Once every 10 years Erie County is required by its Charter to review the organization and purposes of the government. A Commission is appointed by county-elected officials to review the entire county government and recommend changes or updates. The County Legislature considers legislation to implement some or all of the changes, followed by approval or disapproval of the local laws by the County Executive. Changes that modify the duties and responsibilities of elected officials also need voter approval in a public referendum.
I served as a member of the 2005 version of the Commission and headed up the review of county finances. Out of that work came several changes in the law to tighten policies by adding checks and balances to the budget process. That followed the meltdown of county finances in 2004 and 2005.
The 2015-16 version of the Commission came to be at the beginning of 2016. It held a number of meetings of the full Commission and its subcommittees. Public hearings were conducted in Buffalo, Clarence and Orchard Park.
The Commission was headed by Todd Aldinger, an appointee of Legislature Chairman John Mills. Aldinger had previously served as campaign manager for Phil Kadet, the Republican candidate for county comptroller against Mark Poloncarz in 2009. Aldinger has worked for Senator Pat Gallivan.
Aldinger had the Commission approve a set of rules which gave the presiding officer power to appoint committees, control agendas and set the flow of work. He reports that he himself prepared the final package of Commission recommendations.
The final list dropped some controversial recommendations such as the one to have the county budget office report directly to both the county executive and the county legislature. Some of the politically sensitive recommendations came from the Special Committee on Consolidation and Conformity, which reported very late in the process. Aldinger originally only selected Republican-appointed commission members, seven of them, to that committee, but after complaints from some Commissioners two Democratic-appointees were added to the seven. Questions about Commission transparency abound.
At this point, however, we have a Commission report which will now be reviewed by the County Legislature. Anything the Legislature approves that requires a public referendum will likely need to be completed by mid-July, when the Legislature recesses for the summer.
Many of the recommendations are of a housekeeping nature – things like capitalization of proper nouns, making Charter references gender neutral, updating department names and adjusting Charter section numbering to reflect proposed changes in the substance of the Charter. There are 56 recommendations in all.
Here is an overview of the five most significant issues included in the Commission report. Editor’s note: as a former legislative staffer and budget director, the following gets a bit wonky.
- Creating a Regional Council – in effect, a new layer of government. The Council would be composed of the city mayors and town supervisors in the county. Each council member would carry a weighed vote equal to the municipality’s percentage of the county population. For older readers this may sound vaguely familiar and it is. The proposed regional council would in some respects be the re-incarnation of the 54 member Board of Supervisors, the former legislative body that ran the county from its inception until 1967, when it was succeeded by the County Legislature.
- The proposed regional council, however, has one feature that the old one did not have until it was on its way to oblivion – weighted voting based on population, a reform that followed Supreme Court decisions in the early 1960’s.
- Weighed voting, of course, would permit as few as four of the mayors and supervisors in the county, if voting in unison, to control most decisions of the council, ignoring the interests of the other 24 municipalities if they choose. Which is the main reason we don’t have a Board of Supervisors anymore.
- The proposed council would have the power to adopt resolutions advising on “regional cooperation”; hire staff; control its own budget; and appoint a county planning board. More spending – no value.
- The planning board issue deserves its own analysis, given the impact that a revised board might have. County Executive Poloncarz has his own planning board proposal. Changes in the Charter can occur outside of the ten-year Commission model, and the planning board question is better left for a separate and more thorough discussion.
- Installing the County Code of Ethics as part of the Charter and adding provisions to the Code. While the Code has always been a free-standing law, incorporating it in the Charter does not in itself create any problem. It is the proposed new powers of the Code that raise questions.
- The Charter change proposes that future amendments to the Code could only originate by recommendation of the Board of Ethics itself or by public referendum. This might mean that the County Executive, the County Legislature, other county officials or the general public could not recommend Code of Ethics changes. As for the referendum possibility, state law controls what may be put up for public referendum. Code of Ethics changes would not be subject to referendum unless the changes affect the duties of elected officials.
- The Board of Ethics would be expanded from the current six members to 18 – totally unwieldy for conducting its business.
- The new Code would create limits on campaign donations to candidates for county office. County restrictions on campaign contributions were proposed in the 1970’s following Watergate. It was determined that local controls were not allowed under state law.
- The Commission claims that the same contribution amendment would close the Limited Liability Corporation (LLC) loophole. Not true. The problem with LCCs is that it is cheap and easy to set them up and they come with no transparency. Businesses get around state restrictions on campaign donations by creating multiple LLCs to funnel campaign money. The only way to close the LLC loophole is for State Senator Michael Ranzenhofer to report a LLC reform bill out of the Senate Committee he chairs. Don’t hold your breath.
- The Code proposal includes “fair and equitable treatment” in employment decisions, something adequately covered by federal and state laws. The language could also prompt law suits from people who feel they did not receive fair and equitable treatment.
- The proposal would require resignation of county officials convicted of a felony. Removal from office in such circumstances is already required by the state Public Officers Law.
- Making changes in the terms of office for County Legislators and establishing a new way of re-apportioning the Legislature. The proposal would change the term of county legislators from two to four years, beginning with legislators elected in 2017. It also proposes a politically- appointed commission to conduct the county legislative reapportionment. This might make some sense, but it would be better to tie it to a second proposal that the Commission ignored – another reduction in the size of the Legislature down to nine. Both changes should wait until reapportionment would occur in 2021.
- Changing procedures for setting salaries of county elected officials. Currently, salary increases for elected officials cannot occur when the county tax levy increases. Because of growth in the assessment valuation of property in the county, the levy increases nearly every year even when the theoretical county tax rate does not go up. There is actually no official county tax rate, but rather 28 different ones in each municipality. The Commission tries to get around this restriction by proposing that salary increases could be allowed if a calculated rate that results from dividing the county tax levy into the total assessed valuation of property in the county is considered. No one actually pays at such a rate. A better approach would be much simpler: have the Legislature, in the year prior to the election for countywide offices, set the salary for those countywide elected officials. The salaries of the countywide elected officials, except for the state-determined salary of the District Attorney, warrant raises comparable with the responsibilities of the offices. Salaries of the legislators should be reviewed every ten years when reapportionment would occur.
- Making changes in the county’s budget procedures. The Commission proposes that all county jobs that are vacant a year or more, with some minor exceptions, be eliminated. This resurrects the old Republican “phantom jobs” issue. It also shows a lack of understanding about the way personnel costs work in the county budget. For more than forty years the county has operated with a personnel “turnover account.” This budget account is basically a negative appropriation, reducing by some percentage or fixed amount of money, total county salary and wage expenditures on the basis that during the course of a fiscal year some jobs will be vacant for some period of time, creating budget savings. If long-term vacant positions are eliminated there is less money saved in the turnover account, so that budget account would need to be reduced, eliminating much of the value of knocking out the long-term vacant positions. A second budget related change proposed by the Commission makes sense – giving the County Executive veto power over legislative reductions in the county’s risk retention fund, which is used to pay for occasional legal settlements. The Legislature loves to raid that fund at budget time, but such actions are usually penny-wise and pound-foolish.
What happens next?
Non-controversial changes should have no problem navigating the Legislature-Executive approval process. More substantial changes that would revise the structure of county government will either require negotiations between the two branches or face a likely executive veto if things cannot be worked out.
The Legislature will require one or more public hearings, and any laws approved by the Legislature will require an Executive public hearing. Changes affecting the duties of elected officials require a public referendum.
Look for serious differences of opinion on these issues. The upshot – probably few substantial changes will be made in the Charter this year.