Town Voices ~ Policy Machers

Town Voices features in-depth informational and opinion pieces from Portland’s community members, with an emphasis on the practical challenges facing our city. Views expressed do not necessarily reflect those of the editorial board of the Portland Townsman. If you’d like to submit to Town Voices, please email editor@thetownsman.org

Now that the Portland City Council has tapped Danielle West to serve as the next Portland City Manager (she had been serving the role in the interim) the Council has chosen the chief policy position in the city.

While they may not have the high public profile of elected politicians, appointed civil servants are key in crafting and executing policy and make our governments run. The two, then, work together to build, implement, and iterate public policy.

In Portland, the Mayor and City Council do not have their own staffers as one might see on The West Wing, (although they could), instead they rely upon their three major appointments: The City Clerk, the Corporation Counsel, and the City Manager. The city’s clerk and attorney preside over small departments; while the City Manager runs everything else–including their personal staff which includes assistant city managers and the communications team. 

While the City Manager job is not typically imagined as a policy position (it is usually cast as “executive” or “administrative”), high ranking civil servants like city managers are effectively government CEOs who create, adjust, arbitrate, and rationalize policy in several distinct ways.  There is a logic to this system. You want policy wonks and capable administrators running most of the functions of government while being insulated from the caprices and populist sentiments of elected officials. Conversely one doesn’t need to be a genius to be a politician; one just needs a conscience, a working set of ears, a spine, and the ability to distinguish good policy from bad. The problems arise when civil servants and elected officials pretend to play roles that they are not suited for (which is often) or they both start acting like technocrats–who derive their right to power based on their knowledge and training. Often these conflicts manifest over matters of “policy.”

Administrative tensions between sovereign lawmakers and the civil services exist in every form of government, from kings and chamberlains on down. The appointed city officials that make government run are sometimes referred to as the bureaucracy, and–synecdochally–as “the government” or the “the administration.” In Portland, they are often benignly referred to as “staff.” 

What is Policy?

Defining policy is difficult because its meaning tends to shift depending on who is using the term and to what ends. In politics, “policy” is generally thought of as the means and methods toward which goals and preferred outcomes are achieved. This may include best practices, position papers, policy statements, or even whims of whoever is in a position to dictate terms on the execution of a certain matter. 

But however you define the term, it is not the same thing as legislation. Legislation is the laws that are passed by a legislative body (like a City Council) that are then executed by a staff of civil servants. Sometimes the legislation is broad and the civil service needs to refine it (“rule-making”)–but often this process is reversed where staff will present a policy to the legislative body for a rubber stamp. What is unusual, at least at the local level, is for a legislator to independently compose and put-forth a fully formed piece of legislation without at least a raised eyebrow from the civil service. Legislation then is a vehicle for policy, but not the only one.

How do Civil Servants Craft Policy? Let Us Count the Ways…

No matter what you call them, civil servants (of which a City Manager is but one staff title) drive policy in a number ways:

1 – By staff “expert” recommendations

It is standard practice of governments throughout the world to have “policy area experts” that recommend and write policy for legislators to review (with varying levels of scrutiny). Nearly any piece of legislation receives the consideration and vetting of unelected officials.

But not all experts agree on what the best policy direction to take on any given issue, thus we see policy shifts and debates. Although expertise often seems disinterested and non-partisan, it can actually disguise the individual convictions of the expert offering it. It all comes to bear with the annual budget which the City Manager (with the help of department heads) prepares and recommends to the City Council. This makes the budget the city’s essential master policy document where the priority of each item is quantified as dollars and cents on a spreadsheet.

2 – By wagging the dog

The recent case of Mayor Kate Snyder’s April 14^th memo to the state legislature’s Joint Standing Committee on Housing demonstrates the confused nature of the elected/appointed dynamic. Mayor Snyder’s memo supports a State bill (LD 665) to permit a two-year delay in the implementation of another bill (LD 2003) designed to create affordable housing. Given that the memo runs contrary to the City Council’s priority of creating more housing, it seems odd for the mayor to write such a memo. But what is known is that planning departments around the state (including Portland’s) have expressed concern for not meeting the deadline of LD 2003. 

Indeed, the whole process of rewriting the city’s land use code (known as the ReCode) serves as a broader example. Planning staff and their consultants have been working on this legislative project for several years. It is an overwhelming document; hundreds of pages long and full of highly technical zoning and land use policy. Few outside of the planning department staff and some specialized consultants will ever be able to understand it all. Nevertheless, it will be presented (along with a staff memo) en bloc to the City Council who will have a few months, or even weeks, with little in the way of outside resources to evaluate it before voting it into law.

3 – By knowing policy is 1% inspiration and 99% implementation

Suppose a City Council were to pass a law that “no one shall go unsheltered in the city,” that would leave a lot up to the civil service on how to enact it. It is their duty to fill in the gaps, and thus we have seen city officials procuring everything from hotel rooms to sports arenas to meet the need. 

One might call it ‘administrative discretion’ or simply ‘leeway,’ but the implementation, prioritization, and interpretation of policy is–effectively–the making of policy. This cannot be understated, as even relatively low-profile officials, such as fire marshals, building inspectors, and parking attendants, possess a large degree of personal discretion in determining how to execute policy.

A recent example is the Bike Share program, which had sat mired in process for years. But then, with a change of City Manager, the program suddenly launched in a matter of months. This was due to a shift in priority, and thus in policy, on the part of non-elected officials.  Whether it be lax enforcement, inadequate resource allocation, unqualified vendors/applicants, or good ol’ fashioned slow-footing; legislators learn pretty quickly that if their civil service doesn’t want to implement a policy, it isn’t getting implemented.

4 – By decree

In nearly every system, including Portland’s municipal government, executive officials (like City Managers) may enact things by ‘executive order’ without going through the legislative process. These orders are the most obviously visible form of administrative discretion, and often attract attention.

Some recent and highly emotional issues like the Peaks Island golf cart regulations and food truck policy on the Eastern Prom were ultimately set by such ‘executive orders,’ the latter seemingly contrary to the City Council committee’s recommendation.

5 – By knowing there’s no returns without a receipt

Similar to a store return policy, bureaucracies create extra-legal internal policies. This serves to give everyone consistent treatment when interfacing with the government, as well as to fill the gaps that legislation doesn’t cover. But it can also allow a department head or government bureaucrat to create policy according to their own predilections with little recourse for the public (other than to appeal to the City Manager or other bureaucratic chief.)

We see staff decisions in everything from de minimis variances in a site plan to the former city manager’s decision to move the stormwater separation project from Marginal Way to Baxter Boulevard (a decision that added years and tens of millions of dollars to the project). In fact, the only difference between “policy” and “administrative decisions” is how they are presented to the public–and often, how upset people get about them (as in the case of the aforementioned food truck issue.)

6 – By working with interest groups

Like elected officials, staff spend considerable time working with consultants, lobbyists, advocates, and other parties who exert influence on government officials. Although it is hard to know who is talking to whom, consultants (like lawyers and engineers from the right firms) with whom staff feels comfortable are critical for getting approvals on things like zone changes and building permits on large projects. At the recent vote to appoint the new city manager, former city officials Brian Batson and Mary Costigan who are now government relations specialists (lobbyists) testified in favor of the choice.

Staff will also hire their own consultants, a recent example being the city’s development of a clean elections program. City staff hired legal consultants (from the same firm that advised the Charter Commission) to recommend a program structure. At the same time, advocates organized by Maine Clean Elections lobbied elected officials towards their own views on the matter. 

Disclosure: The author, Zack Barowitz, served on an ad hoc advocacy committee that was organized by Maine Clean Elections. He attended strategy meetings, proofread documents, and helped to coordinate committee member outreach to Councilors.

7 – By bureaucratic minutiae

Nothing is more infuriating when it comes to government than dealing with an inflexible bureaucracy which is manifest in the countless number of forms, permits, and rules surrounding everything from permitting a garden shed to selling pizza, or from receiving housing benefits to parking a car at an electronic meter. Anyone who has ever suffered the consequences of being two minutes late on a meter, 6” short on a setback of a shed, or providing a non-notarized document along with their marriage license application can attest to the banal power of bureaucracies. These structures, too, are created and managed by city staff.

It is important to understand that while City Managers and other top bureaucrats may owe their appointments to legislators, they draw their power from the bureaucracy below them; and in order to wield that power they must keep all their functionaires content. Thus, we see a certain amount of rigidity, even ossification, in all bureaucracies that makes them extremely resistant to change.

8 – By selective enforcement

The power of the civil service may most vividly be illustrated by the powers of discretion afforded to the police. Consider the amount of personal judgment that the police have in who they stop and who they arrest. If you’ve ever talked your way out of a traffic ticket (or talked your way into handcuffs) you can appreciate the level of personal discretion that the police exercise. Indeed, on a deeper level, consider that most things that police enforce are civil matters: speeding, unregistered vehicles, and walking around with an open container all come under the police purview. Whereas other civil matters (like an unpermitted garden shed) come under other city departments. Perhaps as a consequence of this (somewhat arbitrary) division, police chiefs tend to be very good politicians; nevertheless, in Portland they still answer to the City Manager.

The Job of a Politician

If you have ever written your mayor or city councilor with a request, you likely will have received a reply that includes a phrase like “I am copying the City Manager’s office on this reply…” This is because neither the City Council nor the Mayor, has authority to direct city staff outside of legislation.

So, aside from devoting much of their lives to onerous public meetings, what, you might ask, do our elected officials do? Some duties include appointing people to fill posts and making proclamations. Outside of chambers they fundraise, or if they are part time (as most in Maine are) they work their day jobs. They also meet with constituents, attend events, give speeches, travel to conferences, and enjoy the privileges – while enduring the pain – of public office.

All this begs the question of how elected officials actually do make policy. Generally, elected officials are more interested in eventual outcomes than minutiae. Many politicians are really much more focused on the “what” (their vision) and leave the “how” for the civil service to figure out. This isn’t to suggest that some elected politicians aren’t themselves wonks who love the crafting of good policy, and even those who aren’t are highly incentivized to carefully vet staff recommendations as best they can. It is, in the end, their reputations on the line if the policy fails to fulfill expectations.

On Kicking the Can

An elected politician should note that one way to avoid policy failure is to set easily achievable goals, like finding a place for food trucks to park, instituting community compost collection, or holding listening sessions. This leaves most of the heavy lifting of housing, homelessness, climate change, and opioid deaths to the civil service whose jobs typically don’t rely on precarious public promises.

In selecting Danielle West as City Manager, our elected representatives have chosen their leader. She is now, without question, the single most powerful person in Portland’s government. They did so with the hope and conviction that she is capable of overseeing the city’s departments while at the same time being willing to implement the will of the City Council–at least some of the time. 

Zack Barowitz – Zack Barowitz is a flâneur. He lives in Portland. ZackBarowitz.com