Last Chance To Complete League of Women Voters’ Survey On Town Charter

7 thoughts on “Last Chance To Complete League of Women Voters’ Survey On Town Charter”

1. Kudos to the League of Women Voters for requesting Amherst residents’ feedback on our current Home Rule Charter!

   Here’s the general comment from my response.

   My concern about Amherst Town government is that the current Home Rule Charter fails to provide for a separation of the legislative powers (Town Council) and executive powers (also Town Council, in that it hires, evaluates, and can fire the Town Manager).

   Granted, the Charter’s Article 2 is entitled “LEGISLATIVE BRANCH.” Its Article 3 is entitled “EXECUTIVE BRANCH.” But labels do not make a separation of powers. The provisions of those Articles show that the Executive is actually subordinate to the Legislative.

   Section 2.5 of the Charter, GENERAL POWERS, provides in full:

   “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 al duties and obligations imposed upon the town by law.”

   The buck thus stops at Town Council — and only at Town Council. Section 3.1, APPOINTMENT AND QUALIFICATIONS, accordingly provides in pertinent part:

   “The Town Council shall appoint a Town Manager by a majority vote of the full Town Council.”

   Section 3.2, EXECUTIVE AND ADMINISTRATIVE POWERS AND DUTIES, makes clear that the Town Manager is accountable only to the Town Council, not to the voters. It provides, in pertinent part,

   “The Town Manager shall be the chief executive officer of the Town and shall be responsible to the Town Council for the proper operation of Town affairs for which the Town Manager is responsible under the Charter.”

   Further, Town Council assesses the Town Manager’s performance (Article 3.9, ANNUAL REVIEW OF THE TOWN MANAGER), and a Town Council majority may fire the Town Manager (Article 3.8, REMOVAL OR SUSPENSION OF TOWN MANAGER).

   This structure raises the fundamental issue, that this Home Rule Charter in my view fails to comport with the Massachusetts Constitution. Part the First of that Constitution, Article XXX, provides in full:

   “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

   “[S]hall never,” “shall never,” “shall never”: John Adams, et al., could not have stated more clearly the fundamental democratic structural principle of separation of powers.

   The Constitution’s Article LXXXVIIII (89), Section 2, of the Articles of Amendment, applies this separation of powers principle to Massachusetts municipal charters:

   “The provisions of any adopted or revised charter or any charter amendment shall not be inconsistent with the constitution ….”

   The current Amherst Charter’s failure in reality to separate its executive powers from its legislative powers is a major reason, I think, that our Town Council is overburdened. This has led some on the Council to propose restricting public comment as a way to make Council meetings less onerous for members. This is scarcely a pro-democracy move.

   Lack of separation of the legislative and executive powers might also be a factor in some residents’ feeling of helplessness to prevent our human-scale Town from being overrun by over-scale blocks of college dormitories.

   I can attest that it was certainly a wellspring of the litigation against the Town concerning the Jones Library. Litigation is a poor substitute for a legislative branch and separate executive branch, each exercising its proper powers and each, independently and continually, accountable to the voters.

   Regardless of its baneful or beneficial effects, therefore, whether this “unseparated powers” form of municipal governmental structure is constitutional remains. I would strongly suggest finding out the answer before Amherst reconsiders its present Home Rule Charter in 2024.

   Fortunately, I believe, no litigation is required for a Massachusetts Supreme Judicial Court (SJC) determination of the matter. Article LXXXV (85) of the Constitution provides in pertinent part:

   “Article II of Chapter III of the constitution of the commonwealth is hereby annulled and the following is adopted in place thereof:–

   Article II. 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, and upon solemn occasions.”

   Whether a municipal charter is constitutional if it lacks separation of the legislative and executive powers is unquestionably an “important question[ ] of law.” I understand that, on this issue, the SJC has never handed down either a decision resolving litigation, or a non-litigation Opinion of the Justices. Either would resolve this issue.

   So the elegant way to go is for either the Massachusetts Senate or House of Representatives, or both, to “require the opinion[ ] of the justices” of the SJC on this question. Nothing prevents the Amherst League of Women Voters from approaching our excellent Senator, Jo Comerford, and excellent Representative, Mindy Domb, about this.

   Amherst is not the only town that the issue affects. When we of Amherst were considering our present Home Rule Charter, about nine other Massachusetts towns, including Palmer, already had Charters with “unseparated” legislative and executive powers. (I obtained and read each of these Charters at the time.)

   So it looks as if a relatively modest proportion of the Massachusetts population will be affected if the SJC decides that Massachusetts municipal charters must provide for the separate exercise of legislative and executive powers. In my experience, the SJC sometimes effectively takes account of such non-legal considerations, even if its published determination does not say so.

   As I recall, this “unseparated powers” form of Charter was sold to Amherst as being more efficient than our venerable Town Meeting (legislative) and Select Board (executive), each of which was separately accountable to the voters.

   Autocracy IS more efficient. But, at what? And, at what cost?

   Respectfully submitted,

   Sarah McKee
   9 Chadwick CT
   Amherst, MA 01002-2825
   Land: 413.256.6129

   D.C. Bar No. 954990
   Past President, Jones Library Board of Trustees
   Governor Deval Patrick’s Appointee for Law to the Legislature’s Registry of Deeds Reform Commission (2013)
   Massachusetts Alliance Against Predatory Lending (Volunteer, 2014 – present)

2. My comments on the questionnaire were strongly negative. I have been trying to find suitable candidates to run for the 2023 town election without any success. If the election process proves to be the bust I predict, I propose we start circulating petitions for a Charter that brings back our democratic town meeting and Select Board. Charter supporters complained that some town meeting members (out of 240 elected and 12 ex officio members)
   were elected with very few votes in non-competitive races. It is looking to me that we might be facing the same situation in the Town Council election this November if we can’t find folks willing to put in the time to govern us.
   Daily it appears more and more that Town Meeting and Select Board were both more democratic and efficient than our current charter.

3. Hilda,
   We would gladly sign that petition, and this time ensure that one of our signatures would not rejected for any, let alone an unknown, reason.

4. Your rigorous legal analysis of the new Amherst Home Rule Charter’s dubious constitutionality makes a lot of sense, Sarah. What do we do if asking for a court ruling through our state legislators is unsuccessful?

   We need quick action before town priorities, neighborhood preservation, socioeconomic diversity and local democracy are further eroded.

5. I would happily sign a petition to bring back town meeting, even with a smaller number of representatives. When could such a petition be taken out, would it work to do it this year?

6. I am glad that the League is doing this and the results ought to be helpful to town government. I tried to initiate a similar project several months ago, but the deeper I got into it the more I realized that the problems with the Charter were so deeply embedded that it would take more than the allowed amendment process to fix it.

   Instead I urge residents to review the Rules of Procedure, which govern more minutely how the Town Council conducts its business. Recently we have seen an attempt to effect a substantive change in the ability of residents to make their opinions known to councilors. This was done by proposing to change the Rules of Procedure. One source of political power is the ability to define a proposal as either substance or procedure, policy or management, as the proposer desires.

   Rules of Procedure can be found on the town website, under the Town Council heading, and Town Policies subheading. It would be wonderful if the League could add that to its examination of town governance.

7. Jeff, I am sorry to have seen your question of 19 March only now!

   Amendment LXXXIX (89) of the Massachusetts Constitution also allows the Governor, and Governor’s Council, to require an Opinion of the Justices of the Supreme Judicial Court (SJC). Members of the Council are elected, as you know. Their responsibilities consist principally of voting whether to confirm the Governor’s nominees for judicial office.

   I do not know what it would take to persuade the Governor to require an SJC Opinion on the constitutionality of a lack of separation between the legislative and executive branches of a municipality. If the Governor’s Council could be persuaded to do so, it would surprise me greatly.

   The other possibility would presumably be a lawsuit.

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