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Sunday, May 5, 2013

More charter chatter

A rational approach to deciding how to vote (on a charter) starts with understanding what it says – in context and within the limits set by the State constitution. So what might we want to see in a charter?

What should be said

One requirement is to show intent to govern. The charter must state the powers it will use. Most charters declare intent to use all powers granted under the State constitution, listed or not. They even declare that they expect to use powers that are not yet defined.

The purpose of this boilerplate (canned legal language) is to prevent the expense of calling an election every time a new concern is discovered or defined. All changes to a charter must be approved by voters. A charter can assume only the powers granted to it by the State constitution, though.

Howl about it

This clause became contentious during the last election. One group in particular warned that these statements of intent were a power grab. That’s ridiculous, of course. It’s based on a phrase taken out of context. 

So, when (not if) the diatribe and hysterical warnings about power grabs return, rational thinking requires that we look at what the whole document says.

They said it before. . .  

A detailed criticism of the last proposed charter may help us anticipate what we’ll hear about the next proposed charter. A point-by-point criticism, published by a local anti-charter group, will be our example.

The proposed charter stated in Section 103, Powers  . . .

The City of Costa Mesa, by and through its legislative body and other elected or appointed City officials, as may be applicable, shall have and exercise all powers necessary or appropriate to a municipal corporation and the general welfare of its inhabitants, which are not prohibited to it by the Constitution of the State of California, and which it would be competent for this Charter to set forth particularly or specifically, as fully and completely as though they were specifically enumerated in this Charter. The enumeration in the Charter of any particular power, duty or procedure shall not be held to be exclusive of, or any limitation or restriction upon, this general grant of power. General powers of the City include, but are not limited to, the powers necessary or appropriate to promote the health, welfare and safety of its inhabitants.

That boilerplate states the City plans to use all of the options granted under the State Constitution.

The published criticism of Section 103 states:

Vague language grants more power to the City Council . . . This first sentence means that they have not specifically defined and limited their power, so, even though it isn't written (enumerated) in the charter, it does NOT mean the city doesn't have the power, yet in the next sentence it says what IS in the charter is not meant to be limiting, restrictive or exclusive. They are open both ways....With this, they can do what they want unless it breaks the State law and if they do – who has the money to sue them to enforce the Charter?

The reality is, the Council they demonize can break State law now, and will be prosecuted by the State for criminal behavior. Under the proposed charter, the exact same applies. No lawsuits by citizens are necessary.

It does not give the City Council carte blanche. It does not add new power and authority to the Council. It only specifies that City government will assume all control of City matters authorized by the State constitution for charter cities.

Criticize even if you don't understand it

Another criticism, this one of the section about setting times and places for Council meetings. This is Section 202. Time and Place of Meetings; Rules of Conduct of Proceedings

The published criticism of this section states:

When in several places in this charter they leave the option for an ordinance or a resolution by the City Council it allows them to grab a little more power. Remember, only three City Council members have to vote to approve an ordinance or resolution.

The criticism warns of how ordinances can be overturned by a referendum, but a resolution cannot. It then notes that “That’s one of the reasons for concern about the charter allowing no-bid contracts to be adopted by either ordinance OR resolution.”

That’s downright silly. First, there is no provision for the Council to award –or “adopt”-- contracts, in present law or under the charter. The Council members would go to jail for trying; it’s against State law, which can’t be preempted by a charter. The Council is like a Board of Directors; it only approves payment for contracts awarded by ordinance and city procedure. It can’t award contracts.

Purchasing agent procedures

And, no-bid contracts are part of existing, State-mandated, City procedures, now and under a charter. The proposed charter would only have allowed changing the level at which formal purchasing department procedures are required. (No bids explained)

Second, three Council members voting is how representative government works, now as well as under a charter.  (Representative government)

Civics 101

Third, business is conducted by ordinance, which is city law, enforced by police and the courts. Resolutions are published to show the Council’s view of a subject. (An ordinance would be used to increase business license fees, a resolution to congratulate the High School Cheer squad for winning a competition.)  Contracts cannot be awarded by resolution. (Ordinance vs. Resolution)

It’s difficult to understand why the warnings were published about the charter section that deals with setting meeting times and places. The Council could resolve that Tuesdays are good meeting days. Since that would be a resolution, it’s true that we, as citizens, would be unable to put that opinion to referendum.

A rational, not a silly, approach to voting 

Shakespeare wrote a play entitled “Much Ado about nothing.” It will be useful to look at the upcoming (and present) criticism of a charter to see if there’s “a whole ‘lotta fuss about nothing at all.” There will be plenty of educated, well-reasoned criticisms to consider. Nonsense like the criticisms mentioned is just nonsense. It’s not a basis for a rational vote.

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