HomeMy WebLinkAboutCharter Implementation.Attach 1.Special Counsel Memo.2017-03-01ATTORNEYS AT LAW
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Richard D. Jones*
Associates Kathya M. Firlik
Scott E. Porter
Of Counsel
Partners
Monica Choi Arredondo Russell A. Hildebrand
Harold W. Potter
Michael R. Capizzi
Martin J. Mayer (1941-2017)
Melissa M. Ballard Crystal V. Hodgson
Tarquin Preziosi
Harold DeGraw
Kimberly Hall Barlow
Jamaar Boyd -Weatherby Krista MacNevin Jee
Carrie A. Raven
Deborah Pemice-Knefel
James R. Touchstone
Baron J. Bettenhausen Ryan R. Jones
Brittany E. Roberto
Dean J. Pucci
Thomas P. Duarte
Paul R. Coble Gary S. Kranker
Denise L. Rocawich
Steven N. Skolnik
Richard L. Adams II
Keith F. Collins Bruce A. Lindsay
Yolanda M. Summerhill
Peter E. Tracy
Christian L. Bettenhausen
David R. Demuijian Adrienne Mendoza
Ivy M. Tsai
Michael Q. Do Gregory P. Palmer
Carmen Vasquez
*a Professional Law
Consultant
Corporation
Mervin D. Feinstein
MEMORANDUM
Date:
March 7, 2017
To:
Honorable Mayor and City Council
Members
From:
Kimberly Hall Barlow, Special Counsel
Subject:
Charter Implementation
Recommendation
It is recommended that the Mayor and City Council consider this report and
provide direction to staff.
Background
With approval by voters of Measure L for the City's new Charter, the City
modified its structure to a council-manager form of government, where the day-to-day
management of the City has shifted from the Mayor to the City Manager. The new
Charter will need to be implemented by significant changes to the City's Municipal Code
and other policy documents. One January 23, 2017, the City Council approved a
Professional Services Agreement with Jones & Mayer to assist the City in implementing
the new Charter provisions.
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Special Counsel seeks direction from the Mayor and Council regarding priorities
in implementing the new Charter. In order to provide guidance, some preliminary
information is provided in this report about some of the immediate impacts of the new
Charter and the revisions to the municipal code which appear to be most pressing.
Priorities in ordinance revisions to implement new Charter
The most critical changes to be made to the City's municipal code relate to the
change to the Council/Manager form of government, the powers of the City Manager,
City Council and Mayor and the revisions in the Charter regarding the procedures for
adoption of resolutions/ordinance and the possibility of veto. For these reasons, we
have proposed that the Council give first reading to and introduce ordinances regarding
Chapter 1.08 regarding adoption of resolutions and ordinances and Chapter 2.02
regarding the responsibilities and role of the City Manager.
In addition, we have proposed an ordinance to modify Chapter 2.01 (which
contains only one section) to repeal and replace section 2.01.010 concerning the Mayor
Pro Tempore. The proposed ordinance changes references from Common Council to
City Council, adds language relating to the Mayor Pro Tern's voting rights in the
absence of the Mayor to conform to the new Charter, and proposes a revision to the
timing of selection of the Mayor Pro Tern to the second meeting in December of each
year to reflect the change in the election cycle from moving the City Council elections to
November. It seems reasonable to have the Mayor Pro Tern's selection moved to
December so that during election years, it can take place when election results are
certified.
It is our view that the initial focus of code revisions should be from the "macro -
view" — the general provisions relating to the form of government, power structure, and
changes to the process for enacting laws needed to conform the code to the new
Charter. Policy issues, such as which commissions and committees to retain are
important, but not essential at this point. One or more study sessions of the City
Council would be appropriate to evaluate and determine which commissions and
committees should be retained, which should be changed, and which should be
eliminated. This process can occur over time. But day to day management of the City
must be addressed as a priority. Once we have addressed the general issues, we will
focus on department level ordinances, and then on those issues which are not as
urgent, such as personnel rules, council compensation, and changes necessary to
implement the elimination of elected positions which still have some time to complete.
Immediate Changes Required by New Charter
In order to answer background questions which will certainly impact the Mayor's
and City Council's direction to staff, we provide some key questions relating to the new
Charter and responses.
When does the City Manager form of government take effect? May the City act
pursuant to the Government Code provisions to the extent the provisions are
consistent with the City Charter? Are there other provisions that take effect
immediately?
The transfer of day-to-day management power of the City from the Mayor to the
City Manager can occur immediately.' --This conclusion is supported by both the direct
terms of the new Charter, but also by indirect legal authority, even though there is no
specific statement of law on this point, under the specific circumstances here of a new
Charter.
The California Government Code specifically provides that a City may establish a
council-manager form of government by ordinance.2The City of San Bernardino has
done this by the approval of Measure L, which proposed such management system as a
change in the City Charter.
Although the City's change to council-manager form of government was done by
way of adoption of a new Charter, this procedure is analogous to such a change
occurring by ordinance. Where an ordinance changing to the council-manager form of
government is approved by voters, the ordinance usually "go[es] into effect on the tenth
day after the canvass of votes." Cal. Govt. Code § 34854. The approval of this form of
city management takes effect as soon as the operative law is effective. However, the
rules regarding the effective date of charters differs from other voter -enacted
ordinances. Cal. Govt. Code § 34459 (amendment to charter approved by voters takes
effect when accepted and filed by the Secretary of State). This means that the City's
management structure also took effect upon the new Charter being approved by voters
and taking effect — i.e., when the new Charter was filed with the Secretary of State.
In fact, where there is no city manager at the time of a city's approval of the
council-manager form of government, the city council is required to "appoint a city
manager" "[w]ithin sixty days after the effective date of the ordinance." Cal. Govt. Code
34855. By that appointment, the city manager has immediate power over subordinate
officers, whose terms "cease, unless they are reappointed by him." Cal. Govt. Code §
34857.
Even though the City presently has a city manager, the most conservative
approach would be for the City Council to reappoint the city manager into the position
that was modified by the New Charter. This would ensure transfer of the existing City
Manager to the "new" position, and the City Manager would then have all powers
granted him under the Charter, including to make appointments (or reappointments) of
all subordinate officers, including any who were previously appointed by the Mayor. By
such reappointment of the current City Manager, the new authority created by the new
Charter would be immediately transferred to the City Manager. A simple resolution or
minute order appointing (or ratifying the appointment of) the City Manager should
suffice.
1 The Mayor's duties as now provided under the Charter change on the effective date of the Charter.
2 Such an ordinance can be "[e]nacted by the legislative body" or "[s]ubmitted to the electors." Cal. Govt.
Code § 34851. Since San Bernardino is a charter city and its management system is set by that charter,
however, a charter amendment was required, which must be approved by the electors. Cal. Govt. Code
§ 34458 (amendments to a charter must be approved by electors); § 34459 (amendment approved by
voters takes effect when accepted and filed by the Secretary of State). See also, Cal. Const., art. X1, § 3
(county charter must be adopted "by majority vote of its electors" and "is effective when filed with the
Secretary of State"; charter amendments are adopted "in the same manner").
Other provisions of the charter that take effect immediately are discussed more
thoroughly below, but include, city manager's authority over and appointment powers of
department heads, the mayor's redefined role from chief executive officer to a member
of the legislative body, and the mayor's voting rights and limitations as defined in the
charter.
What impact does the Charter have on the City Manager's ability to reorganize the
staff?
Generally, the City Council creates positions, and the City Manager fills them.
The Mayor and Council members are not to interfere with the City Manager's decisions
with respect to his subordinate employees. While the Council must approve (through
resolutions relating to classified positions, salary ranges, and budgetary actions)
creation or revision of positions, the City Manager is free to reorganize existing staff in
any manner he chooses within the restrictions which may be imposed by classifications,
Council -adopted personnel rules and binding MOUs with employee groups, and subject
to Section 503 of the new Charter (changes to existing departments continue until
revised by ordinance or other City Council action).
Our office is in the process of reviewing the existing MOU's and will be providing
additional information in response to this question.
What is the scope of the ongoing "contract" with the elected officials? Does this
affect employment and compensation, or could the job and reporting
responsibilities be implemented immediately?
Section 103 of the Charter provides:
"Subject to the provisions of this Charter, the present officers and employees of
the City shall continue to perform the dudes of their respective offices and
employments under the same conditions as those of the existing offices and
positions until the election or appointment and qualification of their successors."
Essentially, what this provision means is that the current Mayor and Council
Members remain in office, subject to the changes in their duties as prescribed by the
new Charter, until they are replaced by election or appointment. The City Attorney and
City Clerk shall also continue in their positions until the expiration of their respective
terms and appointment of successors. The remaining employees of the City (i.e., those
not specifically addressed by the new Charter) will continue to serve until they are
replaced by appointment (within the confines of the existing personnel rules and civil
service protections).
The City Clerk and City Attorney should continue to serve their elected terms in
office and continue to report directly to the City Council. Compensation for each these
positions should not change as a result of the new charter, or at least, not be reduced
as a result of the charter. The impacts on these two positions are discussed in greater
detail below.
City Clerk
Under the previous charter, the City Clerk reported directly to the City Council.
Under the new charter, the City Clerk continues to report to the City Council. In
addition, upon expiration of the current term of office of the elected City Clerk, the
person in that position will be appointed and removed by the City Council. (Sections
502 and 505.)
Moreover, there appears to be little change in the responsibilities of the City
Clerk. Under the previous charter, the City Clerk's responsibilities included keeping the
corporate seal and all books and records; attending all meetings and keeping minutes;
taking affidavits and administering oaths; maintaining official books and records; issuing
business registration certificates; signing warrants; and all other acts required by charter
ordinance or the Mayor and City Council. (Article IV, Section 60 of the former Charter of
the City of San Bernardino.) Additionally, the City Clerk traditionally serves as the local
election official and has duties related to local legislation, the Public Records Act, and
the Political Reform Act.
Under the new charter, the City Clerk's responsibilities are much the same with
the exception of duties related to warrants and business licensing. Under the new
charter, the City Clerk's duties include giving notice of Council meetings, keeping a
journal of its proceedings, and perform other duties as prescribed by State law, the
charter or ordinance. The duties related to warrants and business licenses are not
included in the new Charter as the responsibility of the City Clerk. These duties should
be assigned as determined by ordinance or action of the City Manager. (City Charter,
Section 505.)
While those responsibilities can be shifted to the appropriate department, likely
Finance, the City Clerk's compensation should not be reduced during her term of office,
according to the charter and state law .3 Section 103 of the charter states, "the present
officers ... shall continue to perform the duties ... under the same conditions as
those of the existing offices ... until the election or appointment and qualification
of their successors." Under state law, several California Attorney General opinions
have determined that, even for public officials, who would not traditionally be considered
employees, once they are in office, the public official is in essence a public employee
and public employment gives rise to certain obligations that are protected by the
contract clause of the Constitution, including the right to compensation. 80 Ops. Cal.
Atty. Gen. 119 (1997). However, charter cities are vested by the State Constitution with
total control over compensation for elected officials. Cal Const. art XI, §5(b)(4). See
also 57 Ops Cal. Atty. Gen. 11 (1974) (compensation and reimbursements of expenses
of local officers and employees is matter of local concern that city charter may expressly
control).
The charter provides that compensation for all existing officers shall continue
under the same "conditions" as currently until a successor is elected or appointed.
3 Once the position becomes appointive, rather than elected, the City Council can set the salary/salary
range for this position as it deems appropriate.
Thus, it appears that the City Clerk's compensation should not change until after the
current City's Clerk's term is Up.4
City Attorney
Under the previous charter, the City Attorney reported to the City Council. That
has not changed under the new charter. (Sections 502 and 504 of the Charter.) The
City Attorney's duties were already shifting prior to adoption of the new charter. In April
2015, the City adopted the Operating Practices for Good Government whereby the City
Attorney's duties shifted to "attention and resources on the performance of his duty as
chief legal officer to provide legal advice to the Mayor, [City] Council and City Manager,
and the management of his office, and ... leav[ing] the formulation of policy and
managerial matters exclusively to those officials charged by the City Charter with those
duties." (Operating Practices for Good Government adopted on or about April 6, 2015.)
Thus, a shift away from managerial responsibilities occurred then and, as required
under the new charter, the City Attorney's role should be to "serve as chief legal
advisor...; represent the City in all legal proceedings; and ... perform any other duties
prescribed by State law..." As explained above, compensation for the current elected
City Attorney should not be reduced as a result of any change in duties. As with the
City Clerk's position, when the position becomes appointive at the conclusion of the
current elected City Attorney's term, the City Council may set compensation for this
position as it deems appropriate.
Department Heads
Upon appointment of the City Manager by the City Council, the City Manager would
then have the immediate authority to appoint (or reappoint) all subordinate officers
(other than those excluded under the new Charter). The City Manager should appoint
(or reappoint) those subordinate department heads. Section 103 of the Charter
maintains a "status quo" for existing employees until an appointment is made. In order
to "reset" department heads status, the City Manager should make those appointments,
even if the position will be held by the same individual.
Section 101 indicates "the City shall have all powers for a city to have under the
constitution and laws of the State of California as fully and completely as though
they were specifically enumerated in this Charter."
Section 103., paragraph 2 -','All ordinances., codes,, resolutions, rules, regulations,
and portions thereof, in force at the time this Charter takes effect, and not in
conflict or inconsistent with this Charter, shall continue in force until they shall
have been duly repealed, amended, changed or superseded by proper authority
as provided by this Charter.
4 Likewise, the charter provides that compensation for the members of the City Council shall be
established by ordinance following public hearings and recommendations. It also provides, in Section
103 that existing officers will continue under the same "conditions." As a result of reading the provisions
regarding Council compensation, it appears that any change should take effect only after new Council
Members are seated following the next election. While the new Charter is silent on reductions in
compensation, increases are prohibited until the seating of a new Council Member.
Does Section 103, paragraph 2, limit the board grant of power in Section 101?
No, Section 103 does not limit the powers set forth in Section 101. Section 101
relates to the City's powers vis-a-vis state law including the California Constitution.
This provision is essentially stating the City's intent to retain as much power as
authorized under state law. Section 103 does not relate to the city's power vis-a-vis
state law but rather, looks internally to address inconsistencies between the charter and
the city's ordinances, codes, resolutions etc. Essentially, Section 103 is allowing
"municipal laws," not inconsistent with the new charter, to remain in place while
authorizing repeal, amendment or other modification in "municipal laws" that are
inconsistent. Any or all of the existing laws may be changed by the Council except
those which were voter approved (and not eliminated or changed by the new Charter).
What impact does the Charter have on Boards, Commissions, and Committees?
Section 600 provides: "Each board, commission, and committee established
prior to the adoption of this Charter shall continue to exist, exercise the powers
and perform the duties assigned to it upon adoption of this Charter. However,
the Council may alter the structure, membership, powers and duties... The
Council also may abolish or create particular boards, commissions and
committees, provided that the Council may not abolish the Commissions or
Boards specifically provided for in this Charter. The Council may grant powers
and duties to boards, commissions, and committees that are consistent with
the provisions of this Charter."
The Charter requires only three boards, commissions, or committees including: (1)
the Personnel Commission (formerly called the Civil Service Board); (2) the Board of
Library Trustees; and (3) the Water Board. These three bodies were established prior
to the adoption of the Charter and shall continue in the same manner as before the
adoption of the new Charter, unless and until changed by ordinance or other action
approved by the City Council. The City Council may not abolish these three bodies.
(City Charter, Section 600 et seq.)
State law requires the following boards, commissions, or committees: (1) Handicap
Accessibility Appeals Board; (2) Planning Commissions; and (3) the Oversight Board.
These three bodies were established prior to the Charter and will continue in the same
manner as before. While the City Council may not abolish these three bodies, the
manner in which appointments are made can be changed as a result of the new
Charter. (City Charter, Section 600 et seq.)
City voters approved Measure "Z" in November 2006 and Measure "YY" which
called for the formation of the "Measure "Z" Citizens Oversight Committee. This
committee was created by a voter approved measure; however, it is not expressly
mentioned in the new Charter. The question then is whether it may be abolished by the
City Council or have Council alter the membership pursuant to City Charter, Section 600
5 The City must have a Planning Agency, but the Council could elect to serve in that role, without a
separate Planning Commission.
et seq. If the City Council wishes to retain the Measure Z Citizens Oversight
Committee, this question need not be answered at this time.
In addition to the foregoing required bodies, there are approximately 13-15 boards,
commissions, or committees established by the Mayor prior to the adoption of the new
Charter. These bodies may continue in the same manner or the City Council may alter
the structure, membership, powers and duties, or abolish them. A simple majority vote
of the entire City Council is required to alter or establish a local advisory board,
commission, or committee. (City Charter, Sections 304 and 600 et seq.) Appointments,
removals, establishment of terms of office and rules and regulation for commissions,
boards and committees (other than those made up solely of Council Members, see
Charter Section 303(d)) are to be made pursuant to section 304(b) (requiring five
affirmative votes). One of the affirmative votes required may be the Mayor's. (City
Charter, Sections 303(c), 304(b) and 600 et seq.)
Council subcommittees that existed prior to the Charter may continue or they may
be abolished by a majority vote of the entire Council, including the Mayor. The Mayor
shall appoint members and officers to council subcommittees to fill vacancies. A
majority vote of the entire Council is required to establish new council subcommittees
and to set their scope of responsibility. (City Charter, Sections 303(d) and 304.)
It is important to note that all commissions, committees and boards (excepting only
ad hoc committees including less than a majority of the City Council as members) are
subject to the Ralph M. Brown Act requiring posting of agendas, restrictions on taking
action on items not included in the posted agenda, open and public deliberations,
keeping records of proceedings and recording (and reporting) specific information about
each action taken. Members of all committees, commissions and boards should
receive AB 1234 training within one year of assuming office and every two years
thereafter.
Conclusion
The Mayor and City Council are requested to:
1. Give direction to staff and special counsel regarding prioritization of code
amendments;
2. Introduce and give first reading to, waiving further reading of, draft Ordinance
No. Amending Chapter 1.08 of the Municipal Code; and
3. Introduce and give first reading to, waiving further reading of, draft Ordinance
No. Repealing and Replacing Chapter 2.02 of the Municipal Code.
et seq. If the City Council wishes to retain the Measure Z Citizens Oversight
Committee, this question need not be answered at this time.
In addition to the foregoing required bodies, there are approximately 13-15 boards,
commissions, or committees established by the Mayor prior to the adoption of the new
Charter. These bodies may continue in the same manner or the City Council may alter
the structure, membership, powers and duties, or abolish them. A simple majority vote
of the entire City Council is required to alter or establish a local advisory board,
commission, or committee. (City Charter, Sections 304 and 600 et seq.) Appointments,
removals, establishment of terms of office and rules and regulation for commissions,
boards and committees (other than those made up solely of Council Members, see
Charter Section 303(d)) are to be made pursuant to section 304(b) (requiring five
affirmative votes). One of the affirmative votes required may be the Mayor's. (City
Charter, Sections 303(c), 304(b) and 600 et seq.)
Council subcommittees that existed prior to the Charter may continue or they may
be abolished by a majority vote of the entire Council, including the Mayor. The Mayor
shall appoint members and officers to council subcommittees to fill vacancies. A
majority vote of the entire Council is required to establish new council subcommittees
and to set their scope of responsibility. (City Charter, Sections 303(d) and 304.)
It is important to note that all commissions, committees and boards (excepting only
ad hoc committees including less than a majority of the City Council as members) are
subject to the Ralph M. Brown Act requiring posting of agendas, restrictions on taking
action on items not included in the posted agenda, open and public deliberations,
keeping records of proceedings and recording (and reporting) specific information about
each action taken. Members of all committees, commissions and boards should
receive AB 1234 training within one year of assuming office and every two years
thereafter.
Conclusion
The Mayor and City Council are requested to:
1. Give direction to staff and special counsel regarding prioritization of code
amendments;
2. Introduce and give first reading to, waiving further reading of, draft Ordinance
No. Amending Chapter 1.08 of the Municipal Code; and
3. Introduce and give first reading to, waiving further reading of, draft Ordinance
No. Repealing and Replacing Section 2.01.010 of the Municipal Code
4. Introduce and give first reading to, waiving further reading of, draft Ordinance
No. Repealing and Replacing Chapter 2.02 of the Municipal Code.