For Charter, it's all in the timing
Eric Lane
Crain's New York
June 6, 2010

A major question that the new City Charter commission must address is whether it will put any issue on the ballot this coming November. If the commission concludes after its hearings, discussions and study that the current Charter needs only a tweak or some uncontroversial changes, it might be able to prepare such changes in time. But if it decides that there is serious work to do, it should give itself time to study the issues, prepare solutions and publish them to provide an opportunity for public response, and finally allow time to consider the response. Three summer months is not enough time.

Serious work would include changing the balance of power among elected officials or the important processes of decision-making, which the 1989 Charter defined after an intensely public process.

For example, some people have raised concerns about the city's land-use decision-making process, known as Ulurp. Should the Ulurp process be shortened? Should the city Planning Commission (not Department) be eliminated? Should the borough presidents or community boards be given more power in this process? Has the City Council's power to review all land-use decisions allowed council members to exercise vetoes over projects within their districts? Another issue that clearly falls within the serious work category is nonpartisan elections, particularly since it was defeated only several years ago. Answering these questions demands real deliberation.

One controversial question that the commission seems ready to resolve in time for a November referendum is what to do about term limits. Mayor Bloomberg promised to address the question in response to the public outcry over his endorsement of the local law that extended the number of terms from two to three. The question of the numbers of terms is discreet, simple and the subject of extensive discussion and study over the past decade. For example, see my own work, “The Impact of Term Limits on Lawmaking in New York,” Election Law Journal (2004), concluding that more terms would result in a better council.

One note of caution on this point: It is not the number of terms that triggered the angry public response, but the use of local law to overturn a referendum. Whether the commission has the authority to address that issue is an open question. Deciding if the commission should, as a policy matter, propose limiting the council's ability to affect term limits established by a referendum needs careful thought. Creating any precedent that prohibits the Legislature from addressing referendum-created law can lead to the same type of problems that have crippled governance in California. My own solution would be to limit council members from changing term limits for themselves, but not for members of a future council.

Placing a question on the ballot this year raises another issue. By law, such placement ends a commission's tenure. If the commission wants both to address term limits this year and continue with serious work next year, the mayor must agree to reappoint it. We can only wonder if he would be willing to commit to this.

Eric Lane is a professor at Hofstra Law School and senior fellow at the Brennan Center. He was the executive director of the 1988 and 1989 Charter Revision Commissions.