In November of next year New Yorkers are likely to be called to vote on a set of ballot questions proposed by a Charter Revision Commission (the “2019 Commission”) initiated by the New York City Council.¹ The 2019 Commission does not have a specific mandate and intends to perform a top-to-bottom review of the Charter.² Such a review has not been done since New York City’s current governance structure was established following recommendations of the 1989 Charter Revision Commission.³ 

The 2019 Commission’s recent work suggests its goal is to focus on structural reforms that increase transparency, efficiency, and accountability. However, the Commission should broaden its mandate to consider not just additions or amendments to the current Charter, but also simplifications and updates that eliminate obsolete provisions and the need for constant legislative revision.  

On The Right Track 

On December 10, the 2019 Commissioners passed a resolution identifying five criteria for assessing Charter amendments proposed by the public.  Amendments should: be unlikely or unable to be accomplished through local law; be consistent with federal and state law; improve government effectiveness, transparency, accountability, or efficiency; affect how decisions are made, not the content of decisions; and not reverse recent referenda.⁴ These criteria put the 2019 Commission on the right track for three reasons.  

First, the criteria reinforce that the purpose of the Charter is to define the structure, authorities, and powers of government. New York State’s Municipal Home Rule Law establishes the right of cities to organize local governments through the creation of a Charter. State law does not specify what a Charter can or cannot contain other than requiring that it comply with the New York State Constitution and State law and does not infringe upon court-defined areas of State concern.⁵ Guidance found in the City Council’s bill drafting manual states that the Charter “generally lays out the fundamental structure and processes of the City’s government” or in the words of Frederick A.O. Schwarz, Jr., Chair of the 1989 Commission, a Charter’s “job is to provide a structure and process for governmental decision-making, not to make the decisions itself.”⁶ The specifics of policy and day-to-day process should be delineated in the Administrative Code.⁷  

Some recent commissions have proposed ballot initiatives that push the Charter beyond the boundaries of delineating governmental organization. For instance, the 2001 Commission created a gun-free zone around schools and enhanced school crime reporting.⁸ These are issues better addressed in the Administrative Code.  

Second, the criteria acknowledge the purpose of a charter revision commission, which is to gain public approval for amendments to the Charter that cannot happen otherwise. There are three ways to amend the Charter:  

1. Direct legislative action: the New York City Council can pass a bill on its own initiative, which must be signed by the Mayor;  

2. Public initiative: the general public can petition the City Council to pass a bill to amend the Charter. If the petition requirements set in State Law are met and the Council fails to act, the public can initiate a second petitioning process that, if successful, compels a public referendum on the proposed amendment; or,  

3. Charter Revision Commission: the Mayor, the City Council, or the public can establish a Charter Revision Commission to generate ballot proposals for public approval.⁹  

Despite alternatives for Charter changes, mayors and the City Council have chosen to use the time-intensive process of a establishing and working through a Commission because certain types of structural amendments to the Charter must be approved through referendum. For example, the public must approve changes to the composition of the City Council, the creation or elimination of an elective office, or alteration to mayoral succession.¹⁰ A commission avoids the alternative petitioning procedure or the need for the Council to pass legislation that might be controversial.  

Recent commissions have not always generated ballot proposals that require public approval. For example, the 2001 Commission established a Human Rights Commission and created new school crime reporting measures; the 2004 Commission established a code of conduct for Administrative Law Judges.¹¹ 

Third, the criteria will steer the Commissioners toward recommendations that address structural questions, which will be particularly valuable if focused on improving efficiency, accountability, and transparency. The eight commissions established since 1989 have offered more modest ballot initiatives better characterized as adjustments to existing processes and structures than systemic changes such as the most recent 2018 Commission’s alterations to the public campaign finance system.¹² These past commissions were missed opportunities to gain public approval for substantial improvements to government operations and structure.  

One Additional Goal 

As part of its top-to-bottom review, the 2019 Commission should also have as a goal to clear out the clutter. The 300-plus page Charter contains overly detailed provisions about operations and the duties and responsibilities of City agencies and elected officials. For example, the chapter on the Department of Education lays out specific reporting requirements about class size as well as requirements about the installation of security cameras.¹³ Elsewhere the Charter places specific dollar caps on fines that can be levied for refusal to allow a building inspector entry to a building ($100) and violations of private sewage disposal systems ($10,000).¹⁴  

An overly detailed Charter needlessly requires frequent revision to remain current. The proclivity to add rather than revise or delete leads to obsolete provisions. For example, Chapter 22 on the Department of Health and Mental Hygiene requires that the Department be evaluated in 2004 and 2006 to assess progress in integrating its Health and Mental Hygiene functions.¹⁵ A charter revision commission is the best vehicle for achieving this decluttering, since it can propose a broad ballot question to update and modernize the Charter.¹⁶  Recent commissions have failed to address this need.  

Conclusion 

The 2019 Commission will avoid the shortcomings of recent commissions if it stays true to its stated criteria and pursues Charter revisions that simplify and update the document. Striking unnecessary and out-of-date provisions would result in a Charter with greater integrity and clarity, and not subject to constant legislative revision.