Citizens Union: Still Have Time for a Vote on Term Limits

Citizens Union just put out a memo on overturning or changing the city’s term-limit laws, which basically says there’s plenty of time to get the referendum before voters:

"The Council might choose to submit the proposal to the voters at a special election, given the expected low turnout of such an election. Proponents of keeping the current term limits might prefer submission of a referendum at a general election when turnout is higher."

The entire memo is here:

 

To: Interested Parties

From: Dick Dadey, Executive Director

Date: August 22, 2008

Subject: City Council and Voter Action on Term Limits

Citizens Union has prepared this memo as an analysis of the legal and political circumstances under which changes to the City Charter could be made regarding term limits for certain elected officials in the City.

The Mayor, Public Advocate, Comptroller, Borough Presidents and the City Council members are currently subject to the term limit provisions of the City Charter which limits them to two, four-year terms according to Chapter 50 of the New York City Charter. Recent news reports have given rise to a buzz that an effort to change the term limits law is being explored.

Citizens Union in the 1990’s opposed the enactment of term limits, but believes that some good came from sweeping out of office in 2001 many ineffective and too-long serving City Council members. It also has previously opposed unilateral council action addressing the term limits issue without the benefit of a robust public discussion and voter input. CU remains open to the idea of extending term limits for some, if not all, elected offices to three four-year terms along with the need to stagger them so that an overwhelming majority of the Council is not forced to leave office at the same time.

What is lacking throughout this discussion is whether terms limits on balance have been good or bad for city government. The truth is that it is a little bit of both. The City needs to have an honest and earnest discussion about the impact term limits have had on the way government and politics have been conducted in this city over the past eight years. No public official seems willing to start the needed substantive debate, and as a result, the voters have been shortchanged, allowing the debate to be about whether term limits will be changed as opposed to whether this experiment hatched in the 1990’s has worked.

The current discussion has not been the outright elimination of term limits for city office, but rather the extension of term limits from two terms to a maximum of three, four-year terms. While the current term limit law applies to all city offices, a change extending term limits could be more narrowly applied to just the City Council, and not for the other city or borough-wide offices. The city has a strong mayoral form of government, which could argue why the Council could benefit from longer terms than the Mayor, providing for more balance in the sharing of power. The Council’s institutional strength has been somewhat hampered by members immediately jockeying to run for another office soon after having been elected to a second four-year term and a Speaker only being able to essentially serve a four-year term while the Mayor serves eight. Citizens Union has no position on this scenario, but wishes to simply point it out as one of the topics that needs to be examined when discussing the possible extension of term limits.

Being that the merits of the issue itself need discussion, this memo focuses on how the term limits law could be changed over the next fourteen months.

Four primary scenarios exist.

1. The Council on its own could enact legislation changing the term limits law. The Mayor could sign the changes into law or the Council could conceivably override a mayoral veto with three-fourths of the Council voting to do so. The change could then stick with no voter involvement one way or another.

2. Citizens could conceivably organize a petition to extend, or outright end, term limits and succeed in having the question placed on the ballot for voters to decide. This scenario is perhaps most unlikely, unless it were to be a Council-led or supported drive undertaken by business or major civic interests. It is probably in the best political interests of the Council to get voter approval if it wants to succeed in changing term limits. The time for doing so for this November’s general election has already passed, but the Council could conceivably call a special election in the spring of 2009 for the express purpose of deciding this question, or wait and put it on the ballot in November 2009. It only then would apply prospectively.

3. The expected city charter commission could propose an amendment to change the term limits law prospectively and not have it affect anyone currently in office, leaving it to the voters to ultimately decide the question in November 2009.

4. In response to a Council-enacted law ending or extending term limits, a citizen group (such as a Ron Lauder effort), could petition to place a referendum on the ballot reinstating the limit to two four-year terms.

There is little doubt that the City Council alone can enact a City Charter change overturning or extending term limits. The legal battle that erupted in 20031 over the City Council passing legislation changing the term limits law to correct an anomaly from the census that left some council members who served only six years effected by term limits should also be noted. This court’s decision in favor of the Council’s action demonstrated that the Council can change term limits and not have them automatically subjected to a mandatory referendum, effectively meaning that the Council would not have to put the question before the voters for approval.

There are two subsequent scenarios that could be expected should the Council wish to change term limits. First, if the Council were to enact such a change to the City Charter by simply passing legislation, a likely ballot initiative would be organized to counter that action. Second, if due to political considerations, the Council choose not to act on its own, but encourage and support a voter-initiated effort, a Council supported petition drive could take place, in which case it would be referred to the City Clerk for review and the City Council for potential action before being placed before the voters as a referendum at an election.

Any effort to place a question on the ballot would require petition organizers to collect thirty thousand signatures from voters in the city who were qualified and registered to vote in the previous general election, as per Section 37 (2) of the State Municipal Home Rule Law (MHRL). The City Clerk would then refer the petition to the City Council. Under Section 37 of MHRL, the Council has three options at this point:

(1) it could choose to enact the proposed change legislatively,

(2) it could submit it without change to the voters,

(3) or it could choose not to act on it.

If the Council does not act favorably on the petition within two months from its submission, an additional petition is required to be filed by voters if the supporters wish to press the issue. The petition would serve to “override” the Council. Under Section 37 (7) of the MHRL, to override the Council, voters would have to collect fifteen thousand additional signatures from qualified voters who did not sign the previous petition and submit this new petition to the City Clerk at least two months and not more than four months after the filing date of the previous petition. If approved by the City Clerk, this new petition would cause the proposal to appear as a referendum at the next general election, provided the election is at least sixty days after the filing date of the first petition.

If the Council chooses to submit the petition without change to the voters, it appears it can either submit the proposal at the next General Election or at a special election that it itself can call. To submit the proposal to voters at the next General Election, the Council must vote on the submission at least sixty days prior to the election, as per Section 37 (6) of the MHRL. While this section of the Municipal Home Rule Law provides the timeline for submission of a proposal that requires mandatory referendum, it can be assumed that this timeline would also apply should the City Council choose to submit any proposal to the voters. Additionally, while the law is not clear regarding the Council submitting such a proposal to the voters at a special election, it is not precluded in the law and may even allow it.

Certain local laws passed by the City Council require a referendum, for example, changes to the powers of any elective officer, as are described in Sections 23 and 24 of the MHRL. In cases where the City Council must submit these changes to the voters as a referendum, it may do so at a special election, leaving open the possibility that the City Council has the power to call a special election to change the term limits law.

Under the scenarios described above, the timing of the petition efforts would have to be considered, given the preference that proponents might have for a vote on the referendum. The Council might choose to submit the proposal to the voters at a special election, given the expected low turnout of such an election. Proponents of keeping the current term limits might prefer submission of a referendum at a general election when turnout is higher.

Lastly, one must consider a possible, but hopefully unlikely, confusing scenario.

The Council could act on its own accord within the next six to eight months or call a special election to determine whether to change term limits. This could prompt a possible backlash campaign to reverse the wishes of the Council or the voters who supported it in a low-turnout election. It is then conceivable that current office holders could run for re-election to a third term at the same time voters are deciding whether to keep to the two term limit rule. Consequently, certain office holders would be technically re-elected but could not serve because voters approved keeping the two term limit in place. This could possibly result in a number of vacancies in the city’s elected offices on January 1, 2010. However, the effective dates of the proposals could potentially help to mitigate a situation in which candidates ran under different assumptions regarding the number of terms they could serve.

Changing term limits this late to allow current office holders to run for re-election is possible, and with the support of the voters. But what is needed first is a public discussion on how government has been affected by term limits.

Citizens Union: Still Have Time for a Vote on Term Limits