Mpls Charter Commission: elite, unelected, powerful

MSR file photo

The 15-member Minneapolis Charter Commission (sometimes referred to as the city’s “standing constitutional convention”) and its recommendations are at the center of multiple ballot initiatives this election cycle. Residents may be aware of this unelected state-mandated body, but few know how it operates.

The Minneapolis Charter Commission is outlined in statute 410.05, which says that “the [district] court, acting through its chief judge, may appoint a charter commission to frame and amend a charter.” Its members “shall be a qualified voter of the city” and can be re-appointed.

The current chief judge of Hennepin County is Toddrick Barnette, the first Black chief judge in the county’s history. Judge Ivy S. Bernhardson, who he replaced, had previously signed off on the reappointment of most of the current Charter Commission.

Chief Judge Barnette declined through a spokesperson to comment for this article, and almost none of the Charter Commissioners who spoke for this article had ever met with the current or any judge regarding the Commission. Commissioners Garcia, Davis, Carter, Sandberg, Newborn, Smith, Metge and Cohen either declined comment or deferred to Chairman Clegg. Commissioners Abbott, Hawkins and Perry did not respond by press time.

The Charter Commission meets every month on Wednesday at 4 pm. It has a set of main officers (chair, vice chair, secretary) who “may be removed by a two-thirds majority vote of Commissioners.” Two Charter ballot amendments before voters this year (Public Safety and Rent Stabilization) did not originate with the Commission but rather by petition and Council respectively, but all three, including the Government Structure amendment, have major implications for city government.

Related Story: Police reform charter proposition moves forward in Mpls.

How does a qualified voter get onto this elite, State-sanctioned Commission that can make recommendations to change City law? Ten Commission terms will expire next year and three more in 2023.

Chairman Barry Clegg said the process currently goes through the “Current Openings” page of the City website, where registered voters can fill out an application and a voluntary demographic questionnaire. They are asked to “include applicable experience with civic, professional or volunteer organizations and other city boards or commissions” and “any awards or special recognition.”

They are also asked to “list the reasons you want to serve on this body” and “the issues you think this committee should address.” Three references are required and “any financial interests (where required) or associations with which you are involved that may present a conflict of interest.” According to statute, a nomination to the Commission can also come from “a city council, a charter commission, or the petitioners requesting the appointment of a charter commission.”

Courtesy of Minnpost (l-r) Hennepin County Chief Judge Toddrick Barnette; Barry F. Clegg

Steve Brandt, a former Star Tribune reporter who covered the Commission and a current candidate for the City Board of Estimate and Taxation, said the process for the chief judge in deciding who to appoint was “sort of like picking a grand jury.” He noted Charter Commissions “by their nature are not popularly elected.”

Jim Bernstein was a former Minnesota Commerce Commissioner and Charter Commission member and was not reappointed after a decade on the board in 2010. Bernstein noted that during an open appointment there were not many applicants because “nobody else wants to do the job.” He said the chief judge who declined to reappoint him had a “different perspective.”

Charter Commissioner and former Minneapolis City Attorney Peter Ginder said his role on the board was to “look at and work with the Charter.” Ginder said it was also important that the City functions under “best practices” and that most years the Charter goes unaltered.

Charter Commissioner Andrea Rubenstein, who has been on the Commission since 2006, said members are “volunteers not promoting careers” but interested in “good government and public service.” Commissioner Rubenstein alluded to the fact that at one time the chief district judge may have received recommendations from a former mayor. She said previous judges were “way too busy” to check in on the Commission, but that Chief Judge Barnette has been more involved in the current Commission’s work, attending meetings and speaking with the chairman.

Commissioner Andrew Kozak, a registered lobbyist who has been on the board for over a decade, said he heard in the past that council members “suggested who could go on” the Commission as the judge usually didn’t have to “plow through 30 applications.” He said his role was to view the Charter from a “narrow view of what’s appropriate” and the Commission was “not a substitute for the Council, even though some might be tempted.”

Commissioner Lyall Schwarzkopf, who served as both Minneapolis city coordinator and clerk and chief of staff to a former governor, was reappointed by three different district judges. He said his role was to “follow state law and build the best constitution for Minneapolis to ensure the city is governed well.”

What is the origin of this “home rule” system? Look no further than Article XII Section Five of the Minnesota State Constitution setting up Charter Commissions, which reads: “The legislature may require that commission members be freeholders.” This word also comes up in a 1905 legislative legal document: “Judges of the judicial district…may appoint a board of freeholders to frame such [a] charter.” A “freeholder” is a legal term meaning “a person in possession of a freehold building or estate in land,” which in the earlier part of the last century could be quite restricted.

The University of Minnesota’s Mapping Prejudice project has produced research showing that certain types of real estate restrictions were banned by the state legislature in 1919. A 1940 legislative supplement says “the board of freeholders may propose amendments to such charter, and shall do so upon the petition of five per cent of the voters of the city.” It was not until a 1961 statute update that this was changed to the “Charter Commission,” yet it was required to be made up of “freeholders and qualified voters” until 1967.

Several Commissioners seemed unaware of this word or its historical resonance. Chairman Clegg said he was not sure where it came from but it was probably the 19th century. Commissioner Ginder stated it was a “term that hasn’t been used.”

Commissioner Rubenstein said it was “old fashioned” and meant “White male” but said that the board is not as “White and middle class” as a decade ago. Commissioners Kozak and Schwarzkopf both said this term meant one who “owns property” but is no longer a requirement to be on the board.

Part of the problem is how the Charter itself was formed. According to local historian Iric Nathanson, the original document “codified the existing municipal government system into a new charter and abandoned any attempt to overhaul and reform it.” Nathanson was legislative assistant to Minneapolis Mayor Don Fraser in the 1970s, when the last major overhaul to government structure (the Executive Committee) was added to the Charter.

Myron Orfield, Earl R. Larson professor of civil rights at the University of Minnesota, said the Charter Commission was initially “envisioned by citizens interested in social justice to avoid the interference and corruption of the state legislature.” Orfield agreed with the concept of freeholder as one who “had to have the title to property.”

In modern times, Orfield said, the Commission has become “dominated by lawyers who are in the service of established interests, more conservative and representing the interests of big business and the mayor, a consensus of powerful people.”

Steve Brandt, the reporter who covered the Commission, described it as an “establishment body” and confirmed Orfield’s take on the term freeholder, calling it an “archaic term meaning anyone who was a White male.”

This year the Charter Commission put forth an amendment on government structure that would (among other changes) abolish the Executive Committee and alter the makeup of the City government to provide a clear delineation and separation of powers between the mayor and city council.

This election, voters in the city will have the ultimate democratic check on this unelected body and its recommendation to change the city’s governmental structure.

John Abraham welcomes reader responses to jabraham@spokesman-recorder.com.

2 Comments on “Mpls Charter Commission: elite, unelected, powerful”

  1. Commissioner Rubenstein said it was “old fashioned” and meant “White male”. Wrong. Old-fashioned, yes, but much of our legal terminology traces back to English law.
    A freeholder is simply a land owner, and does not refer to race. The idea was that freeholders had a stake in the governance of an area; as opposed to someone who rents a property, is more likely to be transient, and therefore less motivated by longer-term considerations. Freeholders had a vested interest.
    Yes, in the past race has had implications on limiting opportunities for land ownership, but saying that the word “freeholder” only means white males is like saying “professional basketball player” only means black males.

  2. Rather than discuss the merits of the Charter Commission’s proposal to clarify the structure of our city’s government, this commentary attacks the Charter Commission’s legitimacy, charging that it is “elite, unelected and powerful”. This charge ignores three critical facts:

    First, the charge of “elitism” is both false and disrespectful to our current commissioners. They are all volunteers, and Mr. Abraham unfairly tarnishes them by describing historically restrictive qualifications that have been dead for over 50 years. Mr. Abraham acknowledges that state law has made clear since 1967 that any qualified voter may apply to serve on the Commission, and today’s Commission is in fact both diverse and representative: 4 persons of color, 7 women, and 8 men, living in 11 of our City’s 13 wards. Indeed, the charge of “elitism” is much more applicable to supporters of the charter amendment to eliminate the police department without a transition plan for if, when, and how to hire replacement peace officers, because that effort receives over 80% of their funding from outside the State of Minnesota.

    Second, the Charter Commission’s proposal is just one of two proposals by “unelected” bodies on the ballot this year. The other “unelected” proposal authorized by state law is the one from a self-appointed (“unelected”) group of only 5% of our city’s voters who propose to eliminate the police department without a transition plan. State law expressly authorizes both of these methods for “unelected” people to propose charter amendments, and each method is as legitimate as the other.

    Third, state law gives the Charter Commission no “power” whatsoever beyond submitting its proposed amendment to the voters — where our ultimate democratic control lies. This is no greater “power” than state law gives to 5% of our “unelected” voters to seek approval of their proposed charter amendment.

    The Charter Commission’s proposal to clarify the structure of our city government is sound, giving us a clear legislative and executive branch similar to our federal and state governments and most other large city governments. Our citizens need to study this proposal on its merits and not be distracted by baseless allegations about the legitimacy of the Commission.

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