A Treatise On County Government

Part 2: Shopping for a Charter to Stand the Test of Time

Scott Zuke

An inquiry into the nature and purpose of county governments with
a focus on to the main issues of the debate to alter the
Frederick County’s system of government.

(8/2011) This is the second installment in a series of articles intended to stir some critical thinking about Frederick County’s effort to draft, and possibly adopt, a new charter form of government. Last month I gave some initial thoughts on the purpose of county government and introduced some of the central questions that local residents and politicians will have to address throughout the process of revising it. In this article I will cover some recent news regarding the BoCC’s investigation into privatizing certain public services and how it relates to the charter discussion. Then I will look to some stories of famous legislators from Ancient Greece and see what lessons can be drawn from them to evaluate how the early stages of Frederick’s charter drafting process are turning out.

On Public-Private Partnerships

Frederick County government has been exceptionally active lately, to the point that the charter drafting project has been overshadowed by the commissioners’ other controversial actions. In particular, the BoCC’s consideration of a report from PPP Associates on the cost-cutting benefits of privatizing an array of county services riled even some of the Board’s staunch conservative supporters. While one commissioner said that the report caused "more chaos than good," it seemed more like a growing consensus of suspicion and dissent from county workers, citizen activists, and outside advisers. While the Board has since voted to drop consideration of PPP’s report, it remains committed to investigating other privatization options.

Don Kornreich, writing for the Frederick News-Post (July 10), argues that the Board’s simultaneous efforts to privatize services and alter the county’s system of government are essentially in conflict: "If the BoCC is considering the use of private contractor personnel instead of county employees to perform county services -- which, of necessity, would fundamentally alter the way the county carries out its responsibilities -- why is it important to substitute a new form of government for the current BoCC?"

In effect, we have two proposals working to accomplish a similar goal, but from different approaches, one general and structural, the other particular and functional. The charter board is seeking to reenvision local government in a general way by altering the its structure: division of the legislative and executive duties, centralizing executive power with one individual, and increasing the scope of the local government’s powers and responsibilities. Privatization reenvisions the roll of local government by focusing on one of its particular functions that is continuously controversial: the scope of public services provided, their expense to taxpayers, and how efficiently they can be operated.

Attempting both projects at the same time is over-ambitious and risky. The Board has clearly stated its focus on decreasing government spending, but when it comes to outsourcing services, haste can and does make waste. Donald Kettl, Dean of and professor at the University of Maryland School of Public Policy (at which I am currently enrolled as a graduate student), was recently asked by the Frederick branch of the League of Women Voters to review PPP’s report. While acknowledging that privatization can have great benefits, he warns that careful contracting and oversight are crucial. The Board responded that the report was about cutting costs, not about implementation, which would come later. But this is the risk of bottom line tunnel vision: poor implementation would quickly erase any benefits of cost savings and could lead to all sorts of problems that would be difficult to untangle. Failing to recognize this risk from the outset is just as ill-advised as passing a new entitlement program without fully studying long-term costs and implementation challenges.

Kettl raised the important question, "Who’s going to be governing this relationship so taxpayers get their money’s worth?" And as Kornreich is right to point out, this question becomes all the more difficult when we can’t even answer the more general question, "Who’s going to be governing?"

Shopping for a Constitution

While the PPP report gripped the headlines, the BoCC voted to give the charter-writing board $25,000 to operate public meetings and to hire an expert to assist with drafting the proposed charter. The figure was chosen after the charter board looked to other examples of Maryland counties that have recently considered charter governance. According to Bob Kresslein, the board’s vice chairman, Cecil County spent that amount and successfully adopted a charter, whereas Washington County spent less about half as much on the project and it failed to pass.

The process of drafting constitutions by consulting experts and neighboring communities has deep and interesting roots in classical history. The Greeks in particular were fascinated by law codes, not only of foreign lands, but also of their neighboring poleis (city-states). Like the American colonies under the Articles of Confederation, Greek city-states were autonomous and self-sufficient, bound together by language and culture, but not by any national government. This led to a proliferation of constitutions, many experimental in nature. The philosopher Aristotle was one of the great cataloguers of these early formative attempts at government design. He records, for example, the experiment by one Phaleus of Chalcedon, who crafted a constitution that said the property of all the citizens should be equalized by having the wealthy give, but not receive, dowries, and vice versa for the poor. He thus created one of the early "redistribution of wealth" schemes. Various communities attempted abolishing private property, thousands of years before "communism" was coined as a term, and experienced many of the same, predictable flaws endemic to the practice in the modern era.

Lawgivers themselves were known to go on long expeditions to study the ways of distant lands. The Roman biographer Plutarch tells such a story of Lycurgus, who crafted the law code of Sparta: "After leaving Sparta, the first place he visited was Crete, where he studied the various types of government and spent time with the most distinguished men of the island. He admired some of their customs, but did not think much of the rest; the ones he admired he appropriated, with the intention of taking the back home and putting them into practice." He visited modern day Turkey and perhaps even Egypt before returning home and beginning the process of constitutional reform through a peaceful revolution. The benefits of his travels were evidenced by his creation of a mixed constitution," successfully combining aspects of oligarchy and democracy. Interestingly, however, one of his decrees was that the law was never to be written down, but merely passed on through childrens’ education.

Solon of Athens took a different route. The Athenians gave him (and him alone) carte blanche in crafting every aspect of the law code imaginable. This included not only criminal justice and property management, but even strick laws of proper public conduct and other such minutia as a minimum distance from which a land owner could plant a tree near his neighbor’s property, so as to avoid property border disputes in a time before spite fences. His law code, which was codified and kept on public display, was so comprehensive that people constantly approached him in public asking for additions, revisions, or to remove certain laws, to the point that he finally decreed that his laws were to remain untouched for a hundred years. Then, citing business duties abroad, he departed Athens for ten years, traveling to many of the same regions visited by Lycurgus, and believing that by the time he returned everyone would have grown used to his laws. It didn’t go quite as smooth as he hoped, and there were ongoing political power struggles that led to periods of unrest (this was prior to the establishment of the famous Athenian democracy), but many of the laws remained intact even under later rulers.

What lessons can we draw from these two examples? Lycurgus demonstrates the value of learning from the experience of others—evaluating what practices work and would be useful in our local context as well as identifying policies that create more harm than good. The charter board should therefore look to as many case studies as they can in the limited time they have (luckily it is no longer necessary to spend several years traveling the Meditteranean to do so, although that doesn’t sound half bad the more I think about it). One expert is good, two might be better.

Solon instructs us in the value of a comprehensive, codified charter, designed to stand the test of time. He also suggests some warnings, though. While an individual (or in our case, a small group) can quickly prescribe laws, the more detailed and invasive they become, the more the citizens will seek to revise or abolish them. As with the US Constitution, there are advantages to keeping laws as simple and general as possible. It will also be important to include as much citizen participation as is feasible throughout the drafting process. After all, the board does not have the kind of power that Solon was given, and whatever is proposed will have to be put up for a vote.

So far, it appears that the charter board is on track to follow these guidelines, and that’s a very promising start. The other side of the equation is for citizens to remain actively engaged in the process. One of Solon’s laws, apparently a precursor to similar laws in the democracy that developed later, speaks to this idea. I quote again from Plutarch:

"[The law] ordains that anyone who takes neither side in a political dispute is to be disenfranchised. Presumably he means that no one should be so indifferent and insensitive to the common good that he just sees to the safety of his own private affairs and congratulates himself on his distance from the pain and suffering afflicting his country, rather than immediately joining whichever side is acting with a higher degree of integrity and justice—that he should offer them his support and co-operation in the danger they face, rather than waiting safely on the sidelines to see which side gains the upper hand."

Lines have already been drawn between competing interests in the charter drafting process, as seen in the attempt to replace what some see as a predominately pro-development group with a more balanced slate. It will be important for citizens unaware of these factions to begin familiarizing themselves with the issues, and to begin deciding which side is merely defending its own interests, and which is aligned with the interests of the county as a whole.

Read past editions of Scott's A Treatise On County Government

Scott is a graduate of St. Mary’s College and is currently pursuing
 a Masters in Public Policy at the University of Maryland