P ~ B ~ 1 ~ 2 ~ 3 ~ 4 ~ 5 ~ 6 ~ 7 ~ 8 ~ C
The City Charter is to Portland what the Constitution is to the United States. It’s the framework of our government. It defines the roles that elected representatives play, it establishes the city’s governing bodies and their prerogatives, it enumerates their duties and obligations, it prescribes how voting works and how elections are run, it constructs chains of authority, and it declares our community’s aspirational values, to name a few of the many purposes of the Charter. It is the hard core of our local laws, as it is by the Charter that all other laws are passed. It is the hull of our ship of state.
But just as a ship’s hull needs repairs, and as the United States Constitution has to be amended on occasion, as times change and values shift, so too do we need to make changes to our City Charter. A Charter Commission is a group of representatives elected by the city to hammer out changes to this Charter, or in other words, to ask: “How, exactly, should our city work?”
A Portland Charter Commission, in much the same form as the one we’re considering today, was called by a popular vote in 2008 to consider changes to Portland’s city government. One question in particular was the focus for this group – how best to implement a new political office into city government: A Mayor.
Technically, there were Mayors prior to this commission. The first Mayor in fact was elected in 1832, to preside over the city council. In 1923, the position was eliminated, instead the former duties of Mayor were executed by a ‘Chairman of the City Council’. In 1969, they renamed this chairman position to ‘Mayor’, but the name is the only thing that changed. The ‘Mayor’, under this old system, was just one of the city councilors, elected by the other councilors, to serve an almost entirely ceremonial and procedural role. This election happened every year. During this period from 1969 to 2011, the title of ‘Mayor’ was, essentially, decorative.
But in 2010, the Charter Commission wrapped itself up and gave a final recommendation for establishing a real mayoral office. The position would be elected directly by the people to serve a four-year term; its holders would perform a limited mixture of legislative, executive, diplomatic, and ceremonial functions, while being a member of the City Council. The people of Portland embraced the new post, and in 2011, voters elected their first real Mayor since 1923: Michael F. Brennan. In 2015, the people elected Ethan Strimling, and in 2019, Kate Snyder. She continues to hold the office at time of writing, but has recently stated she will not be seeking re-election.
This development – the establishment of a real mayoral office – enjoyed mixed responses. Many citizens felt empowered by voting directly for a city executive, and that this allowed for a more effective democracy. It may also clarify the position of city administration by putting a name and face on an agenda, as opposed to the obscure miasma that council politics can sometimes be. But others were less happy, feeling that injecting electoral politics into the mostly humdrum business of city administration couldn’t possibly be a good thing. Important decisions might be colored by party polemics, and common-sense solutions may lose out to ideological posturing. And this is all of course assuming that the Mayor won’t be rankly compromised, corrupt, or incompetent.
Over the past decade, feelings have mellowed, but there’s been a distinct undercurrent of discontent. On the one hand, some had felt that the mayoral position is still an awkward hybrid, enjoying some executive functions but still mostly being a ceremonial façade. The solution, then, would be to further empower the position into a true executive mayorship. On the other hand, some had thought the entire office of ‘Mayor’ was an artificial, unnecessary, expensive distraction, and that it should be done away with again.
A New Charter Commission
The key moment which led local activists to begin preparing for a new Charter Commission was, however, not the question of the mayoral office, but rather a proposal to enact a “clean elections fund” by referendum in Portland. When city officials advised proponents that a referendum would not be the appropriate venue to implement this sort of reform, and that a new Charter Commission (called by a ballot question) would be necessary, several parties began gearing up for a return to the Charter, eraser and pencil in hand.
(Incidentally, it was later determined by a legal judgment that the fund could have proceeded by referendum, and that the Commission was not strictly necessary. The proposal now lives on in Question 3.)
Initially dejected that the proposal for an elections fund was being so delayed, excitement quickly spread among activists and progressives around the idea of forming a new Charter Commission. Unresolved tensions from the previous revisions still lingered, and the air was practically electric with energy.
In July 2020, with COVID-19, mass protests against racial injustice, and the forthcoming national election on everyone’s minds, the people of Portland went to the polls again. Here they were asked whether or not they’d like to establish a new Charter Commission. The ballot question was expansive in scope, asking simply “Shall a Charter Commission be established for the purpose of revising the Municipal Charter?”
The people voted ‘yes’.
There was no explicitly-stated goal of this new Charter Commission, it had a broad mandate to consider many different reforms, ranging from school board autonomy to police oversight. But most informed observers fairly assumed that the question of what the Mayor’s role should be would get revisited. They would turn out to be correct, as today, the most high-profile recommendation by the Charter Commission is to restructure the city government such that the Mayor will act as a true executive, rather than as merely a special member of the City Council.
This is far from the only reform that the Commission concerned itself with, however. The entire governing structure of Portland is up for adjustment, with the size of the council, the manner in which they are elected, who they represent, the compensation of the Mayor, the existence of the City Manager, operations of the School Board, considerations for Peaks Island, and how elections are held all being subjects of considerable change. Beyond governance, new city organs such as a Police Review Board and Ethics Commission are being proposed, and the values that the city of Portland presents itself as holding in the preamble of the Charter are too being held out for an update.
Following the vote, the City Council appointed the first three commissioners on August 10th.
Michael Kebede, an attorney with the Maine ACLU, Peter Eglinton, formerly chair of the School Board, and Dory Waxman, a former City Councilor, were selected from a large field. These three formed the nucleus around which the remainder of the Commission would assemble.
On June 8th, 2021, the routine municipal election would also play host to the rest of the Commission’s election. Each of Portland’s five districts would elect one Commissioner, and four at-large Commissioners would represent the city as a whole.
At this point it must be said – Charter Commissions were traditionally thought to attract a certain sort of candidate. Policy wonks, technocrats, connoisseurs of minutiae who know and care about things like electoral algorithms, political economy, administrative efficiency, etc. Maybe they’re already employed by the city government, or by a private firm or nonprofit that works closely with them. People that are perfectly comfortable (maybe even a little excited) at the prospect of reviewing the dense legalese of dozens of municipal constitutions from around the country, or comparing the outcomes of hundreds of computer-simulated elections.
This is not to say that such people are uniformly superior or even preferable to other candidates, far from it, but these sorts of bodies were assumed typically to be the domain of those rich in technical knowledge and poor in firebrand charisma.
But as previously mentioned, the summer of 2020 was an atypical season. The pandemic, widespread protest movements, the looming national election, all these things worked as an unpredictable reagent in the usual political alchemy. Progressives mobilized, seeing this Charter Commission as an opportunity to entrench more meaningful change than simple bureaucratic tinkering. More conservative elements, slower on the draw, reacted to this with their own involvement, mostly to try and prevent a strongly left-wing slate from sweeping the Commission. A slew of young political novices, starry-eyed and rose-emoji’d, went up against a rear-guard action of stodgier elders, and mostly won in the elections that were to come. A few of the candidates who ended up as commissioners were more typical of the breed, but for the most part this was an unexpected outcome – and a smashing victory for progressives.
Who are the Commissioners?
The most evident triumph of the left’s organized effort was the all-hands victory of the ‘Rose Slate’, a team of four first-time candidates, all progressive women, all but one running for the at-large seats.
That remaining one Rose Slate candidate was Shay Stewart-Bouley, representing District 1. Director of a Boston anti-racism nonprofit and creator of the Black Girl in Maine blog, she defeated a retired union rep and a local landlord and promised to advocate for racial justice and a strong mayor. In District 2, Robert O’Brien ran unopposed and unsurprisingly emerged victorious. Eschewing any strong ideological language, he cited his experience on public boards and as a consultant for state government; he proposed significant but carefully-considered reforms to governance and elections. It was a three-way race for District 3, but Zachary Barowitz, self-described ‘YIMBY’ and with significant para-government experience, won the day. He advocated for an independent council, competent staff and a high degree of citizen engagement, as well as some sort of reform to the governance structure. In District 4, a thirty-year City Council veteran lost out to Marcques Houston, board member of Progressive Portland and restless activist for reform. He emphasized the need for eliminating non-democratic elements of governance, publicly funding elections, and giving non-citizen residents the vote. Ryan Lizanecz won in District 5, just 23 years old and a full-time law student. He also considered publicly funding elections to be a “no-brainer”, and supported a (cautiously) empowered mayor and non-citizen voting in municipal elections.
The most exciting race, however, was the at-large race, where eleven candidates competed for four seats. As mentioned earlier, the Rose Slate candidates snapped up three of the seats. Nasreen Sheikh-Yousef, member of Black POWER (formerly known as BLM Portland), voiced support for the by-now familiar list of progressive reforms – an executive mayor, publicly-funded elections, non-citizen voting, and so on. She also suggested abolishing at-large Councilors entirely, removing City Council oversight of the school budget, and defunding the Portland Police Department. She was the most popular candidate, with over 22% of the first-round vote. Catherine Buxton, nonprofit manager concerned with consent education and providing resources to victims of sexual assault, also won an at-large seat. She had a particular focus on disestablishing systemic racism from government, and hiring a Diversity, Equity & Inclusion officer for the city. The last Rose Slate victor was Patricia Washburn, a surprise winner for reasons to be discussed in a moment. She too emphasized anti-racism and the greatest hits of the progressive reforms, and noted that the 1923 decision to abolish the position of Mayor was supported by the Ku Klux Klan.
The final at-large seat to be won, and the only one to go to a non-Rose Slate candidate, went to Marpheen Chann, activist and educator for the Holocaust and Human Rights Center of Maine. While certainly progressive, he was sure to stress his pragmatism and open-mindedness, and expressed a desire for good, incremental changes. His support for the Rose Slate’s priorities was tempered by caution and moderation.
These winners, plus the three already appointed by City Council, would form the 2020 Charter Commission.
Several self-described ‘moderates’ and ‘pragmatists’ were shut out, sometimes in highly surprising results, by the progressive cohort. Part of the reason for the shock came down to a quirk of the electoral system mandated for the at-large seats, ironically, by the Charter itself. Under the current provisions of the Charter, the majority-approval requirement enacted by referendum and achieved using ranked-choice voting reacts unexpectedly with multi-seat races. When the same group of candidates are competing for a set of seats, the ranked-choice voting method used in Portland ends up producing strongly majoritarian results. In other words, even very slight electoral majorities (sometimes even narrow minorities) can take home all, or nearly all, of the seats. This means that even popular candidates can be swept away by a well-organized campaign. The ultimate example of this is the election of Pat Washburn to the Commission, who despite achieving only 4.2% of the votes in the first round, ended up winning a seat over Steve DiMillo, a moderate conservative who came second in the first round with 21.1%.
Whether this is fair or not comes down to one’s political philosophy (do you favor proportional representation or an effective majority?) and the subject will be discussed further in section four. But it says something that one of the Commission’s proposals is to reform the very system that they were elected by.
The Commission
Almost immediately, one of the newly-elected Commissioners injected the sleepy subject of governance reform with a shot of adrenaline. Taking to Twitter, Commissioner Sheikh-Yousef called then-City Manager Jon Jennings a “White Supremacist” and promised to ensure no racist ever held the position of “City Manager” again. Voices from all sides entered the fray, and an organized attempt to recall Sheikh-Yousef was initiated (to no avail.) With this news cycle, support for eliminating the City Manager position, while not inherently a partisan policy either way, was coded onto the progressive left.
At the Commission’s first meeting, they elected Michael Kebede to chair the commission, as he had already been doing in the interim, and Shay Stewart Bouley as vice chair. They also elected Peter Eglinton, another appointee, as secretary. However, after this, things almost immediately ground to a halt. Portland Corporation Counsel office appointed an outside attorney to represent the Commission, at the city’s expense. An attorney, city staff assumed, would be necessary to give opinions on legal issues and file relevant documentation. Several Commissioners immediately displayed skepticism, asserting that accepting this appointed attorney would compromise the Commission’s independence. Instead they should be given funds directly to select and hire their own choice of attorney with, even if this consumed additional time and resources. Other procedural concerns consumed the Commission’s early months, including rows over note-taking, scheduling, and conflicts of interest. Eventually, most of these were peaceably resolved, and the attorney appointed by the city accepted.
After these, undeniably awkward, first steps, the Commission did eventually catch its stride going into the winter of 2021. Most of the Commissioners’ priorities, including governance reform, publicly-funded elections, and police oversight, began to take shape as draft proposals. One, however, was thoroughly dashed against the rocks: allowing non-citizen voting in municipal elections would have plunged Portland into very dangerous legal waters. The risks conveyed by advisors, even those sympathetic to the notion, were finally deemed too great to brook.
Throughout late 2021 and early 2022, the Commission met periodically to discuss and debate the issues, and public comment poured in. Nearly everyone with even a passing interest in city government seemed to weigh in at one point or another – on Zoom, by email, by public letters, by social media, face-to-face, everyone wanted the Commissioners to know what they thought. The controversy which erupted over the various reforms being contemplated by the Commission engaged a difficult question – how to put the reforms, once finalized, to the voters? Everything the Commission does will have to be approved at the ballot box by a majority of citizens, but what should the format be? One big basket, take-it-or-leave-it? That would seem incredibly risky, combining anodyne constitutional updates with hugely controversial reforms.
So, it has to be broken up into multiple questions, but how many? On the one hand, the more discrete questions, the better. It would give the voters more power, it would protect the least controversial and most necessary reforms, and it would make it less likely that all of the Commission’s work would be wasted. But more questions may confuse voters, and make it hard to craft good policy – not knowing what else would be approved. It’s easy to say “one question per issue”, but every issue is a nesting doll of sub-issues, and it’s turtles all the way down. The balancing act between limiting ballot complexity and maximizing voter freedom was a difficult one for the Commissioners to perform.
Some issues which the Commission considered were ultimately shelved, including pay rises for representatives and the creation of an ‘executive committee’, while others were concluded as non-binding recommendations to the City Council.
But we do not concern ourselves at this time with any of that.
The Eight
On July 6th of this year, the Charter Commission approved its final report. Eight ballot questions would go to the voters, approving or striking down eight self-contained reforms to the Portland Charter. First, revising the preamble to acknowledge Native American rights to the land. Second, a restructuring of governance, completing the transition of the city to a Mayor-Council form of government. Third, a new public fund for supporting qualifying candidates in municipal elections. Fourth, a technical reform to voting, so to allow proportional tabulation in multi-seat elections. Fifth, releasing the School Board from City Council oversight. Sixth, entrenching the Peaks Island Council into the Charter. Seventh, overhauling citizen oversight of Portland Police. And eighth, the establishment of an Ethics Commission and drafting of a Code of Ethics.
There’s been simultaneously too much ado about some of these reforms, and not nearly enough for others. In particular, the implications (however one thinks of them) of the fifth question are severely underreported, while the second question has received no shortage of coverage – but much of it severely ill-informed.
If you, like I did, half-understand half of these, and the other half understand not at all, you owe it to yourself and your fellow citizens to do your due diligence and determine, for yourself, whether Portland is best off approving or denying each of these reforms. What follows, I hope, is a good start.
~
Next Section: 1 ~ The Land Acknowledgement
Preface
Background ~ What is the Charter Commission?
1 ~ The Land Acknowledgement
2 ~ Governance
3 ~ Elections
4 ~ Voting
5 ~ The School Budget
6 ~ Peaks Island
7 ~ Police Oversight
8 ~ The Ethics Commission
Conclusion & Opinion
~
Corrections 10/4/22 – A previous version of this article stated incorrectly that Michael Kebede was appointed as an interim chair in 2020 and that Zachary Barowitz’ opinions on governance reform as candidate were slightly different. Minor changes were also made elsewhere. Thank you to Commissioner Barowitz for noting these corrections.