The certificate dated June 7, 1961, which commemorates my attaining a “B” average in fifth grade, hangs in our basement stairway. Honestly, I have no idea why I still have it or why it’s there. I was 10.
Fifth grade had some great moments. At the beginning of the school year my friend John shared with our all-boys clique his newly discovered information that girls could get pregnant alternatively by taking a pill, a pontification we met with guffaws. In truth, although we boys weren’t exactly sure about all the details of how a girl did get pregnant, we were pretty convinced that taking a pill wasn’t it.
Social studies class provides another fifth grade memory. There we learned, in a lesson often repeated in the grades that followed, that America has three co-equal branches of government, an arrangement that has kept the country democratic.
Until 2019. Now the executive branch is acting like Godzilla in a wrestling match with Congress, where the legislature could end up looking like the 98-pound weakling and the referee, the judiciary, sadly could determine that its function is limited to insuring that the weakling doesn’t bother Godzilla too much.
The potential catastrophic failure of the separation of powers doctrine at the federal level has piqued my interest about how that issue plays out locally, an issue germane to Northampton now as the city is reviewing and potentially revising its charter — its constitution.
Let’s consider a hypothetical: Either because of a weird result from ranked choice voting, incompetence or incapacity, the city ends up with a sub-optimal elected chief executive or acting mayor. Then an emergency erupts — let’s say a contaminated water supply like in Flint, Michigan.
The relevant state agencies offer assistance, but the city’s underachieving CEO is not up to the task. The next election is between three and 28 months away (see section 3-9 of the charter for those who want to wander in these weeds). The City Council immediately commences an investigation, which it has the authority to do. It calls the mayor to testify, but the mayor sends a designee instead, as the charter allows. The council completes its investigation, but then cannot instruct any city employee to take any action because that’s what the charter says.
The council also cannot appropriate money to fix the pipes or take any other remedial action because, by state law, the council’s power on money is restricted to reducing appropriations requested by the mayor, and the mayor has made no request. The council wants to hire a lawyer to represent its interests in this fight, but absent a provision in the charter or a proposed expenditure from the mayor, it can’t.
Some councilors float a proposal to create a Department of Emergency Water Management, but the city solicitor puts the kibosh on that idea, opining that the charter says that the mayor has the exclusive authority to create a department. Other city councilors propose hiring experts to consult with, but they have no authority and no money.
One councilor seeks to invoke charter section 3-7, a kind of local version of the 25th Amendment, which allows the council by a vote of seven of the nine counselors to remove the mayor when he or she “is unable to perform the duties of his office.” But “unable to perform” is not synonymous with “performing terribly,” and this idea dies on the vine.
Is this hypothetical hyperbolic – completely unrealistic, too farfetched to even merit consideration? Maybe.
Maybe not. Northampton fortunately has elected competent and caring mayors and city councilors. And in the rare instance when the mayor got a policy completely wrong — for example, the proposal for downtown surveillance cameras — the council, which has the right to legislate about the public ways, like sidewalks and roads, thwarted the idea.
Northampton has what often is called a strong mayor form of government. Despite the name, a charter can invest its municipal legislature with robust authority, subject, of course, to the structures of state law.
Northampton’s recent history on the functioning of separation of powers is comforting, albeit also potentially misleading. Recall the probably invented story of Albert Einstein responding to congratulations about his theory of relatively being repeatedly proven. The scientist supposedly said, “But I only have to be wrong once!”
By law, charter reviews happen every 10 years. If the time comes when we realize that in 2019 we should have grappled with these issues, it will be too late.
Let’s be clear. These governance issues are complicated. Indeed, our founding fathers struggled with separation of powers, as the Federalist Papers attest. History proves that the resulting constitutional structure and provisions justified working through these contentious issues. Their handiwork has lasted a long time, from 1789 to 2019, at least.
Bill Newman is a Northampton-based civil rights lawyer and the host of a weekday radio show on WHMP. The next meeting of the Charter Review Committee will be on Tuesday, June 4, at 6:30 p.m. in the Hearing Room at Northampton City Hall.