Issues & Analyses: Review Of The Town Charter. The Concentration Of Power

Here are some of the Charter provisions that tend to concentrate power in the Town Council:

Section 2.1(a) – There shall be a Town Council consisting of 13 members which shall exercise the policy leadership and legislative powers of the Town. . .

Section 2.5 – Except as otherwise provided by the general laws or this Charter, all powers of the Town shall be vested in the Town Council as a whole, which shall provide for the performance of all duties and obligations imposed upon the Town by law.

Section 2.6 (a) – Except as otherwise provided by the general laws or by this Charter, the policy leadership and legislative powers of the Town Council may be exercised in a manner determined by the Town Council.

Section 2.6 (d) – The Town Council shall adopt rules regulating the procedures of the Town Council…

Section 2.6 (e) – The Town Council shall determine its own standing or ad hoc committees.

This is all very clear and was approved by Amherst voters. Gone are distinctions between executive and legislative branches; gone are separation and balances of power; gone are built-in checks which intend that each branch of government be able to check the concentration of power in any other branch and be subject itself to similar checks by other branches of government. 

There are really no other branches of government. The Charter pretends that there is an independent executive branch (Town Hall) but that is a fiction. Town Hall has no capacity to act independently of the Town Council; it cannot check Town Council actions. Policy leadership, which customarily resides in an executive branch, now is the preview of the legislature.

We are at a curious moment in terms of policy leadership. The majority of councillors, who once insisted on this council prerogative, now seem eager to give it to — or at least share it with — the Town Manager. The Town Manager, on the other hand, who once fought hard for a significant voice in setting town policy, now says that he will work only on the high priority goals that the council specifies. 

There is no mystery as to why this turnabout is occurring. The council has changed. The first Council had a substantial majority of members who had committed to the goals of Amherst Forward and its vision of an urbanized Amherst. The second council is more diverse and less predictable. So are Amherst residents, who have become more active and more insistent about town government and its commitment to our diverse resident communities. We are a town in the middle of rethinking itself. We recognize that a large number of residents are here temporarily and are largely indifferent to our politics except when they are personally and directly affected. Relatively few registered voters are energized by town issues. That means that our government is influenced largely by those who are so energized and who form PACs, create committees, and attend meetings. In a very real sense, policy leadership has been taken out of the hands of Town Council, and the council  is nonplussed about how to deal with this.

One way to deal with it is to recognize it and embrace it. Article 2.6(a) provides an opportunity for this. Whether intended or not, that Article says that policy leadership may be exercised in a manner determined by Town Council. This does not say that Town Council shall determine the manner in which it exercises policy leadership. The Charter review process could amend this statement in any number of ways, by re-examining its policy relationships to standing committees like the Finance Committee and Planning Board, ad hoc resident committees, and other elected boards and committees. If Town Council were inclined to share policy leadership, it could most easily accomplish this by amending its Rules of Procedure, about which I shall talk in a future commentary. Rules of Procedure are authorized in Section 2.6(d) of the Charter but can be amended at any time. (They have been amended many times already, but this is mostly done out of the public eye.)

There is one last point to be made. Concentration of power is almost inevitable when the idea of “policy” is so vague and poorly defined. Policy may be made by motions that specifically state “it is the policy of the Town of Amherst…” but this happens rarely. Some people talk about policy when they really mean tradition. More often, policy accrues from the accumulation of decisions, each decision changing the ground on which future decisions are made.

A host of considerations determines whether a pending decision is a matter of policy or management. If you are on the Town Council and you want to deal with it, it is a matter of policy. If you don’t want to deal with it, it is a matter of management. It’s the reverse for the Town Manager, although he appears to be trying to make a substantial contribution to the distinction by announcing what he will and will not deal with. However, no decision is intrinsically policy or management, regardless of who makes it. Every decision is the implementation of a prior policy, just as it sets the policy for future decisions that look back to it.

I conclude that the Town Council could, under the terms of the Charter, share policy leadership and that its Rules of Procedure could be amended at any time to accomplish that.

In my next commentary in this series, I will look at what the Charter has to say about the Town Manager, especially his relationship with the Town Council since this has been on the table since the inception of this new form of governance and if one is concerned about the concentration of power this relationship is an obvious place to look.

Michael Greenebaum was Principal of Mark’s Meadow School from 1970 to 1991, and from 1974 taught Organization Studies in the Higher Education Center at the UMass School of Education.  He served in Town Meeting from 1992, was on the first Charter Commission in 1993, and served on several town committees including the Town Commercial Relations Committee and the Long Range Planning Committee.