AMHERST’S NEW GOVERNMENT:  CHECKS AND BALANCES

James Madison sought, both in the Constitution he largely fashioned and in The Federalist  essays he wrote to urge its ratification, to explain the central and novel idea of checks and balances.  He would be distraught to see the degree to which partisanship in 2018 has sought deliberately to overturn this core feature of our national government.  He would be similarly saddened to visit Amherst in 2018 and discover that, given the opportunity to create a new government, Amherst chose to disregard checks and balances.  Neither nationally nor locally is this disregard accidental.

Voters, as they consider the various candidates for Town Council seats should seek to discern their views about this essential feature of democratic governance.  Here are some questions voters should think about and question candidates about.

Separation of Powers  At the core of a system of checks and balances both within and between the legislative and executive branches is the idea that political bodies are both independent of one another and dependent upon one other. This is delicate; too much independence can lead to fragmentation and paralysis while too much dependence can lead to tyranny, either by an oligarchy or by the majority.  Since the Charter gives all power to the Town Council and since all appointees in Town Hall serve at its pleasure, any semblance of separation will depend upon the willingness and ability of councillors to delegate authority to its appointees and to other bodies, whether specified or unspecified in the Charter. Would candidates be willing to do this?

Political Parties  The purpose of political parties is to undermine the system of checks and balances.   A political party wants to control the government to the greatest extent possible. The greater their success at doing this, the less bodies of government are able to act independently or check one another if power is abused.  We have seen this take place nationally; in Amherst the question is, will it happen here? Or perhaps, is it happening here? Candidates for the Town Council should be asked if they will serve independently, regardless of any pressure that may be put on them by any organized group.  Their statements should be studied to identify their commitment to act and vote independently.

The Voice of the People  Town Meeting, like the House of Representatives, was designed to give members of the community easier access to their government as well as a more representative voice in that government.  At both state and national levels, the separation of the General Court and Congress into two independent bodies is an excellent example of checks and balances at work. (Thank you, John Adams.)  But when the lower “popular” house is eliminated what role do the voters have in the intricate system of checks and balances? Two answers to this, often voiced in Amherst during the Charter debate, must be dismissed.  First, elections are not part of the checks and balances system. Incumbents can be re-elected or defeated, but during their incumbency they are unchecked by voters or other members of the community. Second, the charter calls for periodic forums in which voters may have the opportunity to express their opinions (or may not, since the length and form of the forum is up to the Town Council and councillors are not required to attend the forum).  Candidates should be expected to explain how voters and other residents of Amherst can provide a check on the power of the Town Council.

Concentration of Powers  The new government explicitly gives all powers to the Town Council.  Some explain that this is “boilerplate”, that similar language can be found in city charters all across the Commonwealth.  That is true - and perhaps terrifying. It is not true of towns that have kept their town meetings. It is true of cities only, and for smaller cities like Amherst it is likely to feel like a real diminution of voter power.  Combined with the advent of political parties in Amherst, as well as the well-established inclination of governmental committees in Amherst to vote unanimously, we have every reason to be concerned that the multiplicity and diversity of voices and opinions will be less represented in our governance.  What will candidates do, if elected, to avoid the dangers of the concentration of powers?

Thoughts about the Future of TMAC

Michael Greenebaum

I want to share some thoughts with all those who may be interested in the future of Amherst governance and the role of some sort of TMAC-like group in that future.  

1.  The existence of TMAC - and TMCC and SPP - is coterminous with Town Meeting itself.  I will mention the profound sadness I feel about the loss of Town Meeting and then set it aside.

2.   The new governance of Amherst is inherently unstable, quite apart from the virtues of those who are elected or appointed to participate in it.  The Town council especially, with its 2-year election cycle in which all seats are up for filling, will be susceptible to the same kind of strategies that have infected the US House of Representatives - incumbency, outside money, and - as we have already seen - candidates running for both district and at-large seats.

3.  These strategies to counteract inherent instability and volatility will lead to a second tendency in the Town Council - toward unanimous or nearly-unanimous decision-making.  This, of course, is nothing new; we have seen it in town boards and committees forever, but there has been, until now, a countervailing political force in Town Meeting.  But there will be two levels of decisions: decisions on motions, and decisions about what matters are brought before the Town Council for a vote.  This latter level is uncharted waters; it is not at all clear how the procedure analogous to placing an article on the Warrant will be accomplished.

4.  I have described points 2 and 3 above in procedural terms, but these procedural problems have structural analogs:  because there is no separation of powers with the capacity to check one another these tendencies will, over time, grow more pronounced and the Town Council more autocratic, and differences of viewpoint and opinion will be increasingly unwelcome.

5.  This is why the creation of something like TMAC to provide public assessment of Council policies and procedures as well as the motions on the table is so vital.  Whatever shape it has, it will be outside the charter and bylaws, but that does not mean it cannot function “as if” it were a part of town government.

6.  At the core of whatever shape it takes should be the ideas that governed the initiation of TMAC - that there should be an independent group to publicly analyze and assess the benefits and impacts of motions coming before the Town Council.  John Hornik’s brilliant list of areas to be referenced should form a public checklist to govern the activities and focuses of the group:

Benefits to and Impacts on:

specific neighborhoods

individual taxpayers

specific populations (i.e. children, families, elderly)

the streetscape of the Town

the Town history and culture

public safety

Town economy

the environment

I propose adding to this list, based upon my concerns listed in 2-4 above

town management

democratic governance

No doubt other additions and revisions to this list are in order, but in my view such a list is the centerpiece of whatever TMAC might become under the new government.

7.  Also in my view, it would be a great mistake to think of this group as a voice of those who voted “No” in the March election.  Its role, as indicated in its original name, is to give public advice to those who will vote on matters coming before the town.  Under the new governance it is not a voice of opposition or a voice of support; it is a voice of analysis.

8.  What form should it take, and what should it be called?  It could be the same as TMAC, although it would no longer have the imprimatur or the financial support of the town.  There would have to be discussion about the foundation of its legitimacy and the basis of its membership and finances.  It could be called the Town Advisory Committee or something anodyne like that.

9.  Or it could be rethought in the light of new circumstances.  Its membership need not be elected or limited in number.  It could be some imaginative combination of the LWV observer corps which used to attend board and committee meetings and Mary Streeter’s invaluable list serve.  While it would not be subject to the Open Meeting Law, it is of the essence that its work be public.  I can imagine a corps of committed observers, checklist in hand, attending meetings and then writing up their analysis of benefits and impacts on a list serve published well prior to the Town Council second reading of motions on the table.

10.  Or it could be something else entirely.

11.  Getting from here to there is the tricky part.  Right now, all committees of Town Meeting have juridical status, but it is not clear how long that will be the case.  I am sending this memo to the list Chris Riddle has been using because I know the folks on it have demonstrated a commitment to good governance and may well be willing to guide the development of some such group as I have suggested.

12. It may not be wise to identify such a development with the committees currently existing as Town Meeting committees.  It might be preferable to form something like a “Town Advisory Committee Working Group” with an open invitation to other residents to join it to deal with these issues (and others) in creating a new group.

THE NECESSITY OF TOWN MEETING

Up til now, my blog posts have fluctuated between praising Town Meeting, pointing out the deficiencies of the proposed charter, and wondering about the organization behind the charter, Amherst For All.  As we enter the final days of this exhausting and dispiriting campaign,  I want to make a stronger case: Town Meeting is essential to assuring Amherst the future we want.

This was confirmed for me by a recent article that announced a poll by the website niche.com.  They rank school systems nationwide on the basis of several metrics as well as other qualitative criteria.  In Massachusetts they ranked between 215-218 school districts based on the availability of data.  Here are the first fifteen school districts:

Name Population Form of Government

1. Wellesley 28,000              Representative Town Meeting
2. Lexington 31,000               Representative Town Meeting
3. Newton 85,000               Mayor-Council
4. Westford                   22,000              Open Town Meeting
5. Cambridge               105,000              Mayor-Manager-Council
6. Belmont 25,000              Representative Town Meeting
7. Weston 11,000              Open Town Meeting
8. Brookline 59,000              Representative Town Meeting
9. Wayland 13,000              Open Town Meeting
10. Acton-Boxborough 29,000              Open Town Meeting
11. Amherst-Pelham 38,000              Representative Town Meeting
12. Needham                  29,000              Representative Town Meeting
13. Westborough 18,000              Open Town Meeting
14. Lenox                        5,000              Open Town Meeting
15. Harvard                     6,500              Open Town Meeting

This list is worth studying and then contemplating as Amherst voters prepare to cast their ballots on March 27th.  First, we can be pleased that our own schools rank so highly in Massachusetts.  Second, we can be pleased about the company we keep.  Third, we should note that 13 of these systems come from towns with either representative or open town meetings.  Two are from cities with significantly larger populations than ours.

The overwhelming preponderance on this list of towns with a town meeting form of government is no coincidence.  Here are the rankings (out of 215-218) of the cities whose company we would join if the charter passes:

31.    Franklin

44.    Barnstable

70.    East Longmeadow

115.  Palmer

135.  Randolph

142.  Watertown

148.  Bridgewater

173.  Southbridge

 —    Chelsea (insufficient data)

 —    Winthrop (insufficient data)

The inference is inescapable:  communities in which voters have a direct voice in making decisions about budgets support their schools to a greater degree than communities where those decisions are delegated to a small council.  Budgets are, in essence, reflections of a community’s priorities.  There are always hard choices to be made.  Higher taxes, level of state funding, school programs have always been major players in the drama surrounding those choices.  And there are many other players too - salary levels, staffing levels, fluctuating utility costs, enrollment projections, just to mention some of those pertaining to schools.

In the annual juggling of taxes and schools, managerial priorities take higher precedence in councils.  It is not bad that they do; we should want our executive to be good managers.  But we should want just as fervently a body that challenges the managers to be true to the values and priorities of the community they serve.  “Throwing the rascals out” every two years seems to be Amherst For All’s preferred way of doing this.  But it is a dreadful way.

Town Meeting is necessary, not only to the Town as a whole, but to the Boards and Committees in particular.  It reminds the Boards of the Town’s priorities amidst these difficult decisions.  When Town Meeting’s priorities priorities differ from the Boards it should be a sign that recalibration and collaboration are in order.  Sadly, this hasn’t happened recently.  

Amherst For All claims that the 13-person council will exercise “policy leadership” for the town.  What that may mean depends at any given moment on who serves on the council.  But at any given moment, that’s it.  And that’s bad.  It is inherently unstable as councillors come and go.  Two years is not a great span as policy leadership goes.

Town Meeting is inherently stable.  It contains many interests and factions that combine and separate and re-join depending on the issue at hand.  It accepts disagreement as the foundation of democracy and accepts voting as the way of deciding priorities.   It is too big to be corrupted or to be infiltrated.   It has all the defects of its virtues.

At a recent debate sponsored by the Amherst Area Chamber of Commerce, Andy Churchill, representing Amherst For All, and I, representing the coalition of groups opposed to the charter, were asked whether our campaigns have anything like a united vision for the future of Amherst.  Andy answered yes.  And indeed Amherst For All does have a unified vision and asks its members to pledge their support to it. 

I answered no.  In a democracy, there are and should be competing visions.  In Town Meeting there are competing visions.  Those who vote together on one issue may be opponents on another.  I suggested that we need a sort of meta-vision - a civic society whose members can, together, devise an etiquette of controversy which supports both disagreement and the manner of resolving it.  That is what Town Meeting does.  That is why it is necessary.

CHAMBER OF COMMERCE DEBATE, MARCH 8, 2018

Opening Remarks

I’ve been at this a long time.  In 1993 I was elected to the first Charter Commission, so this is my 25th year of advocating for our representative town meeting.  Tonight  I am speaking especially to undecided voters, or those unclear about the issues or how this vote might affect them.  This debate is really a tale of two charters - the one we have now and the one that Amherst For All wishes to replace it with.

Current Charter

Under our current charter, control is diffused throughout the system in a way that no part of government or no individuals can have unchecked control.

The Town Manager has a significant sphere of independent authority and appointing power but he/she is appointed, supervised, evaluated and if necessary dismissed by the Select Board.

The Select Board reviews, modifies, endorses and forwards the Manager’s town budget and all other warrant articles to Town Meeting.

Town Meeting approves the town budget with or without amendments but it cannot change line items within it.

It almost always approves the town budget but sometimes it adds items that the Select Board chose not to include.  In recent years these have included

a higher level of human services support

restoring school library aides

opening the War Memorial pool

Town Meeting can only act on articles presented to it by the Select Board, and the Select Board has no recourse if Town Meeting disapproves a motion.  But the voters do - they can force Town Meeting to reconsider its vote.  This happened in January 2017.  Thus, the branches of town government are independent and interdependent at the same time.

Proposed Charter

The proposed Charter is confused, incoherent and lazy in these areas which are so well and even delicately balanced at present.

It centers control in a single body and allows a quorum of 7 councillors to act and make decisions for the town.  Sometimes this can be as few as 4 councillors.  But it is incoherent about how this works or what kind of body the council is.

In Section 1.3 it is a legislature

In Section 2.1 it picks up the responsibility for “policy leadership,” a clearly executive function, and so described when Amherst For All was hoping for a mayor.

By Section 2.5 the council is described as predominantly an executive body: “Except as otherwise provided by the general laws or this Charter, all powers of the Town shall be vested in the Town Council as a whole. . .”This kind of statement is called boilerplate - standard legal language when a formal act is too lazy to spell out what it means.

Right now our elected officials have staggered 3-year terms. Every year voters fill 1 or 2 positions on the Select Board, School Committee and Library Trustees, and 8 or so candidates for Town Meeting members. Under the proposed charter, we vote every two years instead of every year - 20 positions on the city ballot and who knows how many candidates?  Not only that - all positions are open every two years; every two years there can be a complete turnover of all town boards - how’s that for policy leadership? what guidance does that give the town manager, all of whose acts and appointments must be approved by the council?

The proposed charter suppresses democracy.  Voting is no guarantee of democracy - ask President Xi of China.  You can only vote for someone on the ballot, and who is on the ballot depends on who chooses to run, or who is chosen to run.

The smaller the body the more easily influenced or even infiltrated the ballot can be.

This charter is for a long time.  It cannot be substantively changed without another charter commission.  No mayor, no reduced council size in 2024 or any other time without a charter commission.  This is important to emphasize because at one time Amherst For All was saying that if we didn’t like the charter we could change it.  No we can’t.

This is a terribly important vote. It will impact not only how Amherst will be governed in the future but also how, if ever, Amherst can mend the serious rents in our social and political fabric.  How are we going to be able to devise and support an etiquette of controversy that will let us debate, disagree and decide as a single, diverse community? That’s what Town Meeting does.  That’s what Town Meeting is.

Closing Remarks

Disagreement is the foundation of democracy, but it makes democracy inherently fragile, under threat from both those who don’t trust the people and those who don’t trust government.

How can democratic governance protect itself from both autocracy and populism?  There is no better answer than Representative Town Meeting.  It is ironic that the positive, optimistic vote at this coming election is NO.  A NO vote keeps a legislature that is accountable, responsive and capable of self-renewal. 

Back in the 1990s I was a critic of town meeting, ready to give it some tough love. There was a Town Meeting Study Committee in 1996 which proposed 28 improvements 15 of which were completely or substantially adopted.

IN 2001, Town Meeting approved the Town Meeting Coordinating Committee which has provided support to members and voters through Warrant Reviews, neighborhood Warrant discussions, opportunities for voters to meet and question the candidates for Town Meeting, and an opportunity to visit sites impacted by proposed changes in the Zoning Bylaw.

In 2016, Town Meeting approved the Subcommittee on Policies and Procedures which, for the first time provided a mechanism to study modify and improve town meeting’s operations.

And last fall, perhaps the most important committee of all, the Town Meeting Advisory Committee, was approved.  Since most articles on the Warrant are brought by their advocates (which is perfectly fine), the new Advisory Committee will provide independent analysis of the benefits and impacts upon such matters as particular populations, the character and streetscape of the town, travel and parking, municipal services and affordability.  

Not only that but the Subcommittee on Policies and Procedures has on the table 57 other suggestions from town meeting members and other residents.  Amherst For All talks about a status quo, but Town Meeting is a dynamic legislature, with the capacity and desire to continue self-improvement.

Why give all this up for a council that can decide the future of the town with 7 votes.  That only needs to meet once a month?  That is more susceptible to being controlled from without?  Whose membership and policies can be upended every two years?

Why give this up for elections that are held half as often with 20 positions on the ballot and who knows how many candidates?

Why give this up for procedures of petition and voter initiative that are more difficult than they are now?  

Why give this up for the opportunities to speak at open hearings and meetings that we have right now?

I believe strongly in Town Meeting, but I do not love it.  I do not enter its sessions with great joy, although I often leave them with great admiration.  From time to time I check myself to see if I am being overly influenced by sentiment or nostalgia - something that comes easily at my age - but I do not think so.  I believe in our great experiment in democracy;  I know it is not easy. I know that opponents can drive us crazy.  I know that participation is always more demanding than delegation to others. 

I do love Amherst.  When my family and I came here 48 years ago, we were amazed to have cows over our back fence in North Amherst!  I was amazed at Town Meeting - citizens arguing about a hundred dollar expense!  It didn’t take me long to realize that Town Meeting is the new thing, participatory democracy is still a new thing, a rare thing, a crucial thing, but a fragile.  On March 27th please vote NO to preserve it.

THE CONCENTRATION OF POWER: A ROTTEN COMPROMISE

Have you ever noticed that the folks urging you to read the proposed charter are those who oppose it?  There is a reason for that.  The majority on the Charter Commission didn’t really want this peculiar structure.  It is the result of what philosopher Avitai Margalit has called “a rotten compromise.”  That sounds strong.  It is strong.  Margalit uses the term to describe compromises that violate basic principles of fairness and human dignity.  Can a proposal that seeks to concentrate political power in a small single body when it is now dispersed among separated but co-dependent branches be called rotten? Let’s see.

Even before the Charter Commission was elected, Amherst For All was enthusiastic about a smaller council and a mayor rather than manager.  Because the majority on the Charter Commission was so thin, 5-4, a series of compromises jettisoned the mayor in favor of a town manager, and the council was enlarged from 9 to 13. 

I am quite sure I would have opposed a council-mayor charter but I would have acknowledged that it had a conceptual and structural integrity that the charter on offer lacks.  A mayor, elected by the whole town, provides “policy leadership”, which is one of the chief functions of an executive.  The council, elected by precincts, districts, or wards (take your pick) enacts the laws and provisions necessary to support - or oppose - that vision.  We have seen this at work recently in Northampton over the issue of more security cameras downtown.

What Amherst For All wants us to support on March 27th is not even a pale imitation of a mayor-council charter.  It is a mishmash of poorly thought-out and poorly explained ideas.  Please follow along.

Article 1 section 3 of the proposal states “All legislative powers of the Town shall be exercised by a Town Council. . .The administration of all Town fiscal, prudential and municipal affairs shall be vested in the executive branch headed by the Town Manager.”  

Article 2 section 1(a) however says that “[t]here shall be a Town Council consisting of 13 members which shall exercise the policy leadership and legislative powers of the Town.”  

Article 2, section 5, says “Except as otherwise provided by the general laws or this Charter, all powers of the Town shall be vested in the Town Council as a whole. . .”

This is a remarkable sequence of statements and it should be disturbing to all voters.  Within a few pages the council has been transformed from a legislature   to an executive-legislative hybrid to an executive agency.  “All powers of the Town” is a powerful and breathtaking statement.  It is also what makes this charter proposal a rotten compromise.  

It says in essence, that the council can do whatever it wants. What it wants to do depends upon who sits on it.  Who sits on it depends upon who runs for it.  And who runs for it depends upon who chooses to run - or who is chosen to run.

Unlike the present strong town manager arrangement, the charter takes away the manager’s independent sphere of authority.  All appointments, even within town administration, are subject to the council’s approval.  While the proposal gives lip service to the idea of voter petition and voter initiative, it makes these actions immeasurably more difficult than our current charter.  While this proposal, unlike earlier charter proposals rejected by the town, does not permit a pocket veto, it does allow a citizen petition to be enacted without council action.  Is this a good or a bad idea?  It depends on the petition.  It depends on the citizen.

The charter allows 7 (sometimes 9) or even 4 people to decide the fate of the Town.  This is rotten.  Even if it turns out that the 9, 7 or 4 people reflect my opinion on the matter at hand it is rotten.  I don’t know who those people will be.  Neither does Amherst For All, even though they will try hard to elect councilors who agree with them.  It is an extreme diminution of the numbers of people participating in making these decisions.  It seeks to reduce dissent and make it easier for outside forces to control both the membership and the decisions of a council.  Outside forces will inevitably seek to do so.  

How could the charter commission majority have agreed to a rotten compromise, one that challenges the basic precepts of democratic governance? The answer is simple: they hate Town Meeting.  Their hatred is so intense that they cannot see clearly.  One commissioner said clearly in an open meeting “anything but Town Meeting.”  The chair of the commission said, in rejecting any compromise that included town meeting, “we were sent here to do a job.”

But that’s not true.  Nine commissioners were elected, five supporting a council and four supporting Town Meeting.  An understanding of that results should have resulted in a true compromise, especially since the four minority members and many other town meeting supporters urged that a compromise be sought.  But that was not to be.  Instead, the Commission majority want us to concentrate “all powers of the Town” in a very few hands.  That has the potential of not reflecting the town and of suppressing dissent.  It is rotten.

This commentary is more technical than I prefer to write, but it is necessary to underscore the deficiencies of this proposal.  Please read the proposed charter.  After you have thought about the concentration of power, think about the proposal’s provisions for elections and for voting districts.  I shall think out loud about them in a future commentary.

BEING ACCOUNTABLE AND BEING HELD ACCOUNTABLE

Vengeance is Mine, sayeth the Voter!

Accountability has been re-introduced into the charter debate in a Bulletin commentary by former elected officials Nancy Eddy, John Olver and Ellen Story.  They believe “accountability is one of the most important issues driving this vote.” If that’s true it is because it is one of the most misunderstood issues in the campaign, and the three authors misunderstand it in the same way that Amherst For All (AFA) misunderstands it.  But they may have more excuses for misunderstanding it.  When Nancy Eddy was on the Select Board, lack of accountability was a proper charge to make against Town Meeting.  Even when Ellen Story was on the School Committee, Town Meeting votes were opaque.

Many members, including me, agreed with this charge. but instead of adopting the Red Queen’s solution {“Off with its head”) as AFA has done, Town Meeting worked hard to make itself accountable.  Now it is fully accountable.  AFA knows this.  I am sure they have poured over the public accounts of voting and attendance and compared to the Street List to come up with their statistics.  They know that anyone with access to a computer can pull up the voting and attendance records of members from their precinct (and all other precincts).  They know that anyone interested in questioning the candidates for membership from their precinct can come to a meeting (this year on Saturday March 17th at the Middle School).  They know that the easily available League of Women Voters brochure “They Represent You” lists all Town Meeting members with phone numbers and addresses.  They know that all residents can write to members from their precinct with a single push of the button.  Will they thus take accountability off their list of grievances against Town Meeting?  Several debates and forums over the next few weeks will give us the answer.

But there is a larger confusion about accountability, and I think it is pernicious.  AFA appears to believe that voting holds public officials accountable. This is a terrible idea.  “Holding accountable” is a concept in theology and in the administration of justice.  It shouldn’t be applied to politics.  We vote for (and sometimes against) candidates because we agree (or disagree) with them, prefer them to another candidate on some grounds, follow the advice of friends or others and (in the case of incumbents) because we approve (or disapprove) of their record. In none of these scenarios are we holding candidates to account.  We hold wrongdoers to account, not legislators.  Voting otherwise than you would wish is not wrong-doing, although Amherst For All and its predecessor, Sustainable Amherst, seem to think so.  

And that is a great shame.  Both Amherst for All and Sustainable Amherst have interesting and important ideas to contribute to the debate about Amherst’s governance and Amherst’s future.  But they don’t want to contribute to the debate, they want to control it. For over a decade they have identified those who disagree with them so that voters might vote them out. That’s bad.  It’s bad for their ideas, it’s bad for Amherst, and it’s bad for democracy.

Disagreement is the foundation of democracy, but it is also the cause of democracy’s fragility.  “Mene, mene, tekel parsin” is the handwriting on the wall at Balshazzar’s feast in the Book of Daniel:  “You have been weighed in the balance and found wanting.” To apply this to electoral politics turns disagreement into a moral issue.  It stifles dissent and turns political actors into good guys and bad guys.  Perhaps this is what AFA wants.  But it would be awful if the government they support were ever to embody it.