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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
3 BERNARDINO, CALIFORNIA APPROVING THE APPOINTMENT OF CERTAIN
REPRESENTATIVES TO SERVE ON THE SAN BERNARDINO AIRPORT AUTHORITY.
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WHEREAS, the City of San Bernardino (the "city") is a charter
city, duly created and existing pursuant to the Constitution and
the laws of the State of California; and
WHEREAS, the Ci ty is a party to that certain agreement
entitled "Joint Exercise of Powers Agreement Creating An Agency To
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Be Known
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"Airport
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provides
As The San ~ernardino Regional Airport Authority" (the
Authority Agreement") which Airport Authority Agreement
for the establishment of the San Bernardino Regional
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Airport Authority' and
WHEREAS, in accordance with the terms of the Airport Authority
Agreement, the legislative body of the City must appoint elected
officials of the City to Serve as Members on the governing board of
the San Bernardino Regional Airport Authority; and
WHEREAS, pursuant to the provisions of the charter of the
City, the Mayor shall appoint all representatives of the city to
boards, commissions and committees subject to approval by the
Council; and
WHEREAS, the Council of the City hereby deems it desirable to
approve the appointment of two (2) elected officials as named
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1 herein to serve as the primary representatives and one (1) elected
2 official to serve as the alternate representative on the San
3 Bernardino Regional Airport Authority.
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NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL
5 OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Recitals hereinabove are true and correct and
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are incorporated herein by reference.
SECTION 2. The Mayor hereby appoints
and
to serve as the City'S primary representatives
on the San Bernardino Regional Airport Authority.
SECTION 3. The Mayor hereby appoints
to
serv~ as the City'S alternate representative on the San Bernardino
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Regiona~ Airport Authority.
SECTION 4. The courtcil hereby confirms the appointment of
and
to serve as the City's
primary representatives on the San Bernardino Regional Airport
Authority.
SECTION 5. The Council hereby confirms the appointment of
to serve as the City'S alternate representative
on the San Bernardino Regional Airport Authority.
SECTION 6.
Such primary representatives and the alternate
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1 representative shall have authority to represent the city in
2 accordance with the provisions of the Airport Authority Agreement.
9 Bernardino at a
10 day of
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12 council Members:
13 ESTRADA
14 REILLY
15 HERNANDEZ
16 MAUDSLEY
17 MINOR
18 POPE-LUDLAM
19 MILLER
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4 SECTION 7.
5 adoption.
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7 I HEREBY CERTIFY that the foregoing Resolution was duly
8 adopted by the Mayor and Common Council of the City of San
meeting thereof, held on the
, 1992, by the following vote
This Resolution shall take effect upon its
AYES
NAYS
ABSTAIN
ABSENr
City Clerk
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1 RESOLUTION APPOINTING CERTAIN REPRESENTATIVES TO SERVE ON THE SAN
BERNARDINO REGIONAL AIRPORT AUTHORITY.
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The foregoing resolution is hereby approved this
day of
, 1992.
w. R. "BOB" HOLCOMB
Mayor
Approved as to form
9 and legal content:
10 JAMES F. PENMAN
City Attorney
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:: ~~-)
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CITY OF SAN BERNARDINO
OFFICE OF THE CITY ATTORNEY
JAMES F. PENMAN
City Attorney
October 15, 1991
Opini.on No. 91-33
TO: Council Member Ralph Hernandez
RE: Responsibility for Appointments to the Inland Valley
Development Agency
ISSUE
You have asked for an opinion on where the responsibility lies
for appointments to the Inland Valley Development Agency (IVDA).
CONCLUSION
As with nearly all other appointments made in the City the
City's representatives to the Inland Valley Development Agency are
appointed by the Mayor with the approval of the Common Council.
Removal from those appointments follows the same process.
ANALYSIS
The Inland Valley Development Agency (IVDA) is a joint powers
agency established pursuant to state law to provide for the
redevelopment of Norton Air Force Base and surrounding areas upon
the closure of the Base. Members of the IVDA include the County,
the City of Lorna Linda, the City of Colton as well as the City of
San Bernardino.
The Joint Powers Agreement establishing the IVDA dated
February 12, 1990 provides as follows:
"Each Member [agency] by official action of
its city councilor Board of Supervisors, as
appropriate, shall designate one (1) elected
official of the Member for each vote and Board
posi tion as the primary representatives for
each member." (Section 2.09)
DABjsesjIVDA-2.opn
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CITY HALL
300 NORTH '0' STREET · SAN BERNARDINO, CALIFORNIA 92418
(714) 384-5355
TO: Council Member Ralph Hernandez
RE: Responsibility for Appointments to the Inland Valley
Development Agency
Page 2
Al though this provision states that by action of "its city
Council" an appointment is made to the IVDA Board, this wording
cannot be construed to direct how that selection is to be made. It
only directs that each member agency take official action by
whatever process it follows to select such representatives. The
Joint Powers Agreement limits that selection to elected officials
and requires that official action be taken. As to how the
selection process is conducted in the City of San Bernardino we
must look to the City Charter.
Charter Section 40(s) provides as follows:
"[The Mayor and] Council shall have power to
appoint...such...subordinates, officers and
employees, as they may deem proper..."
Then Charter Section 51 adds:
"The Mayor, with the consent and approval of
the Common Council, shall appoint all
officers, and fill all vacancies in an
elective office not otherwise provided for in
this Charter..."
There is no provision in the Charter giving the Council
independent appointment power over any position or office, except
when the office of Mayor is vacant (see Charter Section 51). In
fact, the Council is clearly given the legislative power of the
City (Charter Section 30) as opposed to any executive power which
would include making appointments. In contrast the Mayor is named
as the Chief Executive Officer of the City (Section 50) and except
in his or her absence all appointment power is vested in this
office. This i~ further supported by the Mayor's Charter
responsibility to 3ee that all contracts and agreements with the
City are faithfully kept and fully performed..." (Charter Section
52) This would include Joint Powers Agreements.
Just as the appointive power is vested in the Mayor with the
approval of the Council, so too does the Mayor hold the removal
power (see Charter Sections 50, 52 and 256). The result is that
removal from the IVDA Board would be by action of the Mayor with
the approval of the Council.
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DAB/ses/IVDA-2.opn
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TO: Council Member Ralph Hernandez
RE: Responsibility for Appointments to the Inland Valley
Development Agency
Page 3
In two instances the Charter deviates from the standard
removal process. Charter Section 160 provides that members of the
Water Board "maybe removed at any time by the affirmative vote of
five Councilmen..." Similar language is found in Section 215 with
reference to the members of the Park and Recreation Commission.
Rather than providing support for the argument that the Council has
general independent removal power, these references show clearly
that only where that power is specifically granted does it exist.
It is enlightening to note that a similar grant of power is not
included in the provisions relating to the Library Board (Charter
Sections 205 to 212)
It has been suggested that San Bernardino Municipal Code
Chapter 2.17 relating to the various boards, bureaus and
commissions in the City codifies a council removal process since it
provides that "Nomination and appointment of a replacement member
at any time shall terminate the appointment of any member so
replaced, without need for formal removal action." (SBMC
~2.17.030). In this Chapter it provides that each Council member
may nominate one member of these bodies and the Mayor may nominate
two, resulting in nine member agencies. First of all, this process
is not inconsistent with the appointment power of the Mayor. It
merely provides that Council members may nominate individuals for
such appointment and approval. The Mayor's power need not be
exercised formally. The decision not to object to a nomination is
actually an informal appointment of that individual subject to
Council confirmation. But even if this process were read
differently, to somehow contradict the appointment and removal
power of the Mayor, we have often concluded, and it is a matter of
clear standing law, that no ordinance may violate the terms of the
Charter. If it is found to be in violation it is unenforceable to
that extent. But one of the primary rules of statutory
construction is to attempt to harmonize such enactments before
finding a clear conflict. (see Estate of Yush (1970) 8 CA 3d 251,
255; and 58 Cal Jur 3d "Statutes" ~l08). As noted above it is easy
to harmonize the appointment and removal provisions as the informal
exercise of the Mayor's appointment power.
As to possible past practices relating to other multi
jurisdiction agencies and Joint Powers agreements, as noted above
an action in violation of the Charter is not enforceable, and
certainly cannot be used as precedent for future actions.
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DAB/ses/IVDA-2.opn
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TO: Council Member Ralph Hernandez
RE: Responsibility for Appointments to the Inland Valley
Development Agency
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It has been suggested that perhaps this general removal power
is inherent in the terms of Charter Section 40(aa). This Section
provides as follows:
"(aa) Other powers. Council shall have power
to pass all orders, resolutions and ordinances
and to do and perform any and all other acts
and things necessary or proper to complete
execution of the powers vested by law or this
Charter, or inherent in the municipality, or
that may be necessary or proper for the
general welfare of the City or its
inhabitants."
First of all, "Council" is defined in the introduction to
Section 40 as "Mayor and Common Counci 1," so to say in the
subsections to Section 40 that the Council is to do an act is
actually saying that the Mayor and Council are to do that act. But
in any event, this language grants the Mayor and Council powers in
addition to those outlined elsewhere in the Charter. It does not
grant powers in contravention of other powers so granted. This
Section is not independent authority for a removal power vested in
the Council alone.
The conclusion must be that, except where the Charter has
specifically provided otherwise, appointments and removals are the
responsibility of the executive subject to the approval of the
Councilor the legislative branch.
Concur:
Respectfully submitted,
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Sr. Asst. City Attorney
JA~S F. PENMAN
I . ~
J<t.~ l /-~~~~
r~/ty Attorney
~c: Mayor W.R. Holcomb
Council Members
Rachel Krasney, c~ty Clerk
David C. Kennedy, ~ity Treasurer
Shauna Clark, City Administrator
All Department Heads
DABjsesjIVDA-2.opn
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-j(u/10L
POSITION STATEMENT OF NORRIS P. GREGORY, JR., FORMER SIXTH
WARD CITY COUNCILMAN OF THE CITY OF SAN BERNARDINO, CA -
TENURE FROM 1967 TO 1975
MUCH OF TODAY'S CONCERN AND DELIBERATIONS RELATE TO THE
DISSENTION WHICH HAS BEEN PUBLICLY DISPLAYED AND EXISTS BETWEEN
THE EXECUTIVE AND LEGISLATIVE BRANCHES OF OUR MUNICIPAL FORM OF
GOVERNMENT. THIS EXCHANGE OF OPINIONS AND POSITIONS IS, IN MY
OPINION, NOTHING NEW OR EXTRAORDINARY.
THE PERSISTENCE AND EXTENSION OF SUCH DISSENTION AND VOLA-
TILE DISAGREEMENT, HOWEVER, IS A MORE RECENT, LINGERING AND
HURTFUL PHENOMENON - OfTEN LEADING TO LEGISLATIVE PARALYSIS OF
OUR CITY.
THE CITY OF SAN BERNARDINO HAS AN ELECTED MAYOR WHO, BY
CHARTER DECREE AND GENERAL INTERPRETATION,~HE ROLE AND RIGHT TO
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SPEAK FOR THE CITY AS ITS FORMAL REPRESENTATIVE.
OUR CURRENT MAYOR, WITH HIS PROVEN LEADERSHIP AND ADMINISTRA-
TIVE CAPABILITIES, ALONG WITH HIS INVALUABLE EXPERIENCE AND AT-
TRIBUTE OF BEING A HIGHLY EDUCATED, WELL TRAINED, EXPERIENCED,
AND RESPECTED ATTORNEY-AT-LAW, OFFERS THE CITY A RESPECTED AND
MOST FORMIDABLE ADVOCATE IN THE ARENA OF MUNICIPAL DEBATES AND
NEGOTIATIONS.
WHEN VALUABLE ASSETS AND BENEFITS ARE "ON THE LINE," SOME-
TIMES, IT IS OfTEN NECESSARY TO SACRIFICE FINESSE, PROPER DE-
CORUM AND SUAVE BEHAVIOR IN THE INTEREST OF "GAINING ATTENTION
AND AWARENESS" FOR THE GOAL OF PROTECTING THE ASSETS AND BENEFITS
TO ACCRUE TO THE CITY OF SAN BERNARDINO.
WHILE EACH COUNCILPERSON HAS A PART TO PLAY IN MUNICIPAL
GOVERNING, EACH REPRESENTING APPROXIMATELY 24,000 CITIZENS, IT
WAS INTENDED, FROM MY POINT OF VIEW, THAT THE COUNCIL ACT IN
UNISON AS A WHOLE AND AS THE BACKBONE OF THE CITY, WHILE THE CHIEF
EXECUTIVE, THE MAYOR, ACTS AS ITS LEADER, IN ALL ASPECTS OF REPRE-
SENTATION OF THE CITY.
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OF COURSE, ONE COULD QUESTION WHY WOULD I, A FORMER
COUNCILMAN, OFTEN IN DISAGREEMENT WITH THOSE MAYORS WITH WHOM
I HAVE SERVED, CAN COME FORWARD TO PUBLICLY RECOGNIZE AND ACK-
NOWLEDGE THE POSITION OF LEADERSHIP BESTOWED BY THE CHARTER OF
OUR CITY UPON THE MAYOR, IN THIS CASE MAYOR BOB HOLCOMB.
BUT, NOW WE ARE AT A CRITICAL TIME IN OUR HISTORY FOR THE
CITY OF SAN BERNARDINO AND IT'S FUTURE WITH THE CLOSING OF A
VITAL LIFELINE OF ECONOMIC INFLUENCE OF NORTON AIR FORCE BASE
IN CALENDAR YEAR 1994. AND, IT BECOMES CRUCIAL THAT OUR ELECTED
OFFICIALS REACH A STATE OF HARMONY FOR THE PUBLIC GOOD AND BENEFIT
OF OUR VERY SURVIVIAL.
THEREFORE, THE MAYOR OF THE CITY OF SAN BERNARDINO, NO MATTER
WHO THE INCUBENT, DESERVES AND SHOULD BE ENTITLED TO LEAD THE CITY
AND MAINTAIN THE POSITION OF BEING THE PRIMARY SPOKESPERSON.
THANK YOU
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