Portland Charter Commission approves final report including proposal for strong mayor

The Portland Charter Commission approved its final report Wednesday night, marking the culmination of a yearlong process to come up with proposed changes to city government that will be presented to voters for approval this November.

Included in the final report are 13 recommended changes that the commission has consolidated into eight proposed ballot questions. The report now will go to the City Council, which will look at how the proposed changes will be printed on the ballot and decide to adopt or revise the summaries that the commission has prepared for each question.

The commission voted 12-0 Wednesday to approve the final report.

“Congratulations, we have completed the biggest part of our work,” Chair Michael Kebede told fellow commissioners after the vote, noting that the commission will remain intact for about another month. “We’re still commissioners for a bit, but our final report that we’ve adopted today with any final edits from (our attorney) will be submitted to the City Council.”

The approval of the final report Wednesday came one year after the commission convened in June 2021 to start the work of reviewing and recommending changes to the city charter. The commission was formed with the approval of voters in 2020 in response to a citizen initiative to create a public financing program for municipal candidates, though the scope of its work has been much broader.

CHANGES IN LEADERSHIP MODEL

The most significant change being recommended would dramatically alter the structure of top city leadership, creating a strong executive mayor who would take the lead in preparing and presenting the city budget, who could nominate department heads, veto council ordinances and to whom the city’s top administrator would report.

The mayor would no longer be part of the City Council, which would grow to 12 members from its current nine, including the mayor, and the council could remove the mayor or order a recall with a three-fourths majority vote.

The top city administrator – currently the city manager – would play a reduced role in the new structure and would still oversee department heads but would report to the mayor, rather than the council, and would no longer take the lead on the city budget and capital improvement plan.

On Wednesday the commission approved a handful of minor last-minute changes to the proposal, including changing the name of the city’s new top administrator from “chief operating officer” to “chief administrator.”

Proponents of the commission’s changes have said the new leadership model would ensure that power rests with elected leaders of the city rather than the appointed city manager, while critics, including Mayor Kate Snyder and several former mayors, have said the changes would politicize management of the city and concentrate too much power in the mayor.

The final report includes an overview of the commission’s thinking behind the changes, saying the current system misleads voters about the extent of the mayor’s powers, that the mayor lacks the power to implement a policy agenda and that the current system gives too much decision-making power to an unelected official – the city manager.

“Under (the proposed) plan, most decision-making is centered in the hands of elected officials – the mayor and city councilors – who are directly responsible to the ultimate source of governing power: the voters,” the report says.

DISSENT ON MAYORAL PLAN

The report also includes a “minority report” from dissenting commissioners who did not support the strong mayor proposal. They were Marpheen Chann, Dory Waxman, Peter Eglinton and Shay Stewart-Bouley. The four commissioners wrote that the proposal goes “too far, too fast” for the city and cited a preference for the work of the commission’s original governance committee, which had proposed more limited changes and did not call for an executive mayor.

The dissenting commissioners said they were presented with expert testimony earlier this year contradicting the idea that a strong mayor system is “across the board” more transparent and accountable, that they were concerned by the proposal giving the new executive mayor unprecedented power to issue executive orders and that the proposal doesn’t include enough of a check on the mayor’s power and would disempower the council.

“We oppose the Governance Proposal given the lack of demonstrated need for an executive mayor and believe that more targeted fixes would have garnered near-unanimous support of the full Commission,” the dissenting commissioners wrote. “We are concerned about the risks of polarization between an executive mayor and Council, and the possibility of undue political influence over the day-to-day operations of the city.”

In total, the report contains 13 recommended changes which the commission has organized into eight ballot questions. The governance structure, including the changes to the role of the mayor and city manager and the size of the City Council, are grouped in one question.

The proposals that are the subject of other questions include: a revised charter preamble with an acknowledgment that the city sits on Wabanaki land; a clean elections program providing for municipal funding of candidates in local races; proportional ranked-choice voting; and a “school board budget autonomy” proposal that would eliminate council approval of the school budget amount.

Other proposals the commission also put into question call for codifying the Peaks Island Council, creating a new civilian police review board and establishing a city ethics commission and code of ethics.

NONCITIZEN VOTING RIGHTS LEFT OUT

The commission decided to not include in its final recommendations a proposal that would have granted voting rights to noncitizens in municipal elections. Although commissioners voted last spring to approve the proposal, the report notes there were concerns about whether such a proposal would be legal under state law and that ultimately the commission was not able to get a legal certification.

State law requires that the commission’s final report include a written opinion from an attorney admitted to the Maine Bar stating that the proposed revisions do not violate U.S. or Maine laws.

Jim Katsiaficas, the commission’s attorney, said Wednesday that he would be providing that legal opinion for six of the commission’s eight questions while separate attorneys would be providing the opinions for two other questions – the school budget proposal and clean elections.

Katsiaficas, of the firm Perkins Thompson, previously told the commission that while the requirement for school budget approval by a “municipal legislative body” in state law could be filled through alternatives to the council, such as a town meeting or voter referendum, it is not intended to apply to a school board.

“There is at the very least a legal risk that a court could strike down a municipality’s home rule charter amendment that purported to allocate budget approval power to a school board, which could affect the validity of any budget adopted by that school board and of any expenditures made in reliance on that budget,” a December memo from Perkins Thompson states.

LEGAL OPINIONS

However, a memo prepared last week by Drummond Woodsum, which serves as legal counsel to the Portland Public Schools, says that municipalities should be given latitude in revising their own charters and that a school board could be considered as meeting the definition of a body that could give approval.

The differences in opinion are an instance where “reasonable minds can disagree,” said Kebede, the commission chair, prior to Wednesday night’s meeting.

“I think it’s reassuring that the state’s top education firm is willing to put their name and reputation behind this opinion,” he added.

Attorney John Brautigam provided an opinion stating that the commission’s clean elections proposal, which creates a municipal fund for financing candidates for elected office, also is not in violation of state or federal law.

Katsiaficas raised concerns last month with the commission about a provision of the clean elections proposal barring foreign contributions or expenditures on ballot question campaigns, saying the U.S. Constitution has been interpreted to prohibit bans and restrictions on contributions to ballot question campaigns and that the Maine Legislature and governor also previously considered and rejected a similar ban in state law last year.

The commission had spent $86,553 on its work as of June 8, and Kebede told commissioners the final cost is likely to total over $100,000, much of it for legal expenses. The commission’s original budget was for $75,000, though Kebede said Wednesday that the additional costs could be covered with city contingency funds.