Loading...
HomeMy Public PortalAboutBREW charter powerpoint6/24/2019 1 CHARTERS: ADOPTION AND AMENDMENT Town of Brewster June, 2019 Prepared by Lauren F. Goldberg, Esq. All materials © Copyright 2018 KP LAW, PC. All rights reserved. The following information is provided as an educational service by KP Law, P.C. It is general in nature and is not legal advice. Neither the giving nor the receipt of this information creates an attorney-client relationship between the presenter and/or KP Law P.C. and the recipient. You are advised neither to take, nor refrain from taking, any action based on this information without consulting your legal counsel about specific issue(s). A charter governs the form, structure and organization of government A charter is the “constitution” of the municipality, and takes precedence over local ordinances or bylaws, and in many cases, state law 6/24/2019 2 There are three basic types of charters: o Home Rule charters o Special act charters o Plan charters There is also a “standard” or statutory form of representative town meeting Only towns can operate without a charter They must follow the rules set forth in the General Laws All bylaws adopted by a town must be consistent with state law – bylaws can not make changes with respect to: o The size composition, or mode of election or appointment of the legislative body, board of selectmen, or town manager Much of the law about form of government is found in G.L. c.40 and c.41 It doesn’t mean that all towns without charters are the same – the law has built-in flexibility Examples of such laws include: G.L. c.41, §1 - one or more collectors, unless the town votes to authorize the treasurer to act as collector; G.L. c.41, 1B – change offices elected under G.L. c.41, §1 to appointed by vote of Town Meeting and an annual Town Election 6/24/2019 3 General Laws c.43C provides for establishment of three “consolidated” departments, - Municipal Finance, Housing and Community Development, and Inspections o These may be proposed by petition of registered voters or by the Selectmen. G. L. c. 43C, §4. o If the Selectmen choose to propose the consolidation, they must vote to place the question on the ballot at least 60 days prior to the next annual town meeting at which the election of officers will take place. G. L. c. 43C, §§6, 7. o Once the question is passed by the voters by ballot, a by-law must be drafted, approved by Town Meeting, and thereafter by the Office of the Attorney General. Alter application of state law with respect to: o Size of board of selectmen o Create town council o Create representative town meeting o Create position or define powers of town manager or administrator o Transfer power from board of selectmen or other statutory board or office to another entity, such as a town manager or other administrative staff o Professionalize certain staff o Coordinate operation of various departments General Laws c.43A establishes a standard form of representative town meeting Towns could have adopted this form of representative town meeting between 1931 and 1966 The statute provided for a representative town meeting of 240 members Arlington and Brookline have adopted this chapter Now, representative town meeting must be adopted under G.L. c.43B 6/24/2019 4 Prior to 1966, towns could create a city form of government by adoption of one of the “Plan” forms of government found in G.L. c.43C. These forms included options such as City Council with separately elected Mayor; City Council with Mayor elected from among Council; City Council and City Manager After passage of the Home Rule Amendment to the Massachusetts constitution, these plans are no longer available to be accepted, and cities with such Plans must amend under G.L. c.43B In 1966, the state adopted the Home Rule Amendment to the Massachusetts Constitution The amendment allowed a city or town to make changes to its form of government without action by the state legislature A city or town may elect a charter commission to adopt or make significant revisions to a charter or make smaller scale amendments to an already existing charter The Home Rule amendment authorizes all cities and towns to use its procedures to amend special acts adopted prior to the adoption of the amendment, as well as to amend “Plan” forms of government The Home Rule amendment also reserves to the General Court the ability to pass laws relative to a single city or town 6/24/2019 5 A special law applicable to a single town can be requested either: o (1) on petition filed or approved by the voters of a town or the town meeting of a town, with respect to a law relating to that town; (a “Home Rule Petition”) or o (2) by a two-thirds vote of each branch of the general court following a recommendation by the governor (a “Governor’s Bill”) When a town seeks passage of a special law, including a proposed charter, care should be taken as to how the request is worded– the General Court will be limited by the form of the vote o Do not use “substantially as follows” o Do use “as set forth below” o Consider whether to approve specific or general language o Consider whether to allow the Legislature to make ministerial changes o Consider whether to allow the Legislature to make more significant changes Approval of a Home Rule petition, including for a Charter, requires only a majority vote of town meeting An article for a home rule petition may appear on a warrant for town meeting by vote of the board of selectmen or by petition of ten registered voters for an annual meeting or 100 registered voters for a special meeting (unless a charter or special act requires otherwise) 6/24/2019 6 There is nothing in state law or the constitution that requires a Home Rule Petition to include a “voter acceptance” provision Many special acts can and do take effect upon approval However, particularly when something “major” is being proposed, the Legislature likes to see such a provision included Whether to include the same is a policy decision The Home Rule Procedures Act, G.L. c.43B, was adopted to implement the Home Rule Amendment The process involves many procedural requirements and can take from one to two years to accomplish if the Town chooses to elect a Charter Commission It authorizes two different processes: o Charter Adoption or “Major” Charter Revision Involves filing of a petition by 15% of the registered voters, election of a nine-member charter commission, holding of at least one public hearing, preparation of a preliminary and final report, a mailing to all registered voters in the town, and a ballot question o Charter Amendment or “Minor” Charter Revision Involves approval of the amendment by a 2/3 vote of the town meeting and approval by the voters at an election 6/24/2019 7 Must be consistent with state law A charter adopted in this manner cannot: Regulate elections o Levy, assess or collect taxes o Borrow money or pledge credit of municipality o Dispose of park land o Govern civil relationships (such as those between landlord and tenant) o Define and punish a felony, or impose imprisonment as a punishment Only an elected charter commission may recommend such matters under G.L. c.43B To create an elected charter commission, a petition must be circulated on a particular form prepared by the state The petition must be signed by no less than 15% of the registered voters of the municipality as of the last state election Preliminary report sent to Attorney General and DHCD, printed in a newspaper of general circulation Within 45 days after publication, hold another public hearing and the Attorney General must issue an opinion as to the consistency of the proposed charter or revision with state law and the constitution Within 18 months after election, the commission must submit a final report to board of selectmen, which must include the text of the charter Copies must be sent to the Attorney General, and DHCD No later than two weeks prior to the election, the report must also be sent to the residence of each registered voter in the municipality 6/24/2019 8 May be proposed by town meeting Requires approval by a 2/3 vote Proposed amendment is then forwarded to Attorney General and DHCD If Attorney General finds it is consistent with state law and the constitution, the order becomes effective 30 days after submission Question to approve the same must appear on the ballot at the next regular election occurring at least 60 days after effective date of order At least two weeks prior to election, proposed amendment must be forwarded to all registered voters in the municipality A charter amendment article may be “proposed” by vote of the board of selectmen or by town meeting pursuant to a petitioned article under G.L. c.39, §10 A charter amendment article may be “suggested” by a single member of a board of selectmen or city or town council or mayor or town manager, or by petition in accordance with G.L. c.43B, §15 If an article is “proposed”, no hearing is required If an article is “suggested”, a hearing process is implicated Within three months after filing of a suggested amendment, the board of selectmen must order a public hearing The hearing must be held within four months of the filing, for which notice appears in a newspaper at least seven days prior The legislative body must then take action in the normal course – no later than the first annual meeting occurring at least six months after the filing, or at a special meeting held prior thereto 6/24/2019 9 The difference is what is written in the Charter How much independent authority does that position hold? Under state law, acts “by and through” Board of Selectmen Typically, a Town Manager has more independent authority BUT depends on what the Charter says Ultimately, the important thing to focus on is what the Town Administrator/Town Manager can do without the express permission of the board Appointed charter or government structure review committees Scope of authority Effect of recommendations Role in preparing, presenting and “defending” proposed amendments Relationship to appointing authority, legislative body, and role if amendments are approved Most frequently, one of goals of charter is to change relationship between executive and administrative officers with respect to: Appointment and removal authority Supervisory authority Coordination of municipal government functions, particularly with respect to personnel policy and procedures Contract negotiations and award of contracts Jurisdiction over rental, use and maintenance of municipal buildings 6/24/2019 10 Establish relationship between executive and administrative officers with respect to: Procurement duties Financial functions Annual operating budget Capital budget Signing of payroll and other warrants for payment Coordinate or direct litigation and use of legal counsel Government Review Process If a “complete” review will be undertaken, it is imperative that the process involve the stakeholders – usually this means a series of interviews and public meetings held specifically to encourage feedback, and including: Municipal officials, appointed and elected High level administrative staff, and other employees Established interest groups Members of the general public Government Review Process Even if significant changes are not needed or wanted, a charter review is a good excuse to clarify ambiguous language, and address gender, numbering, and grammatical issues Charter review committees and charter commissions are subject to the Open Meeting Law, Conflict of Interest Law and Public Records Law, and care must be taken to comply with the same, particularly if subcommittees are tasked with specific projects 6/24/2019 11 Government Review Process o Encourage distribution of information through •Notice to the press •Posting on municipal website •Posting notice on local cable television station •Working with local public and private groups Government Review Process Questions may include: What’s working and what’s not working? Review operational issues – who has what responsibility? Are there proper checks and balances? Who is responsible to who? Who can make policies? Who makes personnel decisions? Who is appointed and who is elected? Who can be removed, and by whom? Name of chief executive (Select Board; Selectboard; Executive Board; etc.) Consolidation of financial functions under Finance Director Chief administrative officer with independent authority over hiring and firing of employees Broad outline of budget process Changing of certain positions and boards from elected to appointed Authoring chief administrative officer to sign warrants for payment Consolidation of like functions for administrative purposes – department of public works, land use boards department Allowing transfers between line items by financial staff 6/24/2019 12 Remember that there is no easy solution – each municipality is different, and there is no “cookie cutter” solution Examples from other municipalities may be a good starting point, but must be tailored to meet each municipality’s unique history, culture, and goals Resources KP Law eUpdates: http://k-plaw.com/resources/eupdates/ KP Law Public Records Resources: http://k-plaw.com/resources/public-records-law-resources/ Questions? Lauren F. Goldberg, Esq. lgoldberg@k-plaw.com www.k-plaw.com 617.556.0007