Advice and Consent

Earlier this year when the mayor had the unpleasant task of appointing a replacement for the late Alderman Ralph Dantino and again during the annual municipal appointment process in July, the issue was raised about how much information the city council was given and how much input they had in the appointment process. The mayor’s appointment powers as delineated in city code are conditioned by the phrase “by and with the advice and consent of the city council”, which also appears in the relevant state statutes. The wording of those statutes is in turn derived from the Appointment Powers clause in Article II of the United States Constitution. This particular wording was presented to the members of the Constitutional Convention in September of 1787 by the Committee on Compromise following months of debate on this and other issues by the convention delegates. The Mayor referred to this as “holdover language that’s about 400 years old”, almost casually dismissing the efforts, the debates, and the carefully chosen words of the framers of the Constitution as some anachronistic, meaningless verbiage.

The Mayor went on to further explain that advice and consent as it pertained to the city council was limited to “the vote that you cast” on the nominee after informing Alderman Mike Bruno that “you will not have an opportunity to do much advising”. In the Mayor’s rather unorthodox view, only the term consent seems to apply to the council’s role in the process.  I don’t know if this is a rare form of dyslexia that can be cured with the proper treatment or it's just the Mayor’s usual recalcitrance when it comes to working with instead of around the council.

According to the Mayor, the seemingly unambiguous phrase “advice and consent” is “misunderstood”. That’s true. Except in this case it’s the Mayor who misunderstands it. He claims that it would require a “wholesale change” in the city ordinance to change the current appointment process. But that’s not really true since his predecessors have taken a different approach without the benefit of an ordinance change. Perhaps the Mayor can recall that when he was the junior alderman in the First Ward, Mayor Tom Coughlin appointed Bob Piper to serve as Third Ward alderman after a closed session meeting of the city council. Other mayors have relied on consensus building rather than heavy-handed tactics.  Yes, “wholesale change” is required. But it’s not in the current ordinances. It’s in the Mayor’s attitude and leadership style.

The Mayor says that the appointment process is about “faith in the mayor’s appointment, pure and simple”. That implies unquestioning faith in the Mayor’s judgment, which while often sound, has also been questionable, to say the least, at times. Errors of judgment are all too human and the Mayor is no exception. No one has perfect judgment. Although we should try to elect people whose judgment we trust, our system of government is specifically designed to avoid relying on the judgment of any single individual. That’s the purpose of subjecting executive decisions to the “advice and consent” of a governing body. We believe that our collective judgment renders better and more equitable decisions. It’s important that we fully retain this aspect of the appointment process.

We don’t have to go to the extreme that the Mayor suggested would be required if we wished to fully vest the city council in the “advice and consent” portion of the appointment process. Simply providing council members with background information, as was done for some recent applicants, is a step in the right direction. That could be followed up by closed session discussions to address any issues prior to the actual appointment being forwarded to the council. Most of the appointments are routine and any potential controversy could be addressed and probably headed off by a frank discussion in closed session. There should be no need to hold hearings or publicize candidate names or interrogate candidates in a manner that would discourage people from applying.

Council members could submit questions prior to an appointment that could be asked of all of the candidates as part of the application for a particular position. That way, the aldermen would be able to address issues they feel are important to the position without any consideration of whom the candidates will be. Hopefully, that approach leads to a more unbiased evaluation of candidate qualifications.  All of this could be reviewed in closed session without candidates being present or feeling intimidated by the process of volunteering for public service. Although there might be some benefit to holding these deliberations in the public eye, I think there is potentially greater harm in openly discussing candidate qualifications and shortcomings.

Restoring the advisory role of the city council in the appointment procedure would also strengthen the public’s faith in the process, which is where we want to put our faith, not in any one individual. None of this changes the fact that the Mayor has the authority to make appointments and the city council has the authority to approve or reject them. But the public should be confident that the advice portion of the process is still important and that the results reflect the collective wisdom of our elected officials.