Phil Smith knows more about the charter revision process in Bridgeport than anyone on the planet. It was Smith who crafted the charter question approved by voters more than 20 years ago that established the hiring process for the police and fire chiefs: they can serve no longer than two five-year contracts. The other night Smith cranked out an OIB comment response to a question about the charter process and it’s worth re-posting here as a guest commentary. When it comes to charter revision there’s a “Yeah, but …” attachment because of how the State of Connecticut recognizes cities and towns. Check out Smith’s observations:
All municipalities are creatures of the state. They were established, and their powers defined, by state law. Indeed, many local charters, including Bridgeport’s, were first adopted and amended by special act of the legislature. As Bridgeport learned the hard way, sometimes those amendments were adopted in the face of strong local opposition.
The result was a crazy quilt of charter provisions which varied wildly between communities. For example, New Haven’s appointed Board of Education was the result of such a provision. So were Bridgeport’s old Board of Apportionment and Taxation and its current civil service system.
By the 1960s local leaders wanted more control of their affairs and the legislature had tired of resolving local disputes. When the state constitution was rewritten in the mid-1960s the framers included a new Article Tenth, entitled “Home Rule.” It includes a lot of flowery language, but the meat is found in the provision that, except in three specific instances, “On and after July 1, 1969, the General Assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough …”. That provision put the legislature out of the charter business. Special Act charters previously adopted remained in force, but future amendments, or new charters, would have to be adopted locally.
But there was a catch.
Municipalities didn’t have the same freedom of action as the legislature. The charter provisions which they adopted had to be authorized by the legislature either in the home rule act or some other general statute. As our Supreme Court has repeatedly said, “Municipalities, because they are creatures of the state, have no inherent legislative authority … They can wield only those powers expressly granted to them by the legislature.” Remember that statement, you’ll probably hear it frequently over the next few months.
Two court cases demonstrate what that means.
The language quoted is taken from a 1985 case involving a recall provision that the Town of Watertown included in its locally adopted charter. The Supreme Court unanimously struck down the recall provision, concluding such provisions had not been authorized by the legislature. As a result, the only towns with valid recall provisions are those, like Stratford, which were passed by the legislature prior to 1969.
About the same time the City of Bridgeport was enacting a charter provision which prevented realtors from serving on the land use boards due to a perceived conflict of interest. That provision was approved by the Council and the voters but overturned by a Superior Court judge who decided the legislature hadn’t authorized that type of provision.
Before I turn to your questions I want to add a note in defense of all the lawyers, advocates and others who will be talking about these issues over the next few months. In the real world, the law in this area is often as clear as mud. Sometimes you don’t know whether a provision will be upheld until a judge decides. (I say that as the author of the land use provision referred to above.)
I have always thought Charter Revision works best as part of comprehensive, independent, review of the operations of all or part of the operations of government. That is the way Bridgeport has approached most such efforts. Some passed and some failed. But nobody could say they were wired. I think it is fair to say each of the chairmen I worked with (Margaret Morton, Howard Owens, Bill Holden and David Carson) all insisted on that.
It’s interesting to note the two Charter Revision Commissions that “crashed and burned” without getting proposals on the ballot were both attempts to rush through a particular provision without that kind of review (the 1987 attempt to elect the land use boards and Mayor Ganim’s attempt to make the Board of Education appointive).
Ordinances are adopted by the Council under a procedure set forth in the Charter. They are not part of the charter revision process. However, there is nothing to stop the Council from looking at the ordinances implementing a charter provision in order to get a better idea of how that provision is being carried out.
At least two Charter Revision Commissions looked at the question of whether to include detailed provisions concerning the Ethics Commission in the Charter. Both decided against doing so, primarily because the charter revision process would make it difficult to update the Commission’s duties and powers to reflect evolving needs. Personally, I think they made the right decision.
One closing note. We live in a democracy and “decisions are made by those who show up” on election day. The Charter isn’t a panacea. Nor is it a substitute for good candidates, wise voters and dedicated public servants. Any government missing those three things will fail, regardless of what its charter says.