Portland Charter Commission narrowly backs new governance model

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The Charter Commission on April 20 narrowly gave preliminary approval to a recommendation to revise the way Portland is governed.

The proposal, which calls for a stronger executive mayor and a city manager with reduced authority, must be written into formal charter language before the panel votes on April 27 for final ratification.

Doing so will ensure the proposal is in the preliminary report that goes to the City Council on May 9.

There is also likely to be a vote on an amendment by Commissioner Robert O’Brien, which calls for the mayor to be involved in large-scale economic development proposals received by city staff. 

Portland City Hall

O’Brien said he hopes to avoid situations – like a proposed sale of part of Congress Square Park or the development of the Maine State Pier – where the City Council is not aware of large-scale projects until receiving proposals from the city manager.

The initial approval of the compromised governance structure brings to a close the biggest, and most contentious, round of discussions the commission has had.

The vote was 7-5, with Chair Michael Kebede and Commissioners Catherine Buxton, Marcques Houston, Patricia Washburn, Zack Barowitz, Nasreen Sheikh-Yousef, and O’Brien in the majority. The proposal would have failed had the vote been tied at 6-6. Commissioners opposed were Dory Waxman, Marpheen Chann, Peter Eglinton, Shay Stewart-Bouley, and Ryan Lizanecz.

The compromise puts together elements of an initial proposal that came out of the governance committee and elements of a rival proposal from Sheikh-Yousef. Sheikh-Yousef is a member of the committee but did not vote on the proposal that it produced.

The commission spent several hours going through dozens of amendments, many of which were either for language clarification, minor changes, or suggestions that gained no traction. 

Other more substantive proposals – such as Sheikh-Yousef’s proposals to allow the council to elect its president, to move the inauguration of new councilors to January from December, and change the number of councilors needed to override a mayoral veto from two-thirds to three-fourths – failed when put to votes.

The commissioners were poised to have a facilitator help them through this vote since they had facilitation over the past several weeks of discussion. But the facilitator withdrew after a nearly evenly split vote that followed a lengthy debate in a prior meeting about the merits of the facilitated process. 

Several commissioners who expressed public concerns about the process, including Shay Stewart-Bouley and Marpheen Chann, voted against the final proposal.

As part of the governance structure proposal, the commission also backed the creation of an executive committee, a group of three that would include the mayor as chair and a voting member, despite not having a vote on the City Council.

Voting on the amendments and then the final proposal took up most of the commission’s 5 1/2-hour meeting, where they also rejected a proposal from O’Brien to create an office of communication. He said such an office would be responsible for all communications from the city and its officials and would not be managed by the mayor or chief operating officer.

“This would solidify all those services into one department cleanly and without the potential bias of a power player playing gatekeeper,” O’Brien said.

The proposal failed 7-5, with Washburn, Chann, Barowitz, Stewart-Bouley, Waxman, Lizanecz, and Sheikh-Yousef opposed. 

A proposal from Kebede to update the communication policy that governs elected officials’ access to city staff was approved 11-1, with Commissioner Dory Waxman opposed. The recommendation calls for the mayor to propose rules for communications, but the council would have to approve them.

Kebede’s proposal was in response to claims that former City Manager Jon Jennings often prevented councilors’ access to city staff.

Commissioners also ratified language for their proposals to fill School Board and City Council vacancies, and for participatory budgeting. 

And they tabled two items that still need final language: a proposal for the School Board to have autonomy over the School Department budget, and a proposal for the superintendent of schools to work jointly with the chief operating officer when developing the city’s Capital Improvement Plan.

Central Office
The Portland Public Schools Central Office on Cumberland Avenue.

Debate continues over legality of school budget proposal 

While most of the Charter Commission’s focus has been on proposals to revamp the division of power in City Hall, a dispute is also shaping up over School Board autonomy.

The commission’s recommendations must be OK’d by a Maine attorney. But the panel’s attorney, James Katziaficas of Perkins Thompson, has said he will not sign off on a proposal to shift final authority for the annual school budget.

The proposal would give the School Board authority to send the budget to a voter referendum without a recommendation or modifications from the City Council.

The School Department hired the Drummond Woodsum law firm to review the request and others, a move that cost the department around $30,000. The attorneys found the proposal, which calls for the creation of a joint City Council-School Board budget committee to confer before a budget is proposed, “does not appear … to run afoul of any limits on municipal home rule authority. … We think state law leaves room for the Portland charter to assign the School Board the role of determining the total school budget while leaving the decision for final budget authority with the voters.”

But Katziaficas disagrees and has told the commission the proposed change is not permitted under state law. In a memo, he said a school budget is a three-step process: the School Board submits a budget, the City Council considers it, and the budget is submitted to voters in a budget validation referendum.

The proposal from the Charter Commission, he wrote, “effectively eliminates the second step and the City Council’s role in the process.”

Katziaficas said the School Board is “not a legislative body and does not have authority to approve the budget … the Legislature has defined the School Board as a governing body and has given school budget approval authority not to the governing body, but to the legislative body.”

There is some question, however, whether the commission will need Katziaficas to sign off on every aspect of its final report.

Chairman Michael Kebede has said it might be possible to have Katziaficas sign off on the things he does support, while the memo from Drummond Woodsum with its legal finding is the sign-off on the disputed budgeting procedure.

During an April 13 meeting, Kebede said Drummond Woodsum is an authority on education law in Maine. He said he doesn’t believe the firm would “halfheartedly sign off” on a legal opinion.

“I don’t think they are mercenary lawyers who would give you the legal opinion you want just because you’re paying them,” Kebede said.

Kebede also noted the commission doesn’t need an attorney to sign off on its preliminary report, which is due May 9, and that Katziaficas has said he is willing to meet with the attorneys from Drummond Woodsum to see “if one side can convince the other.”

Commissioner Robert O’Brien said he asked Kebede to contact the attorney general’s office for a “casual” legal opinion on the matter, but the office declined.

He said his concern is that the state would eventually challenge the school budget provision.

“Portland could be up against a very expensive lawsuit,” O’Brien said.  I don’t think that’s a small risk. That would be precedent-setting. I think the stakes are very high to put that risk out to voters.”

— Colin Ellis

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