Sunday, March 1, 2015

Some Ideas on Amending the City Charter

Recent minimum-wage initiative and recall controversies have taught us that Las Cruces needs to amend its City Charter.

The initiative provision requires that when citizens gather sufficient signatures, the City Council must either pass the ordinance as it stands or schedule a referendum. Last fall, the Council did neither. The Councilors ignored the charter, avoiding a popular vote by purporting to adopt the ordinance then changing it significantly.

We need to add teeth to the charter provision. The challenge is to ensure the Council follows the citizens' mandate, while creating flexibility to adjust to changed circumstances or new information. My suggestion: add language confirming that the ordinance becomes law if the citizens vote it in, or the council does, and that it cannot be amended for a significant period of time – say, one year – except by either a citizens' vote or a petition by the Council to district court for permission. The Council would have to show the court a significant change in circumstances or new information. Citizens could oppose the showing. The judge would decide.

More than one year out, the Council could amend the ordinance. Voters could petition to nullify the amendment, but would need fewer signatures than they would if the ordinance had not been petition-initiated.

Some Councilors suggest another change. Because the petition-initiated ordinance is an unwieldy tool, making changes difficult once the petition process starts, they would require petitioners to first try to get the council to pass the desired ordinance. Petitioners unsatisfied by the council's action could then petition as they can now. The process might improve the ultimate petition.

We know the recall process can be seriously and wastefully abused.

The recent recall attempt could never have happened with county officers. State law requires that would-be recallers petition the district court, appear at a hearing, and convince the judge to find probable cause to believe there's malfeasance. Rich crackpots can't make the county waste resources on a special election unless a court agrees there's some basis.

Under the City Charter, you can recall a councilor because you didn't like one vote, or because s/he broke wind too loudly at a council meeting.

These tools – initiative, referendum, and recall, along with direct election of senators – were put in force a century ago during the progressive era, to strengthen the role of common people in our democracy. I hate to weaken them; but witnessing a small group abusing the recall procedure this winter, I kept thinking we needed change. (Fortunately the recallers are failing.)

I wouldn't eliminate the recall procedure. We should be able to recall elected leaders.

One possibility would be a hybrid charter provision that would borrow from state law the requirement of consulting a judge, but wouldn't allow the judge to nix the whole thing. Rather, if the judge agreed there was something more than political foolishness, the group could trigger an election as under the present Charter; but if the judge disagreed, the number of signature required to force an election would rise by, say, 35 to 50%. That is, absent a judge's blessing, you'd need a stronger show of interest from the community.

(A second possibility would be to increase the vote threshold, without involving a judge.)

Finally, we need a practical way to investigate and punish recallers whose operations are as rife with fraud as the current campaign to unseat three councilors. Election fraud is a crime. The Charter should provide that significant fraud can disqualify the whole campaign; and there should be a private right of action, under which voters could bring an action against recallers who commit 4th-degree felonies as freely as these folks did.

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, March 1, 2015.  Since writing it, I've already had one lively discussion with a City Councilor who liked some of the above ideas more than he liked others.  At some point soon, I'll make these suggestions in a more specific form, as a way to get the discussion going.]

[I mention the recall campaign.  Since my post the other night, I've been asked a lot of questions on that.  It now appears the City Clerk's Office will take until their deadline, which I think is next Friday, the 6th of March, to report to the City Council.  If, as I expect, the valid, in-district signatures on each petition aren't sufficient to trigger a recall election, the would-be recallers get another 15 days to increase the signatures sufficiently to reach their target numbers.  (I should note that my opinions on this do not come from the City Clerk's Office.  Those folks haven't said anything, or even winked -- and I haven't asked.)  Alternatively, they could just give up gracefully (which ain't too likely) or start some legal process that wouldn't have a chance but might buy them more time and would provide them a platform from which to keep slinging imaginary mud-balls at three good councilors.  I think we should still assume that they'll manage to force a wasteful special election, but the three councilors seem to be quite popular in their districts.]

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