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HomeMy WebLinkAbout29- City Administrator CITY OF SAN BERrftARDINO - REQUEST 'k-JR COUNCIL ACTION F Fred Wilson Subject: police Management Audit Report Assistant City Administrator Dept: Date: April 24 , 1995 Synopsis of Previous CLancil action: Resolution #94-287 approved on 9/19/94 authorized performance of Police Management Audit. 1. That the Police Management Audit Report conducted by Ralph Anderson and Associates be received and filed. 2. That staff be directed to meet and confer with the appropriate bargaining units on the impact of the proposed staffmg changes. 3. That the City Administrator and the Acting Chief of Police be directed to oversee the implementation of the audit recommendations. 4. That Ralph Anderson and Associates be authorized to conduct a supplemental analysis of the potential consolidation of the Police and Fire Dispatch operations at a cost not to exceed $5,000. � C Contact person: Fred Wilson Phone: Supporting data attached: Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct No.) (Acct Description) _ Finance: CL Notes: �/ �' cwt �> f+" t CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY Opinion No. 95-02 May 12, 1995 JAMES F. PENMAN City Attorney TO: Councilman Jerry Devlin RE: Recommendations of Management Audit of Police Department ISSUES A recent management audit of the Police Department by Ralph Anderson & Associates recommends creation of a non-sworn Services Division Manager to oversee the records, budgeting/payroll, communications ( i. e. dispatch) and personnel and training functions of the Department. The new Services Division Manager would report directly to the Chief of Police. In your memorandum dated April 6, 1995, you ask ( 1 ) whether this reclassification would be in conflict with Charter Section 186 or other applicable law. In follow-up conversations you asked us to consider two additional issues arising out of the management audit, which are: ( 2 ) whether the position of Assistant Chief may be abolished without a charter amendment, and (3 ) whether it is legally possible for the Mayor and Common Council to delegate responsibility for overseeing operations of the Department to a city official other than the Mayor, as recommended by the audit. CONCLUSIONS 1 . The City may not vest management of the Services Division with responsibility for overseeing the records operations of the Department in a non-sworn civilian manager without a charter amendment. 2 . The position of Assistant Chief may not be abolished without a charter amendment. Further, lacking the power to abolish the position directly, the Mayor and Council may not do this indirectly by permanently leaving it vacant. 3 . The charter specifically vests the Mayor and Common Council with the duty to manage and control the Police Department, and the charter makes the Mayor supervisor of the Chief of Police. This authority and responsibility may not be delegated to another official without a charter amendment. RJM:ms[Audit.0pn] CITY HALL 300 NORTH `D'STREET • SAN BERNARDINO, CALIFORNIA 92418 0l (714) 384-5355 71 To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 2 DISCUSSION A. Reorganization Of Services Division The Police Department is organized into three divisions -- Patrol, Investigations, and Services. Each division is managed by a sworn officer holding the rank of Captain. The Captains work under the supervision of the Assistant Chief and the Chief of Police. Presently, the Services Division is responsible for such functions as records management, budgeting and payroll, crime analysis, community programs ( i.e. crime prevention) , personnel and training, and mall security. The recently-completed management audit of the Department by Ralph Anderson & Associates would maintain the same three divisions presently existing. However, with some shifting of functions from one division to another, the audit recommends that management of the Services Division be taken over by a non-sworn civilian whose duties would be limited to supervising records, budgeting and payroll, communications and personnel and training. Although not clear, we assume that all sworn positions would be removed from the division. Coupled with proposed elimination of the Assistant Chief' s position, the Services Division Manager would work under the direct supervision of the Chief of Police. Charter Section 186 does more than just mandate a salary formula for the Police and Fire Departments. It states expressly that its purpose is to establish "a basic standard for fixing salaries, classifications, and working conditions" of employees of the Police and Fire Departments. The classification scheme consists of seven levels in each department (P1 through P7 ) , with designated titles assigned to each classification. The explanatory text regarding the seven classification levels provides in relevant part: "The following classifications are hereby created in the Fire Department and Police Department of the City of San Bernardino, and the code numbers, titles, and salaries as hereinafter set forth are hereby established and fixed for such classes of positions . . . " The way the classifications and the positions are established reflects an understanding of the paramilitary structure of the two departments. There is an orderly progression of rank, responsibility and salary as one moves from a lower to higher classification level, and it is significant that the classification RJM:ms[Audit.Opn] To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 3 levels include department managers up to and including the rank of Chief. Thus, it is evident that by enacting charter section 186, the people have endorsed a basic structure for the organization and management of the departments from which the Mayor and Council may not deviate. This is underscored by the fact that the charter permits establishment of additional positions, but does not permit deletions. The relevant language states: "Additional titles may be established by the mayor and common council, but only titles for Local Safety members of the Police and Fire Departments shall be placed in one of the following classifications having the most nearly equal duties and responsibilities. Local Safety members of the Police and Fire Departments shall mean any local policemen or local firemen as defined under the provisions of the Public Employees Retirement System Law as specified in the California Government Code or amendments thereto. " The limitation placed on the Mayor and Council by this language is that they are forbidden to put any employees into a charter classification unless the person employed to fill it is a "local policeman" as defined in the Public Employees Retirement Law. In effect, this means that only sworn peace officers can fill one of the P1 through P7 positions. Critical to the present issue is the fact that while certain designated positions were taken out of the charter as a result of a February, 1973 amendment, the position of "Superintendent of records and Identification" was not deleted. A civilian manager with responsibility for overseeing the records operations of the Department, working under the direct supervision of the Chief of Police, cannot supplant a charter-mandated sworn position. As with any office or position created in the charter, it is not the prerogative of the Mayor and Common Council to abolish such office or position. Fresno County Employees ' Association v. Fresno County ( 1966 ) 242 Cal .App. 2d 828, 830-831, 51 Ca1 .Rptr. 841 . It is important to keep in mind that a charter bears the same relationship to legislative acts of the Mayor and Council as the state constitution bears to state statutes. Citizens for Responsible Behavior v. Superior Court ( 1991 ) 1 Ca1.App. 4th 1013, 1034, 2 Ca1 .Rptr. 684. As a general constitutional principle, where a legislative body lacks power to do a thing directly, it cannot accomplish the same end by indirection. Legislature v. Deukmejian ( 1983 ) 34 Cal.3d 658, 668, 194 Ca1.Rptr. 781. See, RJM:ms[Audit.Opn] To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 4 also, Myers v. City Council of Pismo Beach ( 1966 ) 241 Cal .App. 2d 237, 243, 50 Cal .Rptr. 402. Hence, it is apparent that the Mayor and Council cannot effectively "abolish" a charter-mandated position by leaving it unfilled while vesting some or all of its duties in a non-sworn civilian. Therefore, the position of Services Division Manager, with responsibility for overseeing records, cannot be created in the absence of a charter amendment deleting the "Superintendent of Records and Identification" from the P5 classification. B. Proposal to Abolish Assistant Chief' s Position For the same reasons discussed above, we conclude that the position of Assistant Chief may only be abolished by charter amendment. It is reasonable to assume that by creation of the position of Assistant Chief, the voters expressed their desire for an orderly succession of authority in case of the Chief' s absence. An orderly succession would be more difficult if the Chief's authority were assumed by rotation of the captains. We add that even though Charter Section 181 gives the Mayor and Common Council wide discretion in determining the number of employees within the Police Department, such discretion is expressly limited by Charter Section 186, and thus we believe that leaving the position of Assistant Chief permanently "vacant" would be unlawful under the charter. C. Supervision of Department by Official Other Than the Mayor The management study, on page seven, adopts the following view of the organizational setting of the city: "The Police Department is a part of a larger organization of the City of San Bernardino. The City' s organization has the City Council [sic] as its legislative and policy- making body and the Mayor as the Chief Executive. With the exception of the Police Department, the Mayor is assisted in the management of the city organization by the City Administrator. The chart on Exhibit II-A shows the City organization structure including the Police Department. "The organization chart on the exhibit reflects the unique reporting relationship of the Police Department (Police Chief ) . It is the only department (other than those headed by elected department heads) that reports RJM:ms[Audit.Opn] To: Councilman Jerry Devlin Re: Recommendations of Management Audit of Police Department Page 5 directly to the Mayor. The other city departments report to the Mayor through the City Administrator. "' There is no legal basis for the auditors' assumptions about the organizational reporting structure of the City. Formalizing a "reporting relationship" between the Police Chief and any City official other than the Mayor would be in derogation of the duties imposed upon the Mayor in the charter. Under charter section 50, the Mayor is the chief executive of the City, and under section 52 he has "general supervision of all City officers elected or appointed, except councilmen. " The Mayor and Council may not delegate the Mayor' s charter-mandated supervisorial duties to any other City official without a charter amendment. The pre-eminent treatise on municipal law states, "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. " See, 3 McQuillan, Municipal Corporations, 512. 126, pg. 579 (3d Ed. Rev. 1990) . The new "reporting relationship" recommended in the audit would violate this rule. Respectfully submitted, RICHARD J. V Sr. Assistan Attorney Concur: JAMES F. PENMAN ty Attorney cc: Tom Minor, Mayor Council Members Rachel Clark, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads lA copy of the chart referred to in the foregoing passage is attached hereto marked Exhibit A. RJM:ms[Audit.Opn] Y Y C C � y ° Y i a � - a u a' - a a a s Z O ■ ■ e e � 3 0 O ` l � O • 1 < Y t 1 - ; Y° V Y ■ m ea o i i Y e y Y s +� Y c LiL y Y ■ u ■ s Y Y t ia, — i • a L � � N Page �..�.�