Unaware of how the demands of modern warfare gave the President the predominance it now enjoys over Congress in national affairs, today, citizens across the nation usually assume that state and municipal executives also enjoy a similar predominance over governmental affairs in their jurisdiction. This belief, while commonplace, overlooks two important facts that must be born in mind when trying to make sense of the current situation in Mount Vernon’s city government.
First, as the executive of local municipality, a mayor—unlike the president—will never be called upon to make any split-second decisions regarding war and peace. They are on much shakier legal ground, therefore, when executive privilege is used to resist the powers that our constitutional framework gives to the legislative branch of government.
What’s more, the extraordinary powers that are now routinely exercised by modern presidents continues to be the subject of considerable controversy and debate among legislators and constitutional jurists, as well scholars and political theorists. In fact, concerns about the expansion of the power of the modern presidency long ago prompted liberal and conservative thinkers, alike, to warn that our democratic institutions were being imperiled by the rise of an “Imperial Presidency.”
Popularized by the renowned liberal historian Arthur Schlesinger, Jr., proponents of this view contend the new-found powers our Presidents have exercised since the onset of the Cold War represent an historic—and dangerous—reversal of the relation our Founding Fathers sought to establish between the legislative and executive branches. In a classic legal study that examined the Imperial Presidency in light of the original intent of the framers of the constitution, the conservative jurist Raoul Berger argued that contrary to popular belief, the executive was actually supposed to be the “junior partner” whose key task was to carry out the will of its more senior partner, the legislature.
True to the founder’s original design, Mount Vernon’s city government is structured in such a way that the legislative branch is endowed with considerable influence over municipal affairs. Most obviously, the City Council—and the City Council alone—enacts the laws the Mayor enforces. Beyond its law-making function, though, the Council exercises additional powers, as part of our system of checks and balances, to ensure the Mayor acts in accordance with the City Charter and local ordinances. Two of the most notable are its power over the city’s purse (i.e., power to make budgetary appropriations), as well the power to investigate the doings of the Mayor and all his subordinates—under the compulsion of a subpoena, if necessary.
Rulings issued by state courts across the nation have repeatedly found that legislatures in the nation’s towns and cities are well within their to power investigate executive officers—even when, as Counsel Porcari argued, they are accused of acting in “bad faith,” or being impelled by “political motivations.”
Consider, for example, the ruling the State Supreme Court of New Jersey issued in the 1954 case of Eggers v. Kenny. Anticipating the argument that the current City Council’s actions are politically motivated, the plaintiff asked the Court to quash an investigation into possible wrongdoings by city officials. After studied deliberation, the Court rejected the plaintiffs arguments. “Where…the committee is engaged in a municipal investigation having legitimate public ends, it is immaterial that political motivation is also present,” it ruled. Were motive alone the determinant of legality, the Court went on to say, it “would defeat the many public investigations which, while perhaps resulting in anticipated political advantage, also serve society by unearthing official misconduct with consequent corrective legislation and executive action.”
- The Shredding of the City Charter: The First Hundred Days of the Thomas Administration
At this point, it should be clear that the power to legislate, appropriate and investigate are granted to the legislature precisely because the Founder’s wanted to make certain no imperial executive would ever arise at any level of government, including our own. Hence, the question isn’t whether the Council has this power? Or what the underlying political motivations of the Council might be? Rather, what we really need to ask ourselves is whether Mayor Thomas did something that would warrant the use of such extraordinary measures by the Council?
If people remove their blinders for a minute, and took a clear-eyed look at some of the things Mayor Thomas has done during the opening months of his administration, the question has to be answered in the affirmative. It is astounding to see just how often the freshman Mayor has already run afoul of the City Charter.
Before he was even officially sworn in, Mayor-elect Thomas, intoxicated on his newfound power, was already attempting take actions that overstepped his authority under the City Charter.
First, in what has tried to be painted as a simple misstatement, he announced that former MVPD Robert “Bob” Kelley was being appointed to the position of Deputy Mayor for Public Safety. Members of the public, as well as the City Council, openly acknowledged that it might be a good idea to have a Deputy Mayor. But before doing so, the Council warned, the Charter would have to be amended in order to create such a position. That warning went unheeded. Instead, Mayor Thomas managed do the same thing, through other means, eventually appointing Kelly as Commissioner of both Public Safety and the Fire Department. But as it turns out, this, too, is a violation of the City Charter. Article IV § 19 is unambiguous: “No person shall at the same time, hold more than one City office. Upon the acceptance by a City officer of a second office the office first held by him shall thereupon become vacant.”
Whoever’s idea it was, this one act may well have made the Commissioner of Public Safety party to the commission of a political crime.
Around the same time he was trying to revise the Charter through executive fiat, the Mayor-elect did the same thing, on an even grander scale, when he announced 14 people had been appointed to two “Mayoral” committees that also don’t have any official standing under the current City Charter.
And since the being sworn into office, Mayor Thomas has continued to up the ante by repeatedly disregarding other key provisions of the City Charter as well.
Among the many possible instances one might cite, the most egregious, by far, was Mayor Thomas’s refusal to provide the City Council with records it requested regarding the demolition of the so-called Zombie home located at 136 Park Avenue. No matter how one might feel about the decision—good, bad, or indifferent—the Charter is quite clear: “The City Council shall have power to investigate all City officers, all departments and all public affairs of the City and shall have access to all records and papers kept by every City officer or department and shall have power to compel the attendance of witnesses and the production of books, papers or other evidence at any meeting of the City Council or of any committee thereof…”. Totally disregarding the power of the Council, the Mayor refused to comply with its request. And when it took the next step, and subpoenaed the Mayor and several Commissioners, Thomas flouted the directive—refusing to appear, and instructed them to do the same.