The San Bernardino City Council this week undertook an effort that might allow it to attenuate several of the provisions in the city charter deemed counterproductive and obstructive of the reforms certain elements in the city’s leadership  hope to effectuate to recover from the bankruptcy San Bernardino declared in 2012.
Nevertheless, some elements opposed to the change suggested the maneuver was an illegal one which contains fatal procedural flaws.
In California, more than three-quarters of its cities are organized under general rules applicable to the governance of a municipal entity, and are thus known as general law cities. Of California’s 480 incorporated municipalities, 368 are general law cities, represented by a five-member city council. At present, 112 California cities are charter cities. A city organized under a charter has a multitude of options as to its governance, can increase the number of its city council members, instill greater power in the mayor than is the case with general law cities, or stipulate permutations of government authority tailored to that particular city’s geography, demographics, economic circumstance, existing social, educational or vocational institutions or other peculiarities of that community as is collectively deemed appropriate, within Constitutional parameters. Most, though not all charter cities have a substantial population.
In the case of San Bernardino, provisions put into the 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.
San Bernardino has been beset with financial difficulties that culminated in the city’s filing for Chapter 9 bankruptcy in 2012. Former mayor Patrick Morris, whose eight years in office ended last year, for the last several years of his tenure  maintained that a major factor in the city’s fiscal deterioration has been excessive salaries and benefits provided to city employees and retirees. Carey Davis, an accountant by profession and a political ally to Morris, succeeded Morris in March after defeating Wendy McCammack, a former councilwoman who had long championed generous pay increases for municipal safety employees.
Section 186 effectively locks in salaries for San Bernardino’s public safety employees that are at par with or greater than those salaries received by their counterparts in ten 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.
Over the last several years, San Bernardino has been particularly hard hit by the economic downturn that has gripped the nation, state and region. Despite the city’s 2012 filing for bankruptcy protection, it has continued to give firefighters and police officers raises in keeping with the provisions of Section 186 of the city charter. During Morris’s rein as mayor, a schism had developed on the council over the continuation of what some characterized as too generous salaries and benefits to city public safety employees and what others maintained was simply adequate pay for policemen and firefighters.
As one of his first acts in office, Davis called for the creation of a municipal commission to consider charter changes, suggesting that the requirement that police and fire officers be provided with raises based on salaries given to their counterparts in cities free of the financial challenges San Bernardino faces should be done away with. After the creation of a citizens’ charter review committee, that panel , by a 7-2 margin, offered last May a suggestion that the city council use its authority to place a measure on the November ballot asking voters to repeal Section 186 and instead adjust salaries through the collective bargaining process.  The city council voted 4-3 with councilmen John Valdivia, Henry Nickel and Benito Barrios dissenting, to place two measures on last November’s ballot, asking city voters whether to alter the municipal charter and, in theory, reduce costs. The first of those measures would have repealed Section 186. The second measure would repeal Charter Section 254, which requires that fired employees who are appealing their terminations to the civil service commission continue to be paid until the commission makes a decision on whether or not to reinstate the employee.
The city’s police and fire unions strongly opposed the measures, and in the face of their spirited campaign against them, they were defeated.
The charter remains in place. In the current fiscal year, police department and fire department operations represent 68 percent of the spending out of the city’s general fund. Salaries make up the lion’s share of those departments’ operating budgets. A majority of the city council remains convinced that the continuation in the escalation of public safety employee pay in a city that has declared bankruptcy and is stiffing its other creditors is unseemly.
Last month, when Valdivia, the member of the city council most strongly in favor of preserving public safety salaries at current levels, was absent from a specially-called meeting of the city council for a so-called strategizing session aimed at formulating approaches to having the city exit from bankruptcy, five of the council’s members gave indication they favorably viewed adopting proposed
“operating practices for good government.”
At the Monday April 6 council meeting those proposed practices had been put into writing and were presented to the mayor, city council, city manager and city attorney for endorsement. Valdivia balked, refusing to set his pen to the paper. All six of the others – Mayor Carrie Davis, council members Fred Shorett, Jim Mulvihill, Henry Nickel, Benito Barrios, Rikke Van Johnson, and Virginia Marquesz, along with city manager Allen Parker and city attorney Gary Saenz – affixed their signatures to the document, which Saenz said was a legal “gentleman’s commitment.”
The agreement commits each of the city’s elected and top administrative and legal functionaries to a course of action and accommodation, with assigned roles for each upon which the others are not to intrude.  The two-page document in part states, “The role of the council is legislative in character, which includes the power to set policy, approve contracts and agreements and undertake other obligations consistent with the charter and code, while deferring to the discretion of management and staff to choose the appropriate means to achieve the council’s goals.  The council will make the necessary decisions to expeditiously exit bankruptcy, as well as develop and implement a strategic and tactical plan that ensures the city of San Bernardino’s success in the foreseeable future. The council will proved the resources to pursue the city’s best interests in bankruptcy court along with a robust communication plan to inform the citizenry of what is at stake.  The council, as the elected body serving all of the residents of the city, shall perform its duties and exercise its powers in a manner that serves the best interests of the entire city, rather than any particular geographic area or special interest.”
Furthermore, according to the agreement, “The mayor will build consensus with the council to create and implement a shared vision and plan of implementation to restore the city’s fiscal integrity. The mayor will establish and maintain partnerships and regional leadership roles to advance the city’s interest. The mayor will, consistent with the separation of powers contemplated by a reasonable reading of the city charter, not interfere with the discretion of the city manager in the exercise of his powers and the performance of his duties under the city charter. The mayor and council will jointly develop clear expectations of the city manager and hold him/her accountable by conducting performance evaluations at least every six months.”
The agreement stipulates that “Neither the mayor nor the council will interfere with the judgment and discretion of management staff with respect to the duties that are typically managerial in nature, such as the appointment, removal, and supervision of subordinate staff. Neither the mayor nor the council will direct departmental staff. The city manager will be the sole authority for managing city operations and directing city staff in those departments under his supervision.  The city manager will make business and policy recommendations based solely his or her independent professional judgment and best practices in the best interests of the city, rather than political considerations, and to this end shall strictly guard against interference with the performance of his duties. The city manager will have both the authority and accountability to produce a confirmable plan of adjustment for council approval by May 30, 2015. The city manager will be responsible for implementing the plan of adjustment to ensure the city exits bankruptcy as soon as possible. The city manager will be accountable for the implementation of council goals and policy and the overall performance of the city. The city manager will be responsible for ensuring that the council and mayor are fully informed on all aspects of important emerging issues.”
The agreement also spells out that “The city attorney will focus his attention and resources on the performance of his duty as chief legal officer to provide legal advice to the mayor, council and city manager, and the management of his office, and shall leave the formulation of policy and managerial matters exclusively to those officials charged by the city charter with those duties.”
Valdivia said the council was violating the law and the charter in adopting the agreement.