October 25, 2009

Re: A Constitutional Glitch in the Ciccone Consolidation Bill?

Carroll Andrew Morse

Monique points out that the state Constitution has to be considered in any plans to "consolidate" or "regionalize" Rhode Island's cities and towns. And a direct reading of the first 4 sections of Article XIII of the Rhode Island Constitution certainly seems to rule out the top-down pile-driver consolidation recently proposed by Senator Frank Ciccone, unless a major set of Amendments are first approved by the voters…

Section 1: Intent of article. -- It is the intention of this article to grant and confirm to the people of every city and town in this state the right of self government in all local matters.

Section 2: Local legislative powers. -- Every city and town shall have the power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.

Section 3: Local legislative bodies. -- Notwithstanding anything contained in this article, every city and town shall have a legislative body composed of one or two branches elected by vote of its qualified electors.

Section 4: Powers of general assembly over cities and towns. -- The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.

Section 2 quite clearly denies the General Assembly the power to eliminate home-rule charters. Section 3 says every city or town gets to have a city or town council of its own. Then -- most importantly for this discussion -- the final clause of the first sentence of Section 4 says the General Assembly can't act to change the form of government in any city or town, preventing (among other things) any end-runs around Sections 2 & 3 by changing the definition of city and town through statute alone.

However, there's nothing in the state constitution regarding cities and towns, similar to the provision in the Federal Constitution that says "equal representation in the Senate cannot be changed, even through an amendment", that prevents Amendments being adopted that would allow for county-level governance. Perhaps an Amendment to the state Constitution that says no regionalizing a city or town, without the consent of "a majority of the qualified electors of the said city or town voting at a general or special election" should be considered. Nick Gorham could make such an Amendment the centerpiece of a campaign for the statehouse in 2010, depending on the position of the current state Rep in his district on the Ciccone plan…

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It seems too complicated. We need to get started consolidating sooner rather than later. A journey of a thousand miles begins with one step.

We are taught at an early age to call 911 in case of an emergency. People’s perception of what an emergency is may differ, but one fact does not; we expect our calls to be answered expediently. Fire departments handle most 911 calls in our area. Those departments pride themselves on a speedy response to calls from the community. When the bell tips at a fire station everything stops, personnel drop whatever they are doing and hit the apparatus floor. Meals go cold, showers stopped half taken, cleaning and maintenance jobs are not finished. Those things can wait. Nothing matters but the call. Within thirty seconds the trucks hit the street. People know that help is on the way. They assume the closest units are answering their calls, and they are correct in that assumption. What they may not be aware of is how far the closest unit actually is.
Mayor Ciccilini recently proposed legislation aimed at clearing potential hurdles in the way toward regionalization of city departments. In a carefully worded statement he cites the need to maintain services and cut costs in difficult economic conditions. “Planning for regionalization would not begin in earnest until legislation is passed,” states the mayor. North Providence’s Mayor Lombardi notes that the closest responders are not always the ones that are sent, due to jurisdictional complications. Our elected leaders have begun the process of considering consolidation of our emergency response departments. Consider how many years the consideration will take before any progress is made.
A good place to begin consolidating emergency service organizations in and around the Capitol City is to expand existing mutual aid agreements. An automatic dispatch of the closest unit makes sense. The logistics of doing so will be a difficult, but far from impossible task. All considering could be done quickly, and a plan could be put in place within months, not years.

On any given day the cities of Providence, Pawtucket, Cranston, East Providence, North Providence, Johnston and Central Falls provide mutual aid to each other, mostly in the emergency medical services departments. As the system currently works, a municipality must drain all of it’s resources before another town can be called for help. People who live on or near town lines are particularly at risk. If a life threatening emergency occurs, they could, and often do wait for an advanced life support vehicle to arrive from the other end of the town or city while a rescue from the next town sits in the bay, in service, a few blocks away waiting for a call from inside the borders of their own city.

Because of the population’s increased use of 911 for routine medical problems urban municipalities cannot keep up with the demand for emergency services. It is an ebb and flow system, one on the brink of collapse on a daily basis. Meeting the needs of every caller would bankrupt most municipal budgets.

Presently, each city or town is responsible for providing coverage inside it’s own border. Some stations were built “close to the line,” prior to the construction of major highways. It was a different world when these places were built, the planners of those long gone days had different problems to consider, different political alliances to placate and a completely different landscape.

Without scrapping the current system and implementing better policy regarding the dispatch of emergency resources cities and town departments must rely on each other. An ultimate goal of consolidating these departments is desirable, but in reality is decades away. Consolidation based on need already happens on the street level, and with few exceptions runs smoothly.

An automatic mutual aid system and agreement will greatly increase the effectiveness of our public safety departments. Mayors and town managers will be forced to work together to make a system badly in need of repair more efficient. The opportunity for grandstanding will be taken away, political gain would be nil, and simple, good governance shown to be an effective tool in bettering the lives of the citizens by providing quicker emergency response to whatever needs may arise. It is the response times that need improvement, and automatic mutual aid will help save lives.

Posted by: Michael at October 25, 2009 11:11 AM

Michael, great point.

Constitutionally, there should be no problem with immediately implementing expanded mutual aid as you describe because it would be the cities themselves agreeing to such an arrangement, not having it imposed upon them from above, by state government.

Posted by: Monique at October 25, 2009 12:02 PM

I would think think that the wording of the Constitution would not expressly prohibit consolidation, either into county-wide systems or a statewide system for many services (fire, police, public works) which, in my view, would make more sense seeing as how our state is smaller than many counties and even cities. In fact, we already have the structure in place in state government that could allow for this, albeit after a good deal of consolidation and reorganization within our already-consfusing state government. Regardless of the problems we may have in the state government, we should focus on changing one government instead of keeping 39 governments in line.
The constitution expressly allows the state to have governing powers over localities. "The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns". Within this language, it would be easily interpreted that if town government structures remained (town councils, mainly) - that the state could provide most services. In fact, I would see this option as being politically feasible as localities would still have town councils which could oversee zoning and planning, liquor licenses, etc... that people would most likely want to have managed as close to home as possible. By keeping the local legislative bodies intact, it would be possible to consolidate most government services without having to amend the constitution.

Posted by: Bob at October 25, 2009 12:05 PM

"The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town."


Nothing like going directly to the governing document for clarification.

Posted by: Monique at October 25, 2009 12:07 PM

The fact that the conventional wisdom believes consolidation is the answer is very strong evidence that the contrary is true.

Ciccone's bill is at the more cynical end of the RI political scale. Greater consolidation of power at the top means more opportunities for corruption on a larger scale.

No, we are much better off with our cities and towns free to govern themselves. That's how competition and creativity flourish.

We do not have effective home rule. If you read the state Constitution carefully you will see that the municipalities must get approval from the General Assembly for a whole host of activities including capital spending projects and borrowing money. Additional state mandates, many of them on the school districts and many unfunded, are probably unconstitutional but what city has the resources to fight that in court?

No, the solution is to remove the general assembly's power over local government to the greatest extent possible. I have long argued that this should be a major plank in the Republican Party's platform.

Posted by: BobN at October 25, 2009 2:34 PM

"we should focus on changing one government instead of keeping 39 governments in line."

In line to do exactly what, Bob?

Further, you acknowledge that the state government has problems. If all power is shifted to the state level, how do we the people keep them in line?

Posted by: Monique at October 25, 2009 8:57 PM

I can't tell what the people who oppose consolidation believe. Do they believe that RI has the optimal setup now for government? If not, and they say that 39 different "field offices" are not better than say 6 regional field offices, then how about the other direction? Why not go for 100? Instead of Pawtucket, why not have a different government for Darlington, Oak Hill and Downtown? Have different governments for Wanskuk, Fruit Hill, Riverside, Rumford, Watch Hill, etc.

If consolidation isn't the answer and expansion isn't the answer, then does that mean that some believe we are doing things as efficiently as possible?

Posted by: Patrick at October 26, 2009 10:00 AM

As I mentioned, the Constitution, as currently written, prevents the state from changing the "form of government" of any town. As I mentioned: simply consolidating most services into another entity (county, state, etc...) would not affect the "form" of local government. The Home Rule Charter amendment is to allow locally-elected bodies of government to be formed freee of the state - it does not preclude any other level of government to provide any services.

Posted by: Bob at October 26, 2009 10:31 PM

The state couldn't, for instance, tell the City of Cranston that it can no longer have a police department or a fire-department that reports directly to the Mayor or a budget appropriated by its City Council, without affecting the form of government in the City.

That's why, a few years back, the state offered additional aid money to school districts that "voluntarily" agreed to regionalize, because it lacks Constitutional authority to compel anyone to regionalize.

Posted by: Andrew at October 27, 2009 8:41 AM
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