Checks and Balances – Let’s Compare

Mandi Jo Hanneke

As we have noted previously, opponents have made a number of misleading claims about the new government proposal. The latest exaggeration is that the new system lacks “checks and balances.”

This claim is particularly misleading because it implies that our current system has checks and balances that will be lost if the new charter is adopted. However, our current system has practically no checks and balances at all.

No matter how you vote in March, Amherst won’t have a government that allows the executive branch to veto the actions of the legislative branch. Arguing that one should vote “no” on the Charter because the Charter doesn’t have this option is disingenuous — the current government doesn’t have this option either, and a no vote won’t give it to you.

So, let’s look at the checks and balances built into the proposed charter and compare them to the current system.

First, the “executive branch veto.” Neither option has it. So, what is the check in the proposed system on a legislature that is passing unwanted bylaws?

One check is the voter veto and resident initiative petition procedures in Article 8. I’ve described it all here. These options allow for the voters to overrule a council action or enact their own legislation.

Another is the elections themselves — more frequent per legislator, potentially more competitive and issues-based, and easier for voters to keep track of their representatives and hold them accountable. Nick has described in detail how campaigns and competitive elections allow residents to actually choose who represents them, and for the legislators to know what residents stand for. The current system is woefully inadequate in this regard.

A third is the required two readings of bylaws before final passage. This allows the residents time to provide feedback on a matter before it’s enacted but after it’s been discussed. Many times, a matter doesn’t make the local radar (newspaper articles, etc.) until after being discussed at a legislative meeting. If that discussion is the only one before a vote, feedback comes too late.

But, in the proposed Charter, that first discussion is just that — first. There has to be a second one before a bylaw is enacted. That allows time for residents who casually follow the government to read about the potential bylaw and contact their representatives with an opinion. Enough outrage and the bylaw won’t clear the second reading. This option isn’t present in the current system (see: Setting Your Own Agenda for more explanation)

Those are the checks on the legislative process in the proposed Charter. Now let’s look at the checks on the executive side.

The Manager will appoint all department heads and board and committee members (except Planning Board and Zoning Board of Appeals). But the Council must confirm those appointments. This provides a “check” on the Manager’s appointment authority.

This “check” actually doesn’t exist much at all in the current governmental system. Town Meeting has no confirmation authority and the Select Board confirms only the Conservation Commission, Board of Health, Planning Board and Historical Commission — no one else, not even the department heads.

A second check and balance in the proposed Charter is the Council’s appointment of the Planning Board and Zoning Board of Appeals. These are two boards that have some regulatory authority. The Charter Commission heard a lot about the current failure of the Manager to appoint Planning Board members with differing views. By moving the appointment of these members to the Council, we’ve moved them closer to the electorate. As such, we’ve made it potentially more likely that the members will have various opinions, as the Councilors will need to be responsive to the electorate in these appointments.

Lastly, there is the Council’s investigatory power. The Charter permits the legislative branch to investigate the conduct of any Town agency (Executive Branch) other than the Library or Schools. This provides yet another check on the Manager and rest of the Executive Branch — again, a check that doesn’t exist currently. Town Meeting has no such authority.

As you can see, the proposed Charter provides various checks and balances, many of which don’t exist in the current system.

While the opposition argues that there are none (especially arguing the lack of a “mayoral veto”), I ask voters to do more than just look at what might be missing in the proposed charter. Look instead at what the Charter has and compare it to the current system — a system that has nearly no checks and balances at all.

In March the choice is yours: keep the current system or vote for the proposed one. You don’t get a “mayoral veto” by voting no, despite what the opposition implies. So, when you hear that the proposal has “no checks and balances,” do your homework and ask yourself: Does the Charter do a better job than the current system on checks and balances? As seen above, the answer is yes.

A reference guide to 30 past posts on this blog is available by clicking on “Posts” above or selecting a category under “Index.”


Comments 9

  1. The fact that the “checks and balances” argument gets any traction at all is due to the utter lack of a working concept of “constituency” in Amherst. Other communities have it. We don’t.

  2. Interesting view about checks and balances, Mandi Jo. Maybe I misunderstand the concept, because what I see as checks and balances are independent branches of government.

    Is it true, that currently there is Town Meeting as the legislative entity, that the public can call together at will, and propose articles to. And then there is the executive branch, The elected Select Board (SB), the Town Manager (TM), appointed by the SB, and the various other boards and commissions, either elected (school, Library, Redevelopment Authority and more) or appointed by the TM, occasionally by Town Meeting. Legislation happens through Articles proposed by the executive branch or the public, decided by Town Meeting.

    If the charter change succeeds, is it true, that there will be the Council, taking on the responsibilities of SB (as executive), as well as Town Meeting (as legislative). The Council can be petitioned by citizens like currently Town Meeting can be. The council will select and hire the TM, like the SB does currently, and all the other boards get appointed by the Council and TM, including the Redevelopment Authority. Notable exceptions are boards like School and Library.

    Is it true also, that when the TM gets hired by the SB or Council, and there exist a close working relationship between them, the TM will generally follow directions from the appointing entities, if s/he wants to keep the job? Same with all the appointed boards and committees. First of all, already not every board is full, if only people apply who the appointing entity ‘doesn’t like’, and I don’t see why this would change under the Council.

    Is it true, that all this leaves us with Town Meeting as legislative and SB/TM/Boards as executive currently, and the Council as legislative, and the Council/TM/Boards as executive. If I eliminate the identical parts, it is Town Meeting vs. Select board currently, and Council vs. Council with the new charter.

    I am not sure if I understand the point, Mandi Jo, you are making about the “executive branch to veto the actions of the legislative branch”. Is it like when Town Meeting passes a non-binding article about not building a roundabout, and town management goes right ahead and builds it?

    1. Post


      Independent branches of government are only one way to achieve checks and balances. And, even with independent branches, checks and balances aren’t guaranteed. For example, in Amherst’s current form, there are almost no checks on Town Meeting’s binding actions–the Select Board cannot override a binding action of Town Meeting (the one you cite was non-binding/advisory) and the people (residents who vote) have nearly no power in the system at all, since becoming a Town Meeting Member is nearly non-competitive; if a precinct doesn’t like how it’s members are voting, it’s very hard to rid the precinct of all the members, as elections aren’t competitive and there are no campaigns discussing the issues. Also, as we’ve seen, it’s really hard to override a Town Meeting action at the polls. So, the people have almost no ability to change the actions of Town Meeting, and the “executive” has no ability to do so either. On top of that, there are many members of Town Meeting (you included) that believe their neighbors (who have no vote in Town Meeting) are not their constituents. Therefore, those neighbors who don’t have the time to serve on Town Meeting (or those that wanted to but lost the election) don’t have a voice in the body at all because their “representatives” don’t see themselves as having to “represent” any constituents. Because of all of that, I feel the current system has lost nearly all of the minimal checks and balances it might have had in the past.

      Back to my other point, though–a system need not have completely separate or independent branches to have adequate checks and balances. Checks and balances can be present other ways, for example, by requiring the department head appointees to receive confirmation by elected officials (absent currently); or, by making it easier to actually vote elected officials out of office if they are not representing residents in a way the residents want; or, by bringing all the deliberation and decision-making into the sunlight–requiring it to happen in open meetings with officials who are subject to conflict of interest laws, having those meetings well-noticed and covered by the press, and making sure the discussions don’t both start and stop at the same meeting, so that the public has a chance to actually hear about them and respond to them directly to their representatives.

  3. The obvious lack of constituent responsibility and accountability alone is reason enough to dump our current governance system. There is simply no excuse for having people with no accountability in charge of people with no voting authority. I lived in DC for over a decade, with no federal representation. I have even less local representation in my town now than I did in DC. There’s simply no excuse for this. Time for a new governance plan.

  4. The Charter Commissioners who voted for this flawed Charter proposal appear to have little or no idea of what checks and balances means. It doesn’t mean the power of voters to vote in or vote out any elected officials. It does not mean a City Council having an employee that is the Town Manager with some duties delegated to him. The Town Manager in this Charter proposal is not a “branch of government.”

    Here’s simple definition from our own homegrown Merriam-Webster dictionary: “checks and balances
    : a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power”

    So let’s look at what the Charter proposal says about who gets government power:

    Section 2.5 General Powers “Except as otherwise provided by the general laws [state law] or this Charter, all powers of the Town shall be vested in the Town Council as a whole, which shall provide for the performance of all duties and obligations imposed upon the Town by law.”

    If that isn’t clear enough that the Council gets all the power , here’s some more from the Charter–

    Section 1.3 Division of Powers “All legislative powers of the Town shall be exercised by a Town Council….”

    Section 2.1(a) “There shall be a Town Council consisting of 13 members which shall exercise the policy, leadership and legislative powers of the Town….”

    Section 2.6 (a) “Exercise of Powers: Except as otherwise provided by the general laws [state law] or by this Charter, the policy leadership and legislative powers of the Town Council may be exercised in a manner determined by the Town Council.”

    Section 3.2(a) “….The Town Manager shall be responsible for the implementation of policy decisions and direction provided by the Town Council, as reflected in the Town Council’s votes and resolutions, and by enactment of bylaws, appropriation order, and loan authorizations.”

    Under Amherst’s current government, legislative and executive and policy-making powers are spread out over different branches of government: the Select Board and Town Meeting, with the Town Manager having more decision-making power over important things like appointing the Planning Board and department heads. All of this is consolidated into one branch and into the hands of 13 paid City Councilors.

    This is really important for people to understand.

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      You forgot a section in your quoting, Janet: Section 3.2: “The Town Manager shall be the chief executive officer of the Town…” A separate branch. His actions will be final. The check on his actions is the ability to hire him, fire him, and confirm his appointments. The current Town Government Act doesn’t require any elected officials to confirm department head appointments by the Town Manager, a serious lack of checks on the Manager’s authority.

      In addition, under your definition, the current government doesn’t have checks and balances either. Please describe where in the current Amherst Town Government Act the “executive branch” is allowed to “amend or veto acts of” the “legislative branch”, i.e. Town Meeting. The Select Board does not have power to amend or veto the bylaws passed by Town Meeting. So, under your definition, there are no checks and balances in the current government. And, on top of that, in the current government, when the residents don’t like what Town Meeting is doing, because there aren’t competitive elections or issues campaigns, the residents can’t hold Town Meeting accountable; in that way, Town Meeting has no checks on it at all.

      1. Thank you for your previous answer, Mandi Jo. You wrote: “a system need not have completely separate or independent branches to have adequate checks and balances”. I think the devil is in the detail as they say. When the Council selects and hires the Town Manager, it is obvious to me that the Town Manager doesn’t become an independent branch. Like how we don’t count Town Manager independent from the Select Board currently – they both belong to the executive branch. Similarly, the Town Manager and the Council both belong to the Executive branch due to their executive power. And the Council also is the single legislative entity. The same 13 people.

        As for Town Meeting begin affected by the executive branch: first of all, most articles Town Meeting considers are brought to it by the executive branch. It is like: “I prepared this document for you. Please sign here!”

        Another way is the frequent actions of one or another group of the Executive branch to refer articles back to themselves or another executive entity, or some other attempt to defeat it before it comes up to vote. Many times this ends up in the death of the original article or any modifications of it, as we have seen in practice.

        Lastly, let’s not forget, that the select board, the Town Manager, and many people on different boards and committees are also part of Town Meeting, so they pull their own weight within the legislative branch, so they have a chance to defeat the article by voting against it.

        If neither of these happens, and the article passes, that means, that likely an adequate majority of voters would have also agreed (this has been shown with the highly controversial School vote: in both sets of votes the Town Meeting result was within 1% to that of the town-wide vote results.

  5. There is so much verbiage sometimes that it’s hard to get to the marrow. But Jerry states it well above, “There is simply no excuse for having people with no accountability in charge of people with no voting authority.” Very nicely stated.

    Let me propose what the “excuse” for this lingering condition in town politics has been to date, and it’s repeated by Town Meeting defenders constantly. The claim is that the sheer numbers of Town Meeting members cure all ills, that the amount of presumably informed humanity required to buy in to any town decision makes for better quality decision-making. 126 plus elected people does better than 13 people. It’s as simply mathematical as that.

    So the numbers, in and of themselves, presumably provide the remedy for the disconnect that Jerry cites, and they carry a heavy, heavy burden in vindicating Town Meeting. It’s a reasonable argument being made by reasonable people: the wisdom of crowds. I simply don’t buy it. I want to give voters focused, informed choices about the people with power over them in town, not blind ones. Once again, since they occur seasonally about the same time, which do we know more about, the teams in our NCAA basketball bracket or the candidates on the Amherst Town Meeting ballot?

  6. The current system doesn’t have great checks or balances and needs to be replaced, but the new charter is worse. Mandi says that the Town Manager will have the last say – but unless the Town Manager is operating in secret (which none of us want, obviously) then if they are intending on going through with an action they can be removed by the Town Committee and replaced with someone more in line with the Committee’s desires. This doesn’t strike me as the Town Manager having a check on the Committees power, but rather the Committee having the ultimate check on the Town Managers power. After all, the Town Manager is just a hired town employee, not an elected official.

    It’s clear just from reading the charter that all power is vested in the Town Committee, and any checks in the systems are wielded by the Town Committee against the other power groups in town. No balance to be found.

    I agree with Jerry “The obvious lack of constituent responsibility and accountability alone is reason enough to dump our current governance system.”. Town Meeting isn’t good – it needs to be replaced. It just doesn’t follow to me that it should be replaced by a structure with a single power block. Representation isn’t the only important issue in government – its also having structures in place that ensure the people who are supposed to represent us actually do, instead of representing their own personal interests.

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