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HomeMy WebLinkAboutUnit 3 – The Charter Form of Government The Montana State University Extension Service is an ADA/EO/AA/Veteran’s Preference Employer and Provider of Educational Outreach. LOCAL GOVERNMENT REVIEW STUDY COMMISSION GUIDE UNIT 3: THE CHARTER, A CHOOSE-YOUR-OWN-ADVENTURE FORM The Charter form is its own distinct and unique alternative form of government AND the written document needed to establish the Charter form of government. (For clarity’s sake, we’ll capitalize “Charter” when we’re talking about the form and use a lowercase “charter” when we’re talking about the written document.) Often described as an add-on to one of the other forms, it’s actually one of the six unique and distinct forms of local government in Montana and the only form that has the capacity to integrate chosen aspects of the other forms. Unlike the other five forms, it grants flexibility and freedom to choose how the executive and legislative branches of local government are structured and the roles and responsibilities of each. When it comes to the Charter form, things can get confusing. But it’s also one of the most interesting and flexible forms and trying to wade through some of the confusion is worthwhile to fully understand its elegance and potential. In this unit, we’ll investigate the aspects of the Charter form that make it so unique, consider its requirements, and explore common misconceptions about it. We’ll look at the Charter form in statute to understand what makes it the most unique of the six Forms of government and we’ll explore several criteria for adopting the Charter form. We’ve also included examples of current charters as well as several templates for creating the charter document. We should note that, even with the templates, creating a written charter document is a detailed and complicated process. Should your study commission decide to recommend Charter adoption in your final report and need to write one, the Local Government Center can help you navigate that process. Learning Objectives: 1. Be able to explain why and how the Charter form is unique and different from the other forms. 2. Understand the required elements of the Charter form. 3. Be able to compare and contrast the Charter with any of the other forms of government and highlight the key differences. 2 What Is a Charter? In Montana, a charter is the local government equivalent of a state or national constitution although subordinate to both. It’s a voter-approved, written plan of government that must include: • An elected legislative body • An elected or appointed chief-executive officer or officers o Term of office if elected or at the pleasure of the governing body if appointed • Powers and duties of the chief executive • Grounds for removal from office • Could provide for a plural executive drawn from the legislative body A charter defines a local government’s: • Powers • Duties • Rights • Structures • Privileges • Limitations A charter may specify: • Any additional officers, departments, boards, commissions, agencies as desired • Any limitations or prohibitions on the governing body’s exercise of self-governing powers • Other provisions if they are not contrary to the constitution or law A charter may not include any provisions that: • Conflict with state law establishing prohibitions or limitations on the powers of self-governing units of local government • Establish elections, initiatives, or referendum procedures • Establish or modify local court systems • Establish restrictions or limitations on land use, taxation, alter the rate or standard set by a state agency, restrict civil or private relationships/contracts, or penalize vagrancy, for example (7-1- 111, MCA). Charters may only be amended with voter approval, as required by state law. 3 What Does a Charter Do? A charter enables citizens to develop their own locally devised and approved instrument of self- government. This basic definition holds your first clue to what makes the Charter form unique: A local government that adopts the form, with voter approval, can write their own plan of government. The previous sentence may not sound exciting, but it is. Think about that for a moment. A local government’s ability to write its own plan of government is something that exists nowhere else in any other context in the laws of this state. None of the other forms of government allow the flexibility and adaptability accessible through the Charter form. The Charter form alone provides this potential, which is why it’s both exciting and complicated. It can unlock a great deal of potential to modify a local government’s plan to best serve present and future community needs. But knowing enough about the details of each of the forms to identify the most successful combinations of executive and legislative roles and responsibilities and having the ability to clearly communicate them is no simple task. The complexity of this process is one of the main reasons why, when communities adopt a charter, they often incorporate the structure of one of the other forms of government into their new charter rather than come up with new permutations for the structure of their Charter. In addition, the Charter form is often viewed with suspicion as a means of enhancing governmental control and authority rather than as a way for communities to take greater ownership over and responsibility for the health and wellbeing of their local governments and communities. But let’s look more closely at the Charter form to put all this in context. You’ve no doubt heard the saying, “the world is your oyster.” When it comes to the forms of government in the state of Montana, the Charter form is your oyster. It’s the most generous, flexible, and responsive of the forms. The 1972 Constitution mandated that the state legislature provide procedures permitting a local government to “frame, adopt, amend, revise or abandon a self-government charter with the approval of a majority of those voting on the question” (section 5 of Article XI). The intent was to offer citizens and units of local government a mechanism to define for themselves what form and plan of government best suits and serves them now and in the future. The 1975 Legislature responded to the Constitution’s mandate, incorporating the Charter form state law and enabling Montanans to devise any arrangement of local governmental structures and functions they might choose so long as the charter provisions do not violate our federal or state constitution or state laws. 4 What’s Unique About the Charter Form? The Charter is the only form that differs from the basic model followed by the other forms, all of which have structural suboptions they can select to modify the plan. But the Charter form is inherently different. It does not have a statutory default plan. And unlike the other forms, which designate a specific relationship between the executive and legislative branches, the Charter form was specifically designed to leave that relationship unspecified so that a unit of local government, with voter approval, can choose the options that best serve their community. Let’s take a look at a side-by-side comparison to help illustrate what we’re talking about. We’ll compare the plan of government for the Charter form with the statutory basis for the Commission-Executive form. Read through this comparison and keep track of the differences you notice. Then watch the video below for an explanation of the major differences. Commission-Executive Form 7-3-201 through 7-3-224 Charter Form 7-3-701 through 7-3-709 7-3-201. Commission-executive form The commission-executive form (which may be called the council-executive, the council-mayor, or the commission-mayor form) consists of an elected commission (which may be referred to as the council) and one elected executive (who may be referred to as the mayor) who is elected at large.  7-3-701. Charter form 1. The purpose of this part is to comply with Article XI, section 5(1), of the Montana constitution, which provides: "The legislature shall provide procedures permitting a local government unit or combination of units to frame, adopt, amend, revise, or abandon a self- government charter with the approval of a majority of those voting on the question. The procedures shall not require approval of a charter by a legislative body."  2. Charter provisions establishing executive, legislative, and administrative structure and organization are superior to statutory provisions.  7-3-202. Nature of government The plan of government submitted to the qualified electors shall determine the powers of the local government unit by authorizing:  1. general government powers; or  2. self-government powers.  7-3-702. Nature of government A charter form of government shall possess self- government powers.  7-3-203. Duties of executive. The executive shall:  1. enforce laws, ordinances, and resolutions;  2. perform duties required by law, ordinance, or resolution;  3. administer affairs of the local government;  7-3-703. Charter required 1. Charter form of government shall be established by a charter which is a written document defining the powers, structures, privileges, rights, and duties of the unit of local government and limitations thereon.  5 4. carry out policies established by the commission;  5. recommend measures to the commission;  6. report to the commission on the affairs and financial condition of the local government;  7. execute bonds, notes, contracts, and written obligations of the commission, subject to the approval of the commission;  8. report to the commission as the commission may require;  9. attend commission meetings and may take part in discussions;  10. execute the budget adopted by the commission; and  11. appoint, with the consent of the commission, all members of boards, except the executive may appoint without the consent of the commission temporary advisory committees established by the executive.  2. The enumeration of powers in a charter shall not be construed as a limitation or prohibition on the residual or self-governing powers granted by the constitution.  7-3-211. Structural suboptions The plan of government submitted to the qualified electors shall further define the structural characteristics of the form by including one item from each of the choices listed in 7-3-212 through 7-3-224.  7-3-704. Legislative body 1. The charter shall provide for an elected legislative body (called a commission or council) or shall provide for a legislative body comprised of all qualified electors. For elected legislative bodies, the charter shall specify the number of members thereof, their term of office, election on a partisan or nonpartisan basis, the grounds for their removal, and the method for filling vacancies.  2. The charter shall provide for the nomination and election of commissions:  a. at large;  b. by districts in which candidates must reside and which are apportioned by population;  c. by a combination of districts, in which candidates must reside and which are apportioned by population, and at large; or  d. elected at large and nominated by a plan of nomination that may not preclude the possibility of the majority of the electors nominating candidates for the majority of the seats on the commission from persons 6 residing in the district or districts where the majority of the electors reside.  7-3-212. Administrative assistants The executive:  1. shall appoint one or more administrative assistants to assist in the supervision and operation of the local government, and the administrative assistants are answerable solely to the executive; or  2. may appoint one or more administrative assistants to assist in the supervision and operation of the local government, and the administrative assistants are answerable solely to the executive.  7-3-705. Officials and personnel 1. The charter must specify which official of the local government will be the chief administrative and executive officer, the method of the officer's selection, the term of office (except that it may be at the pleasure of the selecting authority if the officer is not elected by popular vote), the grounds for the officer's removal, and the officer's powers and duties. However, the charter may allocate the chief executive and the chief administrative functions among two or more officials specified as provided in this section, or the charter may provide that chief executive and administrative functions of the local government will be performed by one or more members of the legislative body.  2. A charter form of government must have the officers, departments, boards, commissions, and agencies that are established in the charter, by local ordinance, or required by state law.  7-3-213. Supervision of personnel The executive may:  1. appoint and remove all employees of the local government;  2. appoint and remove, with the consent of a majority of the commission, all employees of the local government;  3. appoint, with the consent of a majority of the commission, all department heads and remove department heads and may appoint and remove all other department employees; or  4. appoint and remove, with the consent of a majority of the commission, all department heads and appoint and remove all other employees of the local government.  7-3-706. Effective date The charter shall specify the date on which the charter will take effect, except that provisions may be made for temporary partial effectiveness consistent with an orderly transition of government.  7-3-214. Veto power The executive may:  7-3-707. Other charter provisions 1. The charter may establish other legislative, administrative, and organizational structures.  7 1. veto ordinances and resolutions, subject to override by a majority plus one of the whole number of the commission;  2. veto ordinances and resolutions, subject to override by a two-thirds vote of the commission; or  3. sign all ordinances and resolutions with no veto power.  2. The charter may contain prohibitions on the exercise of power by a unit of local government.  3. The charter may include such provisions as may be necessary to permit an orderly transition to the new form of government.  4. The listing of charter provisions in this part shall not be construed to prevent the inclusion of additional provisions in charters.  7-3-215. Preparation of budget The executive may:  1. prepare the budget and present it to the commission for adoption; or  2. prepare the budget in consultation with the commission and department heads.  7-3-708. Limitations on charter provisions 1. Charter provisions may not conflict with the provisions of part 1, chapter 1, which establish statutory limitations on the powers of self-government units.  2. Charter forms are subject to state laws establishing election, initiative, and referendum procedures; and charters shall not contain provisions establishing election, initiative, and referendum procedures.  3. The charter shall not contain provisions establishing or modifying local court systems. 7-3-216. Administrative supervision and control The executive may:  1. exercise control and supervision of the administration of all departments and boards; or  2. exercise control and supervision of all departments and boards to the degree authorized by ordinance of the commission.  7-3-709. Amendment of charter A charter may be amended only as provided by state law.  7-3-217. Financial officer A financial officer (who may be called the treasurer):  1. shall be elected;  2. shall be appointed by the executive with the consent of the council;  3. shall be selected as provided by ordinance; or  4. may, at the discretion of the commission, be selected as provided by ordinance.  7-3-218. Selection of commission members The commission shall be:  8 1. elected at large;  2. elected by districts in which candidates must reside and which are apportioned by population;  3. elected at large and nominated by a plan of nomination that may not preclude the possibility of the majority of the electors nominating candidates for the majority of the seats on the commission from persons residing in the district or districts where the majority of the electors reside; or  4. elected by any combination of districts, in which candidates must reside and which are apportioned by population, and at large.  7-3-219. Type of election Local government elections shall be conducted on a:  1. partisan basis; or  2. nonpartisan basis.  7-3-220. Presiding officer of commission — selection The commission must have a presiding officer who must be:  1. elected by the members of the commission from their own number for a term established by ordinance; or  2. selected as provided by ordinance.  7-3-221. Presiding officer of commission — voting The presiding officer of the commission:  1. may vote as other members of the commission;  2. is the executive, who may vote as the commissioners;  3. is the executive, who shall decide all tie votes of the commission but may not have another vote (the presiding officer of the commission shall preside if the executive is absent); or  4. is the executive but may not vote.  7-3-222. Terms of commission members  Commission members shall be elected for:  1. concurrent terms of office; or  2. overlapping terms of office.  7-3-223. Size of commission and community councils 9 The size of the commission, which shall be a number not less than three, shall be established when the form is adopted by the voters, and:  1. community councils of at least three members shall be elected within each district to advise the commissioner from that district. Local governments conducting elections at large shall district according to population for the purpose of electing community councils; or  2. community councils to advise commissioners may be authorized by ordinance.  7-3-224. Terms of elected officials The term of office of elected officials may not exceed 4 years and shall be established when the form is adopted by the voters.  10 Limitations on Expanded Governing Powers One of the most important characteristics and advantages of the Charter is its ability to include specific constraints on a local government’s governing authority because self-governing powers are gained automatically at Charter adoption. A charter can and should reflect any limitations thought to be necessary by a community wishing to gain the inherent flexibility of self-governing powers. Communities wishing to acquire a greater degree of local flexibility by acquiring self-governing powers without the benefit of a charter would be unable to impose any local limitations on the governing powers of their municipal or county government. It is important to consider if any limitations on these expanded governing powers need to be specified in the local charter. While most charters include no limitations, many do. The most common limitation is imposed on the taxing authority of the local government. Even though the legislature has, since the adoption of the 1972 Montana Constitution, increasingly limited the taxing authority of local governments, a number of charters have included additional taxing limitations such as: specific property tax mill levy limits (Billings); limiting taxation authority to that of general powers local governments, ( i.e. those local government units without self-government powers); or requiring voter approval of any new taxes (Anaconda-Deer Lodge). (To clarify, the only changes to taxation a Charter can implement are to add additional restrictions. As mentioned in the previous unit, no part of the Voter Review process has legal authority to change tax laws.) Even if a community finds no reason to impose limitations on their local government when the Charter is adopted, having a voter approved charter permits the incorporation of any future limitations thought necessary by means of a voter approved amendment. 11 Advantages of the Charter Form As we’ve mentioned, the adoption of a Charter creates a statutorily defined alternative form of local government even though the structural characteristics of that government set forth in the charter may simply replicate any one of the other five familiar forms. On a practical level, the charter’s flexibility to define the roles, powers, and responsibilities of the executive and legislative branches is one of its primary advantages and can bring greater clarity and prevent uncertainty and conflict in the roles and working relationships of the local government officials. Let’s be honest. The general statutes that define the roles, responsibilities, and relationships between the commission, the chief executive, and various departments are often ambiguous at best and frequently downright opaque. Without the clarity that comes from the ability to define those roles, local government officials are left to their own devices when trying to interpret their own statutorily defined roles and responsibilities and the appropriate relationship between the legislative and executive branches. The potential for uncertainty and conflict is high. And, as we saw in Unit 2, uncertainty and conflict can stymie the effective workings of local government faster than almost anything else. Rather than having to rely on the vague and ambiguous definitions of various roles and responsibilities, a charter’s capacity to create clear definitions and expectations can also make it a useful tool for educating new and experienced elected officials and community members about appropriate expectations and responsibilities for officials in those roles. 12 Setting Limits on the Charter Form It's important to consider not only the possibilities of the Charter form, but also what limitations may need to be specified on the expanded governing powers. This ability to impose local limitations on a municipality or county’s governing powers is unique to the Charter form. The charter’s potential for locally determined possibilities and limitations are both advantages in different ways. As long as the charter does not include provisions prohibited by the state constitution, laws, or the charter itself, does not conflict with statutory prohibitions or limitations on self-governing powers, does not meddle with election, initiative, or referendum procedures, or attempt to establish or modify the local court system, a charter’s provisions can offer a tremendous amount of flexibility, limited only by the imaginations of those writing the charter. 13 The Future-Oriented Charter One of the most distinct advantages of the Charter is its inherent future-oriented capabilities. Think about the flexibility to broaden or limit powers in response to future unknown developments in the community or region. But, as with most aspects of the Charter form, this feature is also one of its complexities. We can’t predict the future and, while we can prepare for a variety of contingencies, there’s no way to know exactly what a community will need 30 years, 50 years, even 100 years into the future. The Charter form is no crystal ball, but it does offer mobility and flexibility to adapt to change that can serve a community well in the face of future unknowns. Consider an example from the city of Helena. In 2002, the city of Helena instituted a city-wide ban on smoking in all public buildings. The ban was contested in a round of legal battles. But in 2004, the state supreme court upheld the city’s ban. The court’s rationale explained that Helena’s self-governing powers, adopted in the first Voter Review cycle, permit a local government to exercise any power not prohibited by the legislature. Smoking bans were not explicitly prohibited, and the court’s ruling acknowledged the city’s right to implement the ban. The citizens of Helena took an active role in the first review process and voted for self-governing powers. Forty years later, that change gave the city’s government flexibility to respond to an issue of growing concern for many citizens. In fact, so many communities followed Helena’s example, that the state legislature codified the Montana Clean Indoor Air Act in 2005. This example illustrates the potential of the entire Local Government Review—grassroots governance; opportunities for local government leadership to influence state government; and lively multidirectional responsiveness at local and state levels to the needs of Montana’s communities. But potential benefits from the Charter form aren’t always theoretical, future possibilities. Concrete, practical, and more immediate benefits are also possible. Several innovative municipalities (mostly larger, city manager cities) with self-governing powers derived from their charters, successfully implemented services on behalf of their citizens made possible by the greater governing flexibility bestowed by their charters. For example: Billings expanded its solid waste service area; Great Falls gained greater authority to dispose of public lands; Helena and Billings implemented local development fees; Anaconda-Deer Lodge altered its organizational structure; Libby, Troy, and Saco provide an additional utility service not previously authorized by the legislature; and the Attorney General decided that Butte-Silver Bow could lawfully acquire and operate electric and natural gas utilities within and outside the boundaries of its jurisdiction. 14 Unit Conclusion With the powers, forms, and plans of government under your belt, we can move into the practical application of this information in your role as study commissioners. In the next unit, we’ll demystify the process of researching, evaluating, and comparing your unit of local government that you’ll engage in as you perform your study commission mandate. We’ll move from the theoretical to the practical and suggest several methods of approach for evaluating your local government.