June, 2017
No Spring of Hope for a Fall Guy:
The Council, the Mayor, the Manager, the Mess in City Hall
or
How Policy Ideologies in the City Charter have created a Realpolitik where Conflict is by Design
by Zack Barowitz
Imagine, if you will, City Hall as a large playpen.
Now place into it three children. One we shall call Jon; a second named Council (what odd names these parents are giving their children these days!); and a third named Ethan.
Now imagine the parents toss in two beach balls — one to Jon and another to Council. Seeing that he has no ball to play with, Ethan wants to use Jon’s ball. But Jon doesn’t want to give his ball to Ethan. A parent (let’s call her Danielle) tells Ethan that the ball actually belongs to Jon and that if Ethan wants to play with it, he’ll have to work that out with Jon himself. (Complicating matters, Ethan asks if he could bring a friend along. Let’s call this friend Jason.)Unfortunately, none of this works out so well. So Grandpa Peter tries to mediate. He attempts this for several months but, unfortunately, Grandpa Peter dies before order is restored in the playpen. Ethan then tries to play with Council’s ball, but at this point Council and Jon are already engaged in a game, so Ethan is left out again. After a while, Council says the crib is too crowded and that Jason needs to go home and cannot come back.
This is the system that Portland wanted — at least, that’s what City Charter commissioners and several councilors wanted. The public has heard reports about the tensions between Mayor Ethan Strimling, City Manager Jon Jennings, and the City Council for many months. But that tension is less a result of the personalities involved than it is the natural execution of the system we drew up.
Our popularly elected mayor is given way less power by design. Thus, we have a realpolitik where a weak elected mayor, a strong appointed mayor (the city manager), and — should a councilor decide to vie for de facto speaker role — a council mayor who may pick and choose his or her alliances.
“We knew this would be a fraught relationship that would require two mature partners,” explains James Gooch, a former Portland Commissioner. “We took that chance based on our collective assessment of Portland's political culture: that as a citizenry, they would little tolerate a demagogue. We also rested on the relative "weakness" (without impotence) of the mayoral position vis a vis the council.”
With so many limitations to power, and without the necessary tools to enact that vision, what the Portland City Charter Commission created was not so much a mayor, but a fall guy.
CHARTERING A COURSE
Back in 2012, the elected Mayor was the central issue in a public referendum for Charter reform. The initiative was led by by a progressive group, The League of Young Voters, and a conservative one, the Chamber of Commerce. It was thought that an elected mayor would provide greater leadership and accountability to city government.
Although the majority of the Charter Commissioners were elected, the Chair, Pam Plumb, was appointed by the City Council. Plumb — a former Portland Councilor, Mayor and consultant to City governments (including Portland) — is a strong advocate of the City Manager form of government and is highly skeptical of any form of executive Mayor.
Plumb’s perspective closely resembles that of former Portland Commissioner James Gooch, who explained the difference to me in an email: “Perhaps the hallmark of modern American municipal government has been the evolution of a well-trained cadre of City Managers,” he writes. “The failure of a city government is rare, and not usually due to the professional staff but to meddling from political actors or due to placing the fiscal and managerial reins in the hands of amateurs elected from the public. Portland itself has a past of council members meddling unproductively in the work of the professional staff to the detriment of the city.”
Viewed in this light, popularly elected Mayor Ethan Strimling is recast as a “meddling political actor” and an “amateur elected from the public.” The way the Charter Commission is written, Portland’s mayor is essentially City Manager Jon Jennings.
Members of the Commission understood and tried earnestly to integrate the public’s desire for accountability in government with their own trepidations of the dangers of demagogues and concerns about meddling. Mr. Gooch (who himself was popularly elected) explained the Commission’s duty to safeguard the public trust.
“Here's the thing we grappled with, in the end: [the] progressive [city of] Portland would love to have the chance to elect a Mayor who could make big moves — really change things,” said Gooch. “And believe me, I get that. But we were thinking of a day — a day which may not seem likely right now — when the city might just as well elect a LePage as a Chipman or a Strimling. As remote as that seems, when your job is to structure a government it's an idea you have to entertain.”
If this seems at all undemocratic, keep in mind that limiting the powers of an electorate — a/k/a voting restrictions — is as old as democracy itself. Some voting restrictions are archaic (like those based on gender, skin color, and land ownership) and are generally considered undemocratic. But others (like age and citizenship requirements) are more widely accepted. It is far from a flawless system, as some restrictions meant to protect the electorate can backfire.
In the end, the commission chose not to curtail the powers of the city manager and to create a unique mayor position. The Portland Charter Commission Final Report explicitly states that the mayor position would not be that of an executive but rather a “strong policy mayor” — although this is a bit like praising a bottle of dubious vintage as a “great cooking wine.”
Most municipalities adopt a “strong mayor” or a “weak mayor” setup. “[Portland] went with a ‘hybrid’ approach,” Maine State Senator Ben Chipman told me. Chipman served on the Commission when he was a state rep and was the strongest voice for an executive mayor. “I’m not really sure where else it exists in the country.”
This assessment was confirmed by the city’s human resources department when the question of a salary increase for the mayor came up. The HR department could not find an equivalent position anywhere in the country.
LANGUAGE GAMES
Much of the confusion can be attributed to the charter’s fluffy but largely ambiguous language. For example it states that the mayor’s role is:
“To articulate the city’s vision and goals and build coalitions to further such vision and goals.”
Which may sound innocuous. In fact, this may apply to any citizen especially when one sees that the mayor isn’t granted any special means to bridge conflicting city visions or to build coalitions.
In another section, the charter states that a mayoral task is:
“To consult with and provide guidance to the city manager in the preparation of the annual capital improvement program.”
In her memo, City Attorney Danielle West-Chuhta defined “consult” as to “seek guidance or information from.” Consult, however, is a contronym — a word which contains opposite meanings. So while the transitive sense of consult is to seek advice, the intransitive sense means to give advice. Thus leaving everything that much more unclear.
In short, the duties of the mayor as spelled out in the charter fall more in the category of (largely symbolic) responsibilities rather than powers. The Mayor’s roles essentially come down to that of a popularly elected City Council speaker. This may seem like a benign arrangement, but as it’s currently drawn up, the fact that a mayor is not elected by his or her fellow council members as a traditional city council speaker (or pre-charter reform Portland mayor) is problematic.
What’s more, three former mayors sit on the Council, and two senior At-Large Councillors are not only former mayors (Nick Mavodones and Jill Duson) but also sought the mayoral position that Strimling now holds. There would be justification if some at-large members of council felt that they hold the same mandate as the official mayor.
In any case, the Charter grants the mayor several procedural powers in which to rule over the council. These include a longer term, committee appointments, an agenda-setting role, and the ability to veto the budget and present his or her own budget.
Whether these powers are insufficient or they have not been wielded correctly, it should be noted that both Mayor Strimling and his predecessor, Michael Brennan, found that the structure limited their ability to be effective.
Brennan — who served much of his term with decidedly low-key City Manager Mark Rees — nevertheless had his share of challenges. In addition to problems with directing city staff, Brennan lost support of the Council by acting independently of them. He was effectively shown the door when several senior councilors, including Mavodones and Duson, endorsed Strimling for Mayor in August 2015.
THE SELLING OF THE CHARTER
Mayors Strimling and Brennan may not be the only people surprised by the lack of power given the mayor position. The public campaign to pass the Charter focused on the elected aspect and suggested a more powerful role in city government.
A document called “The Portland Charter Commission Fact Sheet” (available on the Portland City website) outlines the role of the mayor in broad qualitative terms. It also makes generous use of weasel words. It describes the mayor’s role as to “oversee implementation of City policies; direct preparation and facilitate adoption of City budgets.” Important responsibilities but with no real power to enact them.
In 2010, supporters of the charter founded a committee that included former Charter Commission Chair Pam Plumb and Vice-Chair Jim Cohen (also a former mayor), that hired a PR and political consultant, Jed Rathband (a former mayoral candidate), to run the campaign to ratify the charter. Campaign records show that Ms. Plumb contributed $750 to the campaign. The measure passed with the support of both the League and the Chamber.
If consolidating power to the city manager position is part of their philosophy of governance, it’s odd, then, that Ms. Plumb and Mr. Cohen continued their advocacy for the popularly elected mayor into late 2015. In an op-ed to the Press Herald they wrote:
“After nearly 90 years, the people of Portland were finally handed back the right to elect their own mayor. If we like the direction of our city, we can re-elect the incumbent; if we feel that another person could lead the city in a better direction, we can elect someone else.”
The irony is that Plumb to this day believes firmly in the City Manager model and the Charter Commission anticipated a difficult power dynamic. (Was Plumb available for comment?)
City Managers: Who the Hell Are They?
City managers were first adopted in the early part of the 20th century. Most of the original managers were civil engineers, but today they generally have a Masters in Public Administration or, increasingly, a Masters of Business Administration. The theory behind the position is as a non-elected executive, the city manager is less subject to political pressure from the electorate and is seen as the adult in the room.
However, if a manager were so inclined, he or she could use a budget item, policy initiative, or staff access to hold considerable influence over councilors by making them look good or bad on the issues that are most important to them.
Were a manager to take such an approach, she or he could gain majority support from the council while at the same time strengthening or weakening the reelection bids of his or her political allies or enemies respectively. What’s more, the manager needn’t worry about taking politically unpopular positions — much less getting reelected. To keep his or her job, the manager needs only to stay in the good graces of the majority of councilors. In other words, five people.
So while the city manager model offers many things, accountability isn’t one of them. And though a city manager may not be given particular incentive to maneuver politically, there isn’t much to prevent it.
Jon Jennings, a “strong” city manager
Jon Jennings has a reputation for being a skilled administrator and smart businessman. His varied résumé includes working as an Assistant Coach for the Boston Celtics, serving in the Clinton White House, and as a Democratic Congressional Candidate for the State of Indiana.
Much of the conflict between Mayor Strimling and Manager Jennings can be attributed to the longstanding problem of elected officials badgering city staff. Councilors have had free reign to not only consult staff, but also to direct, and even admonish senior, junior, and low-level staff — sometimes over rather trivial matters.
At an Eggs & Issues discussion hosted by the Chamber of Commerce in January, Jennings referenced to the opinion memo of Corporation Counsel Danielle West-Chuhta: “We had to adhere to Charter, which meant that staff reports to me and that elected officials could not go directly to staff.”
However, while the City Charter is explicit that elected officials are not permitted to “give an order, publicly or privately, to any such city officer or employee,” it does not lay out parameters for whether or how elected officials may interact with city staff in other ways, such as to seek guidance on an issue or policy. (Manager Jennings did not respond to requests to clarify his statement.)
Despite Mr. Jennings’ hard line approach to interpreting the Charter, former Councilor Jon Hinck said that the Manager’s chain of command system worked. “If I put in a request that I would like to contact a staff person,” says Hinck, “he would make it happen as fast, or faster, than if I contacted that person directly.”
While Manager Jennings is generally viewed as being highly competent, he makes no bones about the assertiveness of his managerial style. Indeed, he has taken on roles that Pam Plumb (a supporter of his position) describes as “highly unusual.”
Traditionally, a city manager is not a public figure, but instead takes a background role. By contrast, Jennings has recommended the renaming of Lobsterman Park after former City Manager John Menario, and changing Franklin Street to Martin Luther King Boulevard. Jennings was also thought to be behind the opposition of a task force recommendation to restore two-way traffic to State and High Streets (although he stated at a public hearing to be agnostic on the issue).
“I think the Manager allowed his prior conceptions to control his thinking [on the State and High issue] before considering the work and analysis,” former Councilor Jon Hinck told me. “And yet that does not trouble me as much as the actions of the Mayor.”
Hinck was referring to several incidents, but most notably Mayor Strimling’s actions and use of the bully pulpit around the closing of the India Street Clinic. Of particular concern was Strimling’s public comment that the measure to close the clinic favored “pavement over people.” The Mayor’s relationship to the Council could hardly be said to have improved since then. In May the Council voted 6-3 to eliminate the position of his Assistant Jason Shadlock and rejected his proposal to convene a task force to review the City Charter.
Compromise or Reform?
The current charter — the one with the mayor who looks more like a city council speaker — was designed to mitigate the effect of the public electing an unqualified or incompetent person. In setting such a low bar for the office, it is hard to expect much more out of it than what we have. It’s also concerning that given that the mayor’s staff has now been cut from two to one — as Mayor Strimling’s was this spring — it is conceivable that this, or another, mayor may seek advisors outside City Hall. Such unpaid advisors have a name in politics: Lobbyists. If an industry — such as healthcare, real-estate, or finance — were so inclined; it could back its own candidate and then “advise” that person once in office.
And while it seems unlikely that the mayor and manager will ever voluntarily work together in Portland, it may be at least conceivable that a city manager may at some point grant a mayor access to department heads. Another step that the Council could take to strengthen the mayor’s position is to set the manager's term to coincide with that of the mayor, so that from the outset they would both agree that they can work together (at least in the beginning).
If Charter Reform ever becomes an option again, the choice would seem to be to eliminate either the mayor or the city manager. Or else we’d be stuck in this mess anew.
But if the goal is ensure the professional management of government and electoral accountability, a revised charter could provide for a Deputy Mayor of Operations hired by the mayor and council who would have similar or equivalent public administration qualifications (and compensation) to a that of a city manager. This would call for an administrative manager with less of an interest in policy. In addition, the creation of a Speaker position for the City Council could help to bring cohesion to that body and a balance of power.
Several Councilors including Mavodones and Spencer Thibodeau have tried to put the issue to rest, often alluding to legal opinions given by Corporation Counsel West-Chuhta, and Peter DeTroy — although the bulk of DeTroy’s services seems to have been a (failed) mediation. But given the system’s structural deficiencies of the system; others, like Senator Ben Chipman, take a dimmer view:
“The power struggle will continue no matter how many legal opinions we get.”
Timeline
1832 Andrew Emerson is elected first mayor of Portland
1923 Elected mayor abolished in favor of a City Manager with a “Chairman of City Council” elected by the Council. One factor in abolishing the position was to curtail the voting power of emerging ethnic minorities.
2008 City Referendum on Charter Reform led by the progressive League of Young Voters and Conservative Chamber of Commerce with elected Mayor as the central issue.
2009 Twelve-member Charter Commission established: Nine Elected and three Appointed
2010 Jed Rathband hired to run the campaign, Charter passes.
2011 Michael Brennan Elected Mayor, wins in a crowded field that includes Councilors Duson, Mavodones, David Marshall, as well as Ethan Strimling and Jed Rathband
2015 June Councilors Mavodones, Duson, Donoghue, and Suslovic as well as six School Board members endorse Strimling, effectively firing Michael Brennan. Jennings appointed City Manager, promises to be a “strong City Manager.”
2015 (November) Strimling defeats Brennan. Requests an Assistant Mayor position be created, eventually Jason Shadlock is hired for the role
2016 (March) City Attorney Corporation Counsel Danielle West-Chuhta Submits memo outlining the roles of Mayor and Manager as specified in the Charter. Although she stated that most power sits with the Manager, the memo concludes that the Mayor and Manager must find a way to cooperate.
2016 (April) Council votes 9-1 to close India Street Clinic after acrimonious battle.
2016 (April to September) Strimling and Jennings engage in a series of discussions with Attorney Peter DeTroy. The bill from Mr. DeTroy’s law firm indicates indicates that thirteen meetings, thirty-eight phone calls, “conferences,” and several hours devoted to memo preparation were billed to the City over a period of five months at a cost of $22,000. Peter DeTroy dies in late May. Another attorney identified on the invoices as “RBP” (probably Russell B. Pierce) provides service from late May 2016 until September 1, 2016.
2016 (November) Pious Ali and Brian Batson elected, seen by some as victory for Strimling, ousting Jon Hinck and Ed Suslovic, two outspoken critics of the Mayor.
May 2017 Council Votes to Eliminate Jason Shadlock’s position by a vote of 6-3 with Batson and Ali joining Strimling in the minority.