“In a society in which people are becoming increasingly alienated from the political process, local government remains the most realistic opportunity for participation,
but you can’t create that if a city has no power” – Hon. Bernie Sanders, Mayor of Burlington, Vt., New York Times, November 1, 1987.
Vermont has had a long and often contentious relationship between the state and local governments whose inhabitants created first the nation and then the state of Vermont. And while that history is both important and instructive, we rely solely on the customs of the past to carry us into the future at our peril. We Vermonters must be intentional in our design of the local/state government relationship. We have not been deliberate in our design of that relationship in recent years. In fact, we lag behind several states that have re-calibrated the relationship between state and local governments to ensure that cities and town are empowered to design and implement innovative and effective programs.
Dillon’s Rule – Where did that come from? John Forrest Dillon was a justice of the Iowa Supreme Court from 1864 to 1869. He served a scant two years as chief justice on that court before President Ulysses S. Grant appointed him to the U.S. Circuit Court (the Eighth Circuit) in 1869. In 1868, this obscure justice from a state nowhere near Vermont, authored Dillon’s Rule, which states “municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. … As it creates so may it destroy. If it may destroy, it may abridge and control.” That flowery language all boils down to the concept that towns are creatures of the state, enabled to do only those things they are specifically given permission to do. Thank you, Judge Dillon.
Between 1749 and 1764 – well before Dillon turned up and before the first Vermont Constitution was enacted in 1777 – New Hampshire Colonial Governor Benning Wentworth created most of the towns in Vermont. The 1793 Vermont Constitution, which largely continues in effect today, was enacted two years after Vermont, the 14th star of the American flag, was admitted to the union. That’s 55 years before the Iowa was admitted to the Union and 75 years before Justice Dillon’s proclamation of his rule.
Iowa Chief Justice Dillon still wields a stranglehold on local governments in some of the most conservative states in the nation … as well as in Vermont.
Power in Vermont. In cities and towns, all the puzzle pieces of effective government – public safety, emergency management, transportation, land use, economic development, water, and environmental quality – must fit together. Yet power in Vermont is held not by town selectboards or city councils but by the state legislature. Vermont does not have initiative, referendum, or home rule provisions. It has neither a regular schedule for re-visiting the state Constitution nor a robust tradition of considering constitutional amendments, as is the case in many other states. Essentially, all governance power is lodged in the 180-member legislature and the governor, all of whom who are elected biennially. In some election years, many legislators face no opposition. (Such is the case this year.) Thus, despite its tradition and reputation of direct democracy and robust local control, Vermont has one of the most centralized governments in the country.
Black’s Law Dictionary, Eighth Edition, defines home rule as a state legislative provision or action that allocates a measure of autonomy to a local government, conditional on its acceptance of certain terms. Vermont’s local governments have none of that. Instead, municipalities must find ways to implement mandates from the legislature and state administration, whether funded or unfunded. They must devise and effect solutions to problems in real time.
Municipal Governance Charters. One way that a municipality may implement solutions to local problems is by voting for a governance charter and securing approval from the legislature. Fifty-seven cities and towns and 24 incorporated villages have adopted municipal governance charters and gained that legislative approval. Charters enable municipalities to deviate from general statute in specific instances when, after adoption by the voters, the amendment has been reviewed, frequently amended, and finally approved by the legislature. Once legislators have commenced reviewing a governance charter, they may amend any part of it they choose.
There are more effective and efficient ways for municipalities to incorporate voter-approved governance changes than seeking and awaiting permission from the legislature. Many other states have taken on this issue in recent years by reaching compromises that recognize the unique needs of municipalities, citizens’ expectations for quick resolution to problems, and municipal determination to improve results and develop innovative policy solutions to the 21st century challenges of governing.
Vermont’s record, to the contrary, is abysmal. The legislature continuously ignores bills that address the process for amending charters or expand the authority of municipalities. Different approaches to providing municipalities with some self-governance authority have been offered in the form of bills, constitutional amendments, and House Resolutions, to absolutely no avail. Frequently, the few legislators intrepid enough to offer them have been roundly criticized by their colleagues. The reins of power are hard to give up.
Local Governments: Laboratories of Innovation. breaks down barriers and addresses opioid addiction by involving public safety, corrections, and human services to reduce adverse impacts on the community and, in so doing, showing the way for the . Municipalities are implementing the six pillars of the Taskforce on 21st Century Policing: building trust and legitimacy, investing in community policing, officer training, education and safety, and reducing crime. Five cities and towns have developed stormwater utilities to manage runoff on a community-wide basis, providing models for the state. Towns welcome and provide both venues and infrastructure for farmers’ markets, community supported agriculture enterprises, craft breweries, cheese making, and farm to table restaurants, all of which rely on and contribute to a sense of place where local enterprises can thrive.
Effecting Constructive Change. We live locally and globally at the same time. The dysfunction of government at the highest levels is always before us. This spring, as the legislature and governor struggled to adjourn the special legislative session, we witnessed Vermont-style disarray. Local government’s accomplishments sometimes take longer to be recognized.
In 2018, when more than half of Vermont’s population resides in cities and towns where voters have approved charters governing themselves and the legislature has agreed, it is high time to accord those municipalities – some of the oldest in the nation and long pre-dating Justice Dillon – a measure of self-governance.
Municipal Self Governance – Enshrining the Freedom to Thrive. In remarkably creative ways, other states have established some form of constitutional or legislative home rule. Even the most restrictive states allow voters to amend their governance charters under the framework of general laws, without legislative oversight. A common approach is to reserve in the state’s constitution those powers that are wholly municipal in character, and not denied by general law or charter. Another way is to grant full home rule authority to municipalities with a certain population or that have a particular form of government. Texas provides charter cities or towns with populations of more than 5,000; Washington’s constitutional Home Rule provision has been augmented with a Legislative Optional Municipal Code since 1967.
In 2007, West Virginia instituted an innovative approach by establishing the Municipal Home Rule Pilot Program and the Home Board. Municipalities in the program could implement changes in all matters of local governance without regard to state laws or rules as long as the changes did not violate the U.S. Constitution, the West Virginia Constitution, federal law, or state laws regulating controlled substances or criminal activity. Four cities were approved in the pilot program. In 2012, a legislative auditor report recommended extending the program to all Class 1, 2, and 3 municipalities and concluded that “the Municipal Home Rule Pilot Program has been effective in improving local governance and broad based home rule should be extended statewide.” In 2013, legislation provided for 20 additional municipalities to join the Phase II pilot program. “The [West Virginia] Legislature found that the program brought innovative rules and novel municipal ideas to the local communities that participated in the program, and that it afforded participating municipalities greater flexibility to operate in a more cost-effective, efficient and timely manner.” In 2015, the West Virginia Legislature expanded the program to 30 Class 1, 2, and 3 municipalities as well as four Class 4 municipalities and amended the functions of the Home Rule Board.
Changing times demand that Vermont’s legislature rethink its habitual opposition to a legal theory that was established in the 1800s and remains mired in the past. Vermont’s laws must foster the freedom for communities to thrive – to develop new, creative, and successful resolutions to problems particular to themselves. Thoughtful and measured approaches to home rule have been enacted throughout the country. It is time for the Vermont Legislature to allow the resourceful residents of Vermont’s cities and towns to chart their own courses.