State & Local Government 8/25/10
~ Get the city of Grand Forks Home Rule Charter
Assignments: Read first chapter – 60 pages for 8/27/10
For Final: The Vertical Distribution of authority & the Expenditure of $.
State Governments & Local Governments are mutually exclusive terms.
Main Difference is that State gov’t has a constitution, local gov’t has Charters
Home Rule Charters = A local map of how they spend the $ in their county – has to be a vote of the people & pass 60-40 majority (Grand Forks is a home rule city)
General Fund in GF county is under the state, not a “home rule”
Grand Forks County has 70,000 people, 54,000 live in the city
Why are we fearful of the Feds: Macro Policy issues – to delineate civil rights
The Fed Gov’t is meant to be a gov’t of very limited authority
Feds: interstates, boarder security, FAA, FBI, CIA, Secret Service – Enforcement of Civil Rights
States: Water, sewer, garbage, law enforcement, metro bus,
No Child Left Behind Act: Takes away the control from the teachers – took an issue that should have stayed a local issue & made it federal
Factions at the state & local level are a boogyman – they don’t exist
Police Power – one way states regulate you
Commerce Clause is the way feds regulate you plus piggy bank money
Spending Power is the other way that the Feds can get into your life
The only 2 ways Constitutionally that the Feds can regulate
Once City Council meeting w/ a brief paper to him
County Commission is the legislative branch
States Atty is the Executive branch
GF City Council = 7 members
America is built on the idea that “we’re meant to be free (which is why it’s hard to change gov’t)
James Madison’s article – we will talk on Friday, read it twice (wants a more centralized gov’t)
Is it better to have a bigger level of gov’t or smaller – is that what Madison is really saying? No
B/c with a more centralized gov’t it would be easier to change
The distribution of power & authority in Gov’t – Main Idea of this course
You can change things more easily on a local level by becoming a commissioner
Chapter I. Introduction to the Study of State & Local Gov’t Law 8/27/10
A. States and Local Governments: Madison thought the states would have all the power – Shift has come from global economy, 2 world wars, US as superpower & culture
~ 3 dramatic events: 2000 elections, 9/11, Katrina in 2005
~ Welfare reform, transportation & pollution are areas where feds give $ to the states, but let them control it’s spending – No Child Left Behind is a counterexample
1. The States: contract, tort, property, criminal, family & incorporation
*No state may be deprived of equal suffrage – Art. IV, §3
*No state may be created out of the territory of another w/o consent – §3
*US is committed to protecting the states from invasion & domestic violence – §4
2. Local Governments: Parishes, boroughs, townships, counties & cities
~ lack inherent law making authority
a. Top-down (local control) v. Bottom-up (state control: Local gov’ts are agents w/ 2 principals-their state government & their local constituents
*Typical top-down = county (provide state service at the local level) – usually not elected, just offer & distribute services from the state
*Typical bottom-up = city (policymakers in urban areas) – you elect those people & they makes the laws
*Combo T-D & B-U = town or township (rural areas-town hall meetings)
b. General Purpose v. Special Purpose: counties, cities & townships are all considered to be general purpose b/c they have brad responsibilities over a significant # of areas (safety, health, land use, streets)
*School district is an example of a special purpose b/c they have very narrowly defined authority & functions
*Purpose: mating the scope of the gov’t to the scope of the problem & taking the financing & decision making out of politics, 3rd – it’s a way for the district to evade the constitutional restrictions on local gov’t taxing & 4th to provide physical improvements or basic services
Special Purpose (any time you hear “Special Assessment” means tax $ collected for it)
School District Water District Rural Fire Department
Social Services has a special assessment in ND (helps kids from Meth Lab homes)
**On Test-pg 14: 4 Reasons for creating special districts:
1. Giving them independence from general purpose cities or counties
2. Matching the scope of the gov’t to the scope of the problem
3. Evasion of state constitutional restrictions on local gov’t taxation & debt
4. To provide physical improvements, basic service, or some of the regulatory benefits of municipal gov’t, without having to bear the full costs of a full-fledged gov’t
Smaller gov’t is more efficient for the spediture of $
B. The Vertical Distribution of Power Question
**There will be an Exam question on each one of these 6 articles!
James Madison, The Federalist, #10 (1787): 2 methods of curing the mischiefs of faction-remove its causes or control its effects (we can’t remove it’s cause)
*2 parts of removing its causes-destroy liberty or give each man the same liberty
*The most common faction-the haves vs the have nots
*Cure = a republic instead of pure democracy (few elected officials – not majority)
*The republic makes it hard for one cult to take over & suppress the rest
He wanted gov’t to be bigger, he was afraid of small local governments
Alexis de Tocqueville, Democracy in America (69): Liberty is in local institution
*Local townships give men independence & power
*Despotism keeps men apart & greedy, while independence intertwines them
*Decentralization creates greater protection from tyranny
*He’s the opposite of Madison
2080 hours of work per year – 80 vacation = 2000 (if you have to bill 1700 that’s 7 hrs a day)
“Feeding the Beast” – gotta keep the hours coming thru (work nights & weekends)
State has a program called Rule of 85 (Age + years of service) you can retire w/ benefits
~ 3 pkgs in Bsmk right now deciding how they will fund the retirements of gov’t workers
~ States atty – assistants are making $56,000 per year
~ After 6 mos you have a property interest in your job if it’s w/ the gov’t in ND (right to work st)
~ Paul Sangas/Steve Forbes advocated flat tax
Notes & Questions: The Tyranny of the Majority, the quality of gov’t decision-making & the benefits of political participation
Charles M. Tiebout, A pure Theory of Local Expenditures (1956): Applied Economic Theory – No market type solution exists to determine the level of expenditures on public goods. (EXIT – Move – Vote with your Feet)
*People move to communities with the most benefit to them
*Looks a local government by how the people react, staying or exiting
Notes: Interlocal mobility can affect local taxing, spending & regulatory policies
Gerald E. Frug, The City as a Legal Concept (1980): Reorganizing society to increase the degree of individual involvement in societal decisions.
*Individuals who participate get a practical notion of the needs of social life & an interest in the welfare of their community
*State control has prevented cities from becoming participant democracies
Richard Briffault, Our Localism, Part II: Localism & Legal Theory (1990): 2 central theories-participation in public life (VOICE) & efficiency in the provision of public sector goods & services (EXIT)
*Says Frug is off base & Tiebolt is more on that local gov’ts do have power
*Cities have to cow-tow to the businessmen since they have the $ to pay the taxes & the $ to move if the city tries to make them pay for the poor
*The ability to work, live, shop in different communities leads to less locality
*People are tied to their homes for sentimental reasons & neighbors
*Spending on programs isn’t about “taste” it’s about how much $ they have
*Local wealth is a result of external forces, not local decision-making
*Localizing or suburbanizing leads to the rich not caring about the poor
Richard Thompson Ford, Beyond Borders: A Partial Response to Richard Briffault: Big gov’t vs decentralized autonomy is like a debate from separatists vs integrationists
*Says autonomy can’t exist b/c 1) cities depend on the state gov’t for their power, 2) they need the mkt for their economy, 3) they share common infrastruc
*Says local autonomy is motivated by a desire to avoid contact with the poor and with racial minorities
*Hobson’s Choice = social & economic equality vs political empowerment & cultural solidarity (take it or leave it)
Notes & Questions: Localities have more power than the writers say, state gov’t generally stays out of their way & let them do the work & have the authority
*Smaller units require less $ to pay for gov’t b/c less red tape parochialism
T
ov’t in the Sunshine Act
On Test: Most commissions have sub-committees that do the work: GF Co. Budget Committee
COLA: Cost of Living Adjustment
Transparency in public administration (open)
· ND any criminal file is an open file once the case is closed (whether prosecuted or not)
· ON EXAM: EVERYONE has the right to obtain open records
· Courts are NOT subject to open records law: Specific Statutes may require them to be open, but some things the courts don’t release (juvenile, nasty divorce)
· Access to public records is always free (might charge to reproduce record)
· Whenever there is a charge for an open record, or it takes a while to get: It is always supposed to be REASONABLE (reasonable fee $.15 or reasonable time)
· Confidential records must not be released
· Do Not create documents of an event if they don’t exist
· Under OPEN records law, you don’t have to create summary of the info that’s out there
· Email communications are an open record
· One Big Exception to OPEN Records: Work Product (YELLOW LEGAL PADS!)
· State & Local gov’t law – once you get down the food-chain, the laws are looser
· Know the line b/w Exempt records & Confidential Records
Open Records Open Meetings
Understand Exempt vs Confidential
CVIC – Rape & Abuse Crisis Center in GF – Wishing Well Program (where they do supervised visitation for non-custodial parent)
On Exam: Anyone has the right to attend & record the meetings of a public entity.
Not everyone has the right to speak, but they have the right to attend.
Strange things about the remedies for OMLaw violation: A willful violation of OMLaw could bring about criminal charges to the violator. (he’s never seen it happen)
The remedies don’t have any teeth to them at all – strangely impotent
If you meet in executive session (meeting w/ atty as a governmental entity)
To have an executive session you must have a specific reason
Executive Session must be taped
You must specifically put it in your agenda if you’re having a E/S
What would be an appropriate remedy for violation of OMLaw? Fine $, Censure (report to the bar board if atty is involved) Answer: city had to publish an agenda & say that there was an executive session. (Really? He says this is weak)
Citizen’s don’t have the opportunity to speak at the meetings if the Chairman doesn’t want them to. He can call them out of order & have them taken out.
Why is there this formal process – Due Process – the citizens are funding the meeting
The Constitution requires the feds to protect territorial integrity of the states, to guarantee the states a republican form of gov’t & protect them from invasion and domestic violence.
* State powers are protected by the 10th Am. & principles of sovereign immunity
* Constitution is silent on the subject of local government
3 strands run thru the fed. Courts consideration of the place of local gov’ts
1. Local gov’ts are state instrumentalities or mere agents of the states
~ People have no federal constitutional right to local gov’t
2. De facto autonomy in local gov’t + their important place in democratic system
~ Allows them to articulate & implement a local vision of the public interest
~ Local gov’t is less an agent of the state & more an extension of the people
3. 3rd strand treats local gov’t as a quasi-proprietary firm (like a corporation)
~ Local constituents are seen more as consumers/investors that part of political entity
~ One person/one vote, except in special district elections
