DeKalb’s city manager, Bill Nicklas, accused members of council of placing our city “on the edge of changing the form of government we have” during a recent public meeting.
But a closer look at the situation suggests the accuser may be changing government to suit himself.
City of DeKalb has the council-manager form of municipal government. Broadly speaking, this means an appointed manager (CM) runs day-to-day operations, while the elected council functions almost entirely legislatively in setting policy. However, in real life the lines are bound to get blurred sometimes; and in DeKalb the blurring gets compounded due to exaggerated asymmetry in two areas:
— Informational asymmetry, in that council members generally have an overdependence upon the CM for information about how local government is supposed to work.
— Behavioral asymmetry, by which I mean the CM has a personality that is more driven to guard and extend the manager’s domain than council is motivated to defend their legislative prerogatives.
Nicklas damaged the legislation end of things — quite early in his tenure at that — when he talked the city council into abandoning their regular Committee of the Whole meetings. COW meetings were a way for the group to explore potential policy directions and find consensus before committing to a vote. Now, there’s no such regular percolation of ideas; almost all legislation originates from the CM and his own vision.
Death of the COW also means the one regularly-scheduled way council members have left to test policy ideas with their peers is to submit items to the CM for a discussion-only portion of a regular council meeting called “Considerations.” Early this year, City Barbs reported that Alderman Mike Verbic (6th Ward) has been occasionally submitting items as Considerations. Most of his items have been included on agendas, but he’s accumulated a “waiting list” of at least 10 items that Nicklas hasn’t acted upon.
Now, an email exchange between the two, along with a 35-minute discussion of the topic during the October 27 council meeting, reveal that the CM doesn’t regard the procedure for council members’ agenda item submission as legitimate at all, and is claiming the right to reject items as he sees fit.
Questions of Authority
During the meeting, Nicklas said the DeKalb Municipal Code gives him authority over council agendas, and that allowing anything less than his full discretion over them threatens the council-manager form. By this I assume he means a diminished role in agenda preparation would damage the separation of powers that define our type of municipal government. But I have reviewed the chapters governing the city manager’s duties and council meeting policies/procedures and found nothing to support this assertion; the CM’s codified agenda powers are actually quite limited. Chapter Two (Council Meetings) allows discretion over content only as concerns the annual planning/visioning meeting agenda, consent agenda decisions, and agenda requests from members of the public. Chapter Three (Powers/Duties of the CM) doesn’t mention agenda duties directly at all. (You can find more detail of my findings in this posting at City Barbs Blog Facebook Group.)
In short, most of the CM’s agenda-related discretion lies in procedural decisions such as the order of business, and not in judging the substance of the items of business themselves.
That city code doesn’t allow the CM total control of the agenda makes sense, because it belongs just as much to the council as it does to the administrators. The legislators have a right to determine their legislative agenda, and Nicklas has now become an obstruction to that — himself a clear threat to the council half of the council-manager structure.
Nicklas’ second argument for control maintains that Chapter Two really does give him total discretion over council members’ agenda submissions because the section that deals with it is illegitimate and/or misinterpreted. Let’s look at the two parts of Section 2.09 (my emphasis):
(a) Any two (2) or more City Council members desiring that a matter be placed on a Regular meeting agenda for consideration by the City Council shall advise the City Manager not later than 12:00 Noon on the Monday preceding a Council meeting. They shall supply the City Manager with a copy of all relevant materials to be considered by the City Council. The City Manager shall include any such matter as a consideration item on the requested agenda.
(b) Any person desiring that a matter be placed on a Regular meeting agenda for consideration by the City Council, shall file a written request with the City Manager along with a copy of all accompanying materials, not later than 12:00 Noon on the Monday preceding a Council meeting. Inclusion of any such matter on the agenda shall be at the discretion of the City Manager. Placement of matters on the Consent Agenda shall be at the discretion of the City Manager. The Agenda shall be prepared and released by 7:00 p.m. on the Thursday preceding the Regular meeting.
The language pertinent to council agenda item submissions indicates the CM makes no decision in this. He has to do it and there’s a deadline, too. However, Nicklas disputes this, saying the legislative intent for 2.09(a) was to bestow discretion for agenda item submission on him just as 2.09(b) does for the “any person,” but the language unfortunately ended up being ambiguous. In an email to Verbic, he bizarrely describes subsection 2.09(a) as invented in 2011 or 2012 only to “mollify” a female council member who complained her agenda items were being ignored.
Kooky take. Even if this story with sexist overtones is true, it doesn’t nullify the plain language of subsection 2.09(a).
What’s Next
The bottom line is there’s a procedure for council members to introduce agenda items that’s not being followed under this CM. Council’s consensus at the end of the agenda item discussion was to have the city attorney look at Chapters Two and Three of the city code and make recommendations. Council’s mission will be to avoid ceding their most fundamental power if/when amendments to these chapters are brought to the table.
Amending the code for language (e.g., finding a more precise term than “any person”) or offering a more flexible deadline for agenda inclusion would be legit. But the council should keep for itself the decision to vet and prioritize policy-related items coming from its members.
Maybe the best option would be to take these items out of the CM’s hands, if not by resuscitating the COW, then perhaps by calling workshop-style special meetings* for this purpose.
*Section 2.05 of the city code allows the mayor or a minimum of three council members to call a special meeting. The city manager is tasked with putting out notices of the special meeting, but not with preparing the agenda.