1 Presented by: Victor K. Tervala, Esq June 9, 2014 Ocean City, Maryland

2 Upon completion of the Structure of Municipal Government, participants will be able to: Understand the nature of municipal charters Understand the difference between your charter and your code of ordinances Describe the various forms of municipal government

3 Charter: your local constitution. It establishes the basic components and organization of your government and the basic rules under which it operates Don’t govern without knowing the rules your government has established. It’s your job to know them Comply with your charter or a court of law may strike down all the acts taken in violation of your charter

 If you don’t like certain charter provisions, change them  Amendment process – top down and bottom up. The favored top down process  Government by the people or by the government ? 4

 Official acts of government are distributed in 2 documents: your charter and code of ordinances  What’s the difference between the two documents? Can everything you record in your code instead be recorded in your charter and vice versa?  Why do you need to know the difference? One document is controllable by the voters, the other is not. Plus, the typical content of a code must not appear in a charter. 5

WHO CONTROLS THE DOCUMENT CHARTER CODE GOVERNING BODY MAYMUST VOTERS MAYMUST NOT 6

 The difference between your charter and your code is like the difference between documents describing the rules of football and the strategies used to win a football game.  A football game is run according to the rules established by the NFL and recorded in its rulebook. A game is won by strategies devised by coaches and found in the team’s strategy book  2 different functions created by different sets of people with results recorded in 2 different documents 7

 In this analogy, the NFL is like your town governing body and its voters. Together the two sets of people make the rules that shape how government operates (or how the “game” of government is played in your town).  The NFL coaches are like the town’s governing body. Your town’s governing body creates the strategies for winning the “game.” In this case, “winning the game” means attaining the ends of government - enhancing the peace, good government, health and welfare of the residents.  The rules of the game are found in one document, the strategies for winning the game are found in another. 8

 Strategies = legislation. These are contained in your code of ordinances. A court of law describes legislation as the “details” of government.  In most instances legislation is aimed at regulating behavior. Legislation seeks to modify the way people interact with persons, places and things within your municipal borders.  Whenever we adopt legislation that seeks to improve the lives of residents or enhance general welfare, the legislation is considered an exercise of “police power.” 9

 Police power at work - examples: * Zoning * Regulating the use of streets, alleys and sidewalks * Establishing building standards * Regulating behavior and personal conduct (e.g., noise levels, heights of shrubbery, weeds and grass, etc.) 10

 Major components * Size of body, qualifications, term, duties * Mayor (if any), qualifications, term, duties * Administrator/Manager duties * Powers of government  Major processes * Election process – frequency, by wards, at-large? * Legislative process * Budgeting process  Major policies * Debt – can you acquire? 11

 Administrative processes and organization  Examples  Establishing departments, offices, boards and commissions  Establishing administrative processes (e.g., licensing procedures, collection and bill-paying procedures, procurement processes, etc.)  Often better to house administrative processes and organization in your code of ordinances and not your charter 12

 Can you mix content? Can legislation be recorded in your charter or charter material be recorded in your code of ordinances?  Most (but not all) legislative acts are exercises of “police power”  The exercise of police power is exclusively reserved for legislative bodies. The voters of a town or city are not “legislative bodies” under Maryland law 13

 Because (1) the exercise of police power is exclusively reserved for legislative bodies and (2) your code of ordinances contains those acts of police power, only your legislative body controls your code – voters are not permitted to amend it  For similar reasons, it is illegal to put legislation in your charter. If legislation were to appear in your charter, voters would be able to exercise police power through the charter amendment process  In essence, the legislative process does not allow voter participation (except for referenda on whether a particular legislative act is adopted) 14

 It is not illegal to place charter material in your code of ordinances. It is bad policy.  Proper charter material, when it is located in a charter, is controllable by the voters through the charter amendment process  When you put charter material in a code, it prohibits voters from being able to control the subject. Voters cannot amend a code – only the governing body may amend a code. 15

 In summary- your code of ordinances is a compendium of official government acts that can only be controlled by the municipal governing body because its content often involves the exercise of police power. Voters cannot exercise police power.  Your charter is compendium of the rules under which government is organized and run. Voters are permitted to control these rules because the rules determine how the “game” of government is played in your town 16

 Proper Charter Material – How can you tell?  Rule of thumb: most acts of government are legislative acts and therefore not proper charter material  Proper charter material never involves an exercise of police powers  Proper charter material may include administrative matters, but usually it is better to house administrative detail in the code of ordinances because it is easier to amend a code than a charter, generally 17

 To distinguish proper charter material from legislative material, ask if the topic is as fundamental or as important to your government as, say, how a bill becomes a law  Ask if the average voter would care about the topic because the average voter cares about typical charter material  Ask if the average voter would be able to form an opinion about the topic at issue. Expert knowledge of typical charter material usually is not required, unlike the amount of knowledge required for legislation 18

19 Forms revolve around the relationship of the legislative function to the executive function Form is determined from charter provisions describing executive and legislative duties – don’t expect to see a clear statement of the form of government in your charter Change of form usually requires a charter amendment, which in turn requires sufficient political support for the change

 Change of form usually is triggered by dissatisfaction with the working relationships among members of the governing body  The belief is that by changing the form of government the formal relationships between elected officials (primarily) will be altered and improved.  The goal of change is to improve the efficiency and effectiveness of decision-making and of the government generally 20

 Commission  Weak Mayor  Strong Mayor  Council-Manager  Hybrid 21

22 All elected officials perform both executive and legislative functions. No one but the commissioners are given responsibility for managing day-to-day affairs. Often each elected official is responsible for management/oversight of a particular department (e.g., police commissioner or public works commissioner) Typical charter is silent on the distribution of functions among elected officials. Usually functions are delegated informally

23 Strength * traditional organization, * easy to explain, * good accountability to voters Weakness * leadership by committee * conflict with professional managers * uncertain ability of commissioners to manage or oversee a particular department, especially on a part-time basis

24 All elected officials perform both executive and legislative roles except mayor is deemed to be the head of government for ceremonial purposes Mayor is not usually elected as by the voters. Mayor is elected from and by the governing body or appointed by agreement of the elected body Strength/Weaknesses: generally the same as Commission form but the role of the mayor often is misunderstood by both municipal residents and officials, which can lead to confusion about the proper role of other elected and appointed officials

25 Separation between legislative and executive functions. Charter gives day-to-day control over government operations to the Mayor. Mayor is the chief executive Council operates at arms-length from day-to-day affairs; it is not involved in running daily operations. Mayor runs them Council controls operations through the budget and by making policies that impact on operations. Council provides necessary oversight over the executive function to serve as a check and balance against the executive’s power.

26 Strengths * excellent division of labor as Mayor focuses on daily needs while council focuses on longer-term issues * clear accountability for functions of government * leadership Weaknesses * strains in mayor-council relations occur easily and result in government disruptions * mayor may not prove to be a competent manager (but this weaknesses can be offset by a competent professional manager serving to support the office)

Professional manager hired as chief executive to manage municipal operations. Lots of towns have full-time professional managers. Only those in which the charter expressly delegates day-to-day operational control to the appointed manager are considered council-manager governments Council operates at arms-length from daily operations. It controls operations only through the policies and legislation it adopts. Provides important oversight functions. 27

28 Strength * Professional management, selected from a broader pool than available for strong mayors * Decouples politics from daily administration and management * Excellent division of labor Weakness * The form can frustrate elected officials who do not control daily operations and yet are accountable to the voters for them. These concerns tend to encourage elected officials to interfere in daily operations, making this form difficult to sustain and may exist only on “paper” or in theory

 Elements of one form combined with elements of another (e.g., elements of the strong-mayor form combined with elements of a council-manager form)  Strength: Ability to pick and choose exactly the elements best suited to solve local problems  Weakness: care must be shown in the selection of elements. Certain elements may not support one another resulting in conflicting structures (e.g. a strong mayor element housed in a council-manager form may prove challenging to the mayor, to the manager or to both parties) 29

The municipal charter establishes the rules and the basic building blocks of your government. You can change your charter, but you must always follow it Don’t legislate in a charter No form of government is ideal; all forms have strengths and weaknesses. Expect interest in changing the form of government to coincide with how divided an elected body may be 30