SPECIAL

LEGISLATIVE, FINANCE AND ADMINISTRATION COMMITTEE

A Special Legislative, Finance, and Administration Committee meeting was held on February 4, 2008, at 4:32 p.m. with Chairman Slavin presiding. Members present were Mr. McGlumphy, Mr. Salters, Dr. Jones, and Mr. Shevock. Other members of Council present were Mr. Leary, Ms. Russell, Mr. McGiffin, Mr. Hogan, Mr. Ruane, and Mrs. Williams.

AGENDA ADDITIONS/DELETIONS

Mr. McGlumphy moved for approval of the agenda, seconded by Mr. Shevock and unanimously carried.

Discussion of 1988 Consent Decree with City Solicitor

Members were provided the 1988 Consent Decree between the Central Delaware Branch of the NAACP and the City of Dover. Mr. Slavin reminded members that in conjunction with their comprehensive review of the 2005 Charter Review Committee Recommendations, members had suggested the opportunity for a discussion of the 1988 Consent Decree with the City Solicitor in order to gain an understanding of consent decrees, as well as background information regarding the 1988 Consent Decree.

Due to the interest in this matter, Mr. Slavin advised members that in addition to all members of Council, those invited to attend this evening’s meeting included representatives of the NAACP, Mr. Cecil Wilson, and Dr. Margaret McKay. He noted the attendance of Election Board members, Chairman Garfinkel and Mrs. Legates. Mr. Slavin introduced the City Solicitor, Mr. Rodriguez, and Deputy City Solicitor, Mr. Pepper, and requested that they explain what a consent decree is and to provide information regarding the conditions that led to the 1988 Consent Decree and what effect it has on the City.

Mr. Pepper advised members that prior to the Consent Decree, there were eight (8) members of Council (elected at-large for each district) and meetings were presided over by the Mayor. In 1985, the Central Delaware Branch of the NAACP filed suit under the Voting Rights Act against the City primarily to challenge the at-large method of voting for Councilmen. At the suggestion of the City Solicitor, Mr. Pepper stated that the City entered into negotiations with the NAACP and, as a result, both parties agreed to a Consent Order. He explained that a consent order is a settlement that becomes a judgement of the court and can only be modified by a court or by an agreement of the parties. He indicated that the City cannot unilaterally change the Consent Order.

Mr. Pepper stated that as a result of the Consent Order, district voting was created, whereby only residents in a particular district would be eligible to vote for the candidate in that district. In addition, a minority district was created in which the black population had to be 65%. The Consent Order created a new Council position, the Council President, which resulted in a total of nine (9) members of Council. It removed the Mayor as the presiding officer and instead required that the Council President preside over Council Meetings. He noted that the transition was smooth and that there were no problems. However, upon receipt of the 2000 Census, Mr. Pepper advised members that when the Election Board began to redraw the council districts they encountered substantial difficulty in redrawing the minority district to make it equal in population with the other three (3) districts and at the same time, maintaining the 65% black population requirement. He explained that the minority population of the City of Dover no longer resided almost exclusively in certain areas of the City but had dispersed throughout the City. It was his opinion that this issue will occur again when the 2010 Census is received and suggested that it may be impossible to develop a single district where the minority population is 65%. He anticipates that the City would accomplish the requirement by developing eight (8) Council districts, with two (2) minority districts, which would require the Consent Decree to be amended.

Mr. Pepper indicated that when he met with the 2005 Charter Review Committee, there was some interest in putting the Mayor back as the presiding officer. He advised members that the removal the Mayor as presiding officer and creation of the ninth (9^th) Council seat are beyond the remedies available under Section 2 of the Voting Rights Act. However, he stated that there has been case law since the Decree that indicated that those types of changes could not be forced upon a municipality. Should Council wish to reverse such changes, it could be accomplished by including it in a motion to modify the Consent Order.

Responding to Mr. Shevock, Mr. Pepper stated that the Voting Rights Act does not permit a Court to require the size of the legislative body to be changed. The 65% is usually chosen to assure the election of a representative of their own for that district. Should it become impossible to create a district that has a super majority, whether its 65%, 60%, or 55%, it was his opinion that the Voting Rights Act does not offer a remedy for the minority.

In preparing for this meeting, Mr. Ruane advised members that there have been several Supreme Court decisions since 1988 that also seem to put a city such as Dover in a position where racially conscious redistricting is against some of those Court decisions. He noted that the Court has thrown out some redistrictings due to the gerrymandering manner in which it was accomplished and questioned if the City would be vulnerable in this matter. Responding, Mr. Pepper stated that several of those cases were relative to 14^th Amendment cases, due process and equal protection cases, and that the City’s case falls under the Voting Rights Act, which Congress passed in order to enforce the guarantees provided by the 15^th Amendment that granted the right to vote to blacks. It was his opinion that the City would not be vulnerable under these circumstances; however, he suggested that the vulnerability would be a challenge based on Baker versus Carr. After receipt of the 2010 Census, in 2011, when the City begins to redraw the districts, it was his opinion that the City will have serious difficulty in developing a district consisting of 65% minority population, particularly with maintaining only four (4) districts.

Mr. DePrima noted previous discussion regarding a strong mayor form of government and having the city manager reporting to the mayor. At that time, it was his recollection that it was the opinion of representatives of the NAACP that this would violate the Consent Decree since such a change would in effect put city government under the direction of an individual voted at-large versus members of council. Responding, it was Mr. Pepper’s opinion that such an argument would not have merit under the Consent Decree. He assured members that, outside of the requirements of the Consent Decree, the City of Dover is free to form its government in any way it chooses.

Mr. Hogan alluded to legislation being proposed for consideration by Congress that would allow for defendants to petition the court to remove any consent decree after four (4) years. Mr. Pepper felt that such legislation would create an issue regarding the separation of powers. He is not aware of the proposed legislation or its status with Congress. Mr. Ruane noted that the legislation was introduced to the U.S. Senate and House in November.

In response to Mr. Ruane, Mr. Pepper confirmed that there has been a lot of movement afoot in an attempt to eliminate consent decrees relating to jail management and educational facilities; however, it was his opinion that it would be disastrous to take this type of action regarding elections.

Concurring, Mr. Salters noted that the minority population in Dover is approximately 30%-35%, which should result in at least 30% representation of Council or any other elective body. Although there have been improvements, he stated that the only assurance of participation by all people is with the current Consent Decree or the possibility of more districts with a minimum of 65% minority population. He advised members that there is concern in the community regarding the City’s consideration of this issue.

For clarification, Mr. Slavin stated that this meeting was called specifically to gain information. He noted that due to a prior commitment, Mr. Pepper had to depart the meeting; however, City Solicitor Rodriguez would be available for any further questions.

Mr. Hogan expressed his pride in the City for its diversity and felt that the reason this has become an issue is because the black enclaves continue to disappear. As a result of the diversity throughout the City, he relayed concern that the City will not be able to meet the 65% black district and questioned what the result would be if this requirement was not met. Responding, Mr. Rodriguez stated that if the City was unable to meet the 65% black district, the City would be in violation of the Consent Decree and would have to explain the situation to the Court. He further explained his opinion that the districts cannot be split, they must remain contiguous.

Considering the possibility that the court could determine to nullify the Consent Decree, Mr. Leary suggested that the Plaintiffs would rather have the opportunity to discuss the alternatives to allow for a 65% black district.

Mr. Slavin suggested that members continue an on-going conversation and dialogue through the receipt of the 2010 Census information, with the understanding that since a decision would not be necessary for a few years, these discussions will remain preliminary in nature.

Referring to previous comments of Mr. Ruane, Mr. Salters indicated concurrence that the issue that should be addressed is relative to economics. It was his opinion that if there were more adequate jobs in Dover, there would be less renters and more homeowners, which would decrease the black population in the Fourth District. He advised members that historically in Dover, no minority has been elected at-large and he felt that if members were to understand the ramifications and reasons for this, they would have a different perspective on this matter. Mr. Salters stated that although the City of Dover has come a long way, the fact is that we are not quite there yet.

Responding, Mr. Hogan reminded members that Mr. Hardcastle was elected to City Council by at-large voting and, although he concurs with Mr. Salters, he relayed concern that there will be a problem meeting the requirements of the Consent Decree and that members must consider a solution.

Although there may be other solutions to the problems, Mr. McGlumphy suggested that if members developed a strong economic development plan, providing livable wage jobs, etc., the dilemma being faced by the City in this regard could be resolved. He also questioned why the at-large elected position was created.

Mr. McGiffin stated his feeling that there is an economic issue to some degree; however, he suggested that members not lose sight of the fact that the problem goes beyond economics, noting that the issue is not with just poor people but rather poor, black people. He explained that these people are not only disadvantaged by the way Dover is set up economically, but are historically oppressed people. He suggested that members not lose sight of this fact while dealing with the problem that the City’s growing diversity has left us.

In closing, Mr. Slavin stated that based on the discussion this evening, during the Review of the 2005 Charter Review Committee Recommendations, in all probability, members will not be able to formulate any recommendation regarding this matter until the receipt of the 2010 Census. It was also his opinion that members of Council would not take any action on this matter until after 2010 and only if the conditions in the Census warrants any action.

Mr. McGlumphy moved for adjournment, seconded by Mr. Salters and unanimously carried.

Meeting Adjourned at 5:28 P.M.

                                                                                    Respectfully submitted,

                                                                                    Timothy A. Slavin

                                                                                    Chairman

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