HomeMy WebLinkAbout23- Administrator's Office CITY OF SAN EERNARDINO REQUEST FOR COUNCIL ACTION
From: Fred Wilson Subject: Code -Compliance Consolidation
Dept: Administrator ' s Office
Date: May 22, 1996 ' I~ c NAL
Synopsis of Previous Council action:
01/22/96 -- The Mayor and Common Council directed the City Administrator
to develop a comprehensive blight reduction strategy and
bring back recommendations for Council review.
Recommended motions :
1. Establish a new Code Compliance Division which incorporates code enforcement,vehicle abatement,weed abatement and graffiti
abatement as a division of the City Administrator's Office;
2. Establish one(1)Code Compliance Manager position,Range 4455,$4,294-$5,219/month;
3. Establish the position of Code Compliance Officer II,Range 1354,$2,595-$3,154/month;
4. Establish the position of Code Compliance Officer I,Range 1320,$2,201-$2,675/month;
5. Retitle one(1)Code Compliance Supervisor,Range 2420,$3,606-$4,383/month to Code Compliance Field Supervisor,Range 2420
$3,606-$4,383/month;
6. Establish one(1)position of Code Compliance Field Supervisor,Range 2420,$3,606-$4,383/month;
(next page) Signature
Contact person: Fred Wilson Phone: 5122
Supporting data attached: Staff Report Ward: N/A
FUNDING REQUIREMENTS: Amount: $86, 600. 00
Source: (Acct. No.)
(Acct. Description) CDBG
Finance:
Council Notes:
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Recommended Motions (cont'd)
7. Retitle one (1) Parking Control Supervisor position, Range 2333, $2,337- $2,840/month
to Code Compliance Field Representative, Range 2333, $2,337 - $2,840 month; and
delete the classification of Parking Control Supervisor, Range 2333, $2,337 -
$2,840/month;
8. Transfer two (2) Parking Control Checker/Vehicle Abatement positions and one (1)
Account Clerk in Facilities Management Division to Code Compliance Division;
9. Upgrade two (2) Parking Control Checker/Vehicle Abatement positions, Range 1292,
$1,905 - $2,315/month to Code Compliance Officer I positions, Range 1321, $2,201 -
$2,675/month;
10. Transfer the Graffiti Abatement Program coordination to the Code Compliance Division;
11. Transfer one (1) Weed Abatement Coordinator and two (2) Weed Abatement Aide
positions in the Public Services Department to new Code Compliance Division;
12. Delete the classification of Senior Code Compliance Officer, Range 1373, $2,853 -
$3,467/month.
STAFF REPORT
BACKGROUND
At the Council meeting of January 22, 1996, the City Administrator was directed to develop a
comprehensive blight reduction strategy and bring back recommendations for Council review.
The purpose of this report is to provide the Council with an overview of the existing code
enforcement operations and recommend an alternative to improve the coordination and
administration of these programs.
Code enforcement for purposes of this report consists of the following functions:
Planning & Building Services Department
► Code Compliance
► Rental Housing
► Neighborhood Revitalization Team
► Neighborhood Services Team
Facilities Management
► Vehicle Abatement
Public Services Department
► Weed Abatement
Mayor's Office
i ► Graffiti Abatement
i The Police Department through its Problem Oriented Police (POP) Program is involved in code
enforcement related activities, primarily through the Neighborhood Services Teams. The Fire
i Department through the Fire Marshal conducts fire inspections and responds to complaints on
fire code violations. A fire inspector is also assigned to the Rio Vista team.
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As part of this analysis staff members in the code compliance division, rental housing division,
I vehicle abatement, and weed abatement were interviewed. In addition, each division's programs
were reviewed.
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OVERVIEW
The following is a brief description of the code enforcement programs in the City:
Code Compliance Division -- Responsible for assuring compliance with City codes and
ordinances pertaining to zoning, substandard housing, health and safety issues. The current
staffing level includes 1 Code Compliance Supervisor, 1 Senior Code Compliance Officer
(vacant), 3 Code Compliance Officers, and 2 Clerk Typist positions. The code officers' primary
focus is reactive in nature responding to complaints and follow-up as necessary. Each of the
officers is assigned to an area of the city and is responsible for addressing the complaints in their
respective areas. On an average day, a code compliance officer will handle approximately ten
(10) complaints.
Neighborhood Revitalization Team (NRT) -- The CDBG funded program consist of (3) Code
Compliance Officers, and (1) Clerk Typist II. The focus of the team's efforts is in proactive
code enforcement. Target areas are first identified (within CDBG qualified areas). The
approach used by the NRT team is initially posting notices informing residents of the inspection;
the team then walks each of the streets in a targeted area notifying property owners of code
violations and providing recommendations on abatement alternatives. According to the NRT
team, voluntary compliance is achieved in many instances. For those residents who do not
comply, the standard abatement process is followed. Initially, the focus of the team was
primarily on property maintenance issues with the more complex abatement cases referred to the
Code Compliance Division for follow-up. This practice has now ended and the NRT team is
now handling the majority of the code violations they encounter in their target areas.
Neighborhood Services Team -- This team is RDA funded and is currently assigned to Arden-
Guthrie and Kingman Street. The team uses the equivalent services of 1 General Building
Inspector, 1 Code Compliance Officer, and 1 Clerk Typist II position. The goal of the team is
to reduce crime, improve the quality of life through enforcement of property maintenance
standards and building inspection. Their duties and responsibilities are coordinated through the
respective teams.
Rio Vista -- Also considered as a Neighborhood Services Team, currently is staffed with a full-
time Building Inspector and Fire Inspector and is RDA funded. This team also has the services
of a Probation Officer and receives other assistance from the County Department of Aging and
Family Services.
Rental Housing Program -- Targets rental properties that do not meet property maintenance and
building code standards. The Inspectors currently work with owners to bring rental properties
up to City codes. The program, which was established approximately a year ago, consists of
1 one-half time Supervisor, 1 Senior Housing Inspector, 4 Housing Inspectors, and 2 Clerk
Typist II positions. Rental housing is closely integrated with the existing building inspection
function both in terms of supervision as well as inspection activities. For this reason,
consolidation of this program was not considered as part of this report.
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Vehicle Abatement Program -- The Facilities Management Division is responsible for the
abatement and the removal of abandoned, dismantled or inoperative vehicles on private
or public properties. The division consists of 1 Supervisor whose time is split supervising
parking control and vehicle abatement and 2 Vehicle Abatement Officers. One Account Clerk
provides administrative support to the program. Geographically, each officer is assigned one
half of the city. Their time is spent responding to complaints with some time spent on proactive
enforcement.
Weed Abatement Program -- The Public Services Department is responsible for the abatement
of weeds on vacant or unimproved parcels. The division consists of a Weed Abatement
Coordinator and 2 Abatement Aide positions. During the previous year approximately 8,500
notices were sent. Approximately 3,000 notices were issued to the City's weed abatement
contractor to abate weeds with approximately 1,850 parcels actually abated.
The following is a listing of the approved budgets for each of these programs this fiscal year:
Code Enforcement $ 561,500
Neighborhood Revitalization Program 244,100
Arden-Guthrie Blight Program 145,600
Weed Abatement 396,900
Vehicle Abatement 168,200
Graffiti Abatement 392,600
Total $1,908,900
ISSUES
I The major areas that were identified as key issues included:
► A need to better coordinate these programs.
► A need to establish a single position to assume overall coordination and supervision
of the code enforcement related programs.
► A need to cross-train the employees so that they can handle all types of complaints.
► Additional training for employees.
► Improve procedures for handling and follow-up of complaints.
The responsibilities for the Code Enforcement related programs that have been identified are
currently spread among three departments. Additionally, both the Police and Fire Departments
handle certain related activities. Although coordination between the programs does occur,
improvements can be made in order to maximize resources. It was recognized that consolidating
the various programs under a single division would be the first step in meeting this goal.
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Secondarily, a need to cross train the employees in these various programs was also identified
as an issue. An individual responding to a code violation would have the training and authority
to handle the problem without a need to call for another individual to conduct the inspection.
Another issue identified was the Computerized Complaint System and the lack of a standardized
street directory that would help to eliminate multiple complaint filings for a single violation.
From discussions with staff it appears that, in may cases, as complaint calls come in they are
entered onto the system without checking for duplication. Part of this problem can be attributed
to the lack of a standard street directory. The other element of the problem appears to be a lack
of a central complaint handling desk. The new Sierra Permit Tracking System which will be
on-line by the summer, should alleviate the street directory issue. The issue of establishing a
central complaint handling system should be addressed in the consolidated division, although
steps have been taken recently to improve this situation.
ALTERNATIVES
Various alternatives for the organization and consolidation of the code enforcement related
programs in the City were reviewed. The primary criteria for review of the alternatives
included:
► Consolidation of all code enforcement programs
► Maximize available resources
► Retain integrity of rental housing program
The recommended changes to consolidate the code enforcement programs of the City are
summarized below:
► Establish a new Code Compliance Division which incorporates code enforcement,
vehicle abatement, weed abatement, and graffiti abatement programs as a division
of the City Administrator's Office.
► Establish a new position of Code Compliance Manager to supervise and
coordinate the programs.
► Establish a Code Compliance Officer I and II job classification.
► Establish one (1) additional position of Code Compliance Field Supervisor.
► Transfer the 2 Parking Control Checker/Vehicle Abatement positions in Facilities
Management to the new division and upgrade the positions to Code Compliance
Officer I positions.
► Transfer the Parking Control Supervisor and Account Clerk I in Facilities
Management to the new division. Change the title of the Supervisor to Code
Compliance Field Representative.
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► Transfer one(1)Weed Abatement Coordinator and two (2)Weed Abatement Aide
positions in the Public Services Department to new Code Compliance Division;
► Transfer Graffiti Abatement Program coordination to the new Code Compliance
Division.
A proposed organizational chart depicting the staffing reporting relationships and responsibilities
of the new division is provided in Attachment A.
The recommended structure for the new division is shown on the Organizational Chart in
Attachment A. It is characterized by the following new positions:
► Code Compliance Manager
-- Responsible for overall supervision of division and coordination of all
code enforcement related activities;
-- Plans, organizes and directs the work of code compliance and abatement
personnel engaged in the enforcement of the City's various municipal
codes and ordinances.
► Code Compliance Field Supervisor
-- Establishment of a second supervisor position. One would supervise the
activities of the code compliance field personnel. Second supervisor
position would coordinate special projects including the Neighborhood
Services Teams, major commercial demolitions, sign abatement and the
Voluntary Code Education Program.
► Code Compliance Field Representative
-- Previously titled Parking Control Supervisor; assists in the coordination
of code compliance programs; acts as resource person to division
personnel.
► Code Compliance Officer II
-- Journey level generalist class involved in the enforcement of City codes
(equivalent to existing code enforcement officers - no change in pay).
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► Code Compliance Officer I
-- Entry level generalist class involved in enforcement of City codes.
(Note: Two Parking Control Checker/Vehicle Abatement positions would
be eliminated with the establishment of these positions.)
SUMMARY OF COSTS
The following is a summary of the cost associated with the consolidation of code enforcement:
ADDITIONS (One-year costing, salary and benefits - beginning July 1, 1996)
Code Compliance Manager - Range 4455
Step 1, 6 mos; Step 2, 6 mos. plus benefits = $71,251
Code Compliance Field Supervisor - Range 2420
Step 1, 6 mos; Step 2, 6 mos. plus benefits = $56,979
Upgrade Parking Control Checker/Vehicle Abatement, Step 5,
to Code Compliance Officer I, Step 3 = $2,427/mo.
Difference = $1.72 7 between the two positions
New Additions:
Code Compliance Manager $ 71,251
Code Compliance Field Supervisor 56,979
Reclass Prkg Cntrl to CCO I (2) 3,454
Deletions (see below)
$131,684
DELETIONS (One-year costing, salary and benefits - beginning July 1, 1996)
Senior Code Compliance Officer, Range 1373
Step 1, 6 mos; Step 2, 6 mos. + bnfts = $ 45,088
Net Deletions:
Senior Code Compliance Officer $ 45,088
NET COST
Net Additions $131,684
Net Deletions - 45,088
Cost $ 86,596
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FUNDING SOURCES
It is proposed to utilize the following funding sources to implement these recommendations:
► CDBG funding -- The Council recently approved an allocation of $531,650
for the Fiscal Year 96-97 Neighborhood Revitalization Program. The initial
budget submittal was $520,500. The difference of $11,150 plus reallocating
funds in the approved budget in the amount of$20,000 (initially budgeted for
materials/supplies and vehicle replacement) frees up$31,150 of the additional
costs. In addition, a request will also be made in late June to apply for
unexpended CDBG.
► Refuse funds -- In the event that additional CDBG funding is not granted, it
is recommended that the in-lieu transfer from the refuse fund to general fund
be adjusted accordingly to fund the difference.
Note:
In an effort to ensure that workload issues are properly balanced within the
new division, staff will be conducting a productivity and work flow analysis
with the assistance of an outside firm shortly after the consolidation has taken
place.
Any savings in manpower and resource allocation resulting from this study
will help to reduce the need for additional funds.
Attachments:
A - Code Compliance Reorganization
B - Proposed Job Descriptions
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ATTACHMENT "B"
MW Mr's
CODE COMPLIANCE MANAGER (U) DRAI_
JOB DESCRIPTION
Under general administrative direction, organizes, directs,
administers and evaluates programs of the Code Enforcement
Division, including enforcement of municipal codes and ordinances
related to zoning, land use, housing, sanitation, litter, public
nuisance, weed abatement and vehicle abatement; and performs other
related work as required.
REPRESENTATIVE DUTIES
Provides courteous and expeditious customer service to the general
public and City department staffs.
Plans, organizes and directs the work of code enforcement and
abatement personnel engaged in the enforcement of the City's
various municipal codes and ordinances. Plans, supervises and
implements special enforcement and public information programs
which focus on the compliance requirements of City codes and
ordinances.
Supervises, reviews and evaluates division personnel regarding job
performance and makes recommendations; prepares and monitors the
division budget for adequate control of budgetary expenditures;
collects, analyzes and interprets data for purposes of special
studies and reports.
Prepares formal written and oral reports for presentation to
management staff, the Mayor and Common Council and community
groups; receives and responds to the more complex and sensitive
citizen complaints, inquiries and requests for information
regarding code compliance and violations procedures.
Promotes public interest and participation in neighborhood clean-up
and beautification activities by preparing and disseminating
pertinent information and attending conferences with other groups
or officials, and through public education programs. Routinely
adheres to and maintains a positive attitude towards City and
Division goals; and performs related work as required.
MINIMUM QUALIFICATIONS
Bachelor's degree in Business Administration, Public Administration
or a closely related field, and three (3) years of responsible
managerial and supervisory experience performing enforcement of
municipal codes and ordinances or other responsible administrative
work. Up to 2 additional years of the specified experience may
substitute for up to 2 years of the required education on the basis
of 30 semester units being equivalent to 1 year of experience.
Possession of a valid Class "C" California Driver's License is
required.
GENERAL QUALIFICATIONS
Knowledge of:
Federal, state and local laws, codes, ordinances, rules
and regulations related to zoning and neighborhood
maintenance;
Principles of management, supervision and training;
Budget preparation principles, including cost estimating
and expenditure control;
Principles of research, analysis and report writing;
Public relations principles and effective customer
service techniques.
Ability to:
See in the normal visual range, with or without correction;
Hear in the normal audio range, with or without correction;
Work independently with little direction;
Research data and prepare reports and make presentations;
Communicate effectively, orally and in writing;
Develop and monitor a division budget;
Interpret, apply and explain laws, codes, regulations,
policies and procedures;
Analyze situations accurately and adopt effective
courses of action;
Train, supervise and evaluate subordinate personnel;
Establish and maintain effective relationships with all
those contacted in the course of work.
ORGANIZATIONAL RELATIONSHIPS
The Code Compliance Manager is a Division Head in the City
Administrator's Department, and reports to the City Administrator.
APPROVED: DATE:
Director of Personnel
JD: CODE COMPLIANCE MANAGER (U) 5/22/96 mw
CODE COMPLIANCE FIELD SUPERVISOR
JOB DESCRIPTION
Under general direction, plans, organizes, supervises and reviews
the work of professional, technical and clerical subordinates
engaged in the enforcement of municipal and other related codes
including zoning, land use, housing, litter, sanitation and other
public nuisance code provisions; provides leadership and
coordination to the code compliance program and related programs
and activities; and performs other related work as required.
REPRESENTATIVE DUTIES
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Develops, implements, modifies and administers systems, policies,
and procedures involving the City's property maintenance codes and
other related nuisance codes; plans, organizes and directs the
work performed by professional and technical employees in a variety
of code compliance activities.
Plans, supervises and reviews the development of special
enforcement and public information programs which focus on the
compliance requirements of City codes and ordinances; serves in
the process of appeals; organizes, manages and coordinates citizen
complaints to effectively deal with code compliance violations.
Responds to more complex and sensitive citizens complaints,
inquiries and requests for information regarding code compliance
and violations procedures; evaluates all court/legal actions
against violations of codes and related ordinances; testifies in
court and works with attorney, judges and law enforcement personnel
as necessary.
Gives public presentations to legislative bodies, boards,
commissions and community organizations regarding municipal code
compliance; prepares and administers the section budget; prepares
memos, correspondence and reports regarding code compliance
activities; and supervises, trains and evaluates subordinate
professional, technical and clerical personnel.
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MINIMUM QUALIFICATIONS
30 college semester units (45 quarter units) with emphasis in real
property, urban planning, land use or construction technology; and
3 years experience in the field of real property or construction
management where extensive knowledge and research skills were
acquired in real property law, zoning and land use standards,
housing and habitability standards, public health and environmental
hazards, public nuisance and unsafe buildings, of which 1 year of
the experience must be at a supervisory level . Additional
experience of the specified type may be substituted for the
required education on the basis of 1 year experience being
equivalent to 30 semester units. Successful completion of the PC
832 course will be required within 12 months of employment.
Possession of a valid Class "C" California Driver's License is
required.
GENERAL QUALIFICATIONS
Knowledge of:
Municipal codes, ordinances, rules and regulations;
Legal process, including right of entry and due process;
City, State, and Federal Laws and requirements regarding
health and safety;
General law enforcement procedures, policies and techniques as
it relates to code compliance;
Principles and practices of organization, administration and
program budget and personnel management.
Ability to:
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Commuri catei i clearlyiiidhd....d6nc sely .:.orally and in writing;
Understand and interpret municipal and other applicable codes
and determine the most effective method for collecting
violations;
Diplomatically deal with the public and other government
agencies in the enforcement of ordinances and
regulations;
Select, supervise, train and evaluate subordinate personnel;
Plan, develop and implement a comprehensive code compliance
and public information program;
Enforce ordinances and regulations firmly, tactfully and
Page 2 of 3
impartially;
Coordinate the code compliance program with other City
departments and with outside agencies;
Operate and comprehend the uses and application of computers
in relation to code enforcement functions;
Use a high degree of independent judgement;
Maintain a high level of leadership and diplomacy in dealing
with the community.
ORGANIZATIONAL RELATIONSHIPS
\ l '
The class of Code Compliance
A' Supervisor is a journey-level
professional class. Supervisidn"..:is received from higher level
management personnel. Supervision is exercised over subordinate
Code Compliance and clerical personnel.
APPROVED: DATE:
Director of Personnel
C.S.B. APPROVED DATE:
JD:20252 Code Compliance Field Supervisor 5/22/96 mw
Page 3 of 3
CODE COMPLIANCE FIELD REPRESENTATIVE
JOB DESCRIPTION
Under general supervision, assists with the coordination of the
City's code enforcement activities throughout the City, as well as
enforcing municipal and other related codes; acts as resource
person to division personnel; and performs related work as
required.
REPRESENTATIVE DUTIES
Provides courteous and expeditious customer service to the general
public and City department staffs.
Ensures compliance with City codes and ordinances which pertain to
such areas as nuisance, zoning, weed control, vehicle abatement,
substandard housing, health and sanitation. Receives and
investigates complaints, and surveys the City for possible code and
ordinance violations. Explains codes and ordinances to citizens
and works with them to gain voluntary compliance.
Writes and issues citations and directives to municipal code
violators, outlining or describing steps for compliance; reports
any irregular or suspicious circumstances to the Police Department;
testifies in court on circumstances regarding contested citations.
Inspects dwellings, buildings, vacant lots, businesses, and
commercial properties for violations of applicable City ordinances
and codes; prepares reports and letters regarding related ordinance
and code violations; reviews title reports to ascertain property
ownership to insure due process. Maintains logs and applicable
records.
Seeks, when required, prosecution through the Municipal Court
system; requests assistance from other departments and outside
agencies as necessary; assists with the scheduling of workloads and
provides supervision, training, and technical assistance to code
enforcement and clerical personnel.
Routinely adheres to and maintains a positive attitude towards City
and Department goals; and performs related work as required.
MINIMUM QUALIFICATIONS
Graduation from high school or G.E.D. and 1 year of supervisory
experience in municipal code enforcement, citation issuance and
safety or a related field; or 6 months of experience at or
equivalent to the level of Code Enforcement Officer I in the City
of San Bernardino. Possession of a valid Class "C" California
Driver's License is required.
GENERAL QUALIFICATIONS
Knowledge of:
Appropriate safety precautions and procedures;
Procedures involved in the enforcement of municipal codes
and ordinances;
Presenting court testimony;
Methods of basic record keeping;
Basic math;
Basic principles of supervision and training;
Effective public relations techniques.
Ability to:
See in the normal visual range with or without correction;
Hear in the normal audio range with or without correction;
Exhibit normal range of body motion;
Operate a vehicle observing legal and defensive driving
practices;
Work indoors and out in a variety of environmental conditions;
Enforce necessary regulations with firmness and tact;
Write legibly;
Read, understand and explain departmental policies, rules
regulations, instructions and municipal code literature;
Understand and carry out oral and written instructions;
Read and follow maps;
Maintain accurate records;
Communicate effectively, both orally and in writing;
Establish and maintain effective relationships with those
contacted in the course of work.
ORGANIZATIONAL RELATIONSHIPS
The class of Code Compliance Field Representative is the working
supervisory level in the code enforcement series. Supervision is
received from the Code Compliance Manager and/or Code Compliance
Field Supervisor. Supervision is exercised over assigned
subordinate personnel.
APPROVED: DATE:
Director of Personnel
C.S.B. APPROVED DATE:
JD: CODE COMPLIANCE FIELD REP. 5/22/96 mw
• L) HAFT tt e> i°
CODE COMPLIANCE OFFICER I
JOB DESCRIPTION
Under general supervision, performs technical office and field work
associated with the enforcement of municipal and other related
codes, including zoning, land use, housing, litter, sanitation,
vehicle abatement and public nuisance code provisions; and performs
other related work as assigned.
REPRESENTATIVE DUTIES
Provides courteous and expeditious customer service to the general
public and City department staffs.
Ensures compliance with City codes and ordinances which pertain to
such areas as nuisance, zoning, substandard housing, health,
sanitation and vehicle abatement; receives and investigates
complaints, and surveys the City for possible code and ordinance
violations; explains ordinances to citizens and works with citizens
to gain voluntary compliance to applicable codes and ordinances.
Inspects dwellings, buildings, 'businesses, commercial properties
and building construction projects for violations of applicable
City ordinances and codes; reports irregular or suspicious
circumstances to the Police Department; prepares reports and
letters regarding related ordinance and code violations; reviews
grant deeds and tract maps to ascertain property ownership;
maintains logs and applicable records.
Issues, when required, citations and directives to offending
parties outlining or describing steps for compliance; requests,
with supervisor's approval, assistance from other departments and
outside agencies as necessary; refers cases for possible
prosecution to supervisory personnel.
Routinely adheres to and maintains a positive attitude towards City
and Department goals; and performs related work as required.
MINIMUM QUALIFICATIONS
Graduation from high school or G.E.D. , and experience which
demonstrates the ability to perform the duties of the position.
Familiarity with municipal codes, ordinances and the issuance of
citations is highly desirable.
Possession of a valid Class "C" California Driver's License is
required.
GENERAL QUALIFICATIONS
Knowledge of:
Basic arithmetic;
Enforcement of Municipal Codes as they apply to residential,
industrial and commercial properties;
Basic public relations;
Proper English grammar and usage;
Legal documentation and research procedures.
Ability to:
See in the normal visual range with or without correction;
Hear in the normal audio range with or without correction;
Exhibit normal range of body motion;
Operate a vehicle observing legal and defensive driving
practices;
Work indoors and out in a variety of environmental conditions;
Read and follow maps;
Understand and carry out oral and written instructions;
Cope with situations firmly, courteously, tactfully, and
with respect for the rights of others;
Communicate effectively, both orally and in writing;
Establish and maintain effective relationships with those
contacted in the course of work;
Analyze situations and adopt a quick, effective, and
responsible course of action giving due regard to
the surrounding hazards and circumstances of each
situation;
Write clear, accurate and comprehensive reports;
Learn legal descriptions of real property;
Analyze and compile moderately technical information
related to City land use ordinances;
Maintain records.
ORGANIZATIONAL RELATIONSHIPS
The Class of Code Compliance Officer I is an entry-level generalist
class involved in the enforcement of City codes. Supervision is
received from supervisory classes within the assigned City
department.
APPROVED: DATE:
• Director of Personnel
C.S.B. APPROVED DATE:
JD: CODE COMPLIANCE OFFICER I 5/22/96 mw
C A:
,1
i� A ,
CODE COMPLIANCE OFFICER II
JOB DESCRIPTION
Under general supervision, performs complex technical office and
field work associated with the enforcement of municipal and other
related codes, including zoning, land use, housing, litter,
sanitation, vehicle abatement and public nuisance code provisions;
and performs other related work as assigned.
REPRESENTATIVE DUTIES
Provides courteous and expeditious customer service to the general
public and City department staffs.
Ensures compliance with City codes and ordinances which pertain to
such areas as nuisance, zoning, substandard housing, health,
sanitation and vehicle abatement; receives and investigates
complaints and surveys the City for possible code and ordinance
violations; explains ordinances to citizens and works with citizens
to gain voluntary compliance to applicable codes and ordinances.
Inspects dwellings, buildings, businesses, commercial properties
and building construction projects for violations of applicable
City ordinances and codes; reports irregular or suspicious
circumstances to the Police Department; prepares reports and
letters regarding related ordinance and code violations; reviews
grant deeds and tract maps to ascertain property ownership;
maintains logs and applicable records.
Issues, when required, citations and directives to offending
parties outlining or describing steps for compliance; requests,
with supervisor's approval, assistance from other departments and
outside agencies as necessary; seeks, when required, prosecution
through the Municipal Court system; coordinates with the City
Attorney; assists with complaint preparation; appears at the
arraingnments; and provides court testimony as needed.
Routinely adheres to and maintains a positive attitude towards City
and Department goals; and performs related work as required.
MINIMUM QUALIFICATIONS
Graduation from high school or G.E.D. , and two years of experience
in real property research, enforcement of municipal codes, property
inspection or complaint investigations. Possession of a valid
Class "C" California Driver's License is required.
GENERAL QUALIFICATIONS
Knowledge of:
Public administration and public speaking;
Basic arithmetic;
Encorcement of Municipal Codes as they apply to residential,
industrial and commercial properties;
Basic public relations;
Proper English grammar and usage;
Legal documentation and research procedures.
Ability to:
See in the normal visual range with or without correction;
Hear in the normal audio range with or without correction;
Exhibit normal range of body motion;
Operate a vehicle observing legal and defensive driving
practices;
Work indoors and out in a variety of environmental conditions;
Understand and carry out oral and written instructions;
Read and follow maps;
Cope with situations firmly, courteously, tactfully,
and with respect for the rights of others;
Communicate efectively, both orally and in writing;
Establish and maintain effective relationships with those
contacted in the course of work;
Analyze stivations and adopt a quick, effective, and
responsible course of action giving due regard to
the surrounding hazards and circumstances of each
situation;
Write clear, accurate and comprehensive reports;
Learn legal descriptions of real property;
Analyze and compile complex technical information
related to City land use ordinances;
Maintain accurate records.
ORGANIZATIONAL RELATIONSHIPS
The class of Code Compliance Officer II is a journey-level
generalist class involved in the enforcement of City codes.
Supervision is received from supervisory classes within the
assigned City department. Supervision may be exercised over
subordinate personnel.
APPROVED: DATE:
Director of Personnel
C.S.B.APPROVED DATE:
JD: CODE COMPLIANCE OFFICER II 5/22/96 mw
CITY OF SAN BERNARDINO
INTEROFFICE MEMORANDUM
Entered into Record at
TO: Councilmembers Council/CmyDevCmsMt 9: A
FROM: Council Office by
re Agenda Item 2 q
SUBJECT: Code Compliance Issue - Item 23
DATE: May 30, 1996 City Clerk/CDC Secy
COPIES:
City of San Bernardino
The City Administrator has recommended a Code Compliance Division under
her jurisdiction be established. The City Attorney maintains that she does not have
supervisorial authority under the Charter. Rather than get into a contest, I
recommend a Code Compliance Department be formed following the same
recommendations. (The City used to have a Building & Safety Department at one
time.) I would also recommend the following:
Delete the Assistant Director of Planning position.
Include the Rental Housing Program in the new Department.
Consider including the Building Inspectors in this Department.
This downsizing of the Planning Department would allow the Planning
Director more time to focus on planning matters, would consolidate Building & Code
Compliance in one area with one Director responsible. The chain of command
would be the same as for other Department Heads and the line authority would allow
the new Department Head to coordinate easily with other Departments and up and
down the chain. The physical location could be coordinated much the same as that
presently planned.
PHILIP A. ARVIZO
Executive Assistant
to the Council
PAA:sg
Entered into Record at 3
" °� Counci11CmyDevCms Mtg:
a
z
by
re Agenda Item
CITY OF SAN BERNARDINO 2,_Aj_
OFFICE OF THE CITY ATTORNEY City ClerkICDC Secy
City of San Bernardino
JAMES F. PENMAN
City Attorney
March 9, 1992
Opinion No. 92-10
TO: Mayor W.R. Holcomb
RE: City Administrator Ordinance
ISSUE
By memorandum dated March 6, 1992, you have asked for a legal
opinion on whether the ordinance establishing the office of the
City Administrator violates provisions of the Charter of the City
of San Bernardino.
CONCLUSION
The Mayor and Council cannot, by ordinance, transform the
City's form of government into a quasi-City Administrator form, as
the ordinance in question does, without a vote of the people to
amend the Charter.
The City Administrator ordinance grants discretionary powers
to the City Administrator which may not be delegated, vests in that
office powers which by Charter belong to another officer, and the
ordinance itself is internally inconsistent. If such illegal
powers are deleted the ordinance is so emasculated that it needs to
be reenacted appropriately delineating the powers and duties of the
office within the framework of the Charter.
ANALYSIS
In 1905 the people of the City of San Bernardino adopted a
Charter which has been amended from time to time. The Charter
establishes a full time Mayor (§24) who is the Chief Executive
Officer of the City (§50) . It also establishes a seven (7) member
council ( §30) , the meetings of which are presided over by the Mayor
( §36 ) .
DAB/ses/CityAdmi.opn 1
CITY HALL
Inn NnRTN 'n'.CTRFFT • -(ZdN PPQA1A0r)1A1n 11/11 1CnDA11n nnA40
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 2
At least as early as 1948, the Mayor and Council established
an administrative officer with certain powers and duties. This
enactment has been amended from time to time. In 1961 the Mayor
and Council adopted Ordinance No. 2397 adding Chapter 2.02 to the
San Bernardino Municipal Code establishing the office of City
Administrator. It is this ordinance, as amended, that is in force
today.
The general law is that " [a] statute should be interpreted
with reference to the whole system of law of which it is a part. "
(see People v Comingore ( 1977) 20 C 3d 142, 147) But even
following this rule of statutory construction and the general
principle that a statute should be construed, if possible, - to give
validity to its provisions (D'Amico v Board of Medical Examiners
( 1970) 6 CA 3d 716, 726) , there is no way to harmonize the
conflicts in this ordinance with the Charter as well as its
internal inconsistencies.
The Charter vests in the Mayor the responsibility to
"vigilantly observe the official conduct of all public officers,
and take notice of the fidelity and exactitude, or the want
thereof, with which they execute their duties and obligations.
( 550) The Charter also grants the Mayor "general supervision
of all City officers. . . " ( 952, see also §50) . Yet the ordinance
purports to give the City Administrator the power to "manage and
supervise all operations related to data processing and similar
functions. . . " ( §2.02.050) and to "supervise and direct the
activities of finance, purchasing and personnel. " ( §2.02.060) By
these provisions the City Administrator is directed to supervise
and direct the functions of these departments, which responsibility
as to general supervision, is vested by the Charter in the Mayor.
Additionally, since the adoption of the ordinance in 1961, a
succession of City Administrators have interpreted the ordinance to
give him or her supervisory responsibility over all departments
including department head evaluations, approval of leave requests,
travel authorizations, and personnel matters.
As noted, the Charter, vests in the Mayor the responsibility
of the general supervision of all City Officers ( §52 and §50) , yet
the Ordinance makes the City Administrator answerable to the Mayor
and Council ( see §2.02.060) , which puts the Council in a position
of supervision not allowed by the Charter.
The Charter gives to the City Clerk the responsibility to
transmit the proposed budget to the Mayor and Common Council:
DAB/ses/CityAdmi.opn 2
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 3
. . accompanied with the estimates and reports of each
department, an estimate of the probable financial
necessities of the City Government for the fiscal year,
. . .together with the amount needed for the salaries and
probable wants of all the departments of the Municipal
Government in detail, showing specifically the
necessities of each fund in the treasury. (Charter
§130)
Although there is no language in the Charter which
specifically states that the Clerk must prepare the budget, " [t]he
law neither does nor requires idle acts, " (Civil Code §3532) and it
would be a clear idle act for the City to have some other person
collect and formulate the budgetary information and then have the
City Clerk merely "transmit" this information to the Mayor and
Council . To come to such a conclusion is a strained interpretation
of the Charter language. The more reasonable reading of the
Charter is that the Clerk is required to prepare the proposed
budget, or at least to supervise and be responsible for said
preparation, and then convey that document to the Mayor and
Council .
However, the ordinance purports to give that responsibility
for budget preparation to the City Administrator by declaring that
the City Administrator shall:
"Supervise in cooperation with the finance officer the
preparation of the annual city budget; in the performance
of this duty, the administrative officer shall review all
departmental and agency requests and all items in the
proposed budget, including revenues, expenditures and
reserves; he shall submit his recommendation on the
proposed budget to the mayor and common council (sic)
(§2.02.060. ) .
The pertinent long established rule can be stated as follows:
"Whatever duties are imposed on officers by law must be
personally discharged by them and the City cannot relieve
its officers from discharging their regular duties by
contracting by ordinance or otherwise with other persons
to perform part or all of them. " (2 McQuillan, Municipal
Corporations, 3d Ed. Rev. , 510.38, pg. 1113; See also
House v. Los Angeles County ( 1894) 104 C 73, 78 )
DAB/ses/CityAdmi.opn 3
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 4
In the House case the Supreme Court considered a contract by
which the County of Los Angeles would pay House for collection of
taxes. The Court stated:
"The whole course of proceeding, from the levy of the tax
to its collection, is confided to certain officers
designated by the statutes, whose duties, and the time
and manner of their discharge, are specified by the law.
"The board of supervisors, by virtue of the power
conferred upon it, may supervise the official conduct of
the officers designated to assess for purposes of
taxation, and to collect and disburse the taxes, to the
extent of requiring them to faithfully discharge their
duties under the law, and direct their prosecution for
failure so to do, but the board cannot add to those
duties or relieve the officers from their discharge as
provided by statute. " ( at pg. 78 - emphasis added)
In the case of Dadmun v City of San Diego ( 1908 ) 9 CA 549, the
City had hired an attorney to handle special prosecutions,
relieving the City Attorney of that responsibility. The Court
declared:
. . [U]nder the charter of the City of San Diego the city
council cannot relieve a charter officer of the City from
the duties devolving upon him by the charter and
designate another to perform such duties. " (at pg. 551;
see also 52 Cal Jur III "Public Officers, etc. " §57)
The court went on to conclude:
. . [T]he action of the city council in appointing a
special prosecutor whose duty it should be to prosecute
criminal violations of ordinances was unauthorized and
void. . . " (at pg. 551 )
In Lassen County v Shinn ( 1891 ) 88 C 510, the Supreme Court in
considering an old statutory provision relating to the power of
boards of supervisors in general law counties concluded that such
boards have the authority to hire outside counsel. But even here
the court noted that such authority rested upon the ground:
DAB/ses/CityAdmi.opn 4
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 5
" . . .that the district attorney may be incompetent, or
sick, or absent from the county, or engaged in other
business, so that he cannot attend to it, or the business
to be transacted may be outside of the county. " (at page
512 )
Following action by the legislature in amending the subject
provision relied upon in Lassen, the Supreme Court once again
considered the issue in Merced County v Cook ( 1898 ) 120 C 275:
"There is no doubt that the enactment of this amendment
[limiting the power of boards of supervisors to hire
outside counsel] was occasioned by the somewhat common
and indiscriminate action indulged in by boards of
supervisors of hiring outside attorneys to conduct county
litigation. There can be no question but that the
district attorney of the county is the officer authorized
by law to take charge of and conduct such litigation. He
is an officer of the county elected by the people for
that purpose and no board of supervisors had (sic) the
arbitrary power to displace him in the conduct of its
litigation and substitute other attorneys. . . . If the
board of supervisors could portion out the legal business
of the county as appertaining to license matters to
outside attorneys, it could likewise apportion to such
attorneys all other branches of legal business in which
the county was directly interested, and thus relieve and
deprive the district attorney of the very labors which
are devolved upon him by the law, and which he was
elected by the people to perform, and which under his
oath of office he is bound to perform" (at page 277-278)
In Jaynes v Stockton ( 1961 ) 193 CA 2d 47, the Elk Hills School
District sought to employ a private attorney to provide advice to
the board when the services of the Kern County Counsel were
available for that purpose. The Court rejected the contract,
citing a whole line of cases, stating:
"The law will not indulge an implication that a public
agency has authority to spend public funds which it does
not need to spend; that it has authority to pay for
services which it may obtain without payment; or that it
may duplicate an expenditure for services which the
taxpayers already have provided. (citation omitted) "
( at pg. 54)
DAB/ses/CityAdmi.opn 5
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 6
This is not to say of course that a deputy cannot perform the
duties vested in his principal, whether calling for discretion and
judgement or not, for the law clearly states that he may do so
(Government Code §97 and 1194) . However the Charter does not
create or otherwise provide for the position of deputy Mayor.
As to the delegation of discretionary powers the applicable
law is:
"In the discharge of their duties the officers [of a
municipality] cannot go beyond the law, nor delegate
powers involving the exercise of judgment and
discretion. " (3 McQuillin, Municipal Corporations,
912. 126, pg. 579, 3d Ed. Rev. , footnotes deleted)
With reference to the power of a board of supervisors to
delegate duties the House Court stated:
"In the exercise of powers conferred upon it, it may
appoint agents to discharge ministerial duties not
calling for the exercise of reason or discretion, but
cannot go beyond this and delegate to others duties, the
discharge of which, calling for the use of reason and
discretion, are regarded as public trusts. " (at pg. 79)
But as noted above, certain of the powers granted to the City
Administrator clearly involve the use of judgment and discretion.
Despite that, the ordinance itself purports to limit any such
delegation to ministerial functions:
"Under the supervision of the Mayor and Common Council
and subject to the approval and direction and control
thereof, the Administrative Officer shall be responsible
for the performance of such duties and ministerial
functions as may be placed in his charge by the Mayor and
Common Council. . . " ( 52.02.060)
In the face of such plain grants of discretionary duties
placed by the Charter in the Mayor, the Council and the Clerk, the
ordinance inconsistently states that it is not intended to grant
duties vested by the Charter or general law in any other officer:
"No provision of this chapter is intended to vest in the
administrative officer any duties or grant to him any
authority which is vested by general law or by the
Charter of the city in the mayor and common council (sic)
DAB/ses/CityAdmi.opn 6
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 7
or in any other city department, office, board,
commission or employee. " ( §2.02.080)
If all the discretionary functions, all the functions
involving powers granted to the other officers, and all the
internally inconsistent provisions are deleted from the ordinance,
what is left is only the responsibility to collect information and
make reports and recommendations to the Mayor and Council.
Certainly the Mayor and Council could establish an office whose
sole function was reporting and information gathering, however this
may not be what was intended when the ordinance was passed. The
Charter establishes a Mayor-Council form of government with powers,
duties and responsibilities for such officers. The Mayor and
Council cannot, by ordinance, transform the City's form of
government into a quasi-City Administrator or other form of
government without a vote of the people to amend the Charter.
It may be contended that Sections 40(x) and 40(aa) of the
Charter provide the requisite authority to support the ordinance.
These sections read:
" (x) Duties Not Defined. Council [meaning Mayor and
Council] shall have power to prescribe by ordinance the
duties of all officers whose duties are not defined by
this Charter, and to prescribe for any officer, duties
other than herein prescribed. "
" ( 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. "
These are general grants as opposed to the specific grants of
powers and duties discussed above.
"Where a general and specific provision on a particular
subject are inconsistent, the latter must take precedence
over the former. " (People v Whigam ( 1984) 158 CA 3d 514,
521; In re Williamson ( 1954) 43 C 2d 651, 654; and see
also Code of Civil Procedure §1859 and Civil Code §3534)
Therefore the specific duties and powers granted by the
Charter to the Mayor, Common Council and Clerk "take precedence"
over the more general grant of powers found in Sections 40(x) and
( aa) .
DAB/ses/CityAdmi.opn 7
TO: MAYOR AND COMMON COUNCIL
RE: CITY ADMINISTRATOR ORDINANCE
PAGE 8
To allow such a transfer or delegation of powers and duties as
found in the City Administrator Ordinance would be akin to the
Council (however unlikely) delegating their responsibilities,
duties and powers as outlined in the Charter to the Mayor since
that office represents the whole City, or transferring the
responsibilities for prosecution and conduct of legal matters from
the office of City Attorney, to whom such duties are entrusted by
the Charter, to the Mayor because he or she happens to be an
attorney or to a special counsel appointed by the Mayor and Council
( as long as the City Attorney is ready, willing and able to perform
the services ) , perhaps as a cost saving measure. To take such
steps requires a revision or amendment of the Charter, just as
would the delegation or transfer of the powers discussed herein.
The Charter sets out the framework for the government and operation
of the City. As long as the designated officers function within
that framework they are within their legally authorized duties.
If, however, they attempt to alter that framework to meet changing
circumstances, or for any reason, by expanding the powers of one
officer or reducing the powers of another, without the required
vote of the people, they have gone beyond the legally designated
bounds. The result is an illegal action, however noble the intent.
This is not to say that there is no place for a City
Administrator under the present Charter. The Mayor and Council may
reenact the ordinance to express that their intent is to retain the
office of City Administrator with the coordinating and ministerial
functions. Any attempt to establish or delegate supervisorial
authority in the position of City Administrator requires a Charter
amendment.
Respectfully submitted,
DENNIS A. RRLOW,
Concur: Sr. Asst. City Attorney
JAMES F. PENMAN
OL 7 fie_
' ty Attorney
cc: Councilmembers
Rachel Krasney, City Clerk
David C. Kennedy, City Treasurer
Shauna Clark, City Administrator
DAB/ses/CityAdmi.opn 8
LAW OFFICES
BURKE, WILLIAMS & SOBENSEN
7200 BRISTOL STREET 10 •,J
VCNrURA COUNTY O►FICC •►
SUITE 640 LOS ANGELES OF►ICC 1
2710 PONDEROSA DRIVE
SUIrE I COSTA MESA, CALIFORNIA 92626 611 wEST SIxTH SrRCCT, SUITE 2500
CAMARILLO. CALI/ORNIA 97010 /7141 545-5559 LOS ANGCLCS. CALIFO6"t ppd17• r
16 OS) 967-]466 12171 276-OG&O' 1.J.,T.0 !17
-ELECOP, FACE MILe 171.1 755-5646 TELECOPICR (2171 276-4700
ER c60 S1 ♦62-9A7♦
November 11, 1992
CONFIDENTIAL - ATTORNEY/CLIENT PR VILEaB
Mr. Steven Griffin, President
San Bernardino City Management Association
300 North "D" Street
San Bernardino, California 92418
Re: Request for Legal Opinion on City
Charter Questions
Dear Mr. Griffin: �'-
As requested in your letter dated July 31, 199Z--our
office has researched certain questions concerning the
interpretation of particular language of your City's Charter on
the Charter powers of the Mayor and Common Council. As a result
of our research, we observe that some ambiguities do exist within
the Charter language which could be clarified by amendments to
the Charter. However, the following discussion is limited to
addressing the existing Charter language since recommendations
for any changes are beyond the scope of your request.
ISSUES PRESENTED
1 . Does the Charter of the City of San Bernardino
provide authority to the Common Council to adopt an ordinance
creating the position of City Administrator and prescribing
certain duties of that position?
2 . Does the Charter of the City of San Bernardino
provide authority to the Mayor and Common Council to hire
independent legal counsel?
SUMMARY CONCLUSION
Our research indicates that as a chartered city with
"home rule" powers, the Common Council of San Bernardino does
possess the requisite charter powers for the exercise of their
judgment and discretion on both issues presented. The following
analysis will discuss the legal basis for such authority.
Mr. Steven Griffin, President
November 11, 1992
Page 2
ANALYSIS
ISSUE #1
Dome Rule Charter Powers
Where a city' s charter contains "home rule" provisions,
the city has complete power over "municipal affairs" subject only
to the clear and explicit limitations and restrictions contained
in the charter. [State Constitution, Article XI, Section 5(a) ] .
The employment, promotion and management of city employees is a
"municipal affair" controlled by the provisions of a city's
charter and by the administrative discretion of its officials.
Under Article XI, 'Section 5 (b) of the State Constitution, a
chartered city has the plenary power to provide in its charter
for the method of appointment and qualifications of its
employees. [Lucchesi v. City of San Jose (1980) 104 Cal.App. 3d
323 , 327-328 ; 163 Cal .Rptr. 700] . The City of San Bernardino's
"home rule" provision is contained in Section 1 of the Charter:
"The City of San Bernardino may make and
enforce all laws and regulations in respect
to municipal affairs, subject only to the
. restrictions and limitations provided in this
Charter, and in respect to other matters it
shall be subject to general laws. "
The enumerated powers of the Mayor and Common Council
are contained in Section 40 of the Charter. Such powers include
the power:
"to appoint. . .other subordinates,
officers and employees, as they may
deem proper, and to fix their
qualifications , duties and
compensations. . . " and "to
prescribe by ordinance the duties
of all officers whose duties are
not defined by this Chapter, and to
prescribe for any officer, duties
other than herein prescribed. "
[Charter Sections 40 (s) and 40 (x) ] .
(emphasis added)
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
Mr. Steven Griffin, President
November 11, 1992
Page 3
Thus, both the State Constitution and the City's Charter
recognize the Council ' s authority to make determinations in the
area of employee appointments and duties.
Case Law
The charter powers of a city council to appoint
officers as it deems necessary was explicitly upheld in Miller v.
City of Sacramento (1977) 66 Cal.App. 3d 863 ; 136 Cal.Rptr. 315.
Miller, supra, was an action challenging the power of a city
council to create the position of council budget analyst. Among
the grounds for challenging the council 's power were (1) lack of
authority in the charter for hiring a budget analyst, (2) an
unlawful infringement on the authority of the city .manager, and
(3) an unlawful delegation of authority of the council. The
court found none of these (or the other) grounds to have merit.
Rather, the court relied on the city' s "home rule" charter powers
and stated:
" [a) construction in favor of the
exercise of the power and against
the existence of any limitation or
restriction thereon which is not
expressly stated in the charter is
clearly indicated. . . "
The Sacramento Charter in Miller, supra, contained
provisions authorizing the council to select "such other officers
and employees of its own body as may be deemed necessary" and to
create new "offices and employments not specifically mentioned in
the charter or created by it. " (emphasis added. ) Because there
were no other provisions in the charter expressly preventing the
council from doing so, the court read those provisions to
authorize the creation by the council of the budget analyst
position. (Miller, supra, at 868 ] .
This case is significant since one of the objections
was the claim that the duties of the budget analyst were an
" infringement" on the city manager' s charter authority. Under
the charter, the city council was prohibited from "interfering"
with the city manager or preventing him from exercising his own
judgment in appointing officers and employees in the
"administrative service. " Another claim was that the council ' s
appointive powers were limited to "only aides and assistants as
CONFIDENTIAL - ATTORNEY/CLIENT PRIVZLEG$
Mr. Steven Griffin, President
November 11, 1992
Page 4
would be uniquely needed for the councilmen to perform their
duties as elected officials. " The court rejected both claims
since they were based on trying to find an implied prohibition on
the power of the council in the charter or a possible conflict in
the charter provisions themselves. Instead, the court declared,
at 66 Cal -App- 3d 869:
"It is our view the charter neither
expressly nor by implication
forbids the hiring of a council
budget analyst or provides that the
city manager has exclusive
responsibility for analyzing,
studying, reporting or making
recommendations to the council on
budgetary matters. " (emphasis
added) .
Therefore, the court did not find any conflict in the charter
section involved or any implied restriction on the council ' s
charter powers of appointment. The language of your Mayor and
Council ' s appointive power in Charter section 40 (s) is very
similar to the charter language approved in Miller, supra. Thus,
this case would support your Council ' s authority to appoint a
City Administrator.
The reasoning in Miller, supra, was followed in
Canfield v. Sullivan (1985) 774 F. 2d 1466. In Canfield, supra,
the court held that a provision in a city charter providing that
the mayor shall appoint all heads of municipal departments did
not limit the legislative body' s power to create additional
"executive" positions. Because there was no express prohibition
in the charter limiting the legislative body' s power to create
additional positions, the legislative body was not precluded from
raking such an appointment. [Canfield, supra, at 1469] . These
cases demonstrate that unless there is a clearly expressed
restriction on a council ' s powers within the charter itself, an
implied limitation will not be found.
It must be noted, however, that there is contradictory
authority on the issue. In Hubbard v City of San Diecto (1976)
55 Cal .App. 3d 380 ; 127 Ca1 . Rptr. 587 , the court held that the
establishment of the department of legislative analyst by the
city council was contrary to the city' s charter and, therefore,
CONFIDENTIAL - ATTORN GE
Mr. Steven Griffin, President
November 11, 1992
Page 5
invalid. The court' s holding was based on the fact that many of
the duties and functions of the newly created department of
legislative analyst were duplications of the functions given by
the charter to the city manager. The court also found that
persons performing administrative duties were required, under the
charter, to be subject to the city manager's supervision. Since
the council removed the legislative analyst department from the
supervision and control of the manager, the court declared the
council ' s action to be ultra vires. (Hubbard, supra, at 388] .
While the court in Hubbard, supra, gave a narrow
reading to the council ' s charter powers, its conclusion was
supported by the charter language requiring all administrative
functions to be under the control and supervision of the city
manager. [Hubbard, supra, at 385-386, footnote 1] . The court
rejected the council ' s attempt to remove the legislative analyst
department from the manager' s supervision by declaring it to be a
"legislative department. " This case is distinguishable since it
involved the creation of an entire department outside the control
of the City Manager. In contrast, your Mayor and Council have
established by ordinance a position which remains subject to the
Mayor and Council ' s supervision and authority.
One of the ambiguities within your Charter involves the
power of appointment. As discussed above, Section 40 gives the
Mayor and Common Council the power to appoint "officers and
employees" and to fix their qualifications and duties. However,
Section 51 gives the Mayor, with the consent and approval of the
Common Council, the authority to appoint "all officers. " Thus,
there appears to be overlapping appointment authority for
officers . Such confusion should be eliminated by Charter
amendment. Nevertheless, it is our understanding that these
sections have historically been interpreted as giving the Mayor
the exclusive power of appointment for all City officers and
employees with the consent and approval of the Common Council .
According to City Code Section 1. 28 . 010 , past practices in
interpreting in the City Charter have acquired a meaning upon
which the public and city employees have relied. Therefore,
until these Charter sections are clarified by amendment, it
appears that the past practice of the Mayor appointing all city
employees and officers would be considered the valid exercise of
the Charter ' s power of appointment.
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
Mr. Steven Griffin, President
November 11, 1992
Page 6
Delegation of Powers
As a general rule, powers conferred on a city council
which involve the exercise of judgment or discretion are in the
nature of public trusts, and, as such, cannot be delegated.
However, while the legislative or discretionary powers of the
city council cannot be delegated to others, it is equally well
established that ministerial or administrative functions may be
delegated to subordinates or agents. And, judgment must often be
exercised by such ministerial officers to determine the existence
of facts which authorize action by the legislative body.
Furthermore, there has been some relaxation of the general rule
against delegation of discretionary powers in view of the ever
increasing complexity of administrative matters which require
that many administrative and ministerial functions be entrusted
to agents. [Cal Jur 3d, Municipalities, Sections 164 and 1781 .
There is nothing in the San Bernardino City Charter
expressly prohibiting the delegation of administrative and
executive duties to the City Administrator or declaring that the
Mayor has exclusive supervisory responsibility. Therefore, the
Mayor retains the power to delegate his administrative duties as
Chief Executive Officer, which include his duty of "general
supervision. " In delegating such duties, the Mayor also has the
power to appoint the City Administrator as his "Deputy Mayor. "
And, since the Municipal Code provides that the Mayor and Common
Council retain the powers of appointment and dismissal of the
City Administrator, the duties delegated to the City
Administrator cannot involve the exercise of "judgment or
discretion. " [Section 2 . 02 . 050] .
Similar reasoning was followed by the court in Taylor
v. Crane ( 1979) 24 Ca1. 3d 442 ; 155 Cal.Rptr. 695 ; 595 P. 2d 129.
In Taylor, supra, the California Supreme Court determined there
was no unlawful delegation of the city manager' s discretion in
personnel matters by allowing an arbitrator the final word on the
propriety of a discharge. Since the charter did not expressly
prohibit such delegation, the Court found that the city manager
retained the power to do so. [Taylor, supra, at 451] . The Court
also concluded that because the city manager retained certain
disciplinary powers, there had not been a "total abdication" of
his disciplinary authority. [Taylor, supra, at 452 ] .
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
Mr. Steven Griffin, President
November 11, 1992
Page 7
CONCLUSION - ISSUE #1
Based on the Mayor's and Council 's express appointive
powers in the Charter and their inherent "home rule" powers, the
Mayor and Common Council have the authority to adopt an ordinance
creating the position of City Administrator and to prescribe to
that officer such administrative and executive duties as they
deem proper. Furthermore, the Mayor retains the power to
delegate his administrative duty of general supervision to the
City Administrator or other appropriate designee.
ISSUE #2
This issue must also be analyzed according to the well
established principle that charter cities are permitted to
exercise all sovereign powers which are not expressly limited by
their charter or by state or federal law. [United Public Employ-
ees v. City and County of San Francisco (1987) 190 Cal.App. 3d
419 , 422.; 2.35 Cal .Rptr. 477 ] . Since a city' s charter is not a
grant of power, but only acts as a limitation, it should be
liberally construed and no restrictions may be implied. [Associ-
ated General Contractors of California Inc v City and County
of San Francisco ( 1985) 619 F.Supp. 334 , 336; modified (1987) 813
F. 2d 922 ] A construction in favor of the exercise of the power
and against the existence of any limitation or restriction on
such power which is not expressly stated in the charter is
required. [Ruane v. San Diego (1968) 267 Cal .App. 2d 548, 558 ;
73 Cal . Rptr. 316 . ] Thus, existing authority on charter powers
supports the exercise of the Council ' s power to hire independent
legal counsel unless it is expressly prohibited from doing so.
Section 241 of the San Bernardino City Charter states:
"The Mayor and Common Council shall have
power and authority to employ and engage such
legal counsel and services and other
assistants, as may be necessary and proper
for the interest and benefit of the City and
the inhabitants thereof. " (emphasis added)
Based on the above stated language, it seems clear that the Mayor
and Common Council have express and independent power and
authority to hire outside legal counsel as determined by the
Council ' s own wisdom and discretion.
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
Mr. Steven Griffin, President
November 11, 1992
Page 8
Statutory Construction of Charter Langmage
"Under settled rules of statutory interpretation, the
various sections of a char-ter must be construed together, giving
effect and meaning so far as possible to all parts thereof, with
the primary purpose of harmonizing them and effectuating the
legislative intent as therein expressed. " (Creighton v. City of
Santa Monica (1984) 160 Cal.App. 3d 1011, 1017; 207 Cal.Rptr.
78] .
In Creighton, supra, the authority of the city's rent
control board to formulate its own budget and hire independent
legal staff was challenged based on the charter provisions
prohibiting the delegation of duties by the city council and city
attorney. The board' s authority was upheld by the court since
the charter empowered the board to "hire and pay necessary
staff. " In its decision, the court recognized that the charter
did not expressly specify whether the board was to be represented
by an independent legal staff or the city attorney. However, the
court reasoned that if the board was to remain an autonomous
body, it must be entitled to the legal counsel of its own choos-
ing.
The court distinguished the board from other city
agencies and departments because it was composed of elected
officials. As such, " [a]n elected entity that makes judicially
reviewable decisions and that is a party to judicial proceedings
clearly possesses the right to the services of an attorney of its
choosing and subject to their control . " Creighton, suvra, at
1020 . Thus, the court found there was no improper delegation of
authority.
Similarly, since the Mayor and Common Council possess
charter authority for hiring legal counsel and are a body of
elected officials, the Mayor and Common Council should be
entitled to the services of an attorney of their choosing and
subject to their control so long as it is "necessary and proper
for the interest and benefit of the City and the inhabitants
thereof. " (Charter Section 241) .
In addition, as noted in the Annotation at 83 American
Law Reports 135 , 140:
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
Mr. Steven Griffin, President
November 11, 1992
Page 9
"The power of a city to employ counsel is not
taken away by statutory provisions creating
the office of city attorney, prescribing the
duties of that officer, and restricting
payment of city funds to regular city
officers and employees. Otherwise, absence,
illness refusal to act hostility to gublic
Merest, or other temgor� incapacity of
to regular city attorney, might leave the
municipality without necessary counsel even
in grave emergency. " (emphasis added)
This rule was followed by the Court in Knight v. City of Eureka
(1898) 123 Cal . 192 when it concluded that the power to appoint
an attorney is "one of those incidental powers which of necessity
reside in the council in order that its granted powers may be
fully exercised. " Knight, supra, at 195. Thus, there is
authority for the proposition that even without its express
charter power, the Common Council has inherent power to hire
legal counsel in order to exercise its other granted powers.
CONCLUSION - ISSUE #2
The City Charter grants the Mayor and Common Council
the express authority to employ legal counsel as it deems
necessary and proper. However, such authority to employ legal
counsel does not extend to City officers. Those officers are
constrained by the provisions of Section 2 .20. 070 of the
Municipal Code which sets forth the conditions and procedures for
hiring "outside counsel" by city officers.
RECOMMENDATIONS
From the description we have received of the
relationships between the City Attorney, the Mayor and the Common
Council , regarding issues referred to in this Opinion, it is our
suggestion, if it is feasible, that it be proposed to the Mayor
and Council with respect to the City Administrator Ordinance, so
as to settle issues concerning its validity:
( 1) that the Mayor, if he agrees with the purpose and
intent of the Ordinance, appoint the person holding the position
of City Administrator as his Deputy; and
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEG$
Mr. Steven Griffin, President
November 11, 1992
Page 10
(2) the letter of authorization and appointment would
indicate that the duties to be performed by the Deputy are to
consist of those described in the City Administrator Ordinance
and such other matters as may be delegated to him/her by proper
authority.
This arrangement would seek to eliminate, to the extent
possible, the controversy and the threat of litigation regarding-
the interpretation of the ordinance.
(3) with respect to the appointment of outside
counsel, apparently the City Attorney is taking the position that
without his consent, no such authorization or appointment of
special counsel can be made by the Council. While we disagree
with this, it would appear that if a reconciliation cannot be
reached with regard to this issue, that the Council seriously
consider the amendment of the City Charter in its entirety or at
least with respect to the specific power to appointment of
special counsel . This latter can be done by the Council
directing such an amendment be prepared by the City Attorney':
office for Council review. If the City Attorney declines to
prepare it in the manner described in the direction of the
Council , then there is no question under existing case law, that
the Council is free to employ special counsel for the purpose of
preparing such an amendment for submission to the electorate.
We hope this information proves useful to you. Should
you have any questions on these matters or wish to discuss them
further, please do not hesitate to contact us.
Very Truly Yours,
rvl
JE Y M. PATTERSON for
BU E, WILLIAMS & SORENSEN
JMP:MJSD: ss
80031038.LTR
cc: J. Robert Flandrick
Mary Jo Shelton-Dutcher
CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGE
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