the city on vouchers signed by the council chairman. (f) Initial Salary of Mayor and Council Members. The mayor shall receive an annual salary in the amount of $ and each other council member in the amount of 11 $ , until such amount is changed by the council in accordance with the provisions of this charter. Section 9.06. Severabiiity. If any provision of this charter is held invalid, the other provisions of the charter shall not be affected. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application of the charter and its provisions to other persons or circumstances shall not be affected. Commentary. A severability clause is a necessary precaution and should be included in every charter. Appendix OPTIONS FOR MAYOR -COUNCIL CITIES Since 1915, the Model City Charter has been based on the council-manager form of government. Some cities have a tradition of using or prefer to use the mayor -council form, and in some states the adoption of council-manager government may be limited by state statutes., Cities that use the mayor -council form can make choices to "reform" their city government within the framework of this form of government. There are structural approaches that can clarify the structure and improve the performance of the mayor -council city government. The mayor -council form of government is based on principles of separation of powers and checks and balances similar to those found in American national and state governments. Certain powers are assigned to the mayor and others to the council in cities that use this form. In addition, some mayor -council charters provide for other officials such as appointed boards or administrators who have independent authority to make specified decisions. It was common in the nineteenth century for cities to divide authority among many officials in the belief that the more power was divided and the more officials were directly elected, the more democratic the process of city government would be. In practice, complex structures with highly fragmented authority created ineffective government in which it was difficult to hold anyone responsible for the failure of city government as a whole. In certain cities, the fragmented structure created a vacuum that party organizations filled with unified control. In other cities —probably more numerous than those with control by party organizations —the prevailing structure simply contributed to a lack of competent and farsighted leadership and contributed to city governments that were neither effective nor 1 Two examples illustrate how state statutes can affect the choice of form of government. Indiana law prescribes that all cities use the mayor -council form; small towns have an option in the choice of form. In Wisconsin, state statue specifies that the "council-manager" optional charter have a council president rather than mayor and gives the manager unusual powers such as the authority to appoint council committees. Only ten of 190 cities in Wisconsin operate under the council-manager form. In Dale Krane, Platon Rigos, and Melvin Hill, Jr., Eds., Home Rule in .America: A Fifty -State Flandbook (Washington: CQ Press, 2001), see chapters on Indiana by William Blomquist and on Wisconsin by Stephen E. C. Hintz. 61 efficient in their delivery of services to citizens. Some cities still retain these features in their charter. The first Model City Charter proposed replacing the fragmented authority and confused assignment of responsibility of existing nineteenth century city governments with simplified and centralized executive authority exercised by an elected mayor. After the first edition, the model charter assigned this centralized executive authority to an appointed city manager, From the second through the fourth editions of the charter, no provisions were proposed for mayor -council cities. With the fifth edition, the stron mayor -council form from the first edition reappeared as an alternative for those cities that chose not to use the preferred council-manager form with the suggestion that a "vice mayor" or what would later often be called a chief administrative officer (CAO) might be appointed by the mayor. These recommendations appeared in the sixth and seventh editions as well. The approach taken in this edition is different. Officials and citizens who are reviewing a mayor -council charter are given analytical questions to guide their assessment of the governmental structure. In contrast to exclusive reliance on the strong mayor alternative, two options for organizing the mayor -council form are now proposed. Analytical Questions about Mayor -Council Governments For cities that prefer to use the mayor -council form of government, there are two questions to answer in designing a charter. o First, how should authority be divided between the mayor and the council? The Model Charter Committee recommends two options for the division of authority: the first option is to provide for a blend of separation and sharing of authority between the mayor and the council; the second option is the classic strong mayor -council approach. o Second, should a chief administrative officer be appointed? The Model Charter Committee recommends the addition of a CAO to all types of mayor -council governments. How the CAO is appointed and the responsibilities of the position are determined by which of the two optional approaches is taken to dividing authority between the mayor and council. To provide background information, each of these questions is discussed in more detail. Then the optional approaches and an assessment of them are presented. A. How is authority divided between the mayor and the council? There are several broad patterns of dividing authority in mayor -council cities. Although these cities are commonly divided into "strong mayor" and "weak mayor" variations, this two-way division is misleading. Some cities have a strong executive and clearly separated powers, and some have true "weak" mayor governments in which the authority is extensively fragmented and assigned to the mayor, council, and other officials. Most cities, however, have both separated and shared powers between the mayor and the council. Thus, distinctions can be made between the strong mayor, the "standard" mayor -council, and the weak mayor subtypes of the Ynayor-council form. Each of these patterns has a different internal logic. 62 The first pattern is the original reform ideal of a strong elected executive with centralized authority. In this approach, the mayor is a strong chief executive officer who provides the functions filled by the city manager in the council-manager form of government. This "pure" strong mayor approach clearly divides powers between the mayor and the council. If there is a CAO, this official is an extension of the mayor's office. This approach is used in approximately one -quarter of the mayor -council cities.2 For simplicity, this subtype of the mayor -council form is called the strong mayor -council or strong mayor-CAO-council forin, depending on whether a CAO is present. In the latter label, the CAO is placed next to the mayor to signify the close connection between the mayor and the CAO. In sum, the strong mayor type is characterized by clear separation of powers and substantial independent authority for the mayor. The second pattern is based un separated and shared authority between the mayor and the council. This is the standard mayor -council pattern in the sense that it is used by a large majority of mayor -council cities.' The mayor has separate executive authority but major decisions are either proposed by the mayor and approved by the council or made jointly by the mayor and council. When the mayor proposes and the council approves, the approach is similar to the "advice and consent" authority of the Senate in handling nominations by the President for Supreme Court judges or cabinet secretaries. In other cities in this pattern, the mayor and council make major decisions jointly. If there is a CAO in these cities, this official is nominated by the mayor and approved by the council or chosen jointly. Potentially, this official serves as a bridge between the mayor and the council. For simplicity, this subtype of the mayor -council form is called the mayor -council or mayor-council-CAO form. In the latter label, the CAO is placed after both mayor and council to signify the mutual responsibility the CAO has to both sets of officials,2 In sum, the standard mayor - council form is characterized by a combination of separated and shared powers. Commonly, the staff support and organizational authority of the mayor and the high visibility of the office make the mayor the recognized leader of city government. Still there is less independent authority concentrated in the mayor's office than in the strong mayor type. z According to the 2001 Form of Government (FOG) Survey of the International City Management Association, thirty-eight percent of cities over 2,500 in population use the mayor -council form. Of these, the mayor has separate authority for appointing department heads and preparing the budget in fifteen percent of the cities and controls one function and shares the other in another eight percent. Thus, twenty-three percent of the cities have more or less strong mayors. Using somewhat different criteria, Steve Leach and Donald F. Norris, "Elected Mayors in England: A Contribution to the Debate," Public Policy and Administration, 17 (Spring, 2002), pp. 30-31, report similar findings based on 1996 data —twenty-seven percent have budget and staff appointment authority alone or shared with a CAO as well as veto authority. Only 1.8% of mayor - council cities have "very strong mayors." ' In the 2001 FOG Survey, the mayor shares the exercise of authority for appointing department heads and preparing the budget with the city council in forty-three percent of the mayor -council cities. Finally, in thirty- three percent of the cities, the council or other officials are responsible and the mayor has no separate authority. `' In cities that have a CAO in 2001, the mayor and council appointed the CAO in forty-four percent of the cities and by the council in thirty-nine percent. The mayor alone appoints the CAO in only sixteen percent of the cities. Although appointment by the mayor is much more common in cities over 100,000 in population, even in these cities the mayor has sole appointment authority in less than half the cases. 63 i r The term weak mayor -council is reserved for cities in which there is substantial fragmentation of authority. Beyond separated and shared authority between the mayor and the council, there are other features that divide authority widely. These include direct election of certain department heads or commissions and the assignment of independent policy -making authority to some commissions. A committee that is controlled by neither the mayor nor the council may formulate the budget. This is the kind of structure that was common in the late nineteenth century. The early municipal reformers sought to overcome the extreme decentralization that characterizes it. Although it is based on the premise that extensive checks will prevent excessive concentration of power and direct election of many offices will promote democratic control, in practice many weak mayor cities functioned poorly and it was difficult to pin down who was responsible for problems in performance. It is difficult to estimate how many cities still use these approaches, but the proportion is fairly smal1.3 B. Should the mavor-council city have a CAO? An increasing proportion of cities have added a central administrative position occupied by a CAO to their governmental structure.4 Experience has demonstrated that it is beneficial for cities to m have an administrative officer. This officer can offer assistance to the mayor in filling the executive responsibilities such as preparing the budget. The officer will provide central coordination of administrative functions and may also assist the council in handling its policy -making authority. Adding a chief administrative officer to city government is consistent with the longstanding reform principle of providing for both political and professional leadership. A central administrative official is able to contribute to sound governance as well as directing service delivery. Professional managers serving elected officials and the public bring distinctive values that enrich and elevate the governmental process in both policymaking and service delivery. These professional values include the commitment to basing policy and service delivery on need rather than demand, to stressing the long-term interests of the community as a whole, to promoting equity and fairness, to recognizing the interconnection among policies, and to advancing citizen participation that is broad and inclusive. There are benefits from having a professional chief administrator who channels these values into the governmental process at the highest and most general level through interactions with both the mayor and the council. There are other advantages as well. It is difficult to find candidates for mayors who are equally adept at providing both political and also administrative leadership to city government. It is also hard for voters to assess the administrative capabilities of candidates before they have served in the mayor's office. Mayors (except in the largest cities), unlike new presidents and governors, are not supported by large transition teams. Nor can they persuade prominent leaders from the public and private sectors to accept key appointments for the duration of that executive's administration. Adding administrative assistance through a CAO helps to solve these problems. The office of CAO builds into the charter a support position for the mayor and institutionalizes the professional coordination of the departments of city government. ' In 2001, fourteen percent of mayor -council cities elected some or all department heads. A finance committee for formulating the budget appears to be used by approximately three percent of cities. ' In 2001, fifty-six percent of the mayor -council cities over 2,500 in population have a CAO or equivalent position. City administrator is another common title. 64 Recommended Structures in Mavor-Council Cities To clarify responsibility and clarify the governmental process, mayor -council cities should assign policy -making, executive, and oversight authority to the mayor, council, and CAO. Practices associated with traditional weak -mayor forms should be eliminated. These practices include direct election of department heads and commissions, appointment of administrative officials by commissions, having a body other than the mayor and council formulate the budget (e.g., a board of finance), and assigning other policy -making authority to commissions. The preferred approach in mayor -council cities is to promote shared authority between the mayor and the council along with the separation of powers that defines the mayor -council form. In the shared authority mayor -council cities, both the mayor and the council play an active role. The alternative approach is to have a strong mayor with greater separation of powers between the mayor and the council. In the strong mayor -council cities, leadership is concentrated in the mayor's office and council reviews and approves the mayor's recommendations. In both options, it is recommended that provisions be made for the appointment of a CAO in a manner consistent with the overall division of authority between the mayor and the council. In the shared authority mayor -council cities, the CAO is nominated by the mayor and approved by the council. This official serves as a bridge between the two sets of officials and is assigned administrative responsibilities. In the strong mayor -council cities, the CAO is appointed by the mayor and provides professional assistance to the mayor. Option 1: , Mavor-Council-CAO Rovernment This option is based on the combination of separated and shared powers between the mayor and the council found in most mayor -council cities. Some modifications will need to be made to the Model City Charter by charter drafters to accommodate this approach. The mayor is the chief executive officer who oversees the work of the CAO. The CAO is nominated by the mayor and approved by the council (a corresponding change to §§ 2.03 and 3.01 of the Model City Charter should be made). The mayor may remove the CAO (change §§ 2.03 and 3.01), The charter should provide for the CAO to have the same professional qualifications as the city manager (as described in § 3.01) The CAO formulates the budget and the capital program for the mayor (change §§ 2.03, 3.04(5), 5.02, 5.03, 5.04, 5.05(c), and 5.09), and the mayor presents the budget and capital program to the council with his or her own recommendations added to those of the CAO (change §§ 2.03, 5.02, 5.03, 5.04, 5.05(c), and 5.09). The CAO recommends major personnel appointments to the mayor who presents them to the council for approval (change §§ 2.03 and 3.04(I)). The mayor may remove department heads (change § 2.03).5 Other changes should be made in accordance with the General Provisions, see below. When appointed in this way, the CAO helps to link the mayor and council and promotes communication between them. The CAO serves as a bridge to span the separation of powers S Some cities, particularly smaller ones, prefer to have even greater shared authority with the mayor and the council acting together on most decisions. Under this approach, the mayor and council jointly appoint the CAO. The council approves the removal of the CAO. The CAO formulates the budget for the mayor and council as a whole, and recommends major personnel appointments to the mayor and council for approval. Governments operating in this way share many characteristics with the council-manager form. 65 between the mayor and the council. The CAO provides professional advice and detached assessment regarding key decisions to both the mayor and the council. The CAO can promote a higher level of performance and shared information by both sets of officials. The CAO assists the mayor in preparing policy recommendations to the council but is cognizant of his or her responsibility to provide information that the council needs to make policy decisions.6 The CAO is responsible directly to the mayor for administrative matters and to the council for providing information to support their oversight function, i.e., the assessment of how well policies are working and how well services are being delivered. It should be acknowledged that the position occupied by the CAO can be difficult if there is conflict between the mayor and council. The CAO can get caught in the middle. Still, the presence of a CAO who feels a sense of accountability to both the mayor and the council can reduce the level of conflict compared to conditions in mayor - council cities without a CAO. The mayor-council-CAO government is not a "weak" mayor structure but rather one in which the mayor and council share authority in a number of areas. On the other hand, this option is also not a "strong" mayor structure. That approach is described in the next option. Option 2: Strong Mayor -Council or Strong Mavor-CAO-Council government This is the approach recommended in the first Model City Charter, and it is the basis for the commentary that appeared in the seventh edition. Under this option the city government is organized around the mayor as the central force. As stated in the seventh edition, "in the strong mayor and council form, the mayor must have sufficient authority to operate as a genuinely responsible executive." There are no provisions for having major appointments be subject to the "advice and consent" of the council. In this view, it is important that the mayor be left relatively free to provide leadership subject to the final approval of the city council. Essentially, the mayor in this type of mayor -council city assumes the authority assigned to the city manager in the model charter. It is possible to change the word "city manager" to "mayor" throughout the charter, except in Article III, which must be substantially altered to provide for election of the mayor. (See General Provisions below.)? There is value to having a CAO in the strong mayor -council form. Consistent with the principle of promoting a strong central executive in this option, the CAO should serve the mayor and be appointed and removed by the mayor alone. The seventh edition recommends, "The mayor should be solely responsible for the appointment and removal of the administrator without any b A survey of CAOs indicates that with nomination by the mayor and approval by the council, the CAO is likely to simultaneously see himself or herself as the agent of the mayor and also as being accountable to both the mayor and the council. Seven in ten CAOs agree with these positions. If the mayor does not nominate the CAO, only thirty-seven percent of the CAOs see themselves as the mayor's agent. If the council does not approve the appointment, only twenty-eight percent of the CAOs see themselves as accountable to the council. See James H. Svara, "Do We Still Need Model Charters? The Meaning and Relevance of Reform in the Twenty -First Century," National Civic Review. 90 (Spring, 2001), pp. 19-33. ' It should be noted that giving the mayor the same powers as the city manager (plus the veto power as well) does not make the offices comparable as to the centralized executives. The strong mayor is not accountable to the council in the exercise of his or her powers. The mayor is not selected by the council and subject to removal by the council as the city manager is. Wei requirement of approval by the council." A CAO appointed under this option would be strictly accountable to the mayor. The mayor has maximum flexibility in making the appointment and deciding what tasks to delegate to the CAO. Consistent with the strong -mayor principle of undiluted mayoral power, the CAO's duties under this option are not specified in the charter. Assessment of the two mayor -council options The first option of mayor-council-CAO government combines separation of powers with shared powers, particularly `'advice and consent" provisions for top appointments or joint authority for appointments. The mayor and top administrators are made more accountable to the council by shared powers, and the council has a greater opportunity to shape mayoral decisions and oversee administrative performance. Shared power provisions may serve to knit the separate branches more closely together. The CAO, although ultimately accountable to the mayor, serves both sets of officials and can promote closer interaction between them. The option promotes leadership by both the mayor and council and provides for both political and professional leadership. This approach to appointing the CAO makes this official responsive to both the mayor and the council, since both are involved in the hiring decision. Furthermore, the CAO is given a formal role in budget preparation and appointment of department heads. This approach is advantageous for several reasons. First, accountability is broadened to include the council. Second, the professional qualifications of the person selected may be higher if the council has to approve the choice. The mayor is not free to simply choose a person to advance his or her electoral interests. Third, the professional contributions of the CAO to both the mayor and the council are assured when the CAO fills specified duties. The CAO is involved in important administrative matters. The pure strong -mayor approach concentrates a substantial amount of authority in one office. The approach also limits the contribution of the council to accepting or rejecting policy and budget proposals from the mayor and overriding the mayor's veto. Although the council has a general oversight role, the fact that the mayor appoints all top administrators may limit the flow of information to the council to support its exercise of this role. There is concentrated power with limited checks on the exercise of the power. The case for the strong mayor option is based on the need for strong centralized leadership. The maycr-council-CAO option with more shared powers can be criticized on the grounds that it creates confusion over who is responsible for exercise of powers between the mayor and the council when they are both involved in certain key areas of decision -making. Additionally, the mayor's ability to recruit administrative staff may be reduced if the appointees have to be approved by the council. In view of the tendency for separation of powers to generate conflict between branches, having more actions that must be carried out by the mayor and council simply creates additional opportunities for conflict. General Provisions There are certain provisions that would be common to all mayor -council cities. Election of the mayor and veto are found in both options of the mayor -council form. 67 Election of the mayor and chair of the council The provisions in the Model City Charter for direct election of the mayor should be used in mayor -council cities (§ 2,03, Alternative I). The council chair and presiding officer should be elected by the council from among its members.$ Veto One basic difference between the mayor -council and council-manager forms of government is the "veto" power for the mayor. This power is not consistent with the basic principle of the council-manager form that all powers are assigned to the council. In the mayor -council form, the mayor has an assigned role in the legislative process and must make a decision on each ordinance to sign it, veto it, or let it become law without signature. The veto should be included in the legislative article of a mayor -council charter and listed among the mayor's powers in the executive article (.Article II of the Model City Charter, § 2.03). The council may override the veto by a two-thirds vote of its members. ' This would not be the case in cities where the mayor and council jointly exercise authority. In these cities, the mayor presides in the council. ral-. CHANGE WITH CONTINUITY IN THE VALUES OF LOCAL GOVERNMENT REFORM Participants in the urban reform movement seek to promote certain values in local government. From its inception in 1899, the Model City Charter has been distinguished from other local government reform efforts by the. conviction that structure matters. Advocates of this view argue that the legal arrangements for cities and the features included in a charter can, at the margins, make it more likely that preferred values will be actualized in the governmental process. The first model charter was built on the bedrock value of local self -governance with an emphasis on home rule and broad assignment of authority to cities as the foundation of reform. All subsequent editions assume this value as well. The first edition also stressed the value of simplification and centralization of city government structure. It sought to replace the condition common in cities at the time of having multiple elected officials and the assignment of authority to a number of officials and boards. With centralization, all governmental authority is assigned to the mayor and council. Other boards are advisory, and all administrative officials and departments report to the executive. This value is also present in all subsequent editions. The first charter organized the governmental form around the principle of the strong elected executive. This approach accomplished the objectives of concentrating authority and strengthening leadership, but reformers recognized limitations in this approach and soon sought an alternative that moved beyond the separation of powers between a powerful mayor and a council with a limited legislative function. The second Model City Charter, adopted in 1915, recommended the council- manager form with unified authority in the hands of the council. The second edition was based on fundamental values of representative democracy and responsible professionalism.' Rather than relying on a powerful elected executive, the reformers now broadened the base of political leadership and provided for an appointed executive who could be both effective and directly accountable to the council. Council appointment of the city manager strengthened the council and the executive without perpetuating separation of powers. Each value is briefly explained as follows: Representative democracy. Democratically accountable representatives who make policy on behalf of the citizenry constitute the core component of representative democracy. At the local govermnent level, the council should be relatively small so it can act in a deliberative way. Council members are connected to citizens through election and regular interaction during their terms in office. They act as a body of trustees who govern the city and select the executive. The early model charters stressed collective leadership and assumed that citizens would participate in the governmental process through the election of their representatives and the contact they had with council members between elections. The goal was to have a cohesive council that concentrated on the good of the city as a whole. To strengthen these qualities, the current edition recommends four-year, staggered terms —features that reinforce continuity and somewhat greater detachment from the electoral process since only half of the council stands for election in any election and all have longer terms. A small cohesive council would also be better able to provide regular and comprehensive supervision of the appointed executive. Responsible professionalism. The early editions of the model charter envisioned the city manager as a professional chosen on the basis of appropriate training and experience. Responsibility would come from balancing the need to be accountable to the city council with the need to serve the public and advance the best interests of the community as a whole. To strengthen these qualities, the current edition specifies in more detail than previous editions the qualifications the city manager should have. The city manager is expected to offer policy advice 69 and recommendations to the council in its enactment of legislation and to achieve a high level of effectiveness and efficiency in city government. Furthermore, this edition provides specific recommendations that the city manager should focus on goals, performance, and outcomes in policy recommendations, budget formulation, and organizational leadership. A key feature that links representative democracy to professionalism is to make the city manager accountable to the entire council. Another change in the eighth edition is to apply these values to mayor -council government. The preferred option in mayor -council cities is to have a chief administrative officer (CAO) with professional qualifications who is responsible to both the mayor and the council (either the mayor would appoint the CAO and the council would approve the selection or the appointment would be made jointly). The CAO would also inform the council of budget and personnel recommendations developed by the CAO for the mayor. The values of representative democracy to provide collective political leadership and professional leadership by an appointed chief executive were dominant from the second through the fifth editions. They continue to be central —and as noted above have been strengthened in the eighth edition. Still, in this edition and the previous two, other values have received increased attention as well. Although early reformers were convinced that a cohesive board of governors could provide appropriate leadership and link citizens to government, beginning with the sixth model charter efforts have been made to strengthen democratic leadership and further enhance representativeness among the mayor and members of the city council. Political leadership and representativeness emerged as important values in their own right. Political leadership. In the early editions of the model charter no special role was assigned to the mayor except to be presiding officer of the council, which provided collective leadership in functioning like a board of governors. Direct election of the mayor was an alternative in the sixth edition and by the time of the seventh edition, it was clear that special provision needed to be made for the value of political leadership. The mayor does not supplant the council but has more resources to draw upon in leading the council and the city as a whole. As problems became more complex and councils more diverse, the charter has been revised to provide options that can make the mayor the focal point for leadership. To more closely Iink the mayor to the council, the eighth edition recommends that the mayor have the same voting power as other members of the city council. If direct election of the mayor is used and all the activities enumerated in section 2.03 are assigned to the mayor, this official has charter support to promote cohesion on the council and lead the council to set clear goals for the city. Representativeness. The sixth edition also started the process of enhancing the representativeness of the council. Although the charter has always supported representative democracy over direct democracy as noted earlier, the concern in the past three charter revisions has been to ensure that the officials who are making decisions more closely reflect the characteristics and preferences of the citizenry. District elections used exclusively or in combination with at -large seats ensure direct representation of all parts of the city. In addition, the long-standing endorsement of proportional representation has been reaffirmed in the current edition, and it is linked to a number of other measures designed to improve the way that elections translate citizen preferences into the membership of the governing body. Whereas district elections can only address geographical representativeness and provide voice for groups concentrated in particular neighborhoods, proportional representation allows the election of representatives from any sufficiently large group with a common bond. Efforts to increase the fairness of the electoral process, through allowing local government to undertake campaign reform and to increase the number of voters who participate in the selection of leaders, also reflect the emphasis on enhancing representativeness. For example, since voter participation rates are greater during general elections than in runoff elections, the use of instant runoff voting to eliminate the need for a subsequent runoff election would ensure that electoral outcomes are more representative (instant runoff voting allows voters to decide the winner of the election by indicating their first choice and their backup choice). Local governments are encouraged to look for other ways to increase turnout including holding local elections at the same time as state and national elections. The current edition includes two additional values. Just as the sixth edition offered initial recognition of the option of mayoral election and district elections and thus began strengthening the values of political leadership and representativeness, the current edition directs attention to citizen participation and the integration of urban regions. Citizen participation. There is widespread recognition that it is not sufficient for cities to rely on elections and the representational activities of council members, as important as these activities are. Exclusive reliance on representative democracy as the basis for citizen participation raises three concerns: some voices are not heard and, therefore, do not get represented, representation of citizen views by council members is not a complete substitute for the direct expression of views by citizens, and citizens need to have the opportunity to take part directly in the work of government. Opportunities for direct citizen participation in the process of making and implementing policy in cities can be a positive supplement to the conscientious work of representatives. The current edition reexamines the traditional mechanisms of direct democracy —the initiative, referendum, and recall —and offers recommended guidelines that would make these mechanisms uniformly available but would discourage capricious use of citizen -initiated actions that might undermine the continuing importance of representative democracy. Over most of the history of the reform movement, citizen participation has been subsumed under representative democracy. In this view, the primary channels for citizen participation are voting and the ongoing interaction with elected representatives. Without diminishing the importance of effective and responsive representation, there are many ways that cities can promote citizen participation and enrich the quality and increase the inclusiveness of the community's dialogue concerning its current needs and its future aspirations. In the $`" edition, officials are encouraged to join with citizens in exploring which of these ways best match the conditions of their city. Regional integration. Governance of urban regions with multiple jurisdictions is a longstanding challenge that is becoming ever more critical —and perplexing —as metropolitan areas continue to sprawl farther from the urban core. Previous model charters have addressed this only as a matter of intergovernmental relations. The eighth edition seeks to promote the value of regional integration through a number of new provisions. City governments are encouraged to find wal s to cooperate and enter into agreements with each other; the city manager has the responsibility to "encourage and provide staff support for regional and intergovernmental cooperation" and to include in the capital program "a commentary on how the plan addresses the sustainability of the community and the region of which it is a part." Finally. elected officials and administrators should take into account how the comprehensive pILn and zoning and other land use ordinances relate to regional plans. In surd, the eighth edition of the Model City Charter seeks to promote the values of local self - Governance, centralization, representative democracy, responsible professionalism —the bedrock value-. of reform —along with political leadership (or executive democracy in mayor -council cities), representa_iveness, citizen participation, and regional integration. Each of these values is important and }-as adherents who might claim that one should be given precedence of the others. Over the course of its revision the Model City Charter has incorporated an expanding range of values and provided for balance among them. Political leadership by the mayor should not undermine representative democracy. Citizen participation should not undermine representative democracy and the respor_sibility of all elected officials for setting the course of government. Changes to strengthen political leadership and representativeness should not infringe on responsible professionalism. The smocthing out of the governmental process through centralization and clear assignment of authority should net preclude effective citizen participation and neither should citizen participation lead to a fragmentation of governmental authority. The effort to promote the integration of a single city with its urban region does not mean the abandonment of local self -governance. Indeed, increased cooperation can contribute to the redefinition of "local" and "self -governance" in a world of blurring boundaries. With a wider range of values to consider, the challenge of preventing contradictions among them incr ases, but the Model Charter offers guidance in doing so. The eighth edition is the current statement about what values are important in local government and how to promote them in a balanced, mutually reinforcing way. James H. Svara Jatr_es H. Svara is Head of the Department of Political Science and Public Administration at North Carilina State University and served as a member of the Model City Charter Revision Committee tha_ developed the Eighth Edition. ' In mavcr-council cities, the dominant value continued to be "executive democracy," i.e., a reliance on the elected chief exe,utive to be the primary force in policy -making. 72 CITIZEN -BASED GOVERNMENT: A PROCESS TO ENGAGE CITIZENS IN CHARTER REVISION In simpler times, when it became apparent that the city charter needed attention, whether a quick maintenance check or a major overhaul, the mayor or city council would turn to the small group of steadfast civic leaders that had the time and inclination to take part in a charter commission. This group was pretty recognizable to the community. They were the acknowledged community leaders that willingly and regularly stepped into the public space to make decisions on citizens' behalf. More re-cently, jurisdictions have begun to hold public meetings to apprise citizens of proposed changes developed by charter commissions. While some of these efforts genuinely seek citizen feedbac, more often they are perfunctory gatherings for telling citizens what has already been decided_ However, the emerging challenges confronting our communities call into question the adequacy of these methods for revising city charters. The latest edition of the Model City Charter ref ects the importance of citizen participation in the governance of communities, including involvement in the revision of a city's charter. The increasing diversity of communities across the country the impact of civic infrastructure on collective governance capacity, and the need for citizen education and buy -in for the charter reform process to be successful make citizen participation in charter revision essential. Df-,ersz'y W_th oir cities and towns becoming increasingly diverse, ensuring that government is of the people, by the people and for the people is becoming more problematic. Today, the challenge for many jurisdictions across the country is to reform government structure and practice in a manner that relects the needs and aspirations of everyone in the community. This is best accomplished by involving as broad a cross-section of the people and perspectives in a community as possible. Cvic T_�zfrastructure Over fie last several years, a growing body of research has documented a decline in citizen trust and participation in formal and informal political and governmental activities. To some, these findings indicate that citizens just don't care about public life the way they used to. But a deeper and more plausible analysis is that citizens don't believe that their participation in politics and government will result in significant changes. They don't think they have any power within the systerri as currently configured and therefore opt to focus their energies elsewhere. Perfunctory tcwn 'nail meetings that communicate to citizens an already developed set of ideas or policies exemplify the kind of approach that drives citizens away from public life. City leaders must develop methods for enhancing meaningful citizen involvement. Perhaps the most fundamental way to do this is to involve citizens in structuring the government that is closest to them. Citizen Education Many people simply don't know how government works. They aren't aware of the opportunities twat a~e available to citizens to impact a policy or problem in their community or they don't have the confidence to navigate what can appear to be a very complex system. Direct involvement in reforming government not only helps to create a governing structure that reflects citizens' needs, it also educates them about the manner in which government works and prepares the way for future participation. 73 Citizen Buy -In There are countless examples in which well -conceived changes to a city charter make their way onto the ballot only to be rejected by the voters. In some cases this occurs because citizens simply don't understand the need for or the potential impact of the change and therefore vote against it. Another obstacle arises when a small but well -organized interest group mounts a campaign against a proposed revision. While their opinions may not accurately reflect the sensibility of most citizens, such groups can often develop and deliver a message that prevents passage of the proposed reform. In both cases, the missing element is a deeper understanding among citizens of the importance of the revision. It's not enough to invest in radio and TV ads or rely on a few op-ed articles to inform people about the issue. The best chance of getting charter changes accepted is to involve many people in the discussion, develop reforms that reflect their ideas, and educate participants throughout the process about the deeper impact of the proposed changes. In this manner, support for charter revisions is developed over the course of the revision process and the chances that special interest groups can derail the proposed reforms are held in check. In the following pages, a new model for revising a city charter is proposed. This model is based on the notion that citizens have both the right and the ability to be integrally involved in shaping the structure of their local government. Specific process steps for developing a citizen -owned charter revision effort are advanced and examples of successful reform efforts are detailed. Citizen Engagement in Charter Revision i A credible citizen engagement process for charter revision contains three basic stages: an initiating stage, a citizen engagement stage, and an enactment stage. The initiating stage focuses on the design of the process for charter revision. It is usually driven by a steering committee and focuses on the process, not the content, of the charter revision. The citizen engagement stage brings together a diverse group of citizens to analyze the current charter and make recommendations for change. The enactment stage focuses on the formal electoral process used to pass charter revisions. As this process may differ in each community, it is not discussed in great detail here. Initiating- Stage This first step in designing a city charter reform process is to review the existing regulations governing charter revision. This should occur before the steering committee is formed because, in many instances, the mayor or council is required to appoint a commission to revise the charter. The process for selecting a commission should be designed to ensure significant citizen involvement. As in any community engagement effort, a citizen -based charter revision process will require a steering committee of 15 to 20 people that represents the diverse interests of the community. The composition -if the steering committee should be guided by the need to represent three important perspectives. The committee should include both some of the traditional leaders of the community and some of the emerging voices. As the charter is the blueprint for the city government, it is important that the committee include key experts who possess practical knowledge about how local government functions. Citizen representation that reflects community diversity in terms of ethnic composition, gender, age, income level, and other key characteristics is also an essential component for ensuring a balanced deliberative process. The steering committee is not responsible for developing the content of the proposed changes. Its charge is to facilitate the development of a credible citizen engagement process that will formulate recommendations for change. Specifically, this group will be responsible for the following tasks: Design the community engagement process. The steering committee is responsible for developing and refining a process that works best for their community. Considerations such as timeframe, local events, and customs will impact design of the citizen engagement stage. Recruit stakeholders to participate. In order to develop recommendations for change that reflect the ideas of many citizens, it is critical to invite people of various interests and perspectives to participate in the analysis of the existing charter. It is recommended that the steering committee involve one hundred to one hundred fifty stakeholders to meet on a regular basis over the course of three to six months to analyze the charter and develop recommendations for change. Conduct outreach to the broader community. In addition to involving a core group of stakeholders in the revising the charter, the steering committee must develop methods to reach out to the broader community. Mechanisms such as neighborhood -based meetings, town hall meetings, radio, TV, newspaper and speakers bureaus can assist in educating the general public about potential changes to the charter and gathering additional feedback. Provide staff to manage the process. Projects that bring many people together to deliberate over important community issues require significant staff support to ensure success. At a minimum, a half-time staff position will be required. Additionally, the steering committee may consider utilizing a professional facilitator to assist in the design and implementation of the citizen engagement phase of the project. Recruit technical experts who will support the process. A charter reform process requires technical assistance and advice in a number of areas such as municipal law, municipal finance, electoral process, and governmental structure and accountability. Additionally, the reform effort may require research into the experiences of other cities as a way of providing citizens with examples of possible reforms and their potential impact on government structure and performance. Address and manage logistics such as meeting sites and food. Meeting sites must be selected that encourage strong and equal participation. Issues such as transportation and childcare should be taken into consideration and food should be provided to ensure attendance. Citizen EnRapement Stage After the foundation for the project has been laid through the efforts of the steering committee in the Initiating Stage, one hundred to one hundred and fifty stakeholders will meet over the course of three to six months to analyze the charter and develop recommendations for change. We suggest that stakeholders meet approximately every three weeks to conduct the work of charter revision. The steps of this process are discussed below. A. Review current charter (one to two meetings) Before citizens can begin to assess the strengths and weakl;esses of the charter, they need to have a clear understanding of its current configuration. A summary document of the current charter should 75 be developed for stakeholder use, and educational presentations need to be developed to inform stakeholders how particular government structures affect the practice and conduct of governmental affairs in their city. This will lay the groundwork for informed decision -making in the latter stages of the process. B. Creating a shared vision for local government (one to two meetings) Successful citizen engagement projects often start with agreement on the shared values and overall vision that drive the project. Creating a shared vision of local government will allow participants to find agreement on the broad goals for the project and provide a framework for the meetings that follow. It can also serve as "the glue" of the project when disagreements arise and consensus seems hard to reach. An exercise to develop a shared vision for government could be catalyzed by set of simple questions such as "What should government be about? What should it do? If our local government was working at an optimal level, what would it be doing? What would it look like? C. Identify key areas to address (one to two meetings) After stakeholders have had some education on the current charter and developed a vision for the kind of government they would like to see, discussions can begin about the areas of government structure and the charter that need attention. Presumably the existing charter is not going to be discarded in its entirety. (For communities that are creating their first charter, recourse to the eighth edition of the Model City Charter is strongly recommended.) The steering committee, especially those members who are key experts in one or another area of government structure, should help the stakeholders frame this discussion. At this juncture, these key areas do not have to very specific. They will be further defined and analyzed later on. Key areas could include composition of the city council, power of the mayor, role of the city manager or chief administrative officer, municipal finance, and redistricting among others. Another important task in determining the key areas for charter revision is to develop some way of prioritizing the areas in which stakeholders want to make reforms. It may be that stakeholders develop a long list of possible changes that can't all be explored at the same time. It is therefore necessary to develop an agreed -upon set of criteria such as significance, legal feasibility, and political viability to rank the areas in order of importance. D. Evaluating key areas of the charter (8 to 12 meetings) After an agreed -upon set of key areas have been developed, the steering committee will need to consider two process options as they continue to guide the charter revision project. Both of these options have their strengths and weaknesses. Option 1 One possibility is to keep the original stakeholder group intact as an ongoing body to analyze each of the key areas for charter revision. This option allows for continuity and stronger citizen education in all aspects of the charter under consideration. Its drawbacks are that it relies heavily on technical experts to fill in the gaps that will undoubtedly emerge as citizens attempt to assess an incredible amount of material. Furthermore, this approach requires a sequential, one -at -a -time assessment of the key areas and will likely take many months. ... -...... ... .....J Option 2 The second option is to break the stakeholder group up into work groups around each of the key areas. Work groups of 15 to 30 people meet every two weeks to analyze their key area and develop charter revision recommendations. This approach ensures deeper citizen analysis of each key area. It creates the opportunity for additional citizen involvement as the work groups can recruit other citizens to join a work group. And it allows each key area to be analyzed concurrently and thus avoids an extremely lengthy citizen engagement process. The challenges are that it requires additional facilitative expertise (to guide each of the work groups), it requires additional efforts to ensure overlap between the work groups is synthesized, and it necessitates the identification and involvement of technical experts in each of the key area work groups. Issues such as the number of key areas, the complexity of the issues to be addressed, the enthusiasm/attendance of citizens to this point in the process, the timeline and resources available should all be taken into consideration when making the decision about the best process option. Option 2 is the more thorough of the two approaches, and the description of the process design below is based on this choice. But the steps described can easily be adapted to suit Option 1 as well. A. Structure work groups for charter revision Strong leadership and guidance is required for each work group to ensure that sound and credible recommendations for charter revision are developed. It is likely that each work group will need a chairperson(s) to manage the development of their recommendations. This person must be viewed as a respected community leader who has the ability to rise above the fray to solve disputes and keep the group focused on its goals. If process facilitators cannot be identified to work with each work group, then the chair must also possess strong facilitative and group process skills. In addition to strong leadership, each work group will require technical support in their key area. The technical expert(s) should be a resource for the specific key area the work group has undertaken. This person(s) should possess strong research and writing skills. As citizens break into work groups of their choice, it is likely that key individuals and perspectives will be absent. It is therefore necessary to identify and invite key individuals that can bring additional knowledge and perspective to the work group. It is critical that the chairperson ensure that a Work Group is balanced and is not dominated by one interest group. B. Education — what is the current status? Before deliberations can begin, each work group will need well -presented information about the current condition of their key area for charter revision. This information should include a thorough description of the current design and structure, the legal parameters of this structure, the impact of this structure on government practices and on the overall quality of life of the community, and examples of structures from other cities and towns. This presentation will be used as a springboard into the assessment of the key area. C. Analyze the key area Early discussions should focus on identifying the key issues and problems within the scope of the work group. It is important to first guide participants to agreement on what the problems and challenges are before they begin to move into solving the problems. From these discussions, the 77 work group should emerge with a set of clearly identified and agreed -upon issues for further analysis. D. Draft option memos Technical experts play a critical role during this phase in the process. Most citizens are not aware of alternatives to the current element under scrutiny and require additional information and education from technical experts. Based on the early deliberations of the work group and the issues and challenges they have identified, the technical experts will draft option memos for work group consideration. Option memos are documents that present a series of alternatives for revision of the charter. An option memo presents alternatives for charter revision on a particular topic and describes the potential impact of each option, with supplementary material from case study examples from other cities and towns, if available. E. Select options It may take a few meetings for the each work group to come to agreement on the options that they want to propose to the stakeholder group. But with three to four clear alternatives presented in the option memos, the work group should be able to stay focused on the issues and their potential solutions. Leadership by the chairperson(s) during these discussions is crucial because disagreements will emerge during these discussions. The chairperson must ensure balanced participation from the entire group as he/she leads them towards the development of a viable set of revisions. F. Propose changes to the stakeholder group Up until this point, all of the deeper analysis of key areas for charter change has occurred in separate work groups. Before final agreement can be reached, it will be necessary to bring the recommended changes from each work group back to the entire stakeholder group to review the proposed changes. It is possible that some of the work groups have overlapped in their assessment of the charter or have analyzed interdependent aspects of the city charter. In one to two meetings, stakeholders will go through all of the proposed changes, identify areas of overlap, ask questions of clarification and come to agreement on a final set of recommended revisions for the charter. Careful attention must be given to the agreed -upon language as it has significant impact in the final drafting for charter change. An additional but worthwhile activity during this step in the process is to have the stakeholder group recall the shared vision of government that they developed early on and ask them if the proposed changes to the charter reflect that vision. G. Draft charter revision Technical experts and staff will incorporate any changes brought about during the presentation to the stakeholder group. It is possible that one additional work group meeting for a particular area is required to ensure that any changes made reflect the opinions and ideas of the work group. Staff and technical experts will then begin the process of adapting the recommendations into the language and format used in the charter. H. Present charter language to the stakeholder group As a final check to guarantee clear communication of and support for the charter revisions, the charter language should be brought back to the stakeholder group for final approval. Since the final revisions will be expressed in a different form than the proposals of the work groups, participants 8 should have the chance to consider the actual language that is being proposed. This extra step should forestall any perception that the steering committee or technical experts might have dismissed the work of citizens and will ensure strong support for the changes when the measure reaches the ballot. Enactment Stage Once the appropriate language has been drafted for the proposed reforms and the stakeholder group has signed off on them, the next step involves a fonnal electoral process to pass the charter revisions. This process differs across communities and it is difficult to prescribe best practices for it. However, it is important that the method for getting the changes to the electorate is decided well before the final version of the charter recommendations is drafted. Enactment is a vital part of the process and the choices and time Iines for doing so should be kept in mind throughout the process. The best -case scenario is that revisions are drafted in time for an upcoming election. This allows the steering committee to build upon the momentum of the citizen engagement process and rely upon the knowledge of participating citizens to help them create support within the broader community. Following are two examples of recent charter revision processes that may be useful guides to this process. Charter Revision in Alachua County, Florida i Alachua County, Florida, recently revised its charter to obtain home rule authority. Alachua County provides a good example of a charter revision that was citizen based but which received critical support from the local government. The citizens of Alachua County were concerned about the growing influence of money in local politics, but Alachua County lacked laws or the ability to create laws governing campaign finance reform. In December 2000, approximately a dozen citizens gathered together and formed Alachua County Citizens for Campaign Reform (ACCCR). The top three concerns of ACCCR were (1) the amount of money being raised and spent by the candidates, (2) the difficulty in determining who was giving money to which ca.ndidatPs, and (3) the loopholes in state law that permitted, if not ensured, that contributions did not have to be disclosed prior to elections. ACCCR decided that its first step would be to try to get home rule authority that would give the citizens of Alachua County regulatory power over campaign finance for their elections. A law professor specializing in Florida constitutional law, and a member of ACCCR, wrote the language of the home rule authority bill that was submitted to the local legislative delegation. ACCCR realized from the beginning that it would require overwhelming public pressure to get the legislative delegation to introduce the bill at the legislature. To that end, it began an intensive campaign by writing letters to newspaper editors and legislators, sponsoring a public forum on the topic, and pursuing radio and TV interviews/coverage, press coverage, and literature drops. ACCCR also decided that another way to induce the legislators to act was to show actual voter support for local campaign finance regulation, so it laced a nonbinding referendum straw poll)on ' pp p� g p g ( the ballot in an upcoming county election. _ i; J .j79 According to the law, getting this nonbinding referendum on the ballot required either 1) thousands of petition signatures or 2) action by the county commissioners. Ultimately, ACCCR was able to convince the county commissioners to place the referendum on the upcoming ballot. To aid in its efforts, ACCCR built coalitions with the Sierra Club, League of Women Voters, Common Cause Florida, and some other local groups (Sustainable Alachua County, Women for Wise Growth, etc). It sought support from the local political parties and unions with mixed success. It also received official endorsement from three individual local unions. ACCCR also held two public forums to educate citizens on the issue. The forums were taped for local radio broadcast and cable TV replay. Replaying these forums helped trecnctidously in ACCCR's efforts to reach the local county public and to raise awareness of and support for the issue. There was no organized opposition prior to the straw poll ballot. Once the results of the straw poll came in (68% in favor of local regulation) it became difficult for many groups to oppose the issue because of its overwhelming support. Some opposition materialized, however, prior to the binding referendum last November. Leaders of the local Democratic, Republican and Libertarian parties spoke publicly against it, as did some key local union representatives. But ACCCR had already gained wide public support and the endorsement of several individual local unions and, consequently, no formal opposition emerged on behalf of any organized group other than the Libertarian party. In November 2002, ACCCR succeeded in obtaining home -rule authority for campaign finance in Alachua County elections. Alachua County now has the power to adopt local campaign finance regulations, provided that the local regulations do not conflict with those of the state or court rulings. For more information on the requirements for charter revision in your city, town, or county, contact your local government. �� ���................J