Berwyn Resident Independence Coalition
                                                          Resident Based Council-Manager Government

         BRIC

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A Government Of
Checks and Balances
Answers To All Your Questions

This memo contains numerous excerpts from work done by foremost authorities in Municipal Law. 

This work was thick with legal references, legal terminology, redundancy and excessive description and, therefore, was a tedious reading experience.
In short, it did not lend itself to easy reading.

I believe I have “cleaned it up” to make it far more readable.  I would appreciate your advice regarding where I have fallen short in this regard.

Joel Erickson  -  8^th Ward Alderman  -  Berwyn, IL , USA

A Government Of Checks and Balances

M E M O R A N D U M

Resident Based Statutory Professional
Council-Manager Government

For purposes of this discussion let’s assume that there are three forms of city government.

1:      A “mayor-alderman” form of government where the management of the city is controlled by the mayor and the aldermen.  Berwyn is currently a “mayor-alderman” government.

2:      A “city-manager” form of government where a “city-manager”
         is hired by the city to run the day-to-day operations of the city
         much like the manager of a restaurant might do. In a “city-         manager” form of government, the “city-manager” does what
         the mayor tells him to do.  The position amounts to little more
         than a mayoral assistant. 

3:      A “Council-Manager” form of government.  This form of city
         government is adopted by the residents of a community by
         referendum.  The “Council-Manager” form of government takes
         politics out of the management of city government.  The
         residents of the city have vested in “Council-Manager” the
         rights, duties and obligations similar to those of the Chief
         Operating Officer of a Corporation.

          A statutory Council-Manager is a highly educated (graduate degree) professional executive who is trained to deal with the increasing demands for technical, legal, operational, and administrative skill that part-time or even full-time elected officials often do not possess.

This popular form of government clearly distinguishes between those who “plan and create” governmental policy and those who “carry out” those policies.  In other words, elected officials determine “what should be done” and the Council-Manager determines “how to get it done”.  Local governments functioning under the old mayor-alderman structure are often burdened by and become enmeshed in political self interest.  The statutory Council-Manager form of government enjoys its popularity because it eliminates political considerations from the administration of government.

          By separating policy-making from the standard operations of the government, a statutory Council-Manager government allows elected leaders to concentrate on the “big picture”, (the aims and goals of the community), without the distractions of day-to-day governmental operations. 

Questions often arise about the roles of a Council-Manager, elected officials, appointed officials, and employees in this form of government, because it is not like the more familiar form of mayor-alderman government.  Often, mayors and council members do not recognize the full extent of the differences.  

In adopting the Council-Manager form of government, Berwyn will still retain its general structure as a mayor-alderman form of government.  However, the roles, functions, and powers of the various players will change.   

The Council-Manager is the chief operating officer (CEO) in a municipal government and, therefore, has the legal responsibility to assure that the city and all of its departments run efficiently and effectively.  The Council-Manager must also assure that the orders of the city council are enforced.  The elected officials are clearly the policy-makers and the execution of those policies is assigned to the non-partisan, trained and competent Council-Manager.

 An Important Distinction

 Some cities have hired “city managers” without a referendum.  These types of managers often amount to little more than the mayor’s “sandwich boy” who does as he is told to do.  Nothing changes.   Therefore, there is no comparison between simply hiring “city manager” and the Council-Manager form of government. 
 

Although the “city manager’s” role may be similar to that of the “Council-Manager”, the “city manager” is armed only with the powers granted from time to time by the mayor and city council.  The scope of the “city manager’s” authority  is continually subject to control and change by the politicians.  By contrast, the Council-Manager’s duties, responsibilities and obligations are prescribed by law. 

The following is a summary of the characteristics of a statutory Council-Manager  government.

HOW TO GET HIRED, HOW TO GET FIRED

          The aldermen, by majority vote at a city council meeting, shall hire a Council-Manager who shall be the chief operating officer of city government and who shall be responsible for the efficient administration of all departments.”  The full council has the appointment power.  (The mayor does not appoint and then seek confirmation by the council). 

This is important because the power to appoint includes the power to fire. The Council-Manager may at any time be fired by a majority vote of the city council. 

WHAT THE COUNCIL- MANAGER CAN DO 

A Council-Manager’s authority is outlined expressly by law which is the first point of reference when any question comes up about what the Council-Manager may or may not do.

1) Enforcing laws and ordinances 

In a Statutory Council Manager government the Council-Manager confers with the Police and Fire Chiefs in the interest of developing effective enforcement of regulatory, nuisance, and traffic ordinances through the police department; enforcing building codes through the building and fire departments; and enforcing zoning and land use regulations through the zoning administrator and the zoning board of appeals or plan commission. The Council-Manager has overall responsibility for working with the Police Chief and the Fire Chief to design enforcement activity. 

2) Appointing and removing all departmental directors based upon merit and fitness 

A Council-Manager has the legal responsibility to appoint and remove all department heads.  This legal responsibility allows the Council-Manager to control the employees and staff of the municipality by having authority over the directors and “exercising control of all departments and divisions.

        Unlike the hiring and firing of department heads, the “Council-Manager” cannot fire the Police Chief or Fire Chief without the approval of the city council.   On the other hand, other appointments are made by the “Council-Manager” and he is required by law to make these appointments based on merit, fitness, fairness and professionalism.  Just as the city council is responsible for directing the Council-Manager, the Council-Manager is responsible for the appointment and direction of the department heads.  The “Council-Manager has great latitude in his or her decisions about personnel (subject to the terms of any collective bargaining agreements).  However, the Council-Manager is always aware that he or she must, by law, make decisions based upon the best and most qualified individuals. 

Politics must be separated from professional management administration in the sensitive area of appointments. The Council-Manager, therefore, may insist that appointments of key personnel should be free of political interference by the mayor or council. No doubt elected officials may lobby for this or that person to fill a job, but the Council-Manager’s commitment is to appoint people with the necessary skills, not the right connections. 

The Council-Manager’s power of appointment does not include the power to appoint members to boards and commissions that a municipality is authorized to establish pursuant to any statutory provision.  These would include things like the “board of local improvements”, the zoning board, the plan commission all of which remain mayoral appointments subject to the consent of the city council. 

3) Controlling all municipal departments and divisions

         Along with appointment and removal power, the Council-Manager is explicitly given the right to “exercise control” over all departments. The city council actually creates the departments, defines the scope of the departments and the duties of officers and employees within them since these are policy making  tasks. 

However, the statute is clear that once the departments and policies are created, the Council-Manager has the legal duty and responsibility over how municipal departments operate and the effective and efficient implementation of policies established by the city council.  Elected officials cannot legally interfere with the Council-Manager’s supervision of municipal departments. 

4) Removing officers appointed under a former mayor-alderman form of government 

When a “mayor-alderman” form of government becomes a “Council-Manager” form of government by referendum, the Council-Manager has the right to appoint and remove those officers who were  appointed under the “mayor-alderman” form for of government.  Therefore, a Council-Manager may transform a city government that is burdened with patronage employees by eliminating politically-connected employees if they are inefficient and incompetent. 

5)   Exercising all obligations otherwise assigned to clerks and comptrollers in connection with the preparation of an annual report of estimated funds.

          In a Council-Manager form of government, the preparation of financial data is assigned to the Council-Manager.  The Council-Manager is given the task of preparing the annual budget report.  The Council-Manager provides all the financial information to the council for the legislative task of appropriations and levies. 

Again, the Council-Manager’s activities are constantly subject to the checks and balances of the mayor and the city council.  Only the city council can pass the appropriation/budget ordinance.  The city council may require independent audits at any time. 

6) Attending and participating in council meetings 

As a practical matter, most city councils turn to their Council-Manager routinely for advice and comment on many legislative issues or enactments but, in cases of conflict or tension, the council or some its members may be inclined to ignore the Council-Manager or shut off the Council-Manager’s arguments and comments. The Council-Manager may insist that his or her voice be heard, because the law that controls the Council-Manager form of government establishes a right for the Council-Manager to take part in discussions. 

7) Recommending legislative action 

Just as the Council-Manager has the right to participate in council discussions, the Council-Manager also has the right to recommend that the mayor and aldermen adopt certain measures or take certain actions that he or she deems appropriate and in the best interest of the municipality. There is no limitation on this right, which means that the Council-Manager may recommend policy to the council that would allow more efficient administration of the government. The council may or may not be willing to follow such recommendations, but the Council-Manager may bring such a recommendation to the council in an open and public city council meeting where residents may hear all discussions of the issues.  In the history of city governments, no city employee or elected official has every been under the continuous daily public scrutiny as is the Council-Manager.  The Council-Manger’s job is on the line every day.

8) Performing and executing any other duties prescribed by
the city council

The Council-Manager cannot create new offices or positions, incur any expenditures or enter into any contracts without city council authority.  Only the city council can create positions and delegate.  However, with the authorization of the city council the Council-Manager may be given some leeway in these matters.   Most city councils do grant to the Council-Manager authority to expend funds or execute contracts up to a certain amount, simply for the sake of efficiency. 

WHAT THE MAYOR CAN DO

         The mayor retains certain executive functions in the Council-Manager form of government.  Normally, the mayor is the chief executive officer of the municipality.  Therefore the mayor is considered the superior over all officers and employees other than city council members.  

The statutes provide that the mayor . . . “shall be recognized as the official head of the city . . .by the courts for the purpose of serving civil process and by the Governor for all legal purposes”.  Also, as noted above, the mayor retains the appointment power over membership on certain boards and commissions, subject to advice and consent of the council.   These can be influential appointments. 

In Council-Manager municipalities, the mayor generally has a strong role in establishing the policies adopted by the legislative body, however, political abuse of mayoral powers becomes a thing of the past under the Council-Manager form of government.  The mayor’s actions are subject to the “checks and balances” of the Alderman and the laws that clearly designate what the mayor may and may not do within the structure of the Council-Manager form of government.   

The mayor still retains the right, at all times, to examine and inspect the books, records and papers of any agent, employee, or officer of the municipality.  The mayor may, from time to time and annually, give the city council information concerning the affairs of the municipality and may recommend for their consideration measures the mayor believes effective. 

WHAT THE COUNCIL CAN DO

          Under the Council-Manager form, the power of the city council is entirely in the planning and creation of policy and ordinances.  This is not to  say that the Council-Manager possesses complete control over how things get done because the city council has the power to shape the way the Council-Manager manages and the Council-Manager is required by law to serve the best interests of all residents. 

When the Council-Manager form of government is adopted by referendum, the council is charged with setting up an administrative mechanism for governance, defining the scope and composition of administrative departments, and structuring the duties of officers and employees. 

To ensure that the “Council-Manager” form of government is properly implemented, the law provides that at their first meeting, the mayor and city council must pass an ordinance that sets certain legislative parameters concerning the execution of policies by the Council-Manager.  

The city council’s power to structure the municipal government is significant, but the council cannot change the Council Manager’s obligations and responsibilities conferred by law.  The law states that the city council may amplify the powers and duties of the Council-Manager, but the organizational ordinance cannot, for example, reassign appointment and removal authority over department heads, because that authority is granted by law.  A city council that attempts to reassign the legal duties of a Council-Manager to some other official may be challenged on the basis that such a reassignment constitutes a change in the form of government which city residents have adopted by referendum.

The city council retains the power to approve payment of all municipal expenses and liabilities. Thus, a Council-Manager’s projects are subject to the city council’s power over the purse. The city council can also abolish offices. 

Finally, Council-Manager cities are “checks and balances” cities.  The council has the power to remove the Council-Manager from office. The Council-Manager is to be appointed for an indefinite term, but may be removed at any time by a majority vote of the members of the council.  Municipalities may contract with the Council-Manager for terms exceeding one year, but the Council-Manager may be dismissed by a majority vote at any time.  A Council-Manager is always aware that his or her primary responsibility is to serve the community efficiently, effectively and without regard to political considerations and that his responsibilities are prescribed by law.

 CONCLUSION

          The Municipal Code repeatedly stresses the distinction between “determining policy” and “getting things done” in the Council-Manager form of government. The Council-Manager is given substantial authority to control the operations of city government through the power to hire and fire and authority over the documents that will lead to a budget or appropriation ordinance. 

The statute also stresses the non-partisan nature of the manager’s role: “He shall be appointed without regard to his political beliefs.” The emphasis is consistently on the professional skill and  competence of the Council-Manager.  Policy and politics are the province of the city council, not the manager.   If the Council-Manager and the council understand and respect these guiding principles and the statutory division of power, the Council-Manager form of government can be a highly efficient and productive structure for a municipality. It has so proven itself in thousands of municipalities across the United States and around the world.