HomeMy WebLinkAbout12-01-2015 Charter Committee Agenda & Backup City of San Bernardino
Volunteer Citizen-Based Charter Committee
Agenda
Time: 5:00 p.m.
Date: Tuesday, December 1, 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 November 10,2015 meeting(attached)
2. Special Presentations
3. Procedural Matters
a. Review Timeline (attached)
b. Present& Review Preliminary Governmental Skeleton(attached)
4. Consideration of Water and Wastewater Utility Functions and Boards (PMS Summary of
Alternatives and Management Partners' memo attached)
5. Reconsideration of Mayor's vote at Council meetings and Related Issues (PMS Summary of
Alternatives and Management Partners' memo 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 (PMS Revised Comparison and
Management Partners' memo attached)
ADJOURN
Unless changed at the December I st meeting, the next meeting of the Volunteer Citizen-Based Charter
Committee will be 5:00 p.m., Tuesday, December 8, 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.
Charter Review Committee
Tuesday,November 10,2015
Minutes
Committee Members Present: Phil Savage, Tom Pierce,Michael Craft, Dennis Baxter,Hillel Cohn,
Vicki Lee, Casey Dailey, Gloria Harrison, Gary Walborne
Staff/Committee Consultants Present: Cathy Standiford,Management Partners;Gigi Hannah,City
Clerk;Donn Dimichele,Deputy City Attorney
Call to Order: Chair Savage called the meeting to order at 5:01 p.m.
Public Sneakers
Shirley Harlan,resident, commented on the recent public forums. She encouraged young people in the
community to become engaged by attending future public forums and Charter Committee meetings. She
also encouraged the Committee to not be defensive about the preliminary recommendations they are
making.
Minutes
A motion was made by Craft, seconded by Cohn to approve the minutes of the November 10,2015
meeting. The motion unanimously carried.
Special Presentation
Stacey Aldstadt, General Manager of the San Bernardino Water Department provided information about
the department and its operations for both water and wastewater treatment. She also shared her
perspective on and how existing Charter provisions, such as the Water Commission's independent ability
to set rates,have helped ensure the community's water and wastewater services and infrastructure are
well managed and maintained.
Mayor Carey Davis suggested the Committee consider charter language to ensure water and wastewater
functions remain under the City's local control. However,the management of those utilities should be
prescribed by the City's municipal code.
Action Items
After a lengthy discussion,the Committee took no specific action on charter provisions concerning the
Water Department. There was consensus to defer this item to the next meeting to provide additional time
for the Committee to review and consider the information provided. The Committee also briefly
discussed reconsideration of giving the Mayor voting rights.
Next Meeting Date and Time
The next meeting date of the Volunteer Citizen-Based Charter Committee will be 5:00 p.m., Tuesday,
November 23,2015. (Note: This meeting date was subsequently rescheduled to Tuesday, December 1,
2015.
The meeting adjourned at 7:25 p.m.
Respectfully submitted by
Cathy Standiford
Committee Consultant
3
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.
Meeting
Date Task or
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
4
San Bernardino Charter Committee Timeline Page 2
Meeting
Date Task or Activity Comments/Status
Begin discussion of skeleton City Manager Preliminary Recommendation: Majority vote of all
Iprovisions 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
S
San Bernardino Charter Committee Timeline Page 3
Meeting
Date Task or
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:
I 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.
ti
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:
I (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 Held
Middle School, 6:30 p.m.
11/5 Public Forum:Arroyo Valley Held
High School,6:30 p.m.
11/9 Public Forum, Indian Springs Held
High School, 6:30 p.m.
11/10 Discuss potential Water Discussed. Action postponed to next meeting
Department skeleton provisions
Review input received at public Discussed
forums
Reconsider Mayoral voting and Discussed. Action postponed to next meeting
options for ensuring odd
number of voting members
Review and discuss how charter Not discussed
issues would be treated under
general law
11/24 No Meeting Meeting rescheduled to December 1, 2015
12/1 Discuss potential Water
Department skeleton provisions
Reconsider Mayoral voting and
options for ensuring odd
number of voting members
Compare and consider general
law vs. charter options for San
Bernardino
Review and discuss other
elements to be considered in
the skeleton
12/8 Begin work on specific language
7
San Bernardino Charter Committee Timeline Page 5
Meeting
Date Task or Activity Comments/Status
i
12/22 Continue work on specific
language
Discuss potential public forum School District has requested 4 weeks' notice
dates
1/12 Continue work on specific
language
Discuss progress report to Tentatively schedule progress report for Feb 1
Mayor and Council
2/1 Present progress report at
Mayor/Common Council
meeting
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
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
8
SAN BERNARDINO GOVERNMENTAL STRUCTURE PRELIMINARY SKELETON
(12/1/15)
Charter Preamble to include the following language:
The City shad I ensure f undamentai muni ci pal servi ces are provi ded to protect and
promote the public health, safety and welfare.
I. Council - Manager Form of Government
II. 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.
III. 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.
9
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 provide 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.
10
IX. Departments & Commissions
9.1 Specific City departments and agencies shall not be designated in the Charter,
except as otherwise provided in the Charter.
I 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;'
C. Fire Dept or services;
d. Police Dept or services;
9.4 The City shall establish a personnel system.
I
But it should say that the City's Municipal Code will provide for parks&recreation.
11
Charter Language Concerning Water Supply and Sewage in San Bernardino
11/19/15
A. As a part of the Charter Skeleton,the Committee has said
1. that"specific City departments and agencies shall not be designated in the Charter
except as otherwise provided in the Charter"; and
2. The Committee has also said-
2.1 the Charter shall require a Library Board of Trustees with its specific powers and
authority to be determined by the Council
2.2 the City's municipal code will provide for parks and recreation,
2.3 the City shall establish a personnel system,
2.4 the City shall ensure fundamental municipal services are provided to protect and
promote the public health, safety and welfare,
2.5 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, and
2.6 any services, boards or commissions in existence at the time of adoption of this
Charter shall continue unless and until changed by the Council".
B. San Bernardino's present Charter. See next page.
C. Following are some alternatives as to what the Charter should say concerning Water and Sewer:
1.1. Nothing in Charter(like Al above).
1.2. The Charter shall require a Water Department and Board of Water Commissioners with
their specific powers and authority to be determined by the Council (similar to 2.1 above).
1.3. The Charter shall provide for a Water and Waste Water Department and Commissioners
with their specific powers and authority to be determined by the Council
1.4. The Charter shall provide for a Water and Waste Water Department and a Board of
Commissioners for the Department with their specific powers and authority to be determined by the
Council with the Commissioners to be appointed by the Council (including the Mayor).
1.5 The Charter shall provide for a Water and Waste Water Department and a Board of
Commissioners for the Department with their specific powers and authority to be determined by the
Council with the Commissioners to be appointed by the Council (including the Mayor). The Board shall
be authorized to set rates (for water and waste water disposal) subject to approval of the Council.
1.6 The Charter shall provide for a Water and Waste Water Department and a Board of
Commissioners for the Department with their specific powers and authority to be determined by the
Council with the Commissioners to be appointed by the Council (including the Mayor). The Board shall
have final authority to set rates (for water and waste water disposal).
1.7 Add to 1.5 or 1.6 above the City Manager having responsibility and supervision of the
Department.
1.8 Add to 1.5 or 1.6 above the City Manager specifically NOT have responsibility or
supervision of the Department.
12
i
Q - Should a future Charter for San Bernardino have language in it concerning an independent Water
Fund and/or Sewer Fund or are these aspects adequately dealt with by California Law?
San Bernardino's Present Charter re Water and Sewer
While this Committee has been working on a basis of not starting from San Bernardino's
present Charter, but rather best practices (from the Model Charter and the Charters of other similar
sized cities, etc.), it has been suggested that something like the essential elements of San Bernardino's
present Charter be in a proposed new Charter.
Outline of Structural Elements of San Bernardino's present Charter
1. establishes a Water Department (Article IX),
2. creates a Board of Water Commissioners (section 160),
3. authorizes this Board
3.1 to establish and collect water rates and regulate the entire water system of the
City(section 63-1),
3.2 employ staff& fix their compensation from the Water Fund (section 163-2),
3.3 manage the City's waste water treatment plants and pay for their expenses from
the Water Fund, (section 163-3), and
3.4 incur indebtedness, (section 163-4)
4. proceeds of sale of water go into Water Fund- separate from City's other moneys
(section 164)
5. Council may monthly transfer up to 10% from Water Fund to General Fund(section
164)
6. Mayor and Council may monthly transfer to a"proper Bond Fund" 1/12 of amounts
annually due for interest and/or principal upon Water Works Bonds. (section 164)
7. Council has power to establish and maintain
7.1 facilities for sewer collection (section 40(p)) and
7.2 works for supply of water(section 40(t))
8. Manager is not responsible for administration of Water Dept(section 90)
9. Mayor and Council levies charges for sewer services (section 134)
10. Creates a Water Fund(section 146) and a Sewer Fund (section 149)
Management
Partners
To: Volunteer Citizen-Based Charter Committee
From: Cathy Standiford,Partner
Subject: Preservation of Rights over Natural Resources
Date: December 1, 2015
The Charter Committee is considering elements that should be included in the charter
"skeleton." On November 10 the Committee began to discuss whether the charter should
include reference to the City's Water Department or Water Board of Commissioners. Some
Committee members expressed concerns that the City be able to maintain control over water as
a natural resource. This memorandum contains additional information about peer agency
charter references about the preservation of rights or control over natural resources.
San Bernardino
San Bernardino Charter Article III,Section 40, "Powers of Mayor and Common Council",
subsection (t) states:
Public Utilities. Council shall have power to contract for supplying the City water for
municipal purposes, or to acquire, construct, repair and manage pumps, aqueducts,
reservoirs or other works necessary or proper for supplying water for the use of such City
or its inhabitants, or for irrigation purposes therein, subject to the powers and
supervision of the Board of Water Commissioners as in this Charter provided.
This language in the charter gives ultimate authority to the Mayor and Common Council to
control the systems and infrastructure necessary for the provision of water and wastewater
treatment. The powers of the Board of Water Commissioners and the operation of the Water
Department are defined by Article IX of the Charter.
Article III,Section 40, subsection (p) gives the Mayor and Common Council similar authority
over the sewer and storm water systems:
Council shall have power to acquire, establish, construct, reconstruct, maintain, operate,
manage, repair, improve or finance any building, system,plan, works,facilities or
undertaking used for or useful in the collection, treatment or disposal of sewage and the
reclamation of effluent therefrom, or storm water, including drainage.
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
I'll /........ I—— - /`...,r. nn - .. r - n4n'1'1')I 0'1 - r..,A/10 Arn r11
Preservation of Rights over Natural Resources Page 2
Peer Agency Charters
Management Partners reviewed the charters of 12 peer agencies that operate a water and/or
wastewater utility. Of these, only two include specific references to water or public utilities
departments(Riverside and Glendale). However,our research indicates it is common for
charters to include general language establishing a city's rights over land and other natural
resources.
For example,Anaheim Charter Article III,Section 300,entitled "Rights and Liabilities' states:
The City shall continue to own, possess and control all rights and property of every kind
and nature owned, possessed and controlled by it on the effective date of this Charter and
shall continue to be subject to all its lawfully enforceable debts, obligations, liabilities and
contracts. (Amended November 7, 2000,filed by Secretary of State February 6, 2001.)
Stockton's Charter,Article 3, Section 301 ("Succession") states:
The City of Stockton shall continue to own,possess, and control all rights and property of
every kind and nature, owned, possessed or controlled by it at the time this Charter takes
effect and shall be subject to all its debts, obligations and liabilities.
Bakersfield's charter language is slightly more specific, as shown in the following
excerpt from Charter Article III, Section 12"Rights and Liabilities."
The City may use a corporate seal; may sue and be sued; may acquire property in fee
simple or lessor interest, by estate,purchase,gift, appropriation, devise, lease, lease with
privilege to purchase,for any municipal purpose; may sell, lease, hold, manage and
control such property; may make any and all rules and regulations, to carry out all
covenants or conditions of any conveyance, deed,gift, bequest or lease, may acquire,
construct own lease operate and regulate public utilities...(emphasis added).
Chula Vista, which does not operate a water or wastewater utility, also references rights and
control over property and resources in its Charter. Section 101, "Succession,Rights and
Liabilities" states:
The City of Chula Vista shall own,possess and control all rights and property of every
kind and nature owned, possessed or controlled by it and shall be subject to all its debts,
obligations and liabilities.
• In summary, charter language that explicitly grants control over rights and property
(including water rights)is a common practice. Such language typically appears early in
the charter document under the heading of"Rights and Liabilities," "Powers and
Succession," or some combination of the two, and is present whether the city operates a
water or other public utility or not.
15
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;
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 • 949 222 1082 • FAx 408 453 6191
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 provisions 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.
17
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.
18
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.
� 4
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
Operated City Water
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
-�n
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 Board Comments
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 I
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.
21
Water and Wastewater Utility Functions and Boards Page 7
Table 4. Appointment of City Water Utility Boards
Appointment
Appointment by City
Population Council by Mayor Comments
200,000 to 1 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 i
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
Appointment Rate Setting Rate Staff
Advisory Setting
Population Powers Authority Authority
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
IStockton's WaterAdvisory 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.
22
I
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.
• 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.
23
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 299,000
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
Water 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
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 XII of the Riverside charter describes the Department of j
Public Utilities and the Board of Public Utilities. Board of Public
Utilities members are appointed by City Council and the Mayor. j
Each of the nine members represent one of the nine wards in
the city.
24
Water and Wastewater Utility Functions and Boards Page 10
Water Utility
i
System Water
Described in utility
Peer Agency Charter BoaComments
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
25 . ,.
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 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.
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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.
27
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
consultant, and interpretation and translation services.
I
28
PMS Analysis of Alternatives re Mayoral Voting Rights on City Council
11/19/15
Mayor having full Voting Rights on Council vs Just Tie Breaking Vote
A. More effective leadership of City and of Council than with 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. Committee preliminary consensus on A-D above
F. Strong support of this at public forums and Survey Monkey questionnaire results
Following are alternatives for dealing with this issue:
I. Mayor has full vote by selecting Mayor from amongst Council members
A. Most cities of similar size to SB have this system
B. May diminish Mayor's leadership of City and Council
C. May diminish Mayor's effective representation of City on regional boards; however, this
could also be covered under the Mayor's powers of appointment of regional Board
representative. This may also be more related to the tenure of the representative than
manner of the Mayor being selected.
D. Mayor no longer has tie breaking rights or veto power
E. Committee's preliminary rejection of this approach
F. Little to no support of this at public forums and Survey Monkey questionnaire results.
II. Mayor has full vote but no veto power and no change in number of Council members
A. Results in an even number of elected persons to vote on business of the City
B. Mayor having a full vote and being elected at large was favored at public forums and Survey
Monkey questionnaire results.
C. Possible difficulty of conducting business of City because of tie votes
D. No known other local governmental entity has such a system
E. Committee's preliminary rejection of this approach
III. Mayor has full vote and Council is reduced to 6 Wards
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 14%
(approximately 5,000 people)
F. More accountable, less cumbersome, might make reaching consensus easier
G. Committee preliminary skeleton decision approval of this approach
H. Majority of forum participants favored decreasing number of wards over increasing them
IV. Mayor has full vote and Council is increased to 8 Wards
A. Eliminates problem with equal number of voters on Council
B. Requires redistricting process for addition of one Ward
C. Slightly reduced cost of election campaigns for each council election
D. Reduces number of citizens represented by each Councilperson by about 14% (approximately
5,000 people)
E. Might be more acceptable to voters rather than taking away a Ward
29
F. Committee's preliminary rejection of this approach
G. Majority of forum participants favored decreasing rather than increasing number of wards
V. Mayor has full vote and an additional(8th) Councilperson elected at large
A. Eliminates problem with equal number of voters on Council
B. Increases "at-large"representation on Council focused on community as a whole, not just one
Ward
C. No requirement of any redistricting process
D. Concern about such position becoming a"vice-mayor" and possible conflicts
E. Concern that this may not be legal under State law
F. More expensive election process for this position on Council
G. May give one ward essentially double representation on Council rather than representing
community as a whole
H. Increasing size of Council contrary to Council's majority consensus to reduce its size.
I. Committee's preliminary rejection of this approach
J. Contrary to preferences indicated at public forums
VI. Reject giving the Mayor full voting rights, keep Mayor elected at large with a tie breaking
vote, but no veto power
A. All of the other alternatives may have more adverse consequences than the perceived benefits
of the Mayor having a full vote
B. Possibly less power of Mayor to represent the entire community
C. 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
D. Contrary to Committee's preliminary action
E. Contrary to majority input from forums and questionnaire
I suggest that Committee members express their preferences as amongst the above 6 alternatives -
prioritizing them -to facilitate our discussion and decision at our next meeting.
I prioritize these alternatives as follows:
First Choice -VI. No requirement of changing Wards. This should the least likelihood of voter concern and
continues likely to maintain benefits of strong mayoral leadership.
Second Choice -V. This 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
councilperson, while Mayor is given additional powers (presiding over Council, leadership on regional
boards, etc.) The additional councilperson represents the interests of those most interested in the City,
those who vote. But need to verify there is no problem with State law.
Third Choice - III. This reduces size of Council for more efficiency, but requires changing number of
Wards.
I strongly disagree with all other approaches for the following reasons:
I. Significantly reduces leadership of Mayor and effective representation on regional boards if
Mayor just selected (probably annually) from amongst councilpersons.
II. Increased difficulty in conducting routine business with higher probability of tie votes.
IV. Larger Council more cumbersome and less efficient&requires redistricting.
30
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Management
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)
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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.z
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
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 XI, §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 XI,
city council of five members, a city clerk, a city §5(b);CGC§34450 etseq.
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 XI, §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 Ibid.
3 City of El Cerrito City Council Presentation,October 3,2011;California League of Cities Website
34
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 II 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.4th 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
35 '`
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.
c
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)
36
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.4th 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 i 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
r
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 4th 942(2004).
37
Characteristics of General Law and Charter Cities Page 6
''Characterlstic General Law 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 (1_993)
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 Xl, §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 I
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
38
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 Salinas',Torrance, Modesto,
Santa Ana
Bidding procedures for public works projects follows that for
g 2 Salinas, Modesto
general law cities
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
'Chula 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).
39