The Slippery Slope of Discretion
As a theoretical public administrator, one of the values that I hold dear is that day to day operations of a municipality should be politics-free. As a practicing public administrator, I know that is almost impossible. But one thing that helps is a municipal code that is so clear that there’s no room for political influence.
If the code says “All updates to titles 14 through 19 go before the Planning Commission” then all updates to title 14 through 19 should go before the Planning Commission. A City Council member, Mayor or City Manager who tell staff to bypass the Planning Commission while this code is in place are in danger of violating their own code and therefore putting their careers in jeopardy. If anyone notices.
But comes a day when someone in the above group decides that it’s just too cumbersome to send every ordinance to the Planning Commission for a recommendation and they decide to go through the legally established process of changing the part of the code that says “All updates to titles 14 through 19 shall…” They decide they want to change it to “The Director has the discretion as to which updates go to the Planning Commission.”
While this kind of language could be seen as giving the Director “flexibility,” more often than not what it actually does is make the Director more susceptible to the political influence of people that sign her paycheck. Which is why any city attorney worth their salt would discourage it; too much room for arbitrary and capricious decision making. However, attorneys are just employees too, so after they wisely advise not to give the Director discretion, they draft the ordinance anyway.
I think we can charitably say that the Council isn’t recommending this change because they want the Director to be their political puppet. (They want her to do what they say, but “puppet” is harsh). They just don’t want to have to send every piddly little sign ordinance to the Planning Commission if it means responding more quickly to their constituents. After all, it’s the Little League for crying out loud. They want to be able to put up their signs in the right of way to recruit new members. Juvenile delinquency will go down, test scores will go up, and baseball season starts next week. Why should we make them wait for the month and a half that it will take to get through the Planning Commission and City Council meetings?
Well, maybe we shouldn’t. But then you’ve got to be able to say with a straight face that in using your discretion, you didn’t make the Neo-Nazis wait a month and a half for their requested code update, at least, not just because they’re Neo-Nazi’s. After all, Hitler’s birthday is next week.