ccminorityrpt

Las Cruces, NM

Charter Review Committee

Minority Report

Woodie R. Jenkins, Jr.

June 3, 2005

REASON FOR THE REPORT

The Charter Review Committee declined to recommend including what I believe is the most meaningful duties of the city council and the city manager in terms of providing high standards for the future. I also believe that the committee’s recommended increase in the required number of initiative, referendum, and recall petition signatures is unjustified.

The committee argued that the proposed duties did not belong in the charter. To counter the committee’s argument, consider the New York City Charter (all 1068 pages). Among other things, it requires the city council to “On or before the first day of September nineteen hundred ninety, and every four years thereafter, prepare a strategic policy statement for the borough and provide copies of such statement to the mayor, council and community boards in the borough. Such statement shall include: (i) a summary of the most significant long-term issues faced by the borough; (ii) policy goals related to such issues; and (iii)

proposed strategies for meeting such goals” and “Monitor and make recommendations regarding the performance of contracts providing for the delivery of services in the borough” – similar to my proposal for goals and standards. The New York City Charter also requires the mayor to:

“Mayor's management report. a. Not later than January thirtieth

in each year the mayor shall make public and submit to the council a

preliminary management report of the city and not later than September

seventeenth in each year the mayor shall make public and submit to the

council a management report.

b. The preliminary management report shall contain for each city

agency

(1) a statement of actual performance for the first four months of the

current fiscal year relative to the program performance goals and

measures established for such year;

(2) proposed program performance goals and measures for the next

fiscal year reflecting budgetary decisions made as of the date of

submission of the preliminary budget;

(3) an explanation in narrative and/or tabular form of significant

changes in the program performance goals and measures from the adopted

budget condition to the current budget as modified and from said

modified budget to the preliminary budget statements” - which is similar to my proposal for council and manager combined. If a city like New York sees the wisdom of placing such requirements in their charter, we should at least put the question to the voters (along with other questions).

Neither the committee nor anyone else presented any evidence that initiative, referendum, or recall has been overused and therefore are in need of making more difficult.

MINORITY RECOMMENDATIONS

Article II. City Council

RECOMMENDATION: Revise Sec. 2.04. General powers and duties. Add sections A & B to the original language. The new section reads:

“All powers of the city shall be vested in the 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.

A. Establish Public Policies & City Laws

(1) The city council shall accommodate in their decisions as many known and valid diverse points of view as are practical.

(2) The city council shall choose courses of action or inaction, when addressing problems or sets of problems that agree with this community’s set of values regarding appropriate public goals and this community’s set of beliefs about the best way of achieving those goals.

This community’s goals are:

1. Preserve and enhance the health, safety, and general welfare of the people in Las Cruces

2. Maintain a sense of community in each neighborhood within the city

3. Services provided by city government meet established standards

4. Identify and preserve open space

5. Achieve an urban form which supports and enhances our unique environment

6. Preserve and enhance our natural, visual, and historical/cultural resources

7. Provide a multi-modal transportation system which efficiently and effectively supports the transportation needs of the community

8. Achieve optimum efficiency in the planning and operation of our city's utility systems

9. Establish and maintain a stable, diversified economy

10. Provide suitable housing opportunities which meet the needs of all socioeconomic levels

11. Enhance economic opportunities and economic activity within Las Cruces

(3) The city council shall hire and fire the city manager.

(4) The city council shall by resolution tell the city manager what the operating organization is expected to accomplish and evaluate the city manager’s performance annually against the degree of accomplishment.

B. Oversee the Conduct of City Business

(1) The city council shall perform any and all acts it deems necessary to perform oversight of all governmental functions and to perform investigations into actions of city government, except that all matters covered by the city’s personnel policy and grievance procedures are excluded.

(2) The city council shall require (a) research of policy issues, (b) development of information and analyses that document the pros and cons of decision options from the point of view of each group of stakeholders, (c) coordinated issue development, (d) evaluation of the effectiveness of the implementation and enforcement of council policies and laws, and (e) evaluation of the degree of compliance with established standards and program requirements.

(3) The city council shall prioritize the spending of public funds.

(4) The city council shall verify that the city’s funds are properly accounted, reported, protected, and managed.

(5) The city council shall verify that city assets are properly accounted for and are maintained in serviceable condition.

(6) The city council shall verify that all contractual and statutory requirements are timely met.”

JUSTIFICATION: The current charter language does not accurately state the duties of the city council. The committee declined to recommend a correction. The present city council has repeatedly stated a preference for “participatory government” (meaning the public can speak and make requests) and for “inclusive government” (meaning the valid concerns of the public will be addressed). The city’s comprehensive plan, zoning ordinance, and other official documents contain goals which proposed council actions should show how they help achieve. This minority recommendation enables the city council to institutionalize, for the future, a high standard of participatory government, inclusive government, and focus on achieving the city’s adopted goals.

Article III. City Manager

RECOMMENDATION: Add Sec. 3.02(b)(7) – (9), Duties. Add items (7), (8), and (9) to the original language. The new section 3.02(b) reads:

“The city manager shall have, in addition, the following powers and duties:

(1) To appoint, suspend or remove all administrative officers and employees of the city subject to the limitations and procedures established in this Charter and in any personnel rules adopted by the council.

(2) To attend all meetings of the council unless excused by it and participate in discussions. The city manager shall have no vote.

(3) To prepare and submit the annual budget and the capital improvements program to the council.

(4) To submit annually to the council and make available to the public a complete report of the finances and administrative activities of the city for the preceding year.

(5) To keep the council fully advised of the current and future needs of the city.

(6) To make whatever additional reports the council may require and to perform other duties as may be specified by this Charter or may be required by the council.

(7) To establish standards for each service provided to the public by city government. Services provided by city government shall meet or exceed adopted standards in each neighborhood of the city. Where standards are not met, the unmet location shall be placed on an action plan schedule for bringing the area up to standard.

(8) To implement city laws & policies

(9) To enforce city laws, city policies, and municipal court rulings.”

JUSTIFICATION: The enumerated duties of the city manager need to show a clear and direct responsibility to implement city council policies, supervise city government operations, and be accountable to the city council for the efficiency and effectiveness of city government operations.

Article VIII. Initiative, Referendum and Recall

a. RECOMMENDATION: Delete the original Section 8.01(a) and add the following:

“(1) Powers. The qualified resident voters of the city shall have the power to propose legislative ordinances to the council that satisfy the following three tests. If the council fails to adopt an ordinance so proposed without any change in substance, the voters shall adopt or reject it at a city election.

(2) Tests of subject matter eligibility.

First Test: Actions taken on subjects of a permanent and general

character are usually regarded as legislative matters, and actions

taken on subjects of a temporary and special character are usually

regarded as administrative matters.

Second Test: The power to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in its nature if it merely

pursues a plan already adopted by the legislative body or some power superior to it.

Third Test: If the grant of authority from the state legislature for the subject matter of the ordinance is to the city as a corporate entity, direct legislation by the people is permissible in the form of initiative. If the grant of power is to the legislative authority of the city, then initiative is prohibited.”

JUSTIFICATION: The committee’s recommendation is not fair to the public. The current charter language does not correctly state the actual situation. The courts in New Mexico have noted that there is an inherent limitation on the right of initiative and referendum in that it only extends to matters legislative in character as compared to administrative actions. Therefore, the scope of the power of initiative or referendum is restricted to ordinances adopting legislative policy and is not extended to ordinances effecting administrative actions. Courts in New Mexico, including the state Supreme Court, and courts all over the country use the same three tests to decide whether an ordinance is eligible for initiative or referendum. The committee recommended adding a footnote to alert the public that they need to do some research if they want to understand their rights. The committee’s parting statement was “if they want to do this, let them figure it out for themselves. It’s not up to us to educate them.”

We know what the rules are, and fairness dictates that we are truthful in our charter. So, my recommendation is submitted.

b. RECOMMENDATION: Delete the original Section 8.01(b) and add the following:

“(1) Powers. The qualified resident voters of the city shall have the power to repeal legislative ordinances that satisfy the following three tests. If the council fails to repeal an ordinance so proposed, the voters shall adopt or reject it at a city election.

(2) Tests of subject matter eligibility.

First Test: Actions taken on subjects of a permanent and general

character are usually regarded as legislative matters, and actions

taken on subjects of a temporary and special character are usually

regarded as administrative matters.

Second Test: The power to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in its nature if it merely

pursues a plan already adopted by the legislative body or some power superior to it.

Third Test: If the grant of authority from the state legislature for the subject matter of the ordinance is to the city as a corporate entity, direct legislation by the people is permissible in the form of referendum. If the grant of power is to the legislative authority of the city, then referendum is prohibited.”

We know what the rules are, and fairness dictates that we are truthful in our charter. So, my recommendation is submitted.

c. RECOMMENDATION: Delete Section 8.03(a) Petitions, Number of signatures and add the following new Section 8.03(a) to read:

“(a) Number of signatures. Initiative and referendum petitions shall be signed by qualified resident voters of the city equal to three and one-half percent (3.5%) of the number of registered voters on the day the affidavit is filed. Petitions for recall of a councilor shall be signed by qualified voters of the district which the councilor subject to recall represents. The number of signatures required for recall shall be equal in number to at least three and one-half percent (3.5%) of the registered voters, on the day the affidavit is filed, in the district which the councilor subject to recall represents. Recall petitions attempting to recall the mayor shall be signed by at least three and one-half percent (3.5%) of the registered voters, on the day the affidavit is filed, residing within the city limits of the City of Las Cruces, with no more than twenty-five percent (25%) from any one precinct.”

JUSTIFICATION: The committee’s recommended change to “seven and one-half percent (7.5%) of the registered voters” is not fair to the public. It would dilute the public’s right by making it twice as difficult to petition for adoption or repeal of a legislative ordinance as is presently required. And, with the 30 day time limit on obtaining referendum petition signatures, the committee’s recommendation may make referendum “too hard”. The committee was informed that there had been no initiative petitions in the past ten years – indicating that the requirement for signatures was not “too easy”. In fact, the committee offered no evidence to support their assertion that “initiatives are too easy”. Also, the committee was informed that there had been two referendums in the past ten years and one recall – indicating that the current requirement is not “too hard”. The evidence indicates that there is no reason to increase the level of difficulty. So, the committee’s recommendation does not pass the fairness test – “fairness to all parties, in all things”.

This minority recommendation makes the three “petitions” (initiative, referendum, and recall) use “the number of registered voters” as the basis for determining the required number of signatures, but does not dilute the public’s right. The change requires validated petition signatures totaling at least 3.5% of registered voters within the city limits at the time of filing the affidavit. The committee’s rationale for linking the count to the number of registered voters is that the basis for all petition signature requirements should be stable and not fluctuate as currently occurs due to fluctuation in turnout in elections. The committee’s rational for selecting the 7.5% number is to follow the recommendation found in the “Model City Charter”. That advice was that “initiative and referendum should not be too easy and also should not be too difficult”. The general effect of the recommended change is to double the required number of petition signatures. The idea of no more than 25% from one precinct affirms that the issue at hand is truly of city-wide importance - not just a neighborhood issue.