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HomeMy WebLinkAbout08-04-2000 Minutes MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION JOINT SPECIAL MEETING AUGUST 4, 2000 COUNCIL CHAMBERS NOTICE IS HEREBY GIVEN that the Mayor and Common Council and Community Development Commission of the City of San Bernardino have called a joint special meeting of the Mayor and Common Council and Community Development Commission for 5:00 p.m., Friday, August 4, 2000, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. The purpose for which this meeting was called was to discuss and take possible action relative to the proposed charter. The joint special meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor Valles at 5:12 p.m., Friday, August 4,2000, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Valles; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCamrnack; City Attorney Penman, City Clerk Clark, Director of Human Resources Raya. Absent: None. DISCUSS & TAKE POSSIBLE ACTION - PROPOSED CHARTER (1) Mayor Valles provided an overview of the events of the last meeting and the documents submitted for the meeting tonight. She advised that one of the handouts was titled, San Bernardino City Charter Summary of Changes dated 8/4/00 (blue document) which summarized all the changes made as a result of the last meeting on July 26. Subsequently, those changes were incorporated in the draft San Bernardino City Charter, 3" Revision dated 8/4/00 (blue document) given to the Council today. Also distributed was a grid depicting the Powers of the Mayor and Council as they exist now and what is being proposed in the draft charter, as well as an analysis of the latest charter revision (yellow document) prepared by the City Attorney's Office. 1 8/4/2000 She stated she would like to hear from the Council members first--any comments or questions they might have. She informed the Council that some of the members of the Charter Review Committee (hereinafter referred to as "Committee") were in the audience to answer any questions they might have, as well as Mr. Nolan and Mr. Gresham from the law firm of Gresham Savage Nolan & Tilden, LLP. Council Member Estrada expressed concern over the number of documents given to the Council over the past couple of days, stating that she had not had an opportunity to digest all this information. She stated that even though the Council had voted to accept the charter, in concept, given the number of changes made to the document, it appeared that they were being given a whole new document, Council Member Estrada stated that her biggest concern was the balance of power relative to the Mayor and Council. She stated that she supports a strong Mayor form of government; however, she felt the recommended changes go too far in giving power to the office of the Mayor, while taking away from the authority of the Council. Ms. Estrada questioned the method being recommended to fill a vacancy on the Council; stated that she did not support an appointed City Attorney; expressed concerns regarding the authority of the Civil Service Board and the proposed shift in power; and also expressed misgivings regarding recommendations for the appointment of a Mayor Pro Tem. Council Member McCammack read a prepared statement into the record wherein she advised that she had worked diligently to read and understand as much as possible about the charter and the recommended revisions; yet also expressed concern at how fast the process has moved. She stated that, in her opinion, the process should have been different--that the Council should have been able to lay all of their concerns out on the table first, with much more Council conversation, such as that which has taken place at the last few meetings; then the process would continue with the assimilation of the document, followed by many puhlic hearings; and once consensus was gathered from the public and the Council, the document would be sent to the voters, She did not agree with the document being written by individuals who were not elected by the voters and who, therefore, have no responsibility to the taxpayers of the city. Ms. McCammack stated that the major items which worry her are those items which shift the balance of power to the Mayor, including all of the personnel functions now overseen by Civil Service, and taking away the voters' rights to elect a City Treasurer and a City Attorney. She mentioned the hard work of the previous Charter Review Committee and indicated that she would like the Council to be able to review in depth the recommendations made by this committee for possible consideration. 2 8/4/2000 Mayor Valles stated that she would like to clarify that these were not all brand new documents which were being given to the Council. She noted that the first document was given on July 10 (first draft submitted by the Committee and given to members of the Council), Since then there have been some revisions and amendments , but these have not been substantive; and it is not as though these documents have just descended today as brand new documents on members of the Council. Council Member Anderson stated that in discussing and reviewing this document, she did not believe that the Council was looking at it in terms of the people now filling elected positions in the City, but rather as a document that will withstand the test of time and people far into the future. She stated that she likes the idea of a strong Mayor form of government; however, she feels that some of the changes will be making her position as a Council member more ceremonial than one involved in the legislative business of the City. She also expressed agreement with Council Member Estrada that more time was needed to absorb and understand the contents of the draft charter. At this time Mayor Valles asked Mr. Tom Pierce, a member of the former Charter Review Committee and a member of the current Committee, to share some of his thoughts on how the previous committee functioned versus how the current Committee performed its tasks. Tom Pierce, a resident of San Bernardino for 24 years, acknowledged that he was a member of both the previous and current Charter Review Committees. He stated that the two processes were quite different and, in his opinion, a lot better this time because there was a lot more interaction with the public. He advised that the previous committee conducted two-hour meetings twice a month for approximately 18 months and then put together a document that was then put on the City Council agenda. Subsequently, the Council accepted the report and that was the end of it. Mr. Pierce noted that the previous committee did have visitors at their meetings such as the Police Chief, Fire Chief, union representatives, and civil service representatives, but there were very large differences between the last time and this time in terms of public interaction. He noted that there were no workshops with the Council the last time; this time the Committee began having workshops in January. Furthermore, this Committee met with focus groups in six of the seven wards and received input from residents in those wards. In terms of interaction with the public, during the previous exercise, there were no meetings with the public. The committee members met in the EDA Board Room, and although there were visitors from various groups, there were never any public visitors to speak of. This time, in addition to the focus groups, there were three town 3 8/412000 hall meetings, the goals of the Committee were sent out in the utility bills, and there was a presentation on TV about the Committee's work. In addition, there have been subcommittees which have held meetings and done various kinds of work, He stated that he served on the Personnel Subcommittee, and typically the number of visitors to those meetings was greater than the number of people on the subcommittee. In summation he said that there was no comparison between the two committees in the amount of interaction with the public. He stated that he would be very surprised if any other member of the previous committee had a different recollection of the amount of interaction the first committee had with the public, which was minimal. Relative to the document itself, Mr. Pierce stated that on a few occasions people have inquired about what the previous committee did--what was its document like. He stated that the previous document never went through the scrutiny that this document has gone through, where the City Attorney and outside attorneys have reviewed it. He advised that the City Attorney, or his assistant, Mr. Barlow, did attend most of the previous committee meetings; however, the document, as such, was just recommendations turned over to the Council. He noted that the perception of some seemed to be that most of the changes submitted by the previous committee were not substantive; however, in any big document most of the changes are not substantive. He advised, however, that there were some substantive changes, such as their recommendation that Section 247 (relative to Civil Service) of the existing charter be changed by eliminating the last two sentences. He stated that this change would have eliminated the Office of Chief Examiner and Secretary and the power of the Board, so that the Civil Service and Personnel Departments could be combined. Council Member Suarez stated that the current Committee has spent countless hours to try and come up with this revised charter and here at the last minute all of these questions arise. He stated that he had a feeling that there was a fear amongst either the Councilor the powers that be, of letting the voters decide what is good for our city. Mr. Suarez advised that the one thing he would not compromise was Section 186 of the current charter--he believed it should stay in the charter. He expressed fear that if the Council did not come to some kind of consensus as to what to put before the voters, it could be changed and revised by various citizens until it does not resemble anything that the Committee has so diligently worked on. Council Member Lien pointed out that the Council had approved a document in concept on Monday that they had been working with regularly since August 10. She noted that the changes contained in the document today are exactly what they had agreed upon and what was expected, She stated that she did not share the opinion that 4 8/4/2000 she was rushed in looking at the current document. She noted that it is no secret that the Council as a whole does not agree on every item in the draft document; however, she has watched a process over the last 17 months which has been outstanding, she has had ample opportunity to express her differences of opinion with the Committee, and she has found that there have been changes incorporated as they have discussed it. Council Member Lien stated that there were a few changes she would like to see made to the document, which were actually suggested by the Committee in response to some recent changes made by the Council, which the Committee felt weakened the document. She distributed her recommendations in a document titled, "Motion to Amend the 8/3 Revision as Follows:" noting that her changes were based on a letter dated July 27, 2000, sent by Mr. Morris, co-chair of the Committee, to each Council member. At this time, Ms, Lien proceeded to review her recommendations with the Council and asked that her colleagues act on these changes as they finalize the draft charter document. Council Member Lien made a motion that the Council incorporate her recommended changes into the draft and that the Council finalize the language in the 8/4/00 draft Charter and move forward with the resolutions prepared by the City Attorney's Office. (Note: The motion failed for lack of a second.) Mayor Valles noted that the changes being recommended by Council Member Lien were in essence going back to the draft charter document of 7/10/00, originally submitted by the Committee, and Ms. Lien acknowledged this to be so. Mayor Valles noted that in order to keep the process as organized as possible, the Council should take each one of Council Member Lien's recommendations and vote on them separately. City Attorney Penman advised that the changes being recommended by Council Member Lien were substantial changes with numerous legal consequences associated with them. He stated that his office had received numerous documents, and before the Council votes on anything, his office has a lot of legal information to tell them. He stated that he found it difficult to believe that the Council members could have read all the documents presented to them. According to Mr. Penman, the first document presented to the Council had a lot of illegal material in it, despite the Committee's statement that they would not give the Council anything illegal. He advised that just today his office had discovered that Section 2103 (Municipal taxes) was a new Proposition 218 problem, Mr. Penman continued, stating that the lawyers had not had enough time to review this document, the Council had not had time to read the latest reviews, and now there is talk about changing it for the third time in two days, He stated that the purpose of the Council is to put a document before the voters, on which they will vote either 5 8/4/2000 "yes" or "no," that they have carefully looked at and made sure that it is a cohesive document. He stated that the process is flawed and has been flawed since the beginning, that the voters have a right to expect the Council to give proper attention and present a proper document, and that this document was not proper. He stated that if it is approved, with the changes being made and items being put back in the document, the Council would be doing away with all the hard work done by the reviewing attorneys relative to these sections of the charter. Mayor Valles reminded everyone that she and Mr. Penman had gone over the document, and on July 20 it was a good document--yet all of a sudden it had become flawed. She stated this disturbed her. She stated that the City Clerk, Mr. Penman and her office had also worked on the document given to the Council this evening dated 8/4/00. She added that Ms. Lien had a perfect right to make the recommendations she was making--that she (Council Member Lien) felt the document dated 7/10/00 was a legal document, based on the legal opinion received from the firm of Richards, Watson & Gershon in San Francisco and also comments made by Gresham, Nolan, Savage & Tilden, LLP. The Mayor advised that staff had tried to incorporate as many of their suggestions as possible. Mayor Valles stated she was offended by the fact that Mr. Penman was saying the process is flawed, when every effort had been made to communicate with everyone, including the City Attorney's Office. She stated that several members of the Committee were in the audience and they had given a great deal of time and effort to prepare a document that would enable the City to move efficiently and effectively, with accountability and representative of the people, into the future. They had looked forward to the year 2053, leaving out personalities; and in her opinion they had provided a document that would do exactly that. Mayor Valles requested that the Council members look at the document before them. She pointed out that it included the revisions which were made and approved by the Council. She advised that the additional revisions that Council Member Lien would like to make were being recommended because Ms, Lien believed the document of July 10, submitted by the Committee, was a sound one. She advised that they could refer to the blue document (draft charter dated 8/4/00) which was approved in concept by the Council, which included changes requested by the Council during their last meeting, and which had been reviewed by City Attorney Penman, City Clerk Clark, and herself. She advised that she had raised an issue brought forth by Mr. Gresham relative to the Elections Code and what is stated therein regarding the shortening of an elected official's term by more than 12 months. She stated that she had asked Mr. Penman for his opinion, because she wanted to make sure that what we put in the document would be legal. She advised that this relates to the section of the charter regarding the appointment of the City Attorney and the City Treasurer, and if this was approved by the voters, what the implication would be for their elected term--whether we can in fact 6 8/4/2000 do this, The Mayor asked City Clerk Clark to tell the Council what she had found out regarding this matter. City Clerk Clark quoted from case law which states, "Change in or abolition of office. If done by an authority possessing the requisite power, frequently the municipal legislative body, municipal officers can be changed, consolidated, or abolished in the absence of restraint. Thus, while the legislature may not statutorily abolish a constitutionally established office, a statutorily established office may be abolished by statute, And where a municipal corporation by charter or legislative act has power to create an office by ordinance, it also has power to abolish it. Similarly, a charter office may be abolished by amendment of the charter, even though the effect may be to curtail an incumbent's unexpired term." Ms. Clark stated that when she first analyzed the entire document she shared with the Mayor and Council various concerns she had about different sections. One of the concerns she had was that one of the Charter Committee's initial recommendations would, in effect, result in increasing or decreasing the offices of the City Attorney and the City Treasurer by more than 12 months. The reason she expressed this concern is because Elections Code Section 10403. 5 (b) states, .' As a result of the adoption of an ordinance pursuant to this section, no term of office shall be increased or decreased by more than 12 months." She sought information from Mr. Penman's Office as to whether her reading on this was correct or was there something different which would allow the suggested language, since it was her understanding that neither law firm that reviewed the charter raised this as an issue. She stated that when she checked with the co-chair of the Charter Review Committee, she was provided with the information she just read. City Attorney Penman responded that his office had never given the OK to any version of these charters--with every version his office has continued to put out their written opinions and everyone has raised questions. For example, they have never said the document of July 20 is OK, but now it isn't. He stated that when the Council voted earlier this week to approve the document in concept, with the inclusion of an appointed City Attorney, he felt at that time it was not appropriate for him to give legal advice on whether or not the term of the City Treasurer and City Attorney could be extended, Therefore, when this issue came up, he repeated that information. Mr. Penman advised that he was pressed to give an opinion, and at that time stated that he had scanned it and that he disagreed with Ms. Clark--he did not believe that it applied, but he could be wrong, he hadn't researched it. He stated that he referred the issue to Mr. Nolan, who is at tonight's meeting, and he was sure Mr. Nolan could provide an answer. He acknowledged that what Ms. Clark had just indicated, he believed, was the understanding of the City Attorney's Office, and it was not raised by anybody because it was not an issue. He stated that he believed all municipal lawyers know that the voters who create an office can de-create it. 7 8/4/2000 He stated he did not want the viewers at home to be misled. The City Attorney's Office has never given an approval to any of these versions of the charter-- they have found problems with every single version, and if they had more time, they would probably find more. He advised that they found a problem today which needed to be discussed, and he believed Mr. Gresham's firm was prepared to make some comments on that. He advised that his office has worked extremely hard, including late meetings with the Mayor and other attorneys, and they have tried to keep up in order to give me Council and staff an ongoing, up-to-date analysis. He stated he would never presume to say that Ms. Lien could not go back to the 7/10/00 document; what he was saying is that the item is on the agenda for today and it is on the agenda for Monday, and a week from today is the very last day to get the item to the County to be placed before the voters, and in the opinion of the City Attorney's Office, none of these documents, are ready to go to the voters. Mr. Penman advised that the City Charter is more than a tool; it is the constitution of the City, and this document changes the way this City is run. He stated he had no concerns with the current mayor; however, he has worked with other mayors who, if they had the power that will be given to the mayor if this document passes, would be horrendous. He asked the Council that as they are reviewing the document not to think of Judith Valles as Mayor, but to think of other individuals--to think beyond their tenure. He advised that these documents were not ready to go to the voters; that the Council had not finished its work. He stated that they did not understand the relations between the various sections and had not responded to all the concerns raised by the different attorneys. He advised that the document was simply not ready to go and the Council would do a grave disservice to the public if they put it on as the blue document (dated 8/4/00); and would be committing an even worse crime if they go back and make these changes, because these are substantial, significant changes. Council Member Suarez asked Mr. Penman who would make that decision as to when the document is ready to go to the voters. Mr. Penman stated that ultimately the Mayor and Council will make it--when they feel that they understand it, when they feel that they know how it is going to work, when they have had the opportunity to have all their questions answered, when they feel comfortable they can go to the public and the public can ask questions about the document and they can answer them--then they will be ready to make that decision. He noted that at the last meeting, Mr. Suarez had indicated he was very confused. Council Member Suarez acknowledged this to be true, but noted that his confusion comes from getting so many legal viewpoints, which are opposing viewpoints. He stated that he must look at both viewpoints and decide in his heart which one suits this document the best. 8 8/4/2000 Mayor Valles noted that the ultimate decision is the Council's. She believed that some people may have underestimated the members of the Council and their understanding of the document. She stated she was now going to ask for public comments from those who had indicated they wanted to address the Council and then proceed with the motions. She stated she would read out loud the recommendations made by the Council at the last meeting, so they could proceed. Ruth Mercer, 1934 North Kenwood Avenue, San Bernardino, stated that the Library Board is concerned with Section 1404 (Title to property) where it states that, " . . , acquisition, title to all real and personal property, . . , for the purpose of use of the public library system, shall vest and be and remain in the name of the City." They are concerned that donations made to the library could very easily be taken by the City. Council Member Lien pointed out that in the analysis received from the City Attorney today, he informed the Council that this section is identical to Charter Section 209 which currently exists--that this is not a change and is the same language that has always been in the charter. Ms, Mercer replied that this has always been a concern and an ongoing issue for a number of years. Maxine Kraft, 2830 North Mt. View Avenue, San Bernardino, CA, was opposed to placing the new charter as one document on the November ballot, stating that it is too much, too soon; and questioned whether the new charter will do something for the City, James Tate, 1391 Andreas, San Bernardino, CA, asked the Council not to send a "rush document" to the voters; that it was clearly evident that this document was not ready. Ed Keller, 1696 Mesa Verde, San Bernardino, CA, spoke regarding Sections 1401 and 1404 of the revised charter relative to the Library. He stated that he was concerned with the recommended language for removal of a Library Board Member and also by the fact that everything will belong to the City rather than the library. Mr. Keller submitted revised language which he felt was more appropriate for Sections 1401 and 1404. Gene Boisvert, 3740 Palm Crest, San Bernardino, CA, stated he was not sure of all the changes being proposed and felt the process was being rushed; felt the Mayor and Council deserved a raise, but it should not take effect until the next term; felt it was unclear how Section 186 would be resolved; was opposed to an appointed City Attorney; concerned with a loss of checks and balances; and requested that the charter not be placed on the ballot at this time. 9 8/4/2000 David Child, 4965 North "G" Street, San Bernardino, CA, stated he was a member of the Mexican-American Political Association (MAPA); that the Association had adopted a resolution regarding San Bernardino Charter Reform, which he submitted to the Mayor and Council; and expressed MAPA's support of the San Bernardino Charter Review Committee's recommendations. Kathleen Devlin, 350 East 18th Street, San Bernardino, CA, spoke against the proposed changes for Civil Service; spoke against an appointed City Attorney and City Treasurer; and voiced concern with the balance of powers and the selection process for a mayor pro tem. Mayor Valles stated that she felt compelled to remind the viewers that as the Committee reviewed every single section of the charter it was driven by five fundamental principles--this charter had to be representative of the people, responsive to the people, accountable to the people, functional as a document of governance, and it had to be flexible and efficient. She stated that these decisions were not made in a vacuum--the creation of this document was driven by those five fundamental principles. The Mayor stated that she recognized that many of the speakers that have come to address the Council have not been privy to the deliberatbns that have taken place for the last 17 months, and she expressed regret they were not a part of those deliberations because if they were, their comments may be different. Lee McConahy, P.O, Box 5006, San Bernardino, CA, a local businessman, stated that things are not great for local businesses in San Bernardino, and it is time for some changes. He stated that he did listen for 17 months to the Committee, and there were things he did and did not agree with; yet now, after all this time, people are coming forward and basically recommending to just throw everything out and start from scratch. He advocated changes to the current Charter Section 186 and agreed with the recommendation of better pay for the Mayor and Council. Robert Rego, 607 East 20th Street, San Bernardino, CA, stated that one of the most important votes the Council will make could be the one they pass today. He expressed his opposition to the revised charter and expounded on those issues which he believes fall short of the test of flexibility and accountability to the people, usurping those rights into an elected body. Charles Brame, P.O. Box 521, San Bernardino, CA, stated he was on the previous charter committee and commented on some of their decisions; noted that there is always a hidden agenda; and advocated a system of checks and balances. Russell Wathby, Sr., 1487 North Morse, San Bernardino, CA, expressed opposition to the new charter and provided his reasoning for same. 10 8/4/2000 Gary Saenz, 623 East 39th Street, San Bernardino, CA, expressed his concerns and opposition to Section 1401, specifically the language which provides that any person appointed to the Board of Library Trustees may be removed by the affirmative vote of at least five members of the Common Council, except for purposes of censorship. Juanita Scott, 1734 West Virginia Street, San Bernardino, CA, stated that she attended many of the Committee's meetings, including some of the focus meetings. She stated that she is opposed to an appointed City Attorney and City Treasurer; opposed to changes in Civil Service, as it removes checks and balances; expressed concern that the process seemed to be going on and on and on; and stated she believed it should be presented to the voters next year, rather than rushing to present it this November. Freddie Spellacy, 3420 North Beverly Drive, San Bernardino, CA, a member of the Charter Review Committee, clarified that the City Council had been receiving on an ongoing basis everything relative to the Charter Review Committee, including agendas, notes, and minutes of the meetings. She expressed disappointment at the potshots being taken at Jim Morris, co-chair of the Committee, and noted that there were some really deep thinkers on the Committee. She stated that there were no preconceived agendas among the Committee members, but noted that there appeared to be many personal agendas everywhere else. She stated that this city will be changed around when we quite trying to protect the eastside, northside, westside, southside or whatever and decide to band together as a city. She stated what the Committee wanted most of all was to get this into the hands of the voters and let them make the decision. Oscar Gonzalez, 635 East Evans Street, San Bernardino, CA, stated that he has attended every Committee meeting since the first of the year, he has asked questions, and he has been told to address his concerns with the Council. He stated that he has waited for the Council to discuss each section of the charter, but he was never asked for his opinion. He stated he was disappointed that public input was never asked of the public, He expressed his belief that the Council would be making a terrible mistake sending this package to the voters. Jim Morris, 776 Bernard Way, San Bernardino, CA, co-chair of the Charter Review Committee, stated that the Committee had written and published a very detailed explanation of its reasoning for the major proposals it had made. He added that it was a public document which has been available for review, and he would not attempt to repeat its contents tonight. Mr. Morris advised that he did not ask to serve in the position of co-chair; that he had intended to serve as a committee member, hut was then asked to be co-chair, and he assumed this position only in an attempt to further this process. He advised that he is a lifetime resident of San Bernardino, born and raised here, and he is proud of this 11 8/4/2000 community. His intentions and motives were no different from any of the other Committee members, which was simply to put forth a document that best represented the guiding principles the Committee had adopted. In response to concerns that he was positioning the law firm for which he works to be somehow vested in the City, he pointed out that the section of the charter relative, to an appointed city attorney requires that the position be a full-time position. Although the committee discussed using a law firm as the City Attorney, they decided it was an important position and needed to be a full-time position. He pointed out that this excludes his firm from ever being appointed as City Attorney, and that he certainly has no intention of asking anybody for such an appointment. Mr. Morris stated that he would like to address some other issues that were raised by several folks. He stated again that he would not try to recite the Committee's rationale for the appointed City Attorney, but he did want to respond to those folks who keep pointing to our County government as a model of what will happen if we appoint a City Attorney--that by changing an elected official to an appointed official that it somehow brings with it bad government. He reminded those folks to look at the next level of government and our current elected state commissioner of insurance. He stated that there are numerable instances where elected offices have their problems. He advised that every Committee member will tell you that no charter, no form of government, no form of constitution could prevent bad persons from doing bad things in government. This is the responsibility of the voters. If the Mayor and City Council appoint a bad City Attorney, then it's the responsibility of the citizens to remove the officials who made that appointment. That's the accountability. The accountability is there. He urged those people to look at this document to remember all the different circumstances where the Mayor's exercise of power is checked by and subject to the confirmation of the Common Council. Mr. Morris stated that his second point has to do with the balance of powers, and the perception that there has been this massive shift in power away from the citizenry and away from the Council to the Mayor. He urged the Council and the public to carefully go through the chart that the Committee prepared relative to the Powers of the Mayor and Common Council, because he believed they would see that although there were some changes, most of them dealt with personnel matters and the removal of certain appointed officials. He advised that the Committee felt all along that the administration of the City belongs with the person whom you elect to be the chief executive officer of the City, and that's the Mayor. If the Mayor appoints bad people to those positions, then remove the Mayor. He reminded the Council, however, that all those appointments are subject to confirmation of the City Council. He urged them to carefully look at the chart. 12 8/4/2000 Mr. Morris noted that there were circumstances where they shifted power to the City Council. However, the vast majority of the issues listed are mere clarifications, which make certain what has been continual, historic practices of the City, It doesn't change things. Many of these are powers that the Mayor already exercises, pursuant to the existing charter. The Committee simply made clear what they thought was unclear when they read the document. They wanted a document that the average citizen could sit down and read and understand. He challenged people to read the existing charter and understand the form of government to which they have consented. He stated that the Committee attempted, and he believes they were successful, in using plain English and straightforward language so someone could sit down and read and understand what is going on. He stated there was no hidden agenda and no intent to try and subversively stick in language which would somehow shift power unbeknownst to the people. In fact, their intent was just the opposite of that. Finally, he addressed those people who have said the document is legally flawed and suspect and that they have problems with it. He stated that the Mayor authorized and sought out other legal counsel, other than those who served on the Committee, to review this document. He stated that the firm of Richards, Watson & Gershon is one of the top three most respected public law firms in this state, who are experts in municipal governance. They looked over this document in great detail and came back and told the Council that there were not any legal problems with this document--it is legally sound in all respects. Council Member Estrada noted that the existing charter states that when a Council member goes off the Council during their term, for whatever reason, there is a special election. The problem is the recommended change, which states that there will not be a special election immediately and the Mayor will now appoint a person to serve in that capacity until an election is held. That is a major change; not a little change, and she stated that she did not agree with it. She spoke regarding the role of the Committee, stating that she did not believe that the Committee was ever told that their work was going to be received and used carte blanche by the Council. She stated that the discussion taking place around the dais is what it is all about--they were elected by their constituents to sit and review and examine and look at a lot of different things because their constituents don't have the time. She stated it was not her intent to tear apart the document the Committee prepared because it provides a basis from which to begin discussion and deliberations for potential changes. Mr. Morris noted that the Committee repeatedly mentioned that the document they made was a mere recommendation to the Mayor, and the only reason some of them were before the Council now, was to simply clarify what their thought process was during the many months they deliberated. The Committee did not expect of intend that their recommendation would see the ballot as is. They understand and are thankful 13 8/4/2000 that this is a decision of the Council. They were simply a group of volunteers appointed by the Mayor to give the Council a recommendation. He explained that a number of individuals had raised the concern that in the interim period when there is no Council person, there is no representation of their ward, and that prior to the special election they would not be represented. In trying to address that concern, they decided to allow the Mayor to appoint, again, with confirmation of a majority of the Council, someone to that office. Mayor Valles pointed out that this would also maintain the consistency of all the elected offices should they become vacant. Council Member Lien stated that she had presented a number of minor changes based solely on a letter Mr. Morris provided to the Council relative to the ramifications of some of the minor changes the Council had made. She added that there has been an assertion that she has gone back to the 7/10/00 document, and she requested that Mr. Morris clarify that these were some specific items which he felt would flaw the document, Mr. Morris advised that the letter the Council received on July 27 was simply an information piece to the City Council to let them understand how the changes they made would affect the document. It certainly was not taking the document all the way back to 7110/00, and if they compared the document they received tonight to the document of 7/10/00 this would be apparent. The changes the Committee proposed were simply some clarifications that they thought were important to maintain consistency in the document and to address some concerns that they had relative to language that was taken out that they thought might cause potential problems down the road. Council Member McGinnis commented on the issue of checks and balances and inquired whether there was any official in the City that the Mayor could appoint without confirmation of the Council. When Mr. Morris stated that he could not think of one, Mr. McGinnis pointed out that in actuality the Mayor does not decide, but a majority of the Council makes that decision. Mr. McGinnis then inquired whether the Mayor could get rid of an official of the City without the Council's approval, and Mr. Morris answered in the affirmative, as in the case of removal of department heads and the removal of the City Administrator. He explained that the feeling of the Committee was that the Mayor is the elected official accountable to the people for the administration of the City. Council Member McGinnis then asked whether the Mayor could get rid of anyone else. Mr. Morris explained that she could dismiss an employee, but only on the recommendation of the department head, Even then, if the employee disagrees with the 14 8/4/2000 decision, he can then take his case to the Civil Service Board. She does not have the sole power to reach down and pluck someone out for dismissal. Mr. Morris advised that the removal power was given to the Mayor so the Mayor could have a staff she could work with. He explained that when a Mayor is put into office that Mayor is charged with, and held accountable, that people do an efficient job administering the City. The Committee felt it was important that if there are persons with whom the Mayor cannot work, the Mayor should have the power to remove that person. If the Mayor should remove someone inappropriately, such as a department head, then the Council has the ability to demand that the person who is appointed to replace that department head is equally qualified, Council Member Suarez asked Mr. Morris how much attention the Committee paid to the input of the citizens during the preparation of the document. Mr. Morris urged the Council to look at the cover letter sent with the Committee's recommendation to the Mayor wherein the Committee outlined the number of hours spent on various aspects of this project, the number of public meetings, the number of hearings, and the number of focus group meetings the Committee held to receive public input. He added that although the meetings were held in rooms big enough to accommodate large numbers of people, usually the turnout was quite low. City Attorney Penman advised that his office had concerns relative to Section 2103 (Municipal taxes) and that Attorneys Allen Gresham and John Nolan were present to address this with the Council. Attorney Johu Nolan explained that their concern relative to Section 2103, had to do with Proposition 218, which requires voter approval in order for there to be assessments and levy. He advised that the wording of Proposition 218 specifically indicates that its effective date is July 1, 1997, and there is a grandfathering of earlier activities prior to that time, He advised that in Section 2203 of the proposed charter there is a blanket readoption of the existing ordinances and other language that relates to what is in existence now. He stated that the concern is whether the readoption of these ordinances, which would otherwise be "218 exempt," would expose them to 218 difficulties--that it is possible that these existing ordinances being readopted by the new charter could be determined to be newly established, even though they are exactly the same, and therefore, not entitled to the grandfathering protection. He explained that there has not been enough time in the evolution of the legal basis or body of law relative to 218 to find anything that can give them absolute guidance on this. 15 8/4/2000 Mayor Valles asked Mr. Penman, in light of the comments just made by Mr. Nolan, whether the City would be safe in saying that this section would also be reserved under Section 2207; and then add Article XXI, Section 2103, to the list of articles already there. City Attorney Penman advised that it would certainly be safer to do this; to include the current language in the current charter as a section that is not amended. Mayor Valles asked the members of the Council to indicate that Article XXI, Section 2103, be added to Section 2207 at the end of the paragraph. Mayor Valles also mentioned that Mr. Gresham's firm had questioned the age limit contained in several of the articles, and this language had been deleted based on the firm's recommendations, Also, Mr. Penman had raised another issue relative to Section 100 (Names and boundaries) and the importance of identifying the existing boundaries of the city, and this information would be included in the appendix, so at the time of the adoption of the new charter, the map of the existing boundaries would also accompany it. Marvin Scoggin, 860 Glendenning Way, San Bernardino, CA, a member of the Charter Review Committee, stated that the Committee had retained a great portion of the existing charter, and it was not a wholesale abandonment of the original document. He pointed out that the Council was provided with written rationale for decisions that were made by the Committee, to help them understand the reasoning behind the decisions, He noted that the Council also had Jim Morris, the Committee co-chair, to answer their questions in person. Mr. Scoggin spoke very highly of Mr. Morris, stating mat he felt he was fair in speaking for all of the Committee members, that Mr. Morris has distinguished himself, and has done so with class. Mr. Scoggin advised that relative to an appointed versus an elected City Attorney, or any other position for that matter that has been changed, the Committee considered these issues very carefully. He spoke regarding the remark made that an appointed city attorney is a corrupt elected official's dream; however, people seem to forget that an elected city attorney can be a corrupt elected official. There is no way to guarantee mat whatever form of charter is put before the people, that it will guarantee protection against corruption. He stated his belief that on the balance of power issue-- that it may not be an issue at all. He noted that two-thirds of seven does come out to five votes, and he does not see a problem with this. He noted that even if a problem arises, there is a provision in the charter to make change. George Theios, a lifetime resident of San Bernardino and also a member of the Charter Review Committee, responded to those individuals who spoke relative to Section 1401 and the removal of a member of the Library Board of Trustees. He stated that when they met with the Board of Library Trustees their main concern was that the 16 8/4/2000 Council not use their power to remove a member as a way of censorship. Therefore, they added the terminology relative to censorship. The Committee's concern was that somebody could be appointed to a commission and if they were not performing then this body wim at least five votes could remove them. Council Member Anderson expressed her concern about making the City Attorney an appointed position, She asked, who has the greatest margin of error--the one person who appoints an attorney or the 125,000 people who have the option of electing a City Attorney? Council Member Lien stated that she believed now would be the time to consider any changes to the 8/4/00 document before the Council actually voted on the resolutions. Mayor Valles stated she wanted to make sure that everyone concurred with the changes itemized on the blue summary sheet dated 8/4/00, which were based on actions that the Council took on Wednesday, July 26, 2000. At this time, she reviewed those changes with me Council, including the language contained in Section 2205 relative to the sunset of current Charter Section 186. Discussion ensued regarding those sections which would be retained from the current charter, and how the content would be conveyed to the voters in an understandable manner, as to exactly what they were voting on. There was concern that the voters would not understand the meaning of a section number only, with the words "(Section Reserved)" next to it. City Attorney Penman advised that it was his understanding that the City Clerk's Office intended to mail to each household with at least one registered voter a copy of the proposed charter. He added that it would be a fairly simple matter to add an appendix listing what is in those sections that will be retained. RECESS MEETING At 8:08 p.m., Mayor Valles declared a five-minute recess. RECONVENE MEETING At 8:24 p.m., Mayor Valles reconvened the joint special meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Valles; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, Director of Human Resources Raya. Absent: None. 17 8/4/2000 Council Member Lien made a motion, seconded by Council Member McGinnis, to accept the San Bernardino City Charter Summary of Changes dated 08/04/00, as submitted. (Note: The vote was taken after discussion.) Concern was again expressed by some members of the Council relative to Section 186 of the current charter and how salaries would be guaranteed for safety personnel. Mayor Valles read the following language, which was added to safeguard the changes contained in proposed Section 2205 relative to safety employees' salaries: "In the event SB402 or similar legislation is repealed, the City of San Bernardino shall maintain in effect the rules and regulations contained in SB402 or any similar binding arbitration action from the State." Skip Kulikoff, President of San Bernardino City Firefighters, stated that the firefighters had an objection to the way Section 186 of the current charter was being handled relative to Senate Bill 402. He stated that SB402 is an unfinished piece of legislation, currently in the Senate, and no one knows what the finished language will be. However, if SB402 passes, regardless of the finished form, Section 186 is gone. It was noted that Jeff Breiten, President of the San Bernardino Police Officers Association, had indicated earlier in the afternoon that they had no problem with the proposed charter changes. Council Member McCammack noted that in the San Bernardino City Charter Summary of Changes there were some items which were not discussed by the Council and she would be voting "no" on these items, Discussion ensued regarding the nature of the items Council Member McCamrnack was referring to, and it was pointed out that these were minor changes made by the City Attorney, City Clerk, and the Mayor. For the benefit of me Council, City Attorney Penman reviewed the changes contained in the summary which were not voted on by the Council. The motion carried by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez. Nays: Council Members Anderson, McCammack, Absent: None. At this time, the changes recommended by Council Member Lien earlier in the meeting were taken individually and considered and voted on by the Council. 18 8/4/2000 Council Member Anderson stated that she felt very offended that things she had discussed with the Council and voted on previously were now coming back to the Council for further consideration. Council Member Lien made a motion, seconded by Council Member McGinnis, that the word "legislative" be deleted from the first line of Section 304 (Powers) of the draft charter dated 8/4/00, The motion carried by the following vote: Ayes: Council Members Lien, McGinnis, Schuetz, Suarez. Nays: Council Members Estrada, Anderson, McCammack. Absent: None. Council Member Lien made a motion, seconded by Council Member McGinnis, to reinstate the stricken language in Section 305 E. (Ordinances, resolutions, and orders _ Date of adoption) of the draft charter dated 8/4/00, which reads, "or the date the Mayor's disapproval is overridden by the Common Council" and "or in those cases where the Mayor's approval is not required" to read as follows: E. Date of Adoption. For ordinances and resolutions, the date of final adoption shall be deemed the earlier of the date of approval by the Mayor, or the date when the time for the Mayor's disapproval expires, or the date the Mayor's disapproval is overridden by the Common Council. For orders of the Common Council, or in those cases where the Mayor's approval is not required, the date of final adoption shall be deemed the date of adoption by the Common Council. The motion carried by McGinnis, Schuetz, Suarez. McCammack. Absent: None. the following vote: Ayes: Council Members Lien, Nays: Council Members Estrada, Anderson, Council Member Lien made a motion, seconded by Council Member McGinnis, to reinstate the stricken language in Section 403 A. (Powers and duties) of the draft charter dated 8/4/00 that reads, "Exercise management authority, including the delegation of discretionary functions over all departments, agencies, and employees of the City."; and that the remainder of Section 403 A" which is double-underlined, be deleted and replaced with a new subsection, which reads: "Observe the conduct of all public officials in the execution of their powers and duties, and protect the public interest by reporting to the Common Council any willful neglect of duty or official misconduct for action in accordance with applicable laws." 19 8/4/2000 The motion carried by McGinnis, Schuetz, Suarez, McCammack. Absent: None. the following vote: Nays: Council Ayes: Council Members Lien, Members Estrada, Anderson, Council Member Lien made a motion, seconded by Council Member McGinnis, that the words, "with 2/3 council approval" be deleted from Section 403 D. (Powers and duties) of the draft charter dated 8/4/00. (Note: The vote was taken after discussion. ) Council Member Anderson stated that she would not be voting for this because she thought it was a just and clear decision that she made previously that a 2/3 vote is needed for a dismissal that is without cause, Discussion ensued regarding addition of the words "with cause" to this section. City Attorney Penman questioned how it could be defended in court that the Mayor and two-thirds of the Council voted to dismiss someone without any cause. He suggested other language which might cover what the Council was wanting to do. Mayor Valles pointed out that currently the Mayor, the City Attorney, and the City Clerk, can dismiss their at-will employees with or without cause; and this can be done without going to the Council for any kind of concurrence. Therefore, she questioned why it should be any different in this section of the charter. City Attorney Penman advised that under the present charter the Mayor can remove a department head, agency head, or other nonelected officer, with cause, without going to the Councilor the Commission, However, to remove an at-will employee with no cause, she would have to have two-thirds vote of the Council. Jim Morris, co-chair of the Committee, advised that the reasoning for not having a two-thirds Council approval was that the Committee felt that the appropriate checks and balances for the appointment of department heads was achieved by requiring the Council's consent when the Mayor appoints somebody, which ensures that good people fill these important offices in the City. However, when it comes to removing those officials, they felt it was important that the Mayor, who is accountable to the citizens for the administration of the city, be able to remove that person as they deem necessary to ensure the efficient and effective administration and management of the city, He pointed out that if you require a Council check on that, it begins to bring the legislative body into being able to control the administration of the city. The Mayor is responsible for the administration of the city and needs to be able to have the loyalty and duty of those officials who will carry out the directions of the Mayor as accountable officials. Council Member Anderson stated she was just trying to maintain a level playing field for all persons involved. 20 8/4/2000 The motion carried by the following vote: McGinnis, Schnetz, Suarez. Nays: Council McCammack. Absent: None, Ayes: Council Members Lien, Members Estrada, Anderson, Council Member Lien made a motion to delete the words, "except employees serving at the pleasure of an elected official or other city officer" from Section 403 D. (Powers and duties). Discussion ensued regarding this matter, City Attorney Penman noted that if the language remained in Section 403 D., it then harmonizes much better with Sections 503 and 602, where reference is made to employees in the City Clerk's Office and the City Attorney's Office. Council Member Lien withdrew her motion. COUNCIL MEMBER ANDERSON EXCUSED At 9: 15 p.m., Council Member Anderson left the Council meeting. Council Member Lien made a motion, seconded by Council Member McGinnis, that me entire Section 408 (Chief of Police - Duties) in the draft charter dated 8/4/00 be deleted and replaced with the following language: "The Mayor shall appoint, and may discipline and remove, a Chief of Police in accordance with Sections 403 C. and 403 D. of this charter. The Chief of Police shall have the powers and duties that are now or may hereafter be conferred upon chiefs of police by laws of the State of California, and such powers and duties shall in all respects be promptly executed by police officers and authorized personnel of the Police Department. The Chief of Police shall enforce the laws of the State of California and the ordinances of the City, and shall arrest all persons suspected of violation of the same." The motion carried by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez. Nays: Council Member McCammack. Abstain: Council Member Anderson. Absent: None. COUNCIL MEMBER ANDERSON RETURNED At 9:19 p.m., Council Member Anderson returned to the Council meeting and took her place at the Council table. Council Member Lien made a motion to delete the words, "All Deputy City Clerks and other employees shall serve at the pleasure of the City Clerk" from Section 503 A. and delete the words, "All Deputy City Attorneys and other employees shall serve at the pleasure of the City Attorney" from Section 602 A. 21 8/4/2000 Discussion ensued regarding this matter and the fact that the Council had just made a decision to retain language in Section 403 D. based on the fact that the language harmonized with this language in Sections 503 and 602. The motion failed for lack of a second. Council Member Lien made a motion, seconded by Council Member Schuetz, that in the second line of Section 902 (Filling vacancy in the Office of the Mayor) in the draft charter dated 8/4/00, that the word "become" be replaced with the words "serve as"; and that the last sentence be deleted, which reads, "Upon the Mayor Pro-Tempore becoming Mayor, said person shall comply with Section 400 of this Charter within a reasonable period of time not to exceed 6 months," The motion carried by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez. Nays: Council Members Anderson, McCammack. Council Member McGinnis made a motion, seconded by Council Member Schuetz, and unanimously carried, that Section 2103 (Municipal taxes) be changed to "Section Reserved"; and that Section 2207 (Effectiveness and repeal of former charter) be amended to read: "Upon the Adoption Date, the provisions of this Charter shall be in full force and effect under the law. The former Charter is hereby repealed except that (1) Charter Section 41 is not repealed or otherwise amended by this Charter, and said Charter Section 41 shall continue in full force and effect in this Charter number as Section 2103, (2) Charter Section 134 and Charter Section 160 through 171, inclusive, . and (3) Charter Section 190, 191 and 192 . . .., City Attorney Penman advised the Council of another concern expressed by Mr. Nolan relative to Proposition 218, and provided the language in the following motion to address this concern. Council Member Suarez made a motion, seconded by Council Member McGinnis, and unanimously carried, that in Section 2203 (Municipal laws and regulations) in the first paragraph, after the word "Charter" in the next to the last sentence, the following language will be inserted: "It is not the intent to re-adopt said ordinances, resolutions, orders, rules, or other regulations, but to continue them in effect." 22 8/412000 City Attorney Penman advised that Mr. Nolan had also proposed this same language for Section 2305 (Effect of invalidity in part); however, as he was reading it over he did not think Section 2305 needed to be changed. Discussion ensued regarding the recommended language changes submitted by Mr. Ed Keller relative to the Library. Said changes would amend Section 1401 (Membership) and Section 1404 (Title to property). City Attorney Penman advised that Mr. Gresham had pointed out that if the purpose for the change was to make sure donations made to the library stay with the library, the first phrase in Section 1404 takes care of that and additional language is not needed. No action was taken relative to Mr. Keller's recommendations. City Attorney Penman advised that because the resolutions refer to the new charter, he felt it would be appropriate, if it was the intention of the Council to approve the entire document as the new charter, that the Council vote to approve the document first and then adopt the resolutions. Council Member Estrada stated that she supported placing the document before the voters; however, she did not support this document. City Attorney Penman encouraged the Council to make sure they understood everything in the document before they cast their votes on this document. Council Member Anderson stated that she did not want to minimize the work of the Committee; however, she felt that she labored in vain for this charter, that it is not a part of her, contains nothing that she suggested, and she does not know how she could support such a document. Council Member Estrada repeated that she did not have an opportunity to thoroughly review all the documents she had received today. She stated this does not mean she is not familiar with some of the information in some of the documents; however, there were changes, She reiterated Mr. Penman's remarks that the Council did not have a review of this latest document. She stated that she had voted the last time and approved in concept the document, but she does not have confidence in the document today with things being taken out and put hack in, etc. She stated she would vote to submit the document to the voters, but as far as supporting the document, this she could not do. Council Member Schuetz made a motion, seconded by Council Member McGinnis, that the draft charter dated 8/4/00, as amended, be approved. 23 8/4/2000 The motion carried by McGinnis, Schuetz, Suarez. McCammack. Absent: None. the following vote: Ayes: Council Members Lien, Nays: Council Members Estrada, Anderson, RES. 2000-231 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO CALLING A SPECIAL MUNICIPAL ELECTION ON A PROPOSED NEW CITY CHARTER AND REQUESTING THAT SAID CITY OF SAN BERNARDINO'S SPECIAL MUNICIPAL ELECTION BE CONSOLIDATED WITH THE NOVEMBER 7, 2000 STATEWIDE PRESIDENTIAL GENERAL ELECTION CONDUCTED BY THE COUNTY OF SAN BERNARDINO. (IA) Council Member McGinnis made a motion, seconded by Council Member Lien, that full reading of the resolution be waived; and that said resolution be adopted. The motion carried and Resolution No. 2000-231 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson, McCammack. Nays: None. Absent: None. City Attorney Penman advised that the resolution proposing the new charter would need to be approved as amended by interlineation due to changes made during tonight's meeting. RES. 2000-232 - RESOLUTION OF THE CITY OF SAN BERNARDINO PROPOSING A NEW CHARTER. (18) Council Member McGinnis made a motion, seconded by Council Member Lien, that full reading of the resolution be waived; and that said resolution be adopted as amended by interlineation beginning on line 17 to include, "( 1) Charter Section 41 is not repealed or otherwise amended by this Charter, and said Charter Section 41 shall continue in full force and effect in this Charter numbered as Section 2103;" and the appropriate renumber of the remaining items in the paragraph to (2) and (3) respectively. The motion carried and Resolution No. 2000-232 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson, McCammack. Nays: None. Absent: None. 24 8/412000 RES. 2000-233 - RESOLUTION OF THE CITY OF SAN BERNARDINO SUBMITTING TO THE QUALIFIED ELECTORS OF SAID CITY A PROPOSED NEW CHARTER. (IC) Council Member Lien made a motion, seconded by Council Member McGinnis, that full reading of the resolution be waived; and that said resolution be adopted. The motion carried and Resolution No. 2000-233 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson, McCammack. Nays: None. Absent: None. ADJOURNMENT (2) At 9:56 p.m., the meeting adjourned. The next joint regular meeting is scheduled for 8:00 a.m., Monday, August 7,2000, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California, RACHEL G, CLARK City Clerk By J2..L ~. Li_+ .p Linda E. Har~ Deputy City Clerk No. of Items: 2 No. of Hours: 4.5 25 8/4/2000