Project Underway to Create a Cutting-Edge Model Charter for California Cities to Free Their Municipal Affairs from the State Legislature – YOU Can Help!

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For more than a year, I’ve talked and written about developing a model charter that city councils and appointed charter commissions in California’s general law cities can use as a basis to develop their own proposed charters to bring before voters for consideration.

A model charter would also help city councils and appointed charter commissions in 121 California cities to amend and freshen their existing charters. (Note: voters in three more cities – Escondido, Costa Mesa, and Grover Beach – will consider enacting proposed charters in the November 6, 2012 election; there may be 124 charter cities in California at the end of 2012.)

Generally, the dozen cities that brought charters before their voters in the past six years obtained existing charters from other cities and tweaked them a little. City council members and staff have not started from scratch in developing their proposed charters, perhaps to avoid the political and legal risks of trying new concepts, and perhaps in part because developing a constitution from scratch is a time-consuming intellectual exercise better suited to James Madison or modern policy institutes.

Significant and recent developments in proposed city charters in California have been related to explicit provisions concerning the establishment of policies for government-mandated construction wage rates (so-called “prevailing wages”), prohibitions on requiring contractors to sign Project Labor Agreements with unions, and requirements for unions to get permission from city employees to deduct money from their paychecks to use for political purposes. In addition, some charters have contained provisions meant to prevent the kind of corruption among city council members and city staff that occurred in the City of Bell in the late 2000s.

As I wrote in the Auburn Journal newspaper on September 26, 2011, cities in California need to consider asking voters to enact a charter that would be “a searing and unprecedented manifesto in support of fair and open competition, free enterprise, economic growth and job creation.” A charter needs to give a city full control of its municipal affairs, so it can implement “lower taxes, reasonable regulation, fiscal responsibility, limited government, local control and more freedom from corrupt urban legislators.”

Defenders of the status quo prefer California’s advocates of economic and personal freedom to be apologetic, mealy-mouthed, submissive and ineffective. I noted that an ideal charter, with its “defiance of excessive state authority,” would enrage numerous special interest groups.

Of course, aggressive opposition from special interest groups indicates a proposed charter would be effective in expanding local control. Should city councils and city staff regard this opposition as an insurmountable obstacle to achieving meaningful home rule?

My thinking is that even a slightly effective proposed city charter will agitate the unions, the environmental extremists, and any other parties who use the California State Legislature as an agent to impose their utopian visions on communities where a majority of people just want to mind their own business. Opposition from powerful special interest groups will come if the proposed charter is 100% effective or 10% effective in changing things. So why not pursue a goal of claiming 100% of the potential for a city’s governing authority over municipal affairs?

I Need Your Help to Develop the Ultimate Model City Charter for California!

Almost everyone squatting in the state legislature for the duration of their term limit wants to leave a legacy of some sort of accomplishment; that is, something inserted in California law that they can proudly show their grandchildren and cite in speeches to inspire youths to pursue public service. Think about how the California State Legislature enacts a parade of inane laws every year that interferes with or intrudes in municipal affairs.

In Sacramento today, I spoke to a group of free market-oriented policy intellectuals based in California about my plan to collect ideas for provisions in a model charter. I expect to get some great recommendations from them concerning transportation, land use and zoning, air quality, etc. You can help too. Below are resources to help you develop ideas to send me for the model charter:

1. At the end of this post, I cite relevant language from the July 2012 California Supreme Court case State Building and Construction Trades Council of California, AFL-CIO v. City of Vista about the Constitutional right of charter cities to control their own municipal affairs. This citation also includes the four criteria under which an issue is a municipal affair versus an issue of statewide concern. Read the criteria and think about problems in your city that the city council can’t fix or evade under the status quo.

2. Here are links to a few of the city charters recently enacted by voters or to be considered by voters in the November 6, 2012 election. These are the current examples of charters now being circulated among California local officials:

City of Oceanside

City of Vista

City of Costa Mesa

City of Escondido

City of Grover Beach

3. Here is a link to my 94-page report (third edition) published by the California Construction Compliance Group about the status of policies concerning government-mandated construction wage rates (so-called “prevailing wages”) in California’s 121 charter cities. It’s the first and only comprehensive report ever written about this right of charter cities:

Are Charter Cities Taking Advantage of State-Mandated Construction Wage Rate (“Prevailing Wage”) Exemptions? – 3rd Edition – Summer 2012

4. The League of California Cities (which is NOT part of this project) has excellent information about charter cities and home rule: Resources on Charter Cities from the League of California Cities.

5. To send me your ideas for charter provisions, call me or go here on this web site and use the form to contact me in writing. Thank you for your ideas to advance economic and personal freedom!

California’s Home Rule Doctrine

(Excerpts from pages 6 and 7 of the City of Vista California Supreme Court Decision on charter cities and prevailing wages – citations removed and language simplified – see the decision itself for more technical guidance.)

Charter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs.

Article XI, section 5, subdivision (a) of the California Constitution provides: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith.”

The roots of this provision trace back more than 100 years. It was originally enacted upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs. The provision represents an affirmative constitutional grant to charter cities of all powers appropriate for a municipality to possess and includes the important corollary that so far as municipal affairs are concerned, charter cities are supreme and beyond the reach of legislative enactment.

We set forth an analytical framework for resolving whether or not a matter falls within the home rule authority of charter cities.

  1. Does the city ordinance at issue regulate an activity that can be characterized as a municipal affair?
  2. Does the case present an actual conflict between local and state law?
  3. Does the state law address a matter of statewide concern?
  4. Is the law reasonably related to resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance? If the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution (and not unduly broad in its sweep), then the conflicting charter city measure ceases to be a municipal affair and the Legislature is not prohibited by Article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.”
Note: in the City of Vista case, the court ruled that “no statewide concern has been presented justifying the state’s regulation of the wages that charter cities require their contractors to pay to workers hired to construct locally funded public works. In light of our conclusion that there is no statewide concern here, we need not determine whether the state’s prevailing wage law is “reasonably related to . . . resolution” of that concern and is “narrowly tailored” to avoid unnecessary interference in local governance. The court didn’t need to consider #4 in the analytical framework listed above because the answer to #3 was NO.

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  1. […] Project Underway to Create a Cutting-Edge Model Charter for California Cities to Free Their Municipa… Category: Changing How California is Governed, Construction Labor Issues, Government Fiscal Issues, Prevailing Wage, Public Debt – Local / Tags: Are Charter Cities Taking Advantage of State-Mandated Construction Wage Rate (“Prevailing Wage”) Exemptions?, Charter Cities, City of Costa Mesa, City of Escondido, City of Grover Beach, Measure V (City of Costa Mesa November 2012), http://www.PublicCEO.com […]