Evaluating the New City Charter
A three-year report cardOctober 1, 1999
The new city charter became effective in July, 1996 after more than twenty years of work to draft and get voter approval for a modern constitution for San Francisco. Now that three years have passed, it is an appropriate time to examine its legal viability and to review the implementation of the goals and objectives set out for it.
The best way to examine its legal viability is to look at the legal challenges brought against it. During the these first three years, two challenges were made. Citizens challenged the process set forth for the appointment of department heads, arguing that the charter's requirement of Commission recommendations of candidates to the Mayor should be revealed to the public and open for comment. The court found that the charter process should be viewed as a whole and as such was permitted to be conducted without public review. In the second suit, a controversy arose between the Airport Commission and the Human Rights Commission, in which the Airport Commission claimed that the Human Rights Commission's actions on affirmative action and minority hiring were only advisory to the airport and that it could ignore them should it so chose. The court found that the "plain language" of the charter held that the Airport had to follow the Human Rights Commission directives. Thus, in both cases the courts favored the clear intent of the Charter.
The proponents of the new Charter set forth three objectives in its favor over the old Charter: (1) to place executive responsibility under elected officials, particularly the Mayor; (2) to facilitate the reorganization of city government to make it more rational and efficient; and (3) to provide the public with a Charter which was well organized and simple and clear in its language. The new charter ended the split executive form of government found in the old charter by eliminating the position of chief administrative officer and placing all executive departments under the authority of the Mayor. As would be expected, Mayor Willie Brown has assumed that authority to the maximum.
The Mayor has, however, ignored Section 9.100 of the charter which calls for the enactment of "Budget Process Ordinances". The old charter contained detailed prescriptions for the preparation of the city budget. It was the intent in the new charter to have the mayor and the Board of Supervisors enact and, if need be, update various budget process ordinances to set forth the form of and guide the schedule for the preparation of the budget. These ordinances were to contain provisions for public participation and review in the preparation of the budget. Such ordinances have never been enacted and the budget process is wholly under the control of the Mayor. Over the last decade, proposals to reorganize city government were periodically made to make government more accessible to the public or more efficient. Former Supervisor Carole Migden held hearings in 1992-93 on many proposed reorganizations plans and determined that many claims of savings turned out to be illusory. However, the new charter contains language to facilitate the reorganization of departments within the existing commissions and eliminates much of the archaic language controlling various city functions.
Mayor Brown has implemented two reorganizations which were viewed by the Migden hearings and others as having the most public benefit. He transferred the waste water Ssstem (sewers) from the Public Works Department to the Public Utilities Commission so that everything to do with water, from collection fresh water in the Sierras to disposing of treated waste water in the Pacific Ocean, would be under one agency. He also transferred the emergency ambulance service from the health department to the fire department to unify the City's emergency response team. The new Charter also gave the Mayor and the Board of Supervisors the power to merge the Department of Parking and Traffic into the Public Transportation Commission, which has yet to be implemented. The opportunity for reform provided by the removal of the restrictions in the old charter for such agencies as the city purchaser have not been vigorously pursued. In this emerging age of e-commerce and electronic procurement, the Purchaser is still going about his business in traditional ways.
The new charter is based on the 1980 draft charter which was written with the assistance of a major law firm in the clearest and simplest language. Then-Supervisor Barbara Kaufman and her committee took that draft as their template on which to prepare the new charter. However, they had to deal in the political world and craft a document which would be approved by the voters. Thus, the goal of clear and simple language was often compromised to obtain the support of important groups and individuals. For instance, the former director of one department insisted that the language from the old charter covering that department be inserted into the new charter because the department was familiar and comfortable with it. Thus an added page of old fashioned language was inserted to make that individual happy. However, basic form of the 1980 draft charter remained in place and 80% of the language was not touched.
Unfortunately, the goal of a clear and simple charter has not stood up well since the enactment of the charter. For instance, the successful initiative to reestablish district elections added to the heart of the new charter six pages of dense text describing district boundaries, thus expanding the charter by more than 5%. These specifications will be rarely consulted by the public except during election years and thus should have been placed in the charter's appendices, which were created to house such obscure material. Likewise, the current Municipal Transportation Agency charter amendment (Proposition E on the November Ballot), which proposes bringing needed improvements to the city's transportation system, expands the charter by an additional 15% and incorporates into it, in the author's opinion, extensive, convoluted, and antiquated legal language.
Unless controls are set up and a mechanism created to purge the charter of poor draftsmanship, the new charter will rapidly become as dense and confusing as the old and perhaps as long. The author has proposed that supervisors create an advisory committee to their rules committee to screen proposed charter amendments for form and integrity to the new charter and to propose technical amendments to maintain the charter as a clear and understandable document. The advisory committee would be composed of five members recruited from academia, the legal profession, and experts in clear writing. Without such a committee to protect and improve the new charter, it will slowly be degraded.