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HomeMy WebLinkAboutModel Approach to Charter Revision CITY AND COUNTY CHARTERS: DRAFTING, REVISING AND INTERPRETING PRACTICAL ISSUES AND A MODEL APPROACH BASED ON THE ORANGE COUNTY 2000 CHARTER REVIEW COMMISSION by R. Dean Cannon, Jr. Gray, Harris & Robinson, P.A. 1. Introduction Drafting, revising, and interpreting local government charters can be a great opportunity to codify the will of the people and provide for strong local government. It can also be a political quagmire and a legal headache. Because the adoption of a charter and the charter review process involve a mixture of law, politics, and public opinion, it can be volatile, but it can also be orderly and effective. This presentation is not designed to be a comprehensive analysis of specific charter cities and counties in Florida. Rather, this outline will highlight practical issues which may face local governments and attorneys who become involved with the charter adoption or charter review! revision process. Hopefully, these materials will provide a framework for anyone involved in adopting or revising a local government charter: Most of the suggestions and ideas presented below are based on the experience of the Orange County 2000 Charter Review Commission (the "Orange County CRC"). A. Historical Background Prior to the 1968 Constitution, neither counties nor municipalities had independent governing powers because they both derived their authority from legislative acts. The traditional rule of statutory construction was that any doubt as to the grant or extent of the powers granted to counties or municipalities should be resolved against the county or municipality asserting the power. See, e.g., Amos vs. Matthews, 99 Fla. 1, 126 So. 308 (Fla. 1930), Williams vs. Dunnellon, 125 Fla. 114, 169 So. 631 (Fla. 1936), and Heriot vs. City of Pensacola, 108 Fla. 480, 146 So. 654 (Fla. 1933). Charter government was designed to help relieve the state legislature of the details of local government and grant the city and county electorate greater control over their own affairs. By broadening the power of local governments to deal with their own affairs, it became possible to address more effectively the problems of local government as they arose. Numerous counties have investigated the possibility of adopting the charter form of government, and presently 16 counties operate as charter counties. 2.1 L B. . Legal Background This presentation is not intended to address in detail the scope and application of home rule powers under Article vm of the Florida Constitution. Generally speaking, however, home rule powers of charter counties are granted directly under Article VIII, Section 1(g) of the Constitution (1968), which provides: (g) CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self..;government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law . The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances. With respect to municipalities, Article VITI, Section 2(b) of the Florida Constitution (1968) provides: (b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective. The general rule is that unless the Florida Legislature has pre-empted a subject by either general or special law approved by vote of the electors, or has enacted a general law that conflicts with the local law , a charter county or municipality has full authority to act through the exercise of its home rule powers. For counties, one benefit of adopting a charter form of government is that it limits the extent to which the legislature may modify a county's authority by future legislative act. For example, charter counties have the power to pre-empt conflicting municipal ordinances and the power to avoid intervention of the legislature by certain special laws. (See, e.g., Broward County vs. City of Ft. Lauderdale, 480 So.2d 631 (1985). For the purposes of this presentation, it is assumed that a county or municipality desires to adopt, review, or revise a charter. II. Getting Started A. Appointment of a Charter Commission or Charter Review Commission When a local government seeks to adopt a charter form of government, it may do so by ordinance pursuant to Section 125.82 of the Florida Statutes, or by adopting a resolution to appoint an official "Charter Commission" as provided for in Section 125.61 of the Florida Statutes (1999). A Charter Commission may also be convened upon the submission of a petition 2.2 to the county commission signed by at least 15 percent of the qualified electors of the com"t>' requesting that a charter commission be established. g 125.61(1), Fla. Stat. (1999). The Chartei Commission must be composed of an odd number of not less than 11 or more than 15 members, and may be appointed by the county commission or by the legislative delegation of the county. g 125.61(2), Fla. Stat. (1999). No member of the Legislature or board of county commissioners may be a member of the Charter Commission. g 125.61(2), Fla. Stat. (1999). Section 125.63, Florida Statutes, provides that the Charter Commission "shall conduct a comprehensive study of the operation of county government" and of the ways in which the conduct of county government might be improved. Within 18 months of its initial meeting (which must occur within 30 days of formation), a Charter Commission must present to the board of county commissioners a proposed charter, upon which it has had three public hearings at intervals of not less than 10 nor more than 20 days. ~ 125.63, Fla. Stat. (1999). After a Charter Commission submits a proposed charter to the board of county commissioners, the board must call a special election to be held not more than 90 nor less than 45 days subsequent to its receipt of the proposed charter, at which time a referendum election determines whether the proposed charter is adopted. g 125.65(1), Fla. Stat. (1999). In the case of a local government which already has a charter, a "Charter Review Commission" (or "CRC") is usually convened in a manner similar to that of a Charter Commission. If a charter already exists, it usually establishes the composition of this Charter Review Commission and empowers the CRC to conduct a comprehensive study of the local government and to propose amendments or revisions to the charter. For Orange County, Section 702 of its Charter provides that the CRC closely follows the language of Section 125.61, Florida Statutes, regarding the appointment of Charter Commissions, and provides that the CRC shall consist of not less than 11 members and not more than 15 members, and which shall be appointed by the Board of County Commissioners. (A copy of Orange County's Charter is available as a handout.) Whether it is a Charter Commission considering adoption of a charter or a CRC reviewing an existing charter, the commission will include a fairly large number of people as contrasted with a typical elected board of city or county commissioners. In some cases, the Charter Commission or eRe members will have little or no experience with local government, or they may be very familiar with the local government and have specific agendas to promote. To the greatest extent possible, establishing an enhanced "comfort level" among the commission members at their early meetings will likely make things run more smoothly towards the end of the study or review process. B. Hiring of staff and legal counsel The Charter Commission or CRC may hire administrative support staff, and should retain legal counsel as soon as practical. Staff can be especially helpful in preparing historical materials or documents for review by the commission members. More importantly, staff can provide?T~ 2.3 excellent means to keep interested citizens and/or the commission members aware of meeting dates, agenda i~ems, etc. As a practical note, the commission staff can handle publication of notices of public meetings to comply with the Sunshine Law. It will also help to brief the Charter Commission or CRC members on the Sunshine Law restrictions regarding communication between members. Legal counsel should be retained by the Charter Commission or CRC as soon as is practical. It will be helpful if the attorney is familiar with operational aspects of the local government, and it is equally important that they be able to work well with the various members of the Charter Commission or Charter Review Commission. For the Orange County CRC, competitive proposals were received from law firms before a general counsel was selected. Regardless of how counsel is selected, it is probably preferable for the Charter Commission or CRC to retain counsel entirely independent of the local government attorney's office, because it may reduce any appearance of bias in advising the committee regarding potentially significant changes to the local government structure. Hiring independent legal counsel also allows for independent representation of the Charter Commission or CRC in the event of litigation, and may increase the comfort level of the commission members. If you are advising a Charter Commission or CRC, be sensitive to the fact that public dollars are being spent, and attempt to establish ground rules early in the process for how work will be assigned, when work will be done, and so on. If the local government attorney has not already briefed the Charter Commission or eRe on Sunshine Law requirements regarding communications between members and public meetings, the attorney will probably want to do this as soon as possible after being retained. C. Issues Relating to Adopting New Charters If a local government is considering adopting a charter where none has previously existed, a few additional practical considerations are worth noting. Voters may be naturally resistant to change. This inertia may be overcome, however, by several means. First, effective communication about the prospect of adopting a charter is essential. It may be helpful to emphasize the fact that adopting a charter does not necessarily cause any significant restructuring of a local government, except as the citizens may deem appropriate. It will likewise be important to solicit a good sampling of public opinion about various basic operational issues which may be addressed in the new charter. (See discussion of Potential Charter Issues, below.) Finally, it also may be helpful to point out that the prospective charter, if adopted, may later be re-examined and amended on a regular basis if the citizens so desire. 2.4 HI. Before Considering Adoption or Amendments, Review History A. Review the Documentary History When considering adoption of a charter or reviewing an existing charter, a good first step is to review the local government's existing structure (in the case of a potential charter adoption) or to review the existing charter (if considering revisions to an existing charter). It is important to not assume that the members of the Charter Commission or CRC are aware of the structure of the existing local government or the provisions of the existing charter. It may seem overly fundamental, but a clear understanding of what the government or charter does (and does not do) will save time later on in the process. The attorney for the Charter Commission or CRC can go a long way towards helping the members understand the limits of home rule powers, the meaning of provisions of an-existing charter, and any other aspect of the legal or political landscape which may affect the charter adoption or review process. If a local government is reviewing (as opposed to adopting) a charter, the charter review commission should also examine previous amendments or alternative charter provisions which were or were not adopted. In Orange County, 14 charter related questions have appeared on ballots since the charter took effect on January 1, 1987. Of those 14 proposals, only three have been voted down. Ensuring that the commission members have a thorough understanding of previous successful and unsuccessful proposed charter amendments may help them to better evaluate prospective future amendments to the charter. If possible, the charter review commission may enlist the help of the supervisor of elections to summarize the history of previous proposed charter amendments. For the Orange County CRC, Supervisor of Elections Bill Cowles prepared an excellent summary of all previous proposed charter amendments, and included detailed voter turn-out and vote total summary information to assist the CRC members. (A copy of the "Election History of the Orange County Charter - 1986 through 1996" is available as a handout.) Finally, the review of past charter provisions and relevant local government issues should include an analysis and discussion of previous litigation or appellate decisions addressing the validity of ballot questions, prospective amendments, or government structure issues. If there have been problems in the past, it may be instructive to know the outcomes of those disputes before proposing any future charter provisions or amendments. B. Obtain Input from Appropriate Groups After (or in conjunction with) a review of appropriate written historical information, a Charter Commission or CRC should hear input from people who may have knowledge germane to a prospective charter 0: charter amendment. A Charter Commission or CRC may wish to 2.5 begin by hearing from sitting or former commissioners of the local government entity. Since many of the issues which may be governed by a charter (see discussion of Potential Charter Issues, below) can affect the powers and duties of the elected officials, it is helpful to understand their perspective. With respect to issues like salaries of commissioners or whether constitutional officers such as the property appraiser or sheriff should be made into "charter offices" may be benefitted by having input from the sitting commissioners and!or the sitting constitutional officers. In addition, the County staff may be able to identify "nuts and bolts" issues of local government structure or operation which might be addressed by a prospective charter or charter amendment. Also, members of previous charter review commissions may provide helpful historical perspective when reviewing a charter for possible revision. For the Orange County CRC, input was also obtained from mayors or representatives of nearly all the municipalities within the county. For the most part, few municipal officers proposed changes to the county's charter, but the effort was still worthwhile in the eyes of most of the CRC members. Finally, the Charter Commission or CRC will want to obtain input from the public. Because the work product of the Charter Commission or Charter Review Commission will ultimately be placed on the ballot for consideration by the voting public, it makes sense to solicit widespread and thorough public input in deciding what questions to put forward for consideration. At the outset, a Charter Commission or CRC will benefit from a "big picture" approach to soliciting public input. For the Orange County CRC it was decided to solicit public input at "public hearings" and then to have intermediate "workshops" to discuss prospective charter amendments and other administrative matters. The CRC adopted a plan to keep track of every potential charter amendment which was suggested by a member of the public, a government official, or any other person who proposed an idea for a charter amendment. These ideas were recorded on a "master list," which enabled staff and the CRC members to easily identify the person who proposed a potential charter amendment along with the substance of the amendment. Staff and general counsel for the CRC then sorted the master list by subject matter and identified sections of the existing charter which might be affected by the proposed amendments or additions. Citizens were allowed to clarify or supplement their proposed ideas before a pre-set deadline, after which the list was finalized and submitted to the eRC for review. The benefits of this approach are several. First, it has been extremely helpful to have a single focus for each meeting, either hearing input from the public or others, or else discussing and debating the business of the CRC, but not both. Second, by assembling and organizing a "master list" of prospective charter amendments or ideas, the CRC members are able to identify broad areas of concern, as well as easy "grouping" of prospective ideas together to determine their relative merits. Finally, many suggestions from the public may not be suitable for inclusion in the charter or even relate to local government (e.g., federal questions like the income tax or issues relating to immigration, et;.), but having the list simplifies debate when it comes time to 2.6 consider actual ballot questions for submission to the voters. Lastly, most members of the public are not even aware of how local governments are structured, let alone issues relating to charter government or the charter review process. To help overcome this lack of information, a Charter Commission or CRC may wish to have numerous meetings around the geographic limits of the city or county, and to seek out citizen groups in order to make them aware of the consideration of a charter or charter review process. IV. Consider the Implications of Community Trends and Future Changes in the City or County Because a charter defines the very structure of local government, and because local government must deal with local changes in demographics, economics, land use, the environment, and political issues, any consideration of a prospective charter or charter amendment may benefit from researching anyone of these areas. In Florida, the population grows daily, and because of Florida's geography and economy, unique forces are applied to local governments. Because most members of a Charter Commission or Charter Review Commission will not typically be experts in economics, demographics, environmental issues, and other relevant subject matters, it may be worthwhile to retain experts to prepare reports or answer questions as they may relate to restructuring local government. Obviously, cost will be a major consideration in determining whether to hire experts. In some cases, professors, consultants, or other experts may be willing to volunteer to research particular issues for the Charter Commission or CRC. Because local governments vary so widely in size and type, any consideration of a prospective charter or charter amendment. must be tailored to the needs of the community involved. In some areas of Florida, growth and territorial issues will predominate, whereas in others economic and demographic issues may be pushed to the forefront by, for example, a large populations of retirees. In any event, a Charter Commission or charter review commission should be sensitive to the demographic makeup of the citizens which will be affected the prospective charter, and it may be wise to obtain specialized research on these issues. Finally, Charter Commissions and CRCs should remember that they do not operate in a vacuum. Rather, charter consideration and charter review are cyclical processes and a particular Charter Commission or CRC may not adopt or change a charter, but can still produce beneficial work product for future committees. Therefore, it would be prudent for a Charter Commission or CRC to generate meaningful archives of research and/or keep track of public input which can be reconsidered by future Charter Commissions or charter review commissions. V. Potential Charter Issues Any analysis of local government structure will probably include certain ftmdamenfPiI 2.7 issues of structure and organization. Set forth below are some basic practical issues which may be suitable for consideration by a Charter Commission or CRC. However, no matter which issues are considered, it is important that a Charter Commission or CRC do two things: first, establish a means to keep track of ideas, suggestions, and proposals for charter provisions from the beginning; and, second, establish a means to prioritize prospective suggestions and then narrow the field of ideas to a manageable level. The Orange County CRC decided to develop the comprehensive master list of proposed charter suggestions, and then have one or more meetings where the only order of business was to "narrow the field" by going through the list and considering each prospective proposal. (A copy of a draft Master List of proposals/suggestions for the Orange County CRC is available as a handout.) Before this meeting, staff and general counsel grouped the prospective ideas according to subject matter, and identified which charter section or sections might be affected by the proposed amendment. From a practical standpoint, this approach significantly expedites consideration of prospective charter amendments as a Charter Commission or CRC contemplates finalizing its work. A. Consider Adopting "Threshold Rules" As a means to narrow the field, the Orange County CRC adopted certain "threshold rules" to govern its evaluation of prospective charter amendments. These rules basically provided that the master list of prospective charter amendments would be presented to the Commission, and that each prospective amendment be further considered only upon "an affirmative vote of one-third or greater of the Commissioners present and voting" at the Commission meeting. Thus, if a prospective charter amendment was not supported by one-third of the Commissioners, it was dropped from further consideration. After the first "round" of sorting through the list, the Orange County CRC rules provided .as follows: "Before a proposed charter amendment shall be sent to the general counsel for drafting proposed ballot language and proposed charter amendment language, such proposed amendment must receive an affirmative vote of one-half or greater of the Commissioners present and voting on the proposed amendment. ,; The practical effect of this rule is that attorney time and CRC member time is focused on evaluating only those prospective charter amendments which are supported by at least half of the CRC members for further consideration. Finally, the Orange County eRC established that a proposed charter amendment and ballot question may be submitted to the ballot "only upon an affirmative vote of two-thirds or greater of the Commissioners present and voting on the proposed amendment." This requirement of a two-thirds majority reflected the consensus opinion Ly the CRC that a prospective charter 2.8 amendment would probably have difficulty garnering support from a majority of the voting public if it could not get two-thirds of the CRC to agree to allow its consideration. Other local governments may justify an alternative approach, but it will depend largely on the philosophies and attitudes of the Charter Conunission or CRC members. B. Basic Charter Issue Check List The following reflects a generallist--in outline form--of issues which may be addressed by a Charter Commission or CRC. It is by no means exhaustive, but may provide a framework for local governments considering adoption or revision of a charter. I. Powers of County Government 1. What powers and duties should the County have? A. The powers and duties as specified by the Constitution and State Statutes. B. The powers and duties as specified by the Constitution and State Statutes plus those not inconsistent with general law . C. The powers and duties as specified by the Constitution and State Statutes plus only those as specified in the Charter, such as: 1. Separation of Powers a) Legislative Branch b) Executive Branch c) Power to set salaries of officers and employees d) Power to create special taxing districts II. County Legislative Branch 1. How should the County Commission be organized? A. How many members? B. How are they elected? C. Should there be a Party Affiliation? D. What should be the Length of Term? E. What Type of Position should it be? 2.9 F. Should there be a Residency Requirement? G. How should the Commissioners be paid? H. How should Vacancies in Office be filled? 1. How should Election Districts be handled? J. What powers and duties should be given to the County Commission? K. What presiding officers should the Commission have? L. Where are the meetings held? M. What constitutes a Quorum and Majorities? N. How should the Recording, Printing, & Codification of records be handled? 2. County Attorney A. What method should be used to select a County Attorney? B. How should the County Attorney be removed? C. How should the salary level of the County Attorney be set? D. What requirements should be specified for the position of the County Attorney? 3. County Auditor A. Should the position of internal auditor be established in the Charter? B. What method should be needed to select an Internal Auditor? C. How should the Internal Auditor be removed? D. How should the salary level of the Internal Auditor be set? E. What requirements should be specified for the position of Internal Auditor? 2.10 III. County Executive Branch 1. County Administrator A. What method should be used to select/appoint a County Administrator? B. How should the Administrator be removed? C. How should the salary level of the Administrator be set? D. What Requirements should be specified for the Position of County Administrator? E. What Powers and Duties should be assigned to the County Administrator? F. What should be the line of succession for the County Administrator? G. Should there be a provIsIOn to specify Non-Interference of Legislative Branch? 2. Should the offices and departments of County government be specified in the Charter? If yes, how should they be organized? A. The office and department should be organized according to the function being performed and would include which of the following: I. Planning II. Administration Ill. Support IV. Operations v. Finance Department VI. Engineering VII. Other 3. With regard to the various Administrative Heads and their duties, which of the following should apply? A. Should there be Elected Administrative Heads and if so, what should they be? 2.11 B. Should there be appointed Administrative Heads and if so, what should they be? IV. County Elected Officials 1. Should the elected officials be elected or appointed? A. Office Elected Appointed Sheriff Property Appraiser Tax Collector Supervisor of Elections Clerk of Court Comptroller B. Who should have Final Authority for Budget Approval? Office County Comm State Sheriff Property Appraiser Tax Collector Supervisor of Elections Clerk of Court Comptroller C. Should the Constitutional Officers be required to use Central Service? Office Yes No Sheriff Property Appraiser Tax Collector Supervisor of Elections Clerk of Court Comptroller D. Should the County Attorney Represent the Other Elected Officials? V. Standing Boards and Authority 2.12 1. Should the Charter specify that a Zoning Board be established? If so, how? A. Members B. Duties should include? C. The authority ofthe Zoning Board should be? D. Decisions of the Zoning Board could be appealed to? 2. Should the Charter specify that a Planning Commission be created? If so, how? A. Members B. Duties should include? C. The Authority of the Planning Commission should be? D. Decisions of the Planning Commission could be appealed to? VI. Initiative, Referendum and Recall 1. Should Citizen Initiative to Enact Laws be permitt4ed? A. Petition of V oters--how many? B. Subject to Referendum--thresholds? C. Initiative prohibited with regard to? 2. Should Citizen Referendum to Repeal Laws be permitted? A. Petition of Voters B. Subject to Referendum 3 . Should there be a method to Recall County Commissioners and Other Elected Officials from office? A. Petition of Voters? B. By Governor for cause 2.13 C. Scheduling of Referendum D. How to Fill Vacancy? E. In accordance with general law procedures, or? VII. General Provisions 1. Should the Charter limit the ability of the County Commission to issue bond and/or other debt instruments? If so, how? A. Commission shall have the authority to issue general obligation bonds paid for property taxes only with approval of a county-wide referendum. B. Commission shall have the authority to issue revenue bonds, where the revenue from the project pays the debt service, only with the approval of a referendum of the people from the area encompassed or served by the project. C. Bonds can be issued by negotiated contract D. Bonds can be issued only by competitive bidding based upon lowest net interest cost. 2. How should Ordinance Adoption be handled? A. Public Notice B. Public Hearings C. Emergency Procedures D. As specifi~d in general law 3. How should a Conflict of a County Ordinance with a Municipal Ordinance be handled? A. County Ordinance prevails B. City Ordinance prevails C. City Ordinance prevails except in areas of? 4. What should be the effect, if any, of the Charter with regard to local laws and their Special Acts? 5 How should a conflict of a County Ordinance with a Municipal Ordinance 2.14 ..--'" be handled? 6. Should the Charter specify a Code of Ethics for County Government? 7. Who shall be named as a party for the County in legal actions involving the County? 8. Should the Charter address the appointment or employment of former elected officials and employees? 9. What method(s) should be specified in order to amend the Charter? 10. Shall the Charter specify a method for repeal of the Charter? 11. Should the Charter establish a method for periodic or continual review of the Charter? 12. Should the Charter contain a provision permitting the County Commission to review, establish or terminate special districts? VI. Ballot Questions/Prospective Amendments Finally, after sifting through the proposals, a Charter Commission or CRC may ultimately decide to propose adoption of a charter or propose amendments to an existing charter. Counsel should be sure to draft BOTH ballot qu~stions and proposed charter amendment language, because both are necessary, and reviewing both may crystallize concerns not readily observable by just reading the proposed ballot questions. In fact, it is important to have the proposed ballot questions and amendment language prepared to allow the CRC adequate time to review and approve the final versions of each. In cooperation with the Supervisor of Elections, the CRC should ensure compliance with any technical requirements of an already existing charter regarding publication and notification of the proposed ballot questions and amendment language. Although it is not necessary, adherence to a "single subject rule" when drafting ballot questions and amendment language will probably reduce the potential for voter confusion and later litigation. VII. Conclusion With careful planning and a practical approach, the task of adopting or revising a local government charter can be a positive experience. The Orange County CRC methodology will hopefully provide a helpful framework for 1<Y'....al governments and attorneys involved in the charter adoption or review process. 2.15