MEMORANDUM TO: File FROM: PJD DATE: May 13, 2016 RE: City of Portland - Personnel Matter I. Introduction and Statement of Issue 1 have analyzed below the respective powers of the Mayor and City Manager by a reviewing of the City Charter (?Charter?), Charter Commission (?Commission?) and Final Report (?Report?) and Corporation Counsel?s Memo of March 1, 2016 (?Counsel Memo?). The Report aptly previews the current challenge to ?nd .. a balance between directly elected political leadership and the virtues of professional city management.? Report 0111A atp. 5. The immediate issue is to de?ne for the Mayor and City Manager a shared understanding of their respective roles. This need has been exacerbated by the Mayor?s recent criticism of the budget submitted by the City Manager. As noted by Corporation Counsel in her memo while the Charter attempted to characterize the respective roles between the Mayor?s of?ce and City Manager, no Charter can fully anticipate or delineate every potential issue which might trigger a con?ict between those of?ces. The language of the Charter presumes the Mayor and City Manager have a shared commitment to advance the City?s best interests which will require accommodations with respect to con?icts which inevitably arise. However, it is also apparent from the Report and Charter collectively there is the potential for some direction as to the confusion. The term ?mayor? itself typically conjures up some expectation of executive power. That image may be enhanced by the creation of a full time mayor who is popularly elected by all the city?s residents. However, the Report and Charter are also unmistakably clear that the Mayor is a policy, not an executive, position and that the administrative, implementation and enforcement powers remain with City Manager. Article The Mayor is to ?facilitate implementation of city policies through the office of the city manager? (emphasis added) Article and ?to consult with and provide guidance to the city manager in the preparation of all city budgets . . (Article ?500). II. Potential Path Forward The ambiguity on budget preparation and textual cross currents on policy implementation create the opportunity for confusion and con?ict. The hope is these problems can be addressed by: A. De?ning more specifically the acts to be coordinated between the Mayor and City Manager when the City Manager prepares his budget for presentation to the Council; B. De?ning more specifically those acts which constitute mayoral ?facilitation? of policy implementation; and C. De?ning more speci?cally the acts to be coordinated between the Mayor and the City Manager when the Mayor facilitates policy implementation ?through the city manager?s of?ce.? To lay the analytical groundwork necessary to legitimize and de-politicize the situation, it is important to recognize that it is the Mayor?s position that is new to the governance process. Accordingly, the threshold tasks are: A. Identify accurately the nature of the mayoral position; and B. Interpret the Mayor?s powers and duties within that position consistent with that identi?cation. Such an approach suggests at least two remedies which have the potential to be effective: A. Provide an outside advisory legal assessment based on the text of the Charter and manifest intent of the Report which identi?es the nature of the mayoral position as well as its delegated and shared powers and duties; and B. Draft a Memorandum of Agreement consistent with that advisory opinion and addresses with some speci?city how the positions of Mayor and City Manager can exercise their overlapping ?powers and duties? in areas such as budget preparation and policy implementation. Nature of the Mayoral Position A. Not Ceremonial The Mayor is not a merely ceremonial position because a ?largely ceremonial Mayor is not suf?cient for the complexities and demands of our city.? Report atp. 5. B. Not Executive The Mayor is also not an executive position because ?an executive Mayor model would be unacceptable; professional administration has done well by the city, and we will not abandon its ability to safeguard our ?scal health.? Report HA at p. 5. The City Manager ?remains the chief administrator of the City.? Report ILA at p. 5. Likewise, ?the Council remains responsible for developing City policy,? Report ILA at p. 6. The Mayor?s role, accordingly, is to help advance those policies by working cooperatively with the Council and City Manager. Report ILA at p. 6. C. A Policy Mayor Between the above two rejected models, the Commission deliberately selected a ?policy Mayor.? The position is to have ?substantial influence over the policy direction of the City.? Report at p. 5. It is designed to ?represent the vision and direction of a majority of the electorate, speak for the people and unify the disparate views of the City Council.? Report ILA at pp. 4 and 5. Mayor?s Powers and Duties The Mayor?s powers and duties are set forth in Charter Article ll, and fall into four categories. A. Ceremonial and Aspirational Some mayoral powers and duties relate solely or largely to form, trending between ceremonial and aspirational. These include: 1. ?Be the of?cial head of the city [and] responsible for providing leadership,? Article Articulate the city?s vision and goals and build coalitions to further such vision and goals,? Article II, ?Lead an annual workshop session of the City Council to discuss and identify the city?s goals and priorities,? Article ?Represent the city with other municipalities, levels of government, community and neighborhood groups, and the business community,? Article 11, and . ?Facilitate among the city manager, City Council, board of public education and the public to secure passage of the budget,? Article II, B. Functional and Unique to Mayor Other Mayoral powers and duties are more tangible because they are functional and imbedded in the process of governing. They are powers that trend between procedural and substantive and, notably, they are powers distinct from other council members. They include: 1. Convene and lead an annual workshop session of the City Council, Article 2. ?Preside as chair of the City Council and direct the City Manager in the preparation of the council meeting agendas,? Article 3. ?Provide comment on [city] budgets at the time they are presented by the City Manager to the City Council for approval,? Article 59509; 4. ?Consult with and provide guidance to the City Manager in the preparation of all city budgets,? Article 59509; 5. ?Provide comments on [the annual capital improvement] program plan at the time it is presented by the City Manager to the City Council,? Article 6. ?Consult with and provide guidance to the City Manager in the preparation of the annual capital improvement program plan,? Article ?5 7. ?Exercise veto power over the annual city appropriation,? Article 11, 595(1); 8. ?Chair any subcommittee with at least two (2) other City Councilors to recommend the appointment or removal of the city manager, corporation counsel or the city clerk,? Article and 9. ?Appoint the members and chairs of the City Council committees and various ad hoc committees,? Article C. Shared with Council Some Mayoral powers and duties are, either whole or in part, shared expressly or implicitly with other council members, such as: 1. ?Vote upon all matters,? Article 6 2. ?Facilitate the implementation of city policies through the of?ce of city manager,? Article II, ?Six members of council can override the Mayor?s veto of the annual city appropriation,? Article 595(1); ?Five members of council have the ?nal decision in regard to appointment or removal of the city manager, corporation counsel or the city clerk,? Article II, and . ?Six members of council can override the Mayor?s appointment of the members and chairs of the City Council committees and various ad hoc committees,? Article 595(1). D. Shared with the City Manager Finally, some Mayoral powers and duties are, either Whole or in part, shared expressly with the city manager, such as: 1. ?Provide guidance for the City Manager on the city?s goals and priorities,? Article 11, 595(1)); ?Direct the City Manager in the preparation of the council meeting agendas,? Article II, . ?Facilitate the implementation of city policies through the of?ce of city manager,? Article ?Consult with and provide guidance to the City Manager in the preparation of the annual capital improvement program,? Article II, and 5. ?Facilitate among the city manager, City Council, board of public education and the public to secure passage by the City Council of the annual city and school budgets,? Article However, the Charter also expressly provides that, ?notwithstanding the foregoing, the City Manager shall be in charge of the day to day operations of the city and administration of the city budgets approved by the council.? Article II, City Manager?s Powers The city manager?s powers and duties are set forth in Charter Article VI, They fall into three categories: A. Most tasks are, as designed, clearly executive in character. In summary terms, the City Manager has the power and duty to ?enforce, control, implement, coordinate, prepare, appoint, plan and perform.? See Article 59595 and B. Other responsibilities are more supportive in character; that is, to serve the council. The City Manager is to ?attend, submit, discuss, advise and furnish.? See Article VI, and C. The remaining responsibilities are collaborative in character; that is, to work with the Mayor. See Section above. Importantly, the Charter expressly protects the city manager?s executive responsibilities. There are three express limitations on intrusions into the City Manager?s powers: A. The City Manager ?shall be in charge of the day to day operations of the city and administration of the city budgets approved by the council,? Article 8 B. ?Neither the Mayor nor members of the City Council shall direct, request or interfere with the appointment or removal of any of the of?cers or employees of the city for whom the City Manager is responsible,? Article VI, and C. ?Nor shall [the Mayor or members of the City Council] give an order, publicly or privately, to any such city of?cer or employee relating to any matter in the line of the of?cer?s or employee?s city employment.? Article VI, ?5 (this provision is reasonably interpreted to require that all requests for information to city of?cials, including those from the Mayor?s of?ce, must pass through the City Manager). Role and Boundaries ofa ?Policy? Mayor My conclusions on the intersection of the Mayor?s and City Manager?s powers and duties are these. The Mayor has: A. Broad ceremonial and representational duties; ?d B. Distinct procedural powers that invite and enable a voice articulating the combined view(s) of the full council; C. Limited substantive powers to act independently on that voice. In exercising these distinct procedural and limited substantive powers, the Charter expects that the Mayor will direct his voice between and work with both the Council and the City Manager. This is because and there is no doubt on this given the spirit of the Report and the text of the Charter the Mayor is designed and expected to lead by collaboration. This concept pervades both the Report and the Charter. The Mayor is to help build coalitions (Article ?5 facilitate implementation (Article II, and help pass 9 budgets (Article 595 This is so the aspirations of the Commission can be realized: ?unify the disparate view of the City Council? (Report at11.A at p. to unify the City?s voice to businesses and other governments (Report at at p. and to be the ?unifying ?gure who can work with the city manager? (Report at at p. 5). The Mayor is to meet these obligations within the clear and express limit that the City Manager remains ?in charge of day to day operations? and the authority to ?administer the budgets as approved.? Article Stated differently, the Mayor is an ?intermediate actor? rather than an independent ?free agent.? While the Mayor is intended to ?represent the vision and direction of a majority of the electorate? and ?speak for the people? as the voice of the full council. Report at p. 4, his substantive powers are clearly and purposefully signi?cantly limited by the Charter. The Mayor?s larger role the one that truly distinguishes his of?ce from other councilors is that the Mayor has the additional express duty to ?unify the disparate View of the City Council.? Report at p. 4. He has a similar duty relative to his working relationship with the City Manager. Article In short, the of?ce of Mayor was not created to improve de?ciencies in the of?ce of the City Manager. It was created to provide the accountability for the policy direction of the City and improved functioning of the Council. It is a role of comity, not power; of collaboration, not assertion. 10 Conclusion The Mayor?s role is to develop with the council (at the annual goal setting session, etc.) and articulate their sense of the city?s vision, goals and priorities, and share that with the City Manager in order to guide the City Manager?s daily administrative tasks and judgments. However, the reach of his substantive powers are constrained by the Charter which leaves untouched the City Manager?s traditional prerogatives with respect to daily operations and administration of city staff and the city in general. 3474232 11