NYS Assembly Committee on Cities hearing on City Charter Revisions

Hon. James F. Brennan, Chair

Friday, March 5, 2010
Submitted by Micah Lasher, Director of State Legislative Affairs, City of New York

Through public hearings and meetings, and ultimately a referendum by the voters, the charter
revision process empowers the citizenry to determine and improve the structure of its
government. Much interest has been generated with respect to the formation, this week, of a
charter revision commission in New York City, and the City is grateful for the opportunity to
submit testimony to the New York State Assembly Cities Committee on this important subject.

The Municipal Home Rule Law (MHRL) permits the mayor of any city in New York State to
create a charter commission. 1 Other subdivisions of the MHRL authorize the creation of charter
commissions by act of the local legislative body—locally, the New York City Council—or
through a petition process. 2 Any charter commission may then review the municipal charter and
make recommendations to be voted on by the electorate, typically at an election held not earlier
than 60 days after the filing of the proposed new charter or amendments. 3 If such a commission
does not submit amendments by the date of the second general election following its
organization, it dissolves at that time. 4

The system currently prescribed by state law maintains an important role for municipal mayors
and it has served New York City effectively. It was a charter commission initiated by the mayor
in 1989 that remedied the problem posed by the Board of Estimate’s unconstitutionality and
created the present-day structure of New York City government. Most recently, in 2005, city
voters approved two measures placed on the ballot by a mayoral charter revision commission:
one that provided for an ethical code of conduct for administrative law judges and another that
made permanent in the Charter certain restrictions in the New York State Financial Emergency
Act for the City of New York that were originally imposed by the state after the city’s fiscal
crisis in the 1970s. It is important to note, however, that proposals put forth by a mayor-initiated
charter commission are not guaranteed to pass. The voters, and not the mayor, retain the
ultimate power—indeed, over the past dozen years, proposals made by two separate
commissions have been rejected by the electorate.

Given that the current charter revision commission was appointed just this week and has yet to
meet, the City of New York is in no position to comment on its plans, as the committee’s chair

1
MHRL §36(4)
2
MHRL §36(2), (3)
3
MHRL §36(5)
4
MHRL §36(6)(e)

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has requested. Legislation currently introduced in the State Assembly concerning city charter
revisions—Assembly bills 4122-A, 6109, and 10055—would, however, diminish the role of the
mayor in amending the City Charter, now and in the future. While the legislation does not touch
on other vehicles to initiate referenda—via the City Council and through public petitioning—
each proposal would, without benefit to city government or the people it serves, reduce the New
York City mayor’s independent ability to effect change, with the voters’ support, through the
charter revision process. The City of New York, therefore, opposes the proposed pieces of
legislation.

Assembly bill No. 4122-B

Assembly bill No. 4122-B enacts special provisions relating to charter commissions in cities of
one million or more inhabitants, and therefore would apply only to New York City. Under the
legislation, New York City’s mayor would be required to select nominees of various other
elected officials, including the public advocate and borough delegations of the City Council.
These nominees would constitute a significant proportion of the resulting commission. Further, a
commission appointed after May 15 in any year would be prohibited from placing proposals on
the ballot until the subsequent calendar year following its creation, unless it receives approval
from the City Council. Finally, the bill’s new restrictions would be retroactive to January 1,
2010.

With no obvious rationale, A4122-B would create an entirely different charter revision process
for New York City than for any other city in the state. Only in New York City would the mayor
be prohibited from appointing a charter revision commission that consists of individuals chosen
at her or his sole discretion. Beyond this separate standard for New York City, there is an
additional, separate standard for the mayor: a more onerous timetable for mayoral charter
commissions than for charter commissions appointed by the City Council or for ballot questions
put forth through the petition process, tying the hands of the City’s mayor in the event that she or
he needs to address an urgent matter. In addition, limiting the appointment powers of the mayor
could potentially create a de facto veto for other elected officials over the mayor’s power to
create charter commissions. With authority to appoint only up to nine members without
nomination by others, a mayor could be prevented from appointing a full complement of
commissioners by the refusal of non-mayoral officials to nominate members.

Additionally, a commission appointed by the mayor may at times be the only viable way to make
changes to city government that would weaken and/or face opposition from the City Council or
other elected officials. By requiring any charter commission to include a large number of
members nominated by non-mayoral officials, this legislation would remove an important tool
from the arsenal of reform: such commissions would be unlikely to support even the most
meritorious solutions to the City’s problems if those solutions might weaken the non-mayoral
nominating officials.

With regard to the elongated process created exclusively for charter commissions appointed by
the mayor of the City of New York, there is no evidence to suggest that voters need as many as
twenty months to contemplate municipal charter revisions. Further, requiring the local
legislature to affirm ballot placement when a commission is formed after May 15 once again

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provides a negotiating platform and an effective veto to the local legislature that could
potentially rob voters of their voice.

Assembly bill No. 6019

Assembly bill No. 6019 repeals provisions of the MHRL that generally ensure that other local
ballot questions are not submitted to the voters at the same election as questions submitted by a
charter commission, and that questions submitted by a mayoral charter commission take
precedence over, and not compete with, other local ballot questions. 5 The provisions also
require that a local legislative body not submit questions to the voters while a charter
commission is in existence except at a general election, and contain special protection for certain
voter petitions. 6 Under current law, those petitions, if displaced under these provisions, must be
placed on the general election ballot in the following year.

There is real value in enabling mayoral charter commissions—given the charge that they review
the “entire charter” and their history of engaging in extensive public comment processes and
careful study of governmental structure and operations—to place their proposals before the
voters without a cacophony of conflicting or competing proposals. It is, therefore, reasonable
that the proposals of charter commissions take precedence over proposals originating through
other mechanisms.

It is critical to note that the existing law includes a “safety valve” for voters, by providing that
any valid petition proposal under section 37 of the MHRL that is displaced by a mayoral charter
commission must be placed on the following year’s general election ballot. This provision
appropriately balances the adequate consideration of what may be carefully designed and
complex proposals put forth by a mayoral charter commission with the rights of sections of the
electorate to initiate their own changes to the governing document of their city. By contrast, the
proposed legislation strikes no such careful balance and is more likely to impair efforts to
improve municipal administration by local mayors statewide.

Assembly bill No. 10055

Assembly bill No. 10055, introduced just this week, amends the MHRL to allow the City
Council, by a two-thirds vote, to prevent proposals put forth by a charter revision commission
from being placed on the ballot for voter consideration. This bill has key deficiencies that are
similar to and extend beyond the deficiencies of the legislation discussed above.

First, this bill once again creates a separate standard for New York City, suggesting that only
New York City’s voters need the local legislature to essentially “vet” the recommendations of a
charter commission before voters can have their say. (It is worth noting that every household in
New York City receives an impartial voter guide with statements favoring and opposing charter
revision proposals prior to Election Day.)

5
MHRL §36(5)(e)
6
MHRL §36(5)(g)

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Similar to A6019, but more explicitly, this legislation would give the City Council the power to
censor any measure proposed by a charter revision commission. If enacted, it is likely that voters
will never have the opportunity to consider a proposal opposed by the City Council, no matter
how meritorious.

Voters rightly hold the mayor accountable for the performance of city government, and current
law provides valuable mechanisms for a mayor to obtain the voters’ approval for changes that
are necessary to enhance or implement that accountability. The legislation currently under
consideration would effectively disable those fair mechanisms for the city’s chief executive and
highest elected official, thus threatening the ability of future mayors to fulfill their duties. It also
suggests an undue skepticism of the electorate’s ability to decide what referenda measures are
ultimately within its city’s best interests.

Conclusion

We urge the legislature to remember that any laws that it enacts to modify the charter revision
process will have an impact long into the future, after this mayor and many others have come and
gone. We oppose these three bills because they appear to be driven by political currents at a
moment and place in time rather than by the goal of good government over the long term. We
believe that this is the test that should be applied when considering any legislation affecting
charter revision in the State of New York.