Former SB City Attorney Knells His Opposition To SB Charter Makeover

The overriding if not completely unbridled enthusiasm for charter reform in San Bernardino encountered a show of opposition last week when former San Bernardino City Attorney Jim Penman came before the city council to caution its members with regard to redrafting the document that defines how the county seat is governed.
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. The terms of San Bernardino’s governing protocol are extraordinary, even among charter cities in California in that they provide for a complex division and overlapping of power involving the city’s elected officials and its senior staff employee. Its charter gives the city’s top political figure – the mayor – an uncommon degree of control over the day-to-day operations at City Hall, such that the mayor and the city manager are, by one interpretation at least, essentially co-regents over the city. The mayor’s role attenuates the authority of the city manager somewhat. Yet at the same time that the mayor’s administrative and managerial reach is extensive under San Bernardino’s charter, his actual political role is, paradoxically, quite limited. While he presides over the city council meetings and can control the ebb and flow of debate and discussion, he is not normally a voting member of the council, and is authorized to vote only in the event of a tie. The charter does give the mayor veto power, allowing him to override a 5-2 or 4-3 vote of the council. The San Bernardino Charter also provides for an elected city attorney, making San Bernardino one of only eleven cities in the state with this distinction. San Bernardino is one of 154 California cities with an elected city clerk.
Some city officials, led by former San Bernardino Mayor Patrick Morris, who was mayor from 2006 until 2014, has claimed that a major factor in the city’s fiscal deterioration, which led to its filing for Chapter 9 bankruptcy protection in 2012, was the city’s unwieldy form of governance as laid out in the charter. Morris’s successor, who was at one-time his political ally, Carey Davis, embraced the call for charter change and, as one of his first acts in office in the Spring of 2014, called for the creation of a municipal commission to consider charter changes. In short order, the city’s charter revision committee was formed. The panel’s eight members, having studied the issue for some 21 months, recently offered a bare bones outline of their yet evolving recommendation for the general provisions of the new charter, which will yet need to be put into a comprehensive form to be voted upon and put into effect only upon majority approval of the city’s voters.
Committee chairman Phil Savage said it is the collective consensus of not just the committee but city officials overall that the current “charter has imposed basic management and functions on the city” that have resulted in “crippling ambiguities with respect to the authority of the city manager, mayor and council. Everyone is in charge, so no one is in charge.”
He said that the committee had rejected the general law city model and set about redrafting charter options that were not based upon the existing charter. The committee, Savage said, was leaning toward a “council-manager form of government” in which “the city council shall be composed of the mayor and council members [with the] mayor elected at large, the council members elected by ward [and] the same four-year terms as the current model. The city council’s powers would be limited to legislative and policy making, with the city manager functioning as chief executive officer, responsible for daily operations.”
The mayor would, Savage said, have “a full vote with the city council, continue to be presiding officer at meetings, and fully participate in discussions while continuing to be the city’s key face and chief spokesperson.” The mayor, however, would, Savage said, “No longer have independent administrative, appointment or removal powers.” Nor would the mayor have veto power over council decisions. The city council would most likely be reduced to six members, Savage said, with the council members still elected, as at present, through a ward system. “The city manager,” Savage said, “will be sole authority for managing city operations and appointing and directing city staff, unless otherwise specified by the charter; will make business and policy recommendations based on independent professional judgment and best practices in the interests of the city; will be accountable for implementing council goals and policies and the overall performance of the city; and will be responsible for ensuring the city council is kept fully informed on important emerging issues, and will fully brief the council at council meetings on business matters before them.”
The commission was recommending that the city attorney and city clerk no longer be elected posts, Savage said.
Last week, an item on the council agenda was a scheduled vote on what had been deemed a relatively routine resolution to designate city owned property located at 1350 South E Street downtown, which is proximate to the San Bernardino Municipal Water Department’s administration building and water reclamation plant, located at 397 Chandler Place and 399 Chandler Place, for use by the water department. In exchange, property that was formerly designated for use by the water department, located east of North Sterling Avenue and North of Foothill Drive was to be redesignated for use by the city. James Penman, who was San Bernardino City attorney for more than a quarter of a century from 1988 until 2013, used the council action as a springboard to weigh in on the charter makeover movement, taking the opportunity to address the council. He did not speak in opposition to the land exchange but rather to point out that the city council had to enter into an agreement with the municipal water board to make the property swap because of the limitation placed upon the council by the city charter. Such a check on the council’s purview was a wise one, Penman implied, implying that the proposed charter change would eradicate an important protection against subjecting the city’s residents to the whim of elected city officials.
“Some people might wonder why the city would be entering into an agreement with the water department,” Penman began. “That’s because in our charter, the voters, when they gave authority to the city, wanted to insulate the water department from the politics of what goes on in the day to day meetings of the city council. So, they created a second independent water board. The water board has given this city probably the best quality water of most cities in this state. We pay, probably, among the lowest rates of any city in this state. The water board doesn’t get involved in politics. Many times I’ve sat here over the years and heard council members talk about how we need to bring the water department under the council. And every time they talk about that, they talk about the money the water department has and how they could use that money in other endeavors. The money that the water department has is there because they are constantly required by law to update the infrastructure of the city for the water supply. The federal government requires it, the state government requires it and we have interlocking agreements with other water authorities in the region that also require it.”
While inexpensive and high quality water is an asset the city’s residents value, Penman said, the city council, which in the future may see the water division as offering a means of generating revenue to be used on other municipal programs, may exploit that asset by raising rates, if under the terms of the changed charter, it is given the authority that now resides with the water board.
“One of the last things the mayor and council need in addition to the many tremendous duties they already have is the responsibility of trying to run the one most efficient department in the city, the most effective department in the city, one that does its mission so very well,” Penman told the council. “The water board studies the issues. They study the situations that come before them in a way that you don’t have time to do, because if you look at the length of your agenda, you have so much more on your plate than water. Our charter does that and that’s another reason why our charter is as great as it is and why we need to keep our charter.”
The charter represented, Penman said, “the voters’ directions to the mayor and council.”
After Penman delivered his remarks, he told the Sentinel that he was opposed to the wholesale charter revision that the council was contemplating, saying the charter’s provisions had been put in place by a time-tested and well considered process of voter approval over a period of decades moving well on to a century. He said he was opposed to removing the mayor’s veto power, remarking that it had been sparingly but judiciously used in the past and should be preserved as a hedge against council actions that were counterproductive or ill-considered.
While the comments of the majority of council members over the last several months would indicate they are in general agreement with redrafting the charter, Councilman Benito Barrios has taken issue with the proposal to reduce the number of council wards from seven to six.

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