HomeMy WebLinkAbout29- City Administrator CITY OF SAN BERrftARDINO - REQUEST 'k-JR COUNCIL ACTION
F Fred Wilson Subject: police Management Audit Report
Assistant City Administrator
Dept:
Date: April 24 , 1995
Synopsis of Previous CLancil action:
Resolution #94-287 approved on 9/19/94 authorized performance of Police Management
Audit.
1. That the Police Management Audit Report conducted by Ralph Anderson and Associates be
received and filed.
2. That staff be directed to meet and confer with the appropriate bargaining units on the impact of
the proposed staffmg changes.
3. That the City Administrator and the Acting Chief of Police be directed to oversee the
implementation of the audit recommendations.
4. That Ralph Anderson and Associates be authorized to conduct a supplemental analysis of the
potential consolidation of the Police and Fire Dispatch operations at a cost not to exceed $5,000.
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Contact person: Fred Wilson Phone:
Supporting data attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct No.)
(Acct Description)
_ Finance:
CL Notes:
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CITY OF SAN BERNARDINO
OFFICE OF THE CITY ATTORNEY
Opinion No. 95-02
May 12, 1995
JAMES F. PENMAN
City Attorney
TO: Councilman Jerry Devlin
RE: Recommendations of Management Audit of Police Department
ISSUES
A recent management audit of the Police Department by Ralph
Anderson & Associates recommends creation of a non-sworn Services
Division Manager to oversee the records, budgeting/payroll,
communications ( i. e. dispatch) and personnel and training functions
of the Department. The new Services Division Manager would report
directly to the Chief of Police. In your memorandum dated April 6,
1995, you ask ( 1 ) whether this reclassification would be in
conflict with Charter Section 186 or other applicable law. In
follow-up conversations you asked us to consider two additional
issues arising out of the management audit, which are: ( 2 ) whether
the position of Assistant Chief may be abolished without a charter
amendment, and (3 ) whether it is legally possible for the Mayor and
Common Council to delegate responsibility for overseeing operations
of the Department to a city official other than the Mayor, as
recommended by the audit.
CONCLUSIONS
1 . The City may not vest management of the Services Division
with responsibility for overseeing the records operations of the
Department in a non-sworn civilian manager without a charter
amendment.
2 . The position of Assistant Chief may not be abolished
without a charter amendment. Further, lacking the power to abolish
the position directly, the Mayor and Council may not do this
indirectly by permanently leaving it vacant.
3 . The charter specifically vests the Mayor and Common
Council with the duty to manage and control the Police Department,
and the charter makes the Mayor supervisor of the Chief of Police.
This authority and responsibility may not be delegated to another
official without a charter amendment.
RJM:ms[Audit.0pn]
CITY HALL
300 NORTH `D'STREET • SAN BERNARDINO, CALIFORNIA 92418 0l
(714) 384-5355 71
To: Councilman Jerry Devlin
Re: Recommendations of Management Audit of Police Department
Page 2
DISCUSSION
A. Reorganization Of Services Division
The Police Department is organized into three divisions --
Patrol, Investigations, and Services. Each division is managed by
a sworn officer holding the rank of Captain. The Captains work
under the supervision of the Assistant Chief and the Chief of
Police.
Presently, the Services Division is responsible for such
functions as records management, budgeting and payroll, crime
analysis, community programs ( i.e. crime prevention) , personnel and
training, and mall security. The recently-completed management
audit of the Department by Ralph Anderson & Associates would
maintain the same three divisions presently existing. However,
with some shifting of functions from one division to another, the
audit recommends that management of the Services Division be taken
over by a non-sworn civilian whose duties would be limited to
supervising records, budgeting and payroll, communications and
personnel and training. Although not clear, we assume that all
sworn positions would be removed from the division. Coupled with
proposed elimination of the Assistant Chief' s position, the
Services Division Manager would work under the direct supervision
of the Chief of Police.
Charter Section 186 does more than just mandate a salary
formula for the Police and Fire Departments. It states expressly
that its purpose is to establish "a basic standard for fixing
salaries, classifications, and working conditions" of employees of
the Police and Fire Departments. The classification scheme
consists of seven levels in each department (P1 through P7 ) , with
designated titles assigned to each classification. The explanatory
text regarding the seven classification levels provides in relevant
part:
"The following classifications are hereby created in
the Fire Department and Police Department of the City of
San Bernardino, and the code numbers, titles, and
salaries as hereinafter set forth are hereby established
and fixed for such classes of positions . . . "
The way the classifications and the positions are established
reflects an understanding of the paramilitary structure of the two
departments. There is an orderly progression of rank,
responsibility and salary as one moves from a lower to higher
classification level, and it is significant that the classification
RJM:ms[Audit.Opn]
To: Councilman Jerry Devlin
Re: Recommendations of Management Audit of Police Department
Page 3
levels include department managers up to and including the rank of
Chief. Thus, it is evident that by enacting charter section 186,
the people have endorsed a basic structure for the organization and
management of the departments from which the Mayor and Council may
not deviate.
This is underscored by the fact that the charter permits
establishment of additional positions, but does not permit
deletions. The relevant language states:
"Additional titles may be established by the mayor
and common council, but only titles for Local Safety
members of the Police and Fire Departments shall be
placed in one of the following classifications having the
most nearly equal duties and responsibilities. Local
Safety members of the Police and Fire Departments shall
mean any local policemen or local firemen as defined
under the provisions of the Public Employees Retirement
System Law as specified in the California Government Code
or amendments thereto. "
The limitation placed on the Mayor and Council by this
language is that they are forbidden to put any employees into a
charter classification unless the person employed to fill it is a
"local policeman" as defined in the Public Employees Retirement
Law. In effect, this means that only sworn peace officers can fill
one of the P1 through P7 positions.
Critical to the present issue is the fact that while certain
designated positions were taken out of the charter as a result of
a February, 1973 amendment, the position of "Superintendent of
records and Identification" was not deleted. A civilian manager
with responsibility for overseeing the records operations of the
Department, working under the direct supervision of the Chief of
Police, cannot supplant a charter-mandated sworn position. As with
any office or position created in the charter, it is not the
prerogative of the Mayor and Common Council to abolish such office
or position. Fresno County Employees ' Association v. Fresno County
( 1966 ) 242 Cal .App. 2d 828, 830-831, 51 Ca1 .Rptr. 841 . It is
important to keep in mind that a charter bears the same
relationship to legislative acts of the Mayor and Council as the
state constitution bears to state statutes. Citizens for
Responsible Behavior v. Superior Court ( 1991 ) 1 Ca1.App. 4th 1013,
1034, 2 Ca1 .Rptr. 684. As a general constitutional principle,
where a legislative body lacks power to do a thing directly, it
cannot accomplish the same end by indirection. Legislature v.
Deukmejian ( 1983 ) 34 Cal.3d 658, 668, 194 Ca1.Rptr. 781. See,
RJM:ms[Audit.Opn]
To: Councilman Jerry Devlin
Re: Recommendations of Management Audit of Police Department
Page 4
also, Myers v. City Council of Pismo Beach ( 1966 ) 241 Cal .App. 2d
237, 243, 50 Cal .Rptr. 402. Hence, it is apparent that the Mayor
and Council cannot effectively "abolish" a charter-mandated
position by leaving it unfilled while vesting some or all of its
duties in a non-sworn civilian.
Therefore, the position of Services Division Manager, with
responsibility for overseeing records, cannot be created in the
absence of a charter amendment deleting the "Superintendent of
Records and Identification" from the P5 classification.
B. Proposal to Abolish Assistant Chief' s Position
For the same reasons discussed above, we conclude that the
position of Assistant Chief may only be abolished by charter
amendment. It is reasonable to assume that by creation of the
position of Assistant Chief, the voters expressed their desire for
an orderly succession of authority in case of the Chief' s absence.
An orderly succession would be more difficult if the Chief's
authority were assumed by rotation of the captains. We add that
even though Charter Section 181 gives the Mayor and Common Council
wide discretion in determining the number of employees within the
Police Department, such discretion is expressly limited by Charter
Section 186, and thus we believe that leaving the position of
Assistant Chief permanently "vacant" would be unlawful under the
charter.
C. Supervision of Department by Official Other Than the
Mayor
The management study, on page seven, adopts the following view
of the organizational setting of the city:
"The Police Department is a part of a larger organization
of the City of San Bernardino. The City' s organization
has the City Council [sic] as its legislative and policy-
making body and the Mayor as the Chief Executive. With
the exception of the Police Department, the Mayor is
assisted in the management of the city organization by
the City Administrator. The chart on Exhibit II-A shows
the City organization structure including the Police
Department.
"The organization chart on the exhibit reflects the
unique reporting relationship of the Police Department
(Police Chief ) . It is the only department (other than
those headed by elected department heads) that reports
RJM:ms[Audit.Opn]
To: Councilman Jerry Devlin
Re: Recommendations of Management Audit of Police Department
Page 5
directly to the Mayor. The other city departments report
to the Mayor through the City Administrator. "'
There is no legal basis for the auditors' assumptions about
the organizational reporting structure of the City. Formalizing a
"reporting relationship" between the Police Chief and any City
official other than the Mayor would be in derogation of the duties
imposed upon the Mayor in the charter. Under charter section 50,
the Mayor is the chief executive of the City, and under section 52
he has "general supervision of all City officers elected or
appointed, except councilmen. " The Mayor and Council may not
delegate the Mayor' s charter-mandated supervisorial duties to any
other City official without a charter amendment. The pre-eminent
treatise on municipal law states, "In the discharge of their duties
the officers [of a municipality] cannot go beyond the law, nor
delegate powers involving the exercise of judgment and discretion. "
See, 3 McQuillan, Municipal Corporations, 512. 126, pg. 579 (3d Ed.
Rev. 1990) . The new "reporting relationship" recommended in the
audit would violate this rule.
Respectfully submitted,
RICHARD J. V
Sr. Assistan Attorney
Concur:
JAMES F. PENMAN
ty Attorney
cc: Tom Minor, Mayor
Council Members
Rachel Clark, City Clerk
David C. Kennedy, City Treasurer
Shauna Clark, City Administrator
All Department Heads
lA copy of the chart referred to in the foregoing passage is
attached hereto marked Exhibit A.
RJM:ms[Audit.Opn]
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