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HomeMy WebLinkAbout01-Mayor's Office 1 2 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO, CALIFORNIA APPROVING THE APPOINTMENT OF CERTAIN REPRESENTATIVES TO SERVE ON THE SAN BERNARDINO AIRPORT AUTHORITY. 4 5 6 7 8 9 WHEREAS, the City of San Bernardino (the "city") is a charter city, duly created and existing pursuant to the Constitution and the laws of the State of California; and WHEREAS, the Ci ty is a party to that certain agreement entitled "Joint Exercise of Powers Agreement Creating An Agency To 10 Be Known 11 "Airport 12 provides As The San ~ernardino Regional Airport Authority" (the Authority Agreement") which Airport Authority Agreement for the establishment of the San Bernardino Regional 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / / / / Airport Authority' and WHEREAS, in accordance with the terms of the Airport Authority Agreement, the legislative body of the City must appoint elected officials of the City to Serve as Members on the governing board of the San Bernardino Regional Airport Authority; and WHEREAS, pursuant to the provisions of the charter of the City, the Mayor shall appoint all representatives of the city to boards, commissions and committees subject to approval by the Council; and WHEREAS, the Council of the City hereby deems it desirable to approve the appointment of two (2) elected officials as named #/ 1 herein to serve as the primary representatives and one (1) elected 2 official to serve as the alternate representative on the San 3 Bernardino Regional Airport Authority. 4 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL 5 OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. The Recitals hereinabove are true and correct and 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are incorporated herein by reference. SECTION 2. The Mayor hereby appoints and to serve as the City'S primary representatives on the San Bernardino Regional Airport Authority. SECTION 3. The Mayor hereby appoints to serv~ as the City'S alternate representative on the San Bernardino \ Regiona~ Airport Authority. SECTION 4. The courtcil hereby confirms the appointment of and to serve as the City's primary representatives on the San Bernardino Regional Airport Authority. SECTION 5. The Council hereby confirms the appointment of to serve as the City'S alternate representative on the San Bernardino Regional Airport Authority. SECTION 6. Such primary representatives and the alternate 2 1 representative shall have authority to represent the city in 2 accordance with the provisions of the Airport Authority Agreement. 9 Bernardino at a 10 day of 11 to wit: 12 council Members: 13 ESTRADA 14 REILLY 15 HERNANDEZ 16 MAUDSLEY 17 MINOR 18 POPE-LUDLAM 19 MILLER 20 21 22 23 / / / / 24 / / / / 25 / / / / 26 / / / / 27 28 3 4 SECTION 7. 5 adoption. 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly 8 adopted by the Mayor and Common Council of the City of San meeting thereof, held on the , 1992, by the following vote This Resolution shall take effect upon its AYES NAYS ABSTAIN ABSENr City Clerk 3 1 RESOLUTION APPOINTING CERTAIN REPRESENTATIVES TO SERVE ON THE SAN BERNARDINO REGIONAL AIRPORT AUTHORITY. 2 3 4 5 6 7 8 The foregoing resolution is hereby approved this day of , 1992. w. R. "BOB" HOLCOMB Mayor Approved as to form 9 and legal content: 10 JAMES F. PENMAN City Attorney 11 :: ~~-) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney October 15, 1991 Opini.on No. 91-33 TO: Council Member Ralph Hernandez RE: Responsibility for Appointments to the Inland Valley Development Agency ISSUE You have asked for an opinion on where the responsibility lies for appointments to the Inland Valley Development Agency (IVDA). CONCLUSION As with nearly all other appointments made in the City the City's representatives to the Inland Valley Development Agency are appointed by the Mayor with the approval of the Common Council. Removal from those appointments follows the same process. ANALYSIS The Inland Valley Development Agency (IVDA) is a joint powers agency established pursuant to state law to provide for the redevelopment of Norton Air Force Base and surrounding areas upon the closure of the Base. Members of the IVDA include the County, the City of Lorna Linda, the City of Colton as well as the City of San Bernardino. The Joint Powers Agreement establishing the IVDA dated February 12, 1990 provides as follows: "Each Member [agency] by official action of its city councilor Board of Supervisors, as appropriate, shall designate one (1) elected official of the Member for each vote and Board posi tion as the primary representatives for each member." (Section 2.09) DABjsesjIVDA-2.opn 1 CITY HALL 300 NORTH '0' STREET · SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 TO: Council Member Ralph Hernandez RE: Responsibility for Appointments to the Inland Valley Development Agency Page 2 Al though this provision states that by action of "its city Council" an appointment is made to the IVDA Board, this wording cannot be construed to direct how that selection is to be made. It only directs that each member agency take official action by whatever process it follows to select such representatives. The Joint Powers Agreement limits that selection to elected officials and requires that official action be taken. As to how the selection process is conducted in the City of San Bernardino we must look to the City Charter. Charter Section 40(s) provides as follows: "[The Mayor and] Council shall have power to appoint...such...subordinates, officers and employees, as they may deem proper..." Then Charter Section 51 adds: "The Mayor, with the consent and approval of the Common Council, shall appoint all officers, and fill all vacancies in an elective office not otherwise provided for in this Charter..." There is no provision in the Charter giving the Council independent appointment power over any position or office, except when the office of Mayor is vacant (see Charter Section 51). In fact, the Council is clearly given the legislative power of the City (Charter Section 30) as opposed to any executive power which would include making appointments. In contrast the Mayor is named as the Chief Executive Officer of the City (Section 50) and except in his or her absence all appointment power is vested in this office. This i~ further supported by the Mayor's Charter responsibility to 3ee that all contracts and agreements with the City are faithfully kept and fully performed..." (Charter Section 52) This would include Joint Powers Agreements. Just as the appointive power is vested in the Mayor with the approval of the Council, so too does the Mayor hold the removal power (see Charter Sections 50, 52 and 256). The result is that removal from the IVDA Board would be by action of the Mayor with the approval of the Council. III III DAB/ses/IVDA-2.opn 2 TO: Council Member Ralph Hernandez RE: Responsibility for Appointments to the Inland Valley Development Agency Page 3 In two instances the Charter deviates from the standard removal process. Charter Section 160 provides that members of the Water Board "maybe removed at any time by the affirmative vote of five Councilmen..." Similar language is found in Section 215 with reference to the members of the Park and Recreation Commission. Rather than providing support for the argument that the Council has general independent removal power, these references show clearly that only where that power is specifically granted does it exist. It is enlightening to note that a similar grant of power is not included in the provisions relating to the Library Board (Charter Sections 205 to 212) It has been suggested that San Bernardino Municipal Code Chapter 2.17 relating to the various boards, bureaus and commissions in the City codifies a council removal process since it provides that "Nomination and appointment of a replacement member at any time shall terminate the appointment of any member so replaced, without need for formal removal action." (SBMC ~2.17.030). In this Chapter it provides that each Council member may nominate one member of these bodies and the Mayor may nominate two, resulting in nine member agencies. First of all, this process is not inconsistent with the appointment power of the Mayor. It merely provides that Council members may nominate individuals for such appointment and approval. The Mayor's power need not be exercised formally. The decision not to object to a nomination is actually an informal appointment of that individual subject to Council confirmation. But even if this process were read differently, to somehow contradict the appointment and removal power of the Mayor, we have often concluded, and it is a matter of clear standing law, that no ordinance may violate the terms of the Charter. If it is found to be in violation it is unenforceable to that extent. But one of the primary rules of statutory construction is to attempt to harmonize such enactments before finding a clear conflict. (see Estate of Yush (1970) 8 CA 3d 251, 255; and 58 Cal Jur 3d "Statutes" ~l08). As noted above it is easy to harmonize the appointment and removal provisions as the informal exercise of the Mayor's appointment power. As to possible past practices relating to other multi jurisdiction agencies and Joint Powers agreements, as noted above an action in violation of the Charter is not enforceable, and certainly cannot be used as precedent for future actions. III III DAB/ses/IVDA-2.opn 3 TO: Council Member Ralph Hernandez RE: Responsibility for Appointments to the Inland Valley Development Agency Page 4 It has been suggested that perhaps this general removal power is inherent in the terms of Charter Section 40(aa). This Section provides as follows: "(aa) Other powers. Council shall have power to pass all orders, resolutions and ordinances and to do and perform any and all other acts and things necessary or proper to complete execution of the powers vested by law or this Charter, or inherent in the municipality, or that may be necessary or proper for the general welfare of the City or its inhabitants." First of all, "Council" is defined in the introduction to Section 40 as "Mayor and Common Counci 1," so to say in the subsections to Section 40 that the Council is to do an act is actually saying that the Mayor and Council are to do that act. But in any event, this language grants the Mayor and Council powers in addition to those outlined elsewhere in the Charter. It does not grant powers in contravention of other powers so granted. This Section is not independent authority for a removal power vested in the Council alone. The conclusion must be that, except where the Charter has specifically provided otherwise, appointments and removals are the responsibility of the executive subject to the approval of the Councilor the legislative branch. Concur: Respectfully submitted, ~~ Sr. Asst. City Attorney JA~S F. PENMAN I . ~ J<t.~ l /-~~~~ r~/ty Attorney ~c: Mayor W.R. Holcomb Council Members Rachel Krasney, c~ty Clerk David C. Kennedy, ~ity Treasurer Shauna Clark, City Administrator All Department Heads DABjsesjIVDA-2.opn 4 , -j(u/10L POSITION STATEMENT OF NORRIS P. GREGORY, JR., FORMER SIXTH WARD CITY COUNCILMAN OF THE CITY OF SAN BERNARDINO, CA - TENURE FROM 1967 TO 1975 MUCH OF TODAY'S CONCERN AND DELIBERATIONS RELATE TO THE DISSENTION WHICH HAS BEEN PUBLICLY DISPLAYED AND EXISTS BETWEEN THE EXECUTIVE AND LEGISLATIVE BRANCHES OF OUR MUNICIPAL FORM OF GOVERNMENT. THIS EXCHANGE OF OPINIONS AND POSITIONS IS, IN MY OPINION, NOTHING NEW OR EXTRAORDINARY. THE PERSISTENCE AND EXTENSION OF SUCH DISSENTION AND VOLA- TILE DISAGREEMENT, HOWEVER, IS A MORE RECENT, LINGERING AND HURTFUL PHENOMENON - OfTEN LEADING TO LEGISLATIVE PARALYSIS OF OUR CITY. THE CITY OF SAN BERNARDINO HAS AN ELECTED MAYOR WHO, BY CHARTER DECREE AND GENERAL INTERPRETATION,~HE ROLE AND RIGHT TO ^ SPEAK FOR THE CITY AS ITS FORMAL REPRESENTATIVE. OUR CURRENT MAYOR, WITH HIS PROVEN LEADERSHIP AND ADMINISTRA- TIVE CAPABILITIES, ALONG WITH HIS INVALUABLE EXPERIENCE AND AT- TRIBUTE OF BEING A HIGHLY EDUCATED, WELL TRAINED, EXPERIENCED, AND RESPECTED ATTORNEY-AT-LAW, OFFERS THE CITY A RESPECTED AND MOST FORMIDABLE ADVOCATE IN THE ARENA OF MUNICIPAL DEBATES AND NEGOTIATIONS. WHEN VALUABLE ASSETS AND BENEFITS ARE "ON THE LINE," SOME- TIMES, IT IS OfTEN NECESSARY TO SACRIFICE FINESSE, PROPER DE- CORUM AND SUAVE BEHAVIOR IN THE INTEREST OF "GAINING ATTENTION AND AWARENESS" FOR THE GOAL OF PROTECTING THE ASSETS AND BENEFITS TO ACCRUE TO THE CITY OF SAN BERNARDINO. WHILE EACH COUNCILPERSON HAS A PART TO PLAY IN MUNICIPAL GOVERNING, EACH REPRESENTING APPROXIMATELY 24,000 CITIZENS, IT WAS INTENDED, FROM MY POINT OF VIEW, THAT THE COUNCIL ACT IN UNISON AS A WHOLE AND AS THE BACKBONE OF THE CITY, WHILE THE CHIEF EXECUTIVE, THE MAYOR, ACTS AS ITS LEADER, IN ALL ASPECTS OF REPRE- SENTATION OF THE CITY. , '" OF COURSE, ONE COULD QUESTION WHY WOULD I, A FORMER COUNCILMAN, OFTEN IN DISAGREEMENT WITH THOSE MAYORS WITH WHOM I HAVE SERVED, CAN COME FORWARD TO PUBLICLY RECOGNIZE AND ACK- NOWLEDGE THE POSITION OF LEADERSHIP BESTOWED BY THE CHARTER OF OUR CITY UPON THE MAYOR, IN THIS CASE MAYOR BOB HOLCOMB. BUT, NOW WE ARE AT A CRITICAL TIME IN OUR HISTORY FOR THE CITY OF SAN BERNARDINO AND IT'S FUTURE WITH THE CLOSING OF A VITAL LIFELINE OF ECONOMIC INFLUENCE OF NORTON AIR FORCE BASE IN CALENDAR YEAR 1994. AND, IT BECOMES CRUCIAL THAT OUR ELECTED OFFICIALS REACH A STATE OF HARMONY FOR THE PUBLIC GOOD AND BENEFIT OF OUR VERY SURVIVIAL. THEREFORE, THE MAYOR OF THE CITY OF SAN BERNARDINO, NO MATTER WHO THE INCUBENT, DESERVES AND SHOULD BE ENTITLED TO LEAD THE CITY AND MAINTAIN THE POSITION OF BEING THE PRIMARY SPOKESPERSON. THANK YOU ( ( ffCS (}Y\ ~ \//