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CITY OF SAN BERNARDINO
INTER-OFFICE MEMORANDUM
RE:
Entered Into Rae, at MCC/CDC M1g:
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City Clerk/CDC Secretary
City of San Bernardino
September 15,2008 Meeting Agenda Item No. 25
September 12, 2008
TO:
Mayor and Common Council
Donn Dimichele, Deputy City Attomeyffi
FROM:
DATE:
This office cannot approve the form ofthe proposed resolution appearing as Item No. 25
on the agenda of the September 15, 2008 meeting of the Mayor and Common Council, nor can
we approve the form of the proposed agreement that is attached to that resolution.
First, while the staff report for the resolution states that seven recipients are
recommended to receive funding, the resolution deals only with the execution of an agreement
with one recipient, the Sinfonia Mexicana. The report explains that the agreements with the
other recipients "will be handled administratively through the Mayor's Office with approval from
the City Manager."
Second, while the agreement with the Sinfonia is to be authorized by the Mayor and
Council and executed by the City Manager, the agreement provides that distribution of funds and
accounting under the agreement will be handled by the Mayor's Office.
Neither the handling by the Mayor's Office of the agreements with the other recipients,
nor the administration by the Mayor's Office of the agreement with the Sinfonia, would be
legally valid. The Mayor and his office lack the legal authority, unilaterally, either to enter into
agreements on behalf of the City or to administer agreements once they are entered into.
Both the Charter and the Municipal Code provide that it is the duty of the City Manager
to execute and enforce contracts on behalf of the City. (Charter Section I 02( c); Municipal Code
Section 2.02.060.) The Charter further provides:
"No claim for commodities furnished, or service performed, shall be valid unless
prior to furnishing such commodities, or the rendition of the service, authority for the
same had been given by the Common Council, the City Manager or some department of
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City government, having the authority so to do. No member of the Cornmon Council, the
City Manager or member of any department, and no City officer, shall have power to
create an indebtedness against the City, or to furnish the basis of a claim without said
authority." (Charter, Section 139.)
The Code further provides that the Director of Finance
"shall supervise all disbursements and expenditures to assure that payment has been
legally authorized and appropriated, and that sufficient unencumbered appropriations
exist for the payment of all claims and expenditures." (Code, Section 2.1 0.030.)
Neither the Charter nor the Code authorizes the Mayor or the Mayor's Office to
unilaterally handle the negotiation, execution, or administration of agreements on behalf of the
City. Nor does either document authorize either the City Manager or the Director of Finance to
delegate to the Mayor or the Mayor's Office their authority and duty to execute, enforce, and
administer agreements and to administer disbursements of funds, respectively. In fact, any such
attempted delegation would violate fundamental principles of municipal law.
"When the Legislature has made clear its intent that one public body or official is to
exercise a specified discretionary power, the power is in the nature of a public trust and may not
be exercised by others in the absence of statutory authorization." (Bagley v. City of Manhattan
Beach (1976) 18 Ca1.3d 22, 24].) "'The most general characteristic ofa public officer ... is that a
public duty is delegated and entrusted to him, as agent, the performance of which is an exercise
of a part of the governmental functions of the particular political unit for which he, as agent, is
acting.'" (Lockyer v. City and County of San Francisco (2004) 33 Ca1.4th 1055, 1080.) "'An
executive or administrative officer can no more abdicate responsibility for executing the laws
than the Legislature can be permitted to usurp it.'" (Id. at p. 1081 [Mayor could not direct City
Clerk to issue same-sex marriage certificates based on Mayor's determination that statutes
restricting marriage to heterosexual couples were unconstitutional].)
Since we see no legal basis for the Mayor's Office to handle the execution or
administration of funding agreements as contemplated in the proposed resolution and agreement,
we must respectfully decline to approve either document.
cc: James F. Penman, City Attorney
Rachel Clark, City Clerk
Lori Sassoon, Acting City Manager
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