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Home My WebLink About15-Parks and Recreation .... - - CI.TV OF SAN BERNARDI~'" "~qUf'..sT FOR COUNCIL AC\lON :f;.\.'t\... ~.. '0" " '2.1.\ ',' . From: Annie F. Ramos, Director \~ ..~\l- Subject: APPROVAL OF $6,000 FROM 7TH WARD PARK \ EXTn~SION FUND FOR PURCHASE AND INSTAl ~ Dept: Parks, Recreati on & Communi ty Servi ces lATION OF FENCE BETWEEN CAMPO SANTO MEMORIAL PARK AND HOLY ROSARY SCHon l Date: April 24, 1989 J"Yl.{, Synopsis of Previous Council action: None. Recommended motion: That $6,000 from 7th Ward Park Extension Fund for the purchase and installation of fencing between Campo Santo Memorial Park and Holy Rosary School be approved. tk 7 AZ~v t1" Signature . Contact parson: Annie F. Ramos Phone: 5030 7 Supporting data attachad: S ta f f R E po rt Ward: FUNDING REQUIREMENTS: . Amount: $6,000 Sourca: (ACCT. NO.) 241-361-57007 (ACCT. DESCRIPTION) 7th Ward Park Extension Fund Finance: .t1'ffI~u / ;. i~.L._ ,th'" Council Notel: n.02l1 Agenda Item No. /..5 CI~ OF SAN BERNARDICO - REQU,..T FOR COUNCIL AC~OlI APPROVAL OF $6,000 FROM 7TH WARD PARK STAFF REPORT EXTENSION FUND FOR PURCHASE AND INSTAL- LATION OF FENCE BETWEEN CAMPO SANTO MEMORIAL PARK AND HOLY ROSARY SCHOOL. In recent months, there have been several incidents of illicit activities in the section of Campo Santo Park adjacent to the Holy Rosary School playground. In an effort to shield that portion of the park from the children on the playground and to provide a safer play environment, it is recommended that a fence be installed between the properties. The fence, to be installed along the city property line, would be chain link, 6 feet high with plastic slats to obscure the view through the fence. The cost of the contract for installation of the fence by a private contractor will be $8,600. The $6,000 from 7th Ward Funds will be supplemented hy $2,600 from Parks Division operations budget for Maintenance Materials, Account #001-382-53203. This item has been. coordinated with Councilwoman Miller. April 24, 1989 75-0264 - - - - - -. J .-- '""' '- - "'-' CI BERNARDINO 300 NOR~1Sf!~1IlR!E'G'S"1NI!lEf!~1'IRDINO. CALIFORNIA 92418 , '89 MAY 12 P4 :20 JAMES F. PENMAN CITY ATTORNEY 1714) 384-5355 January 26, 1989 Opinion No. 89-2 10.39 COUNCILMAN TOM MINOR Council Office Re: Holy Rosary Academy ISSUE You have asked two questions of this office, which we have stated as follows: 1. May the City pay for, or participate in paying for, repairs to a fence owned by the Holy Rosary Academy? 2. If not, may the City accept a donation of the fence and then move it to its own property and thereafter maintain it? BACKGROUND There currently exists on the Holy Rosary Academy property adjacent to Campo Santo Memorial Park, a city cemetery, a fence to divide the two properties. This fence has been cut allowing neighborhood youths to pass back and forth between the two properties. ANALYSIS The questions presented will be discussed in turn. 1. The initial question relates to the separation of Church and State. In pertinent part, the First Amendment to the United States Constitution provides: .Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereofl .... Jfi' ~)rf?f<' .OJ'. J-'l - - .. - - COUNCILMAN TOM MINOR Ja,l""'ary 26, 1989 P a\,.. Two ,'."""', r_ - -- , This prov1s1on contains two separate and distinct clausesl the Establishment Clause and the Free Exercise Clause, neither of which may be violated. That of primary significance in this discussion is the Establishment Clause. The California Constitution, in two sections, is even more explicit. Article 1, Section 4 reads: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. ... the Legislature shall make no law respecting an establishment of religion. ..." And then Article 16, Section 5 provides: "Neither the legislature, nor any county, city and county, township, school district or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed or sectarian purpose, ~ ~ 12 support ~ sustain anv school, college, university, hospital, or other institu- tion controlled Qy ~ reliaious creed, church, or sectarian denomination what- everl nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, township, or other municipal corporation for any religious creed, church, or sectarian purpose whateverl . . ." (emphasis added) Although this constitutional prohibition seems very clear in its language, the courts have noted that relationships between church and state are virtually inevitable. "... (R)ecognizing that in complex modern society some interaction between government and religious organizations is inevitable, the court has determined that a a law which confers indirect, remote, or incidental benefits upon religious institutions is not, for that reason alone, constitutionally defective." (Citation omitted - California Educational Facilities Authoritv v. Priest (1974) 12 C.3d 593, 5991 see also Zorach v. Clausen (9152) 343 U.S. 306, 314, 72 S. Ct. 679, 684, 96 L. Ed. 9541 and Meek v. Pittenaer (1975) 421 U.S. 349, 359, 95 S. Ct. 1753, 1760, 44 L. Ed. 2d 217) - .. - . COUNCILMAN TOM MINOR Jar~.ry 26, 1989 pa~,,,,,. Three ,."<' """" -- - Although the courts have been vigilant in their protection of the -Wall of Separation- between Church and State, as described by Jefferson (See Everson v. Board of Education. etc. (1947) 330 U.S. 1, 15-16, 67 S. Ct. 504, 511- 512, 91 L. Ed. 711), they have also noted that this wall Ris a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.- (Lemon v. Kurtzman (1971) 403 U.S. 602, 614, 91 S. Ct. 2105, 2112, 29 L. Ed 2d 745; and Wolman v. Walter (1977) 433 U.S. 229, 236, 97 S. Ct. 2593, 2599, 53 L. Ed. 2d 714. Even though this is a difficult area of analysis, we have been provided with a three- prong test to determine if the Establishment Clause has been violated by particular state action or legislation. -First, the statute must have a secular legislative purpose; second, its prin- cipal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster an excessive government entanglement with religion.- (Lemon v. Kurtzman, Suora, 403 U.S. at pp. 612-613, 91 S. Ct. at 2111; Mueller v. Allen (1983) 463 U.S. 388, 394, 103 S. Ct. 3062, 3066, 77 L. Ed. 2d 721)- Of course, in applying this it only serves as a -helpful sign Establishment Clause challenges. U.S. at 394, 103 S. Ct. at 3066). test, we post- in (Mueller must be aware that dealing with v. Allen, Suora, 463 It could be argued that the proposed fence repair does have a secular purpose, that of protecting the Cemetery, but for the fact that the fence does not surround the Cemetery. Perhaps the secular purpose could be found in assisting the police in apprehending fleeing youths by closing off an escape route, but still the primary benefit is to the Academy by improving its security. It seems clear that the proposal does not meet the first prong of the test. But even if the first prong was met, with respect to the second prong of the test, the Supreme Court in Meek v. Pittenqer, Suora, 421 U.S. at 365-366, 95 S. Ct. at 1763, concluded: -Even though earmarked for secular purposes, 'when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed on the religious mission, state aid has the imper- missible primary effect of advancing religion.- (See also Hunt v. McNair (9173) 413 U.S. 734, 93 S. Ct. 2868, 2874, 37 L. Ed 2d 923).- -" - . COUNCILMAN TOM MINOR Jaf'"'"ary 26, 1989 pa~ Four r '-' --- -...) Whether the mission of the proposed recipient of the state aid is noble or generally beneficial to society cannot be a part of a discussion such as this. It is clear that to provide public funds to assist the Academy in maintenance and upkeep of its physical facilities would be to publicly fund a religion and thereby violate the Establishment Clause. The third prong relates to excessive entanglement with religion and it seems clear that if the City were to repair the fence directly or pay a contractor to make such repairs that there would be virtually no entanglement with the sectarian school. Of course facts could be discovered which would show otherwise. Aid to sectarian schools raises issues distinctive in character from aid to other religious institutions. The California Supreme Court in a comprehensive review of this area in California Teachers Assn. v. Riles (1981) 29 C3d 794, reviewed the three prong test cited above and also acknowledged the .child benefit. theory as propounded by the United States Supreme Court in Board of Education v. Allen (1968) 392 U.S. 236, 88 S. Ct. 1923, 20 Led 2d 1060: · ... [TJhe financial benefit provided by the program was to the children and their parents rather than to the parochial schools .... (at pg. 802) The State Supreme Court also cited the decision of the United States Supreme Court in Meek v. Pittenoer (1975) 421 U.S. 349, 362-366, 95 S. Ct. 1753, 44 Led 2d 217, 230-232, which held unconstitutional money grants to repair and maintain facilities and equipment of parochial schools as a subsidy to the schools' religious mission (at pg. 803). 2. The second issue essentially relates to whether the City may accept a gift subject to conditions. It must be assumed that the Academy will only donate the fence to the City if it is moved to City property, retained as a fence and maintained to repair any future openings. Although the acceptance of such a conditioned gift is sUbject to the discretion of the Mayor and Council, (see Charter Section 40(a)), if it is determined that the primary benefit of such a fence is to the sectarian school even if it is on City property and maintained by City then it is prohibited as a violation of the Establishment Clause. From the information available to us, we are unaware of any City benefit arising from the fence. As noted above, it would be a different matter if the City saw the need to completely fence the Cemetery and this fence served as only one part of that project. Based on that presumption, however, it must be concluded that the City also may not accept as a gift and thereafter maintain the fence. - -... - COUNCILMAN TOM MINOR Jar'ar'.[ 26, 1989 Pa\.,. F~ve '-.-'>., - -- CONCLUSION It is the conclusion of this office that the City may neither repair the aforementioned fence as school property nor accept it as a gift, and move it to City property. Respectfully submitted, h DENNIS Sr. Asst. BARLOW City Attorney DAB:mw cc: Mayor City Administrator City Clerk Approved: 7# Attorney