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HomeMy WebLinkAbout07D-Personnel u C I T Y O F S A N B E R N A R D I N O INTEROFFICE MEMORANDUM CITY ADMINISTRATOR'S OFFICE DATE: December 18, 1994 TO: The Honorable Mayor and Common Council FROM: Shauna Clark, City Administrator SUBJECT: Management/Confidential Salaries Adjustments COPIES: ------------------------------------------------------------------- This is a rebuttal to the December 14, 1994, letter from the City Attorney's Office re: "Resolution Implementing Management and Confidential Salary Adjustments". 1. With one departure as noted in the staff report, the resolution accurately reflects the action taken by the Mayor and Council. According to the City Attorney's Office, they were excluded from closed session when the action was taken. This is entirely untrue for someone from the City Attorney's Office was present when the motion was made in closed session and again when repeated in open session. According to minutes from the City Clerk, Jim Penman was present when the Council took action in closed session. I distinctly remember his being there and his statement that he had no conflict because he was not being included in the raises. The Council motion was then repeated in open session and the vote disclosed. Henry Empeno, Deputy City Attorney, was sitting at the dais when the vote was made public. The above action took place on November 7, 1994. The City Attorney's Office waited more then five weeks to object to the action, claiming that the Council did not consult them first. Ironically, the action taken by the Council to implement the salary survey in phases as submitted was requested by Dennis Barlow, Senior Assistant City Attorney and President of SBCMA, at the Personnel Committee meeting of September 8, 1994. This request was formalized in a letter from SBCMA. 2. There is no legal requirement that the City have a five step system. In fact, until this year, the mid-managers had a seven step plan. On November 7, the Mayor and Council placed a "not to exceed 5$" parameter on subsequent merit ranges. This would allow fluctuation from 0 to 5$ and was clearly explained to the SBCMA bargaining team. If you read the memo from John Kramer, you will note that he explained this to SBCMA members who supported this concept with a unanimous vote. Members of the City Attorney's Office were present when this was presented and explained. o ~ Mayor and Common Council Mgt./Conf. Salary Resolution December 18, 1994 3. There are five employees who were adversely affected by the delay of anniversary dates to January. Three who would have been affected in January, have been addressed with the "departure" from the November 7, 1994, Council action mentioned under No. 1 above. The other two are highly paid management employees who will have their raises delayed by three or four months, not an extra year as stated in the December 14, 1994, memo from the City Attorney's Office. If they only get 1$ in January 1996, it is because they are poor performers, not because their anniversary date was changed. 4. See John Kramer's memo to address Number 4. I reiterate, it was Senior Assistant City Attorney Dennis Barlow who advocated for the phased implementation. 5. a. The Council is not requiring the City Attorney's Office to complete performance evaluations as a condition of the implementation of the first phase of the survey. The policy says that when merit increases are due in January 96, they must be justified through written evaluation. I disagree with the City Attorney on the issue of evaluations, but nevertheless, we have 24 council meetings between now and January 1996, to work out this issue. The resolution can be amended if the City Attorney prepares an adequate legal opinion explaining why he cannot be forced to evaluate the performance of his employees. b. Again, a legal opinion will explain the City Attorney's reasoning on evaluation of his staff. it was not intended that the evaluations of employees in the Council Office be reviewed by the Mayor. The evaluations to be reviewed by the Mayor are those of department heads as prepared by the City Administrator. The resolution makes it clear that the Council's Executive Assistant will be evaluated by the Council. c. I agree the Council cannot require the Chief Examiner to be evaluated by the City Administrator. The resolution gives the City Administrator the requirement of evaluating department heads and division heads under the Office of the City Administrator. The Civil Service Board Chief Examiner is not a department head. He is Chief Examiner and Secretary of the Civil Service Board. He is not evaluated by the City Administrator now and never will be. The City Librarian was also excluded from the resolution due to the Charter. This was not pointed out by the City Attorney's Office, but if a clarification is going to be made for Civil Service, one should also be made for City Librarian. Personnel Director Barbara Dillon has prepared an amendment to the resolution. The amendment is attached. ~, ..1 Mayor and Common Council Mgt./Conf. Salary Resolution December 18, 1994 dY Refer to the attached legal opinion from Burke, Williams and Sorenson. e. Evaluations, done properly, are an excellent management tool and one that professionals consider to be essential in a well run organization. Evaluations set goals and objectives and measure progress toward these goals. They should not be viewed as something which affects our ability to terminate at will employees, but rather a tool that enhances the city's ability to get the most from its employees. We constantly get mixed signals from the City Attorney's Office on the termination of at will employees, but to this point, evaluations have not been the stumbling block. Departments have been evaluating at will employees (division heads, secretaries, etc) since the day I came to work for the City. Why has it become a problem all of a sudden? 6. a. See 5c above. b. The City Attorney's Office is misreading the resolution. The Mayor reviews performance evaluations of departments heads and employees of elected officials, but the recommendation for their increases is made by the elected official. c. See legal opinion from Burke, Williams and Sorenson. 7. A city resolution cannot override the Family Leave Act, which is Federal law, and this resolution was never intended to do so. However, since the City Attorney needs clarification to be comfortable, Barbara Dillon has prepared amended language which is attached to this memo. 8. All changes were bargained for and presented to the general membership in two separate sessions. See memo from John Kramer. Members of the City Attorney's staff were present at both meetings when the concept of performance raises was brought before SBCMA. According to John Kramer, performance raises were approved by a unanimous vote. The last two paragraphs of the memo are untrue for all the reasons above. In addition, the proposed resolution was submitted to the City Attorney's Office well in advance of the agenda deadline. Diane Roth and Dennis Barlow were consulted about the resolution and told Barbara Dillon and John Kramer that problems were only minor, using the example of the clarification on the Civil Service Chief Examiner and the Family Leave Act. When the agenda was prepared and the resolution still had not come back from the City Attorney's Office, I again checked with Barbara Dillon and John Kramer. Both called Diane Roth who told them the resolution would be coming out shortly and there would be no obstacles. C Mayor and Common Council Mgt./Conf. Salary Resolution December 18, 1994 The City Attorney's Office complains that actions are taken without their input. Zt is impossible to get honest input. We are told time and again that all is fine; there is nothing else we need to do and then at the last minute, everything changes. ~ City Administrator ^ UG s CITY OF SAN BERNARDINO PARKS, RECREATION d< COMMUNITY SERVICES INTEROFFICE MEMORANDUM TO: SHAUNA CLARK, CITY ADMINISTRATOR FROM: JOHN A. KRAMER, SUPERINTENDENT OF RECREATION SUBJI3CT: MANAGEMENT CONFIDENTIAL SALARY ADIU5TMBNTS DATE: December 13, 1994 COPIES: I have reviewed the memo prepared by Deputy City Attorney Diane Roth and there am aevenl issues that I wish to call to your attention. These are as follows: I. The memo contributes a statement to you that an "employee would have to walk oa water" to receive a full step increase. Diane shared this comment with me several days prior to the date of her memo, i rold ttor that I was at the meeting where you aharod the information on this issue and that you made no such statettunt. You d~ indicate that managers would treed moro than just standard evaluations to get a fttll step advancement. It is rather unfomtnate that such hearsay would become an issue. Management a~ Confidential employees were apprised of the results of our negotiations, that is, that atop incresaea could be other than at S percent Increments. 2. The arrangement to have employees whose anniversary date falls in January to get their step increases and then be placed in their new step was worked out by Peggy Ducey with my consent on behalf of the association. This arratt8ement prevents those employees from actually being penalized and losing a S percent increase that they would have received otherwise. That this was not pan of the proposal presented to our members is irrelevant. No members are put at any disadvatttuge by thin arrangement aml those employees who would have unfairly lost up to a 4 percent increase are redressed. 3. It is true that witit the elimination of the County from the survey as a Comparable agency changed the results. This did not change results completely but, in tact only partially. The fact ia, that the now results could very easily be extrapolated from the information ~ provided previously. Furthermore, association members were apprised that on the average, the members would benefit from this process since the County was above the C ~^J, Y median in 8 positions but below the median in 16 positions. Furthermore, Diatom raises issues about the equity of the study in that some employees will initially receive a very small increax. I pointed out that even though that ie the case, thex employees would be eligible fora 3 percent increax in the following year. As I explained to Diane what really needs to be understood is that unlike other bargaining units, which initiate negotiations because their contracts expire, the association's right to negotiate is driven strictly by Resolution 89-129. This requires that a compensation study be conducted and that a manner of implementation be discussed. We eaaeatislly were not at liberty to discuss across the board iacreasea. The implementation of the survey ultimately benefits all of the association trtemben in that the avenge compensation increax over time will range from 5 to 20 percent. The ~mben of the association agreed unanimously to implemern the survey coupied with the implementation of the merit increase proposal. The issues that aro raised dealing with the negotiation process are irrelevant. Negotiations were in fact cortducted; the members were consulted; the vok to approve was unttnimous. If there are members who have raised concerns with Ms. Roth, they have not Bona so with the association's negotiators. I hope by this memo that I Nava clarified some of the concerns raised itl Dia»e's memo. ~ It's my sole interest to see this implementation of the salary attrvey with the agreed upon merit system without any fltrther controversy. I I J A. , UPERI OF RECREATION JAK/amt ii ,~ ~.' 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 evaluatierr period. The evaluation period is six months from Step 1 to Step 2, and twelve 4 months between all other steps. 5 6 (d) All management and confidential employees shall be evaluated in writing. 7 (1) Evaluation of department heads and heads of divisions within the 8 City Administrator's Office will be performed by the City Administrator and reviewed by the 9 Mayor, using an evaluation format approved by the City Administrator. 10 (2) Evaluation of the Civil Service Chief Examiner will be performed ll by the Civil Service Board and reviewed by the Mayor. 12 13 (3) Evaluation of the City Librarian will be performed by the Library 14 Board and reviewed by the Mayor. 15 (4) Evaluation of employees of elected officials will be performed by 16 the elected official or his/her designee and reviewed by the Mayor. 17 (5) Evaluation of other management/confidential employees will be 18 performed by the department head, or division head, in the case of divisions within the City 19 20 Administrator's Office, or a designee of the department or division head, and may be reviewed 21 by the City Administrator. Evaluation forms for these employees will be provided by the 22 Duector of Personnel. 23 (e) Recommendations for increases shall be submitted to payroll on a form 24 provided by Finance at least 30 days prior to the expiration of the evaluation period. 25 (1) Recommendations for salary advancement of a department head, 26 27 2 28 Itmendn~ent to 7. D. o 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 or divisign head within the office of the City Administrator, shall be submitted by the City 4 ` Administrator. 5 6 (2) Recommendations for salary advancement of the Civil Service Chief 7 Examiner shall be submitted by the Civil Service Board. 8 (3) Recommendations for salary advancement of the City Librarian 9 shall be submitted by the Library Board. 10 (4) Recommendations for salary advancement of employees of elected 11 officials, with the exception of the Council Office, shall be approved and submitted by the 12 13 Mayor. 14 (5) Recommendations for salary advancement within the Council Office 15 shall be submitted by a Council committee. 16 (6) Recommendations for advancement of all other 17 management/confidenfial employees shall be submitted by their respective department heads. 18 (f) When an employee returns to work after an approved leave of absence 19 20 without pay and has over two (2) months of uncompensated service within the prior twelve- 21 month period, hislher anniversary date and compensation advancement date, for the purpose of 22 establishing compensation as provided for in this section, shall be extended by the length of 6me 23 for which the leave of absence was granted. 24 in circumstances in which either the Federal Family Leave Actor the State 25 Medical and Family Leave Act apply, the City shall adhere to the requirements of the Acts. 26 27 3 28 Wnendment to 7. D. ' ^, C ~ LA'N OFFICES BURKE, WILLI.IMS 8C SORENSE~T 3200 BFISTOL STgf ET ~-~ ~--•. vENTVR4 GOVrvTY OFiICE SUITE 690 LOS ANGELES OFeICE 2 ]'O °ONDEgOSA Jq~vE COSTA MESA, CALIFORNIA 9zB26 fill wEST SiXTN STREET SURE 2500 _ LOS ANGELES. CA LIFO pl{Iq 9ppl] _ _q,'wA RiLLO CqL cpgpiA 93 ~'~' i]lal 545-5559 12131 236-C600 ~1 •, '8051 99] 3x99 --q.]5 u ~ E In41 ]55-56+9 TELE CO PIER 12131 239-2]00 E_ECJPER 4051-t32~Jd34 November 11, 1992 CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEf3E Mr. Steven Griffin, President San Bernardino City Management Association 300 North "D" Street San Bernardino, California 92418 ,y i. ~ Re: Request for Legal Opinion on City Charter Questions %+ Dear Mr. Griffin: '.; ' .:->. As requested in your letter dated July 31, 199Z;.:,otir a office has researched certain questions concerning the interpretation of particular language of your City's Charter on the Charter powers of the Mayor and Common Council. As a result of our research, we observe that some ambiguities do exist within the Charter language which could be clarified by amendments to the Charter. However, the following discussion is limited to addressing the existing Charter language since recommendations for any changes are beyond the scope of your request. ISSUES PRESENTED 1. Does the Charter of the City of San Bernardino provide authority to the Common Council to adopt an ordinance creating the position of City Administrator and prescribing certain duties of that position? 2. Does the Charter of the City of San Bernardino provide authority to the Mayor and Common Council to hire independent legal counsel? SUMMARY CONCLUSION Our research indicates that as a chartered city with "home rule" powers, the Common Council of San Bernardino does possess the requisite charter powers for the exercise of their judgment and discretion on both issues presented. The following analysis will discuss the legal basis for such authority. ~ w Mr. Steven Griffin, President November 11, 1992 Page 2 ANALYSIS ISSUE #1 Home Rule Charter Powers Where a city's charter contains "home rule" provisions, the city has complete power over "municipal affairs" subject only to the clear and explicit limitations and restrictions contained in the charter. [State Constitution, Article XI, Section 5(a)]. The employment, promotion and management of city employees is a "municipal affair" controlled by the provisions of a city's charter and by the administrative discretion of its officials. Under Article XI, Section 5(b) of the State Constitution, a chartered city has the plenary power to provide in its charter for the method of appointment and qualifications of its employees. [Lucchesi v. City of San Jose (1980) 104 Ca1.App.3d 323, 327-328; 163 Ca1.Rptr. 700]. The City oP San Bernardino's "home rule" provision is contained in Section 1 of the Charter: "The City of San Bernardino may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this Charter, and in respect to other matters it shall be subject to general laws." The enumerated powers of the Mayor and Common Council are contained in Section 40 of the Charter. Such powers include the power: "to appoint. .other subordinates, officers and employees, as they may deem proper, and to fix their qualifications. duties and compensations. "and "~ prescribe by ordinance the duties of all officers whose duties are not defined by this Chapter, and to prescribe for anv officer, duties other than herein prescribed." [Charter Sections 40(s) and 40(x)]. (emphasis added) CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE { ~ ~ Mr. Steven Griffin, President November 11, 1992 Page 3 Thus, both the State Constitution and the City's Charter recognize the Council's authority to make determinations in the area of employee appointments and duties. Case Law The charter powers of a city council to appoint officers as it deems necessary was explicitly upheld in Miller v. City of Sacramento (1977) 66 Ca1.App.3d 863; 136 Ca1.Rptr. 315. Miller, su ra, was an action challenging the power of a city council to create the position of council budget analyst. Among the grounds for challenging the council's power were (1) lack of authority in the charter for hiring a budget analyst, (2) an unlawful infringement on the authority of the city manager, and (3) an unlawful delegation of authority of the council. The court found none of these (or the other) grounds to have merit. Rather, the court relied on the city's "home rule" charter powers and stated: "[a] construction in favor of the exercise of the power and against the existence of any limitation or restriction thereon which is not expressly stated in the charter is clearly indicated. ." The Sacramento Charter in Miller, sU~ra, contained provisions authorizing the council to select "such other officers and employees of its own body as may be deemed necessary" and to create new "offices and employments not specifically mentioned in the charter or created by it." (emphasis added.) Because there were no other provisions in the charter expressly preventing the council from doing so, the court read those provisions to authorize the creation by the council of the budget analyst position. [Miller, supra, at 868]. This case is significant since one of the objections was the claim that the duties of the budget analyst were an "infringement" on the city manager's charter authority. Under the charter, the city council was prohibited from "interfering" with the city manager or preventing him from exercising his own judgment in appointing officers and employees in the "administrative service." Another claim was that the council's appointive powers were limited to "only aides and assistants as CONFIDENTIAL - ATTORNEY/CLIENT PRI1/ILEf3E Mr. Steven Griffin, President November 11, 1992 Page 4 would be uniquely needed for the councilmen to perform their duties as elected officials." The court rejected both claims since they were based on trying to find an 1 e prohibition on the power of the council in the charter or a possible conflict in the charter provisions themselves. Instead, the court declared, at 66 Ca1.App.3d 869: "It is our view the charter neither expressly nor by implication forbids the hiring of a council budget analyst or provides that the city manager has exclusive responsibility for analyzing, studying, reporting or making recommendations to the council on budgetary matters." (emphasis added). Therefore, the court did not find any conflict in the charter section involved or any implied restriction on the council's charter powers of appointment. The language of your Mayor and Council's appointive power in Charter section 40(s) is very similar to the charter language approved in Miller supra. Thus, this case would support your Council's authority to appoint a City Administrator. The reasoning in Mil e , supra, was followed in Canfield v. Sullivan (1985) 774 F.2d 1466. In Canfield, supra, the court held that a provision in a city charter providing that the mayor shall appoint all heads of municipal departments did not limit the legislative body's power to create additional "executive" positions. Because there was no express prohibition in the charter limiting the legislative body's power to create additional positions, the legislative body was not precluded from making such an appointment. [Canfield, supra, at 1469]. These cases demonstrate that unless there is a clearly expressed restriction on a council's powers within the charter itself, an implied limitation will not be found. It must be noted, however, that there is contradictory authority on the issue. In Hubbard v. City of San Dieao (1976) 55 Ca1.App.3d 380; 127 Ca1.Rptr. 587, the court held that the establishment of the department of legislative analyst by the city council was contrary to the city's charter and, therefore, CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE Mr. Steven Griffin, President November 11, 1992 Page 5 invalid. The court's holding was based on the fact that many of the duties and functions of the newly created department of legislative analyst were duplications of the functions given by the charter to the city manager. The court also found that persons performing administrative duties were required, under the charter, to be subject to the city manager's supervision. Since the council removed the legislative analyst department from the supervision and control of the manager, the court declared the council's action to be ultra wires. [ ubba , supra, at 388]. While the court in Hubbard, supra, gave a narrow reading to the council's charter powers, its conclusion was supported by the charter language requiring administrative functions to be under the control and supervision of the city manager. [Hubbard, su ra, at 385-386, footnote 1). The court rejected the council's attempt to remove the legislative analyst department from the manager's supervision by declaring it to be a "legislative department." This case is distinguishable since it involved the creation of an entire impartment Qytside the control of the City Manager. In contrast, your Mayor and Council have established by ordinance a position which remains subject to the Mayor and Council's supervision and authority. one of the ambiguities within your Charter involves the power of appointment. As discussed above, Section 40 gives the Mayor and Common Council the power to appoint "officers and employees" and to fix their qualifications and duties. However, Section 51 gives the Mayor, with the consent and approval of the Common Council, the authority to appoint "all q~ficers." Thus, there appears to be overlapping appointment authority for officers. Such confusion should be eliminated by Charter amendment. Nevertheless, it is our understanding that these sections have historically been interpreted as giving the Mayor the exclusive power of appointment for ate, City officers and employees with the consent and approval of the Common Council. According to City Code section 1.28.010, past practices in interpreting in the City Charter have acquired a meaning upon which the public and city employees have relied. Therefore, until these Charter sections are clarified by amendment, it appears that the past practice of the Mayor appointing all city employees and officers would be considered the valid exercise of the Charter's power of appointment. CONFIDENTIAL - AT~O~Y/CLIE~BRI~IILE(iE Mr. Steven Griffin, President November 11, 1992 Page 6 Delegation of Powers As a general rule, powers conferred on a city council which involve the exercise of judgment or discretion are in the nature of public trusts, and, as such, cannot be delegated. However, while the legislative or discretionary powers of the city council cannot be delegated to others, it is equally well established that ministerial or administrative functions may be delegated to subordinates or agents. And, judgment must often be exercised by such ministerial officers to determine the existence of facts which authorize action by the legislative body. Furthermore, there has been some relaxation of the general rule against delegation of discretionary powers in view of the ever increasing complexity of administrative matters which require that many administrative and ministerial functions be entrusted to agents. [Cal Jur 3d, Municipalities, Sections 164 and 178]. There is nothing in the San Bernardino City Charter expressly prohibiting the delegation of administrative and executive duties to the City Administrator or declaring that the Mayor has exclusive supervisory responsibility. Therefore, the Mayor retains the power to delegate his administrative duties as Chief Executive Officer, which include his duty of "general supervision." In delegating such duties, the Mayor also has the power to appoint the City Administrator as his "Deputy Mayor." And, since the Municipal Code provides that the Mayor and Common Council retain the powers of appointment and dismissal of the City Administrator, the duties delegated to the City Administrator cannot involve the exercise of "judgment or discretion." [Section 2.02.050). Similar reasoning was followed by the court in Tavlo v. Crane (1979) 24 Ca1.3d 442; 155 Ca1.Rptr. 695; 595 P.2d 129. In Taylor, supra, the California Supreme Court determined there was no unlawful delegation of the city manager's discretion in personnel matters by allowing an arbitrator the final word on the propriety of a discharge. Since the charter did not expressly prohibit such delegation, the Court found that the city manager retained the power to do so. [Ta to su , at 451]. The Court also concluded that because the city manager retained certain disciplinary powers, there had not been a "total abdication" of his disciplinary authority. [Ta to su a, at 452]. CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE Mr. Steven Griffin, President November 11, 1992 Page 7 CONCLUSION - ISSUE #i Based on the Mayor's and Council's express appointive powers in the Charter and their inherent "home rule" powers, the Mayor and Common Council have the authority to adopt an ordinance creating the position of City Administrator and to prescribe to that officer such administrative and executive duties as they deem proper. Furthermore, the Mayor retains the power to delegate his administrative duty of general supervision to the City Administrator or other appropriate designee. ISSUE #2 This issue must also be analyzed according to the well established principle that charter cities are permitted to exercise all sovereign powers which are not expressly limited by their charter or by state or federal law. [United Pub is Employ- ees v. City and County of San Francisco (1987) 190 Ca1.App.3d 419, 422; 235 Ca1.Rptr. 477). Since a city's charter is not a grant of power, but only acts as a limitation, it should be liberally construed and no restrictions may be implied. [Asso - ated General Contractors of California Inc v City and County of San Francisco (1985) 619 F.Supp. 334, 336; modified (1987) 813 F.2d 922] A construction in favor of the exercise of the power and against the existence of any limitation or restriction on such power which is not expressly stated in the charter is required. [Ruane v. San Dievo (1968) 267 Ca1.App. 2d 548, 558; 73 Ca1.Rptr. 316.] Thus, existing authority on charter powers supports the exercise of the Council's power to hire independent legal counsel unless it is expressly prohibited from doing so. Section 241 of the San Bernardino City Charter states: "The Mayor and Common Council shall have power and authority to employ and engage such legal counsel and services and other assistants, as may be necessary and proper for the interest and benefit of the Citv and the inhabitants thereof." (emphasis added) Based on the above stated language, it seems clear that the Mayor and Common Council have express and independent power and authority to hire outside legal counsel as determined by the Council's own wisdom and discretion. CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE Mr. Steven Griffin, President November 11, 1992 Page 8 Statutory Construction of Charter Language "Under settled rules of statutory interpretation, the various sections of a char-ter must be construed together, giving effect and meaning so far as possible to all parts thereof, with the primary purpose of harmonizing them and effectuating the legislative intent as therein expressed." [Creighton v. City of Santa Monica (1984) 160 Ca1.App.3d 1011, 1017; 207 Ca1.Rptr. 78]. In Creighton, supra, the authority of the city's rent control board to formulate its own budget and hire independent legal staff was challenged based on the charter provisions prohibiting the delegation of duties by the city council and city attorney. The board's authority was upheld by the court since the charter empowered the board to "hire and pay necessary staff." In its decision, the court recognized that the charter did not expressly specify whether the board was to be represented by an independent legal staff or the city attorney. However, the court reasoned that if the board was to remain an autonomous body, it must be entitled to the legal counsel of its own choos- ing. The court distinguished the board from other city agencies and departments because it was composed of elected officials. As such, "[a]n elected entitiy that makes judicially reviewable decisions and that is a party to judicial proceedings clearly possesses the right to the services of an attorney of its choosing and subject to their control." Creighton, supra, at 1020. Thus, the court found there was no improper delegation of authority. Similarly, since the Mayor and Common Council possess charter authority for hiring legal counsel and are a body of elected officials, the Mayor and Common Council should be entitled to the services of an attorney of their choosing and subject to their control so long as it is "necessary and proper for the interest and benefit of the City and the inhabitants thereof." (Charter Section 241). In addition, as noted in the Annotation at 83 American Law Reports 135, 140: CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE . ~, ~ ~ ..,/ Mr. Steven Griffin, President November 11, 1992 Page 9 "The power of a city to employ counsel is not taken away by statutory provisions creating the office of city attorney, prescribing the duties of that officer, and restricting payment of city funds to regular city officers and employees. Otherwise, absence illness. refusa~ to a-}- ?+ostili* to pu lic interest. or other temporary ~ncaoacity o~ the regular city attorney might leave the municipality without necessary counsel even in crave emergency." (emphasis added) This rule was followed by the Court in Knight v. City of Eureka (1898) 123 Cal. 192 when it concluded that the power to appoint an attorney is "one of those incidental powers which of necessity reside in the council in order that its granted powers may be fully exercised." Kni t, supra, at 195. Thus, there is authority for the proposition that even without its express charter power, the Common Council has inherent power to hire legal counsel in order to exercise its other granted powers. CONCLUSION - ISSUE #2 The City Charter grants the Mayor and Common Council the express authority to employ legal counsel as it deems necessary and proper. However, such authority to employ legal counsel does not extend to City officers. Those officers are constrained by the provisions of Section 2.20.070 of the Municipal Code which sets forth the conditions and procedures for hiring "outside counsel" by city officers. RECOMMENDATIONS From the description we have received of the relationships between the City Attorney, the Mayor and the Common Council, regarding issues referred to in this Opinion, it is our suggestion, if it is feasible, that it be proposed to the Mayor and Council with respect to the City Administrator Ordinance, so as to settle issues concerning its validity: (1) that the Mayor, if he agrees with the purpose and intent of the Ordinance, appoint the person holding the position of City Administrator as his Deputy; and CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE C Mr. Steven Grifi°n, President November 11, 1992 Page 10 (2) the letter of authorization and appointment would indicate that the duties to be performed by the Deputy are to consist of those described in the City Administrator Ordinance and such other matters as may be delegated to him/her by proper authority. This arrangement would seek to eliminate, to the extent possible, the controversy and the threat of litigation regarding the interpretation of the ordinance. (3) with respect to the appointment of outside counsel, apparently the City Attorney is taking the position that without his consent, no such authorization or appointment of special counsel can be made by the Council. While we disagree with this, it would appear that if a reconciliation cannot be reached with regard to this issue, that the Council seriously consider the amendment of the City Charter in its entirety or at least with respect to the specific power to appointment of special counsel. This latter can be done by the Council directing such an amendment be prepared by the City Attorney's office for Council review. If the City Attorney declines to prepare it in the manner described in the direction of the Council, then there is no question under existing case law, that the Council is free to employ special counsel for the purpose of preparing such an amendment for submission to the electorate. We hope this information proves useful to you. Should you have any questions on these matters or wish to discuss them further, please do not hesitate to contact us. Very Truly Yours, JE Y M. PATTERSON for BU E, WILLIAMS & SORENSEN JMP:MJSD:ss 80031038.LTR cc: J. Robert Flandrick Mary Jo Shelton-Dutcher CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE 1 C I T Y O F S A N B E R N A R D I N O INTEROFFICE MEMORANDUM CITY ADMINISTRATOR'S OFFICE DATE: December 19, 1994 TO: Shauna Clark, City Administrator FROM: Peggy Ducey, Assistant to City Administrator SUBJECT: Management Raises COPIES: ---------------------------------------------------------------- On December 8th, I spoke with Diane Roth regarding the management salaries agenda item. Barbara Dillon had told me Diane had some concerns about the recommendation advancing three employees to the next step on their January anniversary date. The issue revolves around those management and confidential employees who are not at the top step of their salary range. Prior to the Council action on management salaries, anyone below step 5 would have been due a 5~ step increase sometime during 1995, depending on their anniversary date. However, the action taken by Council adjusts all management/confidential employees to the next highest step, based on current salary, and freezes other step increases until January 1, 1996. If the salary adjustments made on January 1 did not equal or exceed 5~, some of these employees could end up with less than they would have prior to the Council's salary action. I told Diane that I had obtained a list from MIS of nineteen management and confidential employees that were below step 5 and that I had calculated how much of an increase each of these employees would receive January 1, as compared to the step increase they would have gotten on their anniversary date. The majority of these employees will be getting more than their scheduled 5$ step increase and therefore are not detrimentally affected by the salary action. Only those positions mentioned in the staff report would have been adversely impacted, which is why~the agenda item requests special action for them. 2 asked Ms. Roth if she had any questions about the analysis done or action requested and she said no, that she understood the reason behind the request. I did not know she had a problem with the recommended action until I read the memo to Mr. Penman. CITY OF SAN BERN,~DINO -REQUEST F' ~R COUNCIL ACTION BARBARA DILLON AMENDMENT TO RESOLUTION From: Subject: 6413, SECTIONS FIVE, TWELVE Dept: PERSONNEL AND FOURTEEN,CONFIDENTIAL & MANAGEMENT EMPLOYEES Date: NOVEMBER 30, 1994 Synopsis of Previous Council action: Various actions throughout the year which changed titles and positions in the management and confidential bargaining unit. On November 7, 1994, the Mayor and Common Council approved an amended version of a salary survey for Management and Confidential employees which authorized "nearest dollar, minimum step placement, step two"; effective January 1, 1995; and required all subsequent step increases for non-safety management and confidential employees to be based on performance. Recommended motion: Adopt resolution. Signature Barbara Dillon 384-5161 Contact person: Phone: Yes Supporting data attached: Ward: FUNDING REQUIREMENTS: Amount: Various Departments Source: (Acct No 1 (Acct Description) Finance: Council Notes: ~s-ozez Agenda Item No..~~ CITY OF SAN BERNA~DINO -REQUEST FC~ COUNCIL ACTION STAFF REPORT On November 7, 1994, the Mayor and Council approved salary adjustments for non-safety management and confidential employees. A salary study completed by Personnel Concepts was amended on November 7 by removing comparisons to positions within San Bernardino County government. The Mayor and Council then authorized partial implementation of the amended study by adjusting management and confidential salaries to the comparable ranges, bui by sliding back the steps to the nearest dollar placement, minimum placement Step 2. By sliding back the steps, the City saves on the costs of implementation. Where average salary adjustments would have been 9.296, they have now been reduced to an average of 3.0%. The FY '95 cost of implementation as proposed will be $67,584, as compared to $452,184 annually for full implementation. The Mayor and Council also decided that employees whose salaries were adjusted through this action, would not be eligible for step advancement until January 1, 1996. Said advancement would range from 1% to 5%, and would be based on performance evaluations. This action by the Mayor and Council stresses the importance of performance over time in grade. The proposed resolution includes one departure from the November 7 action. After reviewing the effects of holding off automatic step advancements which would have taken place in 1995, the City Administrator is requesting that the Mayor and Council allow three employees who would have received an automatic 5% advancement in January 1995, to be advanced and then set back to the nearest dollar placement, minimum placement step two. Without this change, these employees would have been penalized 5 % in 1995 and would have had an immediate reduction in pay. The attached resolution amending Resolution 6413 incorporates the November 7th action, makes an adjustment to that action for employees who are eligible for a step advancement in January 1995 and who would be adversely affected by delay in step advancement until January 1996, and incorporates other actions by the Mayor and Council taken throughout the year which changed management and confidential positions. The position changes are listed below. The amended Resolution 6413, is attached. jJJQ, CHANGE TO DATE AGENDA I1FM A. CITY ATTORNEY Legal Secretary Trainee 1 Delete 6-15-94 #2 264 ..J -~ B. CITY ADMINISTRATOR Secretary (Council/City Administrator) 1 Add Budgeted position C. CITY TREASURER Administrative Operations Supervisor (City Attorney/ City Treasurer) 1 Add Budgeted position D. MANAGEMENT INFORMATION SYSTEMS Programmer I 1 Delete Programmer 1 Add 11-21-94 #14 Programmer Analyst 1 Add 11-21-94 #14 ~$ ~jQ,. CHANGE TO DATE AG>TIDA 1TFM A. CITY CLERK Business Registration Supervisor 1 New Title Business License Supervisor 1 Old Title 1-6-92 #23 B. FACILITIES MANAGEMENT Facilities Maintenance Superintendent (U) 1 Delete Project Coordinator (U) 1 Add 9-6-94 #8 C. FINANCE Purchasing Agent 1 Old Position Purchasing Manager 1 New Position 11-21-94 #14 D. PARKS, RECREATION & COMMUNITY SERVICES Assistant Director of Parks, Recreation & Community Services 1 Delete Nonbudgeted Position E. PUBLIC WORKS/ENGINEERING Field Engineer 1 Delete Per Department Memo dated 5-6-93 1 RESOLUTION NO. 2 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AMENDING RESOLUTION NO. 6413 ENTTI'LED IN PART, 'A RESOLUTION ESTABLISHING A BASIC 4 COMPENSATION PLAN , ' BY UPDATING INFORMATION CODIFYING PRIOR COUNCIL ACTION. (MANAGEMENT & CONFIDENTIAL) 5 6 BE TT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: 7 SECTION 1: Section Five of Resolution No. 6413 is hereby amended to exclude 8 managemant and confidential employees. 9 10 SECTION 2: Section Five and One-Half is added to Resolution No. 6413, as follows: 11 SECTION FIVE AND ONE-HALF: Section Five and One-Half shall apply to all non- 12 safety management and confidential employees: 13 (a) Effective January 1, 1995, employees will be adjusted from their current 14 salary ranges and steps to the new ranges and steps as set forth in Sections Twelve and Fourteen 15 of this resolution. Step phuxment will be nearest dollar with minimum placement at Step Two. 16 17 Employees who would have advanced to a higher step during the month of January, 1995 will ig receive their January advancement and then will be phuxd in the range and step nearest their 19 January salary. 20 (b) Employees hired within the last six months, or who will be hired at Step 21 1 after January 1, 1995, will be eligible for a maximum of a 5% step increase after the 22 ~ successful completion of the first six months of service. The minimum time period between all 24 other steps will be twelve months. 25 (c) Beginning January 1, 1996, and each January l thereafter, all management 26 and confidential employees who have not yet reached top step, may receive an increase ranging 27 from 1% to 5%, based upon the performance evaluations completed within the previous 28 .-- -'e ..r 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. $ evaluation period. The evaluation period is six months from Step 1 to Step 2, and twelve 4 months between all other steps. 5 6 (d) All management and confidential employees shall be evaluated in writing. 7 (1) Evaluation of department heads and heads of divisions within the 8 City Administrator's Office will be performed by the City Administrator and reviewed by the 9 Mayor, using an evaluation format approved by the City Administrator. 10 (2) Evaluation of employees of elected officials will be performed by 11 the elected official or his/her designee and reviewed by the Mayor. 12 13 (3) Evaluation of other managementiconfidential employees will be 14 performed by the department head, or division head, in the case of divisions within the City 15 Administrator's Office, or a designee of the department or divisioa head, and may be reviewed 16 by the City Administrator. Evaluation forms for these employees will be provided by the 17 Director of Personnel. 18 (e) Recommendations for increases shall be submitted fA payroll on a form 19 20 provided by Finance at least 30 days prior to the expiration of the evaluation period. 21 (1) Recommendations for salary advancement of a department head, 22 or division head within the office of the City Administrator, shall be submitted by the City ~ Administrator. 24 (2) Recommendations for salary advancement of employees of elected 25 officials, with the exception of the Council Office, shall be approved and submitted by the 26 27 2 28 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 Mayor. 4 5 (3) Recommendations for salary advancemeat within the Council Office 6 shall be submitted by a Council committee. 7 (4) Recommendations for advancement of all other 8 managemendconfidentialemplcyees shall be submitted by their respective department heads. 9 (f) When an employoe returns to work after an approved leave of absence 10 without pay and has over two (2) months of uncompensated service within the prior twelve- 11 month period, his/her anniversary date and compensation advancement date, for the purpose of 12 13 estabhslung compensation as provided for in this section, shall be extended by the length of time 14 for which the leave of absence was granted. 15 16 17 18 19 20 21 22 23 24 25 26 27 ~ 3 ,-. `,~, ,,~ - 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 SECTION TWELVE: Confidential Employees: 4 $~y~pge and Steps Classification Title 5 6 (3321) 2201 2311 2427 2548 2675 Secretary (lJ) (Council, City Administrator) 7 (3323) 2223 2334 2451 2573 2702 legal Secretary I (II) 8 9 (3334) 2348 2466 2589 2719 2854 Computer Operator 10 (3341) 2432 2553 2681 2815 2956 Senior Secretary (il) (Administrative Office, 1] Council, Finance, Mayor, Personnel, 12 Planning & Building Services) 13 14 03343) 2456 2579 2708 2843 2986 Legal Secretary II ([I) 15 (3346) 2493 2b18 2749 2886 3030 Deputy City Clerk I ([J) 16 (3348) 2518 2644 2776 2915 3061 Account Clerk ID (Payroll) 17 Personnel Assistant 18 (3363) 2714 2849 2992 3142 3299 Paralegal I (IJ) 19 (3369) 2796 2936 3083 3237 3399 Executive Secretary M 20 (3370) 2810 2951 3098 3253 3416 Administrative Operations 21 Supervisor (1J) (City Attorney, City Treasurer) 22 Programmer ~ (3376) 2896 3040 3192 3352 3520 Deputy City Clerk II (iI) 24 (3421) 3624 3805 3996 4195 4405 Senior Accountant 25 26 (3422) 3642 3$24 4016 4216 4427 Personnel Analyst 27 ~ 4 r..% • 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 COD)F'YING PRIOR COUNCIL ACTION. 3 (3428) 3753 3941 4138 4344 4562 Programmer Analyst 4 (3434) 3867 4060 4263 4476 4700 City Attorney Investigator (Il) 5 6 (3484) 4962 5210 5471 5744 6031 Deputy City Attorney I (U) 7 (3494) 5216 5477 5750 6038 6340 Deputy City Attorney II (fJ) 8 (3504) 5483 5757 6045 6347 6664 Deputy City Attorney III (IJ) 9 (3514) 5763 6051 6354 6671 7005 Deputy City Attorney IV ([J) 10 (3524) 6058 6361 6679 7013 7363 Senior Deputy City Attorney (I)) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5 28 -~ ~% ,.r 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL. ACTION. 3 SECTION FOURTEEN: Management Employees 4 Shy Range and_Steos Classification Title 5 6 (FLAT) 1000 City Treasurer M 7 (4380) 2954 3102 3257 3420 3591 Guttural Affairs Coordinator M Administrative Analyst 8 9 (4400) 3264 3427 3598 3778 3967 Administrative Operations Supervisor 10 3414 3584 3763 3952 4149 Division Chief - SBETA M i] Assistant DirectorlDivision Chief (rrPA)M 12 19 (4410) 3431 3602 3782 3971 4170 Pmject Coordinator M Administrative Assistant to the 14 City Administrator M 15 (4417) 3553 3730 3917 4113 4318 Cemetery Superintendent M 16 (4418) 3570 3749 3936 4133 4340 Supervising Librarian 17 (4420) 3606 3786 3976 4175 4383 Business Registration 1$ Supervisor M 19 (4422) 3042 3824 4016 4216 4427 Affirmative Action Officer M 20 (4440) 3984 4184 4393 4612 4843 Assistant to the Mayor M 21 Disaster Preparedness Coordinator M 22 ~ (4441) 4004 4204 4415 4635 4867 Plan Check Engineer 24 4065 4268 4481 4705 4941 Purchasing Manager M 25 (4448) 4147 4354 4572 4800 5040 Assistant City Librarian M 26 27 ~ 6 G 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. S (4459) 4380 4599 4829 5071 5324 Fleet Manager M 4 (4460) 4402 4622 4854 5096 5351 Cable Television Manager M 5 Dinxtor of Animal Control M 6 Executive Assistant W the Council 7 Executive Assistant to the Mayor M 8 9 (4466) 4536 4763 5001 5251 5514 Principal Planner 10 (4467) 4559 4787 5026 5277 5541 Superintendent of Parks M Superintendent of ll Recreation (In Director of Risk Managem~t 12 (tn 13 (4472) 4674 4907 5153 5411 5681 Facilities Manager M 14 Superintendent of Sanitation M 15 (4473) 4697 4932 5179 5438 5709 Assistant to the City 16 ~ Administrator M 17 (4479) 4840 5082 5336 5603 5883 Senior Civil Engineer 18 (4488) 5058 5311 5577 5856 6149 City Clerk M 19 20 (4489) 5087 5342 5609 5889 6184 Executive Director (Federal ems) M 21 Traffic Engineer M 22 (4494) 5216 5477 5750 6038 6340 Civil Service Board Chief ~ Examiner M Assistant Director of ~ Public Services M 25 (4509) 5621 5902 6197 6507 6832 Director of Management Information Services M 26 27 28 7 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 (4511) 5677 5961 6259 6572 6901 Assistant Director of ¢ Planning and Building 5 ~ 6 (4517) 5850 6142 6449 6772 7111 Assistant City Engineer 7 (4523) 6028 6329 6645 6978 7327 City Librarian (U) 8 (4524) 6058 6361 6679 7013 7363 Director of Personnel (Cn 9 Director of Parks, Recreation & Community 10 ~'~ M Director of Public Services (tJ) 11 (4532) 6300 6615 6946 7293 7658 City Attorney (iJ) 12 13 (4541) 6594 6923 7270 7633 8015 Director of Planning & Building Services (IJ) 14 ' (4543) 6660 6993 7342 7710 8095 Director of Finance (II) 15 16 (4544) 6693 7028 7379 7748 8136 Assistant City Attorney (U) 17 (4556) 7106 7461 7834 8226 8637 Director of Public Works/City Engineer (iJ) 18 19 (4558) 7173 7532 7909 8304 8719 City Administrator (iJ) 20 (4560) ?249 7612 7992 8392 8811 Assistant City Administrator 21 (4564) 7395 7765 8153 8561 8989 Senior Assistant City Attorney ~ M 23 24 25 26 Y 27 28 8 ~-, ~, • 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor 4 and Common Council of the City of San Bernardino at a meeting thereof, 5 6 held on the day of , 199A, by the following vote, to wit: 7 ~OUl4C-ILMEMBERS A_YToi^ ~iAY$ L AI~STAffi 8 NEGRETE 9 10 CURLIN 11 12 OBERHELr~IAN 13 DEVLIN 14 POPE-LUDLAM 15 MILLER 16 • 17 City Clerk 18 19 20 21 22 23 24 25 26 27 9 28 1 AMENDMENT TO RESOLUTION NO. 6413 BY UPDATING INFORMATION 2 CODIFYING PRIOR COUNCIL ACTION. 3 The foregoing resolution is hereby approved this day of 4 1994. 5 6 7 g Tom Minor, Mayor City of San Bernardino 9 10 11 Approved as to 12 form and legal content: 13 JAMES F. PENMAN 14 City Attorney 15 16 17 By: 18 19 20 21 22 23 24 25 26 27 ~ 10