Issues & Analyses: There Is Much Room For Improvement In Amherst’s Home Rule Charter
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Issues & Analyses: There Is Much Room For Improvement In Amherst’s Home Rule Charter
Editor’s note: The Amherst Home Rule Charter requires that the charter be reviewed in every year ending in a four. Michael Greenebaum notes that the procedures specified for reviewing and changing the charter are vague and sloppy so it is not entirely clear how improvements might be implemented. Greenebaum reasons that it is not too soon to start considering questions such as “What does the charter do well?” and “In what areas does it need to be improved?” and “How exactly could revisions be implemented, if that is what voters want to do?” While we wait for a new town council to figure out how they are going to fulfill the mandate for charter review, Greenebaum has suggested that Amherst voters could begin a discussion of the charter in the pages of the Indy, considering ways it works well and ways it doesn’t. They could offer suggestions for how it could be more effective, too. He further suggests that after this sharing of ideas a Special “Town Meeting” could be called for all interested residents to debate proposals for improving the charter and to vote on them. And that could provide the Town Council with valuable insight when they undertake their formal review in 2024. Greenbaum has since followed up this proposal with a couple of essays about things that need to be addressed in a review of the charter. Those essays can be read here and here.
Anita Sarro was the first person to take up Greenebaum’s invitation to reflect on the charter in the pages of the Indy. She has something to say about nearly every Article in it. Her reflections are below.
General Comments
1. Number of Council members. There are too few Council members – if the number were doubled, the workload could be distributed and also allow for more diverse membership. A council of 13, with ultimate authority to set policy and make significant decisions affecting the town, concentrates power in too few hands. Either each of the districts and at-large could elect twice the number of representatives or representatives could be elected from existing voting precincts.
2. Town Manager. Let’s call him what he is – an unelected Mayor. This position should be elected, responsive to political pressure, and not shielded by a friendly council. It’s foolish to pretend that Amherst is not a city, and it deserves a chief executive who is elected and accountable.
3. Community Engagement. There is little room in the current charter for meaningful community engagement. The appointment process for all committees (either controlled by the town manager or appointed by the council) is so ossified and subject to the biases of the appointer, it naturally leads to the debacle that affected John Varner [who applied to be on the Zoning Board of Appeals] and had the greater effect of discouraging participation. The appointment process should be overhauled – made not so severely structured, more interactive, more transparent, and open to ideas that are not exclusively those of the majority, to allow for more diverse voices and not just those that echo the point of view of the appointer. All positions on all committees should have full voting power. It is an insult to ask people to do the work but deprive them of the power to control the outcome as is the case, for example, with the Finance Committee which has three non-voting members.
4. Public comment periods appear to have little to no effect on the council’s consideration of town issues. It is a stilted process with no expectation that council members will respond or react to any comment. Council should be required to summarize the comments and provide some feedback in real time.
5. Council meetings must continue to be livestreamed and recorded. If state-level action is required to ensure that this becomes a permanent feature of town government, it should be pursued to ensure that the process remains transparent.
6. Council members should be required to disclose any unrecorded discussions between members outside of meetings – who was involved, what was discussed, how any resolution was reached. The same is true for discussions with the Town Manager, Police Department, and other town entities. There is an inescapable feeling that “backroom” discussions lead to some results or orchestrated procedural steps.
Article Specific Comments
Article 1. Definitions
1. Definition needed: most bylaws define “presence” – it is important when determining a quorum. It should define presence to include in-person or by electronic means, provided that full participation is possible. It would reflect the reality of meetings that have occurred the past two years.
2. Definition: Multiple-member body is an odd term and definition that includes “or other body” and “or otherwise constituted” is too vague to determine – perhaps an example or two of such a body would make this clear – if there are none that fit the definition of “or otherwise constituted” that phrase should be eliminated. It specifically exempts Town Council, School Committee, or Library Trustees.
3. Definition: Emergency. Who determines an emergency? What is the effect of an emergency being declared?
4. Definition: Quorum – this applies only to multiple-member bodies, so what is the quorum for Town Council, School Committee, or Library Trustees?
Article 2. Legislative Branch
2.1 (a) Composition, Term of Office, Eligibility. See General Comment #1 as to the size and distribution of council members.
2.1(b) Terms of 2 years should be limited to only two consecutive terms. Re-election should be permitted only if a minimum of 2 (or 4?) years have elapsed after a previous term of office has been served. This should apply to Library Trustees and the School Committee.
2.2(a) Election and Term of President and Vice President. There should be term limits on these positions to avoid power being concentrated in a few hands.
2.2(c) State of the Town. This does not specify a time period within each year – it should identify when, such as “during the month of February”
2.3(a) Holding other town positions. Town Council members should be prohibited from holding any compensated town position for a minimum of 2 years and no exception allowed by Town Council vote. Any shorter time period or exception raises the appearance of conflict of interest and colors the individual’s Council service.
2.4. Compensation. Not sure why compensation can’t be voted on in the last 6 months of a 2-year term. Also, there is no oversight of the Council decisions, except through the budgeting process. Can there be some community oversight of such decisions? It is difficult for working people, especially those with children, to participate. Can a fund be developed to provide stipends to pay for child care, elder care, or other expenses not uniformly experienced by all Council members? Peoples’ needs vary.
2.6(b) Quorum should be defined as a majority rather than “the presence of 7”. See comment on Article 1 suggesting that the term “presence” be defined.
2.6(c) Adoption of Measures – if there is any provision of the Charter that requires more than a majority vote, they should be cross-referenced here; any General Laws requiring more than a majority should be noted in a policy.
2.6(d)(ii) any rules governing public comment should be recited at the beginning of every public comment period and reviewed frequently to ensure adequate community participation. See also General Comment #4, above.
2.6(e) Standing or ad hoc committees. When establishing a committee, the Council should define, by a majority vote, the purpose of the committee, its term, its members, and the date on which it expects the committee to report back to Council.
2.7. District meetings. There should be a minimum of 4 per year. Shouldn’t the at-large Council members also be expected to convene meetings?
2.8. Investigations.
(a). Not sure why agencies under the jurisdiction of School Committee, Regional School Committee, or Library Trustees should be exempt from the ability of Town Council to request information.
(b) Applies only to multiple-member bodies with the requirement to appear. Why are agency representatives not required to appear?
(e) Why is the council restricting its ability to ask clarifying or expanding questions by prohibiting any questions not “relevant or related” to the original question? This opens the door to disputes about what is relevant. I understand there is a need to not give council permission to enter a fishing expedition, but perhaps qualifying to be “reasonably related”? Not sure that helps.
Darcy [DuMont] raised the question about council having direct access to requests for a legal opinion. If that is not happening now, it should be. There should be a mechanism to allow council to seek an independent legal opinion.
2.9 Appointments
(b) Additional Staff to be appointed, but there should be a requirement that the duties of such an appointee be defined.
2.10 Bylaws and Other Measures
(a) this suggests that anyone can introduce proposed bylaws “and other measures” not just Council members. A 14-day notice period is not sufficient time. Again, if the charter requires a supermajority vote for anything, it should be cross-referenced here.
(b) An emergency measure is determined by the council and only requires seven (assuming the Council remains at 13). This is a significant action and should be a super-majority to determine if an emergency exists. This states that the measure is “repealed” on the 61st day – but if the emergency circumstances continue, does this mean the process can be re-started?
(c) Right to Postpone – if nothing else happens, this provision must be repealed. It is offensive and should never have been part of the Charter. We need to see only one example of why it should be removed and never used again.
Section 2.11 Confirmation of Appointments
See General Comment #3.
Section 2.12 Filling of Vacancies
Why is the filling of a vacancy by a “roll call vote” – It is not clear whether this requires a majority or supermajority of the remaining Council members.
Section 2.13. Public Forums
Why are these limited to only the master plan and budget? Surely there are many other topics that would benefit from a Public Forum. What are the rules of conduct for a forum? How does this differ from the public comment periods? This needs some basic description to distinguish it from a comment period (if there is a difference)
Article 3. Executive Branch
3.1. Appointment. This is one decision that is so important that it warrants a super-majority vote. But see General Comment #2, above. What is the term of the town manager’s contract?
3.2 Powers. Note that subsection (u) requires the town manager to participate in 3 public forums each year, including school matters under 4.2.
3.3 Powers of appointment.
(a) appointments “based upon merit alone” – but Council has charged the manager with making appointments that take diversity into consideration. Suggest omitting “alone” from this requirement.
(c) I find the definition of “multiple member bodies” to be very confusing. Perhaps there could be a requirement to list all such bodies publicly and update as necessary.
(d) Community Participation Officer. How has this officer fulfilled the enumerated duties? Subsection (vi) requires that she “regularly submit reports.” This should be specified to be at least annually, and preferably by a certain date.
3.7 Temporary Town Manager. This is unclear as to when the appointment is made. Is a designation in place so that if an absence arises the temporary TM takes over, or is it expected that an appointment is made only if an absence or disability has arisen?
3.8 Removal of Town Manager. Again, this is a significant action – should it be taken only with a super-majority? Can residents call for such a vote? Can there be a petition?
3.9 Annual Review. This should stipulate that a review is done with respect to goals set for that year.
Article 5. Financial Policies
5.2. Shouldn’t the Budget Coordinating Group include at least one community member?
5.5 (b) Finance Committee. This committee must include members of the public who must have full voting rights. This is true for all town committees.
5.9 Exceptions to Time Requirements. This should not be solely at the discretion of the Town Council. There should be a requirement that there is a reasonable basis and that it be documented and voted upon.
Article 6. Administrative Organization.
6.2 Principles of Appointment. Who determines merit?
Article 7. Elections
7.1. What is the reason for voting on odd-numbered years? There would be greater participation if it was on even-numbered years when state-wide and national elections are held.
7.4 Districts. See General Comment 31, above.
7.6 Publication of Statements. Why are only written statements required? Shouldn’t there be at least one public forum or some other mechanism that allows in-person/zoom opportunity to interact with candidates?
Article 8. Public Participation Mechanisms
The differences between open meet petition, free petition, and initiative measures is not clear – why the distinctions?
8.1. Why should a petition require so many signatories? This requires 200 residents, but 8.2(b) requires 150 and 8.3 requires 250. Why the differences?
8.3 (f) form of question may not make any sense in some circumstances. Why does its form have to be with exactly these words? This should not be so proscriptive, but instead describe a process for how it will be approved so that its meaning is clear.
8.3(g) what happens if less than 20% of registered voters show up to vote? Does the measure fail?
Use of zoom for meetings is critical to public participation. This must continue.
Darcy [DuMont] mentioned Engage Amherst. I agree with her that this mechanism should be publicized and postings made publicly available.
Article 9. General Provisions
9.6 review of charter and 9.7 review of bylaws. Each can occur only every 10 years. That makes sense for a complete review, but shouldn’t there be a mechanism to make changes that are deemed necessary?
Anita Sarro is a nurse and retired healthcare attorney and longtime resident of Amherst.
I appreciate Anita Sarro’s important work. By reviewing charter provisions so acutely she has raised questions that should be helpful to whatever committee the Town Council appoints to recommend amendments to the charter. However, a word of caution is in order; the process of review precludes charter revision. For example, Ms Sarro’s ideas about council size and election of the town manager would be such fundamental changes that I am quite sure they would require public petitioning to put a question for a Charter Commission on the ballot, then voting to establish a commission, and then voting on a proposed new Charter. I would love to see that happen but it is a tremendous amount of work, takes a long time, and needs to be based on a high level of dissatisfaction with our current form of governance.
However, I think it is important that Ms Sarro’s ideas – and the ideas of others – be publicly discussed. There is no reason that such discussion be limited to the Town Council. The Council could establish a forum for such a discussion, but so could others. And the Indy provides an ideal forum for ideas to be presented and discussed.
And since I think it unlikely that the size of the Town Council and the manner of choosing a Town Manager will be considered under the Charter Review provision, I wonder whether Ms Sarro – and others – might think of other ways of accomplishing their intent. To that end I encourage them to consider the Rules of Procedure, found on the Town website, which are easily amended. The distinction between procedure and policy is slippery. Ms Sarro rightly notes the considerable power inherent in the position of Couoncil President. Some of this power is based on the Charter but some of it is procedural. Several of her other concerns might also be addressed in this manner.
Thank you for the feedback, Michael. I agree that expansion of the Council and the role of the Town Manager would take more than a mere review to accomplish, but is this not a time to reflect and discuss the fundamental flaws? The overwhelming concern underlying those and other comments I offered is the lack of real community engagement. Is it possible, in the course of the review, for instance, to abandon the notion of “associate” members of critical committees but instead give full voting power to those members? A voice cannot be heard without the power to vote on any measure. You suggest there are other concerns that might be addressed in the Rules of Procedure. I invite others to undertake that analysis. The more ideas contributing to this process, the better.
I would like to add to our town’s governance an ongoing digital education and survey, to make our community more aware of issues, and tap into the increased wisdom of the crowd. This could be connected to online payments of taxes, or water/sewer bills. When I worked at UMass there were similar tutorials and quizzes (ie: online security) that you’d need to pass to get online access for another year. When Amherst’s huge decisions are made by such tiny parts of our population, we may be missing the boat on what is needed or is affordable.
I am sure this would not be popular with political action committees that hope to chart their course without a ton of public notice or input. But if we can tap into the vote of an educated public, government can focus on getting it done, instead of getting its way.
Echoing the appreciation for Anita’s analysis and suggestions, while also acknowledging Michael’s comments about what can be done under the decadal review, and Ira’s about the present paucity of public participation, let me point out that in the era of Representative Town Meeting, great deference was given to the recommendations of broadly representative and relatively independent appointed “expert” committees in matters of budget and policy.
This culture of diverse expertise has been lost in Amherst — perhaps saying “systematically dismantled” would be more accurate? — under the concentration of authority in our current system, but maybe reestablishing that culture by restoring the committee system could be accomplished within the purview of the decadal review….
HNY and a perfectly pleasant perihelion to all 😉
Thank you, Anita Sarro, for your acute comments, and thank all commenters for this invaluable discussion! This focuses on Anita’s General Comment No. 2, Town Manager:
“Let’s call him what he is – an unelected Mayor. This position should be elected, responsive to political pressure, and not shielded by a friendly council. … Amherst … deserves a chief executive who is elected and accountable.”
Like Montesquieu, the U.S. Founders and Framers, and the framers of the Massachusetts Constitution (Part the First, Article XXX, https://malegislature.gov/Laws/Constitution), she thereby calls for a separation of the Town’s Executive and Legislative powers. At present, Town Council exercises the powers of both these branches of government. This is because it hires and can fire the Town Manager.
Yet the Massachusetts Constitution applies this separation of powers requirement to municipal governments: “The provisions of any adopted or revised charter or any charter amendment shall not be inconsistent with the constitution ….” (Article 89 [LXXXIX], Article 2, Section 2).
In my view, we therefore need a formal Opinion of the Justices of the Massachusetts Supreme Judicial Court (SJC) on the constitutionality of Charters such as Amherst’s. At least nine other Massachusetts municipalities have such Charters. So this is a statewide issue. It touches residents’ lives intimately. It is fair to say that it’s an important question of law. Fortunately, we need not bring a lawsuit to get a definitive Opinion of the Justices.
“Each branch of the legislature … shall have authority to require the opinions of the justices of the supreme judicial court …upon important questions of law….” (Article LXXXV of the Amendments to the Constitution, annulling and replacing Article II of Chapter III of the Massachusetts Constitution.)
I’d accordingly say that our first step in re-examining Amherst’s Charter should be this: to ask our excellent legislators, Senator Jo Comerford and Representative Mindy Domb, about a request from the Senate, the House, or both, for an Opinion by the SJC on the constitutionality of a Massachusetts municipal charter that lacks separation of the Executive and Legislative powers. This is the fundamental issue of the structure of municipal government. Without a definitive Opinion on it by the SJC, I think we’d be building on sand.