SAN BERNARDINO—Two years after city officials set out to do so, the San Bernardino City Council approved giving city residents the opportunity to jettison the city’s 111-year-old charter and consider adoption of a newly drafted one, which advocates say represents a more streamlined and logical set of guidelines for governing a modern city.
While all seven of the council members appeared to be in favor of adopting a significantly transformed governance blueprint, two councilmen dissented from the approval after three of their colleagues pushed to alter the format of the new charter as it was proposed by a committee which had spent two years working on it. They inserted language that makes reference to a municipal police department. That move came less than two months after the city took final action to dissolve its 137-year-old municipal fire department and replace it with a division of the county’s fire department.
Among the elements serving as an impetus toward the charter reform was the desire to reduce costs associated with the provision of public safety services in the city. The current charter, which has been in effect since 1905 and was revamped in 1939 with provisions that committed to provide pay levels to policemen and firemen deemed competitive with the remuneration offered to law enforcement officers and firefighters in similarly sized California cities, presented obstacles to the city council and city management as they sought to move to a conclusion its 2012 filing for Chapter 9 bankruptct protection by reducing salaries and benefits to city employees.
Phil Savage, the chairman of a nine-member charter revision committee appointed by the council in 2014 shortly after current mayor Carey Davis took office, made reference to the city’s fiscal difficulties in previewing the new charter proposal to the city council Monday night, May 16.
“I can’t say that our charter has caused our financial difficulties,” Savage said, “but it is clear it has been a significant contributing factor leading to the financial situation that finds us. As is stated in the bankruptcy recovery plan, until fundamental government management issues are resolved, it will be difficult for San Bernardino to operate in a modern, efficient manner.”
Savage said the committee’ two year effort was to create a governing structure “based on best practices for cities in California” which would give the council and staff flexibility and “set forth principles and standards, not detailed rules and procedures, enabling the city to operate in a business-like manner, be transparent, [and be] not legalistic but understandable by everybody.”
Savage said the committee “wanted to change the residency requirement in order to run for local office from 30 days to 180 days” but that “we found out since from legal counsel that cannot be legally done.” Thus, he said, the city would keep its 30 day residency requirement for running for office, the current requirement and the longest permissible under California law. He said the charter keeps in place each individual council member’s ability to appoint committee and commission members. He said there was “discussion about having police service referenced in the charter” but it was decided to “leave up to council to determine how police services are provided as to an internal police department or some other [provider]. We thought it best to leave that in the council’s hands and not tie the police department in with a charter provision.”
Savage said the most sweeping difference in the proposed new charter over what is in place now is that it will “change the manner of government to being a council manager form of government rather than a mixed form that we have, which is partially like a strong mayoral form of government and partially like a council manager [form] and it is actually a mixture of the two. Secondly, as part of that, the city manager becomes the CEO of the city government, with most department heads selected by the city manager. The city clerk, city attorney and city treasurer would no longer be elected. The mayor and council would be elected by plurality and [there will] no longer be run-off elections. The mayor would no longer be the one to appoint department heads. Boards, commissions, committees would be appointed by the council and mayor. The water department takes over all sewer, that is wastewater, responsibilities.”
Savage said the new charter preserves the current “six year terms for water board. We will still have a mayor elected at large. He still has tie-breaking power.”
The mayor will also retain veto power, but vetoes could be overridden, Savage said, with five votes. Early in the discussion of new charter provisions the concept of reducing the number of city wards from seven to six and making the mayor a full voting member of the council was considered. That did not make it into the charter proposal previewed Monday night. Rather the members of the council will, Savage said still be “elected from the existing seven wards” and the mayor will continue to preside over the council meetings, controlling the ebb and flow of discussion and debate, but will not be empowered to vote unless there is a tie. The mayor’s power will be attenuated somewhat further in that he will lose his ability to appoint department heads, Savage said.
Elections will no longer be held in odd-numbered years but now correspond with presidential and gubernatorial elections in even-numbered years.
The new charter, Savage said, envisages a water department and library that are “still independent, as they have been. The civil service department continues as the appeals [forum] of disciplinary action.”
The new charter, Savage said, “establishes clear lines of authority and responsibility. The city council makes policy and major financial decisions. The mayor leads the city. The city manager runs the city and is its chief executive officer.”
Savage said it was his belief the new charter will “help the city recover from bankruptcy. Why has San Bernardino been unable to deal with its many challenges? I’m convinced our underlying governmental structure has significantly hindered our government leaders from accomplishing what you have been trying to do.”
There was some opposition and protest over the charter reform effort.
In addressing the council, Scott Olsen angled his body toward those assembled in the council chambers rather than those on the dais. He said, “In the country we live in, one of the first things any voter, citizen or resident should pay attention to is when the government tells you they can’t work within the rules given to them by the voters, and the government wants you to change those rules so the government can do more of what they want. Be afraid. Be very afraid. The political nature of this charter change and what it is tied to – our former mayor, who bankrupted our city by the way – is obvious to anyone who looks at it. This is basically two years of wasted time on a political agenda. They talk about an antiquated charter. Look at history. How many people wanted to change this charter before mayor [Patrick] Morris? We had a lot of great charter changes… This charter goes down to 14 pages. It guts the entire essence of why we have a charter in the first place. This is all about regionalism. It’s about the loss of power at the local level by government officials who think that the next level up should be the one in control. It’s why we are now going to a county fire [department].” Olsen said that under the charter, residents will no longer be able to get action out of the city by approaching members of the council and will instead need to lodge requests for service with city manager.
“The city charter prohibits interfering with the city manager, an unelected, appointed individual,” Olsen said. “We had to pay $250,000 to get rid of the last city manager as part of a gentleman’s agreement, similar to what we are trying to get passed now. It’s not the city manager’s fault they want to dump all the responsibility on him. It’s the city council people who don’t want to do anything for you. If the new charter comes in, police protection – it’s gone. All we have to do is look at the fire department.”
Among the capacity crowd in the council chambers was former mayor Patrick Morris, who advocated on behalf of the charter change.
“I have been deeply impressed with the studious nature of the study, hard work and trying to bring to you lawmakers the best possible manifestation of the city charter,” Morris said. “Three years ago as we were looking to put our city’s finances back in order under the protection of Chapter 9, we recognized that our fiscal crisis was in large part due to the political dysfunction embedded in the structure of an antiquated charter. Some of it is unique in this state and in this nation, unique in the worst sense of that word. Every knowledgeable professional, city manager, public administrator, adviser, consultant, academic, business person, any responsible citizen who has taken the time to read the 46 page charter and the dozens of attached explanatory legal opinions would tell you that very same thing. This is a charter document that’s a piece of history. It doesn’t work administering a modern, complex city. During my eight years as mayor of this city, every city administrator who came to serve here as a city manager – Fred Wilson, Mark Weinberg, Charles McNeeley, Andrea Travis-Miller – all left in short order, shaking their heads and saying to me, “Mayor, I cannot successfully administer this city within the structure called for by this charter. In 2009, the city council invited Dr. John Nalbanian, distinguished professor of local government at the University of Kansas, and author of two books and dozens of articles governing American cities, to lead a three day retreat at the Orange Show with the council. His first observation to the council then, after he read the charter and the attached documentation and legal opinions, was, ‘I have no idea how this city can function or any city can function with the provisions of this charter.’ You have all acknowledged that fact and the 14 members of your distinguished core committee, the group you appointed after our bankruptcy, advised you to ignore the charter and do a work-around in order to manage this city through the bankruptcy. You all agreed. And you all signed that work-around document, to work within the framework of a new city manager council from of government. Now you have before you the work product of the charter commission: hard work, quality work, two years in preparation. This is not a rework of an old document. This is a new charter, a modern charter, solidly filled with best practices identified by the national civic league and matching the guiding principles of the charters of other well managed California cities of similar size. This is our opportunity, then, to approve their work and move it to the electorate for a vote. I urge you to do it without alteration, or to amend, add to or delete from this recommended new charter. If you do that you open it up to the allegation that it has been politically massaged and that may jeopardize in some measure its passage in November, and indeed, you limit future councils from acting in a successful way in managing the resources of the city. I urge you further to expend the time and energy required to put this on the ballot, to educate the voters on the importance of the provisions of this new charter. We took Measure Z to the electorate in my first term as mayor. We asked them for a quarter cent sales tax increase to improve public safety. We did an important educational effort with public resources as allowed by law to educate our citizens on the importance of that vote and it received over 65 percent thumbs up on that important provision. This vote is important if not more important than your votes taken to exit bankruptcy, for this sets our course for the future and it serves us so that we will have a city management structure that can work and guide us out of the pit of the dysfunctional nature of our city today and hopefully into a renaissance of the city we all love and care so much about. I urge you, again, pass it as it is placed before you.”
Before the council could do as Morris asked, councilwoman Virginia Marquez, who had been one of Morris’s closest allies on the council when he was mayor, signaled that she wanted the document that is to be presented to the voters tweaked to include a reference to a municipal police department. While Marquez’s reference was vague, the council’s two strongest advocates for maintaining a municipal police department – councilman John Valdivia and Henry Nickel – were galvanized. They interpreted Marquez’s comment as support for language essentially preventing the police department from being outsourced.
Councilman Fred Shorett objected to making any amendment to the document as drafted, citing Morris’s admonition along the way. Ultimately, however, he lost and the council voted 5-2, with Shorett and Jim Mulvihill dissenting, to present the new charter, with an amendment that references a municipal police department, to the voters for approval or disapproval in November. Councilwoman Bessine Richard and Benito Barrios swung behind Marquez, Valdivia and Nickel in that vote.
Nevertheless, the full implication of the vote is unclear, as the motion as stated did not explicitly lay out that the charter is to have language prohibiting an outside entity from providing contractual law enforcement services and thus serving in the capacity of the municipal police department. What was at issue is the concern of some that the city will contract with the San Bernardino County Sheriff’s Department for police service in the same fashion it transferred fire protection service in the city from the municipal fire department to the county. In 2002, the City of Adelanto dissolved its police department and contracted with sheriff’s office. In 1989, the City of Needles had likewise rid itself of an in-house police department to go with a contractual arrangement with the sheriff’s department. In the City of Rancho Cucamonga, the sheriff’s department is officially referred to as the police department.
The task of drafting the language to go into the charter now falls to the city attorney’s office. How restrictive or how loose that language will be is yet to be seen.
Whatever that language, the new charter proposal will lack Section 186, a provision put into the San Bernardino charter by means of a citywide vote in 1939 requiring 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.
San Bernardino, the county seat and the largest city in the county, has a population of 213,708. Yearly, city officials and police and fire union heads start with a list of California cities with populations between 150,000 and 250,000. In turns, each removes a city from that list until ten remain. Salaries are then computated upon the average pay to that particular group – firefighters or fire department management or policeman or police management – in the remaining ten cities.
Previously, Morris – a former prosecutor with the district attorney’s office and a Superior Court judge, lamented that Section 186 was crippling the city in its effort to get its financial house in order as 68 percent of the city’s budget consisted of police officer and firefighter pay.
If voters pass the new charter in November, Section 186 will be eliminated and the police union will no longer have the safety net of being able to press the city to equal the pay offered a cross section of policeman elsewhere and will instead be subject to a collective bargaining process in which city representatives will be able to angle for lower salaries and pensions.
Some residents and many advocates for the police department equate higher police pay with public safety. Marquez came across as being at one with that philosophy and when a break in the council proceedings was taken shortly after the vote, she made a beeline to the president of the San Bernardino Police Officers Association, Steve Desrochers, who was seated at the back of the council chambers.
In addition to the language to be added to the charter by city attorney Gary Saenz with regard to the police department, there is a possibility further tweaking of the charter’s form will take place, as two more public hearings on it are to be held on yet-unannounced dates. “I think there can be some reasonable, modest revisions we can make to make sure this is palatable to the citizens we represent,” Nickel said. “I think there’s some fine-tuning we need to do.”
Since Saenz stands to lose his elected status in the proposed new charter, the language will be vetted by an outside law firm before the final draft is handed over to the registrar of voters so it can be analyzed and the measure relating to it can be placed upon the November 8 ballot.