Bloomberg’s Third Term

Daniel Katz, Staff Writer, dkatz@albanylaw.edu

     Mayor Michael Bloomberg recently created a big controversy in New York City with his proposal to increase term limits for city offices from two terms to three terms.1 Voters originally approved term limits by an amendment to the City Charter in 1993, and it was ratified again in 1996 when the Council placed a ballot question – seeking to extend the term limits to three terms from two, just like the Council is trying to do now.2 

     The current law states that “the time elected officials can serve in office is limited to not more than eight consecutive years, so that they are ‘citizen representatives’ responsive to the needs of the people and not career politicians.”3 The law also states that elected officials may not serve more than two full consecutive terms in office.4 

     There are three possible ways to amend the New York City Charter. The method that was used to implement term limits was a voter initiated referendum.5 The second, and more usual method, is for the City Council or the mayor to appoint aCharter Revision Commission, which would then place the amended Charter on the ballot for voter approval.6 The third method of amending the City Charter is to have the state legislature amend the Municipal Home Rule Law and supercede the limits as laid out in the Charter.7 

     The term limit law that was passed in 1993 was championed by cosmetics heir Ronald Lauder.8 Lauder recently modified his position on term limits in regard only to current office holders in order to extend the number of terms that may be served from two to three.9 Original reports regarding term limits originally suggested that the Council and the mayor would pass a law that would only extend term limits for current office-holders, but as Mark Green, the former public advocate and 2001 Democratic mayoral nominee, argued, a law that only benefited those voting on it “might seem like ‘obvious self-dealing,’ since the current mayor and council members are hardly disinterested parties. This criticism could open such a law to legal challenge.”10 In response to the legal problems that might arise if the law were passed to only change term limits for current officeholders, Ron Lauder released a statement saying that will “reluctantly” support a change to the law that would allow elected officials to serve for three terms in office, instead of only two, but that he will “vigorously” work to change the law back to a two-term limit when the issue is put before voters in a 2010 referendum.11Lauder has been promised a seat on the upcoming charter review commission, where he will work to change term limits back to two limits.12 

     Because of questions about the validity of a one time only extension, the current proposal would apply to all future officeholders as well as current officeholders.13 The proposal to extend term limits has not surprisingly drawn support from many of the Council members who would be able to keep their jobs. While some people are opposed to the term limits extension based on the merits, others are opposed to the plan because it expressly contradicts the will of the voters as expressed in two separate elections. Council members Bill de Blasio and Letitia James, both of Brooklyn, said they want a special election in early 2009 to let City voters decide on term limits. “‘The mayor is blatantly trying to cut [voters] out of the discussion, trying to do an end run around democracy,’ James charged.”14 Brooklyn Congresswoman Nydia Velazquez stated that if the mayor’s term limits extension bill passes the City Council, she will personally ask the U.S. Justice Department’s Civil Right Division to intervene.15 She believes that changing the term limits law would impact the ability of minority candidates to be elected, and would violate the voting rights Act of 1965.16

     The members of the city council who are not term limited in 2009 have a little incentive to support the term limit extension since it would not benefit them immediately, the law will likely be changed back before it could benefit them, and there would be negative political consequences of supporting the extension. There are 17 city council members who would not benefit by such a change, and they could be an important part of the debate moving forward. Because of this concern, there has been discussion of including a “grandfather” clause in any term limits change in order to protect current council members, but so far this has not been part of proposed legislation. 17

     In pushing for an extension to term limits, Mr. Bloomberg is overruling the advice of his top three assistants at City Hall – Deputy Mayors Edward Skyler, Patricia E. Harris and Kevin Sheekey – all of whom have expressed opposition to a third term because of their belief that any campaign to challenge the term-limits law would look like an end run around voters, and could sully his legacy as a reform-minded outsider.18 

     In response Bloomberg noted Thursday that the City Charter allows the Council to change the law.19 When asked about the possibility of holding a referendum Bloomberg stated that “I think that there should be a referendum on term limits because it is controversial, I think at this point in time, you just can’t get it on the ballot for this November. The time frame is up.” He added, “Special elections have their own problems; you probably couldn’t do it.”20 While it is too late to put the term limits issue on the November ballot, a special election could be held before November 2009, in time for Bloomberg to run for re-election.21 Bloomberg has also stated that “those who argue against [term limits] argue against it because they will have competition, which they don’t want. Competition’s good for everybody, and there’s not reason to think if the public doesn’t – if they have more choice, then they’ll make better selections.”22 
 

     A lawyer for the New York Public Interest Research Group, a group advocating for transparency in government, Gene Russianoff noted that Mr. Bloomberg had called for a Charter Revision Commission in his State of the City address in January.  “‘Bloomberg can have the issue of term limits presented to the voters by late winter,’ Mr. Russianoff said. ‘If he doesn’t, it’s clear he’s both afraid and contemptuous of city voters at the same time'”23 In a joint letter to the Conflict of Interests Board, Common Cause and the New York Public Interest Research Group claim that Bloomberg violated the conflict of interest laws when he offered to appoint Lauder to a Charter revision commission in exchange for not opposing the mayor’s plan to seek a third term.24 Russianoff stated “We believe that Mayor Bloomberg has used his position in a prohibited manner to obtain personal advantage in a quid pro quo deal with Ronald Lauder.”25

 

     Even if the ity decides to ignore the twice expressed will of the voters and pass an extension to term limits, it is not perfectly clear that it can be done without holding an election. Municipal Home Rule Law §23e states that any law that: 

    Abolishes an elective office, or changes the method of nominating, electing or removing an elective officer, or changes the term of an elective office, or reduces the salary of an elective officer during his term of office, cannot take effect until approved by the people.26  

     Although the above seems to require an election when amending term limits, when the Council previously extended the terms of six Council members from eight to ten years to deal with redistricting they did so without holding an election, and the action was approved by the Appellate Division.27 While this would seem to allow the Council to amend the law, the matter was not considered by the Court of Appeals and so may still be litigated.  

     Another possible way for Bloomberg to serve another term would be for him to resign as mayor in 2009 and then file to run for mayor. The law prohibits officeholders from serving more than two consecutive terms, but a gap in service would mean that Bloomberg would not be serving more than two consecutive terms, avoiding the term limits rule entirely.  

     While Mayor Bloomberg has been a good mayor, no politician is indispensible, and the City will continue without him. After the September 11th attacks, Mayor Guiliani sought to extend his term, and the proposal was quickly turned down. If the City was able to endure a change in leadership after the worst terrorist attack in history, the City can endure the loss of Mayor Bloomberg.

Lauren Prager, Eric Schillinger, editors.

____________________________________________________________

1 Michael Barbaro & David W. Chen, Bloomberg Expected to Seek Third Term as Mayor, N.Y. Times, Oct. 1, 2008, at A1.

2 Id.

3 New York City Charter § 1137.

4 New York City Charter § 1138.

5 Sewell Chan, Q. and A. on Term Limits, N.Y. Times, Oct. 2, 2008, http://cityroom.blogs.nytimes.com/2008/10/02/q-a-on-term-limits/index.html?ref=nyregion

6 Sewell Chan, Doubts on Term Limit Vote, N.Y. Times, Oct. 3, 2008, at B1.

7 Elizabeth Benjamin, Term Limits Update, Daily News, Oct. 6, 2008, http://www.nydailynews.com/blogs/dailypolitics/2008/10/term-limits-update.html.

8 Ronald S. Lauder, In New York, a Willing Suspension of Term Limits, N.Y. Times, Oct. 2, 2008, at A33.

9 Id.

10 Chan, supra note 5 (referencing Mark Green, Letter to the Editor, N.Y. Times, Oct. 2, 2008, at A32).

11 Azi PaybarahLauder Pushes to Keep Term Limits Intact Except When Inconvenient, The New York Observer, Oct. 8. 2008,http://www.observer.com/2008/politics/lauder-pushes-keep-term-limits-except-inconvenient.

12 Id.

13 Bloomberg’s Bid for a Third Term, N.Y. Times, Sept. 30, 2008,  http://cityroom.blogs.nytimes.com/2008/09/30/bloombergs-bid-for-a-third-term/.

14 Kathleen Lucadamo & Larry McShane, Not so fast Mayor Bloomberg, say Anthony Weiner and other city pols on third term, Daily News, Oct. 4, 2008, http://www.nydailynews.com/ny_local/2008/10/04/2008-10-04_not_so_fast_mayor_bloomberg_say_anthony_.html.

15 Elizabeth Benjamin, Velazquez ups the Term Limits Ante, The Daily News, Oct. 10, 2008,http://www.nydailynews.com/blogs/dailypolitics/2008/10/velazquez-ups-the-term-limits.html

16 42 U.S.C. § 1972 (1965)

17 Elizabeth Benjamin, Council Members offered Grandfather clause, Still nervous, The Daily News, Oct. 10, 2008,http://www.nydailynews.com/blogs/dailypolitics/2008/10/council-freshmen-offered-grand.html

18 Barbaro & Chen, supra note 1.

19 Lucadamo & McShane, supra note 14.

20 Chan, supra note 6.

21 Id.

22 Elizabeth Benjamin, Afraid of a little Healthy Competition?, The Daily News, Oct. 10, 2008,http://www.nydailynews.com/blogs/dailypolitics/2008/10/afraid-of-a-little-healthy-com.html

23 Id.

24 Elizabeth Benjamin, Goo-Goos Zap Bloomie, The Daily News, Oct. 9, 2008,http://www.nydailynews.com/blogs/dailypolitics/2008/10/goo-goos-zap-bloomie.html

25 Id.

26 New York Municipal Home Rule Law §23 (e).

27 Golden v. N.Y. City Council, 305 A.D.2d 598 (N.Y. App. Div. 2002).

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1 Comment

Filed under Election Law, Municipal Law

One response to “Bloomberg’s Third Term

  1. Mason1

    Excellent, and informative. Bloomberg is in clear violation of the law. So begins the reign of Tyrants

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