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HomeMy WebLinkAbout11-10-2015 Charter Committee Agenda & Backup City of San Bernardino Volunteer Citizen-Based Charter Committee Agenda Time: 5:00 p.m. Date: Tuesday, November 10, 2015 Place: EDA Board Room 201 N. E Street, San Bernardino, CA 92418 The City of San Bernardino recognizes its obligation to provide equal access to public services to those individuals with disabilities. Please contact the City Clerk's Office (909) 384-5102)one working day prior to the meeting for any requests for reasonable accommodation,to include interpreters. Anyone who wishes to speak on a numbered agenda item will be required to fill out a speaker slip. Speaker slips should be turned in to the City Clerk before the item is taken up by the Committee. The Clerk will relay them to the Committee Chair person. Public comments for agenda items are limited to three minutes per person,a total of 15 minutes per item, comments to be received from the public before discussion of the item by Committee members. ROLL CALL PLEDGE OF ALLEGIANCE CHAIR'S COMMENTS PUBLIC COMMENT(LIMIT 30 MINUTES) ACTION ITEMS(subject to time available with meeting scheduled to end by 7:30pm) 1. Approval of minutes from October 13, 2015 meeting(to be distributed at the meeting) 2. Special Presentations 3. Procedural Matters a. Review Timeline (attached), discuss holiday week meeting dates b. Review and Discuss Input from Public Forums C. Present& Review Preliminary Governmental Skeleton(attached) d. Review Proposed Op-Ed piece for newspapers (Draft attached) 4. Consideration of Water and Wastewater Utility Functions and Boards (Management Partners Memorandum and PMS analysis attached) 5. Reconsideration of Mayor's vote at Council meetings and Related Issues (Materials from Management Partners and PMS attached) 6. Review whether there are other Topics to be dealt with for Skeleton Analysis 7. Compare and Consider General Law vs Charter for San Bernardino (Materials from Management Partners and PMS attached) ADJOURN Unless changed at the November 10th meeting, the next meeting of the Volunteer Citizen-Based Charter Committee will be 5:00 p.m., Tuesday, November 24, 2015, in the EDA Board Room, 201 N. E. Street. Attendees are encouraged to park on the top floor of the City Hall parking structure and access the EDA building from there. 1 Charter Committee Working Timeline— November 10, 2015 The purpose of this Timeline is to document the San Bernardino Charter Committee's progress and capture additional tasks and activities that should be considered by the Committee in the future. I-meeting Date Task or Activity Comments/Status 5/12/15 Developed Input Questionnaire (Survey) Complete 5/26 Receive Input from Survey Agreed to continue to receive input on survey Request Council approval for Complete; professional assistance provided effective 7/7/15 professional input Discuss plan to develop Timeline Draft was available, but was not discussed Discuss plan to deal with Charter topics Draft was available, but was not discussed 6/9 Discuss approach to Charter Review Agreed upon approach, including focusing on Charter skeleton before specific topic details Received and reviewed information on Discussed professional and public input Approve plan for disseminating survey Complete Review working timeline Complete. Timeline will be updated regularly as changes occur Consider form of Government for Preliminary Recommendation: Council—Manager Form of Charter skeleton Government in Charter Skeleton Discuss skeleton City Council structure Preliminary Recommendation: Maintain a Ward System and powers Council representation for Charter skeleton 6/23 Meeting Cancelled 7/7 Discuss professional advisors and scope Complete of work Introduce new participants to Charter Welcomed Committee Member Vicki Lee Committee Complete discussion of skeleton City Preliminary Recommendation:City Council powers should Council structure and powers 1 be limited to legislative and policy making, not administrative and operational Discuss skeleton Mayor provisions Preliminary Recommendation: Mayor should be elected at- large. Powers,voting privileges and impacts on ward system deferred to next meeting 7/14 Continue discussion of skeleton Mayor Preliminary Recommendation: Retain the current number provisions of wards(7) Preliminary Recommendation: Mayor should have no administrative, appointment or removal powers except as otherwise provided in the Charter Deferred consideration of Mayor's voting rights until input is received from the Mayor and Council members Agreed to provide meeting summaries to Mayor and Council following each Committee meeting. Agreed to periodically provide progress reports to the Mayor and Council at their regularly scheduled meetings 2 San Bernardino Charter Committee Timeline Meeting Date Task or Activity Comments/Status Begin discussion of skeleton City Manager Preliminary Recommendation: Majority vote of all provisions members of the Common Council and Mayor required for appointment of City Manager 7/28 Continue discussion of City Manager Discussed. Recommendations deferred until August 11 Charter Skeleton Discussions meeting (to consider results from elected official interviews) Begin discussion of skeleton provisions for Discussion regarding City Attorney begun; City Clerk, City Attorney, City Treasurer recommendations deferred until August 11 8/11 Review common themes from Elected Reviewed Official Interviews Review applicability of Operating Guidelines Discussion continued, but not completed. for Good Governance to Charter Skeleton Preliminary recommendation that the Mayor have the Complete discussion on Mayor, Council, same voting privileges as Common Council members. City Manager interrelationship, roles and Preliminary recommendation that the roles of Mayor authorities as reflected in the Operating Practices for Good Government(OPGG) be incorporated into the Charter skeleton Complete Charter skeleton discussion Presentations by City Treasurer Kennedy and Mayor regarding City Attorney, City Clerk, City Davis Treasurer 8/25 Complete discussion on Mayor, Council, Preliminary recommendations: City Manager interrelationship, roles and • Reduce number of wards from 7 to 6 authorities • Incorporate recommended roles for City Manager, Common Council and Mayor and Common Council (combined)from OPGG into the Charter skeleton Complete Charter skeleton discussion Not discussed regarding City Attorney, City Clerk, City Treasurer Charter Skeleton Discussion on Not discussed Establishment of City Departments, Commissions and Committees; City Officers and Fiscal Management Discuss plans for progress report to Mayor Confirmed scheduling for September 21 M/CC meeting and Council on skeleton 9/8 Meeting Rescheduled to September 15 9/15 Charter skeleton discussion regarding City Preliminary recommendations: Attorney, City Clerk, City Treasurer • Duly qualified City Attorney to be appointed by Mayor and Common Council • Incorporate OPGG language re: City Attorney into the Charter Skeleton • Duly qualified City Clerk to be appointed by Mayor and Common Council • Charter will contain no references to City Treasurer 3 San Bernardino Charter Committee Timeline Page 3 Meeting Date Task or Activity Comments/Status Discuss Charter skeleton Preliminary recommendation: Charter not specifically mention provisions related to City departments except as otherwise provided or delineated departments and their establishment 9/15 Review and Discuss survey Discussed results Finalize plans for progress Discussed report to Mayor and Council on skeleton 9/21 Present Progress Report at Presented Mayor Common Council Meeting 9/22 Discuss input from Mayor and Discussed, no change in skeleton based on input from Mayor and Council from 9/21 Progress Council at this time Report presentation, modify Discussion of whether to reconsider alternatives for ensuring odd skeleton as desired number of voting members—Deferred to next meeting agenda Discuss specific departments Preliminary recommendations: referenced in the charter to • No reference to School Districts in Charter determine whether language • Include reference to Library Board of Trustees,with should be included in charter specific powers and authority to be determined by the City Council Discuss other department or Discussion of whether services to be provided should be included in agency language to include in the Charter— Deferred to next meeting agenda charter Identify other topics to be Not discussed covered by the Charter skeleton, i.e., elections, fiscal matters, code of ethics, etc. 10/13 Discuss reconsideration of Discussed, but deferred to obtain input through public forums alternatives to ensure odd number of voting members Discuss whether to add Discussed. Alternative options to be discussed at 10/27 meeting language on services to be provided without specifying departments Discuss potential Police and Fire Preliminary recommendation: Department skeleton provisions, • No reference to Police or Fire Department in Charter if any Discuss potential civil Not discussed service/personnel system skeleton provisions, if any Review plans and content for Discussed upcoming public forums 10/27 Discuss potential civil service/ Preliminary recommendation: personnel system skeleton • No specific reference to Civil Service Board or Department provisions in the Charter. Instead, include language that the City shall establish a personnel system. 4 San Bernardino Charter Committee Timeline Page 4 Meeting Date Task or Activity Comments/Status Discuss potential Water Not discussed—deferred to November 10 meeting Department skeleton provisions, if any. Finalize plans for public forums Discussed Review potential language Preliminary recommendations: (possibly in a Preamble) • Add "The City shall ensure fundamental services are regarding fundamental services provided to protect and promote the public health,safety to be provided and welfare,"to the Charter Preamble. • Add "The Common Council may establish departments and assign departmental functions in order to meet the needs of the community in the most effective and efficient manner.The Common Council may also establish advisory or independent boards or commissions to provide guidance regarding the provision of City services.Any services, boards or commissions in existence at the time of the adoption of the Charter shall continue unless and until changed by the Council"to the skeleton section for Common Council 11/4 Public Forum,Golden Valley Middle School,6:30 p.m. 11/5 Public Forum:Arroyo Valley High School, 6:30 p.m. 11/9 Public Forum, Indian Springs High School, 6:30 p.m. 11/10 Discuss potential Water Department skeleton provisions Review input received at public forums Reconsider Mayoral voting and options for ensuring odd number of voting members Review and discuss how charter issues would be treated under general law 11/24 Begin work on specific language Thanksgiving Week—confirm meeting 12/8 Continue work on specific language 12/22 Continue work on specific Christmas/Hanukah—confirm meeting language 1/12 Complete work on specific language Discuss public input forum Tentatively schedule progress report for Feb 1 and/or progress report to Mayor and Council 2/1 Present progress report at Mayor/Common Council meeting 5 San Bernardino Charter Committee Timeline Page 5 Meeting Date Task or Activity Comments/Status 2/9 Incorporate comments from Mayor and Common Council into charter details Discuss content and format for Committee's report to Mayor and Common Council TBD Hold second round of public forums 2/23 Review and revise Charter proposal 3/8 Review draft report to Mayor Note: Report contents should contain summaries of each and Common Council; discuss Committee recommendation and rationale (for use during presentation format education and outreach); Management Partners studies (white papers) will be attachments to the report 3/22 Finalize draft report to Mayor and Common Council, presentation format 4/4 Present recommendations to Recommend putting proposed charter to a vote of the citizens Mayor and Common Council 4/18 Present recommendations to Mayor and Common Council (alternative date) Additional Charter topics to consider(in no particular order): Departments, Commissions, Committees,Agencies and Reporting Relationships; Preamble; Municipal Powers/Authority; Elections; Fiscal Administration (i.e.,fiscal year, budget submission,tax limits, public works contracts, claims, audit; Franchises; Code of Ethics; Initiatives, Referendums and Recalls; Severability,Transition and Municipal Code Issues Resulting from Charter Revisions, Charter Amendments; Charter violations 6 Management Partners To: Volunteer Citizen-Based Charter Committee From: Cathy Standiford,Partner Subject: Public Forums Date: November 10, 2015 The Charter Committee is developing recommendations for a new or substantially modified Charter to be brought to the Mayor and Common Council for consideration. Three public forums were scheduled to share information about the charter review effort and gather public input about the Committee's preliminary recommendations regarding the charter skeleton. The forums were held on November 4 (Golden Valley Middle School), November 5 (Arroyo Valley High School) and November 9 (Indian Spring High School). All began at 6:30 p.m. The public forums were publicized using a variety of mediums,including the following. • City Website-Appears on City Calendar, featured on home page with rotating flash image with the opportunity to click directly to the Charter Review page, and featured in the City news area • Nextdoor-Individual forum dates were added to the app calendar that goes out to approximately 4,900 residents • Facebook-A City news item regarding the forums was pushed to Facebook the week of October 26 and was posted with an image the week of November 2 as a reminder • Twitter-A City news item was pushed to the City's Twitter feed the week of October 26 and was posted with an image the week of November 2 • IEMG-Channel 3-The Thursday, November 5 public forum at Arroyo Valley High School will be recorded and featured on Channel 3 • Council meeting mention-The City Clerk announced the public forums during the Bankruptcy/Charter Committee update on November 2 • Emails and texts to NAC presidents and press contacts • Flyers announcing the forum dates and locations were distributed by Committee members at various community events and activities. A report on the outcomes of the public forums, including estimated attendance and input received, will be provided verbally to the Committee on November 10, 2015. 7 SAN BERNARDINO GOVERNMENTAL STRUCTURE PRELIMINARY SKELETON (11110115) Charter Preamble to include the following language: The City-47all ensure fundamental municipal servioesare provided to protect and promote the public health, safety and welfare I. Council - Manager Form of Government 11. City Council 2.1 Based on a 6 Ward System 2.2 The role of the Common Council is legislative in character, which includes the power to set policy, approve contracts and agreements and undertake other obligations consistent with the Charter and Code, while deferring to the discretion of management and staff to choose the appropriate means to achieve the Council's goals. 2.3 The Common Council shall perform its duties and exercise its powers in a manner that serves the best interests of the entire City, rather than any particular geographic area or special interest. 2.4 The Common Council may establish departments and assign departmental functions in order to meet the needs of the community in the most effective and efficient manner. The Common Council may also establish advisory or independent boards or commissions to provide guidance regarding the provision of City services. Any services, boards or commissions in existence at the time of the adoption of this Charter shall continue unless and until changed by the Council. 11I. Mayor 3.1 Elected from Citizens at-large 3.2 To have no administrative, appointment or removal powers except as otherwise provided in Charter 3.3 The Mayor should have a full vote with the Council. 3.4 The Mayor will build consensus with the Common Council to create and implement a shared vision and plan of implementation to restore the City's fiscal integrity. 3.5 The Mayor will establish and maintain partnerships and regional leadership roles to advance the City's interest. 3.6 The Mayor will be the key"face" and chief spokesperson for the City. 3.7 The mayor will be the presiding officer at meetings of the Common Council and will fully participate in discussions. 3.8 The Mayor will not interfere with the discretion of the City Manager in the exercise of his powers and performance of his duties. 8 IV. Mayor and Council Interactions 4.1 The Mayor and Common Council will jointly develop clear expectations of the City Manager and hold him or her accountable by conducting periodic performance evaluations. 4.2 The Mayor and Common Council will develop and implement norms (Code of Conduct)to guide and direct their interactions and duties, including measures to hold one another accountable for deviations from the goals and principles set forth in the City Charter and City Code. 4.3 Neither the Mayor nor the Common Council will interfere with the judgement and discretion of management staff with respect to the duties that are typically managerial in nature, such as the appointment, removal, and supervision of subordinate staff. 4.4 Neither the Mayor nor the Common Council will direct departmental staff, other than those in their own department. V. City Manager 5.1 The City Manager will be the sole authority for managing City operations and appointing and directing City staff, except as otherwise provided in the Charter 5.2 The City Manager will make business and policy recommendations based solely on his or her independent professional judgement and best practices in the interests of the City,rather than political considerations, and to this end shall strictly guard against interference with the performance of his or her duties. 5.3 The City Manager will be accountable for the implementation of Council goals and policy and the overall performance of the City. 5.4 The City Manager will be responsible for ensuring that the Common Council and Mayor are fully informed on all aspects of important emerging issues, and as part of that responsibility will fully brief the Common Council at their Council Meetings on business matters before them. VI. City Treasurer 6.1 The Charter should contain no language about a City Treasurer. VII. City Clerk 7.1 A duly qualified person should be appointed as City Clerk by the Mayor and Council. VIII. City Attorney 8.1 A duly qualified person should be appointed as City Attorney by the Mayor and Council. 8.2 The City Attorney will focus his/her attention and resources on the performance of his/her duty as chief legal officer to rovide legal advice to the Mayor, Council and City Manager, and the management of his/her office, and shall leave the formulation of policy and managerial matters exclusively to those officials charged by the Charter with those duties. 9 IX. Departments & Commissions 9.1 Specific City departments and agencies shall not be designated in the Charter, except as otherwise provided in the Charter. 9.2 Library- Charter should require a Library Board of Trustees with its specific powers and authority to be determined by the Council. 9.3 No specific provisions in Charter about - a. Schools or Education; b. Parks &Recreation;9 C. Fire Dept or services; d. Police Dept or services; 9.9 The City shall establish a personnel system. 9But it should say that the City's Municipal Code will provide for parks &recreation. A NEW CONSTITUTION FOR SAN BERNARDINO'S NEW BEGINNING San Bernardino should soon be recovering from its insolvency and bankruptcy. This will be a new beginning for our community. The causes of San Bernardino's financial troubles are complex, and no one factor can be said to have been their sole cause. External factors such as general financial downturn, Redevelopment Agency funds being withdrawn and major business departures and closures resulted in revenues declining. At the same time our City lea ade financial decisions that did not adequately take into account the decline in revenue as occurring. Our community deserves better. We can't just co mu g things the same way as we have been in the past and expect a better result. Is there a way we take action to increase the probability of having a better local government operation? I believe 9 San Bernardino has an overly complex and convoluted City Charter. e City's Charter is essentially our community's Constitution. No other California city has a ch ything like ours. According to experts, San Bernardino's Charter was a major contributing for to the City's financial problems because it creates a confusing governance structure with unclear roles, responsibilities and authorities. The result? Lack of accountability and organizational dysfunction. The vast majority of similarly sized California cities operate under a council-manager form of government. Under this governance model, the city council is responsible for making major policy, legislative and budget decisions. The mayor is the "leader" of the city but is not its administrator or CEO. Instead, the city manager is responsible for the overall operation of the city and can be held accountable for the city's successes or failures. This is not the case in San Bernarvhere some department heads report to both the Mayor and City Manager, and several t departm d their budgets are not under the manager's direction or control. In running the City there should be clear and unambiguous lines of authority. San Bernardino's Charter has created a situation that is just the opposite. Consequently, it needs to be repealed or replaced. This will not guarantee a prosperous future, but it can set up the framework for a much better run and operated city, with a higher probability of success. San Bernardino's new form of government must be one which meets the needs of our community's residents and businesses; is flexible to meet the changing demands made on city government; sets forth guiding principles, not detailed rules and procedures; enables the City to operate in an efficient, businesslike manner; and is clear and understandable by all. This could be accomplished by either operating under California's general laws or by adopting a new Charter. The San Bernardino Charter Review Committee is working to determine the best government structure to give San Bernardino the best opportunity for a new beginning and a return to being a great city of which we can be proud. We will be presenting our recommendations to the Mayor and Council next year for them to put on the ballot in November of 2016. 11 The Committee is looking at charters of other successful cities as well as "best practice" guidelines and recommendations from professional advisors. Most importantly, we are continually.striving to obtain input from San Bernardino residents and businesses as to what kind of City you want San Bernardino to be and how an improved government structure can help facilitate this. The bankruptcy is evidence our City needs to change. We welcome and encourage thoughts and input to help us help San Bernardino become a successful, stellar,prosperous city once again, uninhibited by its present charter. Phil Savage, Chair San Bernardino Citizens Charter Review Committee R I a� 76 y IN P lad,I� . , FI y7, t F 41� tl L! ,q B�� I 12 Management Partners To: Volunteer Citizen-Based Charter Committee From: Cathy Standiford,Partner Subject: Water and Wastewater Utility Functions and Boards Date: October 27,2015 The Charter Committee is considering elements that should be included in the Charter "skeleton." On September 15 the Committee approved a preliminary recommendation that, "no departments be specifically mentioned in the Charter except as otherwise provided or delineated." In other words, the preference is to avoid mentioning specific departments(or in some cases commissions) in the Charter unless there is a compelling reason to do so. The Committee is reviewing each of the departments,boards and commissions currently referenced in the Charter to determine whether such compelling reasons exist. The Committee is scheduled to discuss possible charter provisions regarding the Water Department at its October 27, 2015 meeting. In anticipation of the Committee's discussions, Management Partners has conducted interviews with some of the potentially affected stakeholders and has researched the practices of 17 comparable peer agencies. We also have examined the practices of independently operated public water and wastewater utilities (i.e.,not operated by a city). The purpose of this memorandum is to summarize the input received and provide additional information Committee members may wish to consider in developing specific recommendations. Background San Bernardino Charter Article XI establishes the Water Department, governed by a five- member Board of Water Commissioners(Water Commission). Members of the Water Commission are appointed by the Mayor and confirmed by the Common Council. Section 163 of the Charter gives the Water Commission the authority to: • Establish and collect all water rates, rentals from water bearing lands, and generally regulate, control, manage, renew,repair and extend San Bernardino's entire water system; • Employ personnel, including the general manager of the department and any other employees required to operate the enterprise; • Regulate,control, manage,renew,repair and extend the City's wastewater treatment (i.e.,sewage disposal)plants, as directed by the Mayor and Common Council; 13 Water and Wastewater Utility Functions and Boards Page 2 • Incur debt or liability so long as it does not exceed the department's annual income and revenue provisions or exceed debt limitations as established by the State of California; • Make rules and regulations regarding the conduct of members of the Water Commission; and • Control and order the expenditure of monies received from the sale or use of water. These Charter pr-ovisions enable the Water Department to operate somewhat independently from the rest of the City organization. Interview Results Stakeholder interviews were conducted with the city manager,Mayor,Water Department general manager,Water Commission President, and a former Mayor who also had prior service on the Water Commission. The purpose of the interviews was to hear various perspectives about the extent to which a new charter should retain any of the existing provisions related to the Water Department. The interviews generated widely varying opinions, which tended to fall into one of two themes: 1. The Charter should contain provisions that allow the Water Department to maintain its operational independence from the rest of the City, or 2. The Water Department should be treated the same as any other department and be accountable to the city manager and Common Council under a council-manager form of government. All of the opinions expressed during the interviews are represented below. The Charter should contain provisions that allow the Water Department to continue operating independently from the City under the governance of the Water Commission. Reasons given for this perspective include the following. • The Water Department is one of San Bernardino's most successfully managed and efficiently operated departments. "If it's not broken, it shouldn't be fixed." • The Water Commissions authority to set water rates and charges allows such decisions to be made based on the needs of the system and the community it serves,without the influences of politics.This also provides political benefit to the Common Council,which can shift blame to the Water Commission when customers are unhappy. There is a "profound" difference in the time and effort required to raise water rates compared to the process for adjusting sewer/wastewater rates,which are under the control of the Common Council. We were told one reason the City's sewer/wastewater system is deficient is the consistent reluctance of the Common Council to raise the fees necessary to ensure adequate maintenance. • The independent ability to set water rates and charges and issue debt allows the Water Department to maintain and improve the water system infrastructure and provide high quality customer service consistent with best practices. This is critical to the City's economic development efforts. The same cannot be said for the maintenance and improvement of San Bernardino's other infrastructure systems. 14 Water and Wastewater Utility Functions and Boards Page 3 • The Water Department has completely separate and far superior internal support systems and personnel. It has separate finance and procurement systems,uses a ® different method of accounting than the City, and has independent information technology and human resources functions and staff. It was necessary to develop these separate systems to comply with highly technical rules and regulations governing water/wastewater operations, as well as the requirements of a consent decree the City was under for remediation of groundwater contamination. Some might consider these systems redundant and therefore inefficient. However, forcing the department to use the City's internal support systems and staff would severely impair its ability to operate efficiently and effectively. The City's internal support departments lack the capacity or expertise to handle the demands of the water/wastewater operation and would likely be overwhelmed. • The independence of the Water Commission and Water Department allows more rapid, nimble response to changing water service delivery needs. For example,the Water Department was able to meet state-mandated water conservation targets quickly by being able to create and deploy its own community outreach and education programs. • The Charter provides better protection than the municipal code or other policy documents against potentially harmful interference by the Mayor, Common Council or city manager. Such protection is important, given the history of San Bernardino's leadership and management. This has protected the Water Department against the negative effects of the City's bankruptcy. • Because it must function as a public utility,the Water Department is unique and substantially different from the other City operating departments. Giving it special protection in the Charter recognizes this difference. • The relative independence of the Water Department has allowed it to recruit and retain quality employees who may otherwise be concerned about working for San Bernardino. It was pointed out that unlike the rest of the City,Water Department employees are not unionized, and operate under labor agreements negotiated and approved by the Water Commission. They also have different benefits provisions than other City employees. • The effective and efficient provision of water services to the community is an important consideration, even if the Water Department's existing governance structure and authority is different from that commonly found in municipal water utilities. The Water Department should receive no special Charter provisions or protection. Instead, the Water Board should be accountable to the Common Council and the general manager should be accountable to the city manager, consistent with the council-manager form of government. In a democratic republic,rate setting, employment and debt issuance powers are more appropriately assigned to an elected body, in this case the Common Council. Reasons given for this perspective include the following. • The Common Council should be able to determine whether the Water Department should be an independent entity and what the powers and authorities of the Water Commission are. The City's municipal code is a more appropriate place for specific reference to the Water Department,Water Commission and their delegated powers. 15 Water and Wastewater Utility Functions and Boards Page 4 • Efficiency should never trump democracy. Those responsible for setting fees and charges paid by the public should be accountable to the public. As an appointed body, the San Bernardino Water Commission is accountable only to itself,even though it has a history of serving the interests of the community well. A public utility, whether operated by a city or as an independent special district, typically places rate setting authority with elected officials who are accountable to the voters. • The general manager is accountable only to the Water Commission because s/he is hired by the Water Commission. This is inconsistent with best practices for municipal water departments, which typically have the general manager or department director reporting to the city manager. San Bernardino is fortunate to have had highly competent,professional management overseeing the Water Department. But what if this were not the case? The current charter provisions preclude the Mayor,the Common Council or the city manager from holding the general manager and other Water Department staff accountable. Like rate setting authority, the authority to hire and remove public employees should be given to someone other than an appointed body. The common practice is for this to be the city manager. • Although the internal support systems of the Water Department may be more effective than the City's, they are redundant with the City's, creating inefficiencies for the public being served. In other words, the public is paying for two finance operations, two information technology operations, etc.,when it would be more efficient to pay for one. Centralized internal support services create greater efficiency through economies of scale and foster data sharing by multiple departments. The charter should not limit San Bernardino's ability to consolidate such systems in the future • Even though the Water Department may operate as a public utility, it is still part of the City organization,not an independent special district. When the Water Department has disagreed with something the City wanted to do(e.g., a cost allocation plan for City administrative services provided to the department),it has used its independent resources to fight City Hall. This illustrates potential problems with accountability. • San Bernardino needs to operate as one team to effectively serve the community. It isn't a true council-manager form of government if certain departments are excluded from being within the City's control. These two divergent perspectives,i.e.,practical efficiency and effectiveness vs. democratic governance and accountability, are difficult to reconcile. However, the practices of comparable peer agencies indicate an emphasis on governance and accountability, followed by efficiency and effectiveness. Comparison with Peer Agencies Management Partners reviewed the charters,municipal codes and websites of 17 peer agencies to gather information on municipally operated water utilities and their governance. A summary of the water service providers for the 17 peer agencies is provided in Table 1. It shows 12 out of 17 peer agencies operate a water utility. The other five communities receive water service through either a private water company, an independent special district, or a county. 16 Water and Wastewater Utility Functions and Boards Page 5 Some peer agencies include water services as part of a larger Public Utilities Department. A table providing the details for each peer agency is provided as an attachment. Table 1. Summary of Peer Agency Water Service Providers City Water Operated Population Water Another 200,000 to 2 2 Modesto and Stockton administer a water utility. Chula Vista is served 299,000 by a joint powers agency led by National City and an independent special district. Irvine is served by the Irvine Ranch Water District,an independent special district. 300,000 to Bakersfield administers a water department.Anaheim, Riverside,and 399,000 Santa Ana have public utilities departments that include water 4 0 provision. 150,000 to Glendale,Santa Rosa,Oceanside, Hayward, Pomona,and Torrance 199,000 administer water functions.A portion of Torrance receives water services from a private water company.Salinas receives water from two private water companies, Lancaster receives water from Los Angeles County, and Palmdale receives water services from an 6 3* independent special district. TOTAL 12 5 Source: Peer agency charters,municipal codes and websites. *Although a portion of the City of Torrance receives water service from a private company,the City has been counted as a City- operated water department for purposes of this analysis. Table 2 provides information on the peer agencies with established water or utilities boards or commissions. Of the 12 agencies providing water/wastewater utility services, eight have a water or public utility board or commission. Table 2. Summary of Peer Agency Water Boards and Commissions Operated City Water Water Population Department* Board Comments 200,000 to 2 1 Stockton has a Water Advisory Group,which is advisory to a City 299,000 Council Water Subcommittee. Modesto does not have a water board. 300,000 to 4 3 Anaheim, Bakersfield,and Riverside water or public utilities boards. 399,000 Santa Ana does not have a water board or commission. 150,000 to 6 4 Glendale,Santa Rosa,Oceanside,and Torrance have water boards. 199,000 Hayward and Pomona do not have water boards. TOTAL 12 8 Source: Peer agency charters,websites and municipal codes *More specific city-operated water department information was previously provided in Table 1 above. Management Partners examined the charters of the 12 agencies having a water utility to determine whether the departments providing the service and/or associated boards or 17 ,0,0> Water and Wastewater Utility Functions and Boards Page 6 commissions are specifically referenced in the charter. Table 3 shows that only two of the cities (Riverside and Glendale)have specific charter provisions regarding a water or public utilities department. Three cities (Anaheim, Riverside and Santa Rosa)have charter provisions for the ■ establishment of a Water or Public Utilities Board. Table 3. Summary of Water Utility and Water Board Charter References Charter- Department Referenced Water Utility Population in Charter Bs. 200,000 to 0 0 Stockton's Water Advisory Group is appointed by the City Council, 299,000 but it is not specifically identified in either the City's charter or municipal code. 300,000 to 1 2 Anaheim's charter establishes a Public Utilities Board (Article IX), 399,000 but does not specifically reference a utilities department. Riverside's charter describes the Public Utilities Department and the Board of Public Utilities(Article XII). Bakersfield's charter discusses general city management of public utilities but does not specifically reference a water department or a water board (Article IX).The Santa Ana charter does not mention public works,water services, or a water board. 150,000 to 1 1 Santa Rosa's charter describes the water board,water utility,and 199,000 the water rate setting process(Section 25 and Section 26), but makes no reference to specific departments. Glendale's charter mentions a Water and Power Department but does not mention a water board(Article XXII).The Hayward, Oceanside,and Torrance charters provide general information about public works but they do not specifically reference a water department, utility or board. Pomona's Charter does not mention public works,water services,or a water board. TOTAL 2 3 Source: Peer agency charters, websites and municipal codes Our research indicates specific references to water or public utilities departments and/or water boards or commissions are more commonly found in a municipal code. Table 4 summarizes how members of the water/public utilities board are appointed in the eight agencies having them. It shows that five boards are appointed by the City Council as a whole. In two cases (Riverside and Bakersfield) the members are appointed by a Mayor or Vice Mayor, subject to confirmation by the City Council. The Torrance Mayor has independent authority to appoint members of that city's water board. 18 Water and Wastewater Utility Functions and Boards Page 7 Table 4. Appointment of City Water Utility Boards Appointment by City Appointment Population Council by Mayor Comments 200,000 to 0 Stockton's Water Advisory Group members are nominated by 299,000 individual Council members but appointed by the whole City Council. 300,000 to 1 2 Anaheim's Public Utilities Board members are appointed by the City 399,000 Council as a whole. Riverside's Board of Public Utilities members are appointed by the Mayor and confirmed by the City Council. Bakersfield's Water Board members are appointed by the Vice Mayor and confirmed by the City Council. 150,000 to 3 1 Glendale and Santa Rosa water board members are appointed by the 199,000 City Council. Oceanside Utilities Commission members are nominated by the mayor, but approved by the City Council.Torrance Water Commission members are appointed by the Mayor. TOTAL 5 3 Source: Peer agency charters, websites and municipal codes Table 5 summarizes the common powers of peer agency water utility boards. It shows that all of the boards are advisory in nature when it comes to rate setting. One board, Stockton's Water Advisory Group, reports to a City Council subcommittee and appears to have no involvement setting rates. None of the water boards or commissions have independent rate setting authority, and none of them have the power to hire or remove their own staff. Table 5. Rate Setting and Staff Appointment Powers of Peer Water Utility Boards Rate Setting Rate Staff Advisory Setting Appointment Population Powers Authority Authority Comments 200,000 to 01 0 0 Stockton's Water Advisory Group(WAG)is advisory 299,000 to a City Council Water Subcommittee. It does not appear to have any role in rate setting. 300,000 to 3 0 02 Anaheim's City Council sets rates with advice from 399,000 the Public Utilities Board. Bakersfield and Riverside water boards establish rates that require approval by City Council. 150,000 to 4 0 0 Glendale,Oceanside,and Torrance water rates are 199,000 established by City Council.Santa Rosa City Council establishes rates, but the Water Board may establish other fees and charges associated with operations. TOTAL 7 0 0 Source:Peer agency websites,charters and municipal codes 'Stockton's Water Advisory Group is focused on"current and future issues impacting water,wastewater and storm water utilities"and reviews the Department of Municipal Utilities'monthly operations and maintenance report. Advisory powers related to rate setting appear to be delegated to the City Council Water Subcommittee. 2Riverside's Public Utilities director is appointed by the city manager,subject to approval by the Public Utilities Board. 19 Water and Wastewater Utility Functions and Boards Page 8 Conclusion The following conclusions can be made from the interviews and peer agency research. • There are two divergent points of view regarding the San Bernardino Water Department. One is that the Charter references the Water Department to protect its independence and existing powers. The other is that the department should not receive special Charter protections. There are compelling rationales for both. • Most peer agencies make no reference to a water department or water board or commission in their charter. 0 Of the agencies that have water boards,none have independent rate setting authority. Instead,rates are established by an elected governing body that is accountable to the public. In fact, Management Partners could not find a single public water/wastewater utility in California that does not vest rate setting authority in an elected body. • None of the peer agency water boards or commissions have the independent ability to retain or remove department staff. The executive responsible for water/wastewater operations (i.e., director or general manager) is appointed by and reports to a city manager. 20 Water and Wastewater Utility Functions and Boards Page 9 Attachment—Water Utility Provisions by Peer Agency Table 6 contains more specific information about water utility boards and systems for each of the 17 peer agencies. Table 6. Summary of Peer Water Utility Provisions—Charter and Municipal Code Water Utility System Water Described in Utility Peer Agency Charter Board Comments 200,000 to 399,000 Chula Vista No No Chula Vista does not administer a water utility.There are two water agencies operating in Chula Vista.The first is The Sweetwater Authority which is a JPA that operates out of the City of National City.Sweetwater Authority has a seven- member water utility board. Five board members are publicly elected by the citizens of each of five voting districts.The Mayor of National City also appoints two board members.The second water service provider is Otay Water District,a private water company. Irvine No No ; Irvine does not administer water utilities.The Irvine Ranch jWater District is the water service provider. Irvine Ranch Water District has a five-member Board of Directors that are publicly elected by the residents in the water district. Elections are general and not based on districts. Modesto No No Modesto does not have a water board.Title 11,Chapter 1, section 1.01 of the municipal code authorizes the management, control and care of the municipal water system of the City to be vested in the Public Works director under the general direction of the city manager. Stockton No Yes Stockton has a water advisory group that made up of seven members.One member is appointed by each Council member and the Mayor. 300,000 to 399,000 m Anaheim No Yes Anaheim's Charter establishes a Public Utilities Board (Section 909).The Public Utilities Board has seven members. Board members are appointed by City Council. Bakersfield No Yes Bakersfield's Charter discusses city management of public utilities but does not specifically reference a water utility or a water board (Article IX). Bakersfield's Vice Mayor appoints board members who are confirmed by City Council. Riverside Yes Yes _{ Article XI of the Riverside charter describes the Department of Public Utilities and the Board of Public Utilities. Board of Public Utilities members are appointed by City Council and the Mayor. Each of the nine members represent one of the nine wards in the city. 21 � Water and Wastewater Utility Functions and Boards Page 10 Water Utility System Water Described in Utility Peer Agency Charter Board Comments Santa Ana No No Santa Ana administers its water utility but does not have a water board. 150,000 to 199,000 Glendale Yes Yes Article XXII of Glendale's Charter provides a general definition of the Glendale Water and Power Department. Glendale Water and Power Commission has eight members who are appointed by the City Council. Hayward No No Hayward administers its water utility but does not have a water board. Lancaster No No Lancaster does not administer its water utilities. Los Angeles County Water District No.40 provides water services to Lancaster.This water district is governed by the County Board of Supervisors. Oceanside No Yes Oceanside Utilities Commission has nine members who are nominated by the Mayor and approved by City Council. Palmdale No No Palmdale does not administer water utilities. Palmdale Water District provides water services to Palmdale.The Palmdale Water District is governed by a water board made up of five members who are publicly elected by districts. Pomona No No Pomona administers its water utility but does not have a water board. Salinas No No Salinas does not administer a water utility.Water services are provided by two private water companies. Santa Rosa Yes Yes Section 25 of Santa Rosa's Charter details the Board of Public Utilities. Board is appointed by City Council and has the authority to establish other fees and charges associated with water operations. However,the City Council has authority to set water rates. Torrance No Yes Torrance administers a water utility but part of the city is serviced by a private water.The Torrance water utility has a Water Commission made up of seven members appointed by the Mayor. Total 2 8 Source: Peer agency websites,charters and municipal codes 22 PMS ANALYSIS of SKELETON WATER DEPARTMENT Descriptions of Skeleton Issues Related to this Topic: A. Should there be anything in the Charter concerning a Water Department? B. Should it have a Board responsible for its operations separate from the Council &/or Manager? C. If so, should it's Board be - a. appointed by the Mayor and Council? b. appointed by the Manager? C. appointed by the Manager subject to Council approval? d. publically elected? 1. Input Received from the Public -NA 2. National Civic League Model City Charter & Guide - A. Recommends not requiring any Departments or Agencies in the Charter. [4.01] B. Recommends all be selected, supervised, and fired just by Manager [4.03] 3. Other Similarly sized California cities (SB is about 214,000) - Of the 17 similarly sized California cities S have provisions in their charters concerning water services and/or public utilities which include water and/or sewer services, only Santa Rosa's being anything similar to San Bernardino's. They are as follows: a. Anaheim's charter establishes an advisory Public Utilities Board to make recommendations concerning water[9091; appointed by the Council[902]. b. Riverside's charter requires a Public Utilities department under the management and control of the Manager, subject to the powers of its Board, and that it be responsible for water supplied. [1200] Board is appointed by Mayor and Council [802]. C. Bakersfield's charter creates a Water Board appointed by the vice-Mayor subject to confirmation by the Council [2.18.010], which Board is essentially advisory [2.18.012] and also provides that such public utilities as are in the best interest of the people shall be owned & operated by the City [108] and that the provision of water may be franchised out [116]. d. Glendale's charter creates Glendale Water and Power [X.1] which is in charge of construction, maintenance and operation of all public utilities [X.5]; apparently a Water Board or Commission can be created by Council [XIV.I]. e. Santa Rosa's charter establishes a Board of Public Utilities appointed by Council [25(a)] which shall have authority and direction over the City's water and sewer utilities [25(b)]. Council sets water and sewer rates [26(a)]. The Mayor appoints the chairperson of this Board [15(d)]. 6. Other Issues Relevant to the Topic - Water service revenues are restricted by State law to be used for water services, so the Water Department has an independent source of revenue from the City's general fund. San Bernardino's Water Department has been one of the most financially sound department of the City under it's present structure. However, there are issues with coordinating its operations with those of the City generally and its sewer operations. 7. San Bernardino's Current Charter (B)Article IX is titled "Water Department". A Board of Water Commissioners is required [160]. This Board establishes all water rates [163.1]. (C)Appointed by Mayor, subject to council approval, and supervised by Mayor [52]; Manager is not responsible for this Department [100]. 8. Charter vs Code Filter a. It seems not essential or constitutional that the Water Department be required in Charter. 23 9. General Law a. General Law(A) required no Departments, and does not provides for a Water Department, but allows Council to establish such departments as may be appropriate. b. More than 2/3 of California's Cities are General Law. 10. My Preliminary Thoughts: (A) Probably the Charter should address some issues concerning Water. (B) I like the independence of a Board running the Water Dept, so as to be less affected by political issues. However, it is most difficult with such structure to coordinate water and sewer services and to determine appropriate charges by the City for administrative services for the Water Dept. I need more information from both the Water Dept. and the City administration on this issue. (C) If there a Water Dept is dealt with in the Charter, probably its Board should be appointed by the Mayor and Council, but I feel that it's administration should be under the responsibilities of the Manager. Having it under the Manager's responsibilities should better facilitate coordination of water and sewer services as well as dealing with appropriate allocation of City administrative expenses to it. 24 Management Partners To: Volunteer Citizen-Based Charter Committee From: Cathy Standiford, Partner Subject: Alternatives and Implications for Mayoral Voting Authority Date: November 10, 2015 The Charter Committee is considering whether the Charter "skeleton" should recommend expansion of voting privileges for the Mayor. This memorandum provides information about alternatives and their implications the Committee may wish to consider in developing a specific recommendation. It also includes additional information summarized from other white papers and research studies related to this topic previously provided to the Committee. Background The existing City Charter vests all legislative power in the Common Council. The Mayor's voting privileges are limited to breaking ties between Council members present. A review of the charters of comparable cities indicates the more common practice is for the Mayor to have the same legislative powers as City Council members, as shown in Table 1 below. Table 1. Summary of Mayoral Voting Rights in Comparable Cities Full Tie Voting Breaking Population Range Rights Only Comments 200,000 to 299,000 4 0 Comparable population to San Bernardino 300,000 to 399,000 Anaheim and Santa Ana mayors have same voting rights as a 2 2 Council member; Riverside and Bakersfield mayors do not 150,000 to 199,000 9 0 Mayor has same voting rights as a Council member TOTAL 15 1 2 Source: Charter Committee Chair Analysis;Charters of comparable cities Alternatives and Implications The two primary options are to retain the current mayoral voting limitations or to expand these privileges to match the legislative powers of the Common Council. Tables 2 and 3 summarize the opportunities and challenges associated with each of these alternatives. 25 Page 2 Table 2. Alternative A:No Change Opportunities Maintains current practice, may be easier for the voters Inconsistent with the practices of comparable cities,as to accept well as other council-manager forms of government Does not require a change in the number of wards Not recommended by the National Civic League Model Charter Limits the ability of the Mayor to represent the people in matters of policy and legislation,even though directly elected. These matters include adoption of ordinances and resolutions,adoption of the annual budget, approval of fees and taxes, etc. Results in the role of Mayor being largely ceremonial, particularly if other existing powers(appointments) change as a result of adopting the council-manager form of government Table 3. Alternative B:Expand Mayoral Voting Authority to Match City Council Opportunities Is consistent with practices of comparable cities as well Requires a change in the number of wards and/or as other council-manager forms of government Council members to an even number(6 or 8)to avoid legislative ties. (Note:One possibility is to keep the number of wards the same and add a Council member elected at large.) Gives the Mayor equal authority as Council members to Reducing the number of wards may be perceived as represent the people in all matters of legislation and reducing the people's representation. Increasing the policy-making. Citizens expect the Mayor to represent number of wards and/or Council members results in a their interests. larger legislative body,which may increase costs and is inconsistent with the size of most councils in council- manager cities. Recommended by the National Civic League Model May warrant a review of Mayoral veto powers(veto Charter powers may not be as necessary if the Mayor has an equal vote). Providing broader voting rights may make it more acceptable to reassign other Mayoral powers to the Council as a whole,city manager or other appointed officials Improves accountability by ensuring Mayor is able to participate in legislative and policy-making decisions Additional Information The following information is summarized from other research studies previously provided to the Committee. 26 Page 3 • During interviews with the City's elected officials, the majority indicated the number of wards should be reduced. This was a common theme expressed by those who indicated the Mayor should have voting privileges,but was echoed by others as well. • The number of times a Mayoral vote has been needed to break a tie is small. In the last 16 years (i.e., since 2000), the Mayor has used his tie-breaking privilege only 14 times. • The estimated cost to modify the number of wards ranges between$150,000 and $175,000,not including staff time. These costs include the services of a professional demographer to analyze census data and develop alternatives for ward configurations that comply with applicable federal and state laws, a communications and outreach Iconsultant, and interpretation and translation services. 27 PMS Analysis of Alternatives re Mayoral Voting Rights on City Council 10/20/15 I. Mayor having full Voting Rights on Council vs Just Tie Breaking Vote A. More effective leadership of City and of Council than only tie breaking vote B. Elimination of Mayor's veto power C. Elimination of Council's power to override decisions of Mayor ® D. Possible more effective representation of City on regional boards E. City's historic ability of Mayor(1) effectively leading City and Council and (2) having effective representation of City on regional boards without having a full vote on the Council F. Committee preliminary consensus on A-D above II. Selection of Mayor from Amongst Council Members A. Most cities of similar size to SB have this system B. Importance of having Mayor elected citywide? C. May diminish Mayor's leadership of City and Council D. May diminish Mayor's effective representation of City on regional boards E. Committee's preliminary rejection of this approach III. Even number of voters for Council decisions if Mayor has additional vote with no other changes A. Possible difficulty of conducting routine business of City B. No known other local governmental entity has such a system C. Committee's preliminary rejection of this approach IV. Reducing Council Size to 6 A. Eliminates problem with equal number of voters on Council B. Consistent with majority consensus of polled members of City Council. C. Requires redistricting process for elimination of one Ward D. Increases cost of election campaigns for each council election E. Increases number of citizens representation by each Councilperson by about 2% D. Committee preliminary decision approved this approach V. Increasing Council Size to 8 A. Additional Councilperson elected at large 1. Eliminates problem with equal number of voters on Council 2. Increases "at-large"representation on Council 3. No requirement of any redistricting process 4. Concern about such position becoming a"vice-mayor" and possible conflicts 5. More expensive election process for this position on council 6. Increasing size of Council contrary to Council's majority consensus to reduce its size. 7. Committee's preliminary rejection of this approach B. Additional Councilperson from an additional Ward 1. Eliminates problem with equal number of voters on Council 2. Requires redistricting process for addition of one Ward 3. Slightly reduced cost of election campaigns for each council election 4. Reduce number of citizens represented by each Councilperson by about 2% 5. Committee's preliminary rejection of this approach V. Input from Public at Forums 28 My preferences: First Choice - (I) - Most likely to receive most voter approval and continues likely to maintain benefits of strong mayoral leadership. No requirement of changing Wards. Second Choice - (VA) - Increases at-large representation on Council, while no real concern about increased conflict because the 2nd "at-large" councilperson has no more powers than any other council-person, while Mayor is given additional powers (presiding over Council etc.) Third Choice - (IV) - Reduces size of Council for more efficiency. I strongly disagree with all other approaches for the following reasons: (II) Significantly reduces leadership of Mayor and effective representation on regional boards. (III) Increased difficulty in conducting routine business with higher probability of tie votes. (VB) Larger Council more cumbersome and less efficient & requires change in Wards. 29 Management 00 Partners To: Volunteer Citizen-Based Charter Committee From: Cathy Standiford, Partner Subject: General Law City vs. Charter City Characteristics and Authorities in California Date: November 10, 2015 The Charter Committee is developing recommendations for a new or substantially modified Charter to be brought to the Mayor and Common Council for consideration. The need for a new or substantially modified Charter has been identified as critical to the success of the City's Bankruptcy Recovery Plan. Although discussions have continued to focus on core elements of a new Charter (the "skeleton'), Committee members are also interested in the possibility for San Bernardino to become a general law city. The purpose of this memorandum is to provide information on the similarities and differences between general law and charter cities to help Committee members understand what might be gained (or lost)by such a change. Information on the inclusion of general law provisions in peer agency charters also is provided. Background The California State Constitution gives cities the power to become charter cities (Article XI, § 3(a)). This allows cities to adopt a charter and ordinances that replace state laws in areas related to "municipal affairs," subject to the limitations within the charter. At all times, the City, whether a charter or general law city, is subject to the United States Constitution, federal laws, the California Constitution, and state laws regarding matters of statewide concern. The primary difference between a charter city and a general law city is who gets to make decisions regarding "municipal affairs," i.e., the State Legislature or the City Council. The California Constitution does not specifically define "municipal affairs," but does identify four "core" categories that are,by definition, municipal affairs. These are (1) regulation of the "city police force," (2) "sub-government in all or part of a city," (3) conduct of city elections, and (4) the manner by which municipal officers are elected. Other than these categories, it has been left to the courts to determine what is or is not a municipal affair. There are some areas courts have consistently determined to be municipal affairs. These include: • Municipal election matters • Land use and zoning decisions (with some exceptions) 30 Characteristics of General Law and Charter Cities Page 2 • How a city spends its tax dollars • Municipal contracts, provided the charter or a city ordinance exempts the city from the Public Contract Code, and the subject matter of the bid constitutes a municipal affair. Consequently, a charter may exempt a city from the state's competitive bidding statutes.' Courts have also consistently classified traffic and vehicle regulation, tort claims against a government entity, and regulation of school systems as matters of statewide concern.2 A charter city is not required to exercise local control over all municipal affairs or set out every municipal affair the city would like to govern. In fact, some city charters include provisions that the city will function as a general law city,except for a few areas specified in the charter. Characteristics of General Law and Charter Cities The following table summarizes characteristics of municipal governments and how they apply under general law and charter city models in the State of California. Table 1. Characteristics of General Law and Charter Cities3 Characteristic General Law City Charter City Ability to Govern Bound by the state's general law, regardless of Has supreme authority over"municipal Municipal Affairs whether the subject concerns a municipal affair affairs" Cal.Constitution(CC)Article Xl,§5(b) Form of Described by state law. For example,the Charter can provide for any form of Government California Government Code(CGC) §36501 government, including the"strong mayor" authorizes general law cities to be governed by a and "city manager"forms. See CC Article Xl, city council of five members, a city clerk,a city §5(b);CGC§34450 et seq. treasurer,a police chief,a fire chief and any subordinate officers or employees as required by law. City electors may adopt an ordinance providing for a different number of council members(CGC§ 34871).The CGC also authorizes the "city manager"form of government(§34851) Elections, Municipal elections conducted in accordance with Not bound by the California Elections Code. Generally the California Elections Code(CEC) (CEC§ 10101 May establish own election dates, rules and et seq.) procedures.See CC Article Xl, §5(b);CEC§ 10101 et seq. 'League of California Cities,"Charter Cities:A Quick Summary for the Press and Researchers," (undated). www.cacities.org 2 lbid. s City of El Cerrito City Council Presentation,October 3,2011;California League of Cities Website 31 Characteristics of General Law and Charter Cities Page 3 Characteristic General Law City Charter City Methods of Generally holds at-large elections whereby voters May establish procedures for selecting Elections vote for any candidate on the ballot. Cities may officers(i.e., Mayor,City Council and other also choose to elect the city council "by"or officers to be elected). May hold at-large or "from"districts,so long as the election system has district elections(CC Article XI, §5(b) been established by ordinance and approved by the voters(GCG §34871). Mayor may be elected by the city council or by vote of the people(CGC§ 34902) City Council Minimum qualifications are: Can establish own criteria for city office Member 1. United States citizen provided it does not violate the U.S. Qualifications 2. At least 18 years old Constitution.CC Article XI,§5(b),82 Cal.Op. � 3. Registered voter Attorney General 6,8(1999) 4. Resident of the city at least 15 days prior to the election and throughout his or her term 5. If elected by or from a district,must be a resident of the geographical area comprising the district from which he or she is elected CEC§321;CGC§§34882,36502;87 Cal.Op. Attorney General 30(2004) Public Funds for No public officer shall expend and no candidate Public financing of election campaigns is Candidate in shall accept public money for the purpose of lawful.Johnson v. Bradley,4 Cal.4 1 389 Municipal seeking elected office.CGC§85300 (1992) ' Elections Term Limits May provide for term limits.CGC§36502(b) May provide for term limits.CC Article XI,§ 5(b); CGC§36502 (b) Vacancies and An office becomes vacant in several instances May establish criteria for vacating and Termination of including death, resignation, removal for failure to terminating city officers so long as it does not Office perform official duties,electorate irregularities, violate the state and federal constitutions. absence from meetings without permission,and CC Article XI, §5(b) upon non-residency.CGC§§ 1770, 36502, 36513 Council Member Salary ceiling is set by city population and salary May establish council members'salaries. See Compensation increases are set aside by state law except for CC Article XI, §5(b). and Expense compensation established by city electors. See Reimbursement CGC§36516. If a city provides any type of compensation or payment of expenses to council members, If a city provides any type of compensation or then all council members are required to payment of expenses to council members,then all have two hours of ethics training. CGC§§ council members are required to have two hours 53234—53235 of ethics training. See CGC§§53234—53235 32 Characteristics of General Law and Charter Cities Page 4 Characteristic General Law City Charter City Legislative Ordinances may not be passed within five days of May establish procedures for enacting local Authority introduction unless they are urgency ordinances. ordinances. Brougher v. Board of Public CGC§36394 Works,2015 Cal 426(1928) Ordinances may only be passed at a regular meeting, and must be read in full at time of introduction and passage except when, after reading the title,further reading is waived. CGC§ 36934 Resolutions May establish rules regarding the procedures for May establish procedures for adopting, adopting,amending or repealing resolutions amending or repealing resolutions. Brougher v. Board of Public Works,2015 Cal 426(1928) Quorum and A majority of the city council constitutes a May establish own procedures and quorum Voting quorum for transaction of business. CGC§36810 requirements. However,certain legislation Requirements requiring supermajority votes is applicable to All ordinances, resolutions and orders for the charter cities. For example,see California payment of money require a recorded majority Code of Civil Procedure§ 1245.240 requiring vote of the total membership of the city council. a vote of two-thirds of all the members of the CGC§36936. governing body unless a greater vote is required by charter. Specific legislation requires supermajority votes for certain actions. Rules Governing Ralph Brown Act is applicable.CGC§§54951, Ralph Brown Act is applicable.CGC§§54951, Procedure and 54953(a) 54953(a) Decorum Conflict of interest laws are applicable. CGC§ Conflict of interest laws are applicable.CGC§ 87300 et seq. 87300 et seq. May have provisions related to ethics, conflicts, campaign financing and incompatibility of office. Personnel May establish standards, requirements and May establish standards, requirements and Matters procedures for hiring personnel consistent with procedures, including compensation,terms Government Code requirements. and conditions of employment for personnel. CC Article XI §5(b) May have "civil service"system,which includes comprehensive procedures for recruitment, Meyers-Milias-Brown Act applies. CGC§3500 hiring,testing and promotion.CGC§45000 et seq. Cannot require employees to be residents of Meyers-Milias-Brown Act applies. CGC§3500. the city, but can require them to reside within a reasonable and specific distance of their Cannot require employees to be residents of the place of employment.CC Article XI,§ 10(b) city, but can require them to reside within a reasonable and specific distance of their place of employment.CC Article XI, § 10(b) 33 Characteristics of General Law and Charter Cities Page 5 Characteristic General Law City Charter City Contracting Authority to enter into contracts to carry out Full authority to contract consistent with Services necessary functions, including those expressly charter. granted and those implied by necessity.CGC§ 37103; Carruth v. City of Madera, 233 Cal.App.2d May transfer some of its functions to the 688(1965) county including tax collection,assessment collection and sale of property for the nonpayment of taxes and assessments.CGC §§51330,51334,51335 Public Contracts Competitive bidding required for public works Not required to comply with bidding statutes contracts over$5,000. California Public Contracts provided the city charter or a city ordinance Code(CPCC) §20162. Such contracts must be exempts the city from such statutes,and the awarded to the lowest responsible bidder.CPCC§ subject matter of the bid constitutes a 20162. If city elects to subject itself to uniform municipal affair. CPCC§ 1100.7;see R&A construction accounting procedures, less formal Vending Services, Inc. v. City of Los Angeles, procedures may be available for contracts less 172 Cal.App.3d 1188 (1985);Howard than$100,000.CPCC§§2200,22032 Contracting, Inc. v. G.A. MacDonald Construction Company, 71 Cal.App.4 1 38 Contracts for professional services such as private (1998) architectural, landscape architectural, engineering,environmental, land surveying,or Note: This exemption from competitive ' construction management firms need not be bidding statutes appears to be a primary competitively bid, but must be awarded on basis reason for becoming a charter city. of demonstrated competence and professional qualifications necessary for the satisfactory performance of services. CGC§4526 Payment of In general, prevailing wages must be paid on Historically,charter cities have not been Prevailing Wages public works projects over$1,000.California bound by state law prevailing wage Labor Code(CLC) § 1771. Higher thresholds apply requirements so long as the project is a ($15,000 or$25,000)if the public entity has municipal affair,and not one funded by state adopted a special labor compliance program. CLC or federal grants. Vial v. City of San Diego, § 1771.5 (a-c) 122 Cal.App.3d 346,348(1981). However,there is a growing trend on the part of the courts and the legislature to expand the applicability of prevailing wages to charter cities based on an argument that the payment of prevailing wages is a matter of statewide concern. The California Supreme Court declined an opportunity to resolve the issue. See City of Long Beach v. Dept. of Industrial Relations,34 Cal 4`h 942(2004). 34 Characteristics of General Law and Charter Cities Page 6 Characteristic General Law City Charter City Finance and May impose the same kinds of taxes and Have the power to tax. Taxing Power assessments as charter cities. CGC§37100.5 Have broader assessment powers than a Imposition of taxes and assessments subject to general law city,as well as taxation power as Proposition 218. CC Article XIIIC determined on a case-by-case basis. Examples of common forms used in assessment Imposition of taxes and assessments subject district financing include Improvement Act of to Proposition 218, CC Article XIIIC, §2,and 1911, Municipal Improvement Act of 1913, own charter limitations. Improvement Bond Act of 1815, Landscaping and Lighting Act of 1972, and Benefit Assessment Act May proceed under a general assessment of 1982. law, or enact local assessment laws and then elect to proceed under the local law. See May impose business license taxes for regulatory J.W.Jones Companies v. City of San Diego, purposes, revenue purposes or both. CGC§37101 157 Cal.App.3d 745(1984) May not impose real property transfer tax. CC May impose business license taxes for any Article XIIIA, §4 purpose unless limited by state or federal constitutions or city charter. CC Article XI, §5 May impose documentary transfer taxes under certain circumstances California Revenue and Tax May impose real property transfer tax;does Code§ 11911(a), (c) not violate either CC Article XIIIA or CGC§ 53725. See Cohn v. City of Oakland,223 Cal. App. 3 d 261(1990);Fielder v. City of Los Angeles, 14 Cal.App.4th 137(1993) Streets and State has preempted the entire field of traffic State has preempted the entire field of traffic Sidewalks control.California Vehicle Code§21 control California Vehicle Code§21 Penalties and May impose fines, penalties and forfeitures,with May enact ordinances providing for various Cost Recovery a fine not exceeding$1,000. CGC§36901 penalties so long as such penalties do not exceed any maximum limits set by the charter. County of Los Angeles v. City of Los Angeles, 219 Cal.App 2d 838,844(1963) Public Utilities May establish, purchase,and operate public May establish, purchase,and operate public and Franchises works to furnish its inhabitants with electric works to furnish its inhabitants with electric power. CC Article XI §9(a);CGC§39732; power. See CC Article XI,§9(a); California California Public Utilities Code(CPUC) § 10002 Apartment Association v. City of Stockton,80 Cal.App.4th 699(2000). May grant franchises to persons or corporations seeking to furnish light,water, power, heat, May establish conditions and regulations on transportation or communication services in the the granting of franchises to use city streets city to allow use of city streets for such purposes. to persons or corporations seeking to furnish The grant of franchises can be done through a light,water, power, heat,transportation or bidding process, under the Broughton Act,CPUC communication services in the city. §§6001-6092, or without a bidding process under the Franchise Act of 1937, CPUC§§6201-6302 Franchise Act of 1937 is not applicable if the charter provides.CPUC§6205 Zoning Zoning ordinances must be consistent with the Zoning ordinances are not required to be adopted General Plan.CGC§65860 consistent with the general plan unless the city has adopted a consistency requirement by ordinance. CGC§65803 35 Characteristics of General Law and Charter Cities Page 7 Additional Information Management Partners reviewed 17 peer agency charters to determine whether specific reference is made to provisions applicable to general law cities. Table 2 provides a summary of the results and shows 13 out of 17 make at least one reference to following State law as applicable to general law cities in the charter itself. Four of the agency charters have language indicating the city will follow the laws of the State of California applicable to general law cities unless the charter specifies otherwise. Table 2. Provisions Applicable to General Law Cities Referenced in Peer Agency Charters Provision Number Comments No reference to provisions for general law cities in charter 4 Bakersfield,Chula Vista', Riverside,Stockton Compensation for council members follows that for general law 4 Anaheim, Irvine,Glendale, cities Santa Rosa Election procedures follow those established for general law cities 4 Salinas2,Torrance, Modesto, Santa Ana Bidding procedures for public works projects follows that for general law cities 2 Salinas, Modesto Fines and penalties for charter or code violations as established by State law for general law cities 1 Glendale Ordinance publication and posting requirements follow those established for general law cities 1 Santa Rosa City powers are those as established for general law cities unless Hayward, Palmdale, Lancaster, otherwise specified by charter 4 Oceanside Ch , Vista's municipal code states the City follows procedures for holding elections as applicable to general law cities. 2Salinas's charter makes similar reference to procedures for initiatives, referendums and recalls. Many of the special provisions available to charter cities have been adopted and incorporated into San Bernardino's Charter. Abandoning the charter and converting to a general law city would have a variety of implications, including but not limited to the following. • San Bernardino would be bound by the State's general law, and lose its "supreme authority" over "municipal affairs." • The City could no longer establish its own election dates, rules and procedures. • Compensation for Council members would be limited to that allowed by State law. (Note: Currently City Council member compensation is below the State salary cap, while the Mayor's compensation exceeds the salary cap.) • San Bernardino would have to follow State procedures for enacting local ordinances. • The City would lose some of its contracting authority and ability to establish its own bidding statutes for public contracts. • The City would lose the authority to impose a real property transfer tax. • San Bernardino would not be able to establish higher fines, penalties and forfeitures than those allowed by State law(currently set at$1,000). 36 --40> `0 o .� U M o U U ,� on s�, a 71 Cl c Cd bA O CS O O O O p O z ct N N s0. N O N sp. O 00 U,I- Ln U .. w o o ° o o °0 1'' U o b 00 C, 00 cz a � a rn W sue. o cz v u cc 4" V tb v o k rs U 0 �. v� � N � cn � ,n s"" O .� � •� .� a � 0 o O v cqj O tD th 1 Cd G r. 3 0 O U ' cd ..� O U � U U U � � O sm. 9 Cdd O O tb O O � � o H a > m a � o o U S = U f1: V] N U O r Management Partners To: Volunteer Citizen-Based Charter Committee From: Cathy Standiford, Partner Subject: Public Forum-Summary Results Date: November 10, 2015 The Charter Committee is developing recommendations for a new or substantially modified Charter to be brought to the Mayor and Common Council for consideration. Three public forums were held to share information about the charter review effort and gather public input on the Committee's preliminary recommendations. The purpose of this memorandum is to transmit the common themes and ideas expressed during the public forums. Forum Attendance and Format The public forums were held on November 4(Golden Valley Middle School), November 5 (Arroyo Valley High School) and November 9 (Indian Spring High School). Each forum began at 6:30 p.m. and ended by 8:00 p.m. The forums attracted a combined attendance of approximately 85 people, not including members of the Charter Committee or City staff. The number of participants ranged from 25 to 30 each. Each forum followed the same basic agenda as follows. • Welcome by a member of the Charter Committee • Review of the agenda • Overview of the role and responsibilities of the Charter Committee, what a charter is, why it is important, and why San Bernardino's charter is under review • Review of the Committee's preliminary recommendations for a proposed governance structure (the charter "skeleton") • Large group discussion and comments about whether the Mayor should be allowed to vote • Small group breakouts to allow time for additional discussion on the question of Mayoral voting as well as the following topics • How to avoid tie votes if the Mayor is allowed to have a vote • Whether the City Attorney, City Clerk and City Treasurer should be elected or appointed • Review of next steps and how to stay involved and informed 1730 MADISON ROAD • CINCINNATI,OH 45206 • 513 8615400 • FAx 513 8613480 MANAGEMENTPARTNERS.COM 2107 NORTH FIRST STREET,SUITE 470 • SAN JOSE,CALIFORNIA 95131 • 408 437 5400 • FAx 408 453 6191 3152 RED HILL AVENUE,SUITE 210 • COSTA MESA,CALIFORNIA 92626 • 949 2221082 • Fax 408 453 6191 Public Forum-Summary Results Page 2 Common Themes Results of the large group question and small group breakouts were captured by recorders. The following is a summary of the common themes aggregated for the three public forums. The Mayor should be allowed to vote. There was overwhelming support for allowing the Mayor to vote on matters coming before the Common Council. This consensus was expressed during the large group discussion and was reinforced again during the breakout sessions. Comments expressed about allowing the Mayor to vote included the following: • Because the Mayor is elected by the community as a whole, the Mayor should have a voice in representing the interests of the entire community. • The Mayor has the most knowledge and is most informed about the City as a whole. ' • Whether or not the Mayor should be allowed to vote depends on the roles and responsibilities expected, the roles and responsibilities of the Common Council and City ' Manager, and whether the Mayor continues to be a full-time position. The Mayor should continue to be elected at large. When asked how to avoid the possibility of ties if the Mayor is allowed to vote, the majority participants indicated support for retaining the practice of electing the Mayor at large. There was less support for rotating the position of Mayor among the seven members of the Common Council, although some thought that doing so might help build or maintain relationships among Council members. Comments expressed about rotating the Mayor position included the following. • The Mayor should be more than a mere figurehead, which seems to be the case when the position is rotated. The Mayor should serve in a larger capacity. • Not all Council members are equally qualified or ready to serve as Mayor. • Letting the Council select the Mayor would take the decision away from citizens. • Rotating the position would be too much of a learning curve each year. • The Mayor needs to be a leader and consensus builder. There is more credibility to the position if it is elected at large. To avoid tie votes,changing the number of wards is preferable to adding a Council member elected at large. There was not much support for adding a Council member elected at large at any of the public forums. Comments expressed included the following. • Electing an additional Council member could save redistricting costs. • An at-large Council member would be focused specifically on representing the community as a whole, which could be a good thing. • Having an at-large Council member essentially makes two Mayors. • Having at-large Council members in addition to those elected by ward may not be legal under State law. • The at-large Council member is likely to be elected from one of the three wards with the highest voter turnout, and may not truly represent the City as a whole. • This would provide one ward with double representation, even though the Council member would be elected at large. Public Forum—Summary Results Page 3 More participants favored reducing the number of wards over increasing them. Over the course of the three public forums there were a cumulative total of 10 breakout groups. Of these, five indicated stronger support for reducing the number of wards from 7 to 6, while three indicated stronger support for increasing the number of wards from 7 to 8. Two of the breakout groups could not reach consensus, and were evenly split between these and other options. Comments related to increasing or decreasing the number of wards included the following: • Having fewer Council members might make reaching consensus easier • Having seven elected officials (including the Mayor) is less cumbersome than having nine of them. • Having six Council members would be less costly than having eight of them • It is easier to hold Council members accountable if there are less of them. Maybe they would be more engaged. • Adding a ward would result in a smaller number of people represented per ward and would be easier Council members to manage. • Adding a ward may be more acceptable to voters. (Decreasing the number may make voters feel something is being taken away from them.) • The current ward boundaries deserve a fresh look because they are "gerrymandered." Changing the number would provide an opportunity to reconfigure the ward boundaries to make representation more equal. • Several concerns were expressed about the potential costs associated with redistricting. The City Attorney, City Clerk and City Treasurer should be appointed,not elected. The overwhelming consensus at each of the public forums was that the City Attorney, City Clerk and City Treasurer positions should be appointed, although there were a few individuals at each forum who advocated for retaining them as elected officials. In the case of the City Treasurer, there was some agreement the functions should be delegated to professional staff. The following comments were captured on the topic of elected vs. appointed officials. • Appointing the City Attorney would make it easier for them to be removed if necessary. It would be great if a bunch of people who were qualified apply. • The City Attorney is like a department head and doesn't do much litigation. There is no need for them to be specialized in municipal law. • Elections don't necessarily produce the best qualified person for the job. Appointing is better. • The Treasurer is like the Chief Business Officer and should be elected. There appears to be consensus that the Charter needs to be changed. There were few comments questioning the need to review the Charter, or disagreeing that it should be modernized. One breakout group at one public forum suggested that the Charter problems only emerged within the last 10 years, and the Charter should be changed back to what it was at that time. However, the relationship between the Charter's confusing governance structure and the City's bankruptcy seemed to resonate with some participants. -"O> a , Public Forum—Summary Results Page 4 Additional Comments In addition to the comments received about Mayoral voting, avoiding tie votes and elected vs. i appointed officials, the public forums generated other comments about the Charter and the process of reviewing it. These are summarized below. • The Charter needs to be easier for everyone to understand. 0 Care should be taken to put forth a charter document that voters will actually approve. The question put before the voters should be simple (e.g., "Do you to change the City charter?"),not a menu of choices • A few people expressed perceptions that the Charter recommendations "are a done deal," and that coming to the public forums won't make a difference. • The Charter Committee has already decided on the skeleton. More input should have been requested from the public earlier. Why is the charter skeleton being determined before public forums have been held in each ward? Could the Committee have a public workshop once the skeleton is complete? • Several participants expressed frustration with the low voter turnout and suggested the Charter Committee recommend consolidating City elections with state and federal elections (i.e., change to even number years) to help improve turnout. • It also was suggested that invitations to future public forums be included on water bills.