Legality of charter panel questioned
June 01, 2005 - A motion to disband the Crestwood Charter Commis-sion was tabled by the Board of Aldermen last week after City Attorney Rob Golterman questioned the appropriateness of the proposal.
The city attorney and aldermen discussed the Charter Commission after a resident questioned whether the panel was legally constituted under the provisions of the City Charter.
The Charter Commission has been meeting since mid-February and conducted a public hearing May 17. The next meeting of the commission is scheduled for 7 p.m. Tuesday, June 7, at City Hall, 1 Detjen Drive.
During the May 24 Board of Aldermen meeting, resident Martha Duchild told aldermen she had attended the Charter Commission's public hearing and asked about the following phrase from the charter: "From time to time, but not less than every 10 years, the mayor and Board of Aldermen shall provide for a Charter Review Committee to consider whether any amendments to this charter are appropriate.''
"... I asked the charter committee, 10 years from what date?'' she said, noting the City Charter was adopted by voters Nov. 7, 1995.
"Right now the Charter Review Commit-tee is meeting. Obviously, that is before the 10 years has been reached. So I asked them how they can be meeting now when the 10 years has not been met yet. They really didn't have an answer, but they did tell me that the city attorney said it was OK ...,'' Duchild said.
Golterman said, "That's correct. That's my interpretation of that sentence.''
Duchild asked the city attorney to elaborate on his interpretation of that sentence.
Golterman replied, "... If you read the sentence in its entirety, it states 'from time to time,' which would suggest that it's not particularly restrictive. It goes on to say 'but not less than every 10 years,' which I interpreted to mean that in any 10-year period, the Charter Review Committee has to meet at least once. And so we're in the first 10 years and they're meeting in that period of time and that was my interpretation.''
Duchild said, "'From time to time' means whenever you would like, but the reason that 'but' is there, that's the indicator, not as long as it not less than every 10 years. I don't think that this committee should be meeting and I don't see where in that sentence you can assert that nine years and two months is more than 10 years. I really have a problem with this and they're going to be bringing things to the board for the citizens to vote on. And if this really is based on an arbitrary decision by the city attorney, it didn't say in here 'from time to time, but not less then every 10 years' and check with the city attorney.
"It's quite clear, it says 'from time to time, but not less than every 10 years.' I just don't see how this committee can be convened and I don't know what's the next step,'' she said.
Golterman said, "I don't agree with your interpretation, but that's fine and I have spoken to several people about it. I looked at it for the first time probably a year and half ago when (Ward 1) Alderman (Rich-ard) Breeding raised the issue and I looked at it again in January when the Charter Review Committee first convened.
"It is my interpretation of that sentence that in every 10-year period the Charter Review Committee meets at least once, but if the board chooses they could convene from time to time. That's my interpretation. I understand you have a different interpretation and that's fine, but that was my interpretation,'' the city attorney added.
Duchild asked Ward 4 Alderman Pat Duwe, who served on the original Charter Commission and currently is serving as aldermanic liaison to the current review committee, "Was this intended to be interpreted by somebody or was it meant to be followed as it was written?''
"It was meant to be interpreted by the city attorney,'' Duwe replied.
Duchild said, "So should we even have this in here? I mean ...''
Duwe asked, "Why do you care? Why do you object to it?''
Duchild said, "Because this is a rule in the charter. That's why I care and it also gives a mayor at any one time an awful lot of authority to appoint people to the charter (committee) and the charter (committee) can decide what to bring to the aldermen, which also then goes to the voters. So yes, it has an impact and I just don't agree that this would be a valid interpretation because it's very clear 'not less than every 10 years' and we are at less than every 10 years .... Do we as citizens have any recourse?''
"Well, we could fire the city attorney — no, just kidding,'' Mayor Roy Robinson said. "No, I don't know — I don't know what the recourse is ...''
Noting that city voters had approved the charter in 1995, LaBore said, "At 5 o'clock today was the deadline for submitting proposals for the August ballot. The next possible ballot anything can be voted on is November. If the Charter Committee does not do its job in time for the voters to address it in November of 2005, then they will not have met within the 10-year (period).
"They cannot meet less than once every 10 years,'' LaBore said.
Duchild replied, "No, it says the mayor and the Board of Alderman shall provide for a Charter Review Committee at 10 years. November of 2005 would be 10 years at which time you would be able to appoint the Charter Review Committee and then it's a year from that date that they would have to provide their suggestions.''
LaBore said, "Well, I'll pass. It's a grammatical thing ...''
Golterman agreed with LaBore.
Robinson said, "And I guess the only other thing is you can take him to court and see if he's wrong ...''
Ward 4 Alderman Joe O'Keefe, an attorney, later said, "... As sharing the profession with our city attorney, although I don't share his job here on the board, he gives us advice and it's the board's decision to determine, to take an action based on his advice. So I think we don't want to necessarily give the public the idea — and I think our city attorney would probably agree — that he's not in a position to make decisions on how the city's run. That's our decision ...''
Ward 3 Alderman Jerry Miguel later said, "I agree with Miss Duchild ... 'But not less than every 10 years' — if the statement read but less than every 10 years, it would be quite clear what the meaning of that statement is. But it doesn't say but less than every 10 years ... But it says 'not less than every 10 years,' which means 10 years or more. I don't feel that that statement can be interpreted in any other way ... In all due respect to our city attorney, I don't feel it can be interpreted any other way in a court of law.
"And this is our constitution and if we acted illegally out of ignorance in the past, I feel we need to correct it ... Now that it has been brought to the attention of this committee, I think it should be looked at more closely, re-examined and perhaps our city attorney would like to take some time to reconsider his previous opinion and come back to us. This is our constitution. It must be followed,'' he added.
Ward 3 Alderman Don Maddox said, "... I was thinking that the interpretation should be the opposite, but after reading it a couple of times, Miss Duchild is correct ... If it meant that we should appoint committees before the 10 years is up, it should say not more than 10 years. Then you could appoint any time in between. But, you know, it says 'but not less than 10 years.' That means not less than 10 years. I don't know how the interpretation can be different.''
Golterman said, "It wouldn't make any sense because it says 'not less than every 10 years.' It doesn't say not less than 10 years. It says 'not less than every 10 years.' So once you get to the first 10-year period, the 'from time to time' part of it would be superfluous because once you got past the 10, by your interpretation, have to wait another 10 years before it could be reconvened because that wouldn't be less than 10 years.
"That is my interpretation and if there's other interpretations — like everything in the law, no doubt there are other interpretations. That was my interpretation. It was unbiased, unprejudiced interpretation that was first made a year and a half ago before anybody knew what the Charter Review Committee was going to look at, what they were going to recommend, what they were going to suggest. That was my best opinion a year and a half ago. It remains my opinion and if somebody wants to take issue with it, that's fine. All I can do is give you my best effort and that's my opinion,'' he added.
Miguel continued to contend that the charter language prohibited the commission from being convened now and at one point Duwe asked him, "I would like to ask you what do you want to do about it? Do you want to dissolve the commission and have another one in six months or whatever it is? We've already worked very hard on this for quite some time.''
Miguel said, "That would be my recommendation, seeing as how ...''
Duwe asked, "Do you think that's fair to all the people who have spent their time ...?''
Miguel said, "Excuse me, excuse me, do you want me to answer your question?''
Duwe said, "I thought you did.''
Miguel said, "I am not finished. May I?''
Duwe said, "All right.''
Miguel said, "OK. Yes, I feel that since we are in violation of the charter that it would be — that the Charter Commission should be declared in violation of the charter and it should be disbanded and re-formed after the 10-year period has elapsed. I think the work of the commission can be summarized and I don't think that the work that has been performed has necessarily been wasted or lost.
"However, we are clearly, in my opinion, we are in violation of the charter and therefore the commission should be declared illegal and should be voided — disbanded,'' he added.
O'Keefe said, "I was just going to say and I don't have any expertise in constitutional law and I don't think Alderman Miguel does either, but there is a whole Supreme Court set up in our United States to interpret the Constitution on a daily basis because it is subject to interpretation and we've had an interpretation and I think the debate, this debate, you know, should have been done months ago. And I understand an issue was raised here by a citizen, but it's obviously been on — been bothering you for some time because you have some notes prepared to talk about it ... I don't understand why we're not dealing with the big agenda we have tonight and getting on with the citizens' business ...''
Miguel said, "... I made my notes when Miss Duchild called me and asked my opinion this past Thursday. That's when it was brought to my attention. Despite that the fact she brought it up at the Charter Commission (public hearing), it really didn't dawn on me — click — the light didn't go on until she called me this past week ...''
After further discussion, Ward 2 Alderman Jim Kelleher said, "I'd like to move to abolish the Charter Commission.''
Miguel seconded the motion, but Golterman said, "... Before that's done, I would need to check that. I'm not sure that's appropriate ...''
Maddox made a motion to table the issue and his motion was second by LaBore. Aldermen then voted unanimously to table the issue.