THE NEW AMERICAN LOCAL GOVERNMENT

by George W. Liebmann

Local Government Independence

There was published in Britain in 1935 a book entitled "A
Century of Municipal Progress". Half a century later, a
corporal's guard of Britain's few surviving local government
scholars was assembled to prepare a sequel, fittingly entitled
"Half a Century of Municipal Decline." A similar sequence might
be possible in the United States, except that here the first
title could not have been issued. A century ago, Lord Bryce noted
that municipal government was the "one conspicuous failure of the
United States."

The ensuing period has seen little, if any real improvement.
While it would have been possible in 1950 to celebrate a century
of development of the American small town, there would have been
only limited cause to celebrate that of large cities. Except for
the twenty years ending with American entry into World War I,
local government has attracted little interest from business and
social leaders.

The explanation for this is found in its extreme dependence:
its vulnerability before World War II to incursions by the state
legislature and governor: "Franchises for utility services were
bought and sold and financial burdens imposed without reference
to the inhabitants...interference and corruption were constant."
Since World War II, municipal powers have been impaired by
federal officials enforcing conditional spending and civil rights
mandates. The nation's numerous but diminishing number of school
districts likewise fail to inspire much confidence. Consolidation
resulted in a dilution of the curriculum, rather than its
improvement; the insulation from politics provided by independent
part-time boards has left the system naked in the face of the
powerful closed shop operated by the nation's teachers' unions.
Even superintendents are required by state law to be selected
from the ranks of the thoroughly indoctrinated, and tend to be
disloyal to any reformist purposes sought to be imposed upon
them. These conditions give rise to civic apathy: persons with
great talent are unwilling to involve themselves in disorderly
political arenas where it is clear that they will not have the
last word on any subject. As Gerald Frug has observed: "power and
participation are inextricably linked; a sense of powerlessness
tends to produce apathy rather than participation while the
existence of power encourages those able to participate in its
exercise to do so."


The erosion of local tax bases has further diminished the
vitality and significance of local government, which increasingly
relies on conditional grants in aid from states for the discharge
of essential functions. A study of the share of national
governments in total taxation in the late 1970s revealed that the
United States can no longer pride itself on the decentralization
of its government, being surpassed in this respect by three of
the six leading federal systems. National government shares of
total revenues were 42% in Switzerland,50% in Canada, 52% in
Germany, 57% in the United States, 70% in Austria and 80% in
Australia.

The conventional wisdom about the powers of local government
was set forth thirty years ago by the British political observer
Louis Heren: "The cities and other local governmental systems are
not mentioned in the Constitution and the states have
constitutional responsibility". "Cities and counties do not have
a constitutional existence." "Political subdivisions in states
such as counties and cities had never been considered as
sovereign entities." In a nation as legalistic as the United
States, this view has affected both elite and public perceptions
and behavior. It is significant that the most important
developments in local administration since the war have come
about through private covenants perceived as enjoying
constitutional protection.

One need not be an enthusiast for judicial activism to
believe that the revitalization of local government requires some
sense on the part of the public that there are legal limits on
its destructibility. There are in fact a number of potential
sources of such limits, which apply in different measure and with
respect to different types of local government. These limitations
will be reviewed in turn:

Limitation to Granted Powers

It is undisputed that the national government is a government
of limited powers. Even the Garcia case, the high water mark of
federal power vis-a-vis the states, recognized that some internal
functions of state government, such as the choice of a state
capital involved in the Coyle case in 1911, are beyond federal
control. The Coyle case itself may be regarded as direct
authority against the validity of any federal effort to destroy
or disadvantage a particular municipality. The ensuing Prinz
case, decided since Garcia, invalidates any federal effort to
conscript state officers for federal purposes, and nothing in it
suggests that efforts to assume direct control over local
officers are not equally condemned. Finally the Lopez case makes
clear that the commerce power may not be extended to invade core
state functions, and the existence, powers and boundaries of
local governments may be viewed as such core functions. The
Boerne case further indicates that the Fourteenth Amendment does
not confer unlimited legislative competence on the national
government.

The Tenth Amendment

The Supreme Court has repudiated its momentary effort in
Community v.Boulder which suggested that monopolies granted by
local government did not constitute 'state action' for purposes
of the doctrine of Parker v. Brown insulating state action from
antitrust liability. As Professor Laurence Tribe has noted:
"Certainly the text of the tenth amendment itself provides no
basis for the distinction between state and local government made
in Boulder: that provision reserves the same sphere of residual
powers to the 'States respectively,or to the people." Although
Judge Cooley's early effort to find a Tenth Amendment inherent
right of local self-government has been repudiated,the case law
still suggests that the proprietary functions of municipalities
enjoy some tenth amendment immunity from interference. In
addition, the 1936 decision of the Supreme Court invalidating a
municipal bankruptcy law on Tenth Amendment grounds has not been
overruled although it has been qualified by conditioning validity
of the federal statute on state involvement in the bankruptcy
decision.

Property Rights

Although the covenant regimes of residential community
associations may be modified by the states acting under the
police power, the 'state action' doctrine limits their
enforcement only with respect to racial discrimination. The
ability of higher units of government to alter residential
community association regimes without compensation is thus
qualified. It is also not unheard of for municipalities to gain a
derivative immunity by assuming enforcement of such private
covenants. In addition, to the extent that such regimes, or
other local or sub-local regimes have been given tax exemptions,
higher units of government may be held to be perpetually bound by
the grant of exemption, a form of property right.

However a state can take the property of one of its
constituent local governments without compensation without
offending the federal due process clause, and municipalities do
not possess the state's eleventh amendment immunity from suit.

The Contract Clause

The Contract Clause of the federal constitution may operate to
immunize grants of power, subsidies or of immunities to local
levels of government from later state impairment where the rights
of third persons, such as bondholders, have intervened, but not
otherwise.

Rights of Association

Although it is unclear from where in the Constitution rights
of association, like those professedly recognized in the
questionable plurality opinion in Moore v. City of East Cleveland
may be derived, it has been suggested that such rights extend at
least to certain types of private club. Professor Laurence
Tribe has noted that the decision of the Supreme Court in Village
of Belle Terre v. Boraas upholding certain municipal zoning
regulations refers to "associational rights of the villagers
themselves" and goes on to refer to a "sanctuary for
people",leading him to suggest that "if it can be demonstrated
that a community's efforts to preserve its character do not
operate to freeze out alternatives indefinitely or to exclude
them from an area wider than a few square miles, such efforts
should be regarded as entitled to at least some constitutional
protection from the imposed uniformity of state or federal
law." This comes close to a revival of the 'inherent rights'
theory. It is to be noted that while the state may be able to
destroy municipalities, while they subsist, their existence
provides immunities against equal protection claims that would
succeed if all the territory involved was under the jurisdiction
of a single local government, as is illustrated by Milliken v.
Bradley and San Antonio v. Rodriguez

The Guaranty Clause

Although since Luther v.Borden, it has been understood that
enforcement of the clause empowering Congress to guarantee every
state a republican form of government is a matter for Congress
and not the judiciary, that case arose in the context of a
private action. Professor Tribe has therefore suggested that it
may provide the states or their subdivisions some protection
against federal legislative or executive encroachment: "It need
not follow from the unavailability of the guaranty clause as a
textual protection for individuals that the clause confers no
judicially enforcible rights upon states as states." However
there is no case law supporting this proposition.

Restrictions on Direct Taxes

The Constitution's prohibition of unapportioned direct taxes
is in effect a crude form of constitionally rooted revenue
sharing, since its practical effect is to reserve property taxes
to state and local government. State property taxes are in fact
rare, and are probably dependent for their validity on a uniform
statewide assessment mechanism.



Home Rule Amendments

State Home Rule Amendments operate at least theoretically to
immunize municipalities and other subordinate governments from
interference by state legislatures, at least where the
legislation is not of statewide applicability.However even home
rule grants are frequently subjected to strict construction under
Dillon's Rule to limit entreprenurial activities by
municipalities, a tendancy recently cricized by Professor Gerald
Frug..

Constitutional Restrictions on Special Laws

Nearly all state constitutions contain provisions limiting
local and special laws which immunize subordinate governments
from some forms of legislative interference.

While these immunities together make up a thing of shreds and
patches, their conscious assertion and expansion is in the
interest of a revitalized local government, and even in their
neglected state they are sufficient to dispel the frequently
iterated notion that states possess complete legislative power
over municipalities.

We proceed to an examination of the structures, public and
private, making up contemporary local government.

COUNTIES

Incidence and Derivation

Substantially the entire land area of the United States is
divided into counties or the parishes in Louisiana or boroughs in
Alaska that are their analogues; Baltimore City, St.Louis,
Philadelphia, Denver, Baton Rouge, New Orleans, San Francisco and
Honolulu and 41 independent cities in Virginia are counties in
all but name. Yellowstone National Park and the District of
Columbia are not included in any county and there are eleven
unorganized areas bearing county names in Rhode Island and South
Dakota, there being about 3,000 counties in all, and little
recent history of either creation or consolidation of them.

Franchise

The franchise for elections of county officers is universally
that of manhood suffrage, although this development came later
than manhood suffrage in legislative elections. Because of the
wider geographic scope of county elections, the extension of the
franchise to renters does not cause the moral hazard present in
elections in cities with high percentages of nonpropertyowners.
Although some towns and municipalities in resort areas still
enfranchise nonresident propertyowners and the practice has been
upheld subsequent to the reapportionment decisions, this
practice seems no longer to be present at the county level.

Legislative election system

The typical county government in the United States centers on
three county commissioners, generally elected at large, who serve
general governmental functions, supplemented by at large election
of courthouse officers, such as the sheriff,state's attorney,
clerk of court, registrar of wills and others. The Supreme Court
has upheld the validity of at-large and multi-member district
elections, except where racial discrimination is present. This
pattern for the selection of general government officers obtains
in half the counties; election at large of courthouse officers is
almost universal save where an appointment mechanism has been
provided. Common variants on the three-commissioners scheme
include county boards made up of town representatives, which once
obtained in about 10% of the counties, notably those in New
York,Michigan and Wisconsin; this model is no longer valid where
town elected officials serve ex officio as members of county
boards since Supreme Court reapportionment decisions required
equality in districting, but town-appointed members of county
boards are not subject to reapportionment doctrine. The Supreme
Court has upheld at large elections of council members who are
required to reside in districts of unequal size. The effect of
these decisions in combination has been to quench the movement
away from at large elections. In four New England states and
South Carolina powers elsewhere exercised by county commissioners
are exercised by the county's legislative delegation. In about
ten percent of counties, including those in Oregon, Vermont and
some southern states, judicial officers serve as the county
board. In California and some populous counties in other states
given thir own charters, boards are elected by district; the
relatively small number of charter counties also frequently have
elected or indirectly elected county executives, introducing a
separation of powers between legislature and executive not
present in most counties.

In virtually all jurisdictions, county boards or councils
are quite small; small boards in subdistricted counties and at
large elections in most counties creates a very substantial
democratic deficit and lack of neighborhood representation in
American county government. In addition, in some areas,
prevalence of the southern county system greatly impairs
interjurisdictional competition in tax rates and school quality.
Professor William Fischel, analogizing to doctrines in antitrust
merger cases, has calculated suburban 'concentration ratios for
the 25 leading metropolitan areas showing the share of the four
most populous subdisions in the total suburban 'market', with the
following results: New York,12%;Los Angeles,10%; Chicago,7%;
Philadelphia,13%;Detroit,19%;SanFrancisco,21%;Boston,12%;
Washington,89%;Cleveland,17%;St.Louis,13%;Pittsburgh,14%;Minneapo
lis,23%;Houston,72%;Baltimore,100%;Dallas,48%;Milwaukee,38%;Seatt
le,69%;Miami,90%;San Diego,74%;Atlanta,74%;Cincinatti,19%;Kansas
City,86%;Buffalo,35%;Denver,31%;San Jose,47%.

Charter government grew very slowly. As of 1952, only twelve
counties, ten in California, one in Maryland and one in Missouri
had chosen to have charter government, although by 1955 about ten
states had provided this or other options to at least some of
their counties. By 1989, there were 118 charter counties,
including all the counties in Hawaii and at least five counties
each in Alaska,California,Florida,Louisiana,Maryland,Minnesota,
New Jersey,New York,Oregon,Pennsylvania and Washington.

Executive functions

As of 1955 only about 15 counties had appointive managers
deemed equivalent to city managers, though there were elective
chief executives in some important counties, including Cook
County,Illinois. By 1989, 383 counties had elected executives,
including all counties in Arkansas,Kentucky and Tennessee and at
least five each in Alaska,Loisiana,Maryland,Minnesota,New
Jersey,New York, South Carolina and Wisconsin, and 786 counties
had appointive managers, including all the counties without
charters or elected executives in Alaska, Arizona,
California,Delaware,Maryland New Jersey,New Mexico,New York,
North Carolina, South Carolina and Virginia and 40% or more of
counties in Colorado,Florida,Georgia,Michigan,Minnesota,Nevada,
New Hampshire, Washington,and West Virginia. The only states
without a significant number of county chief executives were
Idaho,Missouri,Nebraska,North Dakota,Oklahoma,South Dakota,
Texas,Vermont,and Wyoming. Only the State of New York had
legislation requiring counties to have a merit system in 1955,
counties thus serving as the last bastions of political
patronage.

Territoriality

County boundaries in most states were generally laid out in
the pre-automobile age with a view to allowing reasonably
convenient access to the courthouse, the focal point of county
government. In consequence, with the outward spread of
poppulation from cities, a number of suburban counties now have
populations exceeding those of some American states.
Notwithstanding this, there has been no movement toward division
of counties, and where, as in Maryland and the south, there is
only a limited amount of municipal and town incorporation, there
is a substantial democratic deficit in local government, and, as
shown, little interjurisdictional competition and checks on local
extravagance and educational deterioration..

Revenues

In 1953, 45% of all county revenues derived from property
taxes, 38% from grants in aid by higher levels of government, 11%
from charges and miscelleneous sources and only 6% from other
exactions. In 1976-77, 44.3% of county revenues were from grants
in aid, 30.4% were from property taxes, 7.0%, or about $3 billion
from other taxes, and 18.3% from charges and miscelleneous
sources. By 1992, a major shift had occurred. Roughly 35.7% of
county revenues were from grants in aid,27.4% from property
taxes, 9.3% from other taxes, and 24.8% from charges and
miscelleneous sources. In 1953, New York State allowed its
counties to levy retail sales,restaurant,utility service,
alcoholic beverage amusement, hotel room, business gross receipt
and passenger motor vehicle taxes within specified limits, but it
was highly unusual in so doing Seven southern and western states
then allowed local motor fuel taxes, these receiving their
greatest use in Alabama, California,Florida,Georgia,Virginia and
Washington. In 1976-77, this picture had not greatly changed,
except that other taxes had somewhat increased in importance in
Ohio and a local income tax had been introduced in Maryland. By
1992, property tax limitation initiatives such as that in
California limited property tax yields, while no less than 31
states had local sales taxes and Indiana and Kentucky in addition
to Maryland had county income taxes. Increased energy costs
boosted charge revenues, as did increased parking,highway use,
and development charges. Florida counties accounted for 59% of
the total yield of county fuel taxes; counties in Arkansas,
Georgia,Illinois and Tennessee accounted for 95% of county
alcoholic beverage taxes; Illinois counties for 65% of county
tobacco taxes. Counties spent $1.5 billion in 1942, $9 billion in
1962; $42 billion in 1977, and $144 billion 1n 1991.

Auditing

At mid-century, most American counties provided for audits to
be performed by elective comptrollers subject to the same
political influences as the officials whose accounts they were
auditing. In some states, county audits were performed by the
staff of a state administrative agency. The Single Audit Act of
1984 required single audits of recipients of federal funds of
$100,000 per year or more, and regulations under it specified
procedural requirements for audits, but do not require the use of
external auditors.

TOWNSHIPS

Incidence and Derivation

Townships, areas generally but not always six miles square,
exist in 16 states. These include the states of the Northwest
Territory, Illinois,Indiana,Michigan,Minnesota, Ohio and
Wisconsin; the plains states of Kansas, Missouri,Nebraska, and
North and South Dakota, and the middle atlantic states, New
Jersey, New York and Pennsylvania. There are also a few townships
in South Carolina and Washington.

Over time, there has been some reduction in the number of
townships. Iowa townships, of which there were 1,608 in 1942,
were assimilated into county government. The same took place in
Oklahoma in 1935.There is legislation allowing deorganization of
townships in Illinois,Minnesota,Missouri,and Nebraska, and in
Maine and Vermont nearly 500 former townships are now deemed wild
lands governed by a state-designated supervisor. There were about
17,202 townships in 1952, including 1,429 New England towns; by
1975, there were still 16,822 townships including 1,425 New
England towns; the number in the Middle Atlantic states declined
from 2,729 to 2,711. By 1992, townships and New England towns
numbered 16,666.In 1975, nearly three-fifths of township
governments had fewer than 1,000 people; approximately 48 million
people lived under township jurisdiction. Although studies in
Illinois, Indiana, Michigan, New York and Pennsylvania have
alleged that oiwnships are wasteful and duplicative of county
government, resistance to their abolition is strong

Franchise

As with counties, manhood suffrage now prevails, without votes
for nonresident propertyowners

Legislative-election system

With respect to the New England town, "the nucleus of town
government was the town meeting, an annual event" At these
meetings, selectmen were chosen by the body of small freeholders
or, later, all inhabitants. Various other officers with
specialized functions were also chosen, including constables,
clerks, surveyors, and overseers of the poor. Town meetings
continue to take place in New England rural areas, particularly
in Vermont, and in townships in some mid-western states, notably
Michigan,Illinois,Wisconsin,Minnesota, Nebraska and the Dakotas,
in addition to New York and New Jersey. The system has been
said to require communities closely knit in ideas, compact in
area, and homogeneous in population; the meetings outside New
England are sparsely attended. The southern tier of states with
townships, Pennsylvania,Ohio,Indiana,Kansas and Missouri do not
have meetings but regular elections. This is said to be due to
the large areas of townships in the midwest and the fact that
most of the settlers were of southern or immigrant rather than
New England stock. Unlike the typical county, midwestern and
middle atlantic townships usually have a head officer or
supervisor; in Pennsylvania and Kansas there are three-member
township boards; larger Pennsylvania townships may elect board
members by districts rather than at large as is usually the
practice.

Executive

As noted, most townships outside New England have supervisors
or trustees rather than three-member boards.

Territoriality

Most townships outside New England were laid out in six-mile
square units and subsequently had towns and municipalities
subtracted from them. In consequence, with a few exceptions in
the middle atlantic states and Indiana, (where townships cover
the whole territory of the state), most townships are rural
entities with relatively small populations. In 1975, less than 2%
of the nation's townships had more than 25,000 people, and these
accounted for about a third of the 48 million residents of
townships. None of the 1500-odd townships in Nebraska and South
Dakota had more than 5,000 people.

Revenues

In 1953, 60% of township revenues were derived from the
property tax, 25% from intergovernmental revenues, and 15% from
miscelleneous sources. By 1992, 74.1% of nonintergovernmental
township revenues were from the property tax, or about 55.6% of
all revenues, 5.7% of nongovernmental revenues, or 4.3% of all
revenues were from other taxes, mostly license taxes, and 20.5%
of nonintergovernmental revenues, or 15.3% of all revenues from
user charges and other sources, township revenues displaying
great constancy over time. Township expenditures amounted to
about $1 billion in 1953 and 1962. Their general revenues in
1991, apart from intergovernmental transfers and utility
revenues, amounted to approximately $15 billion.

Auditing

In most states, townships are audited by their own auditors,
and smaller townships are below the threshhold at which federal
regulations relating to forms of audit apply.

MUNICIPALITIES


Incidence and Derivation

In 1952, there were 16,778 municipalities in the United
States, an increase of 558 over a ten year period. By 1977 there
were 18,862 municipalities, by 1992 there were 19,296, only 6,623
of which had populations of 2,500 or more.The smaller
municipalities however account for only about 3% of the
municipally served population. In 1977, the population of all
municipalities was about 136 million. Municipalities are commonly
defined as separately incorporated areas based on a concentration
of population; they enjoy charters conferred pursuant to special
or general law. Most states have legislated minimum population
requirements for municipal incorporation. Except in Pennsylvania,
which requires a minimum population of 10,000, the required
population numbers are usually in the low hundreds. Only 23
municipal charters were granted during the colonial period.

Franchise

In early Annapolis,Norfolk, and Philadelphia, boards were
self-perpetuating. Elsewhere there was a property qualification
for voting which originally qualified only about 10 percent of
the male population. These restrictions began to break down
during the Jackson period, but they lasted much longer with
respect to municipalities than they did for legislatures.Manhood
suffrage in municipalities was sharply criticized by commentators
like James Bryce and Frank Goodnow at the turn of the century
for its provision of 'representation without taxation' and the
moral hazard presented thereby in jurisdictions with high
percentages of renters; some such jurisdiction, notably New
York,Washington, and some of the London boroughs became notorious
for overspending, leading to the superimposition of appointed
'control boards' in the United States and 'rate capping' in
England.

Legislation

Municipalities, unlike counties and townships, customarily
selected their legislatures on a district or ward basis.
Initially, municipalities were more business enterprises than
political units and had limited or no powers of taxation. Many
cities particularly in the East had bicameral councils, as late
as 1903 such councils survived in about one-third of cities with
populations in excess of 25,000. Bicameral councils werre
abolished in New Orleans in 1870, in Milwaukee in 1874, in
Cincinatti in 1890, in Detroit in 1887, in New York in 1873.
Interference by the state legislature in the affairs of
particular cities was common. Home rule amendments limiting
legislative interference except by general law began to be
adopted beginning with Missouri in 1875, followed by Washington
in 1889,California in 1896 and Minnesota in 1898.. By 1930 19
states had such provisions; by 1954 the number had grown to 25.
Executive

Early cities were governed by councils and council committees
on the English pattern, Mayors having few functions beyond the
ceremonial. Beginning with the Jackson period, elective mayors
with veto power and no right to sit with the council became more
common, with emphasis on the separation of powers. After the
Civil War, there was a tendancy toward longer mayoral terms,
fewer elected department heads or department heads chosen by the
council.

Following the inept performance of the Galveston municipal
government after the flood of 1900, a new plan providing for
municipal government by a board of elected commissioners each of
whom was a department head came into vogue until the first world
war. In 1954, 356 cities operated under this plan; of the 6,623
municipalities with a population over 2,500 in 1995,156 had the
commission plan, 364 were governed by town meetings, all with
populations of less than 50,000;3,294 had a mayor and council
system and 2,738 had managers selected by the council.
Staunton,Virginia in 1908 was the first municipality to hire a
manager. By 1955, there were 1260 cities with managers, double
the number in 1940. Managers are less common on the Eastern
seaboard.

The 64 cities with more than 250,000 people included 2 using
the commission plan, 36 with the mayor and council system, and 26
with councils and managers. The council-manager system was used
in a majority of cities with populations under 100,000; cities
with more than 500,000 included 20 with mayor and council systems
and only five with council-manager systems.

Municipal charters, unlike private corporate charters over
which the state legislature has not reserved jurisdiction like
that in the Dartmouth College case, are treated as revocable or
amendable by the state legislature; Justice Story's concurring
opinion in the case distinguihed between private and public
corporations. Perhaps more important, while the activities of
private corporation are generally restricted only by the business
judgment of their directors, municipal charters, including home
rule charters, are generally subject to the principle of Dillon's
rule requiring that the powers granted by them be narrowly
construed. This limits some forms of 'municipal socialism'.

In most states, annexation to a municipality can take place
only upon a majority vote of the annexing city and the area to be
annexed. In Virginia and Texas, and with respect to second-class
townships in Virginia, annexation may be judicially decreed on
petition without a referendum, greatly reducing the number of
separately incorporated suburban areas. Annexations are most
common in less densely populated areas of the country; once
suburbs have become incorporated, local loyalties make annexation
difficult. Some states, including Alabama, accord municipalities
extraterritorial powers in fringe areas, allowing them to
preclude incorporation, exercise some police powers, and collect
taxes at lower rates. A partial federation of Atlanta and its
suburbs, carried out by allocating some functions to the city and
some to the counties, was carried out in 1952. A merger of
Nashville and its suburbs took place in 1962, as were similar
extensions of Jacksonville and Baton Rouge. Miami and Dade county
established a two-tiered government in 1957, as did Indianapolis
in 1969. The states of Colorado, Kentucky,Michigan,Minnesota,
Ohio,Texas and Virginia have enacted legislation authorizing
local governments to share revenues by mutual agreement.

Revenues

Municipal revenues in 1953 were derived 38% from property
taxes,13% from intergovernmental transfers, 9% from other taxes
and 40% from utilities, charges, license fees and other sources.
In Philadelphia, the authorization of a local income tax caused
the yield of other taxes to exceed that of the property tax;
elsewhere, non-property taxes were of major import only in New
York and in tourist cities like Atlantic City and New Orleans.
By 1977, intergovernmental transfers accounted for 38.0% of city
revenes, of which 14.6% were federal transfers, an increase from
4.4% ten years earlier. Property taxes accounted for 25.7% of
revenues, nonproperty taxes for 16 to 17%, and utility chages and
miscelleneous sources for 17.5%. About 3.5 billion was derived
from sales taxes, 2.3 billion from excises, particularly those on
tourists, and 4.6 billion from licenses, income taxes, and other
taxes. In Philadelphia, nonproperty taxes were more than double
property taxes in yield, in New York City they were about equal
in yield. By 1992, intergovernmental transfers accounted for
about 33% of municipal revenues, property taxes for about 21.2%,
sales and gross receipts taxes for 10.8%,income taxes for
5.4%,other taxes for 3.0% and utility charges and miscelleneous
revenue for about 26.0%. Local sales taxes existed in 31 states;
property tax limitation measures had been applied in California
and some other states, local income taxes were authorized in 16
states and were important in Maryland,New York, Ohio and
Pennsylvania. Total expenditure of municipalities amounted to
$9 billion in 1953,$56 billion in 1977,and $232 billion in
1991

SPECIAL DISTRICTS

Incidence and Derivation

There were 12,339 special districts in the United States in
1952, their number increasing to 18,332 by 1962, 25,962 in 1977,
and 31,555 in 1992. In 1952, six states,California,
Illinois,Kansas,Missouri,New York and Washington had two-thirds
of all special districts. In 1977, these six states, together
with Pennsylvania, Texas, Nebraska, Colorado and Indiana, had 61%
of all special districts. By 1992, five Western states,
California,Nevada,New Mexico,Oregon and Washington appointed
state commissions to retard the further growth in numbers of
special districts. States continue to vay widely in their use
of special districts. In 1977, eight states had special districts
which had more than 5% of all state and local government full-
time equivalent employees in the state:
Alabama,California,Florida,Georgia,Iliinois,Nebraska,Oregon and
Washington, the percentage reaching over 13% in Georgia. Thirteen
states, including New York and Wisconsin, had less than 1% of
state and local full-time-equivalent workers employed in special
districts.

The motivations for formation of such districts are several:
they allow evasion of local debt limits; allow independent
governments to cooperate in rendering the few functions, such as
water and sewer, that have significant economies of scale; allow
revenue bond financing; and provide insulation from politics, the
benefit of 'expert' or market-oriented administration, and the
ability to function as pure provision units and compete for
municipal custom. As special-purpose agencies, they provide a
way to avoid the force of the Supreme Court's reapportionment
decisions; former Justice Tom Clark observed in 1968 that the
extention of reapportionment decisions to local government "will
cause a proliferation of established local government into
special purpose agencies that will be removed from the electoral
process." Their drawbacks are said to be inadequate political
control, the higher costs of revenue bond financing,
fragmentation of government, and the creation of 'categorical
nails' linking them with specific federal programs without regard
for normal budgeting priorities.

The 30,331 districts in 1992 (with 1977 numbers in
parentheses) were made up of 6,948(4,200) sewer,water and other
utility districts,5,923(6,301) drainage,flood control, irrigation
and soil conservation districts, 5,260(4,181) fire protection
districts, 3,470(2,408) housing and community development
districts, and about a thousand districts each concerned with
health,highways,hospitals, libraries, parks, and school
buildings. Housing and community development districts were the
most rapidly burgeoning non-utility category; this increase
reflects not only federally-connected housing authorities but
increased use of such entities as tax increment financing
districts and historic preservation districts. It should be noted
that some districts, such as school building districts designed
to foster construction of consolidated schools and tax increment
financing districts are self-liquidating and will disappear when
project bonds are paid off.


Franchise


Most special districts have appointive boards or boards
designated by participating local governments, though some
important districts, the Cook County(Ill.) sanitary district, for
example, have elected boards. Many of the
drainage,irrigation,flood control and soil conservation districts
in the Western states have property franchises for elections,
which have been repeatedly upheld by the Supreme Court in the
Salyer,Toltec and Ball cases.


Legislative election system


It is impossible to generalize about the election systems of
special districts, where boards are elected, because of
geographic and functional variations


Executive

Most special districts have a single manager, designated by
the board which in turn consists of representatives of the parent
governments


Territoriality


The typical utility district generally encompasses more than
one township or county; the same is true of hospital districts,
which have more employees than any other category. Library and
school building districts characteristically exist in states
without county government to allow townships or small school
districts to cooperate. Some of the newer districts in the
housing and community development category are sub-municipal
historic preservation, business improvement, and tax increment
financing districts,; some are metropolitan-area housing
authorities. However in 1977 "one fourth of all special districts
serve an area with the same boundaries as some other local
government--county, city or township government." These
entities are 'categorical nails' and their independent existence
is particularly difficult to justify, particularly when they are
empowered to directly impose taxes, since their elections rarely
arouse much interest and they are thus subject to only limited
political or budgetary checks. In 1977, almost all states gave
large numbers of special districts property-taxation powers, the
exceptions being Alabama,Alaska,Arkansas,Pennsylvania, and
Virginia. Georgia,Maryland,Oklahoma and Tennessee accorded
property-taxation power to only a few districts.

Revenues

In 1953, revenues of special districts were derived 40% from
utility receipts, 35% from other user charges, 18% from district-
imposed property taxes, and 7% from intergovernmental
transfers. This picture has changed significantly. In 1990-91,
special districts had total revenue of $64.6 billion, of which
41% was from charges, 21% from intergovernmental transfers, and
only 12% from district-imposed property taxes. "Special districts
accounted for only 3.5% of local government general taxes in the
United States and in no state did special districts raise as much
as 13% of local taxes."

District proliferation has been criticized by the Committee
on Economic Development which in 1966 recommended that the number
of districts be decreased by 80% and by the Advisory Commission
on Intergovernmental Relations, which urged that they dilute
citizen control and are inefficient. However, "because many
sewage treatment districts operate with economies of scale,
smaller communities that desire sewage treatment services often
construct their own collection systems and contract with a sewage
district for treatment...Special districts can also be conducive
to efficient consumption, by providing a mechanism through
whichdiverse collective demands for local public goods can be
met." An ACIR study in 1970 found "significant diseconomies of
scale" in cities of over 250,000, a result concurred in by
Professor Robert Dahl. Various studies associate curtailment of
special districts with higher governmental costs.


SCHOOL DISTRICTS

Incidence and Derivation

When a public school system began to be created in the mid-
19th century, different patterns of organization emerged. In
eleven southernstates(Alabama,Florida,Georgia,Kentucky,Louisiana,
Maryland,New Mexico,North Carolina,Tennessee, Virginia, and West
Virginia) and in Utah countywide school systems were organized.
In nine states, the six New England states and Indiana,New Jersey
and Pennsylvania, township boundaries were also those of the
school district, except where there were incorporated towns. The
remaining 27 states (other than Alaska and Hawaii) had
independently defined school districts.

The number of school districts has fallen sharply in number
in recent years. Several study groups, including the National
Commission on School Reorganization(1948) and a study of the
American high school by James Conant ten years later urged
consolidation of school districts in the interest of providing a
broader curriculum, a development also fostered by teachers'
unions for their own purposes, and carried out through various
devices, including changes in state funding formulas penalizing
small districts and legislatively and administratively coerced
mergers, including mandatory county unit systems in Florida and
West Virginia. The 1948 commission recommended that each
district have 1200 pupils, and if possible as many as 10,000;
that each elementary school have a minimum of 175 students and
seven teachers and each secondary school a minimum of 300 pupils
with 12 teachers, and that busing be limited to 45 minutes each
way for elementary students and an hour each way for high school
students--distances clearly sufficient to destroy any
neighborhood basis of education. One consequence of consolidation
has been a drastic fall in the number of persons with experience
of service on school boards; there were 234,000 school board
members as recently as 1955.

The number of school systems declined from 127,244 in 1933
to 108,579, or one for every 1,250 people, in 1942 to 67,442 in
1952, 59,631 in 1954,15,781 in 1972, 15,174 in 1977,14,851 in
1982 and 14,556 in 1992. In addition to these districts, there
are additional systems (2,409 in 1952;1,374 in 1977) operated as
part of state,county, municipal or township governments, this is
the preponderant practice in Alaska,Connecticut, Hawaii(which has
a single state system),Maine,Maryland,Massachusetts,North
Carolina,Rhode Island,Tennessee and Virginia, and in several New
York cities, incuding Albany,Buffalo,New York City, and Yonkers..
Integration of school districts and local government has been
urged in a number of studies on the ground that "The observations
made...do not indicate that the schools are subjected to greater
political pressure in those areas in which school and municipal
services are administered cooperatively than in the situations in
which the school authorities administer the same functions
independently," it is further urged that this fixes political
responsibility and prevents the schools from being administered
as a private preserve of teachers' unions. Against this, it is
pointed out that county governments are highly politicized and
that city governments have on occasion used school systems as
sources of political patronage; the separation of teachers' aides
from the school personnel system which existed until recently in
Baltimore provides an example of this.

Much of the earlier reduction was due to the elimination of
one-teacher elementary schools, of which there were more than
75,000 in 1948. The school consolidation movement is attributed
by its more sympathetic commentators to the higher cost of one-
room schools, and to the need for "kindergartens, competitive
athletics, adult education,education for handicapped children,
vocational education, and guidance counselling,." as well as
high schools with more than 300 students. In addition, "the hard
road and the motor vehicle have made possible the establishment
of larger districts through the agency of the school bus. Thus
has social community been enlarged." It is to be noted that the
French government to this day keeps open one-room village schools
with a minimum enrollment of 23, (there being 10,778 such one-
room schools in 1982), the required number being reduced from
26 in 1976.

A study by the U.S.Office of Education in 1949 reported on
the fruits of this consolidation."changes are in the direction of
more functional education. They represent efforts to meet life
needs of increasingly diverse bodies of pupils." "Many general
courses such as general science and general mathematics had
increased their enrollments at the expense of specific subjects
such as physics, algebra and geometry. The outstanding percentage
increases between 1934 and 1949 were in physical education,
typewriting and general mathematics. Subjects taught in 1949 but
not in 1934 in fifteen or more states were conservation, consumer
buying, safety education, driver education, home management,
fundamentals of electricity, radio speaking and aeronautics."

Only recently have there been efforts to restore greater
civic participation in school governance through the creation of
boards for individual schools in Chicago and the creation of a
very small number of charter schools in a number of American
jurisdictions. By contrast, recent reform legislation in
Britain,Australia and New Zealand has provided each school with
its own governing board.

Franchise

Although the school district franchise, like that for
municipal governments generally, was once limited to
propertyowners who were thus property taxpayers, these
restrictions were generally eliminated in the late 19th century,
though they survived in some jurisdictions. The coup de grace to
the remaining limitations was administered by the Supreme Court
in Kramer v. Union School District

Efforts to place elected parent representatives on boards
of individual schools in Illinois were contested by the teacher
unions; the resulting Fumaralo decision invalidating the
efforts was much criticized and has been overcome by later
legislation which limited the authority of the local board to
selection of a principal and allocation of funds within a budget
and denied it assessment powers, the new legislation being
upheld.. No American state has thus far emulated
Britain,Australia and New Zealand in providing for election of
boards of individual schools by parents,teachers and local
government representatives and for co-optation of additional
board members.

School district boards throughout the country are of
varying size, though five is the most common number. Most boards
are popularly elected, but a number of large city boards,
including those of New York,Chicago and Baltimore are appointed.
In Georgia, county boards are appointed by the grand jury; in
Maryland, most boards are appointed by the governor, though some
are elected, and the Baltimore City board is appointed jointly by
the Mayor and Governor; in North Carolina county boards are
appointed by the legislature; in Virginia by a board appointed by
judges; in South Carolina by the State Board of Education, in New
Mexico jointly by the state superintendent, the county judge, and
the chairman of the county commissioners; and in Tennessee by the
County Courts.

Legislative election system

As previously noted, most American school boards are of five
members, elected at large, though some large districts, such as
the large county districts in Montgomery and Prince George's
Counties in Maryland are now elected from single-member
districts.

Executive

Virtually nowhere are schools, as distinct from counties,
directly administered by their board. Essentially all school
systems have superintendents appointed by the board, whose
qualifications, defined by state law, usually include extended
graduate work in education, thus assuring that leadership of the
public schools is vested in a limited number of persons with
graduate education degrees indoctrinated in schools of
education.

Territoriality

As previously noted, involuntary consolidations of districts
are possible in some states, while in others incentives are
provided in the form of aid for new buildings and penalties for
single-room schools, which survive in large numbers only in
Nebraska, where they are under pressure from the state. Districts
organized on a county or township basis have undergone less
consolidation than have schools in states with separately defined
districts.

Revenues

In 1953, 51% of school district revenue was derived from
property taxes, 43% from intergovernmental grants, and 6% from
miscelleneous sources.In 1992, leaving aside intergovernmental
grants, 83.5% of school district revenues were provided by taxes
and 16.5% by charges and miscelleous revenues. The property tax
accounted for 81.4% of own-source revenues, sales and income
taxes for only .7% each, and license and other taxes only .8%.
Expenditures of school districts amounted to about $6 billion in
1953. Their general revenues exclusive of intergovernmental
transfers amounted to about $92 billion in 1992 and total
revenues to about $202 billion.



RESIDENTIAL COMMUNITY ASSOCIATIONS

Incidence and Derivation

The first American residential community association
established by deed covenants may have been that for Louisburg
Square in Boston in the early 19th century. The availability in
American as distinct from English law of positive covenants which
could be imposed on land and carried with them the obligation to
pay recurring charges made possible the later development in the
United States. In the early 1960s, the Federal Housing
Administration distributed model covenants and required
developers as a condition federal mortgage insurance to deed
infrastructure to a community association with the means to
maintain it, in order to obviate the imp[osition upon
municipalities of the costs of failing systems. Since that time,
residential community asasociations and condominium associations
have been provided for by statute in every state.

In 1999, according to the Community Associations Institute,
there were 205,000 community associations, with a total
population of 42 million, constituting about 15% of the housing
in the United States. The resale market value of RCAs was said to
be $1.8 trillion; their reserves $18 billion.

Franchise


The franchise of RCAs is characteristically a property
franchise, with each unit either having a single vote or a vote
apportioned to its initial value or square footage. Recent
amendments to the Uniform Common Interest Act permit variants to
this model by allowing tenants to vote on matters other than
assessments. Because the voting regime is imposed by private
covenant, it raises no problems under the Supreme Court's
reapportionment decisions. Even if it were subject to them, the
property franchise would be supportable in view of the cases
upholding property-based western special districts, including the
multi-functional Salt River district in Arizona described in Joel
Garreau's Edge City. RCAs do not run schools or enact or
enforce criminal laws; these characteristics, along with a lack
of significant nexus with the state suffice to protect the voting
regime. A number of RCAs desirous of obtaining the benefit of
public funds or tax deductibility have reinforced their position
by obtaining incorporation of parallel special districts with a
one-man one-vote voting regime; this has happened in Oronque
Village, Connecticut; Pennsbury, Pennsylvania; and with respect
to several dozen RCAs in Anne Arundel County,Maryland, where a
local law expressly permits such incorporations.

Legislative election system

RCAs almost without exception are the last bastions of a town
meeting system. Officers are elected and budgets approved at an
annual meeting of all owners. Additional safeguards are provided
for owners by requirements for majority or supermajority votes of
all owners, not merely majorities of a quorum, with respect to
such matters as amendments to the covenants and special
assessments beyond certain minimums. Only limited rulemaking
functions are allowed to RCAs by their covenants, although
amendments to the Uniform Common Interest Act, not duplicated in
the American Law Institute's Restatement of Property:Servitudes
would permit associations, with the approval of 80% of all their
members, to impose new restrictions so long as grandfather rights
are accorded present owners.

Executive

RCA members elect a governing board. This board either self-
manages, elects a chairman to carry out management functions,
hires an employee to do so, or hires an outside management
company to do so. According to the Community Associations
Institute, 27% of boards self-manage, 26% hire an employee to do
so,42% hire an outside management company and 5% use a
combination of these approaches.

Territoriality

The boundaries of RCAs are generally fixed by covenant,
although developers may create separate associations for
contiguous districts to limit the size of associations or to
provide different associations for areas with differing
interests.

Revenues

Revenues of RCAs derive in overwhelming proportion from
assessments on property provided for in the deed covenants, which
generally are related to the original sale price. Some covenants
also allow per capita assessments, which are little used. User
charges for such facilities as parking, laundry and swimming pool
and clubroom use can be important, as can rentals to outside
groups. Payments by public bodies in consideration of road
maintainance or trash collection are increasingly common, as are
small public grants to foster volunteer security patrols. Their
annual revenues in 1999 approximate $20 billion.

BUSINESS IMPROVEMENT DISTRICTS AND MERCHANTS' ASSOCIATIONS

Incidence and Derivation

It is said that the first American Business Improvement
District was the Downtown Development District of New Orleans,
established in 1975, which followed the creation of such a
district in Toronto in 1970. It followed at a distance of about
twenty years the creation, under initial single ownership, of
large suburban shopping malls with merchants' associations and,
ultimately surrounding office space, developments described by
Spencer Heath MacCallum in The Art of Community and in Edge City,
by the journalist Joel Garreau. Approximately 40 states and the
District of Columbia have authorized such urban entities, which
now number between 1000 and 2000. There are said to be "forty
BIDs in New York City, fifty-four in Wisconsin,thirty-five in New
Jersey, sixteen in San Diego"

Franchise

The franchise in BIDs is characteristically restricted to
propertyowners, sometimes to commercial propertyowners. In some
cases, votes are weighted to assessments; in others, the city
government or particular institutions may appoint to the board.
The board, at least theoretically, is a management committee
which acts for the city government. It is this feature which in
the view of one commentator saves the arrangement from being
constitionally vulnerable, though the property-related nature
of district functions and the example of the Salt River District
case would appear to immunize it even apart from city
supervision. The leading case upholding the validity of BID
voting arrangements gives only limited emphasis to city
control. One state, Colorado, provides for one-man one-vote
voting, but only where a majority of landowners approve.

Legislative election system

As noted, election systems widely vary. Characteristically,
boards are quite large, and owners of residential property and
even tenants may be given some representation, as may designees
of institutions or of the local government.

Executive

The managing board of the BID generally either employs or
contracts with a manager, who is removable by the Board, or,
under some circumstances, by the city government.

Territoriality


The area of BIDs is customarily defined either by local
legislation or by a petition for their creation. Typically, the
area is a business district, but not necessarily a downtown
business district. Substantial support by propertyowners and
approval (except in Mississippi) by the municipal government is
requisite to creation.

Revenues

Revenues of BIDs customarily are drawn from an assessment
either on all property or on commercial property in a maximum
amount that is a percentage of property taxes, and such
assessments are usually in addition to property taxes. In
addition, BIDs usually have bond-issuing authority, and
frequently derive revenue from BID-operated facilities, such as
parking garages, from fees paid by the city for BID management of
city-owned facilities, from appropraitions to the BID from the
city. It has been estimated that less than 10% of all BID
revenues are derived from general fund appropriations. A survey
of 22 BIDS undertaken by the Pittsburgh downtown partnership
indicated that assessments accounted for more than 80% of BID
revenues in 16 BIDS and from 50 to 79% in three other cases. The
largest single BID, New York's Grand Central Partnership had
assessment income of $14.3 million in 1996. Total BID assessments
in New York City in 1997 amounted to less than $50 million, as
against a municipal budget of $34 billion; this suggests that
total revenues of all BIDS are considerably less than $1 billion
nationally. Their functions include development of needed
infrastructure, chiefly parking garages, small parks, street
furniture, and shuttle transit; improved enforcement of public
nuisance regulations; better rendition of maintainance services;
and cooperative advertising in the interest of local businesses.

The population of BIDS in central business districts is
usually quite limited. Recently, there have been a number of
instances of organization of similar instrumentalities in
established residential neighborhoods, including the Marquette
Park neighborhood in Chicago, residential policing districts in
New Orleans, and the Charles Village district in Baltimore. These
districts have a propertyowners' franchise. The improvements in
these districts have fewer spillover effects than downtown
improvements, but aid cities in retaining and attracting
taxpayers. With respect to both BIDS and NIDS there may also be
in time a tendancy for cities to contract with neighborhood
organizations for the delivery of ordinary as well as
supplemental services, or to grant tax abatements to
organizations performing such serrvices. Quasi-public
neighborhood organizations are better equipped than cities to
contract out services like street repair and trash removal and to
function as pure provision units withoutt conflicts of interest
with their own bureaucracies; they are also better equipped to
engage in coproduction through the use of volunteers in
connection with such services as tree planting, trash removal,
and security patrols. The zoning commentator Richard Babcock has
suggested that neighborhood groups be given the power to
determine the intensity of housing code enforcement.

Whether the new NIDS, which ordinarily encompass several tens
of thousands of persons, are of optimum size may be open to
question. To question them on the basis that they will create or
aggrevate inequalities of provision, however, is clearly
retrograde. The ability of small neighborhoods to tax themselves
results in greater aggregate spending on public goods. If
economic levelling is to be accomplished, this should be done by
higher levels of government through the tax and benefit systems.
Preventing local self-government and the volunteer effort, co-
production of services and additional investment that it
generates is a self-defeating policy.
-----


This survey suggests that many of the traditional proposals
for rationalizing American local government are misconceived.

One traditional proposal would fold townships into counties
in rural areas. But as populations grow, county government
becomes more remote, and as usually practiced, with at-large
elections, it suffers from a democratic deficit. Even where
suburban counties sub-district their councils, the result tends
to be a form of councilmanic courtesy--a system of one-man rule
in which constituencies of 50,000 to 100,000 have their zoning
reclassification and infrastructure development decisions made by
a single legislator, with all the opportunities that affords for
regulatory capture and corruption.

A second favored and highly fashionable scheme is
metropolitan government. This panacea is driven by a purpose to
use richer suburban tax bases for the benefit of the inner city;
talk of superior efficiency and coordination is really so much
window-dressing and is refuted by most studies of government
costs. Because the purpose is well understood, the proposals
have in recent years found little favor. Forced mergers of tax
bases rarely work as means of equalization: this has not only
been the experience in California in the wake of Serrano v.Priest
but also in Paris and its suburbs in the wake of changes
attempted by the Mitterand government in the interest of the
poorer suburbs and in Germany, where a mild system of taxing
provincial revenues for the benefit of poorer provinces broke
down in the wake of German reunification. If higher levels of
government wish to foster greater levelling, they must do it
themselves, with their own tax and benefit systems, not through
shotgun marriages of local units at the expense of local self-
government. The nationalization of business property taxes in
Britain,France and Germany supplies one example of a more
appropriate approach, and one which the auctioning to large
business of municipal and county tax bases may make necessary in
American states. Metropolitan government is a recipe for tax
revolts. It is also significant that even suburban counties that
are most intransigently opposed to metropolitan government have
usually been willing to enter cooperative arrangements in
connection with water, sewer and solid waste disposal facilities
as to which there are true economies of scale. Baltimore
County,Maryland thus shares a water and sewer system with
Baltimore City and ten years after rejecting a joint housing
authority and constitutional changes perceived as fostering
metropolitan government joined in establishing a solid waste
authority. It should also be noted that the Supreme Court's local
government reapportionment decisions made voluntary establishment
of metropolitan government more difficult; as Justice Harlan
noted in his dissenting opinion in Avery v. Midland County "the
suburbananites often will be reluctant to join the metropolitan
government unless they receive a share in the government
proportional to the benefits they bring with them and not to
their numbers."


A third set of proposals, those which would enfold
independent school districts in their related municipal, township
or county governments, has much more to be said for it. In many
places, by reason of the largely misbegotten consolidation
movement, school districts are no longer more localized than
general local government. Where this is the case, absorbtion into
general government would accord the schools political leadership
with which to resist the capture by teachers' unions by which
they are now afflicted. Part-time boards employing
superintendents who are part of a closed shop do not have the
public support, resources, or political clout to legislate
significant reform or drive hard bargains with the teacher
unions, nor is the absence of budgetary competition and scrutiny
useful to the system.

A fourth set of proposals would drastically reduce the number
of special districts. Where these districts have boundaries co-
extensive with general purpose governments (as a quarter of them
do) and enjoy property taxing power, the case for merger seems
incontrovertible: it will eliminate duplicating bureaucracies and
foster competitive budgeting as well as improved accountability
to taxpayers. There is no good reason for separate library or
fire taxes and budgets when service areas are no larger or
smaller than those of general-purpose government. But many
community-development districts, soil conservation districts, and
irrigation, drainage and flood control districts are sub-local
districts which deserve to be preserved. The same is true of
utility districts serving multiple jurisdictions and enjoying
real economies of scale and freedom from municipal bureaucracies.
Some special districts with the same territory as general purpose
governments also deserve to survive; their purpose is revenue-
bond financing and separation of the delivery of services from
the pressures of unionized municipal employees.

There are thus only small parts of the conventional agenda
which can reasonably be embraced. But there are major problems
with the present state of American local government as disclosed
by the preceding outline which require two different reforms:

First, even the strongest political leadership is
insufficient to successfully run a large bureaucratized school
system. This is so because the closed shop imposed by
'professional' education and certification requirements has grown
so rigid as to ensure that competent managers for a large system
cannot be found. The power of union bureaucracies cannot be
counterweighed; it can only be disintegrated. The current voucher
proposals are one means of disintegration, but a milder means can
be found in the system created by the 1988 British education act,
which has variants in other countries, including Australia,New
Zealand, Denmark, Germany, Ireland, and Switzerland. Under this
scheme, each school is provided with its own board, partly
appointed, partly elected by parents and teachers, and partly co-
opted; the board is empowered to hire and fire the principal; the
principal is empowered to hire and,with board assent, to fire
teachers and,with board approval, to allocate the school budget
among teaching,library and maintainance needs, including pay
increments for valued or needed teachers; and at the high school
level,some power is given to select pupils. Because this system
begins with existing schools in place, it can be carried into
operation at once, unlike the almost farcical schemes for charter
schools, which are calculated to maximize union and bureaucratic
resistance at every point, and which after 20 years of discussion
affect only a miniscule proportion of the nation's public school
students..

Second, there is need in both suburban areas and large
cities for far more localized mechanisms of civic cooperation
than any that now exist

There is an extraordinary democratic deficit in many of the
nation's fast-growing suburban counties. In some of them--
Baltimore County,Maryland for example, with a population of
600,000 there are no township or municipal governments of any
kind. The only elected officers are a county executive and
courthouse officers; seven county councilmen, each with a
constituency larger than a constituency for the British
parliament; and state legislators nearly all of whom represent
three-member districts no smaller than the councilmanic
districts. The resulting 'democratic deficit' is partly filled
for those residents fortunate enough to live in developments
constructed since 1960 with private residential community
associations: about 15% of the nation's population, and perhaps a
third of its suburban population. But for other residents,
including those in rapidly deteriorating inner suburbs, new local
institutions are needed.

What form should these take? The writer and others have
speculated elsewhere on this subject, discussing urban street
associations for traffic calming purposes and block associations
for land readjustment, zoning relaxation, and urban renewal
purposes. But these are unfamiliar and varying
instrumentalities, and in any case are not readily adaptable to
suburban conditions. On further consideration, an existing
political structure, the election precinct or district, is well
adapted to all these approaches, and to both the inner city and
suburbs. The typical election district has several features: a)
its population is modest, usually not more than 2,500, and is
roughly comparable to that of British parish councils and French
and Swiss communes, which have long persisted as political
entities b)it invariably has a centrally located meeting place, a
church,school, or other public building, and indeed is designed
with that in view c) its meeting place is familiar to the
electorate d) over time, there is a tendancy in most places to
provide sizeable RCAs with their own election districts
e)existing records classify each home and voting resident by
election district. There is at least some history of use of
voting precincts for purposes other than elections. In Arkansas,
Idaho, Illinois, Indiana, Kansas, Kentucky, Minnesota and Texas,
precinct electorates are given at least limited authority to
regulate liquor sales within election districts; in Illinois,
there are precinct referenda on inclusion in neighborhood
security patrol districts, and a home equity assurance program,
and three fence viewers in each precinct allocate fence repair
costs;in Kansas, precinct residents may petition for
sidewalks;in Massachusetts, they may petition to revoke
occupational licenses;in Nebraska, they may authorize precinct
bond issues and the levy of property taxes;in New Hampshire,
they may appoint managers and create fire and zoning districts.


Recently, private RCAs have begun to assume various quasi-
public functions: the repair of local streets,and collection of
trash in exchange for tax abatements or payments by municipal
governments; receipt of notice of and comment on nearby zoning
applications. A leading community association attorney, Wayne
Hyatt, has proposed amendment of characteristic association
documents to include new paragraphs authorizing "Provision of
Services,Facilities and Programs" in exchange for user
fees,"Specific Assessments" for lot owners electing optional
services, "Provision of Services" including landscaping,pest
control, cable television and caretaker services on an elective
basis,"Relations with Other Entities" authorizing cooperation in
maintaining recreational facilities,educational,cultural and
recycling programs, and voluntary social services and charities,
"Volunteer Clearinghouses" including the maintainance of
databanks and "Chartered Clubs" listed and allowed to utilize
facilities for the benefit of residents.This listing suggests
that similar authority might be made available to public entities
organized on an election district level.

What is envisaged is a scheme under which all registered
voters are advised of the right of any 25 or more of them to
petition for a District Association. If such an organization is
petitioned for and approved by a majority of those voting at the
next election and a requisite percentage of the total electorate
in the district, it would receive a modest local government
appropriation, perhaps $1,000 per year, to defer mailing expenses
or receive the use of county or municipal facilities for this
purpose. Thereafter, the association would have the right to
initiate traffic-calming and land readjustment schemes with the
approval of an appropriate percentage of affected propertyowners
and would have the right, subject to an affirmative vote of a
majority of propertyowners,or a large supermajority of all
registered voters, to impose limited property assessments for
such purposes as demand response transportation, engagement of
persons to call on the elderly, organization of user-fee financed
old age clubs, playgroups,and addiction treatment organizations,
erection of street furniture and bus shelters, maintainance of
watchmen or volunteer security patrols, or any other service of
general benefit, or of special benefit for which user fees are
paid. Associations would be subject to annual outside audits
supervised by municipal or county government. The association
would also be empowered to contract with the county or
municipality to render municipal services,and to waive zoning
restrictions against such things as accessory apartments in owner
occupied homes, very small one-room shops, and social services.
If self-governing schools were established, it would be entitled,
as are parish councils in Britain, to a representative on the
board of the elementary school serving it; it would also be
entitled to notice of, and standing to intervene in, nearby
significant zoning applications. To avoid the reapportionment
decisions, the representative on school boards would need to be
appointed by each district's officers rather than elected by its
residents. Terms of some board members would expire each year.
The rights of residents would be protected by supermajority
requirements for assessments, frequent elections, audits, and
rights of voice and exit.

While RCAs would not need such a scheme and no area would be
required to take part in it, it is believed that a device of this
sort would fill a considerable social vacuum, and would also
improve the recruitment of candidates for higher levels of
government.

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