By Mark Gutglueck
The manner of governance in the county seat is due for a significant change, the chairman of charter reform committee that was created last year told the San Bernardino City Council on Monday.
Of California’s 482 cities, 361 of them are general law municipalities, guided by a common set of rules of governmental operation which provides for five council members headed by a mayor, who employ a city manager to run the city and appoint, designate or allow the election of a city clerk and city attorney. The other 121 California cities are charter cities, which have a set of operating guidelines specific to each particular municipality.
San Bernardino is one of the state’s charter cities. Its charter and amendments thereto, per state law, are approved by the city’s voters. Its charter is a very comprehensive one and though not unique in all of its respects, peculiar in many regards, with some very rare provisions. For example, San Bernardino is one of only eleven cities in the state which has an elected city attorney. Furthermore, the city attorney is empowered to weigh in on, though not vote on, policy matters. The San Bernardino mayor has an uncommon blend of administrative authority and alternatingly limited and extensive political reach. Per the charter, he has nearly as much say in running the city as the city manager. As a member of the council, however, he is empowered to preside over meetings, and set the agenda and control the ebb and flow of discussion, but does not have the power to vote, unless the first vote of his colleagues ends in a tie, in which case he is entrusted with the power to vote and break the deadlock. San Bernardino is one of 154 California cities with an elected city clerk.
After years of deteriorating finances, the city of San Bernardino filed for Chapter 9 bankruptcy protection in 2012. City officials maintain that in attempting to deal with the city’s financial challenges, they have been hamstrung in many respects by provisions contained in the city charter.
Former Mayor Patrick Morris, who was mayor from 2006 until last year, has claimed that a major factor in the city’s fiscal deterioration is excessive salaries and benefits provided to city employees and retirees. A provision put into the San Bernardino charter by means of a citywide vote in 1939 – known as Section 186 – requires that the city’s public safety employees – firefighters and police officers – be paid on a scale equal to the average pay of police officers and firefighters in ten similarly-sized California cities. Morris railed against that provision, but did not have the legal authority to suspend it.
Carey Davis, an accountant by profession and a political ally to Morris, succeeded Morris last year after defeating Wendy McCammack, a former councilwoman who had long championed generous pay increases for municipal safety employees.
As one of his first acts in office, Davis called for the creation of a municipal commission to consider charter changes. In Spring 2014, the charter revision committee was formed. Each of the council’s seven members was empowered to name one registered voter from their respective wards to serve on the committee and Davis was provided with two appointments to the panel, including one culled from the city’s business community. Ward 1 Councilwoman Virginia Marquez selected Casey Daily for the committee, Ward 2 Councilman Benito Barrios chose Dennis Baxter, Ward 3 Councilman John Valdivia appointed Gary Walbourne, Ward 4 Councilman Fred Shorett selected Hillel Cohn, Ward 5 Councilman Henry Nickel chose Michael Craft, Ward 6 Councilman Rikke Van Johnson brought in Hardy Brown and Ward 7 Councilman James Mulvihill tapped Philip Savage. Davis selected Thomas Pierce and Dan Carlone. Savage was then chosen as the committee chairman.
On Monday, Savage came before the city council to inform its members and the public of the committee’s general direction so far and its preliminary recommendations as to the altering of the charter.
Collectively, Savage said, the committee has concluded that “the current charter impairs the basic management function of San Bernardino. No city in California functions like San Bernardino,” where “mixed” responsibilities and lines of authority are creating a malaise and confusion of governance, he said. San Bernardino’s system is, Savage said, “neither a council/manager form of government nor a strong mayor” system that presents “crippling ambiguities with respect to authority of the city manager, mayor and council. The elected city attorney is highly unusual in California cities, and in San Bernardino is vested with the right to provide policy recommendations. San Bernardino’s charter has been amended over 25 times, but almost 50 amendments have failed.
The charter has required over 200 city attorney opinions to interpret its ambiguous provisions,” he said. The overlapping of “the authority of the city manager and mayor and city council,” Savage said, has led to a situation in which “everyone is in charge so no one is in charge.”
Savage said the committee was proposing formulating a “skeleton” charter that would form the basis for an ultimate charter redraft that would involve council and citizen input over the next seven or eight months, allowing for the presentation of a recommended new charter to the mayor and council by next April or May so the new document, essentially a new constitution for the city, can be provided to city voters at the November 2016 election.
Savage implied that the existing charter is out of date. “Modern-era charters are clear, concise, and provide maximum flexibility to elected and appointed officials to operate the government efficiently and effectively,” he said. “City governance structure should be proven, clear and transparent.”
Savage then laid out the committee’s preliminary recommendations that the new charter provide for a “council-manager form of government in which the council’s “powers are limited to legislative and policy making, not administrative or managerial” functions and in which the “mayor no longer has independent administrative, appointment or removal powers and the city manager functions as the city’s chief executive officer, responsible for daily operations.”
The city manager, Savage said, would be “appointed by a majority vote of the mayor and council.” In addition, Savage said, under the committee’s recommendation, “the mayor has the same voting privileges as council members and would no longer be limited to breaking ties. This eliminates the need for mayoral veto power and eliminates the need for council override power.”
Savage said the mayor would remain “the key face and chief spokesperson for the city, and would establish and maintain partnerships and regional leadership, and serve as presiding officer at meetings, while fully participating in council discussions.” And, he said, “The city manager would be responsible for appointment or removal of all department heads. The city attorney is to be appointed by the mayor and council, not elected. The city clerk would be appointed by the mayor and council, not elected.”
Given that the mayor would take on full voting power, the city would need to eliminate one of its seven wards, most likely over two election cycles, so that there would be an odd number of votes on the council to head off the possibility of deadlocked 4-4 votes, Savage said.
Savage then lightly brushed over a key change – the removal of such provisions as Section 186 or any other elements of the current charter which make commitments to the maintenance of certain city departments or pay scales for employees – which a majority of the city’s elected officials and its top administrators believe are preventing the city from engaging in economic and managerial reforms to allow the city to overcome its financial problems.
“Departments will not be specifically mentioned in the charter,” Savage said.
Councilman Henry Nickel, who along with councilman John Valdivia, represents the minority faction on the council committed to protecting the city’s public safety employees and the entitlements in the current charter devoted to sustaining their pay and civil service protections at levels comparable to that provided to police officers and firefighters in other cities, sought to break the momentum of the headlong rush to dismantle the current charter by suggesting that the charter reform committee’s domination of the process was “elitist” and that the city’s residents needed to be brought in to participate in the charter redrafting.
“We need a robust public engagement component of the charter reform movement,” Nickel said.
Savage said he was in agreement with that sentiment but that in a city with a population of 213,708, just 384 residents had provided responses to the survey on the charter that the committee had put out. “We need to get the public more interested in the issues involved in the charter reform,” Savage said. “The vast majority of the city’s residents don’t know or care about the charter at all.”
He offered his view that having ill-informed city residents participating the process would not be productive. “Education of the populace is critical,” he said.
City attorney Gary Saenz told the Sentinel he concurred in the view that the position he was elected to in the balloting that accompanied the 2013 recall of former city attorney Jim Penman should not be an elected one.
“I have never been an advocate of an elected city attorney,” Saenz said. “The city attorney’s role should be a non-political one. I don’t think the city attorney should be involved in policy making. I think the better approach is to have a neutral city attorney who isn’t trying to influence policy but is focused on protecting the interests of the city, based upon interpreting the law. I think the city attorney should be an appointed position in which the holder serves as a legal officer.”
Savage said it is the committee’s goal to “hold a public forum to gather public input on charter skeleton; develop details for charter document” in October and November and “provide another progress report to the mayor and council and complete details for the charter document” by January or February. By April, he said, he wanted his committee to “provide a written report and recommendations, including specific charter language to the mayor and council.” He said the mayor and council would then have an opportunity to decide on the ballot measure to put before voters, noting the County Registrar of Voters Michael Scarpisi must receive the ballot measure resolution 88 days before election day, meaning it would need to be provided to him by August 1, 2016 to make the November 8, 2016 ballot.
By Mark Gutglueck