Judge David Cohn this morning rebuffed the coalition on the San Bernardino City Council led by Mayor John Valdivia in its effort to have the financially-challenged city it heads reduce the pay of two of its lame duck officeholders.
In June, the city council, in a move orchestrated by Valdvia and his then-chief of staff, Bilal Essayli, followed a recommendation to reduce the pay to be provided to City Attorney Gary Saenz and City Clerk Georgeann Hanna during the last nine months of their terms in office.
Both Saenz and Hanna hold office under the bylaws of San Bernardino’s municipal charter that was first put in place in 1905 and which remained in absolute effect for 111 years. In 2016, the city’s voters gave approval to Measure L, which called for a redrafting of the charter and reduced the mayor’s administrative authority, moved the city from an odd-numbered-year election cycle to an even-numbered year one, and transitioned the city attorney’s post and the position of city clerk from elected ones to staff members hired or appointed at the discretion of the city council, and dispensed with the elected city treasurer’s office altogether.
Because Saenz and Hanna had been most recently reelected in 2015 to terms that ran from April 1, 2016 through March 31, 2020, they were and are entitled to remain in office, as elected officials, for the duration of their terms, at which point their positions will be filled by the city council’s designees. As elected officials, Saenz  was being provided with $246,266 in total annual compensation as city attorney, including salary, benefits and add-ons, and Hanna was receiving $171,466 in total annual compensation as city clerk, including salary, benefits and additional pay. A committee formed by Mayor Valdivia to explore cost-saving strategies chaired by Councilman Henry Nickel and including council members Theodore Sanchez and Juan Figueroa, all of whom are Valdivia’s political affiliates, recommended that Saenz see the $184,700 he was scheduled to receive between July 1, 2019 and March 31, 2020 reduced to $100,000 and that the $128,600 Hanna was scheduled to get over the same nine-month span be dropped to $52,500.
A host of considerations attended that move. Perhaps foremost was the city’s financial circumstance. In August 2012, San Bernardino had filed for Chapter 9 bankruptcy protection and did not emerge from that status until June 2017, during which period the city stiffed its creditors, vendors and service providers for more than $350 million. Indications this year are that two years after the city’s assumed financial recovery, it is again poised over a deepening financial abyss, with expenditures once more substantially outrunning revenue such that by October or November 2020 the city will have burned entirely through the reserves it was able to accrue while being artificially propped up by the bankruptcy court, at which point it will again face the likelihood of needing to make another bankruptcy petition. Curiously, the committee did not call for the $160,800 to be saved by the reductions in pay to Saenz and Hanna to be salted into the city’s reserve account but rather to be used to pay for lobbyists and legislative advocates. Another issue driving the pay reduction was the perception that Saenz was a member of former Mayor Carey Davis’s team. Valdivia served nearly five of his previous six-and-a-half years on the city council while Davis was mayor, and had challenged him in 2018, qualifying by finishing first in the June primary to then vie head-to-head against Davis in the November run, a race which Valdivia narrowly won. He is now intent on purging the city of any vestiges of the Davis era. Moreover, Saenz as city attorney had offered legal counsel that on occasion clashed with the direction Valdivia wanted the city council to take. Hanna, who has proven somewhat mercurial in her relationships with the city’s mayors, council members and staff over the years she has been in office, had been among those who ran for mayor in the 2018 primary. After Valdivia’s installment as mayor, she had clashed with him on the issue of city record availability.
The city council on June 11, with Councilman Jim Mulvihill absent, voted 4-to-2, with councilmen Nickel, Sanchez and Figueroa and councilwoman Bessine Richard prevailing over Councilman Fred Shorett and Councilwoman Sandra Ibarra, to institute the pay reductions for Saenz and Hanna as of July 1.
Subsequently, Saenz and Hanna, represented by the law firm of Wagner & Pelayes, filed claims and a legal action against the city, including a petition for a writ of mandate challenging the pay reductions.
That matter came before Judge Cohn this morning as a predisposition hearing.
Representing the city was attorney Edward Kotkin of the law firm Lynberg & Watkins, a different firm than that of Best Best & Krieger, which the city has retained as what is essentially its acting city attorney at present and which will officially replace Saenz in April.
Saenz and Hanna were not represented by anyone from Wagner & Pelayes but rather an independent labor law attorney from West Covina, Thomas Yu.
In hearing Sanez’s and Hanna’s motion regarding the writ for mandate, Judge Cohn took judicial notice of both the 1905 and 2016 charters and ruled that the provisions of the former and current San Bernardino municipal charters were not specific in providing the city council with the authority to change the rate of pay of the city attorney and city clerk while they are serving in their elected capacities, and that the California Elections Code thus dictates that they are entitled to receive, throughout the duration of their terms in office, the salaries and further compensation that was in place for those respective positions when they were elected.
Judge Cohn reasoned that the vote of the city’s residents in 2015, when Saenz and Hanna ran unopposed and were elected with 7,601 and 7,607 votes, respectively, was tantamount to being hired through the electoral process, entitling them to the salaries and benefits then associated with the positions, and that allowing the city council to change that would in essence invalidate the election.
Judge Cohn then stated his tentative ruling, entered before the hearing, on the record. “The writ of mandate is granted,” the record of his ruling states. “Salaries which were in place remain in place till [the] end of office.”
After the hearing, Hanna told the Sentinel, “I’m glad the court agreed that the council had no authority to cut our salaries. It was an ill-advised, costly and completely unnecessary distraction. They were warned by Best Best & Krieger recently, and another law firm in 2017, that it was not advisable to do this. Going forward, perhaps the council would be well-served to heed the advice of its professional advisors.”