HomeMy WebLinkAbout07.A- City Manager RESOLUTION(ID#2089) DOC ID: 2089 A
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Request for Proposal
From: Andrea Travis-Miller M/CC Meeting Date: 11/05/2012
Prepared by: Tanya Romo, (909) 384-5122
Dept: City Manager Ward(s): All
Subject:
Resolution of the Mayor and Common Council Authorizing the Mayor on Behalf of the City
Council to Request a Proposal from the San Bernardino County Sheriffs Department for the
Provision of Law Enforcement Services and Authorizing the Interim City Manager to Coordinate
with the Sheriffs Department to Provide the Information Required to Formulate the Proposal.
Financial Impact:
Unknown at this time
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
None
Backeround•
-- On August 1, 2012, the Mayor and Common Council filed for Chapter 9 Bankruptcy protection
following an analysis of the City's financial position, the projected FY 2011-12 deficit and
projected future year deficits, and unfunded future liabilities. In an effort to begin to reduce the
City's projected FY 2012-13 deficit, City staff presented and the City Council approved various
budget reduction measures as part of the Pre-Pendency Plan. Implementation of the Pre-
Pendency Plan measures is underway. Full implementation has not been achieved as quickly as
had been anticipated due to the impact of the Civil Service process. Additionally, there have
been further adjustments to the reductions approved initially. In some areas, the approved
reductions have simply not been made. Staff continues to evaluate the financial impact of these
decisions. At the same time, the Pendency Plan, which will enable the City to demonstrate
eligibility for Bankruptcy, is being prepared. The Pendency Plan focuses on deferring fiscal
stabilization measures, debt expenditure reductions, adjustments to claims, and salary and benefit
concessions to balance the budget.
Ultimately, the City will be required through the Bankruptcy process, to formulate and negotiate
the long-term Plan of Adjustment, that will enable the City to successfully emerge from
bankruptcy by resolving the long-term financial problems. This Plan of Adjustment must meet
certain legal requirements, be voted on by the creditors, and be confirmed by the Court. This
process takes at least 12 to 18 months after the Bankruptcy filing. To further demonstrate the
City's commitment to resolving the financial issues, consideration of contracting for services
such as law enforcement is recommended.
Updated: 11/1/2012 by Tanya Romo A
2089
An initial discussion with the San Bernardino County Sheriff's Department to determine whether
contracting for law enforcement services was feasible and gain some basic information was
initiated by the City Attorney. The Sheriff indicated that a formal proposal for service could be
provided to the City if a majority of the members of the City Council requested in writing a
proposal and authorized the Interim City Manager and staff to provide necessary information to
the Sheriff's Department so that a proposal could be developed. Attached is draft
correspondence to the Sheriff requesting a proposal for law enforcement services.
City Attorney Review:
Sunaortine Documents:
Resolution-MCC 11-05-12 Authorizing Mayor to Request Sheriffs Proposal (PDF)
Proposed Correspondence for Law Enforcement Services (PDF)
Updated: 11/1/2012 by Tanya Romo A
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1 RESOLUTION NO. 0
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AU ORIZING THE
MAYOR ON BEHALF OF THE CITY COUNCIL TO REQU T A PROPOSAL
3 FROM THE SAN BERNARDINO COUNTY SHERIFF'S DEP TMENT FOR THE c
4 PROVISION OF LAW ENFORCEMENT SERVICES AND UTHORIZING THE 0:
INTERIM CITY MANAGER TO COORDINATE W H THE SHERIFF'S r
5 DEPARTMENT TO PROVIDE THE INFORMATION REQ IRED TO FORMULATE 0
THE PROPOSAL.
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7 WHEREAS, on August 1, 2012, the Mayor and Co on Council filed for Chapter 9
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8 Bankruptcy protection following an analysis of the City' financial position, the projected FY N
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9 2044-12 deficit and projected future year deficits, and nfunded future liabilities.
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10 WHEREAS, the City will be required thr gh the Bankruptcy process, to formulate o
11 and negotiate the long-term Plan of Adjustm t, which is intended to enable the City to y
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successfully emerge from bankruptcy by reso ing the long-term financial problems. 0 a.
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WHEREAS, the Plan of Adjustm t must meet certain legal requirements, be voted
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15 on by the creditors, and be confirmed by e Court. w
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16 WHEREAS, restructuring of e City organization including contracting for various m
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services may be necessary to achiev long-term financial stability.
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NOW, THEREFORE, e Mayor and Common Council of the City of San
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20 Bernardino hereby authorize Mayor or City Manager, on behalf of the City Council, to 0
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21 request a proposal from the n Bernardino County Sheriffs Department for the provision of a'
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22 law enforcementervic and authorize the Interim City Manager to coordinate with the o
23 Sheriff's Department to provide the information required to formulate the proposal.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE °
2 MAYOR ON BEHALF OF THE CITY COUNCIL TO REQUEST A PROPOSAL
FROM THE SAN BERNARDINO COUNTY SHERIFF'S DEPARTMENT FOR THE
3 PROVISION OF LAW ENFORCEMENT SERVICES AND AUTHORIZING THE
INTERIM CITY MANAGER TO COORDINATE WITH THE SHERIFF'S
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4 DEPARTMENT TO PROVIDE THE INFORMATION REQUIRED TO FORMULATE o
5 THE PROPOSAL.
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7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and o
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8 Common Council of the City of San Bernardino at a meeting o
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9 thereof,held on the day of 2012,by the following vote,to wit:
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11 Council Members: AYES NAYS ABSTAIN ABSENT
12 MARQUEZ W
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13 JENKINS N
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14 VALDIVIA s
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18 JOHNSON o
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19 MCCAMMACK c
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Georgeann Hanna, City Clerk
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The foregoing Resolution is hereby approved this day of 2012.
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25 Patrick J. Morris, Mayor
City of San Bernardino 0
26 Approved as to form:
27 James F. Penman, City Attorney
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28 By:
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November 6,2012 �
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Rod Hoops o
San Bernardino County Sheriff o
San Bernardino County Sheriff's Office a`
655 E. Third Street 0
San Bernardino, CA 92415
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Dear Sheriff Rod Hoops,
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On November 5, 2012,the Mayor and Common Council approved a Resolution, a copy of which
is attached, authorizing the Mayor (City Manager) on behalf of the City, to request a proposal c
from the San Bernardino County Sheriffs Department for the provision of law enforcement N
services. This correspondence serves as the City's formal request for a proposal. 0
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Interim City Manager Andrea M. Miller and Chief of Police Robert Handy are available to assist a
you and the members of your Department in obtaining the information required to formulate the c
proposal. Any questions or concerns may be directed to Ms. Miller.
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Your consideration of the City's request for a proposal is appreciated. U
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CITY OF SAN BERNARDINO Z
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Patrick Morris
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City of 11/0s 126012-
Rancho Cucamonga, R
California
RANCHO
CUCAMONGA
Fiscal Year 2012/ 1. 3
Adopted. Budget
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Hazardous Waste facility; undergrounding of utilities on Arrow Route and Base Line
Road; and several pedestrian connections which will be funded by the Safe Routes
to School grant program.
Department Budgets
Police Department
In FY 2011-12, because of large operational contract labor cost increases, special
programs and support operations were reduced to maintain an emphasis on patrol
services and keep the contract cost-neutral except for non-personnel increases that
were unavoidable. Many special programs were reduced or eliminated. The Department
adapted by implementing special hours of work, modified beat patterns and creative
shift adjustments whenever possible. COPS grant funding was utilized to support
special projects requiring overtime, including Parolee Compliance, Sex Registrant
Compliance, Bike Patrol (P.E. Trail and shopping centers), Special Investigations,
Tactical Response and Holiday Shopping Patrol Enhancement. The Department also
kept overtime costs to a minimum regardless of personnel injuries and mandatory court
overtime to stay within budget. Overall, the Police Department managed the contract
within budget despite all the aforementioned challenges and still managed to maintain
or lower the City's crime rate in key areas.
For FY 2C12-13, the San Bernardino County CEO has unexpectedly and without
advance discussion to the contract cities implemented a 66% increase in the
Countywide Cost Allocation Plan administrative expense, increasing the current rate of
3% to a new rate of 5%, which will result in an unanticipated increase in administrative
costs to the contract in the amount of $483,080. At the time of printing this increase
was still being contested, however, if implemented this additional administrative
expense will prevent the City from increasing sworn personnel as originally planned.
Additionally, the impact of rising fuel costs will likely also prove to be significant for FY
2012-13. Although there were some decreases in personnel liability and vehicle
equipment costs, these savings will be more than offset by increases in the
administration charge and fuel costs.
The City's plan to implement a dedicated Probation Compliance Team to address the
impacts resulting from the Governor's implementation of AB 109 realignment, and the
early release to county probation of criminals in State prison to reduce the State's
overcrowding prison issues, will have to be modified. Instead of adding 2 to 4 new
additional personnel, the City will likely re-task existing deputies or other specialized
officers to take on these new duties. The department is also currently maintaining 10
vacant sworn positions. The Department will also continue to utilize grant monies to
supplement equipment needs and continue to move forward regardless of operating
cost challenges. Projects involving video networks and plate readers will allow the
Department to grow in efficiency, despite a lack of personnel increases by acting as
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force multipliers. Further, the Department will redouble efforts to remain creative in
communications outreach within the constraints of a challenging budget.
Fire District
The Fire District enters FY 2012-13 with a balanced budget that does not rely upon
reserves. In addition, the Fire District will be able to fund its operations without an
increase in Community Facilities District assessments (CFD). The budget for FY 2012-
13 shows a significant increase in revenues as well as expenditures largely as a result
of the elimination of Redevelopment; the monies that were previously protected under a
pass-through agreement with the Rancho Cucamonga Redevelopment Agency will now
come directly to the Fire District as part of their regular property tax revenue. The spirit
and intent of the pass thru, however, will remain and the Fire District will set these
additional funds aside, largely into reserves to fund future equipment replacement and
capital repairs. A perfect example of the importance of these reserves is the purchase
of $1.9 million in new engines/ladder trucks in the FY 2012-13 budget detailed further
below. Proper funding of the reserves will allow the Fire District to continue providing
premier emergency response and risk reduction services to the community. The Fire
District's "pay as you go" approach to funding services will keep the organization
positioned to implement strategic improvements to its service platform as identified
through continuous analysis and review of its effectiveness and efficiency.
Other highlights for FY 2012-13 include the opening of the Hellman Fire Station in
January 2012 which has resulted in improved response times to emergencies in the
northwest portion of the community. The Fire District will complete the landscaping for
the Hellman Station in FY 2012-13 and will utilize this opportunity to provide an example
of fire wise landscaping for the community who live in the Wildland Fire Hazard area.
Additionally, the Fire District will be completing major capital repair projects at several
facilities in FY 2012-13 including Jersey, Banyan and Day Creek Fire Stations. Work
will continue towards planning for the training center at the Jersey Fire Station and
pursuing opportunities to secure property for the relocation of the San Bernardino Road
station and a possible future mid-town fire station (Station 8) per the Fire District's
Strategic Plan.
The purchase of a replacement aerial ladder truck for the Jersey Fire Station is a critical
project for FY 2012-13 as the current unit is over 10 years old. The old unit will remain
in the fleet as the District's only reserve ladder truck. Additionally, the District will look
to replace the fire engine at the East Avenue Station and the Jersey Station. Further,
the Fire District will continue its innovative use of the on-shift Fire Inspector by adjusting
that position to a Captain-Specialist as of midyear. This 2417 single-staffed resource will
be able to do greater patrol and enforcement functions in support of Cucamonga
Canyon and other foothill areas, have increased capability and qualifications for
command and control on significant incidents, greater autonomy to handle incidents on
a solo basis, thus freeing engine and truck companies to be available for more serious
incidents, and enhanced collaboration with Building and Safety and Code Enforcement
for responses to after hours issues involving potential public safety concerns.
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Entered Into Rec. at MCC/CDC Mtg;�Z ""°"�
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Agenda Item No: s
by: 6.
City Cler DCSecrotary OFFICE OF THE CITY ATTORNEY
City of San Bernardino CITY OF SAN BERNARDINO
JAMES F. PENMAN
CITY ATTORNEY
Opinion No. 12-2
November 5, 2012
Interim City Manager
TO: Andrea M. Travis-Miller, ty g
Cc: Mayor and Common Council;City Clerk;City Treasurer;Jason Simpson,
Director of Finance
RE: Obligations and authority of City Manager and Director of Finance to act
independently of Mayor and Council to address City's financial condition
ISSUE
You requested the opinion of this office regarding the obligations of the City
Manager and Director of Finance, and the options legally available to them under state
law and the City Charter, to address the City's financial condition in the absence of
action by the City Council to reduce costs and increase revenues. Subsequently, you
asked that the opinion specifically address whether the City Manager may
independently institute employee furloughs.
CONCLUSION
We are aware of no provision of either state or local law authorizing either the
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300 NORTH "D" STREET • SAN BERNARDINO, CA 92418-0001 • (909) 384-5355 • FAx (909) 384-5238
(NOT PRINTED AT PUBLIC EXPENSE)
City Manager or the Director of Finance to take action independently of the Mayor and
Council to address problems concerning the City's financial condition. The authority to
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take remedial action is reserved to the Mayor and Council. The City Manager further
lacks unilateral authority to institute furloughs.
ANALYSIS
I. APPLICABLE LAW
As a preliminary matter, it is necessary to consider whether the question for
discussion is controlled by state or local law.
As a charter city, the City of San Bernardino has the power to legislate with
respect to its own affairs, in lieu of and in addition to the provisions of state law that
pertain to the government of cities. That power emanates from Article 11, section 3(a)
of the California Constitution, which states:
"For its own government, a county or city may adopt a charter by majority vote
I of its electors voting on the question. . . . The provisions of a charter are the law
of the State and have the force and effect of legislative enactments."
If a charter so provides, its provisions may supersede state law with respect to
"municipal affairs." Article 11, section 5 (a) of the Constitution states:
"It shall be competent in any city charter to provide that the city governed
thereunder may make and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations provided in their
several charters and in respect to other matters they shall be subject to general
laws. City charters adopted pursuant to this Constitution shall supersede any
existing charter, and with respect to municipal affairs shall supersede all laws
inconsistent therewith."
Pursuant to Article 11, section 5 (a), San Bernardino has provided for self-
government in its municipal affairs by enacting section 1 of the City Charter, which
states: "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
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this Charter, and in respect to other matters it shall be subject to general laws."
While the City thus enjoys virtually unrestricted power to govern its own
municipal affairs, the distinction of municipal affairs from"other matters" is not always
clear. "No exact definition of the term'municipal affairs' can be formulated, and the
courts have made no attempt to do so, but instead have indicated that judicial
interpretation is necessary to give it meaning in each controverted case." (Butterworth v.
Boyd (1938) 12 Cal.2d 140, 147.) "Because the various sections of [California
Constitution] article XI fail to define municipal affairs, it becomes necessary for the
courts to decide, under the facts of each case,whether the subject matter under
discussion is of municipal or statewide concern. This question must be determined from
the legislative purpose in each individual instance." (Professional Fire Fighters, Inc. v.
City of Los Angeles (1963) 60 Cal.2d 276, 204.)
The question to be addressed in this opinion concerns the duties and powers of
municipal officers of a charter city. This subject is ordinarily viewed as a municipal
affair, as opposed to a matter of statewide concern, and hence, as a matter that should
be controlled by local law. (See, e.g., Denman v. Webster(1903) 139 Cal. 452, 457 ["it
must be admitted that the duties of the city attorney and his compensation are
municipal affairs, and that charter provisions concerning the same are binding on that
officer"]; People v. Barnhart (1939) 37 Cal.App.2d Supp. 748, 752 ["the duties of a city
prosecutor, in so far as violations of his city's charter and ordinances are concerned,
may be said to be a municipal affair"].) Hence, we conclude it is likely that local and
not state law would govern the resolution of the issue.
Moreover, to the extent state law exists on the subject of municipal officers'
powers and duties, it does not reflect a purpose to displace local law or a determination
that the subject is one of statewide concern. We examine separately the provisions of
state law applicable to city managers and city directors of finance.
1. City Manager
Government Code sections 34851 through 34859 set forth the procedure for a city
or its electors to establish a city manager form of government. However, those
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provisions do not attempt to prescribe or restrict the powers or duties of the position of
city manager. Rather,section 34852 provides that the ordinance establishing a city
manager form of government "shall define the powers and duties of the city manager
and may fix his compensation or the minimum amount he is to receive." Thus, the
Legislature plainly contemplated that a city manager's powers and duties would be
defined by a local ordinance and not by general state law.
2. Director of Finance
Our research has disclosed no state statutory provisions directly addressing the
powers and duties of a city finance director. A few statutes, however, address the
subject indirectly.
Government Code section 1236(a) sets forth the accounting standards that
govern the work of"city, county,city and county, and district employees that conduct
audits or that conduct audit activities of those respective agencies." San Bernardino
Municipal Code section 2.10.030.(I) charges the Director of Finance with the duty to
"audit all purchase orders before they become effective, and audit and approve, before
payment, all bills, invoices, payrolls, demands or charges against the City government,"
and therefore may have the effect of imposing on the Director of Finance the standards
set forth in Government Code section 1236(a).
However, nothing in the Government Code section could reasonably be
interpreted to impose on the Director of Finance a duty to act independently of the
Council to address financial issues. Moreover, nothing in the section evidences a
legislative purpose to make the powers and duties of a city finance director a matter of
statewide concern. Section 1236(a) is therefore not relevant to the question addressed in
this opinion.
In similar fashion, Government Code section 40805.5 provides that certain
financial and accounting duties imposed upon the city clerk by Government Code
sections 40802 through 40805 (having to do with maintaining financial records and
publishing a summary of the city's annual financial report) "may be transferred to a
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director of finance when such office has been established and the powers and duties
thereof defined by ordinance." Again, this provision of state law could have the effect
of defining to some degree the powers and duties of the finance director. But again,
there is no duty imposed to take unilateral action, nor any evident purpose to make the
powers and duties of finance directors a matter of statewide concern. To the contrary,
the statute contemplates that those powers and duties will be "defined by ordinance."
Accordingly, this statute too is not relevant to our analysis.
3. Common law fiduciary duty
Finally, we consider the applicability of the general principle of California
common law that"a councilman or other officer of a city sustains the same fiduciary
relationship toward the citizens of his community that a trustee bears to his cestui que
trust, and should therefore act with the utmost good faith." (Hobbs, Wall & Co. v. Moran
(1930) 109 Ca1.App. 316, 319; Nussbaum v. Weeks (1989) 214 Ca1.App.3d 1589, 1597.)
Notably, both of the cited decisions described the fiduciary duty of a city officer as a
duty to act honestly, not a duty to take unilateral action in case of inaction by the
governing body.
In Nussbaum, a case in which the official in question was the city manager, the
court said by way of example, "If a public official violates the trust placed in him by
privately profiting from information known to him in his public capacity, he has
breached the duty he owes to his constituency, and he is therefore guilty of misconduct
that can lead to his removal from office." (Id., at p. 1598.) In Hobbs, Wall & Co., the court
spoke of a municipal officer's fiduciary duty in the context of discussing transactions in
which"an officer of such city is privately interested therein," i.e.,conflict of interest
situations. (Id., at p. 318.)
Neither court said or implied that the fiduciary duty owed by an officer to his or
her constituency could be construed to impose a unilateral duty to act to address
financial concerns not adequately addressed by the governing body. Rather, they
simply found a duty of full disclosure and fair dealing. While this kind of duty would
presumably require an officer to identify and disclose financial issues to the governing
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body, it could not reasonably be construed to further require the officer to take
unilateral remedial action should the governing body itself fail to act.
4. Conclusion
In view of the above, we conclude state law creates no power, and imposes no
duty, on a city manager or director of finance to take independent action to address
financial issues in the case of inaction on the part of the governing body. Rather, there
is at most a duty to identify the issues and the need for action. Accordingly, if any
further duty exists, it must be found under local law,which we now consider.
B. Local Law
1. City Manager
The powers and duties of the City Manager are found in City Charter section
102. Following are the subsections of section 102 that set forth the City Manager's
powers and duties with respect to financial matters. Those provisions state that the
City Manager shall have the authority and duty:
"(e) To prepare and submit the annual budget and to keep the Mayor
and/or the Mayor and Common Council fully advised as to the financial
condition and needs of the City, including the filing of annual and interim
financial reports";
"(f) To submit such reports as the Mayor and/or the Mayor and Common
Council may require concerning the operations of Manager-directed
departments, and to recommend to the Mayor and Common Council the
adoption of measures deemed advisable"; and
"0) To confer regularly with the City Treasurer on financial issues, to
obtain the financial advice of the City Treasurer and to carefully consider that
advice, and to keep the Treasurer informed of all financial matters and to
immediately notify the City Treasurer of any important financial issues or
difficulties that arise."
Notably absent from the enumerated powers and duties is any power or duty to
take unilateral action to address financial issues left unaddressed by the Mayor and
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Council. To the contrary, the City Manager's powers and duties are limited to keeping
the Mayor and Council "advised as to the financial condition and needs of the City"
(subsection (e)); recommending to the Mayor and Council "the adoption of measures
deemed advisable" (subsection (f)); and notifying the Treasurer "of any important
financial issues or difficulties that arise" (subsection (j)). In other words, the City
Manager has a duty to identify problems and recommend action, but no power or duty
to take action himself or herself.
Had there been an intent on the part of the Charter drafters to invest the City
Manager with the unilateral power and duty to take remedial financial action, the
drafters would have authorized the City Manager to implement unilateral revenue-
enhancing measures such as selling assets, imposing or increasing fees or penalties, or
operating a municipal enterprise. Instead, all of those powers are reserved to the
Council. Charter section 40 authorizes the Council to lease and sell property
(subsection (a)); provide penalties for misdemeanors committed within the City
(subsection (b));'fix the rate of business license fees (subsection (d)); levy and collect
taxes (subsection (e)); impose fines, penalties, and forfeitures for violations of
ordinances (subsection (r);contract for supplying the City with water for municipal
purposes (subsection (t)); acquire, own, construct, maintain, and operate street railways,
telephone and telegraph lines, gas, electrical and other works to supply light, power,
and heat to the City; (subsection(u)); and impose and collect an annual dog license fee
(subsection (y)). The City Manager is granted none of these powers.
The situation is the same with respect to cost-cutting measures, the most obvious
being pay reductions or layoffs given the overwhelming percentage of the City budget
attributable to personnel costs. Charter section 102(b) invests the City Manager with the
authority to "exercise immediate supervision over, suspend, and remove, all City
employees of all Manager-directed departments of the City in both the classified and
unclassified service . . . ."
However, subsection (b) goes on to provide that"for the classified service, such
powers shall be pursuant to the Civil Service provisions of this Charter, Civil Service
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rules, regulations and ordinances," and that"the removal of such employees in the
unclassified service is subject to the consent of the Mayor and Common Council . . . ."
That proviso effectively strips the City Manager of unilateral authority to impose
personnel reductions. With respect to unclassified employees, subsection (b) expressly
requires approval of the Mayor and Council. With respect to classified employees,
Charter section 254 provides:
"No employee in the classified service shall be discharged or reduced in
rank or compensation until he/she has been presented with reasons for such
discharge or reduction in rank or compensation specifically stated in writing and
has been given an opportunity to be heard before the Board in his/her own
defense. . . . All charges shall be heard and trials had under such rules as the
Civil Service may prescribe. . . ."
Thus, the City Manager's authority to "remove" classified employees is limited to
initiating proceedings before the Civil Service Board, which then makes the actual
decision. Moreover, such proceedings are provided for only on a case-by case basis.
The Charter makes no provision for the City Manager to institute reductions in force or
other across-the-board measures to reduce personnel costs.
Similarly,Charter section 256.13 authorizes the City Manager to dismiss a
department head "for the good of the service," but only "with the consent of the Mayor
and Common Council." Again, the City Manager can propose action,but cannot
unilaterally take it.
Finally, the City Manager is afforded no unilateral power to reduce employees'
compensation. Charter section 40(s) reserves to the Council the power"to fix the
qualifications, duties and compensations of City employees subject to the civil service
provisions and other provisions of this Charter upon the recommendation of the City
Manager . . . ." The City Manager makes the recommendation but the Council makes
the actual decision.
In summary, the Charter provisions plainly fall short of affording the City
Manager unilateral authority to institute either revenue enhancements or cost-saving
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measures. In all cases, the authority of the City Manager is limited to recommending
such measures. Therefore we find no basis for inferring from local law a power or duty
on the part of the City Manager to take action independently of the Mayor and Council
to address issues of financial concern.
2. Director of Finance
The powers and duties of the Director of Finance are set forth in San Bernardino
Municipal Code section 2.10.030. As relevant here, that section provides that the
Director of Finance shall:
Assure that payment of claims and expenditures "has been legally
authorized and appropriated, and that sufficient unencumbered appropriations
exist for the payment of all claims and expenditures" (subsection A);
Regularly submit to the City Manager and the Mayor and Council "a
statement and report indicating the financial condition of the City" (subsection
D); and
Certify by affidavit the accuracy of the demands against the City "and the
availability of funds for payment thereof" (subsection I).
While these provisions require the Director of Finance to determine and certify
that the City can pay its obligations, they make no provision for any unilateral action by
the Director of Finance to remedy a situation in which it cannot do so. Instead, his or
her powers and duties are limited to disclosing the situation to the Mayor and Council
for their action. We therefore conclude the Director of Finance lacks both the power
and the duty to act independently of the Council in such a situation.
II. FURLOUGHS
The remaining question to be addressed is whether the City Manager has
unilateral authority to institute employee furloughs. What has been said previously
with respect to the power to determine compensation leads us to conclude the City
Manager lacks such unilateral authority.
In Professional Engineers in Cal. Government v. Schwarzenegger(2010) 50 CalAth
989, the California Supreme Court considered whether the state employer had the
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authority to impose unpaid employee furloughs. The court held that the authority to
impose furloughs existed only if the employer had the authority "unilaterally to reduce
state employee salaries or wages as a cost-saving measure." (Id., at p. 1036.) The
power to lay off employees due to a lack of funds was not sufficient to support a power
to impose furloughs:
"It may be suggested that because a state employer possesses authority under
[Government Code] section 19997 to lay off employees due to a lack of funds, it
logically should follow that the state may impose an involuntary unpaid
furlough on state employees on the theory that a furlough is a less drastic step
than a layoff. This suggestion,however, overlooks the circumstance that the
provisions authorizing a layoff for lack of funds specifically prioritize how these
layoffs are to be imposed. Whereas such layoffs impose a very significant burden
on a smaller number of employees with the least seniority, an involuntary
unpaid furlough reduces the earnings of all affected state employees, most of
whom would not suffer any direct economic burden if other employees are laid
off. Because, as discussed above, the principal effect of an involuntary unpaid
furlough on state employees is the reduction in the employees' salaries or
earnings, we conclude that the Governor's or the DPA's authority unilaterally to
institute such a furlough properly must be evaluated by considering whether the
Governor or the DPA possesses the authority unilaterally to reduce state
employee salaries or wages as a cost-saving measure." (Ibid.)
Applying that same analysis here,because the City Manager lacks unilateral
authority to reduce salaries or wages, it follows that he or she lacks authority to
institute unilateral employee furloughs. In addition, even if such authority could be
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implied, it would most likely be negated in the case of represented employees by
memoranda of understanding setting forth the terms and conditions of employment of
those individuals.
Respectfully submitted,
JAMES F. ENMAN, City Attorney
By:
Donn Dimichele
Deputy City Attorney
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